IN THE HIGH COURT OF DELHI AT NEW DELHI

EXTRAORDINARY WRIT JURISDICTION

W.P. (C) No. 1535 of 2012
IN THE MATTER OF :
Union of India & Ors.

Petitioners.
Versus

Central Government SAG & Ors.

. Respondents.

A petition under Articles 226 & 227 of the Constitution of India for the
issuance of a writ, order or direction in the nature of Certiorari or any other
writ, direction or order for quashing and set-aside the order dated
01.11.2011 issued by Central Administration Tribunal in O.A.No. 0655/2010,
O.A. No. 3079 of 2009, O.A. No. 0306 of 2010 and O.A. No. 0507 of 2010.
MOST RESPECTFULLY SHOWETH :
1.

The present writ petition is being filed against the order dated
01.11.2011 passed by Honble Central Administrative Tribunal in O.A.
No. 0655/2010, O.A. No. 3079 of 2009, O.A. No. 0306 of 2010 and O.A.
No. 0507 of 2010.

Copy of the common order dated 01.11.2011 passed by Central

Administrative Tribunal in O.A. No. 0655/2010, O.A. No. 3079 of 2009,
O.A. No. 0306 of 2010 and O.A. No. 0507 of 2010 are annexed
herewith and marked as Annexure P-1.

2.

Relevant facts leading to this Writ Petition are that the Government
has so far set up six Central Pay Commissions. These pay
commissions made separate recommendations for revision of
pension of the past pensioners without linking it with the pension

that would be admissible to a Government servant of the

corresponding level.

The Sixth Central Pay Commission is no

exception to that principle.

3.

On 24.01.2008 sixth central pay commission (hereinafter referred to

as on 6th Pay Commission) submitted its report to the Government of
India.

4.

Amongst the various important features of 6th Pay Commission, one

of the important feature was introduction of concept of clubbing of
pay scales in pay bands called 1S, PB-1, PB-2, PB-3, and PB-4.

5.

6th Pay Commission had inter alia recommended for clubbing of pay
scales. Clubbing of scales may be noted from the following table :-

Sl.
Pay Scale
1 S-1, S-2, S-2A and S-3
2 S-4, S-5, S-6, S-7 and S-8

Pay band
1-S (440-7440)
PB-1 (4860-20200)

S-9, S-10, S-11, S-12, S-13,

S-14 and S-15

PB-2 (8700-34800)

S-16, S-17, S-18, S-19, S-20,

S-21, S-22, S-23, S-24, S-25,
S-26 and S-27

PB-23 (15600-39100)

S-28, S-29, S-30, S-31 and

S-32

PB-4 (39200-67000)

The apex scales S-33 and Scale S-34 were not part of any pay band,
and they were recommended to be given Rs.80,000/- (fixed) per
month and Rs.90,000/- (fixed) per month respectively.

6.

In addition to the clubbing and merger of pay scales in the pay bands
as per the aforesaid table, 6th Pay Commission has recommended a
fixed grade pay for each of the pay scale which were later on
modified by the government of India vide resolution of 29.08.2008.
Though the petitioners have made relevant submissions about this
resolution dated 29.08.2008 in the paragraphs hereinafter, however,
for the sake of convenience, petitioner while giving the grade pay for
each scale as recommended by 6th Pay Commission as also giving
the modified grade pay decided by the government.

Sl

Grade Pay
Grade Pay
Pay
recommended
decided by
Scale by 6th Pay
Government.
Commission.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

S-1
S-2
S-2A
S-3
S-4
S-5
S-6
S-7
S-8
S-9
S-10
S-11
S-12
S-13
S-14
S-15
S-16
S-17

1300/1400/1600/1650/1800/1900/2000/2400/2800/4200/4200/4200/4200/4600/4800/5400/5400/5400/-

1300/1400/1600/1650/1800/1900/2000/2400/2800/4200/4200/4200/4200/4600/4800/5400/5400/5400/-

19
20
21
22
23
24
25
26
27
28
29
30
31
32
33

S-18
S-19
S-20
S-21
S-22
S-23
S-24
S-25
S-26
S-27
S-28
S-29
S-30
S-31
S-32

6100/6100/6500/6600/7500/7600/7600/8300/8400/8400/9000/9000/11000/13000/13000/-

6600/6600/6600/7600/7600/7600/8700/8700/8900/8900/10000/10000/12000/-*
-NIL- **
-NIL- **

Vide Notification dated 16.07.2009 amending the CCS(RP)

Rules, 2008, pre-revised S-30 pay scale was given a separate pay
scale of Rs.67000-79000.

**

While accepting the recommendations of the Pay Commission,

instead of including them in the Pay Band-4, Pertinently the Apex

scales S-33 and Scale S-34 were not part of any pay band, as they
were recommended to be given by 6th Pay Commission, fixed pay of
Rs.80,000/- per month and Rs.90,000/- per month respectively,
therefore, no grade pay was recommended by the Commission nor
any grade pay was decided by the Government for scale S-33 and S34.

7.

After careful consideration of recommendation 6th Central Pay

Commission, Department of Expenditure, Ministry of Finance vide
resolution of 29.08.2008 accepted the recommendations of Sixth Pay
Commission

subject

to

the

modifications

mentioned

in

the

resolution, Copy of the resolution dated 29.08.2008 of Department of

Expenditure is annexed hereto and marked as Annexure P-2.

8.

Vide above resolution dated 29.08.2008 pay bands PB-1, Pb-2 and
PB-3 were improved and modified as under :-

Recommended
by
Commission
PB-1 Rs.4850-20200
PB-2 Rs.6700-34800
PB-4 Rs. 39200-67000

9.

the Decision of the Government.

PB-1 Rs.5200-20200
PB-2 Rs. 9300-34800
PB-4 Rs.37400-67000

As pointed out hereinabove vide resolution of 29.08.2008 grade pay

for each of the pay scale (as recommended by 6th Pay Commission)
was also modified.

10.

Importantly vide resolution dated 29.08.2008, Government of India

not only improved the pay bands and grade pay but also
modifications with respect to clubbing of scale in the pay bands,
accordingly.

(i)

Pay

scales

S-24,

S-26,

S-26

and

S-27

which

were

recommended to be clubbed in the pay band PB-3 were kept

by government in PB-4. Therefore, pay scales from S-24 to S30 were kept in PB-4.

(ii)

Pay scales S-31 and S-32 which were recommended to be

clubbed in PB-4 and were decided to be given different pay
scale namely HAG + scale.

11.

As such, as per resolution dated 29.08.2008 of the Government of

India Pay band PB-4 comprised of Pay Scale S-24 to S-30.

12.

On 29.08.2008 itself, Department of Expenditure, Ministry of Finance

issued, in view of acceptance of recommendation of 6th Pay
Commission, a notification dated 29.08.2008 being GSR 622 (E)
notifying thereby Central Civil Service (Revised Pay) Rules, 2008
(hereinafter referred to as revised pay rules) A copy of a notification
dated 29.08.2008 being GSR 622 (E) notifying thereby Central Civil
Service (Revised Pay) Rules, 2008 is annexed here to and marked as
Annexure P-3.

13.

The revised pay rules were made effective from 01.01.2006.

14.

Under Rule-3 of the revised pay rules pay in the pay band and grade
pay have been defined as under :-

(5) Pay in the pay band means pay drawn in the running
pay bands specified in Column 5 of the First Schedule.
(6) grade pay is the fixed amount corresponding to the prerevised pay scales/posts.
15.

Section 1, Part-A of the first Schedule to the revised pay Rules

provides for revised pay bands and grade pay for posts carrying pay
scales (S-1) to (S-34) whereas Section II provide for entry pay in
the revised pay structure for direct recruits appointed on or after
01.01.2006.

16.

Second schedule to the revised pay rules provided for a format in

which government servant were required to exercise their option so
as to enable them to continue to draw pay in the existing scale until
the date on which he earns his next or any subsequent increment.

17.

Thereafter, office memorandum dated 30.08.2008 was issued,

Annexure 1 to the OM dated 30.08.2008 provide for fitment tables,
inter alia, providing for revised basic pay of the employees I service
as on 1.1.2006. It has been clearly stated in this memorandum that
detailed fixation tables for each stage in each of the pre-revised
scales have been worked out in the manner recommended by the 6th
Pay Commission and are enclosed as Annexure - ! of this OM. These
may be used for the purpose of fixation in the revised pay structure
as on 01.01.2006.

Pertinently, the fitment tables as provided in Annexure 1 to

Memorandum dated 30.08.2008 are to be used exclusively for the
purpose of fixation in the revised pay structure as on 01.01.2006,
however, these tables are nothing to do with the calculation of
pension of retirees who were

Government Servant before

01.01.2006. Despite this, Honble CAT has directed for fixation of

revised pay of pre-2006 retirees by taking into consideration the
minimum basic revised pay of Government Servant on or after
01.01.2006.

A copy of office Memorandum state 30.08.2008 being

F.No. 1/1/2008-1C of Ministry of Finance, Department of Expenditure

is annexed here to and marked as Annexure-P-4.

18.

As per the said fitment table following is the position of the revised
pay of pre-revised scale (S-29) 18400-500-22400.

Prerevised
basic
pay.

Revised Pay
Pay in
the pay
band

Grade
Pay

Revised
Basic
Pay

18,400

44,700

10,000

54,700

18,900

46,050

10,000

56,050

19,400

46,050

10,000

56,050

19,900

47,440

10,000

57,440

20,400

47,440

10,000

57,440

20,900

48,870

10,000

58,870

21,400

48,870

10,000

58,870

21,900

50,340

10,000

60,340

22,400

51,850

10,000

61,850

22,900

53,410

10,000

63,410

23,400

55,020

10,000

65,020

23,900

56,680

10,000

66,680

Regarding revision of pension of past pensioners, the Government

made the following recommendations :

As past pensioners should be allowed fitment benefit equal to

40% of the pension excluding the effect of merger of 50%
dearness allowance / dearness relief as pension (in respect of
pensioners retiring on or after 1/4/3004) and dearness pension
(for other pensioners) respectively. The increase will be
allowed by subsuming the effect of conversion of 50%
dearness relief / dearness allowance as dearness
pension/darkness pay. Consequently, dearness relief at the
rate of 74% on pension (excluding the effect of merger) has

been taken for the purposes of computing revised pension as

on1/1/2006. This is consistent with the fitment benefit being
allowed in case of the existing employees. The fixation of
pension will be subject to the provision that the revised
pension, in no case, shall be lower that fifty percent of the sum
of the minimum of the pay in the pay band and the grade pay
thereon corresponding to the pre-revised pay scale from
which the pensioner had retired (Para 5.1.47 of the Report).
The above recommendation of the Commission was accepted by the
Government vide aforesaid Resolution dated 29.08.2008 (marked as
Annexure P-2A) with the modification that fixation of pension shall
be based on a multiplication facts of 1.86 i.e. basic pension +
Dearness Pension (wherever applicable) + dearness relief of 24% as
on 1.1.2006, instead of 1.74.

19.

Thereafter, office memorandum being

F.No.1/1/2008-IC dated

30.08.2008 was issued by Department of Expenditure, inter alia,

requiring Government servant to exercise their option for withdrawal
of their pay in the revised pay structure in the format prescribed in
the second schedule to the rules.

20.

After resolution of 29.08.2008 and notification of revised pay rules,

office memorandum (OM) being F.No. 38/37/08P&PW(A) dated
01.09.2008 was issued by Department of Pension and Pensioners
Welfare, Ministry of Personnel, Public Grievances and Pensions,
inter alia, for revision of pension of pre-2006 pensioners/family
pensioners etc. in consequent to implementation of Governments

decision on the recommendation of 6th Pay Commission. A copy of

office memorandum being F.No. 38/37/08P&PW(A) dated 01.09.2008
was issued by Department of Pension and Pensioners Welfare,
Ministry of Personnel, Public Grievances and Pensions is annexed
here to and marked as Annexure P-5.

21.

The aforesaid office memorandum specifically states in Para-1 that

separate orders will be issued in respect of employees retired /died
on or after 01.01.2006 i.e. post 2006 pensioners as in terms of para2.1 of OM that the same is applicable to all pensioners / family
pensioners who were drawing pension / family pension on
01.01.2006 under the Central Civil Services (Pension) Rules 197, CCS
(Extra ordinary pension) Rules and the corresponding rules
applicable to Railway Pensioners and Pensioners of All India
Services including officers of Indian Civil Service Retired from
service on or after 01.01.1973. As such, OM dated 01.09.2008 was
made applicable to all pre-2006 pensioners, whose pensions were to
be revised in the manner specified in the memorandum.

22.

Para-4.1 of the memorandum, inter-alia provided for mechanism to

calculate and arrive and consolidated pension / family pension w.e.f.
01.01.2006, with the following guarantee in para-4.2 of the
memorandum, which reads as under :-

4,2 The fixation of pension will be subject to the provision

that the revised pension, in no case, shall be lower than fifty
percent of the minimum of the pay in the pay band plus the
grade pay corresponding to the pre-revised pay scale from
which the pensioner had retired. In the case of HAG+and
above scales, this will be fifty percent of the minimum of the
revised pay scale.

23.

Thereafter a separate office memorandum F.No. 38/37/08P&PW(A)

dated 02.09.2008 was issued by Department of Pension and
Pensioners Welfare, Ministry of Personnel, Public Grievances and
Pensions for regulating the issue of payment of pension of post 2006
retirees i.e. Government servants who retire on or after 01.01.2006. A
copy of office memorandum being F.No. 38/37/08P&PW(A) dated
02.09.2008 was issued by Department of Pension and Pensioners
Welfare, Ministry of Personnel, Public Grievances and Pensions is
annexed herewith and marked as Annexure P-6.

24.

Clarifying the

memorandum

dated 01.09.2008,

another office

memorandum being OM F.No. F.No. 38/37/08P&PW(A)pt.1 dated

03.10.2008 was issued by Department of Pension and Pensioners
Welfare, Ministry of Personnel, Public Grievances and Pensions
whereby amongst the other clarifications, above paragraphs 4.2. of
office memorandum dated 01.09.2008 was also clarified. Relevant
extract of the clarificatory memorandum dated 03.10.2008 reads s
under:-

The pension calculated at 50% of the minimum of pay in the

pay ban plus grade pay would be calculated (i) at the minimum
of the pay in the pay band (irrespective of the pre-revised
scale of pay) plus the grade pay corresponding to the prerevised pay scale. For example, if a pensioner had retired in
the pre-revised scale of pay of Rs.18400-22400, the
corresponding pay band being Rs.37400-67000 and the
corresponding grade pay being Rs.10,000/- p.m., his minimum
guaranteed pension would be 50% of Rs.37,400 + Rs.10,000
(i.e. Rs.23,700/-) A statement indicating the minimum pension
corresponding to each of the pre-2006 scales of pay is
enclosed at Annexure.
A

copy

of

the

office

memorandum

being

OM

F.

F.No.

38/37/08P&PW(A)pt. dated 03.10.2008 issued by Department of

Pension and Pensioners Welfare, Ministry of Personnel, Public
Grievances and Pensions is annexed here to and marked as
Annexure P-7.

25.

In furtherance of memorandum dated 03.10.2008 and in view of a

large number of representations received by Government of India
regarding the delay in payment of pension and arrears to the pre2006 pensioners / family pensioners, office memorandum being OM
F.No.

38/37/08P&PW(A)pt.1

dated

14.10.2008

was

issued

by

Department of Pension and Pensioners Welfare, Ministry of

Personnel, Public Grievances and Pensions, inter alia, to facilitate
payment of revised pension in terms of para 4.2. of the OM dated
01.09.2008 as clarified by OM dated 03.10.2008, and for this purposes
a table (being annexure-I to OM dated 14.10.2008) was provided and

column 8 of the table represented 50% of sum of minimum of pay

band + grade pay.

A copy of memorandum being OM F.No.

38/37/08P&PW(A)pt.1 dated 14.10.2008 was issued by Department of

Pension and Pensioners Welfare, Ministry of Personnel, Public
Grievances and Pensions is annexed here to and marked as
Annexure P-8.

26.

Being aggrieved with the aforesaid memorandums of Government of

India, representations were made by pre-2006 pensioners, inter alia,
claiming parity and equal treatment with those who retires after
01.10.2006 i.e. post 2006 pensioners.

27.

At this stage it is relevant to point out, representation dated

21.11.2008 was made by respondent wherein respondent claimed
parity in the matter of grant of pension with post-2006 pensioners,
inter alia alleging that the Government of India accepted the parity of
pension vide para 4.2 of the office memorandum dated 01.09.2008,
however, while issuing clarification on para 4.2 vide memorandum
dated 03.10.2008 the concept of the parity was neglected by the
Government. Copy of representation dated 21.11.2008 is annexed
hereto and marked as Annexure P-9

28.

Department of Pension and Pensioners Welfare, Ministry of

Personnel,

Public

Grievances

and

Pensions,

disposing

representations / references received by them, inter alia,

of

alleging

that instructions with regard to pension of pre-2006 pensioners are

discriminatory and are not in conformity with the decision taken on
the recommendations of 6th Pay Commission, issued memorandum
being F.No. 38/37/08P&PW(A) dated 11.02.2009, inter alia, to the
effect that no change is required to be made in that respect. A copy
of memorandum being OM F.No. 38/37/08P&PW(A) dated 11.02.2009
was issued by Department of Pension and Pensioners Welfare,
Ministry of Personnel, Public Grievances and Pensions is annexed
hereto and marked as Annexure P-10.

29.

Now coming to the bottom line controversy as agitated before

Honble Central Administrative Tribunal and observation and finding
of Honble CAT on the same, it is submitted that relying upon
judgments of Honble Supreme Curt of India, mainly in the matter of
D.S. Nakara & Ors. Vs. Union of India (1983) 1 SCC 305 and Union of
India vs. S.P.S. Vains (2008) 9 SCC 125, resolution dated 29.08.2008
and article 14 of the Constitution of India and alleging that vide OM
dated 01.09.2008, 03.10.2008 and 14.10.2008 criteria and principals
for determining the pension has been given a complete go-by
original applications being OA No. 3079 of 2009, 306 of 2010, 507 of

2010, 655 of 2010 were fied by pre-2006 pensioners (who retired from
S-29 pre-revised scale of pay) before Honble principal bench of CAT,
inter alia.

(i)

Claiming parity in pension with post 01.01.2006 retirees.

(ii)

praying for quashing of clarification memorandums dated

03.10.2008, 14.10.2008 and 11.02.2009.

(iii)

Direction for their notional pay fixation and consequently

pension fixation should not be less than 50% of the sum of the
pay in the pay band and the grade pay thereon corresponding
the scale of pay from which they had retired.

Copy of 3079 of 2009, 306 of 2010, 507 of 2010, 655 of 2010 filed
before the CAT is annexed hereto and marked as Annexure P-11
(Colly).

30.

Petitioners has filed their counter affidavit to each of the

aforesaid OA, inter alia, submitting therein that the orders /

clarifications issued by the Government for revision of provision for
calculation of pension re in consonance with the decision of the
Government on the recommendations of 6th Pay Commission and

that the Government had taken a policy decision to revise the

provisions for determination of pension and this policy decision is
not discriminatory. It was also submitted by the petitioners in their
counter affidavits that policy of the Government with regard to
payment of pension to pre-2006 and post-2006 retirees is legally
sound, hence do not call for any interference by Honble CAT. A
copy each of the counter affidavit filed by the petitioners to 3079 of
2009, 306 of 2010, 507 of 2010, 655 of 2010 respectively is annexed
hereto and marked as Annexure P-12 (Colly).

31.

The above OA were decided and disposed of by Honble CAT vide

impugned order dated 01.11.2011 whereunder Honble CAT though
held that
(i)

It cannot be said that fixation of cut off date for the purpose of
extending retrial benefit is arbitrary and it is permissible for
the government to fix a cut off date for introducing any new
pension / retirement scheme or for discontinuing of any
existing scheme.

(ii)

The challenge made by the applications based upon the

judgement in D.S. Nakara that they should be extended the
same pensionary benefits as that of post 2006 retirees
cannot be accepted.

(iii)

Pre-01.01.2006 and post 2006 retirees cannot be extended the

same pensionary benefits as on the basis of recommendations
of 6th Pay Commission to different schemes for pre-2006 and
post-2006 retirees have been issued and that applicants
(respondents before this Honble Court) have not challenged
the validity of the OM dated 02.09.2008, therefore, pre-2006
retirees cannot claim benefit as par with posy 2006 retirees
who are governed by the separate set of scheme.

(iv)

Judgement in the matter of SPS Vains was of no assistance to

the applicants which was rendered in different facts and
circumstances and relate to Army Personnel.

Yet nevertheless such finding, Honble CAT by comparing the

pension of pre-01.01.2006 retirees and post 01.01.2006 retirees
quashed memorandum dated 03.10.2008, 14.10.2008 and 11.10.2009
and directed to re-fix the pension of all pre-2006 retirees based on
the resolution dated 29.08.2008 holding that OM dated 03.10.2008
substantially changed the modified parity / formula adopted by the
Central Government pursuant to the recommendations made by 6th
pay Commission and thus caused great prejudice to the applicant.

32.

It is submitted that findings of Honble CAT are self contradictory as

Honble CAT on the one hand accepted that there was no
arbitrariness and discrimination on the part of the petitioners in
fixing cut-off dated as 01.01.2006 and that pre-2006 and post 2006
retirees are governed by separate schemes and memorandums and
that pre 2006 retirees cannot claim benefit at par with post 2006, on
the other hand Honble CAT by comparing the pension of pre 2006
retirees who retired in December 2005 with the pension of post 2006
retiree who retired in January 2006, quashed memorandums dated
03.10.2008, 14.10.2008 and 11.10.2009 without appreciating that vide
these memorandums principles of pension as mentioned in
resolution dated 29.09.2008 were not changed at all.

33.

It is submitted that impugned order is against principle of law and

the same is liable to be set aside, inter-alia, on the following
grounds:-

GROUNDS

A.

For that Honble CAT erred in not appreciating that memorandums

dated 03.10.2008, issued clarifying memorandum dated 01.09.2008
are in no way deviating from the decision of the government for

acceptance of recommendation of 6th Pay Commission under

Resolution dated 29.08.2008 nor do the same give a go-by to the
principle of modified parity. Therefore, while issuing memorandums
dated 03.10.2008 and 14.10.2008, modified parity / formula adopted
by Central Government pursuant to recommendation of 6th pay
commission was neither changed nor the same on the face of it go-o
to introduce or demonstrate any change or go-by to the principles of
modified parity accepted vide Resolution dated 29.08.2008.

B.

For that Honble CAT failed to appreciate that the following two
phrases (a) and (b) only explain the exact meaning of That the
revised pension in no case shall be 50% of the sum of the minimum
of the pay in the pay band and the grade pay thereon corresponding
to the pre-revised pay scale from which the petitioner had retired for
the purpose of application without introducing any change.

(a)

That the revised pension in no case, shall be 50% of the

minimum of the pay in the pay band plus the grade pay
corresponding to the pre-revised pay scale from which the
petitioner had retired.

(b)

That the pension calculated at 50% of the minimum of the pay

in the pay band plus grade pay would be calculated (i) at the

minimum of the pay in the pay band (irrespective of prerevised scale of pay) plus the grade pay corresponding to the
pre-revised pay scale.

For that Honble CAT failed to appreciate that minimum of the pay in
the pay band refers to the starting point of the pay band, therefore,
pension of S-29 grade retirees (retired before 01.01.2006) was to be
calculated in the pay band of Rs.37400 Rs.67000, by taking
Rs.37400 (starting point of pay band) as minimum pay for the
purpose of pension.

D.

For that Honble CAT failed to appreciate that when there was no
arbitrariness in fixing cut-off dated (as 01.01.2006) and issuing to
separate memorandums / schemes for pre-2006 and post-2006
retirees respectively, then how pension of pre-2006 retirees could be
directed for re-fixation, on erroneous comparison of pension amount
payable to retiree in December 2005 with the pension amount of
retiree of January 2006.

E.

For that Honble CAT failed to appreciate that when it found no

illegality and infirmity in the memorandum dated 01.09.2008, then it
was not justified to quash memorandums dated 03.10.2008 and
14.10.208 as these memorandums only clarified the meaning of

memorandum dated 01.09.008, for the sole purpose of practical

application dated calculation of pension of pre-2006 retirees.

F.

For that Honble CAT erred in not appreciating that fitment tables
(Annexure 1 to Memorandum dated 30.08.2008) were to be applied
for revising pay of Government servants who were in service as on
01.01.2006, therefore, pre-2006 retirees can not demand for refixation of their pension on the basis of revised pay fitment tables in
general and in particular on the basis of minimum revised pay of
pre0revised scales.

G.

For that Honble CAT erred in not appreciating and further erred in
quashing memorandum dated 14.10.2008, Annexure 1 whereof
provides for table based on which pension of pre-2006 pensioners is
to be calculated and that the said table is in accordance with
decision of the Government in accepting the recommendations of 6th
Pay Commission vide Resolution dated 29.08.2008.

H.

For that Honble CAT failed to appreciate that improvement of pay

scale of S-29 category from 39200-67000+grade pay of Rs.9000/- with
minimum pay of Rs.43280/- to Rs.37400/- - Rs.67000/- with grade pay
Rs.10,000/- with minimum pay of Rs.44700/- was meant for existing
Government employees who were in service as on 01.01.2006 and

had nothing to do with the Government employees who retired

before 01.01.2006, therefore, no benefit could have been granted to
pre-2006 retirees on the ground that the Government did not intend
to reduce the pension of pre-2006 retirees while improving the pay
scale of S-29 grade.

I.

For that Honble CAT failed to appreciate that financial constraints

and

implications

are

always

vital

and

important

factor

in

interpretation of economic / fiscal policies of Government as paying

capacity of employer cannot be ignored in granting and denying
monetary benefits to employees including ex-employees.

J.

For that Honble CAT, on the on hand find two separate schemes of
pension respectively for pre-2006 and post-2006 retirees as good in
law and held that they are governed by their respective schemes, on
the other hand erred in comparing of pension of pre and post 2006
retirees and holding that pension of Rs.23700/- of pre-2006 retirees
(retired in December 2005) being less than the pension of Rs.27,350/of post 2006 retiree (retired in January 2006) has the principal of
modified parity.

K.

For that Honble CAT failed to appreciate that pre-2006 retirees and
post 2006 retirees are not similarly situated, therefore, there could

not be equality among unequal, as such pre-2006 retirees could not

claim the same benefit of pension as that of available to post-2006
retirees.

L.

For that Honble CAT though noticed that pre-2006 retirees before it,
had not challenged memorandum dated 02.09.2008 issued for
determining of pension of post-2006 retirees and memorandum
dated 01.09.2008 for pre-2006 retirees found to be valid and legal, yet
Honble CAT comparing the pension of Post-2006 retirees and
pre=2006 retirees granted those benefit of pension to pre-2006
retirees which were not meant for them but for post 2006 retirees.

M.

For that revised pay rules providing for revised pay were applicable
to Government employees as on 01.01.2006, therefore, by taking into
consideration and importing minimum revised pay of Government
employee as on 01.01.2006, no benefit of pension could be granted
to pre-2006 employees on the basis of minimum revised pay.

N.

For that Honble CAT failed to appreciate that though the

phraseologies used in the resolution dated 29th Autust, 2008, para 4.2
of the OM dated 1st September 2008 and the clarificatory OM dated
3rd October 2008 were not identical, in so far as the Government is
concerned, the intent when reference is drawn to minimum of the

pay in the pay band, was always to refer to the starting point of the
pay band i.e. the minimum of the pay band. The minimum of pay in
the pay band is the pay from which the pay band starts and not the
minimum of pay which a serving employee is entitled to in
accordance with the fitment table. As such the petitioners who were
not in service as on 01.01.2006 cannot claim replacement of pay on
the ground of modified parity at par with those who were in service it
has accrued to the latter only by virtue of their being in service in the
respective pay scales as on 01.01.2006.

The contention of the

petitioners that their pension must be fixed at 50% of the minimum of

the pay in the pay band in accordance with the Fitment Tables for
serving employees cannot be conceded by the Government.

The

fitment tables in Annexure 1 of Ministry of Finance (Department of

Expenditure)s OM No. 1/1/2008-IC dated 30.08.2008 are of very
limited application. They are meant to only indicate the pay fixation
of serving employees as on 1.1.2006 who are moving over from the
5th CPC to 6th CPC Scales. These pay fitment tables are not relevant
even for subsequent drawals of increment and/or pay fixation on
promotion of serving employees. The contention of the petitioners
that their pension must be fixed with reference to the minimum of the
pay in the pay band as depicted by the pay fixation tables is,
accordingly, based on a completely incorrect understanding of the
principles of pay and pension fixation and is without merits.

O.

For that in regard to the difference in pension of those who retired

from S-29 grade in December 2005, Honble CAT failed to appreciate
that in comparison to an officer in the same or lower grade who
retired in January 2006, fixation of a cut-off date for the purpose of
extending retiral benefits is perfectly permissible and legitimate for
the Government. Pre-2006 and Post-1.1.2006 retirees cannot be
extended the same pensionary benefits as the Government of India
have, on the recommendations of the 6th CPC, issued two different
schemes for pre-2006 and post-2006 retirees.

It is, therefore, not

correct to compare a retiree in December 2005 with a retiree in

January 2006, both of whom are governed by a separate scheme of
pensionary benefits.

P.

For that Honble CAT failed to appreciate that the 5th CPC had
enunciated the concept of Modified Parity which has also been
adopted by the 6th CPC for revision/consolidation of pre-2006
pensioners. At the same time, with a view to de-layering the
Government, the 6th CPC also introduced, for the first time, the
concept of pay bands and grade pay.

A number of pre-revised

scales of pay, which were in operation before 6th Central Pay

Commission, have, accordingly, been merged into running pay

bands. The present disparities that have been referred to by the CAT
are mainly on account of this fact.

Q.

For that Honble CAT failed to appreciate that the Government has
allowed a uniform fitment benefit of 40% of basic pension in all
cases. Over and above this, if the pension, after consolidation falls
short of 50% of the minimum of the pay in pay band + grade pay,
stepping up is done. It is logical that when a number of pre-revised
pay scales are merged into a single pay band it may happen that
those individuals who are in the higher pay scales do not get
benefits in the same ratio and proportion as those who are in the
lower pay scales. The pre-revised scales of S-24 to S-29 ranging
from Rs.14330-18300 and going upto Rs.18400 22400 have all been
merged in PB-4 separated only by different grade pays of Rs.8700,
Rs.8900 and Rs.10000. Accordingly, the pension of pre-2006 retiree
in the pre-revised pay scale of S-24 shall be worked out at 50% of the
minimum of the pay in the pay band corresponding to the prerevised scale of pay along with grade pay thereon (in terms of OM
dated 1st September 2008) and this shall be 50% of Rs.37400+8700
which is equal to Rs.23050. In so far as the pre-revised pay scale of
S-29 is concerned, by the same formula, the revised pension shall
work out to Rs.23700.

It would be seen that there is a difference of

only RS.650 (Rs.23700 Rs.23050) in the pension of pre-2006 retiree

at the minimum of the pre-revised S-24 scale i.e. Rs.14300 and the
maximum of the pre-revised S-29 scale which is Rs.22400. This is,
not because of any illegal, arbitrary or capricious move by the
Government but merely on account of the bundling of several prerevised pay scales into one pay band.

In case succeeding Pay

Commissions continue with the concept of running pay bands, the

individual discrepancies or aberrations currently arising, because of
first time application, shall no loner arise.

R.

For that Honble CAT failed to appreciate that the Pay Commissions
are expert bodies and their recommendations are to be accepted as
part of an overall package.

It, therefore, cannot be anybodys

contention that recommendations which are manifestly to the

advantage of pensioners shall be wholeheartedly accepted while
those which may not yield the same degree of relative benefits are
liable to challenged and struck down in Court of Law.

S.

For that Honble CAT failed to appreciate that in a catena of

judgements, various Courts, including the Apex Court, have held that
it is the prerogative of the executive authorities to fix cut-off dates
and to determine issues of pay and pension fixation. The executive
takes these decisions based on a variety of considerations including
financial, administrative and other constraints. The Courts do not

generally interfere in this regard unless the principles adopted are

patently arbitrary or malafide. This is not the case in the present
instance.

T.

For that Honble CAT failed to appreciate that granting of benefit of

pay and pension is a matter of policy and the Government is entitled
to take into account various factors including financial implications
and availability of resources to decide what benefit or how much
benefit should be granted and from which particular time. Such a
policy is not open to judicial review unless the same is arbitrary and
against the public policy with the object to be achieved.

U.

For that Honble CAT failed to appreciate that the wisdom in a policy
decision of the Government as such is not justiciable unless such
policy decision is wholly capricious, arbitrary and whimsical thereby
offending the rule of law as enshrined in Article 14 of the
Constitution or such policy decision violates any statutory provision
or the provisions of the Constitution.

Save as aforesaid, the Court need not embark on unchartered area of

public policy.

V.

For that findings of Honble CAT are self contradictory, therefore,

liable to be set aside.

W.

For that findings Honble CAT failed in the impugned order are
contrary to material on record.

X.

For that impugned order of Honble CAT is not tenable nor is the
same in accordance with the law.

38.

The impugned order is liable to be set-aside as the same is

mechanical, perverse and contrary to material on record.

39.

It is submitted that petitioners have not filed any other petition or

application against the impugned common order dated 01.11.2011
passed by Central Administrative Tribunal in O.A.No.0655/2010,
O.A.No.3079 of 2009, O.A. No. 0306 of 2010 and O.A. No.0507 of 2010
before any other court, authority, tribunal and Honble Supreme
Court.
PRAYER

In view of the above, it is submitted that this Honble Court may

graciously be pleased to :

(a)

pass appropriate writ, directions or order in the nature of

certiorari or any other writ, direction on order dated 01.11.2011
passed by Honble Central Administrative Tribunal, principal
Bench in O.A.No.0655/2010, O.A.No.3079 of 2009, O.A. No.
0306 of 2010 and O.A. No.0507 of 2010;

(b)

Such other further direction which this Honble Court may

deem fit and proper in the facts of the case.
PETITIONER
THROUGH:

RUCHIR MISHRA,
ADVOCATE,
H-1337, LGF, LAGPAT NAGAR,
NEW DELHI 110024
New Delhi
Date :

/02/2012