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

  1. #81
    Senior Member vnatarajan is on a distinguished road
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    Hope for the best Shri GK...
    Yes. Some reasoning may dawn.

    vnatarajan

  2. #82
    Senior Member Gopal Krishan is on a distinguished road
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    Thank U Sir. The matter is still under examination in DOPT.
    Gopal Krishan

  3. #83
    Senior Member Gopal Krishan is on a distinguished road
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    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
    Last edited by Gopal Krishan; 26-01-2015 at 05:29 PM.

  4. #84
    Senior Member Gopal Krishan is on a distinguished road
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    (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.

  5. #85
    Senior Member Gopal Krishan is on a distinguished road
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    For further developments see thread 'injustice to 1928/1938/1946 born pensioners'.
    Gopal Krishan

  6. #86
    Senior Member Gopal Krishan is on a distinguished road
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    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
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