Commander, S.P. Dutt vs Union Of India (Uoi) Through The ...
2003 Latest Caselaw 277 Del

JUDGMENT

Vijender Jain, J.

1. Rule D.B.

2. Mr. K. B. S. Rajan counsel for the petitioner has contended that after the recommendation of the Fourth Central Pay Commission, the petitioner has been denied the fixation of pay while taking into consideration the spirit of the integrated broad band pay scale introduced for the first time in the armed forces w. e. f. 1.1.86. The first argument was that denial of increment of four years' service when he was stagnating at the maximum of Rs. 1900/- in the pre revised scale was not correct and same was not in the spirit of integrated broad band pay scale as introduced and recommended by the Fourth Pay Commission. The second contention of the counsel for the petitioner was that provision of leave encashment was made available w. e. f. 1.1.86 to all the civilians as well as para military personnel and denial of the same uniformly to the officers of the armed forces was arbitrary and illegal. He contended grant of leave encashment from 30.12.98 to the officers of the armed forces and fixing a cut off date from 30.12.1991 prospectively was discriminatory as well as arbitrary. Lastly, it was contended before us that the petitioner was re-employed and after re-employment, the petitioner ought to have been given a discount of Rs.500/- from pension while calculating his emoluments but the same was wrongly denied to him. In support of his contention counsel for the petitioner has relied upon the judgment of A. N. Basheshar Dass Vs. Tek Chand 1972, SCC 893 for the proposition that there is a duty imposed on the Court in interpreting a particular provision of law, rule or notification to ascertain the meaning and intendment of the legislature or of the delegate, which in exercise of the powers conferred on it has made the rule or notification in question. On the aforesaid premise the petitioner has prayed that the pay of the petitioner be fixed in the pay scale of Rs.2300-5100 taking into account the previous service rendered as Commodore (time scale) and ensure by giving one increment per year of stagnation in the scale of Rs.1900/- from 1982 to 1986. Similarly, the next prayer is to fix the pension loss over which pay drawn at the revised rates of pay the difference in pension with interest. Another prayer in the writ petition is to give necessary discount of Rs.500/- in the pension drawn by the petitioner and further direct the respondents to pay the petitioner arrears accrued on this amount together with interest and lastly that the petitioner is entitled to concession of leave encashment to the total number of leave at his credit subject to a maximum of 240 days. On the other hand, counsel for the respondent has contended that the question of leave encashment as well as argument of non-grant of leave encashment to a maximum of 240 days as well as fixing of a cut off date came up for consideration before the Division Bench of this Court in the case of Rear Admiral (Retd.) H.C. Malhotra Vs. Union of India & Ors. CW. 488/993, decided on 19.4.94. In similar circumstances and on the basis of similar arguments, the Division Bench of this Court held:

"Having given our anxious consideration to the contentions respectively raised we are satisfied that the petitioner is not entitled to the relief prayed for. The learned counsel for the respondent has made available for our perusal the report of the 4th Central Pay Commission wherein also the defense services have been treated as a class by themselves. The defense services have been allowed several benefits including revision of pay scale for the better. However, the Pay Commission has chosen to observe silence on the question of enhancement of limit of encashment of earned leave at the time of retirement in case of defense service. In Secretary, Finance Department and Others Vs. West Bengal Registration Service Association and others , the observation made by their Lordships in case of equation of post and determination of pay scales based on the recommendation of the Pay Commission may be extracted and usefully applied to the case at hand. Their Lordships observed:

"It is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily Courts will not, enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparison and internal relativities on account of the changing nature of job requirements. Several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well."

3. It was held in the aforesaid case that defense personnel are a class by themselves and they cannot be equated with civil servants on all points. While adverting to the argument with regard to the unreasonableness or arbitrariness in appointing the cut off date , the Division Bench relied upon the decision of State of West Bengal Etc. Vs. Ratan Behari Dey & Ors. . The same is as under:

" the power of the State to specify a date with effect from which, the Regulations framed, or amended, as the case may be shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory".

4. The Division Bench also relied upon the decision in the case of State of Bihar & Ors. Vs. Ramjee Prasad & Ors. which is the following effect:

" the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless the circumstances show it to be capricious and whimsical. When it is necessary for the Legislature or authorities to fix a line or a date and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or authority must be accepted unless it is shown to be capricious or whimsical or wide off the reasonable mark."

5. On the basis of the aforesaid dicta of the Supreme Court in State of Bihar (Supra), the Court held that it cannot be said that the respondent acted whimsically or capriciously merely by not giving a retrospective operation to the change of the policy introduced by them.

6. Coming to the second argument of the petitioner with regard to Rs. 500/- to be discounted from pension for calculating total emoluments after the petitioner was re-employed, no rule has been shown to us by the petitioner. Counsel for the petitioner has invited our attention to the Rule which is at page No. 52 of the paper book. The same is to the following effect:

  "(b) Officers who retired and are re-employed in the           integrated scale of pay. 
 

  The initial pay shall be fixed at the same stage in the integrated scale as the last pay drawn.  The entire amount of pension and PEG shall thereafter  be deducted from the  pay so fixed.  The PEG shall, however, not be deducted from the  pay so fixed w .e. f. 1.6.1980.  In addition to the officers shall be entitled for the Rank Pay of the rank in which re-employed."  
 

 7.  From the aforesaid rule, we do not find that there  is any mention that a sum of Rs. 500/- has to be deducted from  pension   when a person  is re-employed for calculating  the emoluments to   the    petitioner.      Once the petitioner  has   accepted re-employment under particular  rules, he has to be governed by such rules only and it is not open to him to seek recourse to any other Rule to maximise the advantages.    Lastly, with regard  to the submission of the counsel for the petitioner  that four years'  service of the petitioner when he was stagnating at the maximum of Rs. 1900/- in the pre-revised scale ought to have been taken into consideration in terms of the integrated broad band pay scale introduced  by the Fourth Pay Commission, Ms. Jyoti Singh counsel for the respondent has   brought to our notice a judgment of the Learned Single Judge in Lt. Col. C.M. Khanna Vs. Union of India 170, DRJ (36) 1996, which has discussed  the point canvassed                                                                                                                                                                                                                             before us by the counsel for the  petitioner.   We are told that aggrieved by the decision  of the Learned Single Judge, petitioner filed LPA  No.  15/96 titled as Lt. Col. C.M. Khanna Vs. Union of India.  The said LPA  was dismissed on 14.3.2001 endorsing  the view taken by the Learned Single Judge.                                                                                                     
 

 8. We find that this case  is squarely covered by the decision in  LPA  No.  15/96, Lt.  Col. C.M. Khanna(Supra).  We also note that the respondent has fixed  the pay of the petitioner  from 1st January 1987 at Rs. 3900/- by granting one increment  of Rs.100/-.  We find no infirmity with the fixation  of the pay.  In the circumstances,  petition is dismissed.  No order as to costs.