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Gopal Krishan
01-09-2012, 03:42 PM
My date of birht being the Ist January, 1946, I retired on the 31st December, 2005. As a result I was deprived of the benefits of the sixth Pay Commission. I had taken up with my Department the matter as the FR under which such retirements take could be relaxed in certain cifrcumstances. However, the Secretary of my Department felt that the case was fit for providing the benefits to all those having Ist January, 1946 as their date of birth. As such it appears to me that we may have to take up the matter for all those having Ist january, 1946 as their date of birth.

It is requested that all those interested may contact me for making joint efforts in this regard.

With regards,

Gopal Krishan

vnatarajan
03-09-2012, 06:41 AM
Dear Shri GK- You must go to CAT- plead your own case- you have all necessary documents including RTI material- YOU WILL WIN THE CASE HANDS DOWN. You can ask whether to suit the Govt, you should pre-pone your birth by one day- an event which can not be permitted by Nature?- THIS IS A RARE CASE AND YOU ARE SUFFERING HEAVY LOSS.

Also one of the the last few Sections of the CCS Pension Rules 1972 (Secion 88 or 89) must be able to come to the rescue of administration to wriggle out- pecuniary conditions-

vnatarajan

sundarar
03-09-2012, 07:40 AM
My date of birht being the Ist January, 1946, I retired on the 31st December, 2005. As a result I was deprived of the benefits of the sixth Pay Commission. I had taken up with my Department the matter as the FR under which such retirements take could be relaxed in certain cifrcumstances. However, the Secretary of my Department felt that the case was fit for providing the benefits to all those having Ist January, 1946 as their date of birth. As such it appears to me that we may have to take up the matter for all those having Ist january, 1946 as their date of birth.

It is requested that all those interested may contact me for making joint efforts in this regard.

With regards,

Gopal Krishan

Dear Sir, Respected Shri VNji has given the right guidance. Further,
Can you please give your email id.

With regards

Gopal Krishan
03-09-2012, 07:48 PM
Respected Shri Sundrar Sahib,

Thanks a lot for the interest taken in my case. My email id is - [email protected]

With regards

Gopal Krishan

Gopal Krishan
03-09-2012, 08:04 PM
Respected Shri Natrajan Sahib,

My case was initially taken by with the Department of Pension and Pensioners Welfare by my administrative Department under the CCS Pension Rules, 1972. According to them my case is that of retirment under FR 56, which provides that all those having date of birth as Ist of any month would retire on the last day of the preceding month on attaining the age of 60 years. FR 5a provides that if any of the Fundamental Rules operates harshly to any person the same could be relaxed by the administrative Department for the reasons to be recorded in writing and to deal with the case in fair and equitable manner. But before issuing such an order concurrence of the Department of Expenditure is required.
Accordingly I had taken up the matter with my administrative Department. The Department with the approval of the Secretary also felt that my case was a rare case and decided to relax the FR under wihc I retired on the 31st December, 2005. However, the Department of Expenditure did not convey their concurrence on one or the other grounds. Ultimately that Department had written to my Department to examine the matter afresh. Now the Secretary, felt that all the cases of Ist Janujary, deserved sympathetic consideration and had taken up with his counter part in the Expenditure Department. Unfortnately for all of us born on the Ist January, 1946, the Department did not felt like taking up the matter with the cabinet as the same would required approval of the Cabinet.

With regards,

Gopal Krishan

vnatarajan
04-09-2012, 10:40 AM
Dear Shri GK Sir,

Fit case for PR CAT ( IF THE ADMINISTRATION IS NOT ACTING/ HAS NOT ACTED/ NOT WILLING TO ACT IN REASONABLE TIME!) - as the rarest but grave "miscarriage of justice"' by an action which can not be justified otherwise.

UNDER NORMAL CIRCUMSTANCEs, YOU WOULD NOT HAVE GONE FOR REMEDY -AS THE ADMINISTRATIVE ACTION INTENDED IN SUCH CASES WERE OF NO GREAT CONSEQUENCE TO THE RETIREES.

BUT IN APPLYING THE "PENSION REVISIONS"' THAT TOO ONCE IN TEN YEARS, THE QUANTUM OF FINANCIAL LOSS INVOLVED IS STUPENDOUS AND HENCE IN ALL FITNESS, THE GOVT MUST TAKE SPEEDY ACTIONS TO BRING THE "EXCEPTION OF THIS NATURE" UNDER THE RULE IN A SUITABLE MANNER, BY ADDING A RIDER/ CONDITIONAL CLAUSE.

AGE FACTOR IS IMPORTANT. PENSIONERS OF THIS KIND ARE ALREADY PAST 67 AT THE MINIMUM (AFTER 1 1 2006) AND THEY ARE A VANISHING SPECIES.
THEIR NUMBER (OF THE CLASS LIKE YOURS) IS NOT LARGE.

WORST INJUSTICE WILL BEFALL THE "WOULD BE " FAMILY PENSIONERS OF THE ABOVE CLASS.

Regards,
vnatarajan

Gopal Krishan
04-09-2012, 09:59 PM
Dear Shri Sundrar Sahib,

I feel obliged for the interest taken by you in my personal case. Luckily for all those born on the Ist January, 1946 the matter which I had taken up with my administrative Department under FR 5A for relaxation of FR 56 in my individual case, has changed its shape altogether after the matter had been taken up by the Secretary of the Department of Chemicals and Petro-chemicals with the Department of Expenditure.

I have obtained a copy each of the notes under RTI Act (i) written by the Secretary, Chemicals and Petro-chemicals to the Expenditure Secretary and (ii) reply sent by the Department of Expenditure to the Department of Chemicls. The same are reproduced below:

" This is a case of Shri Gopal Krishan, retired Deputy Secretary in the Department (DCPC) who completed 60 years of service on Ist January 2006 but had to retire on superannuation on 31st December, 2005 under FR 56. As a result, he did not get the benefit of the pay revision effective from Ist January, 2006 and losses out one -time pensionary benefit of Rs. 5.42 lakh and monthly pension of Rs. 709 plus DA = Rs. 1170/- (calculation at page 21/N). The DCPC moved Department of Expenditure for relaxation of Rule 56 (which, under FR 5, is permissible in extreme cases of hardship) Although we disagree with the Department of Expenditure on whether there is hardship in this case, we agree that this is not a fit case for relaxation in just one case.

2. Assuming that about 3% of the 36 lakh employees would have retired in a year (i.e. around 1,08,000 employees), the number of persons whose birth day fall on a particular date (like Ist January, 1946) will be approximately 300 (1,08,000 / 365 = 300). It is only fair that the benefit is granted to all the 300 odd employees who were born on Ist January 1946 and retired on 31st December, 2005. This number is miniscule compared to the 10 lakh Central Govt Pensioners.

3. The other observation of the Department of Expenditure is that for any such revision, a line has to be drawn and wherever the line is drawn, there will be persons who retired on a previous day and would lose the benefit of pay revision. It is respectfully pointed out that this logic is not entirely correct in this case. This is a case where a line is drawn and those who are just ahead of the line by one day are being asked to join the others on the wrong side of the line, through application of a peculiar exception to the Fundamental Rules. All those who complete 60 years of service on a day other than Ist of the month will retire at the end of the month but those who complete 60 years on the Ist of the month will retire on the previous day. This is throwback from a decision on 24 November, 1973, consequent to a recommendation in the 3rd CPC. The 3rd CPC had recommended this bunching of dates of retirement at the end of the month to simply accounting work in regard to calculation of pay & allowances, average emoluments, qualifying service, etc. which would help in speedy settlement of pensionary claims. This cannot be a reason to deny the unfortunate few (numbering just about 300) born on Ist January, 60 years prior to the year of the pay revision. There is every justification therefore to reconsider the denial of pay revision to the 300 odd employees whose date of birth is Ist Jan. 1946 but who had to retire on 31.12.2005. The benefit need not be given to t hose who date of birth was 31-12-1945 or a date prior to that, because they would, in any case, have been on “the wrong side of the line.”

4. If agreed to, this will need to be effected not by way relaxation of the rule relating to retirement (because the persons have already retired) but by way of an amendment to the Department of Expenditure Resolution No. 1/1/2008-IC dated 29 August 2008, bringing into effect the pay revision. In paragraph 2 of the said Resolution, which says that the pay revision shall be effective from 1.1.2006, it may be added that those whose date of was on Ist January 1946 and who completed 60 years of age on Ist January 2006 but had to retire on the previous day will also be deemed to have retired on Ist January 2006, and the benefit of pay revision will be extended to them.

4. Secretary (Expenditure) may kindly see.”

The reply give by the Expenditure is as follows:

“Department of Chemicals & Petrochemicals (DCPC) may pleas refer to their notes on preceding pages regarding the representation of Shri Gopal Krishan, who retired as Deputy Secretary on 31.12.2005.

2. In this regard, it is stated that the recommendation of 4th & 5th CPC were also implemented w.e.f. 01.01.1986 & 01.01.1996 respectively, If the proposal of DCPC is agreed to then the employees who were born on 01.01.1928 and 01.01.1938 who retired on 31.12.1985 & 31.12.1995 respectively would also demand the same relaxation. Further, 6th CPC has recommended that the date of annual increments in all cases would be the Ist July. However, the employee whose date of birth falls on Ist July and who retires on 30th June, are not being granted any increment for the reason that they ceased to be in service on Ist July, though they complete 12 months of mandatory period to be eligible to earn their next increment. The agreement to the instant proposal may lead to similar demands from such employees also.

3. Further, with regard to suggestion of making an amendment to the Resolution dated 29.8.2008, it is stated that the said resolution was issued on the basis of acceptance of the recommendation of the 6th CPC by the Cabinet. Therefore, any amendment to the Resolution dated 29.08.2008 would required the approval of the Cabinet.

4. In view of the above, it is not found feasible to agree to the proposal of DCPC.

5. This issues with the approval of JS(Pers.)”

I have reproduced the note as per the copies I have received.

In view of these notes now we may have to take up the matter for those born on the Ist January, 1946 or similar future cases wherein similar situation arise.

I seek your guidance.

sundarar
05-09-2012, 06:56 AM
Dear Sir, The DOPT's stand on this particular aspect is very significant. I suggest that your request with all
enclosures may be addressed to the Secretary, Dept. of Personnel & Training, Ministry of Home Affairs,
so that any policy review is possible. I think they have not been provided an opportunity to look into this
aspect, which you may like to facilitate now.
Best wishes

Gopal Krishan
05-09-2012, 06:14 PM
Respected Sir,
I am sorry, I am not clear about the stand of the DOPT as referred to by you. Your suggestion about taking up the matter with DOPt and Ministry of Home Affairs is also not clear to me. Kindly elucidate and oblige.

With regards,

Gopal Krishan

vnatarajan
05-09-2012, 08:33 PM
I feel the whole matter stinks of deliberate mispresentations to avoid the whole issue.
CABINET IS NEVER INVOLVED BEYOND A PARTICULAR STAGE.

In the current case, IS THERE ANY ORIGINAL CABINET DECISION STATING FIRMLY THAT IN CASES OF THOSE BORN ON 1.1 .26/36/46 EC , THEY WILL HAVE TO OR BE DEEMED TO HAVE RETIRED AFTER THE SUPERANNUATION PERIOD ON THE PREVIOUS DAY VIZ 31 12 1985/95/05 ETC? ( SAY IF IT IS 60 YRS age limit)

If there had been an original cabinet decision to that effect, then what the babus say can be considered as based on facts and a cabinet resolution may be justified. CAN WE LAY HANDS ON SUCH A OLD CABINET DECISION OR EVEN ENDORSEMENT ON A FILE ? I AM SURE NO SUCH RECORD EXISTS! NOW AT LEAST. OR IS THERE A GAZETTED NOTIFICATION OF SUCH A DECISION?

IF YOU HAVE DOUBT, WHY NOT SEEK THRU RTI FOR SUCH AN ORIGINAL CABINET DECISION - WHICH IF IT EXISTS MAY NEED ALTERATION.

On the contraray, if it was only an EXCEUTIVE INSTRUCTION in earlier times, where is the need to go for a CABINET ENDORSEMENT?

KINDLY EXAMINE PL.

Regards,
VN

sundarar
06-09-2012, 09:32 AM
Respected Sir,
I am sorry, I am not clear about the stand of the DOPT as referred to by you. Your suggestion about taking up the matter with DOPt and Ministry of Home Affairs is also not clear to me. Kindly elucidate and oblige.

With regards,

Gopal Krishan

Dear Sir,

The DOPT being the Policy maker on Service Rules, they may like to review
considering the rarest case of yours which may be a well set precedence in future also. Your request with all details and attachments, may be addressed to them suitably for finding a remedial solution to the issue. This is just a suggestion.

Best wishes.

vnatarajan
06-09-2012, 06:44 PM
DEAR SHRI GK/ OTHERS INTERESTED,

This is in continuation of my post at sl no 10 dt 5 9 2012.

I tried to chk on the FR 56. I could not get at it.

HOWEVER I UNDERSTAND THAT UNDER SECTION 7 OR SO OF FR 56, IT IS PRESCRIBED THAT IN CASE OF INCUMBENTS BORN ON 1ST OF A MONTH, THEY MUST BE MADE TO RETIRE ON THE LAST DAY OF PREVIOUS MONTH.

I AM NOT SURE HOW THE ORIGINAL PROPOSAL WAS MADE AND WHAT APPROVAL THE CABINET GAVE.

CERTAINLY, SUCH A PROPOSAL WOULD HAVE NEVER BEEN MADE IN THE CONTEXT OF PAY COMMISSION RECOMMENDATIONS AND APPLYING SUCH A "PROVISION CREATED FOR ACCOUNTING CONVENIENCE" FOR A MAJOR APPLICATION OF LIBERALISED PENSION PROVISIONS WOULD LEAD TO GROSS ERRORS AND GRAVE INJUSTICE.

SUCH AN EXCUSE SPEAKS OF LOWEST STANDARDS OF ADMINISTRATIVE ACUMEN AND MANAGERIAL ETHICS.

A TRUTHFUL ANALYSIS SHOULD HAVE BEEN MADE AND AN EXCEPTION TO THE RULE MUST HAVE BEEN SOUGHT OUT.

ANY COURT OF LAW IS SURE TO APPRECIATE THE "SHALLOWNESS OF THE EXPLANATIONS GIVEN" TO DEPRIVE SHRI GK OF THE "BENEFICIAL REVISION OF 6CPC" TO WHICH HE IS ENTITLED -

THIS IS HAPPENING MAINLY BECAUSE HE IS BEING FORCIBLY MADE TO HAVE BEEN "BORN ONE DAY BEFORE THAN HIS ACTUAL DOB" - AN UNTRUTH- SO THAT IT SHALL SUIT THE ADMINISTRATION TO RETIRE HIM ONE DAY BEFORE HIS ACTUAL DATE OF RETIREMENT!

vnatarajan

kssitaraman
06-09-2012, 09:18 PM
Respected VN Sir,

Your above short Note is well written and is capable of clinching a good result for Shri GKji. The Note contains the most significant point, till now unheard of and which is sure to have been overlooked by the administration when the relevant Rule was amended in the course of implementing III CPC’s recommendation. The point given by you is reproduced below: -

“THIS IS HAPPENING MAINLY BECAUSE HE IS BEING FORCIBLY MADE TO HAVE BEEN "BORN ONE DAY BEFORE THAN HIS ACTUAL DOB" - AN UNTRUTH- SO THAT IT SHALL SUIT THE ADMINISTRATION TO RETIRE HIM ONE DAY BEFORE HIS ACTUAL DATE OF RETIREMENT! “

I am sorry that this point has been overlooked in my own analysis of this issue in the Thread “Discrimination in fixation of pension for Pre-2006 pensionrs”, since at that time my mind had been clouded with certain adverse factors existing then on this issue. .

Subject to your approval, all Shri GK has to do now is to see that a proposal also with the above new point incorporated therein, is initiated and sent from the Admn. Dept to the DOPT with relevant documents. DOPT can be expected to forward the same with his inputs and Finance concurrence to the Cabinet Secretary (who normally prepares and submits the Note to the Cabinet for approval in regard to all proposals received from various Ministries).

I bow before your experience.

Regards,
K.S.Sitaraman.

vnatarajan
07-09-2012, 06:27 AM
Thanks to Shri KSS for his kind help.

Rule 56 Extracts as I cd obtain :

Retirement on the afternoon of last day of the month in which superannuation falls

No specific orders are necessary for retirement on due date

Relinquishment of charge on a holiday

BACK
(1) Retirement on the afternoon of last day of the month in which superannuation falls. - It has been decided that as from 1st day of November, 1973, the Civilian Government servants in Groups `B', `C' and `D' services of posts and as from 1st days of April, 1974, the Civilian Government servants in Group `A' services or posts, shall retire from service with effect from the afternoon of the last day of the month in which their date of retirement according to Fundamental Rule 56 falls, without prejudice to clauses (j), (k), (l) and (m) of that rule.
[G.I., C.S. (Dept. of Per.), O.M. No. 33/12/73-Ests. (A), dated the 24th November, 1973 and the 2nd May, 1974.]

A Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of fifty-eight or sixty years, as the case may be.
[Note 7 below F.R. 56.]


Let us locate the original Orders. May be they are published in Gazette.

Regards
VN

vnatarajan
07-09-2012, 08:13 AM
DEAR SHRI GK/ SIMILARLY AFFECTED "NEW YEAR DOB RETIREES OF 1986/96/06.'

Commenting further:

Cases like Shri GK's are unique and do not come under ORDINARY GENERALISED CATEGORY.
The rule FR 56 / Note 7 etc were made perhaps to suit administrative convenience in settling incremental and normal / routine retirement benefits in general- NOT RELATED TO CPC LIBERALISED PENSION FORMULATIONS which happens once in ten years - and that too in "unpredicatble/ unforeseeable forms"!

IT IS NECESSARY NOW FOR SHRI GK/ SIMILARLY AFFECTED PENSIONERS TO DRAW A LINE OF DISTICTION IN THE ABOVE AND MAKE TWO DISTINCT CATEGORIES.

1.The once in ten year case is unique and is related to CPC REVISED PENSION- LIBERALISED PENSION episodes / unpredicatable-unforeseeable wrt FORMULATIONS..
2.NO GOVT RULE CAN FORESEE THAT A CPC WILL BE FORMED/ THEY SHALL MAKE UPWARD REVISIONS OF PAY/ PENSION OF SIGNIFICANT CONSEQUENCES and even if it is so why then they have not mentioned the same in any RULEs.
3.Applying a general rule like FR 56 by extending it to cover the CPC implementation deadline is contarry to the rule itself as it had not specifically mentioned about CPC dates/ possibilities/ likely outcomes etc.
4.The two two sets of retirees acn not be put on the same platforms. They have to be distinguished and separated into different groups within the pensioners.
5.Post CPC deadline cases - that too persons having DOBs on 1 1 1926/36/46 etc acn not be equated with persons whose DOB are 31 12 1925/35/45. Had it been of NO CPC Consequence, individuals might not have objected to the happening- wd not have been aggrieved. SINCE THERE IS WIDE GAP IN REVISED PENSIONS BETWEEN THE TWO, THERE IS REASON FOR BEING GRIEVED FOR THOSE WITH DOB OF 1 1 1946 AND SO ON.
6.The difeerence between the two - ie if NO CPC was there vs CPC was there- can be worked out in real qualtum/ statement prepared for incorporation in the appeals and the diference (loss) will run into several lacks of rs.
7. NOT ALLOWiNG SUCH AGGRIEVED RETIREES TO HAVE THE DOB RETAINED AS 1 1 26/36/46 AND FORCING THEM TO ACCEOPT ONE DAY PRIOR TO THE DATES VIZ AS IF THEIR DOB ARE 31 12 25/35/45 IS AGAINST "PRINCIPLES OF NATURAL JUSTICE" . UNEQUALS ARE BEING FORCED TO BECOME EQUALS AGINST ALL PRINCIPLE OF NATURAL JUSTICE.
8.Their NATURAL DOB is being manipulated to an "UNANTURAL DOB" and thus the NATURAL JUSTICE is being denied.

i CAN GO ON.

As shri Sundarar had advised/ as Shri KSS had observed, SHRI GK SHOULD MAKE A DETAILED PLEA TO DOPT FOR APPRECIATING THE TWO DIFFERENT SITUATIONS, COUNTERING THE MEDIOCRE/ ONE SIDED/ BIASSED "FILE NOTES' THAT HAVE CAREFULLY AVOIDED THE DISTINCTIONS/ CIRCUMSTANCES AND HAVE PROJECTED THE HYPOTHETICAL EXTENSION OF BENEFITS AS IF IT HAS TO BE EXTENDED TO A HUGE NUMBER OF AGGRIEVED PENSIONERS' WHICH IS NOT THE CASE. THIS EXCUSE CAN NOT BE ACCEPTED BY THE COURTS.- AGAINST NAKARA RATIO/ PRINCIPLE.-- AGAINST ART 14.

FINANCIAL CONSTRAINT CAN NOT BE AN EXCUSE.

Pl make a plea to DOPT-with cc to DARPG - DOPW/DOE in the first instances with all documents - almost like your CAT application.

Let us see their reaction.

Regards,
vnatarajan

Gopal Krishan
07-09-2012, 09:56 PM
Grateful thanks to S/Shri vn, kss and rajan ji for the guidance given in a case, which has become a general for all those who did not get benefit of the sixth central pay commission etc and those who would not get in future. In view of the latest communications exchanged between Secretary of my administrative Department, i.e.,DCPCand the Department of Expenditure (copies of which are available on Gconnect) , it would not be desirable for me to pursue my case with my administrative Department for myself only. Earlier on his initiative general matter had been taken up by him with the Secretary, Department of Expenditure. As such I would be approaching with my represenation on behalf of all similarly placed Government servants, keeping in view the guidance provided by senior members. At the same time I would request that the matter may be taken up at the level of Association/Pensioners Samaj with the Minister of Finance. Only after hearing from them we could think/plan for knocking the door of CAT/Court.This matter was initially taken up by me in the year 2008 through DCPC with the DPPW under CCS Pension Rules. That Department felt that as I had retired under FR 56, I had to be treated as pre-2006 retiree. As such I had taken up the matter with my administrative Department in the first quarter of 2009 for relaxing FR 56 under FR 5A with the concurrence of Department of Expenditure. I am reproducing below the edited initial representation I had made to the Secretary, DCPC. The same would give complete background of the orders/notifications etc. issued in this regard:
I retired from service as Deputy Secretary to the Government of India from the Department of Chemicals and Petro-chemicals on the 31st December, 2005.
2 I was governed by Fundamental Rule56(a) under ChapterIX of the compilation of Fundamental Rules and Supplementary Rules, which deals with various types of retirements including retirement on superannuation of central Government employees.
3. Third Central Pay Commission was appointed in April, 1970.The commission restricted (p.5) its recommendation to only those employees who retired ON or after the 1st March, 1973. The Commission submitted its report in the year 1973.Based on the paragraph 15 of Chapter 60 of the Third Pay Commission’s report, it was decided (pp. 6-9) by the Government of India in the Department of Personnel that civilian Government servants shall retire from services or posts from the afternoon of the last day of the month in which their date of retirement falls. Orders to this effect were issued by the Department of Personnel in November, 1973 and May, 1974 in respect of group ‘B’, ‘C’ and ‘D’ employees and group ‘A’ officials respectively vide their orders No. 33/12/73-Ests. At that time age of retirement on superannuation was 58 years.
4 Subsequently, Ministry of Finance modified(pp. 10-13) FR 56(a) referred to in para 2 above vide 7(7)-EV(A)/74 dated the 7th February, 1975 providing that every government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. A note bearing No. 7 was also incorporated providing that a government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of preceding month on attaining the age of fifty eight years or sixty years as the case may be ( at that time some categories of employees used to retire at 60 years). This provision took effect from the 5th April, 1975. The ‘note 7’ referred to above about retirement on the afternoon of the last day of preceding month was later incorporated (p. 14) in the main Rule 56(a) as a proviso. The FR was further modified (p. 14) to raise the age of retirement on superannuation for all in general to 60 years in May, 1998. At present the relevant FR 56(a) reads as follows:-
“F.R. 56 (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:
Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.”
5 Under these provisions I retired on the 31st December, 2005 on attaining the age of 60 years thereby I became a pre-2006 pensioner.
6 The sixth Central Pay Commission submitted it report in 2008. The recommendations of the Pay Commission about upward revision of pay, pension and pensionary benefits has been made applicable wef the Ist January, 2006, i.e., to post 2005 Government employees. As a result, I am deprived of all the benefits in terms of pay revision, pension and pensionary benefits just because my date of birth is 12/ 24 hrs before the crucial date.
7 Earlier in November, 2008, I had taken up the question of the undue hardship caused to me with the Department of Chemicals and Petro-chemicals in the light of the provision about relaxation in Pension Rules as informally understood from the Department of Pension that the matter required to be processed under Pension Rules. The Department of Chemicals and Petro-chemicals forwarded the same to the Department of Pension and Pensioners Welfare for their advice. That Department has now replied (p.21) stating that as I retired on the 31st December, 2005 under FR 56, I am to be treated as a pre-2006 pensioner.
8. From the reply of the Pension Department it is clear that in my case relaxation of proviso to FR 56(a) is required and not of Pension Rules as none of the Pension Rules is creating undue hardship to me except Proviso to FR 56(a).
9. FR 5-A (p.22) lays down that where any Ministry or Department of Government of India is of opinion that the operation of any of the Fundamental Rules may cause undue hardship to any person, that Ministry or Department, as the case may be, may, by order, for reasons to be recorded in writing, relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. It has also been laid down that such an order could be made with the concurrence of the Ministry of Finance. In my case the concerned Department is the Department of Chemicals and Petro-chemicals.
10. According to the guiding principles the power to relax a rule to deal with any particular case in a just and equitable manner is to be invoked in rare and exceptionable cases.
11. Normally Rules could be relaxed in the following circumstances:-
(a) when there is unforeseen or unmerited hardship which could not be contemplated when the Rule was framed
(b) the relaxation should enable the case to be dealt with in a just and equitable manner
(c) the benefit to be conferred after relaxation of any rule must be of the nature already provided for in the rules
(d) relaxation should be in a rare and exceptional case.
12. With reference to (a) above it may be stated that hardship caused to me because of the Proviso to FR 56(a) which came into force with effect from the 5th April, 1975 was not only unforeseen but unmerited also. In this connection I would like to mention that based on my performance duly reflected in my Annual Confidential Reports I was found suitable for promotion as Director for the suitability list of the year 2000(p. 23). Unfortunately, here also the list came out only after I retired. As such I could not get the benefit of my hard work, although I was found suitable for promotion as Director with effect from the Ist July, 2000. At that time of my retirement I was at the maximum of the scale of pay of Deputy Secretary (Rs. 12000 -16500), i.e., 16500.
As regards (b) above, the relaxation would put me at par with those who were having date of birth just 12/24 hrs after me in many cases at least with those who were much junior to me.
In connection with (c) above it may be mentioned that after relaxation of the Proviso I would get only those benefits as are provided under the rules based on the recommendations of the Sixth Pay Commission
(d) Relaxation in my case would be a rare and exceptional one as there would hardly be any officer with date of birth as the Ist January, 1946 and not getting benefit of promotion as Director although found suitable for promotion retrospectively with effect from the Ist July, 2000.
13. As such all these criteria are met in my case 14. In the circumstances, sir you would kindly agree that my case deserves sympathetic consideration. With aview to dealing with my case in just and equitable manner relaxation of the Proviso to FR 56(a), incorporated as back as 1975 by the Ministry of Finance is required. In other words in relaxation of that provision I may be allowed to retire on superannuation notionally wef the afternoon of the Ist or the 31st January, making me post-2005 pensioner. That itself would be followed by the consequential benefits under the Sixth Pay Commission, which have been made applicable from the Ist January, 2006.15 It is requested that my case may kindly be considered sympathetically by the Department under FR 5A as referred to above and then taken up with the Ministry of Finance for their concurrence to relax the Proviso to FR 56(a)

vnatarajan
08-09-2012, 12:05 PM
Dear Sjri GK/Other similarly placed pensioners,

Reg the three points in the above post, my personal opinion is as folows:

(1)As such I would be approaching with my represenation on behalf of all similarly placed Government servants, keeping in view the guidance provided by senior members.

YES. THIS YOU MAY KINDLY TAKE UP WITH ALL THE IMPORTANT ASPECTS BROUGHT OUT TO DISTINGUISH THE NEW YEAR BORN PENSIONERS SO THAT THE CPC LIBERALISED PENSION BENEFITS ARE NTO DENIED TO THEM AS THEY CAN NOT BE FORCIBLY / RETROSPECTIVELY RELEGATED TO AN UNNATURAL DOB OF ONE DAY EARLY - ie LAST DAY OF THE LAST MONTH OF THE LAST YEAR BEFORE. THIS WILL MEAN DENIAL OF NATURAL JUSTICE TO THEM. RULES ARE NOT "SPECIFIC" ON THIS POINT. WHETHER CABINET DECISION COVERED THIS ASPECT IS A GREY AREA AND QUESTIONABLE. IT IS LEARNT BY YOU THAT THERE HAD BEEN APREVIOUS CASE WHERE FR 5 PROVISIONS HD BEEN RELAXED TO GIVE RELIEF BUT THE DOE/ CONCERNED DEPTT IS UNABLE TO TRACE THE PRECEDENCE (IF I AM CORRECT) AND THIS CAN NOT NOT BE CITED AS A NEGATIVE POINT IN YOUR CASE.

PL REQUEST THAT THE MATTER MUST BE TAKEN UP WITH DOPT/DARPG ETC AND A SOLUTION MUST BE FOUND TO OBTAIN JUSTICE FOR YOU.

(2) At the same time I would request that the matter may be taken up at the level of Association/Pensioners Samaj with the Minister of Finance.

THIS REQUEST OF YOURS WILL NEVER FIND ANY RESPONSE. WE - MOD PARITY FIGHTERS- THAT TOO IN LARGE NUMBERS- WILLING TO RAISE FUNDS- DID NOT FIND ANY RESPONSE FROM ANY SUCH ENTITIES AND CONSEQUENTLY WE HAD TO FORM OUR OWN GROUP TO FIGHT OUR CASE. AFTER WATCHING US, SOME MORE ENTITIES TOOK LATERAL ACTIONS.

NO ASSOCIATION/ PENSIONERS SAMAJ WILL COME TO YOUR RESCUE -A S I AM SAD TO OBSERVE.

(3) Only after hearing from them we could think/plan for knocking the door of CAT/Court.

PL DO PREPARE FOR THIS IN ADVANCE- AS I CAN FOIRESEE THAT THIS HAS TO HAPPEN- AND OF COURSE THE DOCUMENTS YOU GET OUT OF YOUR EXERCISE ON SL NO (1) MAY HELP YOU IN THIS ENDEAVOUR.

Pl do not mistake my comments. (UNDEFINED/ UNEXPECTED INJUSTICE IS HAPPENING IN MANY PENSIONERS' CASES. FOR EG- A RETD IIT PROF CHENNAI, WENT ALL ALONE FOR A FIGHT AGAINST RECOVERY OF SOME AMOUNT FROM HIS PENSION, GOT STAY- LATER WON ALL ALONE (29 03 2012- MADRAS HIGH COURT) . RECOVERABLE AMOUNT INVOLVED WAS ABOUT RS 5 LAKHS . HE TOOK THE RISK OF "ENGAGING A GOOD COUNSEL" SAY FOR 15-20% OF THE AMOUNT - AND NOW MADRAS HIGH COURT HAS CITED HSC AND HAS RULED OUT THAT"NO RECOVERY WILL BE PERMITTED" IN SUCH CASES AS THERE IS NO WRONG CLAIM/ NO FRAUD/ ETC WAS COMMITTED BY PENSIONER. NOW OTHER SIMILARLY PLACED RETD IIT PROFS ( SAY A HUNDRED ODD) HAVE JUMPED INTO THE FRAY AND GOT A STAY. SO IF YOUR STAKE ULTIMATELY IS 6 LKS, AND IF U INITIATE, OTHERS WILL SOONJ JOIN - AT THE CAT STAGE IF I AM CORRECT)

Regards,
vnatarajan

PL ADD A POINT ON:

The Rule which appears to have come up in 1975 or so, shd have exempted those born on 1 1 1926 / 1936/1946/56/66/76 etc so that they had not been subjected to an effect, which is more or less grossly retrospaective! They might have even changed their DB legally to 2nd Jan as they might have been born in the AN of 1st jan or so>>>>>!!!!!!!!

kssitaraman
10-09-2012, 06:47 PM
Respected Shri GK,

You may be on the job of making out the representation to the Authorities for sanction of the Sixth Pay Commission benefits as a special case under the circumstances surrounding your retirement on 31/12/2005 on being born on 1/1/1946, as directed by respected Shri VNji, our Leader in his above Notes at Sl.Nos.12, 15 & 17.

To strengthen the case further, you may add the following if you consider it useful, subject to Shri VN’s approval.

In the Andhra Pradesh High Court Judgment on 13/12/2001 in Writ Petition Nos.1219 and 1409 of 1998 (Reported in 2002(4)ALT 550)(against OA Nos.518 and 862 of 1997 in CAT/Hyderabad) UOI & Others (Petitioners),respondents R.Malakandiah and Smt.P.Chandrakanta George (Respondents) in a case of denial of increment earned in the last year before retirement on the 30th June to the Respondents born on 1st July, it was mentioned amongst other things that -

“……the learned Counsel for the Respondents submits that both the respondents were retired on the afternoon of 30th June and they shall be deemed to have retired wef the forenoon of 1st July. In that view of the matter, they cannot be denied the benefit of increment.”

The Hon’ble High Court also based its said judgment to the Judgment of the Hon,ble Supreme Court in S.Banerjee’s (AIR 1990 SC 285. WP.No.(CIVIL)1155/1987.AIR 1990 SC Pages 285 to 297), DOJ: 24/10/1989, S.Banerjee (Appellant) vs. UOI (Respondents), Hon,ble Judges Murali Mohan Dutt, S.Ranganathan & S.Ratnavel Pandian) – case regarding benefit of revised pay as per revised pay scale of IV CPC and revised pension thereupon with the observation that -

“the decision of the Hon’ble Supreme Court clinches the issue in favour of the respondents. Following the said decision, we hold that the respondents had retired wef 1/7/1996 & 1/7/1995 respectively and accordingly they are entitled for the benefit of increments for the services rendered by them during the year preceding their retirement.”.

From the above it can be seen that the highest Court of the land holds the view that an employee retiring on 31st December is entitled to the revised pay/pension benefits of the Pay Commission effective from the next day viz., 1st January.

Further your Administrative Department and perhaps the Pension Department and the Department of Expenditure have a sympathetic view of your case inasmuch as it has not been negated by any of them but only some technical question is raised..

You may, therefore, request them for grant of the benefits now under their discretionary powers, pending addition of a suitable proviso to Fundamental Rule 56.

As our Leader has observed, it might have saved a lot of hardship, trouble and anxiety to the employees concerned, had the additional proviso been already issued.

Extracts of the said two judgments are available in GC. These were taken from the Book published by Late Sree P.N.Padmanabhan in March 2005.

Regards,
K.S.Sitaraman.

Gopal Krishan
10-09-2012, 08:48 PM
Respected Shri Sitaraman ji,

The High Court Judgement based on the Supreme Court decision clinches the issue not only in respect of those retirees who were born on the new year day of 1946 but also those who were similarly born on the new year day of 1938 and 1928. Accordingly I am modifiying my representation addressed to the Secretary, Department of Chemicals and Petro-chemicals with the request that he may write to the Secretary, Department of Expenditure. This I am doing because the DCPC is my administrative Department from where I retired in December, 2005 and the Secretary, DCPC has been very kind enough to tame up the matter in respect of all the retirees with the Ist Januar, 1946, as their date of birth, with his counter part in the Department of Expenditure, with the suggestion to slightly modify the resolution of the Government of India in the Ministry of Finance to make all the retirees with Ist January, 1946 as their date of birth entitled to the sixth pay commission. Of course this subject to the approval of Shri Vnatarajan sir.

With regards,

Gopal Krishan

Gopal Krishan
10-09-2012, 09:04 PM
Respected Shri Vnatarajan sir,

This is in continuation of my preceding post and the post of Shri Sitaraman ji. I awaiting your approval before I submit my representation to Secretary, Department of Chemicals and Petro-chemicals, my administrative Department from where I retired on the 31st December, 2005. Of course, the Secretary would not be concerned with others born on the Ist January, 1946, butd I am taking that libertry because while taking up my case with the Secretary, Department of Expenditure ,he had widened the scope of the matter by including all the retirees with date of birth as the Ist January, 1946.

With regards,


Gopal Krishan

kssitaraman
10-09-2012, 09:53 PM
Respected Shri GK,

It is important that you should await Shri VNji’s OK of your decision in this legal matter.

It is also important that you should see the full Judgment of both the Courts. If you wish to have them, I can only give scanned copies from my Book. I have already given some important excerpts of both the judgments in –

1. Thread “Benefit of one increment to retirees in June afternoon …” Sl.No.19 of 07/07/2012 with Attachment containing some excerpts from the said A.P.High Court Judgment. (This was marked to you also but perhaps you didn’t see)

2. Thread “Relaxation of FR.56 entitling one to benefit ….” Sl.No.6 0f 01/03/2012 with some excerpts from the said HSC Judgment.

Let this be a conscious decision taken after due diligence.

WISH YOU ALL THE BEST, SIR.

Regards,
K.S.Sitaraman.

I would like to state that the AP HC judgment is over entitlement of the increment earned during last year after retirement. Grant of CPC benefits have different norms for which you may have to refer the HSC judgment. This is my view liable for correction.

Gopal Krishan
11-09-2012, 03:50 PM
Respected Shri Sitaraman Ji,

Thanks a lot for the interest you are taking in the cases of those retirees born on the new year day of 1946/1938 and 1928. I could go through the full Supreme Court Judgement referred to by you. Of course that is in respect of an officer of the Supreme Court who retired after seeking viluntary retirement on the 31st December, 1985, wheras the recommendation of the 4th CPC were made applicable from the Ist January, 1986. His plea that he should be deemed to have retired on the Ist January, 1986 was accepted by the Supreme Court. Similary in our cases same plear could be taken, if necessary. In fact as repeatedly observed that general orders should be issued by the Government that the similar benefits should extended to the similary placed, the Government should have done by now.

Other judgement I could not get on the net. If you could kindly help and oblige.

In any case I am awaiting the clearance from Shri Natrajan sahib.

With regards

Gopal Krishan

P.S. I could go through some other judgements of CAT, Hyderabad, High Court Andhra Pradesh and find, as usual, there are contradictory views/decision. Even, there are differences in the interpretation of the HSC judgement . As observed by your earlier we may have to take a conscious view first before drafting a representation to the Secretary of my Department.

With regards
Gopal Krishan

vnatarajan
11-09-2012, 06:17 PM
Dear Shri KSS Sir ,

AS AN ELDER AND AN EXCELLENT DRAFTER- NARRATER, VERY CONVERSANT WITH MANY OLD PENSIONER JUDGMENTS , YOU ARE THE CORRECT/LEAD PERSON TO GUIDE AFFCETED/ AGGRIEVED PENSIONERS LIKE SHRI GK JI.

WE ALL FEEL PROUD THAT YOU , AT YOUR ADVANCE AGE, HAS COME OUT WITH SUCH A LOT OF INPUTS TO STRENGTHEN HIS CASE.

Dear Shri GK ji,

YOU ARE ALSO A VERY ENLIGHTENED / EXPERIENCED SECRETARIAT MAN WHO KNOWS THE INS AND OUTS OF THE OFFICIAL-DOM AND ITS WAY OF FUNCTIONING!

YOU ARE ALSO AN EXCELLENT DRAFTER.

NONE OF YOU SHALL WAIT FOR MY ENDORSEMENTS -A S I AM ONLY ACTING AS CATALYST.

AT THIS STAGE, I WOULD SUGGEST ON SOME VITAL INPUTS (FROM MY POINT OF VIEW), FOR YOUR NEW APPEAL DRAFT.

1. INCLUDE ALL SUCH VITAL POINTS SUGGESTED BY MANY HERE SO AS TO BRING OUT THE DISTINCTION OF NEW YEAR BORNS OF CPC significance /FAME VIS A VIS OTHER NEW YER BORNS.HOW THE INJUSTICE MANIFESTS. HOW THE FORCED INFLICTION OF INJUSTICE THRU UNPRINCIPLED/ RIGID PRE-POSITIONED DOB ETC.

2. INSTEAD OF PREPOSITIONING, IF THE TREATMENT WAS SAME AS 2ND JAN BORNS, INJUSTICE MIGHT NOT HAVE BEEN SO HARSH.

3. ADMINISTRATION HAD DEALT YOUR / SIMILAR CASES ( AS YOU WANT THEM TO BE COVERED) WITH ONLY A BIASSED VIEW - so far.

4.THE ISSUE HAS NO QUOTABLE CAB DECISION/ SCPC RECO AS SUCH (PL CHK) , RULE MADE OUT in Note 7 UNDER FR 56- LOOKS MORE AN EXEC INSTRUCTION- NO SPL CLAUSE FOR CPC CASES,

5.TABLED DATA OF AMOUNTS INVOLVED - SAY NORMAL CASES- VIS A VIS CPC REVISION CASE- DIFFERENCE IN AMOUNTS. HARSH FINANCIAL LOSS INFLICTED FOR NO FAULT OF A PENSIONER IN THE EVENING OF HIS LIFE.

6. REPRODUCE PARAGRAPHS OF COURT CASES - WITHOUT QUOTING THE CASE NOS ETC - AS IT SHALL NOT CRETAE AN IMORESSION THAT YOU MAY GO TO COURT FOR JUSTICE.

Now you may put/ insert a generalised draft - in these GConnect Posts - (there are two or hree threads) after obtaining the Kind/ resourceful help of Shri KKS ji - for enlisting support of other similarly affected pensioners- pl chk the names who have posted - make requests to other activists like Victor/ Bhaskar/ Sundarar/ several others etc also to help you in getting in touch with such pensioners etc so that you may try to form a GROUP for future actions.

PL GO AHEAD WITH YOUR DRAFT-AND ITS FINALISATION AT THE EARLIEST.

Regards,
VN

SHRI KSS HAD ALSO POINTED OUT SOME FALLACIES;

Grey area still persists. A person born on 31st December will retire on the preceding day 30th and hence there will be no possibility of two incumbents born on two different dates retiring on the same date.

Likewise a person born on 2nd Jan. retires on the 1st and since this happens in the same month his retirement is taken to 31st Jan as per the new rule.,So if 1st Jan born employee is retired on 1st itself, then two incumbents born on two different dates viz., 2nd & 1st January will find themselves retiring on the same day, leading to a tricky situation. Both the Govt and the Courts are unable to solve this riddle.

SHRI NSR ALSO HAS RAISED SOME PECULIAR SITUATIONS:

Say person born on 1 1 1946 may be made to retire on 31 12 2005 - say just less than 60 yrs and lose all CPC benefits !

Person born on 2nd Jan 1946- can retire on 31 01 2006 - allowed to serve over 60 years and get full CPC benefits .

ALL THSE ARE AGAINST PRINCIPLES OF NATURAL JUSTICE-
AGAINST ARTICLE 14 OF EQUALITY.
THERE MUST BE SOME JUST REVIEW ON CASE TO CASE BASIS AND RELIEF MUST BE GIVEN.

VNATARAJAN

kssitaraman
11-09-2012, 09:03 PM
Respected Shri VNji,

Once again I bow before your tremendous experience. I badly lacked all these days this high calibre guidance, which could come only from you.

Best regards,
K.S.Sitaraman.

kssitaraman
12-09-2012, 06:04 PM
Respected Shri VNji,

Ref: Shri VNji’s additional remarks in his Posting at Sl.No 23 y/day.

In December, all the employees born from 2nd to 31st during this month are retired on the A/N of the last day of the month plus the employees born next day on 1st January, in acc. with the Letter dated 8/2/1975 issued by the Fin. Min., the contents of which were later issued as a Proviso to FR 56(a). The same thing as stated above for December happened in every other month.(So it is case of not two incumbents but several incumbents retired on the last day of every month).

Earlier as per DOP&PW communication issued in November, on acceptance of the III CPC recommendation on this subject, all employees belonging to Groups B, C & D and subsequently Group A, without exception, born from 1st onwards upto 30th/31st in every month were retired uniformly on the A/N of the last day in every month in which each employee attained the age of 58/60 years and which undoubtedly afforded equal treatment to every employee.. (to be checked by Shri GKji if this communication was effective till the issue of Fin. Min. letter in Feb. 1975).

The reason for the issue of the letter from Fin. Ministry and the Proviso is not known. (to be kindly checked by Shri GKji from the letter if any reason has been given). As a result of the issue of the Proviso, while all employees born from 2nd onwards till the last day of a month enjoyed extra retirement benefits that arose from the extended period of service, the employees born on 1st of the month, absolutely for no fault of theirs, found their service truncated by a day (as Shri NSR had pointed out) thereby being deprived of the extra retirement benefits from the extended service, despite the recommendation by the III CPC and accepted by the Government .In the case of 1st January 1946-born employees the losses were huge and therefore still worse for they have also been deprived of the benefits arising out of the VI CPC’s Recommendation. Any statutory Rule is supposed to be common to all employees but in this case the employees born on 1st of a month have been severely discriminated against, clearly attracting without any shadow of doubt the provisions of the Art. 14 of the Constitution.

I shall make out an appeal draft as advised by you and pass it on to Shri GKji, who will kindly get it vetted by Experts who have been contributing immensely in this Forum and by you. It is important that Shri GKji checks not only the letter in question but also the Court verdicts, which, he stated, are in his possession. It has to be ensured that nothing in thes write ups in this Thread and the proposed draft will come into any conflict with these.

Age is catching up with me and after seeing this case through I shall make a break.

Regards,
K.S.Sitaraman.

vnatarajan
13-09-2012, 07:35 AM
Dear Shri KSS Sir,

Nothing can equal your great gesture of preparing a draft on the case of Shri GK ji for his petition and may be for helping many other similarly distressed old pensioners.

THE INPUT WILL BE "INVALUABLE" - AND CAN NOT BE COMPENSATED BY MERELY THANKING YOU IN ORDINARY WORDS!

At the time, I draw attention to the ever-active Shri Sundarar and Shri GK ji to goi deep onto the vital clue you have provided wrt proviso of FR 56.

I AM CERTAIN NO "CABINET" MAKES SUCH A DETAILED DECISION/ INSTRUCTION LIKE A "LADDU" FOR THE BAUS TO WIELD AND WAGE UNWARRANTED WAR AGAINST OLD PENSIONERS!. The making of such a "NON EXISTANT POLICY" is by lower end executive instructions followed by clarifications and they shall be STRUCK DOWN by any court of law under Art 14.

Let us try to trace the roots of the MOF letter cited by you - and I am sure the FILES/ RECORDS will not be available.
AN RTI EXERCISE CAN BE DONE TO SEEK COPY OF THE LETTER CITED - RLATED FILE NOTES- RELATED GAZ NOTIFICATIONS- RELATED CAB DECISION NOTE ETC

FILE MUST HAVE BEEN LOST OR BURNT! iF NOT IT WILL DISAPPEAR. IT WILL GO TO OUR CREDIT TO POINT OUT THE FACTS TO THE COURTS.

We shall await your considered input in the form of a draft to Shri GK directly (I feel there may be no need to place the entire draft here for obvious reasons. Those who need a copy may contact your kind self/ or Shri GK)

Regards,
vnatarajan

Gopal Krishan
13-09-2012, 01:10 PM
Respected Sitaraman Sahib,

All those born on the new year day of 1928/1938/1946 (as retirement age earlier was 58 years) would feel obliged throughout their life to you, Shri VN sahib and Sundararajan sahib for the interest being shown by all of you in this matter.

Sir, with reference to your post of the 12th September, 2012,. I would like to invite your attention to my post of the 7th September vide which I had given details about my first representation to the Secretary, Department of Chemicals and Petrochemicals in May/June 2009 requesting them to relax the provision of FR 56 under FR 5A so that I am treated as Post-2005 retiree. In para 3 and 4 of the representation you would see details about the orders issued by the Department of Personnel and Training in Novermber, 1973 and May, 1974 about retirement of the Government servants in the month in which they attain the age of superannuation. This was notified by the Ministry of Finance later in February, 1975 as mentioned in your preceding post. Because I had a doubt about all this at that time also, I had checked up the postion from the officer of the Department of Personnel and the Ministry of Finace. Of course, as usual there was confusion about the matter in their minds. But what I could make out after discussing the matter with them was that the Fundamental Rule, 56 dealing with the retirement was being administered by the Ministry of Finance at that time so the same had to be modified by the by way of issuing a notification, repeat, notification and not order or administrative instructions and FR 56 could have been modified by way of notification to be published in the Gazette of Inida. Department of Personnel and Training are at present concerned with FR 56 and extesion is service et. At one stage the Department of Expenditure on my representation sought for the comments of the Department of Personnel also as the same, according to them involved, extension in service also. I had in fact in my representation mentioned the the Ministry of Finance that extension in service is in built in the FR 56 as the same provide so retirement on the last day of a month to those born on the 2nd to the last day of any month.

Coming to the reason of issue of the proviso, I would like to mention that those born on the Ist attain the age or retirement on the last date of the preceding montdh. As such, they must have felt that thre was no point in giving extension. This is my presumption. If you still feel I would ask for a copy of the notes leading to the issue of the proviso from the Ministry of Finance. But I am not sure, as pointed out by Shri VN sahib whether I would be able to get the same as that is about 27 years old record.

I have also attempted a drat representation to the Secretary, Department of Chemicals and Petrochemicals. As indicated separately I am not sure whether he would like to take up the matter for all of us including those who suffered 5th and 4th Pay commissions benefits. Still I would like to take a chance as earlier on my representation, which was on my behalf only, he was good enough for taking up the matter on behalf on those born on the Ist January, 1946.

I would send the same to you on your email address as advised by Shri VN sahib.

with regards,

Gopal Krishan

vnatarajan
14-09-2012, 11:39 AM
DEAR CONCERNED,

HOW DRACONIAN AND RUTHLESS THE ARCHITECTS OF THE FATE OF OLD PENSIONERS COULD BE , because of the issue of some UNANYASED, RIDICULOUS, UNETHICAL LETTERS/ COMMUNICATIONS AS "NOTIFICATIONS" - WITH OR WITHOUT CABINET ENDORSEMENTS AND THEN MAKE EVEN THE "GENUINE ISSUES RELATED TO SUCH TEMPORARY RULES AS INFLEXIBLY - SACRO-SANCT- ever lasting"?

MANY OLD PENSIONERS, BECAUSE OF ADVANCED AGE, BECOME HELPLESS AND ARE NOT ABLE TO FIGHT OUT THEIR CASES AND ARE FORCED TO LOOSE LAKHS OF RUPEES IN ONE GO!

THEIR CASES DIE A SLOW DEATH - EITHER BECAUSE OF PROTRACTED BUREAUCRATIC WRANGLES OR WHEN THEY APPROACH FOR / APPEAL FOR A JUDICIAL REVEIEW, FOR LACK OF PRIORITISED ATTENTION OF SUCH COURTS.

IN THE CURRENT CASE OF DOB VS CPC DATE OF EFFECTIVE LIBERALISED BENEFICIAL PENSION PROVISION, ONE CAN NOT UNDERSTAND THE "INFLEXIBLE JUSTIFICATION THAT IS BEING IMPOSED AS IF IT IS AN ORDINARY INCRMENT OR SO"?

I THINK DEEPER UNDERSTANDING OF THE SITUATION IS REQUIRED. FOR EXAMPLE:

1. A PERSON WITH DOB 1 XX YYYY MUST BE ALLOWED TO RETIRE LIKE OTHERS WITH DOB 2 XX YYYY AS OTHERWISE, BY PREPONING THE DOB IN THE FIRST CASE, HE LOSES ALL BENEFITS WHICH IS GIVEN TO THE SECOND CATEGORY.

2.IN CASE OF “ONE TIME BENEFITS LIKE GRATUITY/ LEAVE SALARY ENCASHMENT/ REVISED LIBERALIZED PENSION ETC” HIS LOSS WILL BE MANIFOLD.

3.PREPOSITIONING DOB- WOULD MEAN HE IS “CENSORED TO SERVE ONLY 59 YRS PLUS ODD AND NOT EXACTLY THE ‘SUPER ANNUATION FIGURE OF 60 YEARS” (WE HAVE TO REPRODUCE THE RULES)

4.WE HAND OVER AND MAKE OVER CHARGES ONLY IN THE AN AND FN. BY PREPONING THE 1ST "FN/ AN" REPORTED/JOINED INCUMBENT TO RETIRE ON PREVIOUS DAY, EFFECTIVELY HE MIGHT NOT/ COULD NOT HAVE COMPLETED THE FULL QS- WILL FALL SHORT BY HALF A DAY OR EVEN ONE DAY!!

5.SIMILARLY, CENSORING/ PREPOSITIONING THE DOB WITH TIME WHICH HAS “CULTURAL/ETHNIC/RELIGIOUS/ PERSONAL” ‘SIGNIFICANCE TO AN INDIVIDUAL (LIKE A PERSONAL LAW)NOT ONLY MAKES HIM TO RETIRE BEFORE HE COMPLETES 60 YEARS IN REAL TIME , BUT ALSO “ILLEGALLY FORCES HIM TO ACCEPT A “VIRTUAL DOB AND TIME” " WHICH MUST BE TREATED AS IF IT ENCROACHES ON ONE’S FUNDAMENTAL RIGHT. ( AM I CORRECT?)

6.THERE IS NO VALID RATIONALE/ REASON TO DIVIDE THE INCUMBENTS BORN IN A MONTH -AS THOSE BORN ON 1ST- AND AS THOSE BORN ON 2ND OR ANY LATER DAY UP TO SAY LAST DAY OF THE MONTH,- BECAUSE OF THE DIFFERENCE IT MAKES BOTH IN AGE AND CURTAILED OR EXTENDED SERVICE.; AND CONSEQUENTLY THE INFLICATED LOSS IN ONE TIMERETIREMENT BENEFITS LIKE LOSING ON THE UNIQUE "LIBERALISED PENSION FORMULAE", ETC FOR THOSE BORN ON 1ST JAN... AS HAPPENING IN THE CURRENT CASE.

7.NOT REVIEWING THE "ABNORMAL ANOMALY" IN TIME TO PROVIDE RELIEF TO THE "MINISCULE SEGMENT OF VANISHING GROUP OF VERY OLD/ OLD PENSIONERS OF DOBS 1 1 1928/38/46 IS A GREAT INJUSTICE AND A GROSS VIOLATION ARTICLE 14

SO ON AND ON.... (WE MUST PRICK AS MANY HOLES AS POSSIBLE)

WE MUST ALSO EXAMINE THE CONTRADICTORY/ SEE-SAW VIEW-POINTS EMERGING FROM JUDGMENTS DELIVERED FROM TIME TO TIME ON SUCH ISSUES AND PUBLICISE THE SAME SO THAT THE OLD PENSIONERS ARE BETTER INFORMED!

THIS ISSUE MUST FIGURE IN ALL AGENDA OF OLD PENSIONERS RELATED MEETINGS WITH AUTHORITIES.WILL THE ASSOCIATIONS AND FEDERATIONS CARE PL.?
.

vnatarajan

vnatarajan
16-09-2012, 10:43 AM
DEAR SHRI GK JI/ OTHERS INVOLVED,

There is another possible DISTICTION OF GREAT DISCRIMINATION as explained hereunder.

PL EXAMINE THE SAME WRT UR OWN CASE.

BY MAKING AN EMPLOYEE (SAY -A) WITH DOB 1 1 1946 TO RETIRE ON 31 12 2005 JUST BEFORE HE COMPLETES THE STIPULATED 60 YEARS WITH NO CHANCE OF EXTENDED SERVICE AND AT THE SAME TIME GIVING ANOTHER EMPLOYEE ( SAY - B) WITH DOB 2.1.1946 EXTENDED SERVICE PROVISION UP TO LAST DAY OF THE MONTH SO AS TO RETIRE A 31 01 2006, THERE COULD BE ANOTHER DISTICTION WITH GREATER DISCRIMINATION/ DISPARITY.


EMPLOYEE 'A' MIGHT HAVE COMPLETED MORE THAN EVEN 37 YEARS (LIKE MANY OF US) IN GOVT SERVICE , THUS CROSSING THE MINM OF 33 YRS QS REQD FOR FULL PENSION LONG BEFORE THE EMPLOYEE 'B' , WHO MIGHT BE COMPLETING JUST 33 YEARS OF QS ONLY ON 31 12 2005 OR EVEN DURING EXTENDED PERIOD (IF ALLOWED) SAY ON 02 01 2006 OR EVEN LATER.

IF IT INVOLVES A COMPARABLE CASE OF RETD DY SECS TO GOI, THE RESULTANT DISCRIMINATION/ DISPARITY IS VIOALTION OF ART 39 AND ART 14 PUT TOGETHER.

A SENIOR BY SENIORITY DY SEC IS MADE TO ENJOY "CURTAILED/ REDUCE LIBERALISED PENSIONARY BENEFITS EVEN THOUGH HE HAD COMPLETED 37 YEARS OF SERVICE BY 31 12 2005 - HAVING COMPLETED THE REQUIRED 33 YRS QS LONG BACK - THAN A JUNIOR DY SEC WHO JUST COMPLETED 33 YEARS QS ONLY AT THE END OF HE DAY OF 01 01 2006 BUT HAVING A DOB OF 02 01 2006!!!

This situation is much much against principles of NATURAL JUSTICE because of the incredibly enforced DOB based retirements of prepostioning/ postponing the said DOBs.

AS THE ARRANGMENT RESULTS IN INCOMPARABLE SITUATIONs OF MAGNIFIED ERRORS, A HASTY REVIEW IS REQUIRED TO DO JUSTICE.

Pl examine,

vnatarajan

COMMENTING FURTHER:

THE DISPARITIES MAY BE UNIMAGINABLE!

A MUCH MUCH JUNIOR SCALE RETIREE OF MUCH MUCH LESS THAN 33 YRS QS ie NOT HAVING SERVED THE GOVT FOR EVEN THE MINIMUM QS FOR FULL PENSION BUT BY SIMPLY BELONGING TO THE POST 01 01 2006 PERIOD, MAY DRAW MUCH MUCH MORE "LIBERALISE ONE TIME PENSIONARY BENEFITS" THAN THE FORMER/ HIS SENIOR BOTH IN SCALE OF APY AND LENGTH OF SERVICE! THIS DIFFERENCE MAY RUN INTO SEVRAL LAKHS OF RS IF WE TAKE CASE OF RETD DY SECRETARIES!

vnatarajan

Gopal Krishan
28-09-2012, 09:33 PM
Respected Shri Vnatarajan sahib,

As suggested by you earlier now time has come to form a group of those born on the Ist January, 1946/1938/1928 so the we in a group could fight the injustice suffered by all of us. All concerned could come forward and facilitate formation of a group for taking up the matter in the court of law.

Wit h regards,
Gopal Krishan
9911178250

vnatarajan
12-10-2012, 10:44 AM
IMPORTANT

Dear Shri GK,

One Mr Kalyanaraman Vaidyanathan, ex Rlys, also appear to be of similar category- with DOB 1 1 46 and retired after full service and is also facing the same hardship due to denial of the SCPC benefits. He is related to my co pensioner in our Forum- Shri K Lakshminarayanan who is the contact peron for the former. Shri Lakshminarayanan's email id is [email protected] . Pl forward a copy of your rep/ common rep draft to him immediately. Pl also endorse copy to me. Now you must go ahead without waiting long as very few appear to be in terested in pursuing the matter.I am also trying to locate others.

Pl act at your fastest.

Warm regards,

vnatarajan

RKPATHAK
13-10-2012, 06:27 AM
Your pension might have been revised under VI CPC. There seems to be no harassment

Gopal Krishan
13-10-2012, 08:00 PM
Dear Shri Pathak

This is with reference to your post No. 32. Point is not of harassment. It would be clear if you kindly go through various posts of other Senior Members in this regard.

With regards,

Gopal Krishan

Gopal Krishan
13-10-2012, 08:47 PM
Dear Shri Natarajan Sahib,

This is with reference to your post No, 31. My post No. 7 dated the 4th September, 2012 would give the background of the last stage of the case of ALL THOSE BORN ON THE Ist January, 1946. Briefely, the Secretary of the Department of Chemicals and Petro-chemicals, i.e., my administrative Department had taken up the matter with his counterpart in the Department of Expenditure specifically mentioning that he did not agree with the Department of Expenditure that there was no hardship in these cases of pensioners born on the Ist January, 1946. He, however. agreed with the Dpartment of Expenditure that there was no case of relaxation of FR 56 in just one case of Gopal Krishan. In othere words the Secretary, Department of Chemicals and Petro-chemicals had suggested a way out for removing the hardship faced by all those born on the Ist January, 1946. His suggestion was simply a modification in the resolution of the Government of India vide which recommendations of the 6th Central Pay Commission were accepted by the Government. I have obtained a copy of the note vide whihc the recommendtion of the Secretary was examined in the Department of Expenditure. I would separately post a copy of the note received from the Department of Expenditure. From the note it would be seen that recommendation made by the DCPC has not at all been examined by the Department of Expenditure at all. With reference to the recommendations made by the SCPC it would be seen that the same has been brushed aside by simply stating that if the same is accepted the Department of Expenditure may have to approach to the cabinet. In other words they may have work for preparing a Note for the Cabinet. In fact the file was not placed before the Secretary, Department of Expenditure to whom the recommendation was made by the Secretary, DCPC. The matter was disposed of at the level of the Joint Secretary concerned.

In view of the above facts I met the Secretary, Department of Chemicals and Petro-chemicals after he expressed his unwillingness to take up the matter again with the Secretary, Department of Expenditure based on my representation submitted to him. He was still reluctant to take up the matter again. However, he suggested that we would take up the matter with the Secretary, Expdnditure direct based on his earlier recommendation. When I mentioned about the illogical grounds on which his recommendation was rejected, he also observed tht the grounds were absurd. Now I think we may have to take up the matter with the Minister of Finance and the Secretary, Department of Expenditure by sending as many representations as possible, based on all these developments. I seek your guidance.

With regards,

GOPAL Krishan

RKPATHAK
13-10-2012, 09:21 PM
Let us solve your observation with an example. One was employed in the pay scale of Rs 5000-8000 with basic pay Rs 5000. He will get the pension @ Rs 2500. If, however, he gets the benefit of VICPC his basic shall be Rs 9300+4200=13500 and 50% of this shall be Rs 6750. But in case of pensioner retiring before VICPC his basic pension be Rs 5650. To solve this problem, Govt has already notified that the minimum pension shall not be less than 50% of the pay + grade pay for the post person was holding at the time of retirement. If you give this benefit the person retiring with VCPC and pension revised as per VICPC shall also get the basic pension of Rs 6750

Gopal Krishan
14-10-2012, 12:46 PM
Respected S/Shri Natarajan sahib, Nagarajan ji and Sitaraman ji
In continuation of my post No. 34, I have emailed copy of the note vide which the recommendation of the Secretary to the Government of India in the Department of Chemicals and Petro-chemicals was examined by the Department of Expenditure at the level of the Joint Secretary although the Secretary, DCPC had made recommendation to the Secretary, Department of Expenditure. He had not suggested any relaxation of FR 56 in may case but had recommended relief to all those pensioners with the Ist January, 1946 as their date of birlth. Unfortunately, the Department of Expenditure wrongly thinking that the proposal was about the relaxation of the FR 56 the matter was examined. All this was superfluous. About the recommendation made by the Secretary, DCPC the Department of Expenditure felt that as the matter may have to be taken up with the cabinet for modification of the resolution accepting the recommendation of the 6th CPC the same deserved rejection. This is an absurd ground to reject a recommendation made by a Secretary to the Government of India in another Department.
As such I propose to write to the Secretary, Department of Expenditure about the same. I also feel we could send similar representations from the Associations side to the Finance Minister and the Secretary, Department of Expenditure inviting their attention to the recommendation made by the Secretary, Department of Chemicals and Petro-chemicals in respect of all those pensioners born on the Ist January, 1946 and lost benefits of the 6th CPC. We could also highlight the absurd examiniation done in the Department of Expenditure at the lowers levels and then rejecting the recommendation made by a Secretary to the Government of India, who in fact worked in the Finance Ministry earlier. I would also be attempting one such representation for the Secretary, Department of Expenditure for his consideration. In the meantiome we could get in touch with those born on the Ist January, 1946 so that a group is formed for going to CAT if efforts with the Ministry of Finance did not bring any positive results.

With regards,

GOpal Krishan

Gopal Krishan
14-10-2012, 12:49 PM
Pathakji,
This is not a question of only pension but other pensionery benefits also. If all those born on the Ist January, 1946 are allowed 6th CPC recommendations there would be benefits in term of Gratuity, Leave encashment etc.

RKPATHAK
14-10-2012, 08:16 PM
It is by chance that one has been retired on 31 December 2005 and lost all benefits under CPC. At last there is always some cut off date and one has to suffer. Suppose Govt grants benefit to the retiree of 31 December 2005, the retiree of 30 November 2005 shall raise voice and there be no end. Had Pt Jawaharlal Nehru accepted the suggestion of Krishna Menon to set up permanent wage board for Govt employees the situation would have been differnt

vnatarajan
15-10-2012, 09:25 AM
I feel there is some gap in understanding the situation.

CPC REVISIONS ARE NOT FREQUENT. THEY HAPPEN ONCE IN TEN YEARS - IF AT ALL THEY HAPPEN IN TIME. CASES OF DISPARITY LIKE SHRI GK ARE RATHER EXCEPTIONS.

EVEN THOUGH HE IS BORN ON 1 1 46, AFTER 60 YEARS OF AGE/ FULL QUAL SERVICE - BY COINCIDENCE OR PROVIDENCE, HIS DOB IS BEING MADE TO PREPOSITION AS IF IT IS 31 12 1945 AND HE IS BEING DENIED THE BENEFITS WHICH OTHER JAN BORN EMPLOYEES CAN GET AND ENJOY! IN WHAT WAY HE IS BEING TREATED AS UNEQUALS TO THEM?

WAS HE A PENSIONER ON 31 12 2005? NO HE WAS NOT - HE WAS IN SERVICE.
THEN WHEN DOES HE BECOME A PENSIONER- ON THE SAME DAY?
THEN WHY PAY HIS WAGES FOR THAT DAY?

SIMPLY BECAUSE HE WAS NOT PAID HIS WAGES FOR 1 JAN 2006, HE IS BEING DENIED THE REVISED PENSION BENEFITS AT THE REVISED RATES.

RULES ARE MADE FOR GENERAL CASES- THEY CAN NOT FORESEE EXCEPTIONS/ RARE CASES - LIKE SHRI GK'S.

WE ARE AWARE BABUDOM WILL TRY TO ESCAPE THRU FLIMSY EXCUSES AS MADE OUT IN THEIR FILES- IT IS THEIR WAY OF APPLYING RULES.HIGHER ECHELONS CAN CERTAINLY RESOLVE THE CASE IN NO TIME.

WHEN RULES ARE NOT FLEXIBLE/ OR RATHER MADE TO LOOK INFLEXIBLE BY LOWER LEVELS OF BABUDOM- AS IS HAPPENING IN EVERY MAJOR PENSIONERS' CASE SO FAR (MOD PARITY- SPL PAY FOR PENSION- RANK PAY FOR PENSION ETC) , RECOURSE IS ONLY THRU JUDICIAL REVIEW PROCESS.

WE HAVE TO SEEK JUSTICE - WHICH ONLY CATS/ COURTS CAN GIVE US.

IF CPC REVSIONS WERE MONTHLY, THEN WHAT POINT IS BEING MADE OUT IS LOGICAL.
IT IS NOT SO HERE!

Hope this clarifies.

vnatarajan

RKPATHAK
15-10-2012, 09:30 AM
Hope this solve the grievance of Gopal Krishan

sundarar
16-10-2012, 04:56 AM
I feel there is some gap in understanding the situation.

WAS HE A PENSIONER ON 31 12 2005? NO HE WAS NOT - HE WAS IN SERVICE.
THEN WHEN DOES HE BECOME A PENSIONER- ON THE SAME DAY?
THEN WHY PAY HIS WAGES FOR THAT DAY?

SIMPLY BECAUSE HE WAS NOT PAID HIS WAGES FOR 1 JAN 2006, HE IS BEING DENIED THE REVISED PENSION BENEFITS AT THE REVISED RATES.

RULES ARE MADE FOR GENERAL CASES- THEY CAN NOT FORESEE EXCEPTIONS/ RARE CASES - LIKE SHRI GK'S.

vnatarajan


Very correctly pointed out by our Respected Shri VNji.

F.R. 56. (a) .......
Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.


Rule 5 of CCS (Pension) Rules, 1972

5. Regulation of claims to pension or family pension :-

(1) .....

(2) The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day.....
Provided that in the case of a Government servant who is retired prematurely or who retires voluntarily under clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 or Rule 48-A, as the case may be, the date of retirement shall be treated as a non-working day.
-------------------------------
I. Extracts – AP HC Judgment - Principal Accountant General and others vs Shri C. Subba Rao (DOJ: 27.1.2005)

“F.R.56(a) creates a legal fiction. Even if a person attains the age of 60 years on any day of the month, he shall be retired on the afternoon of the last day of the month. A Government servant, who attains the age of 60 years on any day in a month, is deemed to have not attained the superannuation till the last day of the month.

In the case of a Government servant, whose date of birth is first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 60 years. In this case, actually and factually, a Government servant would have completed the age of 60 years a day before the date on which his date of birth falls. Therefore, there are two situations. In the first situation, a Government servant though he attains the age of 60 years on any day of the month, he is deemed to have not attained such age till the afternoon of the last day of that month. Assuming that such a situation is not contemplated - as in the case of persons holding constitutional offices like, Judges of Supreme Court, High Court, Members of Election Commission, Comptroller and Auditor General etc; if a Government servant is retired on a day before the actual date of birth on any day of the month and the increment of such Government servant falls on the first of the succeeding month, can he claim annual grade increment? The answer must be an emphatic "no". Because, by the date on which the increment falls due, such Government servant ceased to be a Government servant. It is therefore logical and reasonable to conclude that merely because for the purpose of F.R.56(a), a person is continued till the last date of the month in which he attains the age of superannuation, such an employee cannot claim increment which falls due on the first day of the succeeding month after retirement.

18. In second situation, a Government servant, who is covered by the proviso to F.R.56, that is to say, whose date of birth is first of a month, such employee has to retire on the last day of the preceding month. In Courts' considered opinion, no distinction can be made in both the cases, as the Government servants retired on the last day of the month and with effect from first day of succeeding month ceases to discharge Government duties and no pay is payable. If an increment is denied to a Government servant falling under F.R.56(a) though he retires on the last day of the month, the same principle will have to be applied to a Government servant falling under first proviso to F.R.56. Such interpretation would subserve the principle of equality and has to be preferred to any other possible and plausible method of interpretation. It is well settled that a provision of law has to be interpreted in a non-discriminatory manner in tune with principle of equality before law and equal protection of laws enshrined in Article 14 of the Constitution of India (See in K.P. Vargese v. I.T. Officer, Ernakulam, (Para 17)). Yet another situation is where the date of birth of a Government servant falls on the last day of the month. In such a case, he has to necessarily retire on the same day on which his date of birth falls and even if his increment falls on the first day of the succeeding month, he would not be entitled for any annual increment.

Central Civil Services (Pension) Rules.

Retirement may by voluntary or on superannuation. The principles for payment of pension will not vary on the basis of these distinctions.

According to Rule 83(1) of the Pension Rules, pension becomes payable from the date on which Government servant ceases to be born on the establishment (emphasis given). A Government servant continues to be borne on the establishment till midnight of the date of superannuation. That only means a Government servant gets the status of pensioner from the next day after date of retirement i.e., last day of the month on which he is retired.

A Government servant retiring on the last working day of the month shall be deemed to have ceased be Government employee with effect from midnight of that day and immediately after commencement of the next day, i.e., after midnight 12'O clock he becomes pensioner. Though he is paid pension, he shall not be deemed to be on duty as a Government servant.

A person is deemed to be retired on the day when such day commences and not after completion of the day.

A Government servant retiring on last day of the preceding month is deemed to have become pensioner on the next day and therefore such pensioners also entitled for the benefit of enhanced gratuity (Full Bench Decision of the CAT Hyderabad in Shri T.Krishna Murthy’s case).

As soon as first day of the succeeding month commenced, petitioner retired, entitled for the benefit of enhanced DA (Shri Banerjee case).

In Venkatram Rajagopalan v. Union of India (supra) the full bench of the Tribunal was of the view that “"afternoon of 31st of March" or "forenoon of 1st of April" means one and the same thing

A person retiring on the last day of the preceding month ceases to be borne on the establishment with effect from beginning of first day of the succeeding month and he would not be entitled for payment of any emoluments as soon as first day of the succeeding month commences, i.e., after 12.00 'O' clock in the night.

From the midnight of the day of the superannuation, a Government servant becomes pensioner and all the benefits given by the Government with effect from first day of the month after retirement; assuming that such benefit is given - would be entitled for all the benefits”.

CONCLUSION:

Thus, a retiree acquire the status of a pensioner with effect from the first day of the month after retirement.

In the instant case of Shri GKji, he acquired the status of a pensioner on 1.1.2006 because he, as a pensioner ceases to be borne on the establishment with effect from the beginning of 1.1.2006. The retirement gratuity is payable only to a person ceases to be borne on the establishment. We have seen in the preceding paragraphs that `A Government servant retiring on last day of the preceding month is deemed to have become pensioner on the next day and therefore such pensioners also entitled for the benefit of enhanced gratuity’.

As per para 6.1 of the DOP&PW OM dated 2.9.2008 effective from 1.1.2006, the maximum limit of all kinds of gratuity shall be Rs.10 lakhs.

Shri GKji acquired the status of a pensioner exactly on his 61st birthday, viz. 1.1.2006 and thereby become eligible for the benefit of enhanced gratuity, etc. not by virtue of date of superannuation, but by virtue of his 61st birthday and effective date of implementation of revised retrial benefits being one and same. Similarly, the employees who were born on 1.1.1928 and 1.1.1938 who retired on 31.12.1985 and 31.12.1995 are also entitled to such enhanced provisions that were made entitled from 1.1.1986 and 1.1.1996 respectively.

The subjective clause of FR 56 (a) – “Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of (fifty eight or) sixty years”, indicates the effective date of cessation from service, the succeeding date of which, is the date of commencement of the status as a Pensioner.

A clarification over the OM dated 2.9.2008 especially in respect of pensioners who who acquired the status of a pensioner on their 61st birthday, on applicability of retrial benefits from the effective date of 6th CPC recommendation (where the 61st birthday and the implementation date happens to be one and same), is all the more necessary.

It is also significant to note that all retirees on superannuation do not acquire the status of a pensioner exactly on their 61st birthday except those who born on 1st of succeeding month of retirement. Hence, the specific need for clarification.

Gopal Krishan
24-10-2012, 03:07 PM
Respected Shri VNatarajan Sahib, Sundrarajan ji, all interested and concerned pensioners,

I am grateful for the interest being taken by you in our case of all those pensioners whose date of birth is the Ist January, 1946. All these points would be very relevant and useful for the beriefing of the advocate at the relevant time. As submitted earlier a representation from me in the capacity of a former staff side member of the Departmental Council of the Department of Personnel and Training has been delivered yesterday to the Secretary, Department of Expenditure, Ministry of Finance. Briefely, the suggestions are either to accept the recommendation of the Secretary, Department of Chemicals and Petro-chemicals as mentioned in post no. 34 or to add another proviso to FR 56 so as to retire all those born on the Ist January, 1946/1938/1928 on the 31st January.

We may await the outcome of this last effort. Thereafter, I would trouble Shri Vnatarajan sahib, Shri Sundrarajan ji and Sitaraman sahib for guidance for taking up the matter in the CAT/Court. In fact enough matterial in terms of court judgements etc. is aready available with us.

With regards,

Gopal Krishan

Gopal Krishan
08-11-2012, 08:12 PM
Dear 1.1.1946/1938/1928 born pensioners,

All of us must have suffered loss of the benefits of the recommendations of the 6th/5th/4th
Central Pay Commission, because of the fact that we retired a day before the effective date of the implementation of the decisions taken by the Government on those recommendations. That was because of the provision in the Fundament Rule 56, which provides that a government servant whose date of birth is the Ist of any month would superannuate on the last date of the preceding month. This requied an in deapth examination/review of the matter. The same has been examined by our very senior pensioners - Shri V. Natarajan sahib, Shri Balasubraminian sahib, Shri Sitaraman Sahib and Shri Sundararajn ji. It is concluded by them that the proviso to FR 56 is discriminitary against all those born on the Ist January, 1946/1938/1928. As such Shri Sitaraman sahib under the guidance and with the blessings of Shri V. Natarajan sahib, Shri Balasubramanian sahib and with the assistance of others have finalized a model representation which I would shortly be posting on Gconnect for adopting or utilizing for finalizing a representation by each of us and then sending the same to the three Secretaries to the Government of India so that our grievances are brought to their notice for redressal of the same at the earliest.

Wishing every one a very HPPY DEEPAWALI,


With regards,

GOPAL KRISHAN
09911178250

Gopal Krishan
08-11-2012, 08:29 PM
Dear 1.1.1946/1938/1928 born pensioners,

With reference to 43rd post, I am posting the model representation as follows:


From
To
The Secretary,
Department of Expenditure,
Ministry of Finance, North Block,
Government of India,
NEW DELHI 110001

Sub: Deprivation of all the Central Pay Commission benefits in terms of pay revisions, pensions and pensionary benefits, suffered by Pensioners born on 1/1/1946/1938/1928 owing to their respective retirements on 31/12/2005/1995/1985.

Respected Sir,
Ref: FR.56 (a) modified by the Ministry of Finance on 7/2/1975.

This Representation is submitted by me as a Pensioner born on 1/1/1946 on my own behalf and on behalf of my Co-pensioners born on the same date as well as on 1/1/1938 and on 1/1/1928 to seek restoration of all the Central Pay Commission benefits in terms of pay revisions, pensions and pensionary benefits denied to us owing to our respective retirements on 31/12/2005/1995/1985 as a result of what is perceived to be a somewhat incorrect decision taken by the Ministry of Finance in April 1975 while implementing the Third Central Pay Commission recommendation to retire all Central government servants on the afternoon of the last day of the month in which the government servants attained their age of retirement/superannuation.

2. Pension losses on this account were not very much insofar as the benefits that arose out of the Fourth and the Fifth Central Pay Commission recommendations were concerned, but the losses were colossal and unbearable when the benefits out of Sixth Central Pay Commission recommendations are taken into consideration. The disparities had shot up very high between two colleagues with one of them born on 1/1/1946 and the other born on any other day in the same month and year and no Administration can watch such a condition and still allow it to prolong without rushing to correct the same. And yet it is sad to state that this condition has indeed been allowed to prolong for 37 years now and there has been no sign of any effort towards rectification as yet.

3. As for prospective claimants, should Pay Commission benefits be now ordered to be extended to we unfortunate pensioners born on 1/1/1946/1938/1928, it is estimated that there will be only a miniscule number of claimants not exceeding 300. A majority of claimants are expected to be only family pensioners. The Government would also certainly be aware that pension increases on account of the Fourth and the Fifth CPC recommendations were only marginal and hence should not be worrisome to Finance Ministry.

4. I now wish to place the following points/facts/justification pertaining to this case for a detailed examination, particularly since the case seems to have deeper implications including certain constitutional questions arising out of the manner in which the Third Central Pay Commission recommendations had been implemented and had been in force for some 37 years so far and still with the prospect of the same condition prolonging indefinitely.

4.1 The Department is aware that till April, 1975, the basic fundamental rule by which every government servant without any exception retired on the afternoon of the day on which he attained the age of retirement/superannuation and received his pension the next day, i.e., his birth day, was in force. It can be seen that application of the rule has been universal and uniform for all government servants.

4.2. Based on Paragraph 15 of Chapter 60 of the Report of the Third Pay Commission it was decided by the Government of India in the Department of Personnel in November 1973/May, 1974 that Civilian Government servants shall retire from services or posts from the afternoon of the last day of the month in which their date of retirement/superannuation falls. At that time the age of retirement on superannuation was 58 years. It will be appreciated that this decision also has been universal and uniform in respect of all the Government servants.

4.3. Subsequently Ministry of Finance modified FR 56(a) on 7/2/1975 providing that every government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. A note bearing No.7 was also incorporated providing that a government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of fifty eight years or sixty years as the case may be. This provision took effect from the 5th April, 1975. This Note about retirement on the afternoon of the last day of the preceding month was later incorporated in the main Rule 56(a) as a Proviso. At present the relevant FR 56(a) reads as follows:

Except as otherwise provided in this rule, every government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years;

Provided that a government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.

Provided further that a Government servant who has attained the age of fifty-eight years on or before the first day of May, 1998 and is on extension in service, shall retire from the service on expiry of his extended period of service, or on the expiry of any further extension in service granted by the Central Government in public interest, provided that no such extension in service shall be granted beyond the age of sixty years.

4.4. It will be seen that the modification of FR.56(a) with addition of a Proviso by the Ministry of Finance which came into effect from 5/4/1975 deviated from the usual time-tested rule of universality and uniformity, the most essential ingredients required in framing of any rule, especially a fundamental rule. The addition of proviso singled out the 1/1/1946/1938/1928-born pensioners for deprivation of the full Pay Commission benefits, which were granted to the rest of the pensioners, thus the application of the rule becoming bereft of the universality and uniformity maintained so far in keeping with upholding of a fundamental rule.

5. Now, obviously the case hinges on the Government's readiness or willingness to relax or amend the FR.56 (a) and its Proviso to allow the Pay Commission benefits to 1.1.46/38/28-born retirees, though the Proviso in question was notified long after issue of the DOP's OM implementing the Third CPC’s recommendation. It is now well known to all including the Government that this Proviso stands in the way to extend the said benefits, despite the fact that the denial particularly discriminates against the retirees born on the said dates thus violating Article 14 of the Constitution. It is a general principle that framing or amending of any statutory rule should be common to all retirees without exception and there should not be any discrimination.

6. The relevant Third CPC Recommendation in letter and spirit was applicable to all Government servants in equal measure but the amended FR.56 (a) & Proviso issued by the Ministry of Finance is not. .

7. The proviso to FR56(a), effective from April 1975 requires every government servant whose date of birth is the first of a month to retire from service on the afternoon of the last day of the preceding month on attaining the age of 58/60 years and in real terms it is the same as the basic and original fundamental rule which was in operation initially and by which all repeat all government servants (100%) uniformly retired on the respective days on which they attained the age of retirement and their pensions paid the next day on their birth days.

Gopal Krishan
08-11-2012, 08:35 PM
8. It will be seen that the basic rule already stands relaxed by the Government itself consequent on its issuing FR.56(a) with the proviso on acceptance of the Third Central Pay Commission’s recommendation, by which almost all the government servants including those born on 1st of every month other than January, benefited, by way of extensions in their services besides the Sixth CPC Pay & Pension revision benefits, barring the 1st January-born government servants. The reason for barring the 1st January born employees in this manner is not known but presumably the problem in their case could be that the employee should have attained the age of 58/60 years for his retirement before the pensions can be drawn, which is exactly the basic rule mentioned above. While this initial relaxation has benefited the employees born on 2nd of January and onwards and even 1st of every month other than January (which virtually means all the remaining 364 days of the year), as in their case their retirement as per the basic rule on the preceding day happened in the same year (Post-2005), the relaxation was not applied in the case of the 1st January-born employees probably on ground that their retirement took place in the previous month and year (Pre-2006). It will be appreciated that this is a very clear case of discrimination against the 1st January-born employees. The hardship and damage is still far worse in the case of the 1st January 1946/38/28 born employees, since the disparity with their homogenous colleagues born on any of the remaining 364 days of the year, has widened hugely and artificially and the case surely and unquestionably attracted the provisions of Article 14 of the Constitution.

9.1 Moreover, the Proviso is also to be termed inconsistent, since for the employees born on 2nd onwards right up to 31st December, application of the basic rule is inconsequential as they are not affected by it, but it directly and pointedly affects the 1st January-born employees. This violates the very spirit behind the recommendation of the Third CPC. The relaxation of FR 56 should have been made in an equitable manner by treating the application of the basic rule which stands amended in any case, inconsequential for the 1st January born employees also. The requirement of the old basic rule that a first January born employee should have attained/completed the age of superannuation is more than offset by the extension of their services also up to the last day of the month like the employees born on 2nd and onwards, viz., in rest of the days of the year.

9.2 If a date of retirement/superannuation can be postponed to the last day of the month from the actual date of superannuation consequent on a Pay Commission recommendation, by circumventing, or in disregard of, the then extant rules, it will be appreciated, it must be possible to postpone the 1st January born government servant’s retirement/superannuation also to the last day of the same month (January) similarly by circumventing any extant rule (Proviso under FR.56(a) in this case), owing to the requirement as per the Constitution that every rule should be common, equal and uniform to all the government servants in its application.

10. It will be seen that the rule as amended and made effective from April 1975 is flawed because of the two major inconsistencies/contradictions stated above. Any rule is supposed to be common and uniform and should be applicable to all employees equally and equitably but the amended rule does not appear to be so beside only creating still larger issues. Since it is found that the amended rule has serious lacunae as explained above, it should not have been issued and perhaps the Commission’s recommendation itself not accepted in the first place. Now this cannot be set right after a lapse of 37 years. The only way it can be remedied, is to remove the Proviso and make 1st January born employees also to retire notionally on the last day of January like other employees as per III CPC recommendation, so as to ensure that the amended rule is also common, uniform and universal and is applicable to all repeat all employees, including those born on the Ist January, 1946/1938/1928.

11. In response to a representation from a similarly affected 1/1/46-born pensioner, the Department of Expenditure seems to have made a stock observation that for any such revision, a line has to be drawn and wherever the line is drawn, there will be persons who retired on a previous day and would lose the benefits of pay revision, We strongly feel that this analogy may not hold good in matters of pay & pension revisions consequent on the recommendation of Pay Commissions, since this happens not routinely but once in ten years as a measure of updating the pay & pensions, etc according to new economic conditions in the country and these recommendations encompass all government servants and there cannot be any exception by application of any extant rules, which are meant for only routine purposes.

12. Further, in regard to 1/1/46-born retirees, their retirements have been notionally fixed on the afternoon of the last day of the preceding month, i.e. 31/12/2005 consequent on a Third CPC recommendation, by clubbing them with the other retirees who would have retired normally on 31/12/2005. The line drawn for eligibility purposes is to forbid the latter rather than the former, since the 1/1/46-born retirees find themselves singled out and bracketed with the other earlier retirees only because of the Proviso to FR.56(a) introduced from 5/4/1975 consequent on a Third Pay Commission recommendation. In other words, it must be clear that a line has been specifically drawn to deprive 1/1/1946/1938/1928-born retirees only of the Pay Commission benefits, since the rest of the retirees born on the remaining 364 days of the year have been afforded full benefits There is undoubtedly a DISTINCTION between the two sets of retirees and it is clear that there has not been a proper application of mind before the Proviso was contemplated and brought into force. What has been resorted to has resulted in a huge discrimination and this has been allowed to persist for 37 years and it goes without saying that there is an urgent need to look into the matter afresh and set this right with immediate effect.

13. Hardship has been felt quite harshly for about 37 years thus far by the 1st January 1946/1938/1928-born pensioners alone, having been singled out for deprivation of all Pay Commission benefits in terms of pay revision, pension and pensionary benefits, while those born on rest of the 364 days of the year were afforded full Pay Commission benefits, only due to the Proviso under FR.56 (a) introduced from April, 1975 consequent on implementation of a Third Pay Commission recommendation. There is absolute need to provide an enabling provision, by adding another suitable provision under FR.56 (a), so that this category of

Gopal Krishan
08-11-2012, 08:42 PM
pensioners, who have been left out for no fault of theirs – in fact it sounds as if they have been penalised for wrong-doing – can also avail the said benefits.

14. In this connection, it is observed that the FR.56 (a) with the Proviso has been issued through a Notification by the Finance Ministry in April 1975, which gives rise to a doubt whether the Cabinet’s approval was taken. If not, may we request that opportunity may be taken now to take a fresh decision in the light of the several points/facts with justification furnished in the above paragraphs? If agreed, the suggestion given in the previous paragraph 13 can also be considered before approaching the Cabinet for approval.

15. Thus there are several alternatives to remove the hardship being faced by the above-referred pensioners. First, addition of second Proviso to FR.56 as prayed for in the Paragraph 13 and second is suitable amendment to the Government Resolution dated 29/8/2008, the third is to retire the 1st January pensioners also on the 31st of the same month as suggested in Para 9.2 above and the fourth is to grant 1st January born pensioners also to enjoy like the rest of the pensioners all the Pay Commission benefits, extension of services etc. by following the same principle as applied to Senior pensioners for grant of enhanced pension on attainment of 80 years, 85 years, etc..vide Para 17.1 to 17.8 The best recourse will always be the removal altogether of the first proviso under this amended FR as requested for in Para 10.

16. We wish to stress that in cases of pension revisions, unlike the one-time changes in Gratuity, etc., financial constraint cannot be the ground for not granting the pensionary benefits according to the law of the land pronounced by the Constitution Bench of the Supreme Court in Nakara case judgment. In any case, Pay and Pension revisions consequent on Pay Commission recommendations are to be placed on an entirely different footing.

17.1 It would be relevant to mention here that based on the recommendations of the Sixth Central Pay Commission, the Government of India has decided to allow enhanced pension on attaining the age of 80 years, etc from the month in which the date of birth of the pensioner falls. It would be pertinent to mention here that the distinction of pensioners into different categories based on the actual date in which the date of birth falls during a month, for the purpose of enhanced pension of 20 % (30%) on attaining the age of 80 years (85 years) etc. has already been done away with. In the OM dated 3rd October 2008, this principle has already been conceded and is already being implemented in the case of a number of very senior pensioners. The suggestion would be clear from the following examples.

17.2 ` Suppose pensioner A completes 80 years only on some date in October of a particular year, say, 15th October; even though he is less than 80 till 15th October, still enhanced pension of 20% has been granted to him for the whole of the month of October, right from the 1st of October of that year. (This is according to OM of 3.10.2008).

17.3 This is true for pensioner B also who completes 80 years on any date in October, not necessarily 1st of October, but any other date in October, say, 31st October (to take an extreme case). Even though he has not completed 80 years right from 1st of October, still enhanced pension is admissible for him for the whole of October.

17.4 Thus, the distinction between pensioners for enhanced pension on completion of 80 years, depending on the dates on which the completion takes place in a particular month, has been done away with.

17.5 All pensioners who complete 80 years on any day in the course of a month, say October, get enhanced pension for the whole of that month of October. In other words, the actual date on which completion of 80 years takes place in a month has been made irrelevant, by grant of enhanced pension for the whole of that month irrespective of the date of such completion during that month.

17.6 It is hoped that the point is made clear that the actual date of completion of 80 years in a month has become irrelevant, since the benefit is given for the whole of that month in the case of all pensioners who complete 80 years on any day during that month. Similar is the case for enhanced pension on completion of 85 years, 90 years and so on.

17.7 It will also be noticed that there is no proportionate reduction in enhanced pension for the particular month in which a pensioner attains the 81st/85th birthday irrespective of the date, ie. 1st day of the month or any other day of the month, he is paid full enhanced pension. In other words, there is no proportionate reduction for the part of the month during which the pensioner is below 80 years since the benefit has been made available for the whole month.

17.8 Viewed in this background, why a separate treatment is given when the date of birth falls on the1st January of a particular year after the person completes the age of superannuation, by his being denied the benefit for the whole of the month of January in which his date of birth falls, appears to be beyond logical comprehension, and in such cases, surely the proviso to FR 56(a) calls for a quick review, which is the purport of this representation.

18. It is time to think of Administrative reforms to remove all such anomalous situation by the Govt. so that things can be put straight. They shall not view like yet another representation or grievance, but they need to take it as an improvement over the system that is prevailing. Such a right spirit will facilitate added repute to the HR based Administration of date. I think still many capable and positive oriented functionaries exist at top layer and hence the system keeps on and on in spite of all odd factors. Latest observation from the policy change towards Modified Parity based Minimum Revised Pension shows such a positive attitude. For any lapse, the serving employees' Federations/Associations also are responsible for not taking up right issues at appropriate forum in a fitting manner.

19. It will be appreciated that there is a strong justification for inclusion of 1/1/1946/1938/1928-born pensioners also for grant of the Pay Commission benefits, as enjoyed by the rest of the other pensioners. It is hoped that necessary steps will be taken so that the hardship suffered by this category of pensioners due to what is considered as an incorrect decision taken in 1975 will be eliminated once and for all.

20. I need hardly stress that this matter, which is unique, the rarest of rare cases, strange but true and seems to challenge even the administrative acumen thus far, has already been allowed to drag on for 37 years and the glaring injustice to this category of pensioners continues unabated.

21. May I, therefore, request for a deep examination of the several issues raised hereinabove, with a view to finding a satisfactory and just solution to the hardship being faced by the pensioners referred to above?

Thanking you, Sir,

Yours faithfully,


( )

Place:
Date:

Copy to: the Secretary, Department of Pensions & Pensioners’ Welfare, Lok Nayak Bhawan, Khan Market, Govt. of India, New Delhi - 110003

Copy to: The Secretary, Department of Personnel & Training, North Block, Ministry of Personnel, Govt. of India, New Delhi - 110001

Gopal Krishan
14-11-2012, 08:47 PM
Dear interested/affected pensioners

It would be seen from the model representation that both the Departments,i.e., Department of Personnel and Department of Expenditure issued clarification/modification with reference to FR56. With this subject matter only one Department could be the concerned Department. As the subject matter would have been allotted to one Department by the Cabinder Secretariat under Government of India (Allocation of Business) Rules. We have to keep this aspect also in mind.

GOPAL KRISHAN

Gopal Krishan
15-11-2012, 06:06 PM
Dear interested/affected pensioners,

A model representation for being sent to the Secretry, Department of Expenditure, by interested/affected pensioners individually, is being published in the monthly magazien of Bharat Pensioners Samaj. That would be a brief representation. However, detailed representation is available under this thread. That can also be used for sending to the Secretary, Department of Pensioners by interested/affected pensioners.

with regards,

Gopal Krishan
9911178250

Gopal Krishan
15-11-2012, 09:38 PM
Bhart Pensioners Samaj has taken up the matter with the Secretary, Deprtment of Pension and Pensioners Welfare immediately on receiving a request from us. Grateful thanks to the BPS.

Gopal Krishan
former member of the Departmental Council of the Department of Personnel and Training (9911178250)

Gopal Krishan
13-12-2012, 12:35 PM
Respected Shri VN Sir, Sitaraman Sahib and Sundararajan ji,

As decided I had submitted a copy each of the representation to the Secretaries of Expenditure Department, Department of Personnel as well to the Pensioners Welfare Department and the Administrative Department. The Department of Pensioners' Welfare has forwarded the representation to the Department of Expenditure for necessary action. I have been advised to pursue the matter with them.

With regards

Gopal Krishan

Gopal Krishan
20-12-2012, 07:16 PM
Respected Natarajan Sir, Sitaraman Sahib and Sundararajan Ji,

It appears that we may have to plan for going to CAT in the matter. Kindly advise as how to proceed in the matter.

With regards,

Gopal Krishan

Gopal Krishan
16-03-2013, 05:34 PM
I am giving below the developments in the matter during the last three months.

Gopal Krishan

Gopal Krishan
16-03-2013, 06:27 PM
In May, 2012 the Secretary, Department of Chemicals and Petro-chemicals (DCPC) had spoken to his counterpart in the Department of Expenditure (DOE) about the problem being faced by the pensioners with the Ist January, 1946 as their date of birth. The latter agreed to give the same a favourable look. Accordingly, the former referred the file to the latter with the recommendation that the grievance of the pensioners could be resolved by wasy of an amendment to the Resolution No. 1/1/2008-IC dated the 29th August, 2008, bringin in to effect the apy revision. It was suggested that in paragraph 2 of the said Resolution, which says that the pay revision shall be effective from 1.1.2006, it may be added that those whose date of birth was on the Ist January, 1946 but had to retire on the previous day will also be deemed to have retired on the Ist January, 2006 and the benefit of the pay revision will be extended to them.

As is the procedure, he marked the file down below. A note was initiated by the concerned Section Officer stating that the Resolution was approved by the Cabinet and for any amendment to the same approval of the Cabinet was required. As such he felt that there was no merit in the proposal. This view was upheld by his senior Director and the Joint Secretary. This decision taken without the approval of the Secretary, who had agreed to give the same a favourable look was communicated to the DCPC.

In view of these facts, on the 23rd October, 2012, I represented to the Secretary, DOE with a copy each of the notes of the Secretary, DCPC and the Section Officer, DOE. Simultaneously, I had also requrested the DCPC for taking up the matter with the DOE. The representation of mine submitted to the DOE was transferred on the 9th January, 2013 to the Department of Personnel and Training along with the other representation, which was received by them through the Department of Pensioners and Pensioners Welfare, stating that the subject matter of the grievance was the concern of the DOPT.

Briefely, the suggestion made to the Secretary, DOE, who had agreed to give the same a favourable look could not be submitted at that level and the question about as to whihc Department had to handle the same is being examined by the DOPT and DOE. A final view is yet to be taken by the two Departments as to who should handle the same. As informally understood DOPT is also reluctant to proceed further in the matter as earlier the matter had been processed by DOE all along. In the meantime the representation submitted by me to the DCPC has also been sent to the DOE.

GOPAL KRISHAn

vnatarajan
18-03-2013, 06:20 AM
Dear Shri GK,

Progress is in the right direction.

Rejection of the proposal based on the comments of lower functionaries is unfair/ unjust /arbitrary.
THIS IS HOW GENUINE CASES GET SHORTED AND ABORTED.

Now you know - what "info" to collect at "what time".

Some positive and favourable NOTES AT THE HIGHER LEVELS ARE VERY IMPORTANT as they add strength to your case.

So pl pursue ations keeping track as u r doing.

Best of luck.

Regards,
vnatarajan

Gopal Krishan
18-03-2013, 03:35 PM
Respected Natarajan Sahib,

Thanks a lot for your very encouraging observation.

With regards

Gopal Krishan

Gopal Krishan
09-04-2013, 04:45 PM
In continuation of my post no 53, I would like to bring to the notice of all concerned that a representation indicating the grievances of the Ist January, 1946/1938/1928 were brought to the notice of the Secretry, Department of Pensions and Pensioners Welfare. That representation was sent to the Department of Expenditure for disposal. The Department of Expenditure transferred the same to the Department of Personnel for disposal.Briefely, without going into the merit of the case, the papers are being tossed about between the Department, as to who should process the matter relating to FR 56 and the Resolution passed by the Government dealing with the recommendation of the 6th Pay Commission. At present all the papers are with the Department of Personnel. It appears that they feel the matter is for the Department of Expenditure to proceed further.

Gopal Krishan

kssitaraman
20-04-2013, 10:16 PM
Ref. Respected Shri GK Sir’s Post 33 of date in the Thread ”Pension fixation as per 28/1/13 OM”.

Any reasonable assessment of this case is likely to lead to the conclusion that the 1146-born retirees also are to be given the VI Pay Commission benefits, since the rest of the government servants born on the days in the whole year from 2/1/1946 to 31/12/1946 without exception have been allowed the benefits by shifting their retirements to the last day of the month in which they attained superannuation in disregard of the extant rules regulating their retirements, consequent on implementation of the III CPC Recommendation. Perhaps, the same treatment is called for in respect of the 1146-born pensioners.

The authorities are probably busy now and one can only hope that they would take the only inevitable right decision allowing the benefits that this case deserves soon at their earliest convenience. No response of course amounts to continuance of the denial of the benefits, which had been imposed for 38 years so far. A question arises whether continued infliction of this kind of injustice would lead to constitutional infirmity and if so, whether some quick steps will become expedient.

One cannot measure the hardship these pensioners had suffered and how much they had lost by this denial thus far and whether their losses will not increase further by the continued delay in responding to their representations. It is hoped that JUSTICE WILL BE DONE TO THESE PENSIONERS early. In the case of Shri GK the hardship and the losses are more than the others and hence there is all the more reason to take the decision quickly.

Respected Shri GK has to press the issue by sending reminders or meeting the officials in person. Of course, he had all the time in the world to pursue this issue and he could have clinched the issue whilst he was in service. He might recollect that he responded after quite a lot of time to the posting of Respected Shri VN Sir in this Blog reg. the outcome of his earlier efforts in this matter. He is the person who can guide him suitably now.

Best regards,
K.S.Sitaraman.

Gopal Krishan
22-04-2013, 07:05 PM
Today I met the Director concerned in the Department of Personnel and Training and gave him a representation stating that the Department of Expenditure had wrongly transferred my earlier application addressed to the Department of Expenditure relating to the recommendation of the Secretary, Department of Chemicals and Petrochemicals, which were made after discussion with the Secretary of the Department of Expenditure. In the representation I had mentioned that the submissions I had made through that application to the Secretary, Department of Expenditure were in the nature of complaint against the junniors who did not submit the file to the Secretary, with whom the matter was discussed by tht other Secretary before sending the recommendation. In the representation I had also mentioned that in the cases of very senior pensioners the categorization of those born on the Ist of a month or otherwise has already done away with. As the matter is still with the Department of Personnel for taking a view in the matter I have requested him to expedite the matter.

Gopal Krishan

Gopal Krishan
25-05-2013, 03:27 PM
Presently the matter is stuck between the Department of Personnel and Training and the Department of Expenditure. The latter has transferred all the papers to the former for taking necessary action as according to them the DOPT is the concerned Department in the matter. That Department is still to take a view in regard to the matter whether they should at all handle the matter or send the same back to the Department of Expenditure to examine the issue. Only thereafter the matter would be examined on merit.

Gopal Krishan

Gopal Krishan
24-07-2013, 01:02 PM
According to my information it appears that the letter of the Bharat Pensioners Samaj on the subject dated the 15th November, 2012 landed in the Department of Pensions and Pensioners Welfare, whereas the reminder of May, 2013 from the Samaj reached the Department of Administrative Reformes. After the RTI application the CPIO concerned in the Department of Administrative replied to the Bharat Pensioners Samaj on the 20th June, 2013 with a copy each to the CPIOs of the Departments of Pension, Expenditure, and Personnel. The matter which has been taken up by the BPS with the Government of India is exclusively the concern of the Department of Personnel and Training. It appears that no meaningful action has been taken on the representation of the BPS which was sent to the Government of India as back as the 15th NOvember, 2012. As such I have requested the Secretary General of the Bharat Pensioners Samaj that the matter may be taken up either with the Minister of State in the Ministry of Personnel etc. or the Secretary, Department of Personnel and Training, North Bolock.I have also requested him kindly tokeep me informed so that I could assist the Bharat Pensioners Samaj in their efforts to help all those unfortunates who did not get the benefit of the 4th, 5th and the 6th Central Pay Commission which was their right.
Gopal Krishan

Gopal Krishan
09-09-2013, 08:10 PM
Bharat Pensioner Samaj has written to the Department of Pensions for inclusion of the item in he agenda for the meeting to be held on the 20th September, 2013 under the Chairmanship of the Minister of State in the Ministgry of Personnel etc. Let us await the outcome of the same.



Gopal Krishan

Gopal Krishan
12-09-2013, 09:02 PM
I have sent the following background note for the item notice in respect of which was sent by the Bharat Pensioners Samaj for inclusion in the Agenda for SCOVA meeting to be held on the 20th September, 2013:


As all are aware, till April 1975, the basic fundamental rule, by which every employee without any exception retired on the afternoon of the day on which he attained the age of retirement /superannuation, was in force. It can be seen that Application of this Rule had been universal and uniform for all employees.

2. As per the Recommendationof the Third Central Pay Commission, it was decided by the Government with approval of the Cabinet that Civilian employees shall retire from services or posts from the afternoon of the last day of the month in which their date of retirement/superannuation falls. The Department of Personnel communicated the decision to various Ministries/Departments in November 1973/May 1974. At that time the age of retirement on superannuation was 58 years. It is again pointed out that the recommendation as well as the decision also has been universal and uniform in respect of all the employees. It is also emphasized that this Recommendation of the Commission, which was made without any exception had been accepted in letter and spirit with the Cabinet’s approval by the then Government. The Cabinet had not decided that all those born on the Ist of a month would retire on the last day of the preceding month., However, in reply to the doubts raised about the date of superannuation of all those born on the Ist of a month, contrary to the decision taken with the approval of the Cabinet it was clarified by the Department of Personnel that such persons would retire on the last day of the preceding month.

3. Subsequently the Ministry of Finance modified FR.56(a) on 7/2/1975 providing that every employee shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. A note bearing No.7 was also incorporated providing that an employee whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of fifty eight years or sixty years as the case may be. This provision took effect from the 5th April 1975. This Note about retirement on the afternoon of the last day of the preceding month was later incorporated in the main FR 56(a) as a Proviso It will be seen that the modification of FR 56(a) with addition of a Proviso by the Ministry of Finance which came into effect from 5/4/1975 deviated from the usual time-tested rule of universality and uniformity, the most essential requirement for framing of any Rule, especially a Fundamental Rule.

4. In this connection, it is pointed out that at that time the concerned Department was known as the Department of Personnel and Administrative Reforms. According to the Allocation of Business Rules being administered by the Cabinet Secretariat, the subject matter relating to retirement/superannuation was the concern of the Department of Personnel and Administrative Reforms as the department was known then. As such the OM vide which clarification was given by the Under Secretary was rightly issued by the Department of Personnel but the notification issued by the Ministry of Finance appears to be beyond their jurisdiction. Amendment to the Rules could have been issued by the concerned Department/Ministry with the approval of the Minister in charge of the Department/Ministry. But in this case the recommendations of the Third CPC had been accepted with the approval of the Cabinet, which in letter and spirit meant that all those born in a month should retire on the last day of that month. But it is felt that the Under Secretary of the Department at the time while clarifying, went by the letter of the recommendations of the Commission ignoring the spirit behind the recommendations and thereby contradicting the decision of the Government taken with the approval of the Cabinet. On the basis of the wrong clarification by the Under Secretary, Department of Personnel, theFinance Ministry issued the notification amending the FR.56, also adding the Proviso regarding the 1st Jan. born employees, without the Cabinet’s approval. It would be very relevant to mention here that based on the recommendation of the sixth CPC the Government with the approval of the Cabinet decided to give enhanced pension to those who attained the age of 80 years etc. If we go by the letter and not the spirit of the decision, only those who were born on the Ist of a month would get enhanced pension from the month of their birth where as the decision of the Government is that every employee would get enhanced pension from the month in which his date of birth falls. In other words all those born on either the Ist or the 30th/31st would get the pension from that month itself. Not only the hardship being faced by those born on the Ist January, 1946 was recognized by top level officers when such a case was brought to the notice of the Secretary, Department of Chemicals and Petro-chemicals, who discussed the matter with the Secretary, Department of Expenditure, who assured the former to give the same a sympathetic look. Thereafter, the former suggested a solution to the hardship.

5. As regards the logic behind the later stipulation by the Finance Ministry regarding the first January born employees attaining their age of superannuation only on the preceding day, it is pointed out that this discriminates very severely these employees alone vis-à-vis other employees, who all have been benefited, including those born on 1st Feb. 1st March upto December.

6. In view of what has been stated above and in view of the representations on these lines already submitted to DOPT, DOP&AR and DOE, we pray to Hon’ble MOS to kindly help restore justice to these unfortunate employees, who despite their exemplary performance during service days and for absolutely no fault of theirs, have been denied the Pay Commission benefits on mere technical grounds and despite clear recommendation from the Central Pay Commission and acceptance of it with the Cabinet’s approval by the then Government in letter and spirit.

7. It is also mentioned that implementation of the said Third CPC Recommendation, if applied in its spirit, by notionally extending the services of the first of the month-born employees or at least of the first January-born employees to the last day of the month in which they were born like all other employees, it would be satisfying the Constitutional requirement of every Rule regulating the retirements/superannuations of employees, especially a fundamental rule like amendment to FR.56(a) now being agitated against, that these Rules should be uniform, common, universal in applicability to all the employees without any exception. It is pointed out that while earlier the Rules of regulation in this regard were uniform and universal, the present one is not, because of the deviation resorted to by the introduction of the said Proviso. It would be appreciated that this can be done by deleting the Proviso introduced from 5-4-1975 to FR.56(a) without the approval of the Cabinet.

miqal
04-10-2013, 12:37 AM
A person born on 02.01.1946 completes 60 years on 01.01.2006 so he retires on the last day of that month e.i. 31st of January, 2006. Similarly a person born on 01.01.1946 completes 60 years on 31.12.2005 so he retires on the last day of the month e.i. 31st of December, 2005. Where is the discrimination/deprivation injustice, can anybody explain me please.

Gopal Krishan
05-10-2013, 12:35 PM
I hope you must have gone through the other thread in respect of would be pensioners with the date of birth as the Ist January, 1956. Kindly also go through my post No. 62 in this thread specifically with reference to enhanced pension being allowed to senior pensioners at 80 years etc based on the recommendation of the 6th CPC.
Gopal Krishan

RKPATHAK
06-10-2013, 01:09 PM
You need not to worry. Atleast there is some cut off date and someone has to suffer. Yehi to hai zindagi

Gopal Krishan
06-10-2013, 05:10 PM
It appears that Shri Pathak is back to his post at 32. Thereafter there has been lot of developments/changes in the situation.
Gopal Krishan

vnatarajan
06-10-2013, 08:42 PM
Dear Shri GK ji,

With the most mature and exceptionally resounding inputs from veteran Shri KSS ji and supportive points made out by Shri Sundarar, and over and above your deep involvement has brought new dimension to this RARE BUT IMPORTANT injustice issue and you don't require my approvals or any such thing- YOU MUST GO AHEAD AS WE ARE ALL DOING A SERVICE TO THE LOT WHO HAVE LOST A "GOOD AMOUNT OF BENEFITS' for the most pervert interpretation and imposition of Rules in thi regard!

PL GO AHEAD - ALL OUR BLESSING AND BEST WISHES ARE WITH YOU.
SUCCESS MUST PROVE THAT SENSE OF JUSTICE PREVAILS STILL IN ADMINISTRATION.

Many people do not appreciate that the CUT OFF DATE WRT PAY-PENSION REVISIONS HAPPENING ONCE IN A DECADE OR SO PURELY FOR SWITHCHING OVER FROM OLD FORMULATION TO THE NEW IS NOT RELATED TO OTHER ROUTINE AND FREQUENT AND ARTIFICAL/ DYNAMIC/ SWITH OVER DATES FOR PREPONING AND POST-PONING THE INCREMENT/ RETIREMENT CALENDERS!

THIS PARTITION SEPARATING THE FIRST DAY BRON FROM THE REST BORN FROM SECOND DAY TO THE LAST DAY OF THE SAME MONTH HAS BECOME AN ARTIFICAL/ UNJUSTLY IMPOSED CUT-OFF DATUM WHICH IS BEING SUPER-POSED ON THE CPC RELATED SWITCH-OVER DATUM AND THUS DENYING THE ONE-TIME BENFITS OF RETIRAL BENEFITS FOR THOSE BORN ON 1 1 1946/ AS WELL IN CASES SIMILAR CASES EARLIER LOT IN 38/28 ,.

THIS MAY HAPPEN TO THOSE WITH DOB 1 1 1956 AFTER 7TH CPC OUTCOME.

Your efforts will certainly bring the element of justice in true perspective and shall result in a dcent outcome soon......

Affected are few. Financial consideration is miniscule. Does not encroach on the rights of other pensioners.

Best wishes/ luck,

Regards,

vnatarajan

kssitaraman
07-10-2013, 12:47 PM
Respected Sir,

All efforts put in by Shri GK’s co-pensioners like me to help him out in his strange but true case have so far failed, because of a lack of any reaction from administration side. So Shri G.K. would continue to seek your guidance in this situation and we would request you to continue the guidance, especially when he belongs to Administrative cadre.

Your experience in the fight for pensioners is unmatched and your crusade will be remembered by every one of us for a long time. . You can definitely help him.

Regards,
K.S.Sitaraman

Gopal Krishan
09-10-2013, 07:06 PM
I had lodged three complaints on behalf of 1.1.1946 born pensioners to the President Secct. in July, 2013. Two of them were forwarded to the Department of Personnel and Training and one was sent to the Ministry of Home Affairs. A grievance was also lodged with the Department of Public Grievances. They had also forwarded the same to the Department of Personnel and Training. Yesterday I received an SMS stating that the same was disposed of by transferring the same to the Department of Pensions as that Department is the concerned Department. It is interesting to note that for the last more than a year it has not been possible for the Government to decide as to which Department of the Government of India would be the concerned Department in the matter. According to the Cabinet Secretariat from the very beginning the Department of Personnel was the conerned Department in such matters. Department of Expenditure are of the view that initially they were the concerned Department but later on the subject matter was transferred to the Department of Personnel and Training. However , now the Department of Personnel and Training have informed that the Department of Pensions are to process the matter further. I would also like to mention that the subject matter was discussed at the level of the Secretaries of the Department of Chemicals and Petrochemicals and the Department of Expenditure. At that time both the officers were of the view that the matter pertained to the Department of Expenditure that is why the latter assured the former that he would look into the matter sypathetically. Let us now wait for the reaction of the Department of Pension. I hope they may not take much time to arrive at a final conclusion.
Gopal Krishan

Gopal Krishan
18-01-2014, 05:53 PM
Now I have come to know that the Department of Personnel have decided to send back the papers relating to the recommendation of the Secretary DCPC to the Secretary DOE to the Department of Expenditure as suggested by me. They have taken one year to decide this. They are also of the the view that the matter relating to the relaxation of FR 56 in my individual case also relates to DOE. The general issue about 1146 born etc. is for the DOPT. I am awaiting a formal reply.
Gopal Krishan

vnatarajan
19-01-2014, 10:17 AM
Let the matter move along....let us wait for some decisions.....
vnatarajan

Gopal Krishan
21-01-2014, 05:15 PM
Thanks
With regards
GoapL Krishan

Gopal Krishan
14-02-2014, 05:03 PM
I could obtain a copy of the note from the DOPT vide which that Department examined the reference of January, 2013 received from the Department of Expenditure. In the note it has been observed that there were following issues in the representation forwarded by the DOE:-

(a) Relaxation of provision of FR 56 under FR 5-A in favour of Gopal Krishan

(b) Modification of the resolution accepting the recommendation of the 6th CPC, as per suggetion of the Secretary, DCPC made to the Secretary, DOE after the same had been discussed by the former with the latter, so that all those born on the Ist January, 1946 could be deemed to have retired on the Ist January, 2006 so that they also get the benefits of the 6th CPC.

(c) Review of the decision of the Government laying down that all those born on the Ist of a month would retire on the last day of the preceding month, as the same deprived the persons of the benefits of the 6th/5th/4th CPC, although such cases are unique and did not come under generalized category.

The Department of Personnel and Training after examining the matter, for which they took almost one year, have decided to return papers insofar as they related to (a) and (b) above. With regard to (c) above the DOPT have decided to forward the representation ot the Department of Pension in view of the contention that a different principle had been adopted in the case of enhancement of Pension at 80 years etc. The question of review of their decision has not been examined at all.

In view of the above the matter is back to square one. Department of Pension, who had forwarded the representation to the Department of Expenditure, who in turn transferred the same to the DOPT, are again saddled with the same problem. Department of Expenditure would have to procees the matters at (a) and (b) above. No clarity in the decision of the Government about the review of the decsion taken in pursuance of the recommendation of the third pay commission.
Gopal Krishan
















































































































































































































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Gopal Krishan
28-02-2014, 05:57 PM
Fortunately, I could get copies of the notes from the old file of 1973 from the DOPT. Based on the material available in those copies of the notes, I intend to submit a representation to the Secretary, DOPT. Draft of the same is given below for guidance.
To
The Secretary.
Department of Personnel and Training,
North Block,
New Delhi.

Subject: Pensioners born on the Ist January, 1946, wrongly treated to have retired on superannuation on the 31st December, 2005, which deprived them of the benefits of the 6th CPC




Prior to the appointment of the Third Central Pay Commission and during the period when (a) the Commission was functioning, (b) its recommendations were being examined, (c) a decision to accept them was taken by the Government of India in the Department of Expenditure (d) accepted recommendation was implemented and subsequently a clarification was issued with reference to the date of retirement by the Department of Personnel and Administrative Reforms in June, 1974 some statutory provisions did exist about the date of retirement. These provisions, which must be based on some rationale, logic, were being followed by the Government of India all through. Artiticle 14 of the Civil Service Regulations, which were being followed for decades implied that an officer whose date of birth was the Ist day of a month ceased to be on duty on attaining the age of superannuation on the Ist day of the relevant month in the relevant year. In other words, a person whose date of birth happened to be the Ist day of a month did not perform any duty on the first day of the relevant month with effect from which he retired on attaining the age of superannuation. Besides, the Audit instructions below FR 56 as existed then provided that when a Government servant was required to retire on attaining a specified age, the day on which he attained the age was reckoned as a non- working day and the Government servant was retired with effect from and including that day. This rule applied to all Government servants, whether civil or military. The other statutry Rule 5(2) of the Central Civil Service (Pension) Rule, 1972 read as follows:-

“The day on which a Government servant retires or is retired or is discharged on is allowed to resign from service, as the case may, shall be treated as a non-working day……..”

From the provisions of the Article14 of the CSRs, Audit instructions under FR 56 and the Pension Rules one thing is very clear that the retirement on superannuation was to take place on the forenoon of the date of birth, which was a non-working day. This could be the only intention behind the rule as date on which one attained the age of superannuation was invariably a working day.

2. Third Central Pay Commission was appointed in April, 1970. The Commission submitted its report in the year 1973. The report, besides others, included a recommendation

Gopal Krishan
28-02-2014, 05:59 PM
that with a view to simplifying accounting work in regard to the calculation of pay, allowances etc all the government servants would retire on the last day of the month in which they attain the age of superannuation.

3. This recommendation, besides others, was accepted by the Government of India in the Department of Expenditure with the approval of the Cabinet and a Resolution was issued on the Ist November, 1973.

4. Unfortunately, at that time, a wrong impression all around was that one retired on the date he attained the age of superannuation itself although, that was invariably a last working day.

5. With a view to giving effect to the accepted recommendation, the Government of India in the then Department of Personnel and Administrative Reforms issued orders in November, 1973 and May, 1974 in respect of group ‘B’, ‘C’ and ‘D’ employees and group ‘A’ officials respectively vide their orders No. 33/12/73-Ests. These orders mentioned that civilian Government servants shall retire from services or posts from the afternoon of the last day of the month in which their date of superannuation fell according to FR 56. Obviously because of the general impression all over that was to create doubts in the minds of various Ministries/Departments with reference to those with date of birth as the Ist of a month. As such they approached the Department of Personnel and Administrative Reforms with their doubts. As would be seen from the old file No. 33/12/73-ESTS(A) that with the mind set/impression, that one retired on the date he attained the age of superannuation, the matter was examined in a great hurry. It started in December, 1973 and a clarification was issued in June, 1974 stating that all those born on the Ist of a month would retire on the last day of the preceding month on attaining the age of superannuation. This was obviously contrary to the time tested Article 14 to the CSRs, Audit instructions, Rule 5(2) of Pension Rules. All this happened without going into the rationale behind the old Regulations, audit instructions etc. as the earlier papers based on which Article 14 of the CSRs. was promulgated were not available. It would be clear from the old file. All this was done after hectic consultations with the Department of Expenditure, C&AG, Department of Legal Affairs,. During the examination of the matter, a number of doubts were raised particularly by the C. and AG’s office. It was specifically pointed out by them that the clarification proposed by the then Department of Personnel and Administrative Reforms with reference to those born on the Ist of a month would (i) be contrary to the provision of the Pension Rules, 1972 and as such they should also be allowed to retire on the last day of the month; (ii) create complications in light of the provision under Rule 6(1) of the Civil Pension (Commutation)Rules and as such should also be allowed to retire on the last day of the month; and (iii) result in discrimination against those born on the Ist of a month as all others would retire on the last day of the month of their birth, whereas those born on the Ist of a month would retire on the last day of preceding month. Unfortunately, ignoring the (i) discriminatory aspect against those born on the Ist of a month (ii) existing statutory provisions, and (iii) going by the letter and not the spirit of the recommendation, instead it was decided to amend the Pension and Commutation Rules as they were coming in way to give the wrong impression a practical shape.

6. Subsequently, Ministry of Finance modified FR 56(a) vide 7(7)-EV(A)/74 dated the 7th February, 1975 providing that every government servant shall retire from service on the afternoon of the last day of the month in which he attained the age of fifty eight years. A note

Gopal Krishan
28-02-2014, 06:01 PM
bearing No. 7 was also incorporated providing that a government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of preceding month on attaining the age of fifty eight years or sixty years as the case may be. This provision took effect from the 5th April, 1975. The ‘note 7’ referred to above about retirement on the afternoon of the last day of preceding month was later incorporated in the main Rule 56(a) as a proviso. The FR was further modified to raise the age of retirement on superannuation for all in general to 60 years in May, 1998. At present the relevant FR 56(a) reads as follows:-

“F.R. 56 (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:
Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.”

7. As decided earlier the Rule 5(2) was amended to provide that

“The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. The date of death shall also be treated as a working day:

Provided that in the case of a Government servant who is retired prematurely or who retires voluntarily under Clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 or Rule 48A as the case may be, the date of retirement shall be treated as a non-working day.”

8. The amendment to Rule 5(2) of the Pension Rule 1972 effected after consultation with the Ministry of Law etc. is still not supporting the view that all those born on the Ist would retire on the last day of the preceding month and not on the Ist of the relevant month and year. The implication of the Rule is that one would be a pensioner on his last working day. Under the said Rule the day of retirement is being treated as a working day. Both cannot travel together. Either one would be in employment or would have stopped employment completely on a particular day. It would be factually incorrect to say that one is pensioner and an employee at the same time. Retirement means the point when a person stops employment completely. Attaining the age of superannuation/retirement is one thing whereas retirement/superannuation, as such, is another. All those born on the 2nd onwards in a month would attain the age of superannuation/retirement a day before their date of birth and allowing them to retire on the last day of the month instead of on their birthday would not create any problem. As such retirement or superannuation would be on the day following the last working day, as in the case of voluntary retirement, where the date of retirement is treated as a non-working day.

9. It would also be relevant to mention here that the recommendations of the CPC in general were accepted by the Government of India with the approval of the Cabinet. There was neither any separate recommendation nor a decision with reference to all those born on the Ist of a month. As such decision to bifurcate a homogenous group (based on the month of birth) – one those born on the Ist of a month and the other those born on the 2nd onwards of the same month - would not stand judicial scrutiny particularly in view of the fact that the recommendations of 6th CPC including that about the enhancement of pension at the age of 80 years etc. were accepted by the Government with the approval of the Cabinet. Here also the recommendation and the decision was in general terms and not with reference to the date of birth. However, subsequently the Department of Pension, which is a part of the Ministry of Personnel etc. decided not to bifurcate the homogenous group based on the month of birth and going by the letter and spirit decided to give the benefit from

Gopal Krishan
28-02-2014, 06:03 PM
taking such a decision the Department of Pension felt that for the sake of convenience it would be desirable that the additional quantum of pension may be made admissible from the Ist day of the month in which the date of birth of the pensioners fell. The objective in both the cases – 3rd CPC and 6th CPC- was the same,i.e. simplifying accounting work.

10 In an RTI matter, which came for hearing before Shri A.N. Tiwari,( former Secretary, Department of Personnel and Training), and the then Information Commissioner, CIC, he accepted the plea that normally one with date of birth as the Ist January, 1946 should have retired on the Ist January, 2006 and his retirement on the 31st December, 2005 was notional (Annexure-I)

11. Separately, when a matter relating to a pensioner born on the Ist January, 1946 was placed before the then Secretary, Department of Chemicals and Petro-chemicals, (Shri K Jose Cyriac) he observed that such cases being hardship cases the logic of line being drawn is not entirely correct in such cases. He added that “This is a case where a line is drawn and those who are just ahead of the line by one day are being asked to join the others on the wrong side of the line, through application of a peculiar exception to the Fundamentals Rules. All those who complete 60 years of service on a day other than Ist of the month will retire at the end of the month but those who complete 60 years on the Ist of the month will retire on the previous day. This is a throwback from a decision on the 24th November, 1973 consequent to a recommendation in the 3rd CPC.” (Annexure-II) From this one thing is clear that the then Secretary(Shri K Jose Cyriac) was also of the view that (i) exception to the Fundamental Rule 56 was peculiar and (ii) all those born on the Ist would complete 60 years on the Ist of the relevant month.

12. It would thus be clear that the way in which the clarification was issued in June 1974 and got implemented by the Department of Personnel was contrary to the provision of the Article 14 of the CSRs, Audit instructions under FR 56 and the CCS (Pension) Rules, 1972 as they existed earlier and has created all round confusion with reference to the date of retirement of all those born on the Ist of a month. This confusion created lot of hardship to those born on the Ist January, 1946/1938/1928. As a result there has been a spate of court cases from the side of those born on the Ist of a month, particularly those born on the Ist January 1946/1938/1928 as they lost the benefits of the 4th/5th/6th CPCs. In number cases decisions were in their favour as the decision of the DOPT could not stand the judicial scrutiny. Now with the latest development with reference to the 6th CPC about enhancement of pension of those with 80 years etc. from the month of their birth it would be very difficult for the earlier decision to stand the judicial scrutiny. The stand taken by the then Secretaries, referred to above, may add to the difficulties of the Government in the Department of Personnel and Training to justify their decision.

13. Details of some of the cases decided in favour of the pensions are given below:

(a) In S. Benerjee v. Union of India, a definite finding is on record by their Lordships of the Supreme Court of India that when the employee has superannuated on the last date of the month, his date of retirement has to be treated as 1st date of the succeeding month. In other words if some one had attained

Gopal Krishan
28-02-2014, 06:04 PM
the age of superannuation on the last date of a month, he would be deemed to have retired on the Ist of the following month.

(b) Full Bench Decision of A.P. High Court

Principal Accountant General A.P. v. C. Subba Rao

A Government servant who would be retiring on the last day of the month would cease to be Government servant by mid-night of that day and he would acquire status of pensioner and therefore he would be entitled for all the benefits given to a pensioner with effect from first day of the succeeding month."

© Andhra High Court
Union Of India (Uoi) And Ors. vs P.S.R. Kumar Sinha And Anr.
on 8 February, 2006

The Full Bench of this Court categorically held as follows:

A Government servant who would be retiring on the last day of the month would cease to be Government servant by mid-night of that day and he would acquire status of pensioner and therefore he would be entitled for all the benefits given to a pensioner with effect from first day of the succeeding month."

"In Banerjee 's case the Supreme Court laid down the law that as soon as first day of the succeeding month commenced, the petitioner retired and, therefore, he is entitled to get the benefits on the enhanced DA. The same view has been consistently followed in all subsequent decisions as well

Therefore, the dictum in Banerjee's case and the observations of the Full Bench of this Court clarifies that the Government servant who would be retiring on the last day of the month would be entitled for all the benefits given to the pensioner with effect from the first day of the succeeding month.

(d)Full Bench Mumbai CAT held as follows:

“’afternoon of 31st March’or ‘forenoon of Ist April’ means one and the same thing. A person retiring on the last day of the preceding month ceases to be borne on the establishment with effect from beginning of first day of the succeeding month and he would not be entitled for pay of any emoluments as soon as first day of the succeeding month commences, i.e., after 12.00 clock in the night.
From the midnight of the day of the superannuation, a Government servant becomes pensioner and all the benefits given by the Government with effect from the first day of month after retirement, assuming that such benefits is given – would be entitled for all the benefits.”

Gopal Krishan
28-02-2014, 06:06 PM
14. As such there is every justification for the Department of Personnel and Training to revisit the decision taken in June 1974 so that the matter is clarified in line with the provision of Art 14 of the CSRs etc. and various courts judgements, so that the confusion created earlier is removed and particularly those born on the Ist Junary, 1946 given the benefits of the 6th CPC,treating them to have attained the age of superannuation on the 31st December, 2005 but retired/superannuated on the Ist January, 2006 making them eligible for all the benefits given bythe Government with effect from the first. This would be, to some extent, in line with the decision relating to enhancement of pension at 80 years etc., taken by the Department of Pension, which is a part of the same Ministry of which Department of Personnel and Training is also a part.



Yours faithfully,









(GOPAL KRISHAN)

Former staff side member of the Departmental Council of the

Department of Personnel and Training

51, Subhavana Niketan, Pitam Pura,

DELHI-110034

9911178250/9899790552

[email protected] ([email protected]) 27015373

Gopal Krishan
25-09-2014, 02:03 PM
According to recent replies received from the Department of Expenditure and DOPT the matter is under examination.
GOPAL Krishan

vnatarajan
02-10-2014, 07:43 PM
Hope for the best Shri GK...
Yes. Some reasoning may dawn.

vnatarajan

Gopal Krishan
29-11-2014, 08:45 PM
Thank U Sir. The matter is still under examination in DOPT.
Gopal Krishan

Gopal Krishan
26-01-2015, 05:22 PM
The matter is still under examination in DOPT. In the meantime the Bharat Pensioners Samaj have passed a resolution. In support of the same I intend to submit the following to the Secretary DOPT. I seek comments, if any.
This is in continuation of my earlier representation dated the 2nd April, 2014 on the subject cited above. I am forwarding herewith a copy of the resolution passed (Annexure-I) during the AGM of Bharat Pensjoners Samaj, New Delhi (Annexure-II). Following facts also justify the request contained in the resolution:

(i) prior to the issue of the controversial orders in June, 1974, based on the recommendation of the 3rd CPC, by DOPT laying down that all those born on the Ist of a month would retire on the afternoon of the last day of the preceding month, Article 14 of the Civil Service Regulations, which were being followed for decades provided that an officer whose date of birth was the Ist day of a month ceased to be on duty on attaining the age of superannuation, i.e., °
on his 61st birthday. Besides, the AUDIT INSTRUCTIONS below FR 56 as existed then had similar provision. This rule applied to all Government servants, whether civil or military.
(ii) prior to June, 1974, the other statutory Rule 5(2) of the Central Civil Service (Pension) Rule, 1972
framed under Article 309 of the Constitution of India also provided that "The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as a non-working day.
(iii) according to Rule 83(1) of the Pension Rules, 1972 framed under the Article 309 of the Constitution of India, as existed prior to June, 1974 also provided that pension becomes payable from the date on which Government servant ceases to be born on the establishment.
(iv) even at present Leave Preparatory to retirement has to be till the date one attains the age of
superannuation. In other words even at present according to the Rules/instructions one retires on superannuation on the date of birth of the relevant year and pension is payable from that date.
(v) according to the Halsbury's Law of England "In computing a period of time, at any rate, when
counted in years or months, no regard is generally paid to fractions of a day, in the sense that the period is regarded as complete although it is short to the extent of fraction of a day .
Similarly, in calculating a person's age, the day of his birth counts as a whole day; and he attains a specified age on the day next before the anniversary of his birth day."
(vi) neither the recommendation of 3rd CPC nor the resolution by the DOE accepting the recommendation of the 3rd CPC nor the orders issued by the DOPT in 1973/1974 implementing the accepted recommendation of the CPC had mentioned anything about the date of retirement of those born on the Ist of a month. What was recommended was "that the retirement of Government employees should take effect from the afternoon of the last day of month in which the employee concerned attains the age of superannuation instead of the afternoon of the actual date of his superannuation." At that time under the existing Regulation/Rules actual date of retirement on attaining the age of superannuation used to be the Ist of the relevant month in respect of those born on the Ist of a month as stated above.

As such, in the light of the then existing rules/instructions, the recommendation meant that all those born in a particular month should be treated to have attained the age of superannuation on the last day of that month. But wrongly the 3rd CPC’s understanding of the then existing situation was one in which the retirement took place in the afternoon of the date on which one attained the age of superannuation. Unfortunately, the DOPT took a decision to go by the recommendation ignoring (i) the fact that the same was based on wrong understanding and (ii) the contention of the C and AG that date of superannuation is the forenoon of the birth day instead of the afternoon of the previous day. (marginally recorded note on p. 25/N of file No. 33/12/73-Ests(A) refers)

(vii) the DOPT without weighing the pros and cons of the earlier regulations/rules/practice referred to above, issued orders in June, 1974, which being contrary to the statutory Rules as existed then, were ab-initio void, (B.N. Nagarajan vs. State of Karnataka,reported in AIR 1979 SC 1676, wherein in para 5 the Court held that when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible under exercise of the executive powers of the Government in contravention of the rules). In the case Punjab State Warehousing Corpn .. Chandigarh vs. Manmohan Singh & Anr.,reported in (2007) 9 SCC 337, the Court answered the question whether any statutory rule could be modified or altered by an executive instruction far less by way of a circular letter.

(viii) while processing the matter based on the recommendation of the Third CPC, a number of doubts were raised with reference to the proposed OM particularly by the C. and AG's office. It was specifically pointed out by them that the clarification proposed by the then Department of Personnel and Administrative Reforms with reference to those born on the Ist of a month would (i) be contrary to the provision of the Statutory Rule 5(2) of the Pension Rules, 1972 (ii) create complications in the light of the provision under Rule 6(1) of the Civil Pension (Commutation)Rules and (iii) result in discrimination against those born on the 1st of a month as all others would retire on the last day of the month of their birth, whereas those born on the 1st of a month would retire on the last day of preceding month. As such, office of the C&AG was of the view that all those born on the first of a month should also be allowed to retire on the last day of the month.

(ix) the (i) discriminatory aspect against those born on the Ist of a month (ii) the then existing statutory provisions, were ignored and just going by the letter and not the spirit of the recommendation, it was decided to amend the Statutory Pension and Commutation Rules, provisions of which were standing in the way of the proposed OM. Pending amendment to the Rules, the OM in question was issued in June, 1974 in a hurry, which meant putting a cart before the horse.
(x) subsequently, after issue of the OM in June, 1974 by the DOPT, another Department of Ministry of Finance, based on the ab initio void OM, modified FR 56(a) vide 7(7)-EV(A)/74 dated the 7thFebruary, 1975 , providing, inter alia, that a government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of preceding month on attaining the age of fifty eight years or sixty years as the case may be. This provision took effect from the 5th April, 1975. The DOE exercised the powers not available to them under the Allocation of Business Rules
(xi) this partisan separating of the new year day born from the rest, born from second day to the last day of the same month has become an ARTIFICIAL/lJNJUSTLY IMPOSED CUT-OFF DATUM WHICH IS BEING SUPEIMPOSED UN THE CPC RELATED SWITCH-OVER DATUM AND THUS DENYING THE ONE-TIME once in a decade RETIRAL BENFITS FOR THOSE BORN ON 1.1.1946, AS WELL IN SIMILAR CASES - of EARLIER LOT IN 38/28 •
(xii ) the objective behind the 3rd CPC recommendation about retirement on the last day of the month and the decision after the recommendation of the 6th CPC about additional quantum of Pension at 80 years etc. being the same, DOPT put those born on the Ist of a month on different pedestal as compared to those born on the 2nd onwards, where as the DOPPW being Department of the same Ministry treated all those born in a month equally as a homogenous group and extended the benefit from the month of their birth irrespective of the fact whether one attained the age of 80 years etc on the 30th/31 st of the month.
(xiii) there was lack of clarity in rules as highlighted by the Hon'ble High Court of Kerala (OP 32459/2{)01) and had ruled -
So, the rule regarding persons who retired on 31.12.1995 and became pensioners with effects from 1.1.96 is vague. The framers of the Rule did not envisage the case of the persons like the petitioner, who were superannuated on 31.12.95, but became pensioners only with effect from 1.1.96. In view of the above lack of clarity in the Rules, the view taken by the Tribunal cannot be said to be illegal or perverse. A plausible view has been taken by the Tribunal. We notice that no serious prejudice is also caused to the writ petitioners For all the above reasons, we decline to interfere with the order passed by the Tribunal and the O.P. is dismissed.
(xiv) in an RTI matter, which came up for hearing before Shri A.N. Tiwari, ( former Secretary, DOPT), the then Information Commissioner, CIC, accepted the plea that one with date of birth as the Ist January, 1946 should have retired on the Ist January. 2006 and his retirement on the 31 st December, 2005 was notional,
(xv) the then Secretary, Department of Chemicals and Petro-chemicals, (Shri K Jose
Cyriac, subsequently the Chief Secretary, Kerala) observed that such cases being hardship cases the logic of line being drawn is not entirely correct in such cases. He added that "This is a case where a line is drawn and those who are just ahead of the line by one day are being asked to join the others on the wrong side of the line, through application of a peculiar exception to the Fundamentals Rules. All those who complete 60 years of service on a day other than Ist of the month will retire at the end of the month but those who complete 60 years on the Ist of the month will retire on the previous day. This is a throwback from a decision on the 24th November, 1973 consequent to a recommendation in the 3rd CPC.

THE SECOND PART OF (vi) IS THE BASIC CAUSE OF ALL THE PROBLEMS

Gopal Krishan
26-01-2015, 05:24 PM
(xvi) in S. Benerjee v. Union of India,24.1 0.1989) a definite finding is on record by their Lordships of the Supreme Court of India that when the employee has superannuated on the last date of the month, his date of retirement has to be treated as 1st date of the succeeding month. In other words if some one had attained the age of superannuation on the last date of a month, he
would be deemed to have retired only on the Ist of the following month. The judgement of the Supreme Court has many distinguishing features. Most important is that the case pertained to conferment of the once-in-ten-years benefit of the Fourth CPC. In terms of once-in-ten-years benefit these cases are also similar.
(xvii) Full Bench Mumbai CAT in Venkatram Rajagopalan Vrs UOI held
that '''after noon of 31st March' or 'forenoon of Ist April' means one and the same thing. A person ....retiring on the last day of the preceding month ceases to be borne on the establishment with effect from beginning of first day of the succeeding month and he would not be entitled for pay or any emoluments as soon as first day of the succeeding month commences, i.e., after 12.00 clock in the night. From the midnight of the day of the superannuation, a Government servant becomes pensioner and all the benefits given by the Government with effect from the first day of month after retirement, assuming that such benefits is given - would be entitled for all the benefits."
(xviii) Full Bench of A.P. High Court in Principal Accountant General A.P. vs. C. Subba
Rao case held that a Government servant who would be retiring on the last day of the month would cease to be Government servant by mid-night of that day and he would acquire status of pensioner and therefore he would be entitled for all the benefits given with effect from first day of the succeeding month."
(xix) Andhra High Court in Union Of India And Ors. vs P.S.R. Kumar Sinha had observed that therefore, the dictum in Banerjee's case and the observations of the Full Bench of
this Court clarifies that the Government servant who would be retiring on the last day of the month would be entitled for all the benefits given to the pensioner with effect from the first day of the succeeding month.
(xx) affected are few and Financial consideration is miniscule. Does not encroach on the
rights of other pensioners. In any case this a matter of justice.
(xxi) RULES ARE MADE FOR GENERAL CASES- Framer of Rules CAN NOT FORESEE
EXCEPTIONS/ RARE CASES.
(xxii ) The aggrieved were not a pensioners on the 31 st December they were in
service on that day and got pay and allowances for that date. If one is treated to have retired or become pensioner on the 31st December, the net result would be that he would be treated to have attained the age of superannuation on the 30th of December, i.e., a day before his retirement.
(xxiii) all those born on the Ist became pensioners from 61st birthday and at the same time, others born between 2nd and last day of that particular month are allowed to continue in service even after attaining 61 st birthday and get retired on 1st of the next month from which the pension becomes payable.

(xxiv)) it is settled position of law by a catena of judgments of the Hon'ble Apex Court
and other Courts that the Government servant who would be retiring on the last day of the month, specifically those with date of birth as the 1st of a month, would be entitled for all the benefits, particularly once-in-ten-years, given to the pensioner with effect from the first day of the succeeding month.

(xxv) acceptance of the suggestion of the Samaj would not only be just and fair but would reduce number of representations and financial burden on GOI because of various court casess.

Gopal Krishan
02-09-2015, 06:07 PM
For further developments see thread 'injustice to 1928/1938/1946 born pensioners'.
Gopal Krishan

Gopal Krishan
07-07-2016, 04:54 PM
For the latest position kindly see the thread titled 'retiring of employees born on the Ist Jan. 1928/1938/1946/1956 by various Ministries/Departments ............'
Gopal Krishan
9911178250