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Thread: Discrimination in fixation of pension for pre2006 pensioners-deprival of full pension

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    Junior Member jdvsrrao is on a distinguished road
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    Default Discrimination in fixation of pension for pre2006 pensioners-deprival of full pension

    6th PC recommended full pension for the retirees with 20 & above years of service and Govt issued orders to extend the benefit for the post 2006 retirees, where as the pre 2006 retirees are deprived of this benefit. This shows clear discriminatory treatment between two living pensioners of pre/post 2006. Is it not violation of Article 14 of our constitution? This benefit can be extended to the small group of pre 2006 pensioners and it really does not cause much impact on the finance of the Govt? Why the Govt show stepmotherly treatment to pre 2006 pensioners? This issue need to be taken up with the Govt. seriously.
    Last edited by jdvsrrao; 06-07-2011 at 06:58 PM.

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    Member kssitaraman is on a distinguished road
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    An Analytical Report and Plea on behalf of aggrieved past (Ore-1/1/2006) pensioners, which is self-explanatory, is attached for information of the aggrieved pensioners.
    Attached Files

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    Junior Member jdvsrrao is on a distinguished road
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    Thanks Mr Sitaraman for your nice report and plea on behalf of the pre2006 pensioners. This analytical report of yours bring hopes of redressal to their cause over short period of time. If Govt is sensitive, it should immediately act positively by removing the discrimination, without calling upon for any judicial intervention

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    Member kssitaraman is on a distinguished road
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    Quote Originally Posted by jdvsrrao View Post
    Thanks Mr Sitaraman for your nice report and plea on behalf of the pre2006 pensioners. This analytical report of yours bring hopes of redressal to their cause over short period of time. If Govt is sensitive, it should immediately act positively by removing the discrimination, without calling upon for any judicial intervention
    Well, the Government has been quite sensitive to the several representations received from the Post-2006 pensioners and has been kind enough to extend them the benefit. Can this be taken as justice half-done?

    Similarly, in response to the several strong and fervent appeals from Pre-2006 pensioners already lodged with the Government, let us hope that the Government will be gracious enough to further extend the benefit to these past pensioners also so as to fully meet the demands of justice.

    K.S.Sitaraman.

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    Senior Member Gopal Krishan is on a distinguished road
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    We have to keep in mind the pensioners whose date of birth is the Ist January, 1946 and as a result retired on the 31st December, 2005 making them pre-2006 pensioners, depriving them all the benefits of the 6th Pay Commission.

    Gopal Krishan

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    Senior Member Gopal Krishan is on a distinguished road
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    Quote Originally Posted by Gopal Krishan View Post
    We have to keep in mind the pensioners whose date of birth is the Ist January, 1946 and as a result retired on the 31st December, 2005 making them pre-2006 pensioners, depriving them all the benefits of the 6th Pay Commission.

    Gopal Krishan
    All those whose date of birth is 1.1.1946 would have retired on the 31st December, 2005 under Fundamental Rule 56. FR 5A provides that if any of the FRs operates harshly to any one the same can be relaxed by the administrative Ministry/Department with the concurrence of the Ministry of Finance. As the FR 56 in such cases operates harshly as the affected persons were deprived of the benefits of the 6th Pay commission, there is a case for relaxatrion of FR 56 in such cases only where date of birth is the Ist January, 1946.

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    Junior Member mvjogarao is on a distinguished road
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    For gconnect

    It is unfortunate that Govt. have denied the benefit of Full Pension for less than 33 years service to pre 1-1-2006 pensioners. Shri Mohan Singh’s (NPCL Pensioners)representation which was rejected as under, is one example :


    “ Linkage of full pension with 33 years of qualifying service has been dispensed wef 1-1-2006 wrt DP & PW OM dtd. 10-12-2009 & shall be applicable to those retired on or after that date. Since you have retired from service wef 31-12-1997 the said order is not applicable in your case & DAE is not in position to revise your pension.
    (Sd) Deepa Anand, US to GOI. “. (Pensioners Counsellor, Sept,2011, p.344)
    The Govt. have thus been highly unsympathetic to old pensioners. The axiom that “ any rule should be interpreted to the benefit of the employee as far as possible “ has been totally ignored.


    In this context, I wish to place the following in this thread -


    VI CPC have granted 20%, 30% etc., additional pension respectively at the ages of 80, 85, etc. to pensioners which was accepted by the Govt effective from 1-1-2006.


    A pensioner who had completed 80 Years say on 1-10-2004 will become eligible for 20% additional pension only from 1-1-2006 and not from 1-10-2004.


    Similarly, a pensioner who had completed 85 years of age say on 1- 6 -2005 will probably be given 30% with effect from 1-1-2006. He may not get from 1-6-2005 and also the 20% for the years from 80 to 85.
    Thus, they may not get retrospectively from the dates of their completion of 80 Years etc., i.e., 20 % at 80 and 30% at 85 from the dates of attaining the respective ages but they are given whatever is due wef 1-1-2006. In other words, it is not that pensioners are denied Additional Pension simply because they had completed 80 or 85 years of age, as the case may be, prior to 1-1-2006 by saying those completing 80 years etc., after 1-1-2006 are only eligible.


    Can somebody confirm the above by citing examples. pensioners who come under this category may themselves come forward to confirm.


    If the above contention is correct, why the same rule is not applied to sanction Full pension for less than 33 years service to the pre 1-1-2006 pensioners effective from 1-1-2006 w/o any claim for arrears for the period prior to that date ? By analogy, full pension should be sanctioned from 1-1-2006 to all pre 1-1-2006 pensioners also who were drawing pro-rata pension earlier irrespective of their dates of retirement. Denial of this is highly unjustified
    Readers may given their opinion.
    S

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    Senior Member sundarar is on a distinguished road
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    For kind information of the Readers, a very recent Judgment dated 23.1.2012 in O.A. No.747/2011 at CAT, Ernakulam may please be referred.

    As per the above verdict, there shall be no proportionate reduction in minimum revised pension based on <33 years qualifying service rendered. In the instant case, both minimum of the pay in the pay band and minimum of the pay band are one and same, viz. Rs.15600. If a pre-2006 pensioner had rendered 20 years qualifying service, he is entitled for full minimum revised pension.
    For kind information.

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    Member kssitaraman is on a distinguished road
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    Dear Sri Jogarao

    Ref: Your Post 87 above – Sixth CPC Recommendations - Additional pension payable to old pensioners in age groups of 80, 85, 90 etc.

    The Sixth CPC’s Recommendations and their implementations were given effect to from 1/1/2006.

    In my opinion, the different percentages of additional pension granted to pensioners in age groups of 80, 85, 90, 95 &100 years are payable from 1/1/2006. Pensioners in the said age groups would have drawn the additional pension that they were entitled to according to their age on that date. There is perhaps no question of payment of the additional pension for the earlier periods in case of pensioners in age groups of 85, 90 and beyond, since this has not been specifically mentioned in the Recommendation or the Government’s orders.

    This is my personal view and is open for correction by any evidence of a pensioner in age group of 85 or 90 or 95 etc receiving full payment..

    Regards,
    K.S.Sitaraman.

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    Senior Member Gopal Krishan is on a distinguished road
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    Respected Shri Sitaraman,
    According to the instruction additional pension/family pension would be paid to the pensioners from the month in which one attains the age of 80 years etc. For example, if one is born on the Ist January, 1946, he would get additional pension from the month of January, 2026. Similarly, all those who were born on the 2nd January, onwards in the month of January, 1946, would also get from the same month although they would have got pay and allowances for January, 2006, as their retirement would have been on the 31st January, 2006 as against 31st December, 2005 of those whose date of birth was 1.1.1946. Those unfortunate fellows would have not got pay and allowances for the month of January, 2006.
    With regards,

  11. #11
    Junior Member mvjogarao is on a distinguished road
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    Quote Originally Posted by sundarar View Post
    For kind information of the Readers, a very recent Judgment dated 23.1.2012 in O.A. No.747/2011 at CAT, Ernakulam may please be referred.

    As per the above verdict, there shall be no proportionate reduction in minimum revised pension based on <33 years qualifying service rendered. In the instant case, both minimum of the pay in the pay band and minimum of the pay band are one and same, viz. Rs.15600. If a pre-2006 pensioner had rendered 20 years qualifying service, he is entitled for full minimum revised pension.
    For kind information.

    I thank Mr. Sunderar for the information. However, I have two doubts for clarification
    It is said “ both minimum of the pay in the pay band and minimum of the pay band are one and same,”I am of the opinion that taking for example S-21 Scale which was kept in PB-3 that “ the Minimum of the Pay Band means Rs.15600 ( + GP 7600) and minimum of the pay in the Pay Band is Rs.29920 which is the Minimum Revised Pay in the Pay Band as per fitment table for S-21 “.As regards full pension for less thanb 33 years,
    I am still getting only pro rata pension. If any Govt order on the subject is there, subsequent to the above cited judgment, the same may please be informed. Shri Pratap Narain and others have also gone to CAT on the subject –Case OA No. 1165/2011 – and the case is still going on. Next posting date is 11-7-2012. Perhaps this information will be very useful to them M.V.Joga Rao

  12. #12
    Member kssitaraman is on a distinguished road
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    Dear Sri Gopal Krishan,

    Ref: Your Post 10 of yesterday above.

    Yes, you have precisely put the current state of affairs as it is.

    As you say, the additional old age pension is paid on 1st of the month in which a pensioner attains the age of 80, 85 years etc., which can be 1st of January. As a matter of fact the normal pension is also paid from the forenoon of 1st of a month after his retirement the previous AN, which can also be 1st January. The revised pension as per the VI CPC Recommendations have also been paid from 1st January 2006.

    As you know, while retirement dates are governed by the Fundamental Rules, with which the Courts have not chosen to interfere so far, the revised pensions as per Pay Commission’s Recos have been fixed from a cut off date and probably the additional pensions for old age pensioners, which were also recommended by the Pay Commission are paid from a date fixed under Government’s discretionary powers.

    In my view, which is liable for correction, the only recourse available to you for redressal of your particular grievance is to pursue further your request for relaxation of the FR in your favour. In the long history of the working of the Pension Department, there ought to be some cases, where relaxations had been given to favour the pensioners. While saying so, I would also like to advise due caution, as I feel that relaxation cannot be claimed as a matter of right.

    I take this opportunity to bring to your notice that even the Constitution Bench of the Supreme Court in 1982 disposing of the famous Nakara case had chosen not to cross the Lakshman rekha. I invite your reference to the second Quote in my posting No.6 in the thread “Relaxation of FR.56….” I quote once again a line from the judgment:

    Quote: “A 48 hours difference in matter of retirement would have a traumatic effect.” End of Quote.

    It mentions ‘48’ hours and not 24 hours. Obviously the Bench took cognisance of the Rule which was in vogue at the time and which must have already had the proviso regarding a Government servant with date of birth as the first of January. (The retirement age was increased from 55 to 58 years as per the Recommendation of the II CPC wef 1/12/1962 and the FR must have been amended at this time and was in vogue at the time of the said judgment. The FR was subsequently amended again in May 1998 after V CPC’s Recommendation increasing again the retirement age from 58 to 60 years and this Rule is current.) Again I am open for correction please.

    Wishing you all the best and wish your perseverance will get you the desired results.

    Regards,
    K.S.Sitaraman.

  13. #13
    Senior Member Gopal Krishan is on a distinguished road
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    Respected Sitaraman Sahib,
    I entirely agree with you that one cannot seek relaxation of any rule as a matter of right. But in the cases of my type, wherein the date of birth is the Ist January, 1946 and where the administrative Ministry /Department had opined/decided to relax the rule, the Ministry of Finance cannot arbitrarily withhold concurrence to the opinion/decision of the administrative Ministry/Department. In fact, in a communication sent to my administrative Department the Ministry of Finance, had categorically satated that " the onus of proving that hardwship has occurred in respect of any person by the operation of the provisions of the Funadmental Rules lies upon individual Ministries/Departments of the Government of India who are required to very specifically state reasons in writing, as to why they consider it appropriate that the operation of a particular Fundamental Rule should be relaxed." A bout the other point relating to the pension being effective from the Ist of a month, it appears that I could not communicate my view point properly to you. What I meant was that based on the recommendations of the 6th CPC the Government decided that one would be eligible for additional pension from the month in which one's date of birth falls. In other words all those born in January 1946, whether Ist of 31st would start getting pension from the month of January, itself, of course, the pension would be paid on the Ist February of the year in which one becadme eligible for additional pension. Here, I would like to emphasise the point that all those born on the 2nd to 31st of January, would have got pay and allowances for January when they retire, whereas the fellows having Ist January, 1946 as their date of birth would have retired on the 31st December, 2005, without pay and allowances for January, 2006. To that extent it is discriminiatory.
    With regards,

  14. #14
    Member kssitaraman is on a distinguished road
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    Respected Sir,

    Yes, I had always thought that you needed to seek relaxation of the FR as it has come as an impediment in your case. I find that you had already gone about this approach through your Administrative Department and that good progress has already been made. It is heartening to note that the Admn. Dept had also opined/decided to relax the rule. It is true that if Finance withholds its concurrence for any reason, it will not be the end of the matter but that the matter is only to be treated as still open and pending concurrence from Finance. A fresh attempt can always be made with stronger justification and additional inputs capable of satisfying the Finance.

    The other day you had written that the Finance Dept wanted to know in a RTI matter the number of 1/1/1946-born pensioners and that the IC ruled to get the information from all the Ministries/Departments. As this had proved a futile exercise, can the Administrative Department while making the fresh approach to Finance, assure them that at yours and at higher levels the number of this type of pensioners would be only quite negligible while there may be a sizable number at lower levels, the expenditure on whose account may not be worrysome? I infer that the Finance is worried that there would be prospects of a number of claims from other 1/1/1956 born pensioners, citing yours as a precedent, in the event it is now sanctioned as a special case.

    As regards the ‘hardship’ issue raised by the Finance, is the Admn. Dept. prepared to take the onus upon themselves to prove that hardship has occurred in your case? The Government has been remarkably quite consistent right from I CPC days in adhering to the FR in the matter of retirements including your case. (One would have wished that they had been half as consistent in the major issues confronting now the Pre-2006 pensioners). For example, take the amended FR after V CPC Recos where the OM says - “shall now retire from service on the afternoon of the last day of the month in which he/she attains the age of 60 years. However Govt. servants 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 60 years. …”. It is clear that retirements have never been fixed on any one’s birth day. An employee whose birth day was on 2nd of a month was retired on the last day of the month as per this OM, since his notional retirement as per the FR was on the 1st of the same month.

    In my opinion, the above order and also the order regarding payment of the additional old age pension (which is factually a percentage of the basic pension) can be shown for reference in your appeal for grant of pension at post-2006 scale wef 1/1/2006 as a special case with a strong justification and special inputs to satisfy the Finance as suggested in first paragraph above, through the Administrative Department.

    Wishing all the best.

    Best regards.
    kssitaraman

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    Member kssitaraman is on a distinguished road
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    Respected Sir,

    The date '1/1/1956' appearing in Para 2 of my above write up may be corrected as ‘1/1/1946’.

    The clause “since his notional retirement as per the FR was on the 1st of the same month” appearing in the last sentence of the penultimate para, was included out of my own inference and was not taken from the O.M./amended FR or any other official document. Since the employee whose birth day was on the 2nd of the month was retired on the last day of the month as per the OM (and amended FR), the clause referred to above may be DELETED.

    With this deletion, perhaps, can this particular O.M. and the amended FR serve as a reference for challenging with force the stipulation in this O.M./amended FR regarding an employee whose birth day is the 1st day of the month? I leave this to your own judgment and conclusion after consultation with experts.

    Sorry for inconvenience.

    Regards,
    kssitaraman

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    Senior Member Gopal Krishan is on a distinguished road
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    Respected Sir,
    Thanks a lot. In fact I am proceeding on the same lines.

    With regards,

  17. #17
    Member kssitaraman is on a distinguished road
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    Respected Sir,

    In contn.of my earlier communications, I give below a few more points for your consideration: -

    The main part of the latest amendment to the Fundamental Rules issued in May 1998 reads as under:-

    (Quote): In exercise of the powers conferred by the proviso to Art. 309 and clause (5) of Art. 148 of the Constitution, the President hereby makes the following rules, namely –

    1. These rules may be called the Fundamental (Amendment) Rules, 1998.
    2. They shall come into force from their date of publication in the official Gazette.
    3. In the Fundamental Rules, in Rule 56,
    (a) For clause (a), the following clause shall be substituted namely,

    (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 60 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 60 years”.
    ………………….. (End of Quote).

    The proviso, applied to a government servant whose date of birth is the first of a month in the above amended Rule, namely “shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 60 years”, in real terms, was the same as the basic and original fundamental rule (BOFR) which was in operation initially and by which all repeat all government servants (100%) were retired on the respective days on which they attained the age of retirement and their pensions paid the next day on their birth days. Presumably this basic rule is still in operation with private Companies including the Corporates in India.
    Subsequently, the Pay Commissions had increased the retirement age from 55 to 58 years in Dec. 1962 and from 58 to 60 in May 1998. While the Government issued OM and the above Notification amending the FR in May 1998 in the course of implementing the V CPC’s recommendations to increase the age from 58 to 60, the government also probably on its own included in the O.M./amended FR the welfare measure to retire every government servant on the afternoon of the last day of the month in which he attained the age of 60 years, followed by the proviso specifically applicable in regard to a government servant whose date of birth was the first of a month as mentioned above.
    Consequent on implementation of the VI CPC's Recommendations wef 1/1/2006, post 1/1/2006, this measure resulted in benefitting 99.99% of the total number of government servants, which included the government servants born on 1st of all months except January, and in denial of the retirement benefits to the remaining 0.01% or even less of the government servants for absolutely no fault of theirs, having been born on 1/1/1946. In the case of pensioners born on 1/1/1946, the pension losses were unimaginable, whereas in the case of pensioners born on 2/1/1946, the benefits were huge since this measure enabled them to retire on 31st January 2006!! (You may re-write this para acc. to your preference).

    It will be seen from the above that the BOFR already stands relaxed completely by the Government itself consequent on its issuing the above OM/amended FR as a welfare measure under its discretionary powers by which almost all the government servants benefitted barring the 1st January, 1946-born govt. servants. It is strongly believed that under the same discretionary powers the Government could have perhaps found a way-out to extend the benefits for these left-out pensioners as well.
    The reason why 1st January 1946-born pensioners, forming a very small group of about 0.01% of the total number of employees or even less, have been singled out for exclusion from benefitting off the welfare measure ordered could be – to meet some unknown administrative requirements, Audit objections and the Court intervention that happened in the past or likely to happen in the future. It is surmised that the problem could be that the government servant should have attained the age of 60 years for his retirement before the pensions can be calculated and paid.
    This is nothing but the BOFR mentioned above. In the case of 1st January 1946-born pensioners the retirement takes place on the afternoon of the last day of the preceding month in December. In the case of 2nd January 1946-born pensioners the retirement under BOFR takes place on 1/1/2006 and since this happens in the same month of January, 2006 their retirements are allowed on the last day of the month as per the OM/amended FR, bringing them huge benefits in the process. One cannot but term this singling out of 1st January 1946-born pensioners in this manner as a glaring and unprecedented type of discrimination. while ordering a welfare measure that benefitted the rest of the pensioners born in January 1946.
    The Government, while ordering this welfare measure, could have foreseen the problem and taken steps to overcome the same. Under the discretionary powers the retirements of all the pensioners have been taken to the last day of the month in which they attained the age of 60 years entailing considerable expenditure. Perhaps under the same powers a way-out could have been found in respect of the 1st January 1946 born pensioners too, one such way-out could be to notionally calculate their post-1/1/2006 pension and pay them. True, this is an extra-ordinary step but circumstances seem to favour the same and the number of thus aggrieved pensioners can be counted by hand. Depriving these unfortunate pensioners of the benefits is hardly the solution.
    I am sorry I had given material piece-meal. I am sure you can manage it, taking only the things relevant to your case and ignoring the others.
    I would request you that the Administrative Department be given all the facts of the case, including the two Court verdicts, before the Department decides to take the gauntlet thrown by Finance, so that the Dept. will be fully prepared to answer any possible queries in the future. It is expected that the Finance would give the necessary concurrence this time, as the responsibility is now that of the Administrative Dept.
    Inclusion of this subject in the ensuing NAC is a good idea and you may simultaneously take necessary steps for the same.
    Best regards,
    K.S.Sitaraman.

  18. #18
    Senior Member Gopal Krishan is on a distinguished road
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    Respected sir,

    I am grateful for the interest shown in my case and naturally similar other cases. It is a fact that this type of cases would be negligible, but unfortunatlely for them the Ministry of Finance is adament and not inclined to have one time policy to give the benefits of the pay commision. In fact during the hearing before the CIC the Information Commission had observed that the Ministry of Finance must be having policy as to what would constitue 'hardship' with reference to FR 56 under FR 5A. I had writted to them in this regard. That Ministry had forwarded my representation to my administrative Department, who in turn suggested that the policy could be framed by the Ministry of Finace to treat this type of cased where the employees are losing pay commission's benefits such cases may be treated as 'hardship' cases under FR 5A. That Ministry is yet to take a view on that. Similarly, one of my representation on the same subject was forwarded my the Minister for Sports to the Minister of Finance. Unfortunately, in a reply to theMinister of Sports that point was ignored.

    I would like to mention that the decision of the Government to retire Government employees on the last working day of the month in which they were born was taken on the basis of the recommendations of the 3rd Pay Commission to simplify the calcuation of the pension etc.

    With regards

  19. #19
    Senior Member sundarar is on a distinguished road
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    Quote Originally Posted by mvjogarao View Post
    I thank Mr. Sunderar for the information. However, I have two doubts for clarification
    It is said “ both minimum of the pay in the pay band and minimum of the pay band are one and same,”I am of the opinion that taking for example S-21 Scale which was kept in PB-3 that “ the Minimum of the Pay Band means Rs.15600 ( + GP 7600) and minimum of the pay in the Pay Band is Rs.29920 which is the Minimum Revised Pay in the Pay Band as per fitment table for S-21 “.As regards full pension for less thanb 33 years,
    I am still getting only pro rata pension. If any Govt order on the subject is there, subsequent to the above cited judgment, the same may please be informed. Shri Pratap Narain and others have also gone to CAT on the subject –Case OA No. 1165/2011 – and the case is still going on. Next posting date is 11-7-2012. Perhaps this information will be very useful to them M.V.Joga Rao
    In the CAT Ernakulam case referred to, the pensioner retired from 8000-13500 scale which falls under PB-3. Being the lowermost scale in PB-3, the minimum of the pay band and minimum of the pay in the pay band are one and same.

    For a pro-rata pensioner, according to the aforesaid Judgment, full minimum revised pension is payable irrespective of his qualifying service rendered. Whether such a minimum revised pension shall consist of 50% of MPPB or 50% of MPB apart from 50% of GP corresponding to pre-revised scale, will be decided soon by the Hon. HC Delhi in the Appeal case of DoP&PW against the CAT verdict of 1st Nov. 2011.

    Subsequent to CAT, Ernakulam Judgment we don't know further developments. However, the verdict will be supportive to the ongoing case OA 1165/2011 at CAT PR Bench filed by pensioners with less than 33 years qualifying service. The favourable judgment is expected very soon. The Next Date of hearing is 11.7.2012.

  20. #20
    Member kssitaraman is on a distinguished road
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    Ref: Sri Gopal Krishan’s post No.18 dated 3/6/12 above.

    I am thankful for the information given in second para as to when the decision of the Government to retire Government employees on the last working day of the month in which they were born was taken. Since the implementation of the III CPC Recos was effective from 1/1/1973, the amendment to the basic & original fundamental rules must have been notified in the same year or in 1974. So this makes it certain that the basic original fundamental rule (BOFR) retiring all serving Government servants on the day on which they attained the age of superannuation, referred in the write-up, had existed till this amendment was issued at the instance of the III CPC. To this extent the write-up would need correction.

    However, the Quote of the latest amendment to the FR notified in May 1998, may be retained in the write-up for our present limited purpose as the amendment is still in operation.

    All information given in first para of your post under reference, points to a desire at higher level, acc. to me, to try to formulate a policy by which suitable instructions or guidelines can be issued to thrash out the problem once and for all.

    Addition of a second proviso in the above amendment to FR, that allows Pay Commission benefits post their effective date to 1st January born government servant if his 61st birth day falls on this effective date (of the Pay Commission), will be alright, I feel. Let us see what turns out.

    Best regards,
    K.S.Sitaraman.

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