Extra increment in BCR Grade-III one year prior to retirement, granted via wage settlement to unpromoted Group 'C' officials, counts as 'pay' for pensionary benefits and cannot be unilaterally withdrawn by subsequent DoT refusal.

ORDER (ORAL)

Per : Hon’ble Shri Jayesh V Bhairavia, Member (J)

The applicants have filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

“(A) That the Hon’ble Tribunal be pleased to allow this petition.

(B) That the Hon’ble Tribunal further be pleased to hold/ declare that the impugned action on the part of the respondents not considering the request of the applicants and being aggrieved by the discriminatory treatment meted out to them by the respondents in the matter of not counting / granting one extra increment in BRC Grade-III one year prior to retirement, is ex-facie, illegal, arbitrary, unjust and nonest in the eyes of law.

(C ) That the Hon’ble Tribunal further be pleased to direct the respondents to give/ extend the benefit of one increment which were subsequently, illegally withdrawn by the respondents. The applicants are required to refund the said increment with all consequential benefits including giving the effect of the same in their pensionary benefits with arrears and 12% interest thereon.

(D) Such other and further relief/s as may be deemed just and proper in view of the facts and circumstances of the case may be granted.

2. In the instant OA, it is the grievance of the applicants that the claim for grant of one extra increment in BRC Grade-III we.f. one year prior to retirement in light of the order passed by the CAT Ernakulam Bench in OA No. 91/2011 dated 15.03.2012 has not been considered by the respondents in spite of the repeated request and representation submitted in this regard before the competent authority. Hence, this OA.

3. Mr. M.S.Trivedi, learned counsel for the applicants in support of the aforesaid claim submits that by considering the respondents stand including DoT’s letter dated 04.11.2011 whereby the DoT did not agree to the proposal for grant of one extra increment to BRC Ahmedab Grade-III officials of BSNL who had reached maximum of the scale or were drawing stagnation increment one year prior to their retirement, if they are unable to be promoted to BCR Grade-IV and reckoning the said extra increment towards calculation of pension and other pensionary benefits, the CAT Ernakulam Bench vide order dated 15.03.2012 passed in the OA No. 91/2011 held as under :

“6. Annexure R-1(1) is the true extract of the Rule 9(21) (a) of FR. Annexure R-1(2) is the true extract of Rule 33 of CCS (Pension) Rules under Chapter IV Emoluments and Average Emoluments. Annexure R-1(3) is the true extract of FR 19. Annexure R-1(4) is the true extract of a letter issued by the 411 respondent taking the stand that pension is sanctioned on the basis of emoluments as defined in Rule 9(21)(a)(i) which means the amount drawn monthly by the Government servant as the pay other than special pay granted in view of his personal qualification which has been sanctioned for a post held by him substantive or in an officiating capacity, or to which he is entitled by reason of his position in a cadre. As the extra increment other than stagnation increment granted to a person who is drawing pay at the maximum of the scale of pay will not come under pay as defined in FR 9 (21)(a)(i) and as such, the same cannot be reckoned as emoluments for calculation of pensionary benefits. In other words, according to him, as per FR 19 the pay of a Government servant shall not be so increased as to exceed the pay sanctioned for the post. As such, there is no provision in the FR to sanction increment other than stagnation increment beyond the maximum of the scale of pa