Delhi High Court
Prof. Ram Bux Jat vs Jawahar Lal Nehru University & ... on 22 November, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3377/2012
% 22nd November, 2013
PROF. RAM BUX JAT ......Petitioner
Through: Mr. G.D.Gupta, Sr. Adv. with Mr.
Piyush Sharma, Advocate.
VERSUS
JAWAHAR LAL NEHRU UNIVERSITY & ORS. ...... Respondents
Through: Ms. Sagari Dhanda, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner, impugns the order dated
9.4.2012 passed by the respondent no.1-Jawahar Lal Nehru University,
(JNU) reducing by re-fixing the pay of the petitioner w.e.f 1.10.1998. The
pay of the petitioner w.e.f 1.10.1998 has been reduced by the amount of
pension which the petitioner was drawing from his erstwhile employer-
respondent no.2-Indira Gandhi National Open University (IGNOU). The
impugned order dated 9.4.2012 reads as under:-
WPC 3377/2012 Page 1 of 10
"JAWAHARLAL NEHRU UNIVERSITY
ACADEMIC BRANCH
No.Acad.1/SL/1(361) APRIL 09,2012
OFFICE ORDER NO. 672
Ref: Office Order No. 2078 dated 26.10.2009
Increment order dated 22.7.2010
Increment order dated 19.7.2011
In partial modification of office orders under reference,
the pay of Prof. Ram Bux Jat as re-employed Professor has
been fixed at Rs.19895/-p.m.+Rs.10000/- (AGP)
w.e.f.1.10.2008 (LPD 49790-29895 pension), consequent upon
his appointment as Professor in Hindi in the Centre of Indian
Languages, School of Language, Literature and Culture Studies
in the pre-revised scale of Rs.16400-450-20900-500-22400
(revised pay band Rs.37400-67000+Rs.10000(AGP).
He has also been allowed to draw annual increment of 35
raising his pay as under:
Rs.21695+10000(AGP w.e.f.1.7.2009
(Rs.51590-29895 pension)
Rs.23545+Rs.10000(AGP)w.e.f.1.7.2010
(Rs.53440-29895 pension)
Rs.25455+Rs.10000(AGP) w.e.f.1.7.2011
(Rs.55350-29895 pension)
D.A. on pay drawn from JNU may only be allowed to
Prof. Ram Bux Jat if he has discontinued to draw DA on
pension authorized to him from his previous employer.
Overpayment made to him on account of his salary is required
to be recovered.
Other terms and conditions contained in the office order
under reference shall remain the same.
(J.P.GAUR)
SECTION OFFICER"
WPC 3377/2012 Page 2 of 10
2. The facts of the case are that petitioner was working with the
respondent no.2-IGNOU as a professor in Hindi language. Respondent no.1
advertised for the post of professor of Hindi language and the petitioner was
employed by the respondent no.1 by direct recruitment w.e.f 1.10.1998. As
per the writ petition itself, petitioner informed his erstwhile employer-
respondent no.2 of his being selected for the post of professor in Hindi by
the respondent no.1 and requested the respondent no.2 to grant him two
years extra ordinary leave with lien from 1.10.2008. Petitioner accordingly
joined the respondent no.1, and his pay was fixed taking the employment of
the petitioner to be the case of direct recruitment of a person who was not
drawing any pensionary benefits from his erstwhile employer, inasmuch as
the petitioner on the date of his employment with the respondent no. 1
continued to have his lien on the post with the respondent no.2 and had not
received any pensionary or other monetary benefits from the respondent
no.2.
3. The admitted position then is that the technical resignation of
the petitioner from his employment with the respondent no.2 was accepted
by respondent no.2 w.e.f 1.10.2008-the date from which the petitioner joined
services with the respondent no.1. Pursuant to this technical resignation
WPC 3377/2012 Page 3 of 10
being accepted, petitioner admittedly was given and was drawing pension
and other benefits from the respondent no.2 w.e.f 1.10.1998.
4. Though no reasons have been given in the impugned order
dated 9.4.2012 reducing the pay of the petitioner by the amount of pension
which the petitioner was receiving from 1.10.2008 from the respondent no.2,
the reasons for reducing and refusing the pay of the petitioner from the date
of his employment with the respondent no.1 w.e.f 1.10.2008 is because of
the provisions of Central Civil Services (Fixation of Pay of Re-employed
Pensioners) Orders 1986. It is not a disputed aspect that this 1986 Order
applies to respondent no.1-JNU and consequently therefore to the petitioner.
Of course, I may add here that the impugned order dated 9.4.2012 is not like
a judgment of a Court and need not be like a Court judgment which had to
give reasons, but effectively the same is an administrative order, simply
reducing the pay w.e.f 1.10.2008. In law, for such an order, reasons can
always exist, independently of the order, in the files of respondent no.1, and
which reasons exist on account of the provisions of 1986 Order as stated
above.
5. Let me reproduce the relevant provisions of 1986 Order, and
the same read as under:-
WPC 3377/2012 Page 4 of 10
"2.Application- (1)Save as otherwise provided in these orders, these
orders shall apply to all persons who are re-employed in Civil
Services and posts in connection with the affairs of the Union
Government after retirement on pension, gratuity, and/or
Contributory Provident Fund benefits from the service of-
(a) Union Government including Railways, Defence, Posts and
Telecommunication;
(b) State Governments and Union Territory Administrations; and
(c) Public Sector Undertakings, Local Bodies, Autonomous Bodies
like Universities or Semi-Government Organizations like Port
Trusts.
(2) These orders shall also apply to persons re-employed in regular
work charged capacity.
(3) Unless otherwise provided, these orders shall also apply to
persons re-employed on contract basis.
(4) These orders shall not, however, apply to-
(a) Persons re-employed after resignation, removal or dismissal,
provided they have not received any retirement/terminal benefits for
the pre-employed service;
-----------------------------
4. Fixation of pay of re-employed pensioners.-[(a) Re-
employed pensioners shall be allowed to draw pay only in the
prescribed pay-scale/pay structure of the post in which they are re-
employed. No protection of the scales of pay/pay structure of the
post held by them prior to retirement shall be given.
NOTE.- Under the provisions of CCS (RP) Rules, 2008, revised pay
structure comprises the grade pay attached to the post and the
applicable pay band.]
[(b) (i)- In all cases where the pension is fully ignored, the initial pay
on re-employment shall be fixed as per entry pay in the revised pay
structure of the re-employed post applicable in the case of direct
recruits appointed on or after 1-1-2006 as notified vide Section II,
Part A of First Schedule to CCS (RP) Rules, 2008.]
[(ii) In cases where the entire pension and pensionary benefits are
not ignored for pay fixation, the initial basic pay on re-employment
shall be fixed at the same stage as the last basic pay drawn before
retirement. However, he shall be granted the grade pay of the re-
employed post. The maximum basic pay cannot exceed the grade
pay of the re-employed post plus pay in the pay band f Rs.67,000,
i.e. the maximum of the pay band PB-4. In all these cases the non-
ignorable part of the pension shall be reduced from the pay so fixed.
Illustration
A Colonel who retired with basic pay of Rs.61,7000 (grade pay Rs.
87,000, pay in the pay band Rs. 53,000) is re-employed as a Deputy
Secretary in an organization with grade pay of Rs.7,600. In this
case, on re-employment, his basic pay will continue to be Rs.61,700.
However, his grade pay on re-employment will be Rs. 7,600 and the
pay in the pay band Rs 54,100. Thereafter, the non ignorable part of
the pension will be reduced from the pay so fixed.
NOTE- In the revised pay structure basic pay is pay in the pay
band plus the grade pay attached to the post]
(a) The re-employed pensioner will, in addition to pay as fixed under
Para (b) above shall be permitted to draw separately any pension
sanctioned to him and to retain any other form of retirement
benefits.
(d) In the case of persons retiring before attaining the age of 55
years and who are re-employed, pension (including pension
equivalent of gratuity and other forms of retirement benefits) shall
be ignored for initial pay fixation in the following extent:-
(i) In the case of Ex-servicemen who held posts below
Commissioned Officer rank in the Defence Forces and in the
case of civilians who held posts below Group „A‟ posts at the
time of their retirement, the entire pension and pension
equivalent of retirement benefits shall be ignored.
(ii) In the case of Commissioned Service Officers belonging to
the Defence Forces and Civilians pensioners who held Group
„A‟ posts at the time of their retirement, the first Rs. 4,000 of
the pension and pension equivalent retirement benefits shall
be ignored.]"
6. On behalf of the petitioner, it is contended that since the
petitioner‟s employment with respondent no.1 was direct recruitment, and
was not re-employment after retirement from the respondent no.2, the 1986
Order will not apply. It is argued that once the employment of the petitioner
with the respondent no.1 originally from 1.10.2008 was in the nature of
direct employment by direct recruitment, the 1986 Order will not apply.
Reliance is also placed upon Rule 10 of the CCS Pension Rules, 1972 to
argue that retirement only is a retirement on the age of superannuation.
7. In my opinion, the arguments which have been raised on behalf
of the petitioner are misconceived and are liable to be rejected and the
arguments urged on behalf of respondent no.1 relying upon the provisions of
1986 Order reproduced above, have to be accepted. There are various
reasons for accepting the argument urged on behalf of respondent no.1. The
first reason is that the provision of Rule 2(4)(a) of 1986 Order uses the
expressions „resignation‟ or „removal‟ or „dismissal‟, meaning thereby, it is
not that the 1986 Order only applies to persons who have been re-employed
after the ordinary age of superannuation. There is some confusion in the
language of Rule 2(4)(a) because the expression „not‟ is used on two
occasions, however, the effect of using the expression „not‟ twice only
means the fact that once a person joins on re-employment and is receiving
retirement/terminal benefits from the erstwhile employer, then, he has to be
governed by this 1986 Order, and provisions 4(b) (i) and (ii) of which
squarely apply in the facts of the present case.
8. No doubt, when the petitioner was originally employed with
respondent no.1 it was a case of direct recruitment and re-employment, and
not of resignation, however, in view of the subsequent fact that the technical
resignation of the petitioner stood accepted by the respondent no.2 w.e.f
1.10.2008, the effect would be that the pay which was to be fixed by the
respondent no.1 in the employment of the petitioner with it had to be in
terms of Rule 4 as per which protection of pay structure last drawn by the
petitioner could not have been granted inasmuch as a person cannot receive
pensionary benefits and at the same time a higher pay by protection of the
last drawn pay. Rules 4(b) (i) and (ii) make it clear that when there is re-
employment, if the re-employed person receives the pensionary benefits
from his erstwhile employer, then, the scale of pay which is to be fixed of
such person has to be at the first stage of the last basic pay and not the higher
pay which was paid to such employee by his erstwhile employer at the time
when he gets re-employment. The last line of sub-Rules 4 (a) and (b)(ii)
make it clear that in all cases where there is re-employment, and the re-
employed person is getting pension from his erstwhile employer, then, the
non-ignorable part of the pension shall be reduced from the pay so fixed by
the subsequent employer and there is no pay protection of the employee
being granted the pay last drawn from his earlier employment. The first line
of Rule 4(b)(i) also specifically states this very aspect that when pensionary
benefits are received from the earlier employment/employer the pay fixed on
re-employment is of the entry pay-scale. Since in the present case, the pay
of the petitioner initially was fixed at a higher level from 1.10.2008 by
ignoring the fact that petitioner was in fact receiving the pension, however
due to the subsequent event of his technical resignation having been
accepted by the respondent no.2 w.e.f 1.10.2008, therefore, the impugned
order dated 9.4.2012 in terms of Rules 4(a) and 4(b) rightly reduced the pay
granted to the petitioner by the respondent no.1 from the date of his original
employment with the respondent no.1 w.e.f 1.10.1998 by reducing from
such figure of pay the pension which the petitioner did in fact receive w.e.f
1.10.2008 from respondent no.2/erstwhile employer, on account of his
technical resignation having been accepted by the respondent no.2 and the
petitioner getting the pension and other retirement benefits from the
respondent. There cannot be any other interpretation of the aforesaid
relevant provisions of 1986 Order, the object of which was that higher scale
of pay is granted to a re-employed person by protection of the last drawn
pay, only if such a person is not drawing retirement benefits including
pension from his erstwhile employer, and if retirement benefits are drawn,
then surely there can be re-fixation of pay by reducing the amount of
pension drawn from the erstwhile employer from the higher pay which is
granted on account of pay protection to the employee.
9. The argument urged on behalf of the petitioner relying upon
Rule 10 of the CCS Pension Rules, that re-employment under the pension
rules is only on account of normal age of superannuation is an argument
which totally flies against the language of Rule 2(4)(a) of the 1986 Order
which by its terms applies not only to a person who superannuates on the
ordinary date of superannuation, but also to those employees who get re-
employment on their resigning from services with the earlier employer or on
account of their being removed or dismissed from their services by the
earlier employer.
10. In view of the above, no relief can be granted to the petitioner
because the effect of grant of the relief would be to allow the petitioner to
seek a higher pay-scale when he was not entitled to do so because he was
drawing pension for the period for which he was getting the higher pay.
11. In view of the above, there no merit in the petition, and the
same is therefore dismissed, leaving the parties to bear their own costs.
NOVEMBER 22, 2013 VALMIKI J. MEHTA, J.
ib
