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Thread: Pensioners with 1.1.46 as date of birth - deprivation of Sixth CPC

  1. #1
    Senior Member Gopal Krishan is on a distinguished road
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    Default Pensioners with 1.1.46 as date of birth - deprivation of Sixth CPC

    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

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    Senior Member vnatarajan is on a distinguished road
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    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

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    Senior Member sundarar is on a distinguished road
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    Default Superannuation on 31.12.2005

    Quote Originally Posted by Gopal Krishan View Post
    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

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    Senior Member Gopal Krishan is on a distinguished road
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    Respected Shri Sundrar Sahib,

    Thanks a lot for the interest taken in my case. My email id is - gopalkrishan60@yahoo.com

    With regards

    Gopal Krishan

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    Senior Member Gopal Krishan is on a distinguished road
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    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

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    Senior Member vnatarajan is on a distinguished road
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    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
    Last edited by vnatarajan; 05-09-2012 at 09:21 AM. Reason: Improvement

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    Senior Member Gopal Krishan is on a distinguished road
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    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.

  8. #8
    Senior Member sundarar is on a distinguished road
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    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

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    Senior Member Gopal Krishan is on a distinguished road
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    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

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    Senior Member vnatarajan is on a distinguished road
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    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
    Last edited by vnatarajan; 06-09-2012 at 08:15 AM. Reason: improvement

  11. #11
    Senior Member sundarar is on a distinguished road
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    Default Review of Policy by DOPT

    Quote Originally Posted by Gopal Krishan View Post
    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.

  12. #12
    Senior Member vnatarajan is on a distinguished road
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    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

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    Member kssitaraman is on a distinguished road
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    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.

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    Senior Member vnatarajan is on a distinguished road
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    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

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    Senior Member vnatarajan is on a distinguished road
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    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
    Last edited by vnatarajan; 07-09-2012 at 10:07 AM.

  16. #16
    Senior Member Gopal Krishan is on a distinguished road
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    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)

  17. #17
    Senior Member vnatarajan is on a distinguished road
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    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>>>>>!!!!!!!!
    Last edited by vnatarajan; 09-09-2012 at 07:27 AM.

  18. #18
    Member kssitaraman is on a distinguished road
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    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.
    Last edited by kssitaraman; 10-09-2012 at 06:55 PM.

  19. #19
    Senior Member Gopal Krishan is on a distinguished road
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    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

  20. #20
    Senior Member Gopal Krishan is on a distinguished road
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    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

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