Full Text
HIGH COURT OF DELHI
LATE B.H. AHUJA THROUGH LR USHA AHUJA WIFE ....Petitioner
Through: Mr. Ranvir Singh, Adv.
Through: Mr. Abhishek Khanna, SPC
Singh, GP.
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT
1. This petition has been filed challenging the Order dated 19.03.2021 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as ‘Tribunal’) in O.A. No. 1022/2020, titled Late Sh. B.H. Ahuja vs. Union of India and Ors., dismissing the OA filed by the petitioner herein through his legal representative.
FACTS OF THE CASE
2. To give a brief background of facts in which the present petition arises, Sh. B.H. Ahuja joined service as a Draftsman on 07.05.1964, and thereafter was promoted to the post of Architect. After completing 38 years of service, he superannuated on 30.09.2002 in the pay scale of Rs.10,000-15,200 under the 5th Central Pay Commission (CPC). At that time, his basic salary was Rs.13,575/- per month, and his pension was accordingly fixed at Rs.6,772/- per month, which he kept drawing till 31.12.2005. To this extent, the petitioner has no grievance.
3. Thereafter, on 29.08.2008, the Government accepted the recommendations of the 6th CPC. Vide an Office Memorandum dated 30.08.2008 pay fixation orders were issued. The pay scale corresponding to B.H. Ahuja’s last pay scale was revised to PB-3 + GP Rs.6,600 (Rs.15,600-39,100 + GP Rs.6,600).
4. According to the concordance table, for those in service as on 01.01.2006, the basic pay corresponding to B.H. Ahuja’s basic pay of Rs.13,575/- was shown as Rs.25,250 + GP Rs.6600, totalling to Rs.31,850/-. However, for employees such as B.H. Ahuja, who had already superannuated as on 31.12.2005, a further clarification to the Office Memorandum dated 30.08.2008 was issued on 01.09.2008, which stated as follows: “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.” (emphasis supplied)
5. Certain clarifications thereto were also provided on 03.10.2008, wherein para 4.[2] was further modified as under: “The pension calculated at 50% of the minimum pay in the pay band 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.”
6. This was followed by an Office Memorandum dated 14.10.2008, wherein, on the basis of the clarification provided on 03.10.2008, the following was stated:
ANNEXURE -I xxx
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ xxx │ │ ANNEXURE -I │ │ xxx │ │ Sl. Pay Post/Grade Name Corresponding Corresponding Pension* xx │ │ No. Scale and Pay Scale of Pay 6th CPC Pay Grade Pay = 50% of │ │ w.e.f. w.e.f. Band/ Bands/scales sum Of │ │ 1.1.1986 1.1.1996 Scale min. of │ │ PB+ │ │ GP/scales │ │ Grade Scale │ ├──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1 2 3 4 5 6 7 8 xx │ │ xxx │ │ 21 xxx S-19 10000 PB-3 15600-39100 6600 11100 xx │ │ -325- │ │ 15200 │ │ │ │ Signature Not Verified │ │ Digitally Signed W.P.(C) 11759/2024 Page 3 of 18 │ │ By:REYMON VASHIST │ │ 7. Thereafter, an Office Memorandum dated 28.01.2013 was │ │ issued, which directed yet another change in the calculation of the │ │ pension of pre-2006 retirees with effect from 24.09.2012. It stated as │ │ under: │ │ “It has been decided that the pension of pre- │ │ 2006 pensioners as revised w.e.f. 1.1.2006 in │ │ terms of para 4.1 or para 4.2 of the aforesaid │ │ OM dated 1. 9.2008, as amended from time to │ │ time, would be further stepped up to 50% of │ │ the sum of minimum of pay in the pay band │ │ and the grade pay corresponding to the pre- │ │ revised pay scale from which the pensioner │ │ had retired, as arrived at with reference to the │ │ fitment tables annexed to the Ministry of │ │ Finance, Department of Expenditure OM │ │ No.1/112008-IC dated 30th August, 2008. In │ │ the case of HAG and above scales, this will be │ │ 50% of the minimum of the pay in the revised │ │ pay scale arrived at with reference to the │ │ fitment tables annexed to the above-referred │ │ OM dated 30.8.2008 of Ministry of Finance, │ │ Department of Expenditure.” │ │ (emphasis supplied) │ │ 8. The date of the applicability of changes stipulated in the Office │ │ Memorandum dated 28.01.2013 was thereafter preponed by an Office │ │ Memorandum dated 30.07.2015, to be effective from 01.01.2006. │ │ 9. In the midst of these evolving instructions governing the │ │ pension fixation of pre-2006 retirees, the petitioner’s pension was │ │ revised vide an Order dated 01.10.2013 to Rs.15,305/- per month with │ │ effect from 01.01.2006. │ │ 10. Thereafter, the 7th CPC came into effect from 01.01.2016, and │ │ an order for revision of pension was issued vide Office Memorandum │ │ Signature Not Verified │ │ Digitally Signed W.P.(C) 11759/2024 Page 4 of 18 │ │ By:REYMON VASHIST │ │ dated 12.05.2017. Further instructions were issued by the Department │ │ of Pension and Pensioners’ Welfare (‘DOP&PW’) on 06.07.2017, │ │ along with concordance tables for notional pay fixation as of │ │ 01.01.2016. │ │ 11. For the pay scale and basic pay of Rs. 13,575/- drawn by B.H. │ │ Ahuja at the time of superannuation, the notional basic pay fixation │ │ under 6th CPC as of 01.01.2006 was shown as Rs. 31,850/-, while the │ │ notional pay fixation under the 7th CPC was calculated as Rs.83,300/- │ │ per month, and the revised pension was accordingly fixed at │ │ Rs.41,650/- per month (50% of Rs.83,300/-). The family pension was │ │ fixed at Rs.24,990/- per month. │ │ 12. The petitioner's grievance concerns the revision of pension │ │ under the 6th CPC for the period from 01.01.2006 to 31.12.2015. │ │ 13. It is the case of the petitioner that the pension should be revised │ │ to 50% of Rs.31,850/-, that is, Rs.15,925/- per month on actual basis, │ │ with effect from 01.01.2006, instead of Rs.15,305/- per month that │ │ was actually granted. │ │ 14. The petitioner filed OA No.2921/2017 before the learned │ │ Tribunal claiming the above relief, which was disposed of on │ │ 27.09.2018 with a direction to the respondents to pass a speaking │ │ order. │ │ 15. The petitioner also preferred a Writ Petition thereagainst before │ │ this Court. │ │ 16. During the pendency of the Writ Petition, the respondents │ │ passed a speaking order, rejecting the claim of petitioner. The Writ │ │ Signature Not Verified │ │ Digitally Signed W.P.(C) 11759/2024 Page 5 of 18 │ │ By:REYMON VASHIST │ │ Petition was, dismissed as withdrawn on 28.11.2019 and this Court on │ │ 10.01.2020, basis a clarification provided by the respondents, further │ │ stated that as per 7th CPC instructions, pay was required to be │ │ ‘notionally fixed’ for earlier CPCs to arrive at pay fixation under the │ │ 7th CPC from 01.01.2006 and not from 01.01.2016. │ │ 17. As the petitioner's plea for pension fixation at Rs.15,925/- for │ │ the period from 01.01.2006 to 31.12.2015, in place of Rs.15,305/- on │ │ actual basis, was not accepted by the respondents in the Speaking │ │ Order, the petitioner sent further representations to the respondents, │ │ which went unanswered, and eventually led to the subject OA being │ │ filed. The same, as noted herein above, has been dismissed by the │ │ learned Tribunal by way of the Impugned Order. │ │ SUBMISSIONS OF THE LEARNED COUNSEL FOR THE │ │ PETITIONER │ │ 18. The learned counsel for the petitioner submits that the │ │ clarification dated 03.10.2008 to the Office Memorandum dated │ │ 01.09.2008 was without the approval of the Union Cabinet and had │ │ arbitrarily altered the pension calculation formula. He submits that the │ │ original formula provided for “50% of the sum of minimum pay in the │ │ pay band and grade pay corresponding to the pre-revised pay scale”, │ │ to be payable as pension, whereas the clarification changed this to │ │ “50% of minimum pay in the pay band (irrespective of pre-revised │ │ scale) plus grade pay.” He contends that this clarification has resulted │ │ in discriminatory treatment to pre-2006 retirees, reducing their │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
29. However, the respondents have not implemented these instructions, but have argued that the pension of the petitioner was to be fixed as per the Office Memorandum dated 01.09.2008 as clarified by the clarification dated 03.10.2008 and the Office Memorandum dated 14.10.2008 which mandated the minimum pay in the pay band ‘irrespective of the pre-revised pay scale‟, that is, by taking minimum pay in the pay band itself instead of taking Rs. 25,250/-.
30. It is the case of the petitioner that these clarifications/amendments to the pension calculation formula were without authority and have been quashed. It is also his case that the Office Memorandums dated 28.01.2013 and 30.07.2015 have been issued in order to clarify the same.
31. We are in agreement with the contention of the learned counsel for the petitioner. The legality of these clarifications has been discussed in a catena of Judgements passed by the learned Tribunal, this Court and the Supreme Court, and the matter is no longer resintegra.
32. The Full Bench of the learned Tribunal in its Order dated 01.11.2011 passed in Central Government SAG (S-29) Pensioners Association & Anr.(supra), dealt with four connected applications filed by pre-2006 Central Government retirees of the S-29 scale who were seeking pay parity with post-2006 retirees based on the 6th CPC. While the learned Tribunal opined that the government had the authority to create different pension schemes with cut-off dates for pre-2006 and post-2006, it could not have arbitrarily altered its own accepted formula for pension calculation issued vide OM dated 30.08.2008 through the unauthorised clarifications dated 03.10.2008 and 14.10.2008. The learned Tribunal found that these clarifications illegally modified the 6th CPC recommendations as accepted by the Government vide Resolution dated 29.08.2008 and the Office Memorandum dated 30.08.2008 by changing the pension calculation formula from “50% of the sum of minimum pay in the pay band and grade pay corresponding to the pre-revised pay scale” to “50% of minimum pay in the pay band (irrespective of pre-revised scale) plus grade pay”. We quote from the Order as under:
not available to the functionary of the Government in the garb of clarification thereby altering the recommendations given by the VI CPC, as accepted by Government. According to us, deletion of the words “sum of the” “and grade pay corresponding to the prerevised scale” and addition of the words “irrespective of the pre-revised scale of pay plus”, as introduced by the respondents in the garb of clarification vide OM dated 3.10.2008 amounts to carrying out amendment to the resolution dated 29.08.2008 based upon para 4.1.47 of the recommendations of the VI CPC as also the OM dated 1.9.2008 issued by the Central Government pursuant to the aforesaid resolution, which has been accepted by the Cabinet. Thus, such a course was not permissible for the functionary of the Government in the garb of clarification, that too, at their own level without referring the matter to the Cabinet.
27. We also wish to add that the Pay Commissions are concerned with the revision of the pre-revised „pay scales‟ and also that in terms of Rule 34 of the CCS (Pension) Rules, 1972 the pension of retirees has to be fixed on the basis of the average emoluments drawn by them at the time of retirement. Thus, the prerevised scale from which a person has retired and the emoluments which he was drawing at the time immediately preceding his retirement are a relevant consideration for the purpose of computing revised pension and cannot be ignored. As such, it was not permissible for the respondents to ignore the pre-revised scale of pay for the purpose of computing revised pension as per the modified parity in the garb of issuing the clarifications, thereby altering the modified parity/formula, which was accepted by the Central Government vide its resolution dated 29.08.2008. xxx
29. From the above extracted portion it is clear that the principle of modified parity, as recommended by the V CPC and accepted by the VI CPC and accepted by the Central Government provides that revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner had retried. According to us, as already stated above, in the garb of clarification, respondents interpreted minimum of pay in the pay band as minimum of the pay band. This interpretation is apparently erroneous, for the reasons: a) if the interpretation of the Government is accepted it would mean that pre-2006 retirees in S-29 grade retired in December, 2005 will get his pension fixed at Rs.23700/and anther officer who retired in January 2006 at the minimum of the pay will get his pension fixed at Rs.27350/-. This hits the very principle of the modified parity, which was never intended by the Pay Commission or by the Central Government; b) The Central Government improved upon many pay scales recommended by the VI CPC. The pay scale in S-29 category was improved from Rs.39200-67000/- plus Grade Pay of Rs.9,000/- with minimum pay of Rs.43280/- to Rs.37,400-67000/- with grade pay of Rs. 10,000/- with minimum pay of Rs.44,700/- (page 142 of the paper-book). interpretation of the Department of Pension is accepted, this will result in reduction of pension by Rs.4,00/per month. The Central Government did not intend to reduce the pension of pre-2006 retirees while improving the pay scale of S-29 grade; c) If the erroneous interpretation of the Department of Pension is accepted, it would mean that a Director level officer retiring after putting in merely 2 years of service in their pay band (S-24) would draw more pension than a S-29 grade officer retiring before 1.1.2006 and that no S-29 grade officer, whether existing or holding post in future will be fixed at minimum of the pay band, i.e., Rs.37,400/-. Therefore, fixation of pay at Rs.37,400/- by terming it as minimum of the pay in the pay band is erroneous and ill conceived; and d) That even the Minister of State for Finance and Minister of State (PP) taking note of the resultant injustice done to the pre- 11.2006 pensioners (pages 169-170) had sent formal proposal to the Department of Expenditure seeking rectification but the said proposal was turned down by the officer of the Department of Expenditure on the ground of financial implications. Once the Central Government has accepted the principle of modified parity, the benefit cannot be denied on the ground of financial constraints and cannot be said to be a valid reason.
30. In view of what has been stated above, we are of the view that the clarificatiory OM dated 3.10.2008 and further OM dated 14.10.2008 (which is also based upon clarificatiory OM dated 3.10.2008) and OM dated 11.02.2009, whereby representation was rejected by common order, are required to be quashed and set aside, which we accordingly do. Respondents are directed to re-fix the pension of all pre-2006 retirees w.e.f. 1.1.2006, based on the resolution dated 29.08.2008 and in the light of our observations made above. Let the respondents re-fix the pension and pay the arrears thereof within a period of 3 months from the date of receipt of a copy of this order. OAs are allowed in the aforesaid terms, with no order as to interest and costs.”
33. The Punjab and Haryana High Court approved the above Order in its Judgement in R.K. Aggarwal and Ors. vs. State of Haryana & Ors., 2012 SCC OnLine P&H 24416, holding as under: “26. It is for the aforesaid reasons, we remark that there is no need to go into the legal nuances. Simple solution is to give effect to the resolution dated 29.08.2008 whereby recommendations of the 6th Central Pay Commission were accepted with certain modifications. We find force in the submission of learned counsel for the petitioners that subsequent OMs dated 03.10.2008 and 14.10.2008 were not in consonance with that resolution. Once we find that this resolution ensures that “the fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than 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 pensioner had retired”, this would clearly mean that the pay of the retiree i.e. who retired before 01.01.2006 is to be brought corresponding to the revised pay scale as per 6th Central Pay Commission and then it has to be ensured that pension fixed is such that it is not lower than 50% of the minimum of the pay in the band and the grade pay thereon. As a result, all these petitions succeed and mandamus is issued to the respondents to refix the pension of the petitioners accordingly within a period of two months and pay the arrears of pension within two months. In case, the arrears are not paid within a period of two months, it will also carry interest @ 9% w.e.f. 01.03.2013. There shall, however, be no order as to cost.”
34. The Special Leave Petition against the said Judgment being
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ SLP(C) No.19784/2013 filed before the Supreme Court was dismissed │ │ as withdrawn vide Order dated 28.10.2013. │ ├──────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 35. This Court also, in its Judgment dated 29.04.2013 passed in │ │ Union of India and Anr. vs. Central Govt. Sag & Ors.(supra), while │ │ Signature Not Verified │ │ Digitally Signed W.P.(C) 11759/2024 Page 17 of 18 │ │ By:REYMON VASHIST │ │ Signing Date:10.09.2025 │ │ 19:45:04 │ │ placing reliance on the Judgment of the Punjab and Haryana High │ │ Court in R.K. Aggarwal (supra), upheld the learned Tribunal’s Order, │ │ while further extending the applicability of the Office Memorandum │ │ to take effect from 01.01.2006 instead of 24.09.2012. │ │ 36. The Judgement of this Court has also been upheld by the │ │ respectively. │ │ 37. The above position also stands accepted in the Office │ │ Memorandum dated 28.01.2013 and 30.07.2015. │ │ 38. In view of the above, the Impugned Order cannot be sustained │ │ and is accordingly set aside. │ │ 39. The pension/Family Pension of Late Shri B.H. Ahuja shall be │ │ re-fixed by the respondents strictly in accordance with the fitment │ │ table annexed with the OM dated 30.08.2008 and the arrears due shall │ │ be released to the petitioner, along with interest at the rate of 6% p.a., │ │ within a period of eight weeks from today. │ │ 40. The respondents shall also pay costs of Rs. 20,000/- to the │ │ petitioner within the same period. │ │ 41. The petition is allowed in the above terms. │ │ NAVIN CHAWLA, J. │ │ RENU BHATNAGAR, J. │ │ SEPTEMBER 10, 2025/ik │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
35. This Court also, in its Judgment dated 29.04.2013 passed in Union of India and Anr. vs. Central Govt. Sag & Ors.(supra), while placing reliance on the Judgment of the Punjab and Haryana High Court in R.K. Aggarwal (supra), upheld the learned Tribunal’s Order, while further extending the applicability of the Office Memorandum to take effect from 01.01.2006 instead of 24.09.2012.
36. The Judgement of this Court has also been upheld by the Supreme Court vide Orders dated 29.07.2013 and 17.03.2015 passed in SLP(C) No. 23055/2013 and SLP(C) No. 36148-36150/2013, respectively.
37. The above position also stands accepted in the Office Memorandum dated 28.01.2013 and 30.07.2015.
38. In view of the above, the Impugned Order cannot be sustained and is accordingly set aside.
39. The pension/Family Pension of Late Shri B.H. Ahuja shall be re-fixed by the respondents strictly in accordance with the fitment table annexed with the OM dated 30.08.2008 and the arrears due shall be released to the petitioner, along with interest at the rate of 6% p.a., within a period of eight weeks from today.
40. The respondents shall also pay costs of Rs. 20,000/- to the petitioner within the same period.
41. The petition is allowed in the above terms.
NAVIN CHAWLA, J. RENU BHATNAGAR, J. SEPTEMBER 10, 2025