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Thread: IMPENDING INJUSTICE to would be retiries with 1/1/1956 as their date of birth

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    Senior Member Gopal Krishan is on a distinguished road
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    Default IMPENDING INJUSTICE to would be retiries with 1/1/1956 as their date of birth

    IMPENDING INJUSTICE IN TERMS OF DEPRIVATION OF 7TH CPC BENEFITS TO THE PREDICTABLY ILL-FATED WOULD BE RETIREES WITH DATE OF BIRTH 1/1/1956 IN CENTRAL GOVERNMENT SERVICE AS A RESULT OF MODIFIED FR 56 (a)

    Given below are details of an unique, rare, strange but true and unfamiliar case of Central Government Pensioners born on 1/1/1946, 1/1/1938 and 1/1/1928 (hereinafter mentioned as 1st January-born in this Appeal), who were deprived of Central Pay Commission benefits in terms of pay revisions, pensions and other benefits owing to their respective enforced retirements on 31/12/2005, 31/12/1995 and 31/12/1985, 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’s recommendation, vide Paragraph 15 and Chapter 60 of its Report, copy extracted below, 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. –

    "Chapter 60, Paragraph 15. We would further recommend that the retirement of Government employees should take effect from the afternoon of the last day of the month in which the employee concerned attains the age of superannuation instead of the afternoon of the actual date of his superannuation. This would simplify accounting work in regard to the calculations of pay and allowances, average emoluments, qualifying service, etc. which would help in the speedy settlement of pension claims."

    2. 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, his birth day, had been in force. It will be seen by one and all that application of this basic rule had been common, universal and uniform for all Government servants.

    3. Based on the above Recommendation of the Third Central 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 or superannuation was 58 years. It will be appreciated by one and all that this decision also has been common, universal and uniform in respect of all Central Government servants.

    4. 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.

    5. 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 (which was in force till then), 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 born from 2nd January to 31st December, thus the application of the rule becoming bereft of the universality and uniformity maintained so far in keeping with upholding of a fundamental rule.

    6. It needs hardly be stated that this was a new measure bestowed by the Third CPC for the benefit of all Central Government employees/retirees. A reading of its Recommendation vide Paragraph 1 above, would indicate that it is applicable to one and all including those born on 1st of January in the absense of any stipulation to the contrary. Pay Commissions are bound by a general principle that all their recommendations especially while introducing any new beneficial measure such as this one, should be applicable to every one and if it is not possible to do so, the Commissions would avoid making such a recommendation. In other words, the recommendation should be deemed to be applicable to all employees/retirees including those born on 1st January, so as to be common, uniform and universal.

    7. It will be noted that keeping in view the recommendation of the said Third CPC that the retirement of Government employees should take effect from the afternoon of the last day of the month in which the employee concerned attains the age of superannuationinstead of the afternoon of the actual date of his superannuation the Government’s Office Memoranda issued in November 1973/May 1974, vide Paragraph 3 above on acceptance of the said Third CPC’s recommendation also did not specifically say that the 1st January-born Government servants were debarred from availing the benefits of this new measure.

    8. Despite what has been stated above, the Ministry of Finance, after pondering over the issue for about three months, vide Para 4 above, modified FR.56(a) on 7/2/1975 by incorporating a Note No.7 of its own 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, which, it may be noted, is the same as the old basic rule that existed till implementation of the Third CPC’s recommendation in April, 1975 and discarded thereafter. It may be further noted that while this basic rule had been discarded for retirements with Pay Commission benefits in the year 2006/1996/1986 in respect of the employees born on any day in the year 1946/1938/1928 other than 1st January, the basic rule had been retained or re-introduced by this modification in FR.56(a) in respect of 1st January-born employees/retirees alone. Once the basic rule had been discarded, these 1st January-born employees’ retirements ought to have been postponed like all others to the last day of the month (instead of preponing to the preceding day), so as to maintain equality and uniformity in the decision accepting this Third CPC’s important recommendation. If the intention was to retain the old basic rule in respect of 1st January-born employees/retirees, the Commission would have dropped the recommendation altogether.
    9. This reasoning also applies to any averment that both the recommendation and decision thereon had been taken literally or verbatim and implemented accordingly. In other words, the general principle in which the recommendation was made and was accepted offsets any other interpretation including one over the phraseology used in the recommendation/decision.

    (yet to be completed)
    Last edited by Gopal Krishan; 16-06-2013 at 06:02 PM.

  2. #2
    Junior Member miqal is on a distinguished road
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    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.

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    Senior Member vnatarajan is on a distinguished road
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    Rules mostly speak of "attaining age of 60 yrs or 58 yrs etc" for superannuation , at many places.

    Rules must have to be just and fair and if they result in incongruities, ambiguities, and inequalities , they have to be subjected to judicial review.

    Judicial imtervention becomes inevitable in such cases.

    Treating the strange/ exceptional cases of retirees with DOB 11 46/38/28 etc and in future 11 56 as normal cases of "imperfect Rules' is rather a harsh and immature act of administration if they are related to large CPC REVISED PENSION BENEFITS.

    SAUCH CASES MUST BETREATED AS EXCEPTIONS TO RULES AND A SUO MOTO "ONE TIME RELAXATION" MUST ALWAYS COME TO RESCUE.

    NOT DOING SO IS RATHER A CONCEMNABLE ACT OF ADMINISTRATION.

    For example, retiring a person born on 31 12 1945 on 31 12 2005 on attaining 60 years is NOT AT ALL QUESTIONABLE.

    But retiring a person born on 1 1 46 on 31 12 2005 itself even before attaining the age of 60 years SHALL BE QUESTIONABLE under the LAW OF THE LAND as it is resulting in INEQUALITIES AND INCONGRUENCEIES FOR NO FAULT OF THE INDIVIDUAL! This provision can not stand scrutiny of ARTILE 14 of the constitution.

    Can these two cases become one and the same ? How and why?

    This aspect has been debated earlier in some other thread.... and there is another incongruency related to a judgment which has also followed a wrong argument... ignoring a comparable situation............

    vnatarajan
    Last edited by vnatarajan; 04-10-2013 at 08:22 PM.

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    Junior Member miqal is on a distinguished road
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    A person with DOB 31.12.1945 completes 60 years on 30.12.2005 and not on 31.12.2005. Similarly a person with DOB 01.01.1946 completes 60 years on 31.12.2005 and not on 01.01.2006. So there is no inequality or discrimination.It is not correct to say that just because a person's DOB is one day earlier he is deprived of all the benefits of revised pays. There is a laid down cut off date and DOBs of persons fall on either side of the cut off line. There are no exceptional dates of birth. Each day of the calender is the date of birth of so many people. The provision of retirement on the last day of the previous month is not an exception but only an explanation/ clarification of the general rule.Please consider the language of the proviso which reads 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.
    Last edited by miqal; 05-10-2013 at 01:03 AM. Reason: addition for more clarity.

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    Senior Member sundarar is on a distinguished road
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    Quote Originally Posted by miqal View Post
    A person with DOB 31.12.1945 completes 60 years on 30.12.2005 and not on 31.12.2005. [/COLOR][/B][/COLOR]
    Irrespective of the completion of 60 years on 30.12.2005 as indicated above, the person is allowed to retire on last day of the month in which his birthday is falling. Why there should be an exception for those who born on 1st day of the month, by which he is forced to retire on the previous day, ie. 31.12.2005?. That is a person born on 30.12.1945 and one who born on 1.1.1946 are made to retire on 31.12.2005. Whereas, a person born on 2.1.1946 is allowed to retire on last day of the month in which his birthday is falling, ie. 31.1.2006. A person attains 61st birthday only on completion of 60 years, and those who born on 1.1.1946 completes 60 years and attaining 61st birthday on the same day, ie. 1.1.2006. As long as a person on a particular month can retire on last day of the month in which his birthday is falling, why not the same rule apply for those who born on 1st of a month. Otherwise, all including those who born in a particular month shall retire on the last day of the previous month, ie. even before completing 60 years. Thus rules ought to be simple enough to facilitate uniform treatment.
    Last day of the month in which the 61st birthday falls shall be the criteria, or two different treatments as is being at present shall be the criteria is the question.

  6. #6
    Senior Member sundarar is on a distinguished road
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    Thumbs up Pensioners with dob 1.1.1946 - deprivation of 6th cpc

    IN CONTINUATION OF MY PREVIOUS POST, I REPRODUCE MY EARLIER POST ON THE SUBJECT IN THE THREAD `PENSIONERS WITH DOB 1.1.1946 - DEPRIVATION OF 6TH CPC', FOR REFERENCE BY THOSE WHO HAVE NOT SEEN THE SAME. THE SUBJECT MATTER IS FOCUSSING ON THE POINT AS TO WHEN A RETIREE ATTAINS THE POSITION OF PENSIONER AND THEREBY THE RESULTANT PENSIONARY BENEFITS INCLUDING GRATUITY, ETC. WHETHER A PERSON BORN ON 1.1.1946 WILL BE A POST-2006 PENSIONER OR PRE-2006 PENSIONER - IS THE ISSUE. ANOTHER ISSUE IS WHETHER THE PROVISO UNDER FR 56 (a) IS DOING ANY JUSTICE AT ALL?


    ----------------------------------------------------------------------------------
    Originally Posted by Shri vnatarajan
    "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”.

    -contd....

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    Senior Member sundarar is on a distinguished road
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    -Contd...

    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.

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    Senior Member Gopal Krishan is on a distinguished road
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    Dear Sundarar,
    Could you kindly give detailed citation of the case relating to T. Krishnamurthy?
    Gopal Krishan

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    Senior Member sundarar is on a distinguished road
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    Quote Originally Posted by Gopal Krishan View Post
    Dear Sundarar,
    Could you kindly give detailed citation of the case relating to T. Krishnamurthy?
    Gopal Krishan
    Dear Sir,

    I could find the following only from the Principal Accountant General vs Shri C.Subba Rao case of AP High court. Though I
    tried, I could not locate the CAT Hyderabad Judgment in Shri T.Krishna Murthy case.

    "The decision of the Hyderabad Bench of this Tribunal in T. Krishna Murthy's case (supra) cannot be brushed aside out by the learned Counsel for the respondents. Retirement may by voluntary or on superannuation. The principles for payment of pension will not vary on the basis of these distinctions. According to us, "afternoon of 31st of March" or "forenoon of 1st
    of April" means one and the same thing and on this basis also we see no reason to hold that the said case is not
    applicable to the present cases. In short, we are of the view that in the present cases the effective date of
    retirement would be i.4.1995 and not 31.3.1995".

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    Senior Member Gopal Krishan is on a distinguished road
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    Dear Sundrar,
    Even if 1146 born pensioners get benefits in respect of gratuity they would feel very happy. Ministry of Labour and Employment is the concerned Ministry with the Payment of Gratuity of Act, 1972. I would like to represent to that Ministry on behalf of 1146 born pensioners. Could you kindly guide me in that regard. I myself tried to locate the judgement of CAT Hyderabad in question. Unfortunately, I could not get the same. As such your guidance is solicited about the representation on behalf of 1146 born pensioners.
    Gopal Krishan

  11. #11
    Senior Member Gopal Krishan is on a distinguished road
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    for further development see thread 'injustice to 1928/1938/1946 born pensioners'
    Gopal Krishan

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    Senior Member Gopal Krishan is on a distinguished road
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    Shri JVSR has started a new thread - Superannuation date 31/12/2015 and date of birth 1/1/1956, implementation of 7th Central Pay Commission.
    Gopal Krishan
    Last edited by Gopal Krishan; 20-03-2016 at 08:37 PM.

  13. #13
    Senior Member Gopal Krishan is on a distinguished road
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    For latest on the subject 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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