Madras High Court Order - Notional increment/re-fixation of pensionary benefits

Madras High Court Order - Notional increment/re-fixation of pensionary benefits

F.No.A-23011/36/2013-Ad.IIA
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs

North Block, New Delhi,
Dated the 18 October, 2019

To,
All Pr. Chief Commissioners / Chief Commissioners / Director General under CBIC,

Subject: Grant of notional increment / re-fixation of pensionary benefits as per Hon’ble Madras High Court Order in WP No. 15732/2017 in the case of Sh.P.Ayyamperumal - regarding.

Sir/Madam,

1. I am directed to inform that the Order dated 15.09.2017 of the Hon’ble High passed in the matter of P.Ayyamperumal’s case (WP No.15732/ 2017) is in personam and not in in rem. Therefore, the CBIC has implemented the High Court’s order in personam after dismissal of review petition filed in the Supreme Court, for petitioner only which would not be quoted as precedent in future.

2. A number of cases on the similar grounds are pending at various fora, and similar demands from other similarly placed officers could also arise after Hon’ble Supreme Court’s Order dated 08.08.2019 in R.P.(C) No.1731/2019. Keeping this in mind, a request was made to DoPT seeking their opinion about the future course of action to be taken in case pertaining to similarly placed applicants and non ­ applicants.

Also check: Grant of one notional increment/pension benefits to retirees those who retired on 30th June as per Madras High Court Order

3. DoPT has now informed that Deptt. of Legal Affairs have observed that:

"It is very clear that the judgment of Hon’ble High Court of Madras passed in the matter of Sh. P.Ayyamperumal is in personam and not in rem."

4. Based on the above, DoPT has informed that in so far as other similar cases are concerned, the same may be defended on following grounds:-

4.1 In so far as P. Ayyamperumal case is concerned, it is stated that the judgment of Hon’ble High Court of Madras is in personam.

4.2 Further, the case of Sh. M Balasubramaniam referred by Hon’ble High Court in it’s judgment in P. Ayyamperumal case is related to Fundamental Rules of Tamil Nadu Government whereas P. Ayyamperumal case relates to Central Government Rules.

4.3. It is relevant to mention here that in a similar matter, Hon’ble High Court of Andhra Pradesh at Hyderabad in year 2005, in C.Subbarao case, has inter-alia observed as under:

In support of the above observations, the Division Bench also placed reliance on Banerjee case (supra). We are afraid, the Division Bench was not correct in coming to the conclusion that being a reward for unblemished past service, Government servant retiring on the last day of the month would also be entitled for increment even after such increment is due after retirement. We have already made reference to all Rules governing the situation. There is no warrant to come to such conclusion. Increment is given (See Article 43 of CS Regulations) as a periodical rise to a Government employee for the good behavior in the service. Such increment is possible only when the appointment is “Progressive Appointment” and it is not a universal rule.

Also read: Grant of Notional Increment on completion of 12 Months of Service

Further, as per Rule 14 of the Pension Rules, a person is entitled for pay, increment and other allowances only when he is entitled to receive pay from out of Consolidated Fund of India and continues to be in Government service. A person who retires on the last working day would not be entitled for any increment falling due on the next day and payable next day thereafter (See Article 151 of CS Regulations), because he would not answer the tests in these Rules.

Reliance placed on Banerjee case (supra) is also in our considered opinion not correct because, as observed by us, Banerjee case (supra) does not deal with increment, but deals with enhancement of DA by the Central Government to pensioners. Therefore, we are not able to accept the view taken by the Division Bench. We accordingly overrule the judgment in Malakondaiah case (supra).

4.4 In addition, subsequent to the judgment of Hon’ble High Court of Madras in P. Ayyamperumal’s case, Hon’ble CAT Madras Bench vide its orders dated 19.03.2019 in 0.A. No. 310/00309/ 2019 and O.A. No. 310/00312/ 2019 and Order dated 27.03.2019 in O.A. No. 310/00026/ 2019 has also dismissed the similar requests related with notional increment for pensionary benefits.

5. Accordingly, it is requested that all the pending / future court cases on the similar issue should be defended/ dealt with adequately on the above lines.

Yours faithfully,
sd/-
(A.K. Mishra)
Under Secretary to the Government of India

Option for pay fixation in the 7 CPC Pay Matrix levels to the Railway employees during the period 01/01/2016 to 25/07/2017

Option for pay fixation in the 7 CPC Pay Matrix levels to the Railway employees during the period 01/01/2016 to 25/07/2017

No. IV/NFIR/7 CPC (Imp)/2016/RB-Part II

Dated: 04/09/2017

The Secretary (E),
Railway Board,
New Delhi

Dear Sir,
Sub: Option for pay fixation in the 7 CPC Pay Matrix levels to the Railway employees during the period 01/01/2016 to 25/07/2017-reg.

Ref: (i) Railway Ministry's Notification vide RBE No. 90/2016 dated 29/07/2016.
(ii)     Railway Board's letter No. PC- VII/2016/1/6/2 dated 20/10/2016 - RBE No. 124/2016.
(iii) NFIR's letter No. IV/NFIR/7th CPC (Imp)/2016/RB-Part I dated 16/01/2017 & 07/08/2017.
(iv)    Railway Board's reply to NFIR vide No. PC- VII/2017/R-U/7 dated 31/03/2017.

Further to the above cited references, Federation has since found that on Zonal Railways, option 2 given by staff had not been accepted on the wrong plea that option opportunity has been allowed to those promoted/got financial upgradation under MACPS/got increment during the period 01/01/2016 and 28/07/2016 (i.e. date of notification). In this connection, Federation cites below the following instances as example:

(i)  Employees promoted between 29/07/2016 to 28/10/2016 and exercised option for fixation of pay in 7th CPC within the stipulated period electing option No. 2.

The pay of the Technicians GP 2800/Level 5 on promotion as Sr. Technicians GP 4200/Level 6 on 27/10/2016 has been fixed in the 7th CPC Pay Matrix as shown vide 'A' below whereas pursuant to option No. 2 exercised by staff, they are entitled for pay fixation on promotion as shown vide 'B' below:

Pay in 6th CPC as on 01/01/2016 GP 2800	Pay Revised & fixed in 7th CPC w.e.f. 01/01/2016	Pay in 7th CPC as on 27/10/2016	Pay in 6th CPC when continued upto 27/10/2016	Pay in 6th CPC on promotion to GP 4200 as on 27/10/2016	Pay required tofixed in 7th CPC taking into account option
12970	34900	35900	13360 (10560+2800)	15160 (10960+4200)	39900

Unfortunately, the staff have been denied their legitimate pay fixation benefit even after submission of their correct option in time.

(ii)  Another aberration is that in the case of Technicians who have been granted cadre restructuring w.e.f. 01/09/2016 vide RBE No. 116/2016, the Zonal Railways have issued promotion orders belatedly while at the same time, option opportunity not allowed, consequently pay fixation has been granted vide 'A' below instead granting pay fixation benefit (on the basis of re-option) as 'B' below:

Pay in 6th CPC as on 01/01/2016	Pay Revised & fixed in 7th CPC as on 01/01/2016	Pay in 7th CPC as on 01/09/2016 in L5	Pay in 6th CPC when continued till 31/08/2016	Pay in 6th CPC on promotion in GP 4200 as on 01/09/2016	Pay    to   be    fixed with option in 7th CPC in L6
15210	39200	40400	15670 (12870+2800)	17540 (13340+4200)	46,200

NFIR, therefore, requests the Railway Board to consider the above situations and issue clear clarificatory instructions, granting pay fixation benefit on the basis of re-option being exercised by staff as per charts 'B' above.NFIR contends that in as much as promotion allowed w.e.f. 01/09/2016, such staff are entitled for option opportunity in terms of RBE No. 90/2016 and 124/2016.

Yours faithfuly,
S/d,
(Dr. M. Raghavaiah)
General Secretary

Source : NFIR

7th CPC Bunching Anomaly : Denial of Bunching Increment

7th CPC Bunching Anomaly : Denial of Bunching Increment

7th CPC Bunching Anomaly : Denial of Bunching Increment due to anomaly in fixing the next stage (Cell) in each pay level with less than 35 increment rate.

Item - 2 - DENIAL OF BUNCHING INCREMENT DUE TO ANOMALY IN FIXING THE NEXT STAGE (CELL) IN EACH PAY LEVEL WITH LESS THAN 3% INCREMENT RATE.

(1) As per the Finance Ministry OM dated 07.09.2016, the grant of bunching increment is subject to the condition that the difference between the lower pay and higher pay should be at least 3%. This condition adversely affects many of the employees. Contrary to the claim of the 7th Pay Commission that increment rate of 3% is maintained, in many pay levels, the difference between lower cell and next higher cell is less than 3% showing that increment rate is less than 3%. Due to this inherent anomaly is granting justified (3%) increment the employees should not be made to suffer in the case of bunching. It is not the fault of the employees but due to faulty increment rate fixed by the commission in each pay level. This anomaly is to be set right by withdrawing the 3% condition from the Finance Ministry orders dated 01.09.2016.

(2) The pay as per the 7th CPC of MTS drawing pay of 7210 and 7430 in the pre- revised pay is bunched and fixed at Rs.19700. As per the bunching orders issued by Finance Ministry, the official drawing Rs.7430 in the pre- revised scale will get additional increment and will be fixed at Rs.20300/- with effect from 01.01.2016. But the MTS officials drawing Rs.7660/- in the pre-revised pay are also getting revised pay fixed at Rs.20300 with effect from 01.01.2016. It is requested that to remove the anomaly, the MTS officials who are drawing Rs.7660/- in the pre-revised scale may also be made eligible to get additional increment

Source: http://confederationhq.blogspot.in/

Pay Fixation and grant of increment in revised Pay structure

Pay Fixation and grant of increment in revised Pay structure

Railway Order

Government of India(Bharat Sarkar)
Ministry of Railways (Rail Mantralaya)
(Railway Board)

RBE No: 124/2016

S.No.6/PC-VII

File No.PC-VII/2016/1/6/2

New Delhi, dated: 20.10.2016

The General Manager/CAOs(R),
All India Railways & Production Units,
(As per mailing list)

Sub:- Fixation of pay and grant of increment in the revised Pay structure - clarifications - regarding.

Following the notification of Railway Services (Revised Pay) Rules, 2016, Railway Board has received references seeking clarifications regarding various aspects of fixation of pay in the revised pay structure as also pay fixation and grant of increment in future under revised pay structure. These matters have been considered by Ministry of Finance and the paints of doubts are clarified as under:

Sl.No.	Point of doubt	Clarification
1	As per the provisions of FR 22 (l)(a)(1), the Government Servants (other than those appointed on deputation to ex- cadre post or ad-hoc basis or on direct recruitment basis) have the option, to be exercised within one month from the date of promotion, to have the pay fixed under this rule from the date of such promotion/appointment or from the date of next increment.Some of the employees, promoted between 01.01.2016 and the date of notification of RS(RP) Rules, 2016 had opted for their pay fixation on promotion/financial up-gradation under MACPS from the date of their next increment in the lower grade. Consequent upon notification of RS(RP) Rules, 2016 i.e. 28th July, 2016, the option submitted by such employees has now turned out to be disadvantageous.Whether such employee may be allowed to revise their option under FR 22(I)(a)(1) at this stage. Whether employees appointed/promoted/granted financial upgradation during 02.01.2015 and 01.07.2015 will be entitled to grant of one increment on 01.01.2016	Under the changed circumstances after notification of RS(RP) Rules, 2016, the employee may be allowed to exercise revised option for fixation of pay under FR 22(I)(a)(1). Such revised option shall be exercised’ within one month of issue of this letter. Option so revised shall be final.Since, the provisions of RS(RP) Rules, 2016 are effective from 01.01.2016, no increment shall be allowed on 01.01.2016 at the time of fixation of pay in the revised pay structure.

(JAYA KUMAR.G)
Deputy Director, Pay Commission-VII
Railway Board

Railway Order