About The OA before CAT of Absorbed BSNL IDA Pensioners
- R Pattabiraman
I happened to go thro the above captioned matter given in 23 pages placed in whatsapp group. This OA is seeking justice against the denial of Revision of Pension to the Applicants. I wish them every success.
I found some factually incorrect things in that Application and so this piece. I have to accept humbly my limitation on legal matters and I have no legal prudence also. But fact is fact and I apply common sense on that. I have taken the general concepts and the judgment that get emphasized in that OA and given here my understanding on that.
1.The para 4.44 is factually not correct.
4.4 of OA “As already stated, Rule 37-A creates a sui-generis group of combined service absorbee pensioners. All the absorbed BSNL pensioners were in Government service for more than 20 years and a maximum of only 17 years’ service in BSNL.”
There were more than one lakh RM who got only less than 10 years service on 1-10-2000. For any Govt servant to get pension they need 10 years Govt service. Here we got Govt pension to those also even though they got less than 10 years Govt service but due to combined service in the PSU BSNL. For this I salute Com Gupta.
2. OA para 4.46 “Due to non-revision of pension for absorbed BSNL IDA pensioners they are getting pension at a lower rate than their counterparts in Central Government i.e. CDA pensioners. For example, Applicant No.2 is getting Rs.1677/- per month less than his counterpart in Central Government as on 01.01.2017.”
I am not commenting this para but I give here another comparision here to have some balance of understanding( as on may 2020) between 7th CPC 2016 CGE in HSG 2 retired during May 2018 and BSNL NE 11 retired during May 2016 in 2nd PRC 2007.
May 2020 7th CPC 2016 2nd PRC 2007
Basic pension Rs 31100 Rs 15070
CDA/ IDA Rs 5287 Rs 23706
Commutation Rs 12440 Rs 6028
credited pension Rs 23947 Rs 32748
From the above fact the CG Employee retired in HSG 2 in 2018 and the present day 7th CPC CG pensioner is getting Rs 8801 less comparing the 2nd PRC BSNL IDA Pensioner as on date who retired 2 years before that CG pensioner.
3. DOT /DOPPW
Any applicability of 7th CPC can be extended to BSNL IDA pensioners just by one DOT order from the same date 1-1-2016 like the one issued for enhancement of Gratuity by DOT dt 16-3-2017. The applicability is also for future pensioners only that is ‘those who are employees’ on that date. But for incorporation of certain provisions like linking DA linked Gratuity enhancement, Minimum Pension RS 9000 is possible only when DOT issues Pension Revision orders after getting approval from the cabinet.
The RTI replies given by DOPPW for Pension Revision are known to us. Just to remind them the essential portion is given below.
The relevant para of DOPPW OM dt 4-8-2016 is
“ Where the Govt servants on permanent absorption in PSU continue to draw pension separately from the Govt, the pension of such absorbed will be updated in terms of these orders.." This para of that order speaks for Pro rata pensioners.
DOPPW RTI reply dated 4th July 2018 regarding the applicability of 7th CPC:
“...Those who were absorbed in PSUs and were getting pension in IDA pattern based on the combined service in Govt and the PSU are not covered by these orders."
DOPPW has clarified about the applicability of 7 th CPC orders (relevant paras of OM dt 4-8-16 and of OM dt 12-5-2017) for a RTI question 0n 10-8-2018 .
“Obviously these orders are not applicable to those pensioners who are drawing pension in IDA scale for the combined service rendered in the Govt and the PSU.."
4. Contesting the Sub Rule 4 of 37 A
(4) The permanent absorption of the Government servants as employees of the Public Sector Undertaking shall take effect from the date on which their options are accepted by the Government and on and from the date of such acceptance, such employees shall cease to be Government servants and they shall be deemed to have retired from Government service.
As per my limited knowledge the judgement of 15-12-1995 is not relevant to this.
What is that judgement dated 15-12-1995? Before going to that the following background thro the earlier judgement is given below to have fair knowledge on that.
Common cause made that legal battle to restore 1/3 rd Commuted portion of pension by 12 years. The judgement was delivered by Ranganath Misra Bench on 9 December, 1986.
The case was “ In petitions under Article 32, the petitioners have asked for striking down certain provisions of the said Rules as they permit the Union to recover more than what is paid to the pensioners upon commutation and for a direction that an appropriate scheme rationalizing the provisions relating to commutation be brought into force because there has been a substantial improvement in the life expectancy of the people, and since commutation portion out of the pension is ordinarily recovered within about 12 years, there is no justification for fixing the period at 15 years.”
The direction of the SC for the above said case is “We are, therefore, of the view that no separate period need be fixed for the Armed Forces personnel and they should also be entitled to restoration of the commuted portion of the pension on the expiry of 15 years as is conceded in the case of civil pensioners. And for them too the effective date should be from 1.4.1985.”
For implementing this judgement the DOPPw issued the relevant order viz
“ DOPPW OM 5th March 1987 Sub: Restoration of commuted portion after 15 years- implementation of the judgement of the Supreme Court “
In that order the following para was also placed.. The para is
“ 4 :Central Govt Employees who got themselves absorbed under CPSU and have received/ or opted to receive commuted value for 1/3 rd of pension as well as terminal benefits equal to the commuted value of the balance amount of pension after commuting 1/3 rd of pension are not entitled to any benefit under these orders as they have ceased to be CG Pensioners.”
This para created an issue and led to further litigation and hence the following Judgement of SC dt 15th Dec 1995
Supreme Court of India : Welfare Association Of ... vs Union Of India & Anr on 15 December, 1995 Author: V K. Bench: Venkataswami K. (J)
The case is “ These two writ petitions are filed under Article 32 of the Constitution of India. At the time of argument learned counsel appearing in these writ petitions confined their relief to the restoration of one-third portion of the fully commuted pension as per the decision of this Court in Common Cause, Registered Society & Ors vs. Union of India, (1987) 1 SCR 497, and consequently to quash para 4 of O.M. 3412/86. P&PW issued by Government of India Department of Pension and Pensioner's Welfare dated 5.3.1987.”
The Direction given in the above judgement is “For the foregoing reasons, we hold that the petitioners are entitled to the benefits as given by this Court in 'Common Cause' case so far as it related to restoration of one-third of the commuted pension. Consequently, the impugned para 4 of Office Memorandum dated 5.3.1987 is quashed. The writ petitions are accordingly allowed to the extent indicated above. No costs.”
Here the case was for extending the entitlement of CG pensioners to the absorbed pensioners on the issue of 1/3 commutation restoration also making them also eligible from the same date. The contention is not about the issue of ‘they have ceased to be Govt pensioners’
5. DOT OM dt16-3-2017
37 A (8) A permanent Government servant who has been absorbed as an employee of a Public Sector Undertaking and his family shall be eligible for pensionary benefits (including commutation of pension, gratuity, family pension or extra-ordinary pension), on the basis of combined service rendered by the employee in the government and in the Public Sector Undertaking in accordance with the formula for calculation of such pensionary benefits as may be in force at the time of his retirement from the Public Sector Undertaking or his death or at his option, to receive benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Here we need to mention the DOT OM dt 16-3-2017 which speaks no change in formula.
DOT OM dt 16-3-2017 : Sub: Implementation of 7th CPC recommendations: Applicability to the BSNL/ MTNL absorbees..under 37A
This Om only made to revise the maximum of Gratuity limit to the 20 Lakh but without DA linked for BSNL absorbed retiring on or after Jan 2016 .
In that OM para 3
There is no change in he formula for pension/ family pension w.e.f 1-1-2016. BSNL/ MTNL absorbee employees will, therefore, continue to get pension based on the same formula
37 A (9) The pension of an employee under sub-rule (8) shall be calculated on fifty percent of emoluments or average emoluments, whichever is more beneficial to him.
The pension of the post 2017 pensioners is fixed by this SR only. Without pay revision no updation of pension is possible as per this SR for these post 2017 pensioners.
6. Post 2017 pension updation issue:
the demand of 7th CPC is accepted for Past pensioners, employees becoming
pensioners on retirement from 1-1-2017 will not get it as they are covered as
per the norms of PRC or any bilateral settlement. There would be two categories
of pensioners- past pensioners as per 7th CPC and future pensioners as per the
PRC or any settlement. This is against the spirit of Nagara case.
Knowing fully well that the demand of the association ( and of some other associations also) would create discrimination for the post 2017 pensioners , the association wants to get legal stamp for the discrimination .
7.About the Issue of Delinking
DOPPW OM addressed to DOT dt 8-3-2019 specifically placed the following observation
“…. In case pension of the past pensioners is revised, their revised pension would become higher than pension to be fixed on retirement of the existing employees. This will create an anomalous situation in BSNL/ MTNL as the past pensioners would be getting more pension than the freshly retired pensioners. DOT therefore needs to bring about how they propose to resolve this anomaly”
LS reply to the question dt 11-3-2020:
“Pension revision of absorbed employees of Bharat Sanchar Nigam Limited (BSNL) is linked to the pay revision of the serving employees in as much as pension is calculated on the basic pay which the retired employee was earning at the time of retirement. Pension may be revised if the said basic pay is revised on account of pay revision of serving employees.”
From this reply it is clear that DOT is not willing to create any anomalous situation by giving pension revision without pay revision. It seems that the pensioner association wants to create the anomalous situation for more than a lakh of post 2017 pensioners as on date, and whose numbers will go further on every month retirement till 2026 and even beyond.
As per my limited knowledge the anomaly pointed out by the DOPPW in its oM dt 8-3-2019 cannot be settled unless there is simultaneous pay revision for the employees on the same formula of pension revision of past pensioners from 1-1-2017, if it is accepted forced and based on any judgement by any court at any level. This is nothing but reverse linking. The question of delinking is not possible as long as there are future BSNL IDA pensioners
23-9-2020 - R.Pattabiraman BSNL IDA Pensioner