Union of India
Through Secretary to the Govt. of India,
Ministry of Home Affairs,
North Block, New Delhi 110001.
Secretary to the Govt. of India,
Department of Pension & Pensioners’ Welfare,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi – 110001.
Secretary to the Govt. of India,
Department of Personnel & Training ,
Ministry of Personnel, Public Grievances & Pensions
North Block, New Delhi – 110001.
2. In his representation, Shri Yadav has contended that the pensionary benefits accrue to a person when he acquires the status of Pensioner. As per the judgment of the Hon’ble Supreme Court in the case of S. Banerjee, the persons born on 1st January, 2015 were in Government service upto midnight of 31st December, 2015 and acquired the status of pensioner only in the forenoon of 1st January, 2016. Applying the law laid down by the Hon’ble Supreme Court in the case of S. Banerjee, the persons born on 1st January, 1956 acquired the status of pensioner only in the forenoon of 1st January, 2016. The recommendations of the 7th Pay Commission are likely to be implemented with effect from 1st January, 2016.
4. In the case of Shri Yadav, he actually retired on 31.12.2015 and was not in service on 1.1.16. Judgment of Hon’ble Supreme Court in the case of Shri S. Benerjee has no relevance in his case. In fact Rule 5 (2) of CCS (Pension) Rules, has already been amended and as per the amended rule date of voluntary retirement is treated as the last working day. Therefore, those who retired voluntarily on 1.1.2016 would be eligible for pay and pension benefits of 7th CPC as a post 1.1.2016 retiree.
5. Since Shri Yadav retired on superannuation on 31.12.2015, he is to be treated as a pre -2016 pensioner and is accordingly entitled to the benefit in revision of pension under the OM No.38/37/46-P&PW(A)(ii), dated 4.8.16.”
B) That this Hon’ble Tribunal may be pleased to hold and declare that the impugned orders/action of the respondents is illegal, arbitrary, discriminatory, unconstitutional and violative of Articles 14 and 16 of the Constitution of India and quash and set aside the same and be pleased to further hold that since the Applicant superannuated with effect from the afternoon of 31.12.2015 and relinquished the charge of the post of Deputy Secretary in the afternoon of that date, he, as per law, is deemed to have effectively retired on or with effect from 1.1.2016 and therefore, cannot be treated as pre- 2016 pensioner and direct the respondents to grant the retiral benefits such as fixation of pension, DCRG, commutation of pension, leave encashment etc. accordingly and pay the arrears thereof with 12% interest within a specified time-frame.”
“ 16. We are unable to accept this contention. The two officials had actually continued in service till the midnight of December 31, 1995. It is only from January 1, 1996 that they had ceased to be in service and acquired the status of pensioners. Resultantly their claim to pension had to be determined at the rate prevalent on the date. This is precisely what the Tribunal has given them. The case is in no way different from that of Banerjee. In both cases, the pay had been paid till December 31″
“The decision reported in 1989 Supp. 2 SCC 486 (S. Banerjee v. Union of India & Ors.) has been followed by the learned Single Judge while passing the impugned order. In that case the appellant had filed an application for voluntary retirement which was accepted from the forenoon of 1st January, 1986 and in that view of the matter, he was found to be entitled to the benefit of para 17.3 of the recommendation of the Pay Commission. This decision is not applicable to the case of the respondent in the instant case as per Army Rules, which is applicable to the respondent who retired on 31.12.1995. None of the decision cited by the respondent are applicable to the case on hand. On the other hand, the decision cited by the respondent are applicable to the case on hand. On the other hand, the decision cited by the learned counsel for the appellants are applicable on all the fours to the case on hand and the impugned order calls for interference.”
“ 6:17.Supreme Court Ruling In S. Benerjee v. Union of India, a definite finding is on record by their Lordships of the Supreme Court of mdia that when the employee has retired on the last date of the month, his date of retirement has to be treated as 1st date of succeeding month.
A Government servant who would be retiring on the last day of the month would cease to be Government servant by mid- night of that day and he would acquire status of pensioner and therefore he would be entitled for all the benefits given to a pensioner with effect from first day of the succeeding month.”
“It is trite law that for want of any decision to the contrary of the High Court, under whose jurisdiction the Bench of the Tribunal is situated, a decision of the High Court of another State would be binding as a precedent on the Tribunal and having regard to the decision of the Apex Court in S. Banerjee vs. Union of India, AIR 1990 SC 295, relied upon by Kerala High Court, the case of the applicant, in all fours, is covered by the ratio decidendi of the decision of the High Court. Having regard to the fact that he is deemed to have retired on 1.4.2004 special dispensation as mentioned in para 3 of the OM ibid would apply to him.”
“The question that arises for our consideration is whether the petitioner has retired on January 1, 1986. We have already extracted the order of this Court dated December 6, 1985 whereby the petitioner was permitted to retire voluntarily from the service of the Registry of the Supreme Court with effect from the forenoon of January 1, 1986. It is true that in view of the proviso to rule 5(2) of the Rules, the petitioner will not be entitled to any salary for the day on which he actually retired. But, in our opinion, that has no bearing on the question as to the date of retirement. Can it be said that the petitioner retired on December 31, 1985? The answer must be in the negative. Indeed, Mr. Anti Dev Singh, learned counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on December 31, 1985. It is also not the case of the respondents that the petitioner had retired from the service of this Court on December 31, 1985. Then it must be held that the petitioner had retired with effect from January 1, 1986 and that is also the order of this Court dated December 6, 1985. It may be that the petitioner had retired with effect from the forenoon of January 1, 1986 as per the said order of this Court, that is to say, as soon as January 1, 1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on January 1, 1986 and not on December 31, 1985. In the circumstances, the petitioner comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission.”
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