M.R. Bhangalya vs Union Of India & Ors
2015 Latest Caselaw 1846 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of hearing and order: 3rd March 2015
+     W.P.(C) 997/2015
      M.R. BHANGALYA
                                                                 ..... Petitioner
                          Through:     Mr. Shakti Chand Sharma, Advocate
                                       with petitioner in person.
                    versus
      UNION OF INDIA & ORS
                                                             ..... Respondents
                          Through:     Mr. Vikram Jetly, CGSC for
                                       respondent No. 1 to 3 WITH
                                       Mr.Dinesh Kochher, US, NCSK. .
      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE I.S.MEHTA
                        ORDER

% KAILASH GAMBHIR, J. (ORAL)

1. By this petition filed under Article 226 of the Constitution of India,

the petitioner seeks to challenge the orders dated 26.08.2013 and 28.10.2013

passed by learned Central Administrative Tribunal, Principal Bench, New

Delhi in O.A. No. 2187/2012 and R.A. No.175/2013, respectively.

2. Mr. Shakti Chand Sharma, Advocate appears for the petitioner

submits that the relevant office memorandum which governs the case of the

petitioner is OM dated 2nd July 1999 and as per this OM the respondent had

no right to deduct the entire pension as was admissible to the petitioner from

his salary on re-employment after his retirement. The learned counsel for the

petitioner also submits that the petitioner had retired from Group B post and

on his re-employment, he cannot be paid a pay scale less than the one which

was applicable at the relevant time. Another contention raised by the learned

counsel for the petitioner is that in third and fourth spell of re-employment

of the petitioner i.e. from 16.2.2001 to 30.06.2002 and 1.7.2002 to

28.01.2003, the respondents have themselves ignored the deduction of

pension of the petitioner and fixed his pay at the minimum pay scale

applicable however for the earlier periods of re-employment of the petitioner

i.e. from 7.3.2006 to 31.3.2007 and from 10.4.1997 to 9.4.2000, the

respondents have illegally deducted the pension amount from his salary.

3. Mr. Vikram Jetly, the learned CGSC appears on behalf of the

respondents on advance notice and has drawn the attention of this Court to

the stand taken by the respondents in their counter affidavit with regard to

the non deduction of the pension amount for third and fourth spell of re-

employment, wherein the respondents have categorically stated that for the

said two spells, the pay of the petitioner was wrongly fixed without

deducting the gross pension. The learned counsel for the respondents, on

instructions from Mr. Dinesh Kochher, U.S., NCSK who is present in Court,

submits that the respondents have yet not taken any steps to recover the said

excess amount paid to the petitioner.

4. We have heard the submissions made by the learned counsel for the

petitioner as well as on behalf of the respondents and also gone through the

impugned order and the material placed on record.

5. Indisputably, when the petitioner was re-employed, he had already

attained the age of 55 years. Learned Central Administrative Tribunal has

taken into consideration the OM dated 2nd July 1999 and we find merit in the

reasoning given by learned Tribunal that so far as OM dated 2 nd July 1999 is

concerned, that cannot be seen in isolation but the same has to be read with

OM dated 31.07.1986, which holds the field with regard to the fixation of

pay of re-employment of the pensioner. Relevant paras of the impugned

order are reproduced as under:-

5. "We have seen the O.M. dated 02.07.1999 relied upon by the applicant. The subject of the said O.M. is as follows:-

Recommendations of the 5th Central Pay Commission-Payment of Dearness Relief to re- employed pensioners and employed family pensioners.

Clearly this deals with payment of dearness relief to re-employed pensioners. Further, reading of Para-2 and Para-3(a) relied upon by the applicant also

makes to clear that the main subject of this O.M. is regarding payment of dearness relief and the manner in which it has to be computed in cases of re- employment. Further, para-3(d) of this O.M. reads as follows:-

While implementing these decisions, orders issued by the Department of Personnel & Training vide OM No.3/1/85-Estt(Pay-II) dated 31.07.1986 and as amended from time to time regarding fixation of pay of re-employed pensioners shall be duly kept in view.

This gives credence to the argument of the respondents that O.M. dated 02.07.1999 should not been seen in isolation but it should be read with O.M. dated 31.07.1986."

6. We find no tangible reason to disagree with the reasoning given by

learned Tribunal. Finding no merit in the present petition, the same is hereby

dismissed.

KAILASH GAMBHIR, J

I.S. MEHTA, J MARCH 03, 2015 pkb