PB
CAT Judgment
Congratulations
to all those leaders and Pensioners’ Associations of BSNL and MTNL who labored a
lot for bringing a favorable CAT judgment for their applications and prayers.
The copy of Judgment was first sent to me by Com Mathi of Vellore and later by
many comrades.
I
am one amongst the serious contestants against the associations demanding 7th
CPC fitment and scales for the sake of those retiring on or after 1-1-2017 that
is post 2017 pensioners ( the employees on 1-1-2017). All my ‘learned’ articles
and write-ups were thrown into dust bin by this PB CAT judgment pronounced on
sep 20, 2023. All the criticism leveled against me is getting its justification
as on date by this judgment. The future criticism about ‘poverty’ of my understanding
on this issue will also find its justification.
But my heart does not feel guilty as I wrote
only the found truth, and mind says ‘nothing that placed is wrong’. I did not
get that legal stamp for my views, and the similar views of mine were not
considered by the PBCAT.
I
wish the Associations every success to carry forward the judgment to the
logical conclusion, the realization of Pension Revision on parity
with CPC recommendations. DOT and the other Respondents should understand the
sentiments of lakhs of Pensioners waiting patiently for the last 6 years and
help them to find a solution without dragging the case further legally and
causing delay in preparing cabinet note and other procedures.
I
have given below my study about the case and relevant connecting points. I have dealt both pre 2016 OM and post 2016 OM
of DOPPW and their difference. Those interested may go through and others can
ignore. Those interested, kindly read carefully.
II PB CAT Judgment in nut shell
The
allowed OAs are 1272/2020, 1271/2020, 1329/2020 filed by various Associations
and members of that Associations. The respondents are DOT, DOPPW, DPE, BSNL and
MTNL , but the OA 1329 filed by
AIBSNLPWA is not including BSNL, of course correctly, as one of its respondents
like the other two OAs .
As
per the ORDER of Hon' Mr Tarun Shridhar, Member A
Accordingly, with the request and consent of
learned counsel for the parties, all the O.A(s) have been taken up together for
disposal and these are being decided by a common order. However, facts of only
OA No. 1272/2020 are being discussed.
Arguments on behalf of the applicants have
been collectively put forth, led by Mr. Sanjay Ghosh, learned Senior Advocate (
of 1329 AIBSNLPWA) assisted by other advocates.
The following relief was sought by the
way of OA.
"(a)
Pass an Order directing the Department of Telecommunications to revise the
pension/family pension/minimum pension w.e.f. 01.01.2017 for the BSNL combined
service Pensioners, who were absorbed from DOT/DTS/DTO we.f. 01.10.2000 and
retired prior to 01.01.2017 by applying the fitment formula on IDA pension as
on 01.01.2017;
(b)
Pass an Order directing the Department of Telecommunications to revise the
pension/family pension/minimum pension w.e.f. 01.01.2017 for the BSNL combined
service Pensioners, who were absorbed from DOT/DTS/DTO w.e.f. 01.10.2000
analogous to the revision of pension/family pension/minimum pension for the
Central Government Pensioners based on the recommendations of the 7th Central
Pay Commission;
(c)
Pass an Order directing the Department of Telecommunications to revise the
pension for BSNL combined service pensioners parallel to the revision of
pension of the Central government servants without linking with Pay revision in
BSNL:
(d)
Pass such other further order (s) as this Hon'ble Tribunal may deem fit and
proper in the facts and circumstances of the present case and in the interest
of justice."
The following are the observations of
PBCAT
Para
22
There
is no ambiguity that at the time of their placement and absorption in BSNL and
MTNL, it was categorically stated that the erstwhile employees of the
Department of Telecommunication shall continue to be governed by their existing
terms and conditions of the service which means that they shall continue to be
treated as government servants for all intents and purposes. It is also not in
dispute that from time to time, the recommendations of the Central Pay
Commission, as accepted and notified by the government, were made applicable in
their case too. There is no ambiguity with respect to the general terms and
conditions governing absorption, as circulated and quoted in para 5 of this order,
stating categorically that provisions of Rule 37 (A) of the CCS (Pension)
Rules, shall guide payment of pension to these employees.
in
para 26
We
reiterate that even on their absorption in the corporate undertaking, the terms
and conditions of services governing them were to remain the same as they
existed when they are employees of the Department of Telecommunications.
Further, these terms and conditions include pension and family pension and this
has been expressly stated in the rules and several subsequent communications
which have been elaborately quoted in some of the preceding paragraphs of this
order.
in
para 27
We have no hesitation in concluding that the
present application deserves positive consideration. The government had given a
promise and stated it in black and white. How could it now retract from the
promise, that too not by any law or rules but by simply a refusal to honour it?
The main operative portion of judgment in para 28
In
view of the elaborate discussion above, the OA stands allowed. The competent
authority amongst the respondents is directed to forthwith revise the pension
and family pension wherever applicable, strictly in accordance with the
relevant rules and the entitlement governing pension to various sets of
employees of the Central Government, maintaining strict parity. It is clarified
that the benefits of revision of pension and family pension as notified by the
Central Government on the recommendations of the Pay Commission, shall stand
extended in favour of the applicants, analogous to the revision of such pension
in case of Central Government pensioners
III My observations
on judgment
The
prayer is directing the DOT to implement the pension revision and the judgment is
direction to the Competent authority
amongst the Respondents – DOT or DOPPW , DPE may not be I think, but DOE In the
case of post 2017 as post 2016 employees got their benefit vide DOE OMs.
The direction is
"..
to forthwith revise the pension and family pension wherever applicable,
strictly in accordance with the relevant rules and the entitlement governing
pension to various sets of employees of the Central Government, maintaining
strict parity."
That is revise pension and FP 'wherever
applicable' and this in accordance 'with rules and entitlement governing
various sets of employees of the CG', maintaining 'strict parity'.
The clarification given is
"
It is clarified that the benefits of revision of pension and family pension as
notified by the Central Government on the recommendations of the Pay
Commission, shall stand extended in favour of the applicants, analogous to the
revision of such pension in case of Central Government pensioners."
That
is recommendations of Pay commission shall stand extended, and is analogous
(that is similar to) the revision of such pension in case of CG pensioners .
Ok
good
1.
CG
pensioners got their pension revision in Jan 2016 simultaneously with the Pay
revision of CG employees on Jan 2016. There is a link between pre 2016 CG
pensioners and CG employees on 1-1-2016, the post 2016 pensioners. Is it the
same/ similar situation regarding absorbed BSNL/ MTNL pensioners? can it be
construed the analogus one in this
regard? The CAT judgment is silent on this question
2.
The
Judgment speaks about rules and recommendations of CPC. So if rules meant the
relevant OMs then we have to see both the OMs and also recommendations of 7th
CPC
3.
The
37 A is the main rules and the OM that suits 37 A is the OM dt 4-8-2016 suited
to post 2016 but not OM of pre 2016. But
now the judgment, if I presume or understand correctly asks to suit the OM
dated 4-8-2016 for pre 2016. The judgment is not directly quoting the OMS. My
understanding cannot be above the legal judgment.
4. 7th CPC recommendations as per ch 10.1
The minimum pension based on the
recommendations of this Commission will increase by 2.57 times over the
existing level (3500 to 9000). ( this need to be implemented )
The Commission recommends
enhancement of ceiling of gratuity from the existing 10 lakh to 20 lakh from
01.01.2016. The Commission further recommends, as has been done in the case of
allowances that are partially indexed to Dearness Allowance, the ceiling on
gratuity may increase by 25 percent whenever DA rises by 50 percent. ( it was
partially implemented for BSNL employees retiring from 1-1-2016 but linkage
with DA need to be done)
The Commission, after
examination of the matter, recommends the following revised rates for payment
of death gratuity: ( For BSNL employees retiring after this order implemented)
pension
revision -
The Commission recommends the
following pension formulation for civil employees including CAPF personnel, who
have retired before 01.01.2016:
i) All the civilian personnel
including CAPF who retired prior to 01.01.2016 (expected date of implementation
of the Seventh CPC recommendations) shall first be fixed in the Pay Matrix
being recommended by this Commission, on the basis of the Pay Band and Grade
Pay at which they retired, at the minimum of the corresponding level in the
matrix. This amount shall be raised, to arrive at the notional pay of the
retiree, by adding the number of increments he/she had earned in that level
while in service, at the rate of three percent. Fifty percent of the total
amount so arrived at shall be the revised pension.
ii) The second calculation to
be carried out is as follows. The pension, as had been fixed at the time of
implementation of the VI CPC recommendations, shall be multiplied by 2.57 to
arrive at an alternate value for the revised pension.
iii) Pensioners may be given
the option of choosing whichever formulation is beneficial to them.
DOPPW OM 4th Aug 2016 is the OM for pre
2016 ( F No. 38/ 37/ 2016- P & PW (A) (ii) and the subject matter for this is
implementation of Govt's decisions on the recommendations of the 7th CPC-
revision of pension of pre
2016.
In
that
4.1
For
existing pensioners,who have retired before 01.01.2016, the revised
pension/family pension with effect from 01.01.2016 shall be determined by
multiplying 6th the pension/family pension, as had been fixed at the time of
implementation of Central Pay Commission (CPC)recommendations, by 2.57.
The
amount of revised pension/family pension so arrived at shall be rounded off to
next higher rupee.
4.4
The minimum pension with effect from 01.01.2016 will be Rs. 9000/- per month
(excluding the element of additional pension to old pensioners). The upper
ceiling on pension/family pension will be 50% and 30% respectively of the
highest pay in the Government
(The
highest pay in the Government is Rs. 2,50,000 with effect from 01.01.2016).
4.5
The
quantum of pension/family pension available to the old pensioners/ family
pensioners shall continue to be as follows:-.... (from 80 years)
10.
The pension/family pension as worked out in accordance with provisions of Para
4.1. and 5 above shall be treated as 'Basic Pension' with effect from 01.01.2016.
The revised pension/family pension includes dearness relief sanctioned from
1.1.2016 and shall qualify for grant of Dearness Relief sanctioned thereafter.
Let
us not forget there is another
OM of DOPPW dated 4-8-2016 but file is different viz F. No. 38/37/2016-
P&pW (A) (i). the subject matter of this OM is Revision of
Provisions regulating pension/ gratuity/ commutaion of pension/ FP etc. This is
for post 2016 pensioners, that is employees on 1-1-2016. As per 37 A , this was
extended to us BSNL retirees from 1-1-2016 where ever relevance felt. This OM is not for pension revision
fitment. This only speaks about Grautity enhancement with 20 lacs
and DA linkage, death gratuity, also
minimum and maximum pension.
POST 2017 issue
The
next issue is about post 2017. For them the recommendations are part of post 2016 OM, which was partially
implemented and DA linked aspect and minimum, maximum pension only remaining to
be implemented. OM of pre 2016 pensioners not applicable to them. Only Pay
change recommendations implemented for them( post 2016) as per DOE CCS Revised
Pay rules. Fortunately in AIBSNLPWA 1329 OA DOE is made as one of the
Respondents.
There
is no specific Order for this kind of post 2017 pensioners, the employees on
1-1-2017 in this judgment as per my study. They were not pensioners on
1-1-2017. Suppose without finding any remedial measures to address this issue,
this judgment is implemented, then there would two different type of pensioners, one getting
pension parity with CG pensioners and other post 2017 pensioners on 2nd
PRC scales. I hope this issue arised out of this judgment need to be addressed.
10.30
PM 25-9-2023 - R.
Pattabiraman
It is pity that post 2017 pensioners are left as orphans. Mali
ReplyDelete