PB CAT Judgment

 

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 7^th 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 7^th 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 2^nd PRC scales. I hope this issue arised out of this judgment need to be addressed.

10.30 PM  25-9-2023    -  R. Pattabiraman