Shri Vinod Kulshrestha vs Union Of India & Ors
2010 Latest Caselaw 3899 Del

 *            IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                       W.P.(C) No.7657/1999

                                                Reserved on : 17th August, 2010
                                                Pronounced on: 20th August, 2010


 SHRI VINOD KULSHRESTHA                             ...... Petitioner
                      Through: Mr. S.S.Tiwari, Advocate

              VERSUS

 UNION OF INDIA & ORS                                       ....Respondents
                                Through: Mr. K.K.Rai, Sr. Advocate with
                                Mr. Gaurang Kanth, Mr. Rahul Kumar and
                                Mr. Brij Rajesh, Advocates.
 CORAM:
 HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

 1.    Whether the Reporters of local papers may be
       allowed to see the judgment?

 2.    To be referred to the Reporter or not?


 3.    Whether the judgment should be reported in the Digest?


 %                                    JUDGMENT

 VALMIKI J. MEHTA, J.

1. The present petition under Articles 226 and 227 of the Constitution of

India lays challenge to the orders dated 17.8.1998 and 20.9.1999 of the Central

Administrative Tribunal (CAT) whereby the CAT has dismissed O.A. and the

Review Application filed by the petitioner.

2. The relief claimed in the O.A. by the applicant/petitioner was to the two

orders dated 26.6.1996 of the Director General of Audit and 14.5.1997 of the

Director of Audit, Defence Services rejecting the claim relating to re-fixation of

pay on opting for combined service for pension.

3. The facts are that the petitioner was appointed in the office of Director of

Audit on 20.9.1989. He served in the Indian Navy from 24.1.1971 to 31.1.1985

for a period of 14 years. He exercised his option for counting his previous Navy

service within the period of one year from the date of joining under Rule 19(1)

of the Pension Regulations, 1972. Accordingly, by an order dated 20.9.1991 the

Director of Audit ordered that the period of his service for 14 years 7 months

and 24 days be treated as qualifying service towards his present civil service.

The applicant deposited the amount of Rs. 15,110/- comprising of Rs. 13,490/-

towards service gratuity and DCRG and Rs. 1619/- by way of interest. This is a

condition which he fulfilled for counting the Naval service as qualifying

service. He, therefore, represented on 20.9.1994 to the C&AG, New Delhi for

granting him advance increments as per Para 15 of the Office Memorandum

(O.M.) dated 31.7.1986 [Central Civil Services(Fixation of Pay of Re-

employed Pensioners) Orders, 1986]. Para 15 runs as under:-

" 15. RETRENCHED EMPLOYEES

In the case of ex-servicemen as well as civilians who are retrenched from service and are not granted pension and/or service gratuity, on their appointment to Government service they may be granted advance increments equal to the completed years of service rendered by them on

a basic pay equal to or higher than the minimum of the scale attached to the civil post in which they are employed. The pay arrived at should not, however, exceed the basic pay drawn by them in the Armed Force."

4. The CAT dismissed the O.A. on two counts. Firstly, it was held by the

CAT that the petitioner joined the service in 1989 and, therefore, the applicable

rules then in force being the 1986 rules did not permit benefits, as claimed by

the petitioner. CAT thus held that the subsequent 1991 rules would not apply as

urged by the petitioner. Secondly, CAT held that the object of the applicable

rules was to give benefit of advance increments in the fixation of pay on re-

employment of an ex-serviceman to the Government Service only if the

employee was a retrenched employee. Since the petitioner had taken full

benefit of the pay of his contractual short service commission with the Navy,

consequently, he did not suffer any disadvantage or hardship entitling him to a

higher pay fixation and advance increment on re-employment with the

Government.

5. The relevant portion of the impugned order, which we agree with, is

contained in para 6 and which is re-produced as under:-

"6. We are of the view that the O.M. dated 22.1.1991 cannot be applied to the applicant's case. A Full Bench of this Tribunal in the case of B. Ravindran and others Vs. Director General of Posts and others, CAT FB Vol. II 248 held that the fixation of pay of ex-servicemen on their re-employment in Government service will have to be on the basis of the instructions in force at the relevant time before the clarifications were issued by the DOPT. The applicant joined in 1989. We are of the view that the instructions and the statutory rules that were prevalent during 1989 will have to be applied. That apart there is

a basic a flaw in the applicant's claim. We have read the impugned order which emphasized that the applicant was on contract service. On the completion of his contracted period he was released. He was not "retrenched". He did not have any years of service to complete before superannuation. He was released on 31.1.1985. He took the civil re-employment with Government in 1989. This is not a case of a person who had only served for a portion of his service before superannuation and on his retrenchment he has more years of service left. Therefore, on his taking up a re-appointment in civil service he should not again start with a clean slate at the basic of the new scale. It was only to such people that the Government extended the benefit of giving one increment for one completed year of service provided he surrendered his pensionary benefits. The whole concept of pensionary benefit has a qualitative dimension in respect of employees who are regular reemployees up to superannuation and who retire either on superannuation or on voluntary retirement or who retire on invalid or compensation pension. These cases have to be distinguished from a contract service. The concept of pension per se does not apply to a contract service. The terms of the contract do not contemplate granting of a regular pension after the contract is over. Service gratuity is provided no doubt but that is something different from pension granted to the categories of regular employees. A retrenched employee has to leave service not because of his fault but because he is found surplus or because there is no work available. If such retrenched employee has to leave his job much before his retirement and he takes up a new civil job. It will be a great hardship to him to start at the basic minimum as though the earlier service has to be rubbed off as nonexistent. The applicant is not a retrenched employee. We are absolutely satisfied that the impugned order does not call for any interference."

6. Before us, the counsel for the petitioner has relied upon the DOPT OM

of 1991 at page 31 of the paper book. He has specifically relied upon sub-rule 2

of Rule 6. It is necessary to reproduce the entire Rule 6 in order to understand

and appreciate the import of the same. The said Rule reads as under:-

"6. Personnel retiring on invalid or compensation pension.--Persons who are re-employed after obtaining compensation or in valid pension will also be governed by these orders subject to the condition that if the re- employment is in qualifying service, they may either retain their pension, in which cases their former service will not count for further pension, or

ceases to draw any part of their pension and count their previous service. Pension intermediately drawn need not be refunded. In case the pensioners elect to count their previous service for pension by forgoing their entire pension including retirement gratuity, their pay would be fixed by treating them as if they are not in receipt of any pension. The special provision contained in this order regarding grant of Contributory Provident Fund benefits during the period of re-employment and the grant, on termination of the period of re-employment, of the unutilized portion of the refused leave in respect of previous service shall not be extended to them.

Benefits of para 6 above extended to ex-servicemen--As per para.6 above, the pay of Government servants who are in receipt of compensation/invalid pension and re-employed in civil posts who submit option for combined services for pension under Rule 18 of CCS (Pension) Rules, 1972, is fixed from the date of re-employment in terms of relevant provisions of Ministry of Finance, O.M. No. 8(84)/E. III/57, dated 25-11-1958, or this Department's OM, dated 31-7-1986 (para.6 above) as the case may be, by assuming that they are not in receipt of any pension.

2. However, at present there are no orders on refixation of pay of ex- servicemen who can similarly give an option for combined service for pension under Rule 19 of CCS (Pension) Rules, 1972, by surrendering their pensionary benefits. This issue has been considered and it has been decided that pay of such ex-servicemen who were re-employed prior to 1- 7-1986 and who being eligible have opted for combined service for pension in terms of Rule 19 of CCS (Pension) Rules, 1972, shall also be refixed from the date of re-employment in terms of MF, OM, dated 25-11- 1958, as amended from time to time, by assuming that they were not in receipt of any pension. In respect of ex-servicemen re-employed on or after 1-7-1986, and who have similarly opted for combined service for pension under Rule 19 of CCS (Pension) Rules, 1972, pay shall be refixed from the date of re-employment in the manner given in para. 15 of this Department's OM, dated 31-7-1986 (para 15 below). However, this refixation will be done only after the pensionary benefits have been refunded in full as per provision of Rule 19 of CCS (Pension) Rules, 1972."

7. The counsel for the petitioner has laid great stress on the last nine lines of

the sub-rule 2 and has canvassed that all ex-servicemen who were re-employed

after 1.7.1986 and who have opted for combined service of pension under Rule

19 of CCS(Pension) Rules, 1972 will be entitled to have their pay being re-fixed

from the date of re-employment in the manner given in para 15 of the O.M.

dated 31.7.1986, and which we have already re-produced above.

8. We do not agree with the contention of the counsel for the petitioner.

Firstly, the application of Rule 6 and its sub-rules would only arise if the ex-

serviceman falls in the category of personnel who retire on invalid or

compensation pension. Admittedly, the petitioner does not fall in the category

of a person who has got invalid or compensation pension. If the main Rule 6

does not itself apply there would be no question of application of the sub-rules

of the said Rule 6 including the sub-rule 2. As held by the CAT in the present

case, the petitioner completed his complete tenure of service and, therefore,

suffered no disadvantage or hardship entitling him for advance increments on

re-employment with the Government. The rationale of CAT is also correct that

if a person suffers a disadvantage because of earlier termination of his services,

then he should not be put at a disadvantage in case of his re-employment with

the Government, and, it is only for that purpose that advance increments are

granted. This is not so in the facts of the present case as the petitioner has got

the benefit of full pay in his earlier stint with the Navy. The counsel for the

petitioner has relied upon Director General of Posts and Ors. Vs. B. Ravindran

and Anr., (1997) 1 SCC 641 and a decision of Division Bench of this Court

dated 19.09.2007 in Indian Council of Agricultural Research & Anr. Vs.

Bidesh Singh and Ors. Both these judgments do not lay down any principle of

law as such but they were concerned with interpretation of the applicable

circulars and O.Ms. in the facts of the said cases.

9. In the facts of the present case what applies is the 1986 circular and

which was the applicable circular when the petitioner joined service in 1989 and

which 1986 circular did not give the benefit as prayed by the petitioner. Even

assuming the 1991 circular applies, we have already held that the petitioner

cannot tear a certain portion of the sub-rule out of its context and seek benefits

of the same because the relevant Rule 6 has to be read as a whole and which can

only apply if the ex-servicemen who get re-employment are persons who have

received compensation/invalid pension. The aforesaid judgments therefore

relied by the learned counsel for the petitioner, do not advance the case of the

petitioner.

10. In view of the above, we do not find any merit in the petition which is

dismissed leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J.

August 20 , 2010                                      SANJAY KISHAN KAUL, J.
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