Rajasthan High Court - Jodhpur
Dr. Surajit Ghatak vs Union Of India on 15 May, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 2573/2025
1. All India Institute Of Medical Science (AIIMS), Jodhpur,
(Raj.), Through its Executive Director.
2. Union Of India Through The Secretary, Ministry Of Health
And Family Welfare (PMSSY-IV Division), 745 A, Nirman
Bhawan, New Delhi.
----Petitioners
Versus
Dr. Mahendra Kumar Garg S/o G.l. Garg, 39, Patrakar Colony,
Sector 7 Extension, New Power House Road, Jodhpur, (Raj.),
Professor And Head, Department Of General Medicines, AIIMS,
Jodhpur.
----Respondent
Connected With
D.B. Civil Writ Petition No. 18761/2024
Dr. Arjun Singh Sandhu S/o Col. Gurmohinder Singh Sandhu,
Aged About 62 Years, Resident Of 118 Central School Scheme,
Air Force Area, Jodhpur (Raj.). Professor And Head Of
Department Of Urology, AIIMS, Jodhpur.
----Petitioner
Versus
1. Union Of India, Through The Secretary, Ministry Of Health
And Family Welfare (PMSSY-IV Division), 745-A, Nirman
Bhawan, New Delhi- 110 011.
2. All India Institute Of Medical Science, Jodhpur (Raj.)
Through Its Executive Director- 342005.
----Respondents
D.B. Civil Writ Petition No. 18799/2024
Dr. Surajit Ghatak S/o Shri Surath Mohan Ghatak, Aged About
62 Years, Resident Of B-504, AIIMS Residential Complex, Basni,
Phase-II, Jodhpur (Raj.) Professor And Head, Department Of
Anatomy, AIIMS, Jodhpur.
----Petitioner
Versus
1. Union Of India, Through The Secretary, Ministry Of Health
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And Family Welfare (PMSSY-IV Division), 745-A, Nirman
Bhawan, New Delhi-110 011.
2. All India Institute Of Medical Science, Jodhpur (Raj.)
Through Its Executive Director- 342005.
----Respondents
D.B. Civil Writ Petition No. 18832/2024
Dr. (Mrs.) Mithu Banerjee W/o Dr. Bikram Choudhury, Aged
About 53 Years, Resident Of 801-A Marudhar Heights, AIIMS
Road, Basni Phase II, Jodhpur (Raj.).
----Petitioner
Versus
1. Union Of India, Through The Secretary, Ministry Of Health
And Family Welfare (PMSSY-IV Division), 745-A, Nirman
Bhawan, New Delhi 110011.
2. All India Institute Of Medical Science, Jodhpur
(Raj.)Through Its Executive Director 342005.
----Respondents
D.B. Civil Writ Petition No. 18835/2024
Dr. Bikram Choudhary S/o Late Maj. Gen. P.S. Choudhury, Aged
About 52 Years, VSSM- Resident Of 801 A Marudhar Heights,
AIIMS Road, Basni Phase II, Jodhpur (Raj.), Post Professor,
Department Of ENT, AIIMS, Jodhpur.
----Petitioner
Versus
1. Union Of India, Through The Secretary Ministry Of Health
And Family Welfare (PMSSY-IV Division), 745-A, Nirman
Bhawan, New Delhi- 110 011.
2. All India Institute Of Medical Science, Jodhpur (Raj.)
Through Its Executive Director 342005.
----Respondents
D.B. Civil Writ Petition No. 925/2025
1. All India Institute Of Medical Science (AIIMS), Jodhpur
(Raj.), Through Its Executive Director.
2. Union Of India Through The Secretary, Ministry Of Health
And Family Welfare (PMSSY-IV Division), 745A, Nirman
Bhawan, New Delhi
----Petitioners
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Versus
Dr. (Mrs.) Mithu Banerjee W/o Dr. Bikram Choudhary, R/o 801-A,
Marudhar Heights, AIIMS Road, Basni, Phase II, Jodhpur (Raj.),
Professor And Head, Department Of Biochemistry, AIIMS,
Jodhpur
----Respondent
D.B. Civil Writ Petition No. 1412/2025
1. All India Institute Of Medical Science (AIIMS), Jodhpur
(Raj.), Through Its Executive Director
2. Union Of India, Through The Secretary, Ministry Of Health
And Family Welfare (PMSSY-IV Division), 745-A, Nirman
Bhawan, New Delhi
----Petitioners
Versus
Dr. Arjun Singh Sandhu S/o Col. Gurmohinder Singh Sandhu, R/
o 118, Central School Scheme, Air Force Area, Jodhpur, (Raj.),
Professor And Head, Department Of Urology, AIIMS, Jodhpur.
----Respondent
D.B. Civil Writ Petition No. 4524/2025
Dr. Mahendra Kumar Garg S/o Shri G.l. Garg, Aged About 65
Years, Resident Of Q-605, Centria Hills And Dales Society, Undri,
Pune-411060 (Maharastra), Retired As Professor And HOD Of
General Medicine, AIIMS, Jodhpur (Raj.)
----Petitioner
Versus
1. Union Of India, Through The Secretary, Ministry Of Health
And Family Welfare (PMSSY-IV Division), 745-A, Nirman
Bhawan, New Delhi-110 011.
2. All India Institute Of Medical Science, Jodhpur (Raj.)
Through Its Executive Officer-342005.
----Respondents
D.B. Civil Writ Petition No.1782/2025
1. All India Institute of Medical Science (AIIMS), Jodhpur (Raj.)
through its Executive Director.
2. Union of India through the Secretary, Ministry of Health &
Family Welfare (PMSSY-IV Division), 745-A, Nirman Bhawan,
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New Delhi.
----Petitioners
Versus
Dr. Bikram Choudhury S/o Lt. Maj. Gen. P.S. Choudhury, VSM
r/o B-801-A, AIIMS Residential Complex, Basni Phase-II,
Jodhpur (Raj.), Professor and Head, Department of ENT, AIIMS,
Jodhpur.
----Respondent
For Petitioner(s) : Mr. Muktesh Maheshwari
For Respondent(s) : Mr. Sanjeev Johari, Senior Advocate
assisted by Mr. Lalit Parihar &
Mr. Shubhankar Johari
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI
Judgment
Reportable
Reserved on 04/03/2025
Pronounced on 15/05/2025
Per Dr. Pushpendra Singh Bhati, J:
1. The present litigation arises out of an identical controversy
relating to certain doctors, who while receiving pension from the
Union of India, were taken under the employment of the All India
Institute of Medical Sciences, Jodhpur (for short, 'AIIMS,
Jodhpur'). The grievance of the said doctors (parties to the instant
appeals i.e. appellants/respondents) is that on the strength of the
provisions of All India Institute of Medical Sciences Act, 1956 (in
short, 'Act of 1956), All India Institute of Medical Sciences
Regulations, 1999 (henceforth referred to as 'Regulations of
1999''), Central Civil Services (Fixation of Pay of Re-employed
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Pensioners) Orders, 1986 (for short, 'Orders of 1986') as well as
the Circulars of the Ministry of Health, Government of India and
AIIMS, Jodhpur, they are being considered and treated as re-
employed persons.
1.1. For the sake of brevity and convenience, the facts and the
prayer clauses are being taken from the above-numbered D.B.
Civil Writ Petition No.2573/2025 (AIIMS, Jodhpur & Anr. Vs. Dr.
Mahendra Kumar Garg) and D.B. Civil Writ Petition No. 4524/2025
(Dr. Mahendra Kumar Garg Vs. Union of India & Anr.), for the
purpose of the present analogous adjudication.
1.1.1. The prayer clauses read as under:
Writ Petition No.2573/2025:
"It is, therefore, humbly prayed that this writ petition
may kindly be allowed and by issuing an appropriate writ,
order or direction:
1] The Impugned Order dated 08.10.2024 (Annex.04)
passed by the learned Central Administrative Tribunal,
Jodhpur Bench in Original Application No.472/2023, may
kindly be quashed and set aside;
2] The Original Application No.472/2023, may kindly be
dismissed in toto.
3] Any other writ, order or direction which your Lordship
may deem just and proper in the facts and circumstances
of the case, may also kindly be issued in favor of the
petitioner."
Writ Petition No.4524/2025:
"It is, therefore, most humbly and respectfully
prayed that the present writ petition may kindly be
allowed and:-
A] By an appropriate writ, order or direction, impugned
part of the Judgment dated 08.10.2024 (Annex.1) passed
by the learned Central Administrative Tribunal, Jodhpur
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Bench; concluding the petitioner in the "Re-employed"
may please be ordered to be quashed and set aside.
B] By an appropriate writ, order or direction, it may be
please be held that the petitioner was essentially
appointed on "Direct Recruitment" basis by the respondent
No.2 (AIIMS, Jodhpur); and thus, he is not covered within
the term "Re-employment".
C] By an appropriate writ, order or direction, it may
please be held that the petitioner is not "Re-employed" as
such; and therefore, the provision relating to the "Re-
employment" under the AIIMS Act, 1956, AIIMS
Regulations, 1999, and CCS (Fixation of Pay of Re-
employed Pensioners) Order, 1986 are not applicable in
the present case of the petitioner.
D] By an appropriate writ, order or direction, it may
please be held that the petitioner's appointment being on
"Direct Recruitment" basis way back in the year 2018; the
terms of his appointment with AIIMS, Jodhpur
(Respondent No.2) cannot be changed/altered on the
basis of the impugned part of the Judgment dated
08.10.2024 (Annex.1)
E] Any other appropriate order or relief which this Hon'ble
Court may deem just and proper in the facts and
circumstances of this case may kindly also be passed in
favour of the humble petitioner."
1.2. As the pleaded facts and record would reveal, the present
writ petitions have been preferred against separate orders of same
date passed by the learned Central Administrative Tribunal,
Jodhpur Bench (for short, 'Tribunal') in the original applications
preferred by certain doctors, who are also parties in the present
litigation.
1.2.1. In the present adjudication, the AIIMS, Jodhpur has also
preferred some of the instant petitions, thus for the sake of clarity
it shall be henceforth referred to as 'AIIMS, Jodhpur', and likewise,
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the parties who are doctors herein (appellants or respondents),
shall be henceforth referred to as 'Doctors'.
2. The impugned orders passed by the learned Tribunal clearly
reflects that the controversy is pertaining to the nature of
employment of the Doctors in AIIMS, Jodhpur.
3. In sum and substance, the determination as made by the
learned Tribunal in the impugned orders (in relation to the
identical controversies) was in two parts i.e. (i) since the Doctors
are getting pension and got employment in the AIIMS, Jodhpur,
they certainly fall in the category of 'Re-employed Persons', as per
Regulation 33 of the Regulations of 1999 and; (ii) in absence of
any condition in the appointment order, it was not legally
permissible for the AIIMS, Jodhpur to deduct the pension from the
pay of the Doctors with retrospective effect i.e. from the date of
their appointment to the AIIMS, Jodhpur, by applying the formula
of 'Pay minus Pension', being violative of the principles of natural
justice. The Doctors are aggrieved of the impugned orders passed
by the learned Tribunal, as regards to the aforesaid Part (i),
whereas the AIIMS, Jodhpur is assailing the aforementioned Part
(ii) of the verdict of the learned Tribunal.
4. The common platform on which the instant petitions travel is
a recruitment process that was conducted by the AIIMS, Jodhpur
for the faculty posts (Group 'A') in various Departments of AIIMS
Jodhpur, in pursuance of the advertisement dated 22.01.2018.
Consequently, the offer of appointment was made in respect of the
said faculty posts to the suitable applicants, and the employment
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of the doctors commenced in AIIMS, Jodhpur, after their
appointment.
4.1. The cause of grievance raised in the litigatory pursuit by the
Doctors is that after such appointment in pursuance of the
aforementioned recruitment process, the petitioner received a
Circular by AIIMS, Jodhpur dated 24.11.2023, whereby the
doctors who are receiving pension from a previous
employer/department were required to submit their pension
details. The said circular also mentioned that as per the Ministry of
Health & Family Welfare (PMSSY-IV Division), Government of India
vide letter no. Z-28016/123/2021-PMSSY-IV (Part-1) the basic
principle to fix remuneration of retired Government servants
appointed on contract basis or on re-employment is Pay minus
Pension.
4.2. As per the communications/instructions dated 08.11.2023,
22.11.2023 & 20.12.2023 issued by the Ministry of Health &
Family Welfare (PMSSY-IV Division), Government of India, the pay
of the retired government servants (like the Doctors herein) has
been fixed, while applying the formula of 'Pay minus Pension', and
thus, the pension details of the Doctors were sought for by AIIMS,
Jodhpur and the said formula was made applicable in their case.
5. At the outset, Mr. Sanjeev Johari, learned Senior Counsel
assisted by Mr. Lalit Parihar and Mr. Shubhankar Johari, appearing
for the Doctors has taken this Court to the operative portion of
one of the impugned orders dated 08.10.2024 (under challenge in
the instant Writ Petition No.2573/2025). The said operative
portion reads as under:-
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"14. Having regard to the submissions made by
learned counsel for the parties and material available
on record and the provisions of All India Institute of
Medical Sciences Act, 1956 [hereinafter referred to as
'the Act of 1956'], it emerges that as per the provisions
of Section 11(5) of the Act of 1956, authority has been
given to the AIIMS to make Regulations with regard to
the Salary, Allowances and the Conditions of Service of
the Director and other Officers and employees of the
Institute. As per the provisions of Section 29 (1) of the
Act, 1956, the Institute with prior approval of the
Central Government by publishing Notification in the
Official Gazette, can make regulations consistent with
this Act and Rules made there under, the carry out the
purpose of this Act. The AIIMS, Jodhpur was
established by the Ministry of Health & Family Welfare,
Government of India under the guidelines for
implementation of 'Pradhan Mantri Swasthya Suraksha
Yojana' (PMSSY) Scheme, with the aim of correcting
regional imbalance in quality tertiary level healthcare
in the country and also augmenting facilities for quality
medical education in the country.
15. In exercise of power conferred by Sub Section
(1) of Section 29 of the Act 1956, All India Institute of
Medical Sciences Regulations, 1999 were made. The
Regulations 33 thereof, provides details for fixing pay
to the reemployed persons/employees.
16. In the present matter, one of the main
contention raised by learned counsel for applicant is
with regard to the nature of employment of applicant
in AIIMS, Jodhpur. As per case of applicant, he cannot
be termed as reemployed person.
After going through the Regulation 33, it
emerges that any person who is reemployed in the
Institute after retirement from the service of Institute
or of State or Central Government or any statutory or
local body administered by the Government, shall be
treated as reemployed. The provisions of Regulation 33
in categorical term conveys that if retired person is
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employed in the AIIMS he/she shall be treated as
reemployed person. In view of the above, we are
unable to accept the contention of learned counsel for
the applicant not to treat the applicant as a
reemployed person.
17. Inviting the applications for direct recruitment
from the eligible persons, do not suggest that the
persons who are already retired and getting pension
shall not be treated as reemployed persons. The
Orders of 1986 are applicable to all persons who are
reemployed in the civil services and post in connection
with the affairs of the Union Government after
retirement getting pension from the service of Union
Government including defence also.
After going through the provisions of Section 2 of
the above 1986 orders, it emerges that these rules
shall not be applicable to those persons who are
reemployed after resignation, dismissal or removal
provided they have not received any retiral benefits for
the pre-employed service. Similarly, persons
reemployed in posts the expenditure of which is not
debitable to the civil estimates of the Union
Government shall not be governed by the provisions of
1986 Orders.
18. In the present matter, we are of the view that
since the applicant was previously working with the
Indian Army and is getting pension and got
employment in the Institute, he is certainly a
reemployed person as mentioned in Regulation 33 of
the Regulations of 1999.
19. Second issue involved in this O.A. is with regard
to application of the formula of 'Pay minus Pension'
after a span of more than five years' from the date of
appointment accorded to applicant as faculty member
in the AIIMS Institute. We note that the applicant was
offered appointment after disclosing pay matrix with
minimum pay and allowances in his appointment letter.
The appointment order does not contain any condition
for deducting the pension from the pay. The
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advertisement also did not inform the applicant that his
pay will be deducted by the pension being received by
him on account of the earlier employment. After
assuming the duty by the applicant he has been
receiving the pay without deducting pension for last so
many years. The applicant was appointed in the year
2018. In the year 2023, the Government of India,
Ministry of Health and Family Welfare vide letter dated
08.11.2023 informed that there may be instances
where pay of the retired Government servants
appointed on contract basis or on reemployed in the
Institute, has been fixed without pension, therefore,
direction was given to ensure that basic principle of
pay fixation of retired Government servant appointed
on contract basis or on reemployment i.e. 'Pay minus
Pension' be scrupulously followed and in case the same
has not been done, the pay of the concerned officer
should be re-fixed and excess amount drawn shall be
recovered under intimation to the Ministry. This letter
from the Ministry was addressed to all the Directors
and Executive Directors of the new AIIMS. Consequent
upon the above direction, the Circular dated
24.11.2023 (Annex.A/1) was issued by the Jodhpur
AIIMS asking/directing the applicant to submit his
pension details.
20. From perusal of the above direction and circular,
it emerges that as per the directions of the
Government, the Institute intends to apply the formula
of 'Pay minus Pension' in respect of the reemployed
persons who were accorded appointment on the fixed
salary without incorporating the condition of 'Pay
minus Pension'. In our view, the terms and conditions
of the appointment given to the applicant cannot be
changed in the manner adopted by the respondents.
21. Having regard to the contentions raised by both
the parties, we are of the view that unless and until
terms and conditions of appointment are in force, the
respondents cannot deduct and reduce the pay of
applicant by applying the formula of 'Pay minus
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Pension'. The respondents did not assign any reason
for not incorporating the condition of 'Pay minus
Pension' in the letter of appointment. In the absence of
any specific reply, we cannot say that whether this was
on account of some error or mistake on the part of the
respondents or it was a deliberate action on their part.
22. Without disclosing the reasons for not deducting
the pension from the pay of the applicant, we cannot
permit the respondents to deduct the pension from the
pay of applicant that too with retrospective effect i.e.
from the date of applicant's appointment. In our view,
the action of the respondents in applying the formula
of 'Pay minus Pension' without making amendment in
the appointment order, is against the principles of
natural justice. The Department/Institute cannot
change the terms and conditions of appointment to the
detriment of employee without assigning any reason
and without giving any opportunity of hearing to him.
We are of the view that applicant might not accept the
offer of appointment in case of incorporating this
condition in the advertisement or in the offer of
appointment. In view of this, while allowing the O.A.
the respondents are directed not to apply the formula
'Pay minus Pension' under the present appointment
order dated 20.09.2018 (Annex.A/7).The respondents
also cannot recover the amount already paid to the
applicant on the strength of appointment letter issued
to the applicant. No order as to costs."
5.1. Learned Senior Counsel submitted that the formula/principle
of 'Pay minus Pension' was neither there in the advertisement and
nor was made applicable in the case of the Doctors herein, at the
time of appointment, and thus, the same cannot be imposed at
any subsequent stage; the said stand was categorically taken by
the Doctors before the learned Tribunal.
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5.2. While drawing the attention of this Court towards the
Notification dated 22.01.2018, whereby the recruitment process of
Faculty Posts (Group 'A') in various departments of the AIIMS,
Jodhpur on Direct Recruitment / Deputation Basis was initiated,
learned Senior Counsel submitted that the same did not contain
any condition of application of the formula of 'Pay minus Pension'.
5.3. To further substantiate the claim of the Doctors, learned
Senior Counsel drew the attention of this Court towards the
appointment order dated 20.09.2018 which clearly mentions that
their pay and allowances shall be equivalent to the Central
Government employees of the similar category. The said
appointment order indicated that the probation of Doctors shall be
governed by the Central Civil Services Rules of the Government of
India, and while being on probation, the services of the Doctors
shall be governed by the Central Civil Services (Temporary
Service) Rules, 1965.
5.4. The attention of this Court has also been drawn towards the
Circular dated 24.11.2023 issued by the AIIMS, Jodhpur, according
to which, in cases of the persons, who were receiving pension,
'Pay minus Pension' formula shall be made applicable, where the
appointment was made on re-employment basis.
5.5. Learned Senior Counsel further drew the attention of this
Court to the instructions dated 08.11.2023 issued by the Ministry
of Health & Family Welfare, Government of India, pertaining to the
pay fixation of retired government servants while applying 'Pay
minus Pension' formula. He has further referred to the Instructions
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dated 20.12.2023, which again pertains to 'Pay minus Pension'
formula; relevant portion whereof reads as under:
"DoE has advised that the principles of remuneration
of retired Central Government servants as contained
in DoPTs OM No.3(3)/2016-Estt. (Pay.II) dated
01.05.2017 provide that pay plus gross pension on
re-employment not to exceed Rs.2,25,000/- i.e. Pay
Level 17 as applicable to Secretary to Government
of India. Further, DoE guidelines dated 09.12.2020
on engagement of retired Central Government
servants on contract basis including as Consultants
states that admissible monthly remuneration shall
be arrived at by deducting the basic pension from
the pay drawn at the time of retirement. Therefore,
the basic principle of remuneration of retired
Government servants appointed on contract basis or
on re-employment is pay minus pension."
5.6. Learned Senior Counsel also submitted that the aforesaid
Circulars/Instructions were nothing but an afterthought and have
created an anomaly whereby the Doctors who joined the services
with open eyes, in view of the conditions of recruitment and
appointment, were being subjected to application of the formula of
'Pay minus Pension' at a belated stage. He further submitted that
the Doctors on their appointment to the various faculty posts in
the entry level Matrix-14A were subjected to minimum monthly
salary, as scheduled, with other usual allowances including NPA, if
applicable, as admissible from time to time to the Central
Government employees of similar category. He further submitted
that the Central Civil Services (Revised Pay) Rules, 2016
(hereinafter referred to as 'Rules of 2016') were applicable to the
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Doctors, and the offer of appointment was in accordance
therewith.
5.7. Learned Senior Counsel further submitted that repeated
representations have been given and the Doctors, who came at
very senior level upon taking up appropriate employment, after
leaving their previous employment, due to resignation/retirement,
were having high hopes of serving the premier Institutions like
AIIMS, Jodhpur at an appropriate pay band level.
5.8. Learned Senior Counsel also submitted that the conditions
mentioned in the advertisement required due adherence and are
binding upon the parties, and if such condition of
adoption/applicability of formula of 'Pay minus Pension' was not
mentioned therein, then imposing/adopting the same at a belated
stage, after a span of more than five years, is not only arbitrary
but also illegal.
5.9. In support of such submissions, learned Senior Counsel
relied upon the following judgments :
(a) E. Sreedharan Vs. Union of India & Ors. [W.P. (C)
No.2356/2002, decided by the Hon'ble Delhi High Court on
05.12.2008].
(b) J.S. Yadav Vs. State of Uttar Pradesh & Anr., (2011) 6 SCC
570.
6. On the other hand, Mr. Muktesh Maheshwari, learned counsel
appearing on behalf of AIIMS, Jodhpur, opposed the aforesaid
submissions made on behalf of the Doctors.
6.1. Learned counsel submitted that the learned Tribunal passed
the impugned orders considering appointment of the Doctors to be
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falling within the ambit of the term "Re-employment" as per
Regulation 33 of the Regulations of 1999, however has directed
the AIIMS, Jodhpur not to apply the formula of 'Pay minus
Pension', while merely observing that no such condition was
incorporated in the advertisement or in the appointment order of
the Doctors.
6.2. Learned counsel has drawn attention of this Court towards
the Orders of 1986, which lays down elaborate Rules for 'Pay
minus Pension'; relevant portion whereof reads as under:
"4. FIXATION OF PAY OF REEMPLOYED PENSIONERS.
Reemployed pensioners shall be allowed to drawn pay only in
prescribed scales of pay for the posts in which they are
reemployed. No protection of the scales of pay of the post
held by them prior to retirement shall be given.
(i) In all cases where the pension is fully ignored, the initial
pay on reemployment shall be fixed at the minimum of the
scale of pay of the reemployed post.
(ii) In cases where the entire pension and pensionary
benefits are not ignored for pay fixation, the initial pay on
re-employment shall be fixed at the same stage as the last
pay drawn before retirement. If there is no such stage in the
reemployed post, the pay shall be fixed at the stage below
that pay. If the maximum of the pay scale in which a
pensioner is reemployed is less than the last pay drawn by
him before retirement, his initial pay shall be fixed at the
maximum of the scale of the reemployed post. Similarly, if
the minimum of the scale of the pay in which a pensioner is
reemployed is more than the last pay drawn by him before
retirement his initial pay shall be fixed at the minimum if the
scale of pay of the reemployed post. However, in all these
cases, non-ignorable part of the pension and pension
equivalent of retirement benefits shall be reduced
from the pay so fixed.
The reemployed pensioner will in addition to pay as fixed
under para (b) above shall be permitted to draw separately
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any pension sanctioned to him and to retain any other form
of retirement benefits.
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 to the following
extent:
In the case of ex-serviceman 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.
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 of retirement benefits shall be
ignored."
6.3. Learned counsel further submitted that the pay and
allowances to the pensioners of the Central Government is
governed by the Orders of 1986 and the said Orders are applicable
to all the persons who are re-employed on the post in connection
with the affairs of Union Government, who after retirement are
getting pension or other benefits from the service of the Union
Government including Railways, Post & Telegraph, Defence etc.
The Orders of 1986 was applicable to all persons irrespective of
their employment conditions, particularly if they have been in
employment under Union Government and are again seeking such
employment. The employment under same employer i.e. Union
Government excluding removal or leaving without pension has to
run in accordance with the Orders of 1986.
6.4. Learned counsel also submitted that the formula of 'Pay
minus Pension' has been made applicable in the case of the
[2025:RJ-JD:15512-DB] (18 of 26) [CW-2573/2025]
Doctors herein in accordance with the Orders of 1986, and there
cannot be any anomaly in the same.
7. Heard learned counsel for the parties as well as perused the
record of the case, alongwith the judgment cited at the Bar.
8. The seminal issues that falls for consideration are; (i)
whether the doctors employed at the AIIMS, Jodhpur would come
under the ambit of "re-employment"; and (ii) whether the "pay
minus pension" rule of pay fixation would be applicable on the
doctors.
9. Before examination of the two aforementioned issues, it is
pertinent to mention that the rules with respect to retirement,
made by legislature in its wisdom, are in order to introduce new
talent in the various governmental departments, and at the same
time, there are rules with respect to pension which were made to
provide the financial assistance required by its employees after
retirement. However, certain circumstances call for special
expertise and skill of certain individuals who have already retired,
thus, in the public interest, the retired individuals are re-employed
within the government services, and this led to origin of concept
of re-employment of the retired governmental employees.
9.1. At this juncture, it also has to be noted that over time,
several rules and regulations have also been framed regarding pay
fixation of re-employed retired government servants under the
Indian legal framework. The intent behind such rules and
regulations is to address the situation wherein retired government
servants who are already receiving pension in lieu of retirement,
when re-employed, are granted a pay which includes the certain
[2025:RJ-JD:15512-DB] (19 of 26) [CW-2573/2025]
heads already paid to them under the pension; the same would
result into their unjust enrichment at the expense of the public
exchequer. Thus, the rules of pay fixation of the government
employees who were re-employed within the service of
government were introduced.
9.2. Presently, the Pay fixation of the government employees who
are appointed in Central Civil Services is done in accordance with
the Central Civil Services (Revised pay) Rules, 2016. However, an
exception is carved out on applicability of the said Rules, under
Rule 2 (vii), on re-employed pensioners in Government Services.
In case of a re-employed pensioners, including that of defence
forces personnel/Officers, the pay fixation is carried out in
accordance with Order of 1986 read with Office Memorandum
dated 01.05.2017, Ministry of Personnel, Public Grievances and
Pension Department of Personnel & Training, which requires the
application of "Pay minus Pension" formula in case of re-employed
pensioners.
9.3. In furtherance of the aforementioned regulations, the Ministry
of Health and Family Welfare issued letters dated 08.11.2023,
22.11.2023, 20.12.2023 and 13.12.2023 whereby compliance of
the formula of "Pay minus Pension", in the case of the retired
government servants who were employees of AIIMS, Jodhpur was
sought. AIIMS, Jodhpur, thus, sought the details of the pension
details of the doctors vide circular dated 24.11.2023.
10. This leads to the examination of the first issue pertaining to
the treatment of appointment of doctors under the head of "re-
employment" after retiring.
[2025:RJ-JD:15512-DB] (20 of 26) [CW-2573/2025]
10.1. While the dispute between the parties was that under the
given factual matrix, if the appointment of the doctors would
amount to "re-employment" in light of Order of 1986, Act of 1956,
Regulation of 1999, the circulars of the Ministry of health,
Government of India and circular of AIIMS, Jodhpur, it is
interesting to note that none of the aforementioned statutes,
regulations or circulars have provided for any definition or scope
of the term "re-employment".
10.2. In absence of any clear definition of the term 're-
employment', a purposive interpretation is required to be done in
this regard, in light of the factual matrix and the relevant rules &
regulations, as was done by Hon'ble Apex Court in the judicial
pronouncement in the case of V.S. Mallimath v. Union of India,
(2001) 4 SCC 31. In the said judicial pronouncement the
Hon'ble Apex Court, while determining whether appointment of a
member of the Human Rights Commission after retirement would
mean "Re-employment", came to the following conclusion:
"Therefore, the question for consideration is whether the
appointment of the petitioner as a Member of the Human
Rights Commission would tantamount to re-employment. In
the absence of any definition of the expression "re-
employment" and applying the common parlance theory,
the conclusion is irresistible that the said appointment
would tantamount to "re-employment"...."
The Hon'ble Apex Court arrived at conclusion of considering
employment of the member of the Human Rights Commission after
retirement as re-employment, in view of the rules and conditions
containing provision of Re-employment and pay fixation thereof.
[2025:RJ-JD:15512-DB] (21 of 26) [CW-2573/2025]
10.3. This Court is also conscious of the judicial pronouncement of
the Hon'ble Delhi High Court in the case of Uma Kant Sadhav
And Anr. v. Union of India and Ors (W.P. (C) 8971/2018,
decided on 09.05.2023), which was a case, wherein retired
government officials were appointed on the post of Chairman and
Members of the National Monument Authority in pursuance of an
advertisement and appointment orders, and the services of the
said employees therein were governed by National Monuments
Authority (Conditions of Service of Chairman and Members of the
Authority and Conduct of Business) Rules, 2011 read with Section
20H of Ancient Monuments and Archaeological Sites and Remains
(Amendments and Validation) Act, 2010 which did not have any
provision with respect to re-employment of the retired
government officers. Thus, despite appointment of retired
government pensioners to the said posts, they were not
considered as re-employed as the rules governing their
employment had no provision with respect to the "Re-
employment".
10.4. Keeping in view the aforementioned judicial
pronouncements, this Court observes that the doctors herein are
professionals who after their retirement from their government
services, in pursuance of the respective notifications of Direct
recruitment on the various faculty posts (Group 'A') in various
Departments, were given appointment in the AIIMS, Jodhpur. The
appointment was done by issuing office orders, where the pay
matrix and rules applicable qua their service were mentioned
along with other details. The services of the doctors are subject to
[2025:RJ-JD:15512-DB] (22 of 26) [CW-2573/2025]
the Act of 1956, and Regulations of 1999, and the service
conditions of the doctors appointed are governed by the Central
Civil Service Rules as applicable to the Central Government
employees.
10.5. This Court further observes that the provision of Regulation
33 of the Regulations of 1999, indicates that if a retired person is
employed in the AIIMS, he/she is to be be treated as a re-
employed person. The said Regulation 33 reads as follows:
"33. Pay of re-employed persons:- (1) the pay of any
person who may be re-employed in the institute after
retirement from the service of the institute or of a State or
the Central Government or any statutory or local body
administered by the Government shall be fixed in the
prescribed scale of pay at the minimum stage at the time
scale of pay of the post in which an individual is re-
employed. In cases where the fixation of initial pay of the re-
employed officer at the minimum of the prescribed pay scale
will cause undue hardship, the pay may be fixed at a higher
stage by allowing one increment for each year of service
rendered by the officer before retirement in a post lower
than that in which he is re-employed. In addition, he may be
permitted to draw separately any pension sanctioned to him
and to retain any other form of retirement benefit for which
he is eligible, such as, Government or Employer's
Contribution to Contributory Provident Fund, gratuity,
commuted value of pension:
Provided that except as indicated in sub-regulations (2), (3)
and (4), the total amount of initial pay plus the gross
amount of pension and/or the pension equivalent of other
forms of retirement benefit does not exceed -
(a) The pay he draws before his retirement (Preretirement
pay); or
(b) Rs.3,000/- which ever is less.
Explanation: The pay last drawn before retirement shall be
taken to be the substantive pay plus special pay, if any. The
pay drawn in an officiating appointment may be taken into
[2025:RJ-JD:15512-DB] (23 of 26) [CW-2573/2025]
account if it was drawn continuously for at least one year
before retirement.
(2) The restriction that pay on re-employment plus gross
pension or pension equivalent to other retirement benefits,
should not exceed the last pay drawn may be relaxed, with
the prior approval of the Governing Body, in cases where
such relaxations or permissible or re-employed pensioners
under the employment of the Central Government:
Provided that no relaxation shall be made in case where
appointment to post if made initially, would need
Government approval, that is posts carrying a minimum
salary of RS.800/- or more per mensem except with the
previous approval of the Government.
(3) In cases where the minimum pay of the post in which the
officer is re-employed is more than the last pay drawn the
officer concerned may be allowed to draw the pension and
pension equivalent of other retirement benefits.
(4) Once the initial pay of re-employed pensioner has been
fixed in the manner indicated above he will be allowed to
draw normal increments in the time scale of the post to
which he is appointed:
Provided that the pay and gross pension or pension
equivalent of other retirement benefits taken together do not
any time exceed Rs.3,000/- per month."
10.6. Thus, there is no ambiguity in the findings of the learned
Tribunal that Regulation 33 of the Regulations of 1999 is
governing the field of the Doctors herein, and thus, they have
been rightly declared as "re-employed" persons.
11. Once it is determined that the Doctors herein are Re-
employed persons, what remains to be determined is whether the
"Pay minus Pension" rule of pay fixation would be applicable on
the doctors.
11.1. The Orders of 1986 and 'Pay minus Pension' formula
becomes a foregone conclusion once it is determined that the
[2025:RJ-JD:15512-DB] (24 of 26) [CW-2573/2025]
doctors are re-employed persons, and therefore, arriving at the
second conclusion that since the conditions which were neither
there in the advertisement nor in the appointment order would not
apply in the case of the doctors herein, is not correct, because the
Rules which apply to the service, including consolidated and
conjoint reading of the Act of 1956, the Regulations of 1999 and
Orders of 1986 clearly demarcates that once the employees are
re-employed, the 'Pay minus Pension' formula should be applicable
to them.
11.2. This Court is also of the clear opinion that the pay fixations
have to be done as per the Orders of 1986 which are governing
the field for the Union Government employees, upon their re-
employment, and thus, any action contrary thereto, would not be
permissible. The 'Pay minus Pension' principle is an outcome of the
statutory provisions, particularly the Orders of 1986, and
Regulation 33 of the Regulations of 1999, and thus cannot be
obliviated merely on the ground that such conditions were not
mentioned in the advertisement or the appointment orders.
11.3. The applicability of the Rules of 2016 as well as Office
Memorandum dated 01.05.2017 issued by the Ministry of
Personnel, Public Grievance & Pension, Department of Personnel &
Training, Government of India, wherein clear provisions are
contained which specifically govern the pay fixation of the re-
employed pensioners, cannot be disputed. The said Office
Memorandum provides for a detailed and analogous framework
regarding pay fixation of re-employed pensioners, including those
who were in service since 2016, the year when the Rules of 2016
[2025:RJ-JD:15512-DB] (25 of 26) [CW-2573/2025]
came into existence. The services of re-employed persons
thereafter will be governed by the Office Memorandum, which
clearly outlines the provisions, governing the field. Thus, upon
application of the Rules of 2016, the conclusion would be that the
rule of re-employment and formula of 'Pay minus Pension' would
apply to the doctors herein.
11.4. The statutory provisions which are governing the field qua
the re-employed persons cannot be excluded only because there
has been an omission on the part of the AIIMS, Jodhpur to clarify
the same at the time of advertisement or in the appointment
order. The statutes have to prevail unless found to be contrary to
law. It is true that it was a direct recruitment, but at the same
time, Regulation 33 of the Regulations of 1999 clearly prescribed
that such re-employment in common parlance of the Doctors was
under the same employer i.e. Union of India.
12. However, it also has to be noted that the lackadaisical and
ignorant attitude of AIIMS, Jodhpur about its own provisions as
well as the other provisions of law applicable upon its employees
has led to the situation leading to this controversy. It was only
when the Ministry of Health and Family Welfare sent repeated
communications to apply the "pay minus pension" formula upon
the concerned employees, the AIIMS, Jodhpur issued Circular
seeking pension details of such employees. Hence, it is not just
and fair to seek retrospective recovery of the amount already paid
to the doctors, at this belated stage for no fault on their part.
13. Thus, in view of the above, the instant D.B. Civil Writ
Petitions No.18761/2024, 18799/2024, 18832/2024,
[2025:RJ-JD:15512-DB] (26 of 26) [CW-2573/2025]
18835/2024 & 4524/2025 preferred by the Doctors, to the
extent of challenge to the impugned orders of the learned
Tribunal, whereby it was held that since the Doctors are getting
pension and got employment in the AIIMS, Jodhpur, they certainly
fall in the category of 'Re-employed Persons', as per Regulation 33
of the Regulations of 1999, stand dismissed; whereas instant
D.B. Civil Writ Petitions No.2573/2025, 925/2025,
1412/2025 & 1782/2025 preferred by the AIIMS, Jodhpur,
to the extent of challenge to the impugned orders, whereby it was
held that it was not legally permissible for the AIIMS, Jodhpur to
deduct the pension from the pay of the Doctors, by applying the
formula of 'Pay minus Pension" stand partly allowed, and it is
hereby directed that as the doctors herein were re-employed, they
shall be governed by the applicable provisions of law with respect
to their pay fixation and the "pay minus pension" formula vis-a-vis
the doctors is to be followed in its true spirit and essence,
prospectively, from the date of this judgment i.e.
15.05.2025; accordingly, the recovery of amount by application
of "pay minus pension" shall not be made with retrospective
effect i.e. from the date of their appointment in AIIMS, Jodhpur.
All pending applications stand disposed of.
(CHANDRA PRAKASH SHRIMALI),J (DR.PUSHPENDRA SINGH BHATI),J
SKant/-
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