Ashwini Kumar Tiwari vs Union Of India
2022 Latest Caselaw 2428 Jhar

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(T) No. 1431 of 2017
         1. Ashwini Kumar Tiwari.
         2.Ravindra Nath Sharma.
         3.Sanjoy Banerjee.                            ..... Petitioners
                                     Versus
         1.Union of India, through Comptroller and Auditor General of
         India, Office of the Comptroller & Auditor General of India,
         9, Deen Dayal Marg, New Delhi-110124.
         2.The Sr. Deputy Accountant General (Administration),
         Office of the Principal Accountant General (Audit), Jharkhand,
         Ranchi-834002.                          .....   Respondents
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan

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For the Petitioners : Mr. Mahesh Tewari, Adv.

Mr. Anand Kr. Pandey, Adv.

For the Respondents : Mr. Amit Kr. Verma, Adv.

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13/05.07.2022 All the writ petitioners were applicants in O.A. No. 103 of 2015 being Ex-servicemen who after retirement from Indian Air Force joined as Auditor in P.B-I (5200-20200) with grade pay of Rs. 2800/-.

2. The applicants/petitioners joined as Auditor on 17.01.2013, 05.12.2012 and 21.12.2012, respectively i.e. after 01.01.2006. Their pay at the entry level was fixed at Rs. 8560/- + Grade pay of Rs. 2800/- against which they represented. However, since their grievances were not redressed by the respondents, they approached the learned CAT for a direction upon the respondents to refix the pay of the applicants in the pay band of Rs.5200-20200/- with entry grade pay of Rs. 2800/- at par with their last pay drawn which includes pay in pay-band, grade pay, military service pay, good conduct badge pay, classification pay and X- pay ignoring pension and other benefits as per the office memorandum dated 05.04.2010 along with arrears with admissible interest from the date of their appointments. The plea was contested by the respondents. Both the parties placed their case on the basis of the DOP&T Office Memorandum No. 3/19/2009-Estt. (pay-II) dated 05.04.2010 on the subject "Applicability of CCS (RP) Rules, 2008, to person re-employed in Government service after retirement and whose pay is debitable to Civil Estimates."

3. Learned Tribunal discussed the relevant provisions of the office memorandum and also the revised provision in the form of a table and arrived at the following findings:-

"8. It is evident that both the parties are placing their case on the basis of DoP&T OM No. 3/19/2009-Estt. (Pay-II) dated 05.04.2010 whose subject is ""Applicability of CCS (RP) Rules, 2008, to person re- employed in Government service after retirement and whose pay is debitable to Civil Estimates." It is useful to quote the first two paragraphs of the aforesaid OMs, which are as follows:-

"(i) The undersigned is directed to refer to this Department's O.M.No. 3/13/2008-Estt. (Pay II) dated 11th November 2008 on the above-mentioned subject. Certain references have been received seeking clarification regarding the manner of fixation of pay of retired Defence Forces personnel/officers re-employed in Central Government Civilian post, after the implementation of CCS (EP) Rules, 2008. This has been considered in consultation with Department of Expenditure. The pay fixation of re- employed pensioners on re-employment in Central Government, including that of Defence Forces personnel/officers, is being done in accordance with CCS (Fixation of pay of re-employed pensioners) Orders, 1986, issued vide this Department's O.M. No. 3/1895-Estt. (Pay Ii) dated 31st July, 1986 (as revised from time to time).

(ii) After the introduction of the system of running pay bands and grade pays, it has been decided to amend the relevant provisions of CCS (fixation of pay of re-employed pensioners) orders, 1986, in the manner indicated in the table."

9.Thus, it is clear that the provisions of CCS (Fixation of Pay of Re- employed Pensioners) Orders, 1986 (dated 31.07.1986; which has also been referred by the applicants) has already been subsumed in the aforesaid OM dated 05.04.2010. Therefore, this OM is a self- contained instrument/authority governing the fixation of pay of re- employed pensioners. Within the larger class of the re-employed pensioners in general there is a subset of ex-serviceman for whom specific provisions have been mentioned in the table following the above two paragraphs. Therefore, we are extracting the provisions of the table applicable in the case of present applicants.

Existing Provision Proposed revised provision Para 4 (a): Re-employed pensioners Para 4 (a): Re-employed pensioners shall shall be allowed to draw pay only in be allowed to draw pay only in the prescribed scales of pay of the the prescribed pay scale/pay structure of posts in which they are re-employed. the post in which they are re-employed. No protection of the scales of pay of No protection of the scales of the posts held by them prior pay/pay structure of the post held by to retirement shall be given them prior to retirement shall be given.

Note: Under the provisions of CCS (RP) Rules, 208, revised pay structure comprises the grade pay attached to the post and the applicable pay band.

Para 4(b) (i) : In all cases where Para 4(b)(i): In all cases where the pension the pension is fully ignored, the is fully ignored, the initial pay on initial pay on re-employment shall re-employment shall be fixed as per be fixed at the minimum of the entry pay in the revised pay structure of scale of pay of the re-employed post. the re-employed post applicable in the

case of direct recruits appointed on or after 01.01.2006 as notified vide Section II, Part A of First Schedule to CCS (RP) Rules, 2008.

Para 4(b) (ii) : In cases where Para 4(b) (ii): In cases where the the entire pension and entire pension and pensionary benefits pensionary benefits are not ignored are not ignored for pay fixation, the for pay fixation, the initial pay on initial basis pay on re-employment shall re-employment shall be fixed at be fixed at the same stage as the last the same stage as the last pay basic pay drawn before retirement. drawn before retirement. If there is However, he shall be granted the grade no such stage in the re-employed pay of the re-employed post. The post, the pay shall be fixed at the maximum basic pay cannot exceed the stage next above that pay. If grade pay of the re-employed post plus the maximum of the pay scale pay in the pay band of Rs. 67000 i.e. in which as pensioner is re- the maximum of the pay band PB-4.

employed is less than the last                In all these cases, the non-ignorable part
pay drawn by him before                       of the pension shall be reduced from the
retirement, his initial pay shall             pay so fixed.
be fixed at the maximum of the                Illustration
scale of pay of the re-employed               A colonel who retired with basis pay
post. Similarly, if the minimum of            of Rs.61700 (grade pay Rs. 8700; pay in
the scale of pay in which a                   the pay band Rs.53000) is re-employed
pensioner is re-employed is more              as a Deputy Secretary in an
than the last pay drawn by him                organization with grade pay of Rs. 7600.
 before retirement, his initial pay            In this case, on re-employment, his
shall be fixed at the minimum of              basic pay will continue to be
the scale of pay of the re-                   Rs. 61700/-. However, his grade pay on
employed post. However, in all                re-employment will be Rs.
these cases, the non-ignorable part           7600 and the pay in the pay band

of the pension shall be reduced Rs.54100. Thereafter, the non-ignorable part from the pay so fixed. 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 and grade pay attached to the post.

Para 4(d) : In the case of Para 4(d): In the case of persons retiring persons retiring before attaining the age before attaining the age of 55 years and of 55 years and who are re-employed, who are re-employed, pension (including pension ( including PEG and other PEG and other forms of retirement benefits) forms of retirement and Other forms of shall be ignored for initial pay fixation in retirement benefits) shall be ignored for the following extent:- initial pay fixation in the following (i) No change.

extent:- (ii) (ii) In the case of Commissioned

(i)In the case of ex-servicemen service officers belonging to who held posts below Commissioned the defence Forces and Civilian Officer rank in the Defence Forces and pensioners who held Group 'A' in the case of civilians who held posts posts at the time of their below Group 'A' posts at the time of retirement, the first Rs. 4000/- their retirement, the entire pension and of the pension and pension pension equivalent of retirement equivalent retirement benefits benefits shall be ignored. shall be ignored.

(ii)In the case of service officers belonging to the Defence Forces and Civilian pensioners who held Group 'A' posts at the time of their retirement, the first Rs. 500/- of the pension and pension equivalent retirement benefits shall be ignored (Already revised to Rs.

4000/0 vide O.M. No. 3/13/2008-Estt.

(Pay II dated 11th November, 2008)

10. From the above, the scheme of pay fixation of re-employed pensioners can be briefly summarized as follows:-

(i) The pay scale admissible will be only for the scale of the post to which a person applies. If he was earlier in a higher pay scale, that has no relevance. [As per para 4 (a) of OM dated 05.04.2010]

(ii) Now we come to the issue of pay fixation in the pay band or pay scale. There are two different provisions, one for those whose entire pensionary benefits are not ignored. In their case, their initial pay is fixed at the same stage as the last pay drawn at the time of retirement, from which the non-ignorable part of the pension shall be reduced from the pay so fixed [as per para 4 (b)(ii) of the OM dated 05.04.2010].

(iii) The second category is whose entire pension is to be ignored. This pertains primarily to ex-serviceman who held posts below commissioned officer's rank in the Defence Forces and who retired below the age of 55 falling under para 4 (d)(i) of the said OM. Since the applicants are below commissioned officers rank and retired below age of 55, they fall under the category of 4 (d)(i). For such persons the relevant provision for pay fixation is para 4 (b)(i) which stipulates that in cases where the pension is fully ignored, the initial pay on re-employment shall be fixed as per the entry pay in the revised pay structure of the re-employed post.

11.The confusion arises because the applicants are under the presumption that they can get the benefit of full pension mentioned under para 4 (d)(i) and pay protection as in para 4 (b)(ii) of the DoP&T OM dated 05.04.2010. This presumption is erroneous, because 4 (b) (ii) specifically refers to the cases where the entire pension and pensionary benefits are not ignored for pay fixation. In all cases where the pension is fully ignored, the relevant provision is para 4 (b)(i) which provides that the initial pay on re-employment shall be fixed as per the entry pay in the revised pay structure of the re- employed post.

12. Therefore, the above provisions leave no ambiguity that in cases where pension is to be entirely ignored, as is the case with the applicants, the initial pay on re-employment has to be fixed as per the entry pay. We hold that the fixation of pay at the entry level is in accordance with the Rules."

4. The learned tribunal was of the considered opinion that the case of the applicants was governed by Paras- 4(b)(i) of the OM dated 05.04.2010 which provides that the initial pay on re-employment shall be fixed as per the entry pay in the revised pay structure of the re-employed post. There was no ambiguity that in cases where pension is to be entirely ignored as was the case with the applicants, the initial pay on re- employment has to be fixed as per the entry pay. The fixation of pay of the applicants at the entry level was upheld as being in accordance with

the Rules. Applicants being aggrieved have approached this Court. Counter affidavit has been filed by the respondents-Accountant General defending the impugned order and relying upon the provisions of the office memorandum dated 05.04.2010.

5. Mr. Amit Kumar Verma, learned counsel for the respondent has relied upon a judgment rendered by this Court in the case of Basant Kumar Mandal and Others Vs. The Union of India, through its Secretary, Ministry of Railway and others W.P.(S) No. 6413 of 2016 judgment dated 28.09.2020 reported in (2020) 4 JBCJ 384 (HC). He submits that the issue is no longer res integra. The case of the petitioners herein are fully covered by the said judgment as the writ petitioners Bansant Kumar Mandal and others being ex-serviceman also claimed re- fixation of their pay under Para- 4(b)(ii) upon re-employment in the initial pay at par with their last pay drawn instead of initial pay 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 01.01.2006 as notified vide its Section-II part-A of First Schedule to CSS (RP) Rules, 2008. This was negatived by this Court.

6. Learned counsel for the petitioners has not been able to dispute that the issue at hand concerning the petitioners who are also Ex- servicemen is already settled by the decision rendered by this Court in the case of Basant Kumar Mandal and others.

7. We find that the applicability of the relevant paragraph 4(b)(i) vis a vis 4(b)(ii) as contended by the petitioners under office memorandum dated 05.04.2010 was squarely in issue in the case of Basant Kumar Mandal and Others. The discussion on this issue with the rival contention of the parties and the opinion of this Court is contained at paragraph 22 to 30. It has been held that the case of the said petitioners who were also Ex-servicemen would be covered by para- 4(b)(i) of the OM dated 05.04.2010 and that the petitioners therein were entitled for full pension which was to be fully ignored upon re-employment. There is no distinguishing factor in the case of the present petitioners who also have superannuated before the age of 55 years and have been appointed

on re-employment as Auditor under the office of Accountant General. As such, the findings of the learned tribunal to the effect that the fixation of pay of the applicant in the entry pay on re-employment ignoring their pension does not suffer from any error in the application of the relevant rules and office memorandum.

8. We therefore, do not find any error in the impugned judgment passed by learned Tribunal which requires interference in the writ jurisdiction.

9. The writ petition is accordingly dismissed.

(Aparesh Kumar Singh, J.)

(Deepak Roshan, J.)

Fahim/Amardeep/