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View Full Version : Relaxation of FR 56 entitling one to the benefits of 6th Pay Commiission



Gopal Krishan
21-02-2012, 08:49 PM
According to the provision of the Fundamental Rule 56 all those who were born on the Ist January, 1946 retired on the 31st December, 2005 depriving them of the benefits of the 6th Pay Commission. At the same time Fundament Rule 5A provides that if any of the FRs operate harshly the same cane be relaxed by the administrative Department but with the concurrence of the Department of Expenditure. Is there any policy with the Department of Expenditure in this regard. If no, how to go about the same?

vnatarajan
22-02-2012, 03:12 AM
Dear Shri Gopal Krishan,

The two impervious components dealing with pension policies and their pecuniary benefits to oldies are totally inhuman and unethical.
AS A FIRST STEP TRY TO GET ALL MATERIAL THRU RTI.

There was a case of One Shri A GK (looks like your namesake) who was a great loser by the same fate, and he tried to dig at history/ get justice by establishing facts thru RTI and he got a favourable order from the CIC ( for digging information ONLY by DOE from its files) to get at the only precedence from their files but I do not know what happened further.

"STRANGE BUT TRUE" WAS THE CAPTION I USED TO PROJECT THIS CASE IN SOME THREADS HERE AND ALSO IN SOME WEBSITES LIKE THAT OF RREWA ETC.

Regards,
VNatarajan

vnatarajan
28-02-2012, 02:57 AM
Here is the item from CIC repository! WHAT HAPPENED AFERWARDS?---VNATARAJAN:

CENTRAL INFORMATION COMMISSION
…..
F.No.CIC/AT/A/2009/000757
Dated, the 4th January, 2010.
Appellant
:
Shri Gopal Krishan
Respondents
:
Department of Expenditure
This matter was heard on 31.12.2009 pursuant to Commission’s notice dated 01.12.2009. Appellant was present in person, while the respondents were represented by Ms. Renu Jain, Deputy Secretary & CPIO.
2. Appellant’s RTI-application dated 25.04.2009 was to elicit information regarding whether the department ever relaxed Rule FR-5 A and the circumstances in which such rules may be relaxed.
3. CPIO through his communication dated 11.05.2009 and the appellate authority through her order dated 07.09.2009 informed appellant that as no record of such precedents⎯guard files or precedents book⎯was maintained they were not in a position to provide any information to the appellant.
4. In course of the hearing appellant stated that he had requested for this information because Ministry of Finance were known to have relaxed the provisions of FR-5 A when it was brought to their notice that its literal application would cause avoidable hardship to an employee. Regarding hardship, he cited his own case. As per his date of birth, appellant had to retire on 01.01.2006. But he was made to retire on 31.12.2005 as per the rule which stated that employees retiring on first of a given month would be made to notionally retire on a day previous i.e. the last day of the previous month. Appellant stated that such a provision was inserted in the rules for accounting convenience and also on account of the fact that retiring an employee one day prior to his actual date of retirement caused him no detriment in terms of pensionary entitlements and terminal benefits.
5. That position has now radically changed in the light of the payouts entitled to an employee in the wake of the Sixth Central Pay Commission (CPC) recommendations. Since the sixth CPC set
Gopal Krishan Vs. Dept. of Expenditure-Appeal No. 757
Page 2 of 3
01.01.2006 as the cut-off date for the new and enhanced entitlements, an employee was bound to suffer substantial losses in pay and other allowances if he were to retire a day prior. According to the appellant, an employee may reconcile to his losses if his actual day of retirement were to be a day prior to 01.01.2006, but when his actual date of retirement was 01.01. 2006 but he was notionally made to retire a day prior to satisfy the requirement of a rule, then his case does come within the definition of hardship. Appellant stated that because of this anomaly in rules he was set to lose close to rupees 8 lakhs which otherwise would be his due if his actual date of retirement were to be considered for his entitlements and not the notional date on which he was retired.
6. The queries the appellant has now made were aimed at finding out how the Ministry of Finance interpreted the word hardship which caused them to relax the provisions of FR-5 A. This he can ascertain only if he were provided access to the precedents established in this regard. He argued that since the Ministry of Finance interpretation of "hardship" had definitive budgetary implications, it was unlikely that they would hold no record in this matter. It would be normal for any senior officer of the Ministry who is called upon to make a decision regarding whether relaxations of FR-5 A could be authorised in a given case, to ask for the precedents of such relaxations in the past to make that decision. In the face of it for the department now to claim that they hold no past information in this regard, sounds untenable.
7. In my view appellant has an arguable case. It seems unlikely that a department will not hold any information about how it takes decision in interpreting "hardship" for relaxing the provisions of FR-5 A in specific cases. Each such decision taken in the past establishes an important precedent which comprises the basis for deciding present and future cases. A plea that no information about such precedents is held in the department, because decisions are made on specific files of other departments, sounds unrealistic.
8. I believe that Ministry of Finance, department of expenditure must review this position once again in order to provide to the appellant a proper reply.
9. I, therefore, remit the matter back to the appellate authority with a direction that she will consider appellant's first appeal de-novo and furnish a reply to him within four weeks of the receipt of this order.
Gopal Krishan Vs. Dept. of Expenditure-Appeal No. 757
Page 3 of 3
10. Appeal disposed of with these directions.
11. Copy of this direction be sent to the parties.
(A.N. TIWARI)
INFORMATION COMMISSIONER
--------------------------------------------------------------------------------------------------------------------
VNatarajan

vnatarajan
29-02-2012, 03:26 AM
I find no sugestions so far.

I VENTURE TO SUGGEST IF SHRI GOPAL KRISHAN CAN PROVIDE MORE DETAILS ABOUT HIS CASE AS TO HOW AN " UNIQUE BORDERLINE- THRESH HOLD CASE" PORTRAYS THE DISPARITY IN PENSIONS BETWEEN THE PRE AND POST 2006 PENSIONER AND ALSO THE INFRINGEMENT OF THE RULES ETC- , WE CAN TRY TO EXAMINE IF THE SAME CAN BE EFFECTIVELY PROJECTED IN OUR MODIFIED PARITY CASE IF IT SUITS OU ARGUMENTS.

Regards,
VNatarajan

Gopal Krishan
01-03-2012, 02:10 PM
Dear sir,

In my case , the administrative Department of the Central Government, with the approval of the Secretary devided/opined to relax FR 56 and referred the matter to the Department of Expenditure stating that FR 56 had harshly operated in my case. The administrative suggested that as per their opinion relaxation of FR 56 may be concurred in by the Department of Expenditure and I be aloowed to retire notionally on the 31st January, 2006.Here I would like to mention that may pay as Deputry Secretary would be refixed under 6th CPC. Not only that I would be gaining in gratuity, Pensionary benefits and leave encashment etc. As a result roughly I would stand to gain atleast 6 to 7lakhs with recurring benefits by way of revised pension. In fact if the CAT judgement is implemented I would be getting benefits in pensionary benefits otherwise also. But in any case If the concurrence of the Ministry of Finance is conveyed to the recommendations of the administrative Department I would get additiional gratuity and leave encashment. It would also be relevant to mention that one the basis of the recommendations of the 6th Pay Commission, the Governement of India decided to give enhanced pension to pensioners on attaining the age of 80 years etc. from the month the DATE OF BIRTH FALLS. Hence all those who would have any date other that Ist of a month stand to gain in terms of extnsion in service for the month in which they retired and would also get enhanced pension for the same month. Whereas in the case of thase having Ist January, 1946 as their date of birth would stand to lose resulting in grave discrimination against them. The same logic would be applicable to all those having Ist January, 1946 as their date of birth..

kssitaraman
01-03-2012, 06:08 PM
Ref: Sri Gopal Krishan’s case and VN Sir’s postings above.

In anticipation of VN Sir’s approval, I wish to say a few words as regards the above case in an attempt to help out the affected party, though full details of the case have not been made available by him.

Here are some Quotes from the Judgment of Supreme Court as taken from Shri PNP’s Book IMPORTANT JUDICIAL VERDICTS.

(QUOTE) Supreme Court - (AIR 1990 SC 285. WP No.(Civil)1155/1987 AIR 1990 SC Pages 285 to 287)

DOJ: 24/10/1989 – S.Banerjee (Appellant) Vs UOI (Respondent) – Hon’ble Justices Murali Mohan Dutt, S.Ranganathan & S.Ratnavel Pandian.

Constitution of India, Art.309 and 311 / CCS Pension Rules 1972 / R.5(2) of IV CPC Report Part B/Para 17/3 (page 93) – Revision of salaries and pension of Govt employees / benefit of revised pension/benefit available to employees retiring on or after 1/1/1986.

Petitioner allowed to voluntarily retire wef forenoon of 1/1/1986. He is entitled to the benefit of revised pay as per revised pay scale as per IV CPC/and revised pension thereupon.

The Appellant was Addl. Registrar of Supreme Court. His normal date of retirement was 31/3/1987. He sought voluntary retirement from 31/12/1985. An order was passed permitting him to retire wef forenoon of 1/1/1986. He claimed that he should be allowed the benefit of the Revised Pay Scales introduced wef 1/1/1986 as per the IV CPC’s recommendation, on the plea that though he was notified as retired on 31/12/1985, he, in fact, actually retired from the forenoon of 1/1/1986 from which date, the IV CPC recommendations were introduced by the Government and thus he should be allowed the benefit thereof.

But it was not allowed on the ground that he did not, (as he was not entitled to), draw salary for 1/1/1986. The argument of the authorities was, that in view of the proviso to rule 5(2) of the CCS Pension Rules 1972 the date of retirement of the petitioner should be treated as a non-working day. In other words , as the petitioner was not entitled to the salary for the day of his retirement, he was not entitled to the benefits of the recommendation of the IV Pay Commission, as contained in para 17.3 of the Report.

Supreme Court held that the petitioner had retired wef 1/1/1986, and that was also the order of the Supreme Court. It may be that the petitioner had retired wef the forenoon of 1/1/1986 as per the said order, that is to say, as soon as January 1, 1986 has commenced, the petitioner retired. But nevertheless, it has to be said that the petitioner had retired on 1/1/1986 and not on 31/12/1985. In the circumstances, the petitioner comes within the purview of para 17.3 of the recommendations of the IV Pay Commission and it entitles to benefit thereafter.(UNQUOTE).

After further arguments, the Supreme Court finally decided the Writ Petition in favour of its co-employee and directed the GOI to extend to Sri Banerjee, the benefit of revised pay scales introduced from 1/1/1986.

Of course, the above case is by no means similar to the present (Shri Gopal Krishan’s) case and cannot be a precedent. This is quoted to highlight that the intent of the HSC has been to rule in favour of the pensioners. Its own order issued earlier to fix the date of his retirement as the forenoon of 1/1/1986 on the party’s application for voluntary retirement was handy to give the ruling..

While it cannot be cited as precedent by the petitioner in this case, the Department of Pension & Trg could have used it as a precedent, while issuing the order/notification for amendment of FR 56 in May 1998 (O.M.No.25012/2/97-Estt(A) dated 13/5/1998) soon after acceptance of the V CPC recommendation increasing the retirement age from 58 to 60 years, so as to provide for this contingency arising from the retirement date coinciding with the cut off date for implementation of the CPC Recommendations.

As regards the definition of “hardship”, here is a Quote from the HSC Constitution Bench Judgment of 1982 (Page 24 of 35) in D.S.Nakara case. The HSC has described it as ‘traumatic’ which should amply prove that it is real hardship. :-

(Quote) In fact this arbitrary division has not
only no nexus to the liberalised pension scheme but it is
counter productive and runs counter to the whole gamut of
pension scheme. The equal treatment guaranteed in Art. 14 is
wholly violated inasmuch as the pension rules being
statutory in character, since the specified date, the rules
accord differential and discriminatory treatment to equals
in the matter of commutation of pension. A 48 hours
difference in matter of retirement would have a traumatic
effect. Division is thus both arbitrary and unprincipled.
Therefore the classification does not stand the test of Art.
14.(UNQUOTE)

I find that Shri Gopal Krishan has given further details now. However, I post this write-up having prepared it already, for information.

One way out will be to apply to, if not applied already, the President through DOPT & DOE to get an exemption from operation of the extant rules on grounds of date of birth being on the 1st of a month. Generally the Government has been considerate towards retirees on such occasions and the Supreme Court itself has given a favourable ruling to the retiree as mentioned above.

(I will be on tour till 10th March)

K.S.Sitaraman.

Gopal Krishan
23-05-2012, 07:56 PM
Dear sir,
I was expecting further reply after you completed your tour. In fact there would be number of cases of this type where date of birth being the Ist January, 1946, persons would have retired on the 31st December, 2005. That would have deprived them of the benefits of the 6th Pay Commission, which is a huge loss. Fundamental rule 5A provides that the administrative Department/Ministry can relax FR 56 under whihc one retires a day before the date of birth, with the concurrence of the MINISTRY OF fINANCE. Generally it has been seen that Rules, regulations are generally in favour of the employees. For example, if some one joins on the last day of the month his date of increment uses to be the Ist of the month. All those who were born on the 2nd or later of the month gets extension till the last day of the month. Similarly, even now the additional pension at the age of 80 etc is to be granted from the month in which one was born. As such this matter in repsect of those with date of birth as the 1st January, 1946 is required to be taken with the Ministry of Finance for having a policy that in such cases FR 56 may be treated as relaxed.

sundarar
23-05-2012, 08:58 PM
There is a CAT PR BENCH VERDICT dated 26.3.2010 in OA No. 2232/2009, which may also be referred in regard to the subject matter.

With regard to addl. pension on attaining 80 years,
there is a CAT Ernakulam Bench Verdict dated 28.7.2009 in OA No.504/2009 and subsequent DoP&PW OM No.38/48/09-P&PW(A) dated 27.8.2009 which may also be referred.

kssitaraman
24-05-2012, 12:51 PM
Dear sir,
I was expecting further reply after you completed your tour. In fact there would be number of cases of this type where date of birth being the Ist January, 1946, persons would have retired on the 31st December, 2005. That would have deprived them of the benefits of the 6th Pay Commission, which is a huge loss. Fundamental rule 5A provides that the administrative Department/Ministry can relax FR 56 under whihc one retires a day before the date of birth, with the concurrence of the MINISTRY OF fINANCE. Generally it has been seen that Rules, regulations are generally in favour of the employees. For example, if some one joins on the last day of the month his date of increment uses to be the Ist of the month. All those who were born on the 2nd or later of the month gets extension till the last day of the month. Similarly, even now the additional pension at the age of 80 etc is to be granted from the month in which one was born. As such this matter in repsect of those with date of birth as the 1st January, 1946 is required to be taken with the Ministry of Finance for having a policy that in such cases FR 56 may be treated as relaxed.

I am afraid the case has become a complex one, with a couple of Court verdicts going against the employee. Not known whether the case went on appeal to HC or the SC. I have not gone through these verdicts but the legal requirement appears to be that the employee should have physically served in office on the 1st January or at least been on the rolls on 1st January FN. In the Hon’ble SC judgment quoted in my previous posting, it will be seen that the Apex Court had stressed that the employee’s retirement had been fixed on the Forenoon of 1st January and that he was therefore entitled to the benefits recommended by the CPC.

However, the Government has indeed powers to relax a Rule in cases such as that of Sri Gopal Krishan and it is seen that the Officer has made valiant approaches to get this exemption, the latest one through the Organisation where he served. It is stated that this Organisation is competent to grant this exemption subject to concurrence by the Ministry of Finance and that the Organisation has also strongly recommended the case and that the case is pending with Finance and the Pension Dept. The query from the Finance appears to be of minor nature and the info should be available with the Pension Dept or with Finance itself. It is hoped that this minor hurdle can be overcome. The Officer may like to persevere with his latest efforts and if necessary see the Director/Finance in person and also seek a personal audience with the Secretary/Expenditure.

It is rather a pity that this Officer now finds himself mixed with the jinxed Pre-1/1/2006 pensioners group rather than with the privileged post-1/1/2006 community by quirk of fate on being born on the 1st of January 1946.
K.S.Sitaraman

Gopal Krishan
24-05-2012, 08:10 PM
Respected Sundrar Sir,
I have already seen the CATs judgement and the Om referred to by you. In fact these are not relevant in those cases wherein the date of birth of the persons is the Ist January, 1946. In such cases, particulary in my case, there are two issues - one relating the CIC and the other to the Department of Expenditure.
Simultaneously, I had writted to my administrative Department for relaxing the proviso of FR 56 under FR 5A and then seeking concurrence of theDepartment of Expenditure and also to the Department seeking information whether there existed any such case wherein the Department of Expenditure had concurred in the opinion any of the Department/Ministry to relax the provision of FR 56 under FR 5A. Department of Expenditure mentioned that there were no centralized records from where such information could be given. Even during the hearing before the CIC their stand was the same. However, the Information Commissioner, who was a retired Secretary of DOPT took the matter seriously and told the representative of the Department that it was unbelievable that they would not hold the information. He also mentioned that there must be some policy under which the Department would be deciding as to what type of cases would fall in the category of harsh cases deserving relaxation of FR 56. Unfortunately, the Department representatives could mislead the Commissioner thereby they could project that the case was that of a relaxation of FR 5A . The Department also processed the matter accordingly. In fact on the direction of the IC the holder of the information sent out a circular asking the other non-holders of the informaton whether they had such information. Naturally replies from all of them was in the negative and based on that the Department informed that there was no such precedent in whihc FR 56 had been relaxed. Here it would be relevant to mention that the circular issued mentioned about the relaxation of FR 5A instead of FR 56. As there was a mistake of facts I had requested the CIC to review there decision. That matter is pending with the CIC.
oin the basis of the observation of the IC I had represented to the Department of Expenditure that they should have a policy as to what typ of cases would fall in the category of hardship cases. My representation was passed on to the administrative Department with the request for sending their recommendations for the concurrence to the Department Of Exependiture. My Department wrote back that all such caes wherein one is losing the benefits of the sixth pay commission whould be treated as hardship cases and FR 56 relaxed. However the Department of Expenditure is silent on that. Even the Minister for Sports, Shri Ajay Maken, on the basis of my representation had written to the Finance Minister. The Department of Expenditure without examining the point referred to by the Minister simply referred to my case and stated that in that case concurrence had been refused. This issue is required to be taken up with the Finance Minister by any of the Association of retirees.
With regards

sundarar
27-05-2012, 10:59 PM
Respected Sir,

The FAQs for CG Pensioners in www.pensionersportal.gov.in

"58. Whether the additional pension/family pension available to old pensioners would be payable from the date of attaining age of 80 years or above or from the first day of the month in which the date of birth falls?

The additional quantum of pension/family pension, on attaining the age of 80 years and above, would be admissible from the 1st day of month in which his date of birth falls. For example, if a pensioner/family pensioner completes age of 80 years in the month of August, 2008, he will be entitled to additional pension/family pension w.e.f. 1.8.2008. Those pensioners/family pensioners whose date of birth is 1st August, will also be entitled to additional pension/family pension w.e.f. 1.8.2008 on attaining the age of 80 years and above".

Similar to the above, the superannuation pension on attaining the age of 60 years would be admissible from the 1st day of month in which his date of birth falls.(ie. from 61st birthday onwards). In the above referred illustration, the pensioner must have been born on 1.8.1928 by virtue of which, he attains the age on 1.8.2008.

It is a coincidence that the pay commission recommendations were implemented from 1.1.2006 which is also your 61st birthday, from which the pension gets payable based on 10months' average emoluments and qualifying service rendered (33 years/+).

Since no pay in the revised structure was drawn from 1.1.2006, the pension thereon cannot be calculated on such a revised pay.

These are my personal views and not necessarily be alright.

At the same time, whether any precedence either for relaxation of FR or for pension fixation in similar cases, exists is a valid query which your goodself have been making sincere attempts.

Whether such a point included in the NAC Agenda to examine and resolve on a case to case basis, and if not, whether can be included, is to be seen by the Staff Side. Ultimately, the judicious view shall prevail, which is our wish.

Gopal Krishan
29-05-2012, 08:23 PM
Respected Sundrar sahib,
I had taken up the matter with the Department of Expenditure whether any precedent is there about relaxation of proviso to FR 56 under FR 5A/ In the absence of centralized record system they were not in a position to indicate the position. I went to the CIC. There by telling lies they could confuse the IC and got orders to check up from various Sections of the Deparetment whether such a precedent existed. Naturally the replies from the non-holders of the information had to be in the negative. Based on that irrelevant information the supposed to be holder of the information sent a reply to me that no such relaxation was given by them. I am still pursuing that matter with the CIC. In any case as rightly observed by you staff side has to take up this matter on behalf of all those whose date of birth is the Ist January, 1946, so that they get the benefits of the 6th pay commission on the analogy of the addition quantum of pension on attaining the age of 80- etc. In that case they would be getting the benefits from the month they were born. In the case of those born on the 1st January, 1946 on the same analogy they should get the benefits from the month in which their date of birth falls, i.e. January, 2066.
With regards,