Manish Garg, Member (J)
1. This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s) and
interim relief:
“Relief:
(a) to quash and set aside the order dated 06.11.2018 by which the respondents have reduced the pension of the Applicant which has been fixed as
per 7th Pay Commission report vide PPO dated 18.09.2018 and direct the respondents to grant the revised pension of the applicant as per PPO dated
18.09.2018 w.e.f. 01.01.2016 i.e. Rs.17,650/- + DA and enhanced pension w.e.f. March 2020 on attaining the age of 80 years.
(b) Direct the respondents to release the arrears of pension on the above calculation with interest thereof.
(c) Any other order/relief as this Hon’ble Tribunal may deem fit under the present facts and circumstances of the case.
Interim Relief:
The applicant seeks direction for interim relief to the respondents to release the revise enhanced 20% Pension as per rule as the Applicant has
attained the age of 80 years on 13.03.2020 as he is in dire need of money at this age.â€
2. Brief Facts:
The sum and substance of the case of the applicant is that he is 80 years old and aggrieved by the order of the respondents that his pension has been
reduced without putting him to notice. His pay was re-fixed at Rs.35,300/- making him entitled to pension of Rs.17,650/- however, his pay has been
reduced to Rs.26,000/- and pension was fixed at Rs.13000/- instead of Rs.17,650/- by the respondents without any reason or order. In this regard, he
sent representations dated 08.05.2019 and 12.07.2019 and a legal notice dated 26.02.2020. The Ministry of Civil Aviation, PAO Director General of
Civil Aviation (DGCA) vide letter dated 18.03.2020 (Annexure A-8) in response to legal notice has informed that “the revision of pension case of
applicant has been revised according to the calculation submitted by the department. It is further stated that department is the sanctioning authority for
pension cases. So, if department provides calculation afresh of revised pension to PAO, this office will check the same in light of the relevant rules of
pension and process the same.†This shows that the department, before  reducing the pension, have not even get it checked from the Pay &
Accounts Office, DGCA. He is also aggrieved by non-release of enhanced pension on attaining the age of 80 years as per Rules as he attained the
age of 80 years on 13.03.2020. The applicant filed OA No.1721/2020, which was dismissed as withdrawn on 09.11.2020 with liberty to file a fresh
one. Hence this OA.
3. Based on the above facts, the applicant seeks two fold reliefs. Firstly, he is aggrieved by the refixation of pay whereby, his pay has been reduced
from Rs.26000/- to Rs.17650/- vide Impugned Order dated 06.11.2018 (Annexure A-1). Secondly, he is aggrieved by non-release of enhanced
pension on attaining the age of 80 years as on 13.03.2020. Learned counsel has also filed his written submissions and has relied upon decision
rendered in OA No.21/722/2015 titled S.Hanumanthu vs. Union of India dated 21.10.2019 wherein it is held that this Tribunal has to necessarily
direct the respondents to fix the pension of the applicant therein based on principal of fixing pension @50% of the last pay drawn by him for having
officiated in HSG Grade-I. The amount recovered has to be refunded to the applicant because he worked for the pay he is entitled. The relevant part
of the order reads as under:
“IV. Therefore, in view of the aforesaid, the OA succeeds. Consequently, the respondents are directed as under:
i) To fix the pay of the applicant keeping in view Rule 9 of Fundamental Rules and CCS (Pension) Rules, 1972 cited supra, by reckoning the last pay
drawn by the applicant while discharging his duties in HSG Grade I and take a decision in regard to the refund of Rs.4,787 already recovered from the
applicant;
ii) Time granted to implement this order is three months from the date of receipt of the order.
iii) The OA is thus allowed with the above directions, with no order as to costs.â€
4. Per contra, learned counsel for respondents has taken preliminary objection, inter alia, contended that applicant was promoted to the post of
Foreman (Machinist Grade-II) on ad hoc basis in August 1988. As per para 6 of Ministry of Civil Aviation/DGCA OM Reference No.A-38020/23/
2017-E-1 Section-DGCA dated 29.05.2019, ex-CAD employees who were promoted on ad hoc basis by NAA and not covered under para 3(i) and
(ii) of the above said OM are not entitled to the benefits of ad hoc appointment for pension purposes. Hence, applicant is not entitled for the benefits
of ad hoc appointment for pension purposes.
5. Heard learned counsel for the parties and also perused the pleadings on record and written submissions filed by the applicant.
6. Analysis:
6.1 The case of the applicant hinges on the interpretation of the Office Memorandum Reference No.A-38020/23/2017-E-1 Section-DGCA dated
29.05.2019, which reads as under:
“Subject: Instructions issued in respect of ex-CAD employees absorbed in National Airports Authority (Now Airports Authority of India) relating
to continuation/regularisation of ad-hoc appointments granted by NAA for pensionary benefits - clarification regarding
The undersigned is directed to say that a large number of representations have been received from the ex-CAD employees who were absorbed in
National Airports Authority (now Airports Authority of India) for considering their last pay drawn in the pay scale of ad-hoc appointment granted to
them by National Airports Authority for pensionary benefits. These employees were granted pensionary benefits taking into accounts the pay drawn
by them in the substantive posts held by them at the time of her absorption on 2.10.1989 for the service rendered by them in the Civil Aviation
Department.
2. In this connection, it may be brought out that this issue of continuation/regularisation of ad hoc appointments of absorbee employees and counting of
such ad hoc appoiniments/promotions for the purpose of pensionary benefits was earlier considered in consultation with the Ministry of Civil Aviation
and Department of Pension & Pensioners’ Welfare and instructions were accordingly issued by the National Airports Authority vide their letter
No.A.32020/1/88-PP dated 1.8.1988 (copy enclosed).
3. As per the decision taken vide NAA'S letter dated 1.8.1988, ex-post facto sanction for all such promotions had to be granted by the
MCA&T/DGCA whichever is the competent authority for such regularisation of' ad hoc promotions so that the emoluments drawn by such officers
would have automatically be covered under the rules governing pensionary benefits, however, while according ex-post facto sanction to the ad hoc
promotions, the following conditions were prescribed by the Government:
(i) Promotions already made by Government upto 31.05.1986 in various cadres and continued by N.A.A. beyond 01.06.1986 will be treated as
promotions made in Government service. Such a sanction will be issued with the approval of the administrative Department on a reference being
made by N.A.A.
(ii) Ad hoc Promotions of officers afresh from 01.06.1986 onwards (not covered by item (i) and from time to time against vacancies existing in various
grades prior to the date of formation of N.A.A. and ad-hoc promotions made against vacancies that arose due to retirement, resignation, death etc.
would be accorded ex-post facto sanction by the Ministry of Civil Aviation & Tourism/DGCA, as the case may be, as a one-time measure. Such
proposals will be made by N.A.A
(iii) In future cases of the type mentioned at (ii) above, NAA will be making ad hoc promotions where they become inevitable only with the prior
approval of the cadre controlling authority.
iv) Promotions made against the posts created by NAA after the transfer of work from Government should not be taken into account.
(v) Government has agreed to consider only those cases which fulfil normal recruitment rules as applicable to such promotions under Government.
4. Accordingly, the proposals to ex-post facto sanction of DGCA being the competent authority were received in DGCA from National Airports
Authority in respect of the employees in the categories of para 3 (1) & (ii) above and the sanctions of the competent authority for continuation of ad-
hoc appointments and counting of such appointment for pensionary benefits were issued by DGCA vide Notifications dated 10.07.1990 and dated
04.06.1992, respectively.
5. Now, on receipts of large number of representations of such ex-CAD employees through various forums for regularisation of ad-hoc promotions
granted by NAA and re-fixation of their pension by giving the benefits of such ad-hoc appointment for pension purposes, the matter has been re-
looked in consultation with Ministry of Civil Aviation and Department of Pension and Pensioners Welfare, on the basis of the relevant and available
records obtained from the Airports Authority of India, and it has been observed that the absorbed ex-CAD employees who are covered under the
categories mentioned in para 3 (i) and (ii) above, have already been extended the benefits by issuing ex-post-facto sanction of the competent authority
in DGCA.
6. In view of the above, it is clarified that the instructions issued through NAA's letter No. A.32020/1/88-PP dated 1.8.1988 still holds good and,
therefore, ex-CAD employees who were promoted on ad-hoc basis by NAA and not covered under para 3(i) and (ii) above are not entitled for the
benefits of ad-hoc appointment for pension purposes.
7. In case, any regional office of DGCA and PAO/RPAOs had extended the benefit to such ex-CAD employees who were not covered under the
said instructions, these cases will be reviewed and the excess amount, if any, paid to them shall be recovered.
8. With the issue of this Office Memorandum, all such representations received from ex-CAD employees/pensioners for extending the benefit of ad-
hoc appointment for pension purposes stands disposed off.â€
6.2 On perusal of the record, it is seen that the respondent No.1 informed that the department concerned is sanctioning authority for pension cases and
respondent Nos. 2 & 3 are supposed to take decision regarding any irregularity in calculation sheet of revised pension in light of relevant rules of
pension and process the same. The relevant portion of the communication dated 18.03.2020 reads as under:
“Revision of Pension case in r/o Sh. Har Mohan Singh, Holder of PPO No.410569102435.
Sir,
With reference to your legal notice dated 26.02.2020 forwarded to PAO DGCA on the subject cited above and to state that the revision of pension
case in r/o Sh. Har Mohan Singh, Holder of PPO No. 410569102435 has been revised according to the calculation submitted by the department. It is
further stated that department is the sanctioning authority for pension cases. So if department provides calculation afresh of revised pension to PAO
this office may check the same in light of the relevant rules of pension and process the same. However this office has already asked the department
for his service book for verification of his last pay drawn (copy enclosed).â€
6.3 Be that as it may, in the given facts and circumstances, it is the apathy on the part of department for non-considering the request of the applicant
in the light of OM dated 29.05.2019. As it can be seen from the record that the applicant was promoted to the post of Foreman on ad hoc basis in
August 1988, the said position continued till his superannuation, i.e., 31.03.1998. The OM dated 29.05.2019 itself was in respect of Ex-CAD
employees absorbed in National Airport Authority relating to continuation/regularization of adhoc appointments granted for pensionary benefits. A
clarification was issued by NAA vide letter dated 01.08.1988, without taking into consideration the stand taken by the respondents in their counter
affidavit that “ex-CAD employees who were promoted on ad hoc basis by NAA and not covered under para 3 (i) and (ii) of the above said OM,
are not entitled for the benefits of ad hoc appointment for pension purposes. Hence, applicant is not entitled for the benefits of ad hoc appointment for
pension purposes,†is contrary to the object and purpose of the above clarification. The Competent Authority, respondent No.2, should pass a fresh
and speaking order in the light of OM dated 25.09.2019 which came into effect only to remove anomaly. The Competent Authority has to pass a
reasoned and speaking order as to why the applicant is not covered by virtue of OM dated 29.05.2019, more particularly, taking into account that the
ex-post facto sanction has already been granted by Ministry of Civil Aviation & Tourism, DGCA for said regularization or ad hoc promotion so that
emoluments drawn by such officer would automatically be covered under the rules governing pensionary benefits, as is clearly reflected from Clause -
4 & 5 of the aforesaid OM which is reproduced herein for ready reference:
“4. Accordingly, the proposals to ex-post facto sanction of DGCA being the competent authority were received in DGCA from National Airports
Authority in respect of the employees in the categories of para 3 (1) & (ii) above and the sanctions of the competent authority for continuation of ad-
hoc appointments and counting of such appointment for pensionary benefits were issued by DGCA vide Notifications dated 10.07.1990 and dated
04.06.1992, respectively.
5. Now, on receipts of large number of representations of such ex-CAD employees through various forums for regularisation of ad-hoc promotions
granted by NAA and re-fixation of their pension by giving the benefits of such ad-hoc appointment for pension purposes, the matter has been re-
looked in consultation with Ministry of Civil Aviation and Department of Pension and Pensioners Welfare, on the basis of the relevant and available
records obtained from the Airports Authority of India, and it has been observed that the absorbed ex-CAD employees who are covered under the
categories mentioned in para 3 (i) and (ii) above, have already been extended the benefits by issuing ex-post-facto sanction of the competent authority
in DGCA.â€
6.4 In the aforesaid reference to Clause-4 & 5, since the ad hoc promotions have already been granted by issuing ex-post facto sanction, therefore,
the Competent Authority may adjudicate and issue necessary directions with regard to the applicant herein. Merely issuing of an impugned PPO does
not suffice the purpose, more particularly, in the light of the fact that as per communication dated 18.03.2020, the respondent Nos.2 & 3 ought to have
carried out the exercise in term thereto. Reference is also drawn to the decision rendered by the Hon’ble Apex court in Punjab State Electricity
Board vs. Jit Singh, CA No.1793/2009 dated 23.03.2009, wherein the Hon’ble Apex Court had remanded the matter for a fresh consideration
inasmuch as in the present matter, applicant is also seeking the benefit of OM wherein ex-post facto sanction has been accorded to the employees like
applicant. The relevant part of the order is reproduced below:
“14) In the instant case, the facts are not identical. The respondent is an employee of Punjab State Electricity Board and not an employee of the
State Government. He is not claiming any benefit under Punjab Civil Services Rules, but claiming benefit in view of the circulars issued by the Board.
He has not even questioned the vires of the circular issued by the Board, wherein a cut off date is prescribed by limiting to those ad hoc employees
who are still in service and whose services have been regularized etc. Therefore, in our opinion, the High Court by placing reliance on a decision
which does not have any bearing on the fact situation pleaded by the petitioner ought not to have observed that the principles enunciated in Kesar
Chand's case will apply to the case of the respondent and, therefore, authorities of the Board should reconsider the claim of the respondent-employee
in the light of the principles enunciated in the said case. Therefore, we cannot sustain this portion of the order passed by the High Court.
15) Now, we come to the order passed by the Board dated 5.10.2004.
In our view, it is suffice to state, that, the order is a non-speaking order in the sense, it does not contain any reasons much less cogent reason so fair
play requires recording precise and cogent reasons when an order affects the right of citizen. In the impugned order, we do not see any reason in the
order passed by the authorities of the Board. Therefore, in our view, the High Court ought to have set aside the order and remitted the matter to the
authorities of the Board, to reconsider the claim of the respondent in accordance with law. That only means the order should have been an open
remand, instead of asking the Board to reconsider the claim with reference to a particular principle laid down by the High Court in a different factual
scenario. Since, we are remanding the matter, we have not answered the second issue.â€
7. Conclusion:
In view of the above, the case is remitted back to the Competent Authority - respondent Nos.2 & 3 to consider the claim of the applicant on both the
counts, i.e.,
(i) wrong refixation of pay vide impugned order dated 06.11.2018;
(ii) non-release of enhanced pension on attaining the age of 80 years as on 13.03.2020, with an open mind, and accord the benefit to the applicant in
accordance with law, preferably within a period of two months from the date of receipt of certified copy of this order. OA is disposed off in aforesaid
terms. There shall be no order as to costs.
