IN
THE HIGH COURT OF JUDICATURE AT PATNA
Civil
Writ Jurisdiction Case No.10757 of 2010
===========================================================
M.M.P.
Sinha,
S/o
Late
Justice B.P. Sinha A Retired Railway Servant, R/o
'Vishnupada',
Nageshwar Colony, Boring Road, Patna-800001
....
.... Petitioner/s
Versus
1. Union
of India, Through Secretary,
Department
of Expenditure, Ministry of Finance, North Block, Raisina
Hills, New Delhi
2.
Ministry of Personnel, Public Grievances & Pension Through
The Secretary,
Department
of Pension and Pensioner's Welfare Lok
Nayak Bhawan, Khan Market,
New
Delhi
3.
Ministry of Railways Through
Chairman, Railway Board, Rail Bhawan, New Delhi
4.
Railway Board, Through
Secretary, Rail Bhawan, New Delhi
....
.... Respondent/s
===========================================================
Appearance:
For
the Petitioner: Mr. M.M.P. Sinha (In Person)
For
the Railways: Mr. D.K. Sinha, Sr. Advocate Mr. Anil Singh.
For
the Union of India : Mr. Sanjay Kumar, A.S.G.
===========================================================
CORAM:
HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
and
HONOURABLE
MR. JUSTICE RAJENDRA KUMAR MISHRA
ORAL
JUDGMENT
(Per:
HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date:
18-05-2015
A
very simple but ticklish issue arises in this writ petition. The issue is
whether a person retiring from a higher grade can receive pension less than a
person retiring in the lower grade. Is it not arbitrary and in view of the
Judgment of the Hon’ble Apex Court in the case of Union of India and Another
Vrs. SPS Vains (Retd.) and Others since reported in (2008) 9 SCC 125, the
pension of the person in the higher grade would have to be stepped up accordingly.
The
contesting respondents are the Union of India through the
Secretary,
(Department of Expenditure), Ministry of Finance,
Ministry
of Personnel, Public Grievances and Pension as also Ministry of Railways through
the Chairman and the Secretary. There are supplementary affidavit, counter
affidavit and supplementary counter affidavit after several adjournments. We
have heard learned counsel for the writ petitioner, who appears in person, and
learned counsel for the Union of India as well as Railways. The facts are not, at
all, in dispute. The petitioner retired in 1992 from the services of Indian
Railways as Additional General Manager, Eastern Railway, Kolkata. At the time
of his retirement, he was an officer in Higher Administrative Grade (HAG).
Let
it be noted that Government of India classified its staff
in
33 scales and one exclusive scale for Cabinet Secretary. In so far
as
relevant S-28, S-29, S-30 and S-31 are scales corresponding to
Selection
Grade, Senior Administrative Grade, High Administrative Grade and High
Administrative Grade+. As per recommendation of the 6th
Pay Commission, Central Government declared scale for PB-4 which was for
Selection Grade [SG] (S-28), Senior Administrative Grade[SAG]
(S-29), High Administrative Grade[HAG](S-30) as 37,400-67,000 but provided for
Grade Pay for each scale separately at 8,700; 10,000 and 12,000 respectively. But
later S-30 was taken out of PB-4 and a separate pay band was provided for it
being HAG Scale 67,000-79,000 but while doing so vide circular of Ministry of
Railways dated 26.05.2009 Grade Pay of 12,000 for HAG was removed. As the
petitioner had retired in 1992, as per Railway Board’s notification,
petitioner’s notional pay was fixed at the minimum of HAG (S-30) being 67,000
without Grade Pay.
The
result was his pension was then fixed at 50% thereof being 33,500.
On
the other side, a person in (SAG) Grade S-29, which is an inferior and feeder
grade for S-30, the Pay Band is 37,400-67,000 but there is a Grade Pay
entitlement of Rs. 10000/-. Accordingly, petitioner points out that the maximum
pension that can be paid in Grade S-29 would be Rs. 67000 + 10000 = 77000/- and
half of it (50%) would be Rs. 38,500/-. Thus, seen on the face of it, a person retiring
in Grade S-29 at the maximum scale would get not only higher remuneration but
consequently, higher pension than Grade S-30, for which it was feeder post both
in terms of remuneration and pension. This is hostile discrimination, arbitrary
and improper.
Briefly
submitted a junior cannot get higher remuneration or
pension
than a senior. In order to contradict the objection of the
Central
Government and the Indian Railways that this is mere a theoretical submission,
petitioner has filed a supplementary
affidavit
giving facts and figures. He has given names and designations of at least three
officers of the Railways, who haveretired
on different dates in the Senior Administrative Grade withGrade
Pay in the scale of S-29 as against the petitioner, who was in the
Higher Administrative Grade. They are receiving pension between Rs.
35690/- and Rs. 36640/-. Even though he is of Higher Administrative Grade, his
pension is fixed at maximum of Rs. 33500/-. He has then in the said
supplementary affidavit given names of at least eight other persons, who again
would be retiring from Senior Administrative Grade in near future and their
pension would ordinarily be at Rs. 38500/- as against the petitioner of Rs. 33500/-.
Petitioner, thus, in theory and practical, has shown the discrepancy i.e.
capable of happening and also happening. In fact, he submits that this is a
clear case of impermissible discrimination and is violative of Article 14 of
the Constitution of India. There is no counter affidavit filed on behalf of the
Government of India in the Department of Public Grievances and Pension. There
is counter affidavit and supplementary counter affidavit by the Railways But it
seems Railways have been entrusted to defend the case by the Government of India.
Their only defence is that petitioner had retired prior to 2006 whereas; the Patna
High Court cases illustrated by him, are cases of persons, who retired after 01.01.2006
or are yet to retire. This, accordingly, is reasonable classification for lower
pension in the higher Grade. In other words, the only explanation given is retirement
at different times but there is no explanation as to why a person of a higher
grade will get pension less than of a junior grade. The factual assertion of
this dichotomy, as pointed out by the petitioner, has not been challenged.
It
is submitted that earlier for Grade S-30, there was a Grade Pay of Rs. 12000/-.
So long as the Grade pay was there, there was no problem as the maximum pay entitlement
of S-29 would be Rs. 67000 + 10000 = 77000/- whereas; the minimum of S-30 would
be Rs. 67000 + 12000 = 79000/-.
Therefore, there would always be a difference in between two.
But when the Central Government in 2009 decided to remove the Grade Pay for S-30
and onwards there would be a clear dichotomy when pension calculations are
made, as shown above. The petitioner has further brought to our notice to a
very unhappy situation that would also arise. The maximum pay, as noticed above,
of S-29 would be Rs. 67000 + 10000 = 77000/-. A person, who is in S-29 reaching
the maximum level is then promoted to Higher Administrative Grade from Senior
Administrative Grade. In S-30, there being no Grade Pay, he would come to the
basic pay of that grade i.e. 67000/-. Effectively, his remuneration upon promotion
would stand reduced by Rs. 10000/- and in such an event, he would have to be
given a pay protection upon promotion because in absence hereof, the result
would be quite ridiculous. It is direct consequence of this that there is
anomaly in pension. Respondents’ only defence is that this anomaly is inherent
in the System and inherent in the pay and pay structure as fixed with effect
from 01.01.2006. The question is whether inherent, apparent or latent
discrimination is permissible. In our view, the short answer is that it cannot
ever be permissible. A person in the Higher Administrative Grade cannot draw
less remuneration or less pension than a person of the Senior Administrative
Grade which grade is the Feeder Grade for the Higher Administrative Grade. This
is exactly what is happening in the present case. This is exactly what has been
deprecated by the Hon’ble Apex Court in the case of Union of India and Another
Vrs. SPS Vains (Retd.) and Others (Supra). There it was noticed that the
Brigadier in the Army was receiving higher pension than the Major General. Brigadier,
is the Feeder post for Major General. The Hon’ble Supreme Court held that the
only way out for the Central Government was to step up the pension of Major
General so that this discrimination of junior getting higher pension than a Senior
is removed. Neither learned counsel for the Union of India nor the counsel for
the Indian Railways is able to distinguish the said decision of the Hon’ble
Apex Court. Apart from saying that the said decision was based on pay basic
scale, service conditions of defence services which are different from other
civil services, there was no other distinction. It is the principle of law decided
that is to be considered. The principle of law, as decided by the Hon’ble Apex
Court, is plain and simple; that a senior officer cannot get pension less than
his junior. If that be, the effect of pay fixation than the pension would have
to be stepped up to avoid such hostile discrimination. There was no
consideration of defence service or any special feature of defence service as
distinguishing civil services. The distinction pointed out is illusionary.
Hence,
having considered the matter, the facts not being in dispute, as noted above, and
the law not being in disputed, as noted above, the result is that the writ
petition must succeed and the Judgment and order of the Central Administrative
Tribunal, Patna Bench, Patna has to be set aside. It has to be held that the basic
pension of the petitioner with effect from 01.01.2006 has to be stepped up to
Rs. 38,500/-
to avoid discrimination. Respondent no.3, Ministry of Railways through the Chairman Railway Board and Respondent no.4 , Railway
Board through Secretary are given three months time to calculate the arrears of
pension accordingly and pay the same within the said period. This writ petition
is, accordingly, allowed.
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