Andhra HC (Pre-Telangana)
Shri P. Harischandra Reddy And Ors. vs National Institute Of Rural ... on 13 June, 1995
Equivalent citations: 1995(2)ALT555
ORDER S. Dasaradha Rama Reddy, J.
1. All these Writ Petitions involve identical points and are accordingly disposed of by a common judgment. The petitioners are allex-service personnel and have been reemployed in the National Institute of Rural Development, Government of India Organisation (for short 'the NIRD'). The dispute is with regard to pay fixation in the NIRD. The particulars of their date of appointment, designation, etc., are given in table below.
________________________________________________________________________________ Name Desig- Date of Scale of Pay Revised Excess nation Appt. pay earlier Scale of pay sought fixed to be recovered ________________________________________________________________________________ Rs. Rs. Rs. Rs.
P. Harlschandra UDC 25-6-84 330-560 530 1200-2040 63,196 Reeddy (W.P. No. 17408 Wire- 28-1-84 260-400 303 950-1500 19,754 of 1992) man K.R.K. Prasad (W.P. No. 17409 of 1992) N. Narsimhulu LDC/ 12-7-85 260-400 358 950-1200 32,710 (W.P.No.l7410 of Typist 1992) D. Anantha " 15-7-85 260-400 400 950-1200 46,237 Reddy (W.P. No. 17411 of 1992) A.R.K. Murthy " 11-7-85 260-400 400 950-1280 46,320 (W.P. No. 323 of 1993)
________________________________________________________________________________
2. For convenience, the facts in W.P. No. 17408 of 1992 may be taken. The petitioner retired on 30-9-1983 at the age of 45 years as Subedar Clerk, non- commissioned rank, after putting in 17 years of service. At the time of his retirement, he was drawing basic salary of Rs. 575/- per month. On 12-6-1984, he received offer of appointment from the NIRD as Upper Division Clerk in the scale of Rs. 330-10-380-EB-12-500-EB-15-560. In the offer of appointment, it is stated that his pay will be fixed according to Government of India Rules as applicable to military pensioners and reemployed in Civil Service as in force from time to time. It is also stated that he will be entitled to draw pension to which he is eligible provided that the total amount of initial pay plus the gross amount of pension must not exceed the last drawn pay. It is further stipulated that if he is retired before attaining the age of 55 years, pension may be ignored totally in fixing his pay if he was below the rank of Commissioned Officer. As final fixation was not done for nearly one year, on 10-9-1985 the petitioner requested the NIRD to fix the pay. NIRD passed order on 29-9-1986 fixing his pay at Rs. 530/- with effect from 25-6-1984. The order reads as follows:
"With reference to his option dt. 10-9-1985 the pay of Shri P. Harischandra Reddy, Ex-serviceman re-employed as U.D.C. in N.I.R.D., is refixed at Rs. 530/- w.e.f. 25-6-1984 (FN) in the scale of Rs. 330-10-380-EB-12-500-EB- 15-560 in accordance with Government of India Rules applicable to Military pensioners on re-employment in Civil Services. His pay has further been regulared with reference to his drawal of increment on 1-6-1985 at Rs. 545/- and on 1-6-1986 at Rs. 560/-. The above fixation order is provisional, subject to confirmation on receipt of required information from the Pay and Accounts Office. Ministry of Defence."
He was also paid arrears up to 29-9-1986. While so, in December 1988, apprehending that his pay will be refixed on a lesser scale, the petitioner filed W.F. No. 18338 of 1988 along with the four other writ petitioners. Pending writ petition, NIRD refixed the pay of the petitioner on 25-4-1990 at the reduced pay scale of Rs. 330/-. The Office Order reads as follows:
"In accordance with the G.O.I.M/FNo. 18(1)IO/86-Ptdt.l5-12-86Govt. of India, Ministry of Communication, Dept. of Telecom, Letter No. 45-29/86- PAT, dated the 10th August, 1987 and Ministry of Agriculture, Dept. of Rural Development, G.O.I. D.O. Letter No.I-11011/23/88-Trg. dated 21-10-88 the pay fixation of Shri P. Harichandra Reddy, Ex-serviceman re- employed as UDC at NIRD provisionally fixed vide Office Order No. 264 dated 29-9-1986 is regulated as detailed below:-
__________________________________________________________________ Pre-revised scale Revised scale __________________________________________________________________ Date of Joining in Rs. 330-10-380-EB- Rs. 1200-30-1560-
the Institute 12-500-EB-15-560 EB-40-2040 w.e.f. 25-6-1984 (FN) Rs. 330/- - w.e.f. 1-6-1985 Rs. 340/- - w.e.f. 1-1-1986 - Rs. 1,200/- w.e.f. 1-6-1986 - Rs. 1,230/- w.e.f. 1-6-1987 - Rs. 1,260/- w.e.f. 1-6-1988 - Rs. 1,290/- w.e.f. 1-6-1989 - Rs. 1,320/-
__________________________________________________________________ The refixation is effective from 19-2-1990.' No recoveries of the overpayments to be made until further orders."
The petitioner thereupon amended the prayer in the writ petition and sought for quashing of the Office Order. Pending disposal of the writ petition, the petitioner obtained stay of recovery of the excess amounts paid. The writ petition was ultimately allowed on 13-7-1992 on the ground that no notice was issued to the petitioner. Subsequently, after giving notice to the petitioner, NIRD passed Office Order No. 353 dated 28-8-1992 refixing his pay at Rs. 330/- as fixed by it earlier on 25-4-1990 and also directed recovery of excess amounts paid so far. It may be seen here that as per the revision of scales of pay with effect from 1-1-1986, effected in case of all employees, the excess amount sought to be recovered came to Rs. 63,196/-. Against this order, the petitioner again filed W.P. No. 11668 of 1992 which was disposed of at admission stage with a direction that the petitioner could file appeal within ten days and suspending the operation of the Office Order No. 353 dated 28-8-1992 for a period Of ten days. On 18-12-1992, the appeal preferred by the petitioner was dismissed by the Director General of NIRD, second respondent herein. Against this order, the petitioner has preferred this writ petition contending that the pay originally fixed was correct and was in accordance with O.M. No. 8(34) F. III/ 57 dated 25-11-1958 issued by the Ministry of Finance, Department of Expenditure, Government of India, to all the Ministries and Office Memo No. 2(1)/83/D (Civ-1) Government of India, Ministry of Defence dated 8-2-1983, applicable to retired defence personnel, re-employed in civil posts.
3. The contention of NIRD on the other hand is that the provisional pay fixation was not in accordance with rules applicable to re-employed pensioners. To appreciate the rival contentions, it is necessary to extract the relevant office memoranda.
O.M. No. 8(84) F. III/57. DATED 25TH NOVEMBER. 1958 "In supersession of all earlier orderson the subject, the Govt. of India have decided that the following procedure should be adopted in fixing the pay of pensioners including officers pensioned off or retired on Contributory Provident Fund, and from services of the State Government, Local Bodies Port Trusts etc. re-employed in Central Civil Departments:-
(a) Re-employed pensioners should be allowed only the prescribed scales of pay, that is, no protected time scales such as those available to pre 1981 entrants should be extended to them.
(b) The initial pay, cadre-employment should be fixed at the minimum stage of the scale of pay prescribed for the post in which an individual is re-employed.
In case where it is felt that 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 an higher stage by allowing one increment for each year of service which the officer has rendered before retirement in a post not lower than in which he is re-employed.
(c) In addition to (b) above, the Government servant 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 eg., Government's contribution to a Contributory Provident Fund, gratuity, commuted value of pension, etc., provided that the total amount of initial pay as at (b) above, plus the gross amount of pension and/or the pension equivalent of other forms of retirement benefit does not exceed:-
(i) the pay he draw before his retirement (pre-retirement pay), or
(ii) Rs. 3,000/- whichever is less.
Note 1 : In all cases where either of these limits is exceeding, the pension and other retirement benefits may be paid in full and the necessary adjustments made in the pay so as to ensure that the total of pay and pensionary benefits is within the prescribed limits. Where, after the pay is fixed at the minimum or any higher stage, it is reduced below the minimum as a result of the said adjustments, increase in pay may be allowed after each year of service at the rates of increments admissible, as if the pay had been fixed at the minimum or the highest stage as the case may be.
Note 2:.............."
O.M.NO. 2(1)/83/D(CIV-l) DATED 8TH FEBRUARY. 1983 ISSUED BY THE MINISTRY OP DEFENCE. NEW DELHI "Subject: Fixation of pay of re-employed pensioners-Central Policy thereof - Question of ignoring Rs. 250 in the case of persons retiring before attaining the age of 55.
The undersigned is directed to refer to this Ministry's O.M.No.2(7)/78/ 6664/D(Civ-I), dated 30-8-1978 and to say that the question of raising the limit of the present ceiling of pension which has to be ignored in fixing of pay on re-employment of ex-servicemen, who retire before attaining the 2 age of 55, has been under the consideration of the Government for some time. The President is leased to decide that in the case of those ex- servicemen retiring before attaining the age of 55, the pension as indicated below may be ignored in fixing their pay on re-employment in civil posts:
(i) in the case of Service Officers, the first Rs. 250 on pension:
(ii) in the case of personnel below Commissioned Officers rank, the entire pension;
Note: The pension for the purpose of these orders includes pension equivalent of gratuity and other forms of retirement benefits.
2. These orders will take effect from 25th January, 1983 and the existing limits of military pensions to be ignored in fixing pay of re-employed pensioners will, therefore, case to be applicable to cases of such pensioners as are re-employed on or after that date. In the case of persons who are already on re-employment, the pay may be refixed on the basis of these orders with immediate effect provided they opt to come under these orders. If they so opt their terms would be determined afresh as if they have been re-employed for the first time from the date of these orders. The option should be exercised in writing within a period of six months from the date of these orders. The option once exercised shall be final.
3. This issued with the concurrence of the Ministry of Finance (Department of Expenditure) conveyed vide Secretary's (expenditure) Dy. No. 286/SE/83, dated 1-2-1983."
COPY OF THE LETTER NO. 45-29/86-PAT. DATED THE 10TH AUGUST. 1987. GOVERNMENT OF INDIA. MINISTRY OF COMMUNICATION DEPARTMENT OF TELECOM.
"Decision about the mode of pay fixation of re-employed pensioners (Ex- Servicemen) I am directed to refer to Director-General of the Posts and Telegraphs Letter No. 1-3/83-PAP, dated 2-9-1983 forwarding a copy of the Ministry of Defence O.M.No.2(1)/83/D(Civ. I), dated 8-2-1983 on the subject mentioned above and to say that the Department of Personnel and Training after consul ting the Ministry of Finance have given the following decision about the mode of pay fixation of re-employed pensioner (Ex-servicemen), while implementing the above office memorandum. The same is as detailed below.
2. When a re-employed pensioner asks for refixation of pay under the 1983 orders, his pay has to be fixed at the minimum of the scale. The question of granting him advance increments will arise only if there is any hardship. Hardship is seen from the point whether minimum pay of re-employed post plus full pension plus pension equivalent of gratuity (whether ignorable or not) is less than the last pay drawn at the time of retirement. If there is no hardship no advance increments can be granted.
3. In the light of the above decision it has been decided in consultation with Department of Personnel and Training that the Heads of Circles may be requested to review all such previous cases where the pay of re- employed pensioner has been otherwise fixed under theO.M.No.2(1)/ 83/D(Civ. I), dated 8-2-1983. This review should cover all cases where the Ex-Servicemen were reemployed before 1-7-1986. The sanctions issued by the Directorate in respect of individual cases referred to above may by treated as cancelled. A report on the action taken may be sent to Directorate within 3 months.
4. For fixation of pay at the minimum and less than the minimum in the case of the re-employed pensioners powers have already been delegated to all Heads of Circles and other Administrative Officers and all other subordinate appointing authorities of Gazetted rank in respect of which they are appointing authorities under this Directorate Letter No. 2-60/60-P&A, dated 24-11-1960. after fixation/re-fixation of pay the overpayment of any, may please be recovered in all cases.
5. This issues with the concurrence of the Telecom. Finance Vide their U.O. No. 2431 /87-FA.I., dated 14-7-87."
D.O.NO.O-11011/23/88-TRG.DATED21-10-1988 ADDRESSED BYR.K. SINGH. DIRECTOR (TRAINING). MINISTRY OF AGRICULTURE, DEPARTMENT OF RURAL DEVELOPMENT. TO FINANCIAL ADVISER. NIRD.
"Please refer to your letter No. 4353/85 Admn.A/18954dated 8th August, 1988 regarding fixation of pay of the Ex-servicemenre-employed in NIRD.
We had referred the case of Department of Personnel and Training for clarifications. The clarifications given by Department of Personnel and Training are reproduced below:
"We may inform that Department that in respect of all re-employed pensioners re-employed between25-l-1983 and 30-6-1986 and entitled to full ignorance of pension, pay on re-employment has to be fixed at the minimum i.e. without any advance increments unless minimum of pay scale plus Gross pension and pension equivalent of gratuity falls short of last pay drawn. Dual benefit of full ignorance of pension plus full weightage of past service in the form of advance increments cannot be allowed".
This clarification covers the fixation done in respect of Ex-Combatant Clerks, whose pay was initially fixed under O.M. dated 11-4-1963 and refixed under O.M. dated 8-2-83 but by allowing advance increments."
The first Office Memorandum which is relevant is O.M.No.8(34)F.III/57 dated 25-11-1958. In second para of clause (b) it stated that if the fixation of initial pay at the minimum prescribed pay scale causes undue hardship, pay may be fixed at a higher stage by allowing one increment for each year of service which the officer has rendered before retirement in a post not lower than in which he is re- employed . Under clause (c), it is stated that the Government Servant is entitled to draw separately any pension and any other form of retirement benefit like Government's contribution to a Contributory Provident Fund, gratuity, commuted value of pension, etc., provided the total amount of initial pay fixed under clause (b) and the gross amount of pension or pensionery benefit does not exceed the last pay drawn or Rs. 3,000/- whichever is less. As per Office Memorandum No. 2(7)/78/6664/D(Civ-I) dated 30-8-1978 as modified by OM.No.2(1)/83D/(Civ-I) dated 8-2-1983, in the case of fixing pay on reemployment of personnel below the rank of Commissioned Officers, the entire pension has to be ignored if they had retired before attaining the age of 55 years. The contention of Sri S.L. Chennakesava Rao, learned counsel for the petitioner, is that pay must be first fixed as per clause (b) and after so fixing, if the amount together with pension exceeds last drawn pay in the post where he is retired, then it must be limited to the last drawn pay. Since as per Office -Memorandum No. 2(7)/78/6664/D(Civ-I) as amended on 8-2-1983, the petitioner's pension has to be ignored while fixing the pay, question of applying clause (c) does not arise and thus what all has to be seen is whether the pay was fixed correctly under clause (b). He further contended that if the petitioner's pay is fixed at Rs. 330/- as against Rs. 575/- which he was drawing at the time of retirement, it causes undue hardship and accordingly as per the second para of clause (b), the pay has to be fixed by allowing one increment for each year of service which the petitioner has rendered before retirement i.e., 17 years and if so computed, the petitioner will be entitled to get basic pay of Rs. 560/- (revised scale Rs. 1200-2040). On the other hand, Sri V.V.S. Rao, learned counsel appearing the NIRD contends that while considering whether there is under hardship, pension cannot be ignored and that the petitioner cannot get the dual benefit of pension being ignored and full weightage of past service in the form of advance increments and for this he relies on letter No. 45-29/86-PAT dated 10-8-1987 issued by Department of Telecom, Ministry of Communications, Government of India and D.O.No.O-11011/23/88-Trg. dated 21-10-1988 addressed by the Ministry of Agriculture, Department of Rural Development, to NIRD.
4. While issuing Office Order No. 264 dated 29-9-1986, the NIRD has fixed the petitioner's pay at Rs. 530/- with effect from 25-6-1984 in the scale of Rs. 330-10- 380-EB-12-500-E-15-560 in accordance with Government of India rules applicable to Military pensioners on reemployment in Civil Services, which evidently refer to O.M.No.8(34)F-III/57 dated 25-11-1958 issued by the Ministry of Finance. It is also stated therein that above fixation is provisional, subject to confirmation on receipt of required information from Pay and Accounts Office, Ministry of Defence. In the counter, there is no averment that the NIRD has referred the matter after 29-9-1986 to the Pay and Accounts Office, Ministry of Defence and whether any required information is received from Pay and Accounts Office. I have perused the records produced by the learned counsel for the NIRD and I found no such communication. On the other hand, NIRD has refixed the pay at Rs. 330/- based on the letter issued by the Department of Telecom and Ministry of Agriculture. It is not dear as to whom the letter of Department of Telecom was addressed. It is also surprising that either in the show-cause notice issued or in the final orders passed, no reason is given by NIRD as to why the fixation of pay done 29-9-1986 was not correct. it is only in the appellate order that these letters are referred to. Apart from this, these letters issued by the Ministry of Communications and Ministry of Agriculture do not appear to have been issued either in concurrence or at least with consultation of Ministry of Defence or Ministry of Finance. So, at the most they can be taken only as the opinion and interpretation of the concerned Ministries regarding the two office memoranda issued by the Ministries of Finance and Defence. This certainly cannot be binding on the petitioners. Though the appellate order runs to 11 pages, it does not deal with the main point as to how the fixation of pay done on 29-9-1986 is contrary to the rules. At para 9 of the Office Order No. 353 dated 28-8-1992 passed by the Registrar of NIRD it is stated as follows:
"After hearing the submissions of Shri Harischandra Reddy, Registrar made it clear that the pay which was provisionally fixed in his case has been reviewed as per the Rules governing pay fixation of re-employed ex- servicemen. Secondly, it was also made clear in the offer of appointment issued to Shri Harischandra Reddy that his pay will be fixed and according to the Government of India rules as applicable to military pensioners on re-employment as in force from time to time, i.e., his final pay on re- employment would be fixed on the minimum of the scale of pay and in addition, he will be permitted to draw separately the pension sanctioned to him and to retain any other retirement benefits for which he was eligible. In these circumstances, the pay fixation provisionally made incorrectly otherwise than in accordance with the above provisions has to necessarily be revised as per rules."
This is thoroughly an unsatisfactory way of deciding the matter.
5. Sri V.V.S. Rao, learned counsel for the respondents, sought to support the impugned order on the ground that while considering hardship, the receipt of pension also has to be considered though it may be ignored for the purpose of computing maximum. I do not agree. The Circular O.M.No.8(34) issued by Ministry of Finance does not admit of any such interpretation. As per this circular, the pay has to be first fixed under clause (b) taking into account the undue hardship if any. After so fixing, clause (c) has to be considered for the purpose of fixing the maximum. While computing the maximum, pension has to be ignored in the case of non-commissioned Officers who retire before attaining the age of 55 years. The reason for giving the advance increments in case of undue hardship is quite obvious because an official who stagnated in a particular scale of pay for number of years and retires, will be put to hardship if he has to draw the minimum basic pay in the equivalent new post. The contention of Sri V.V.S. Rao that since the petitioner is entitled to draw Rs. 330+414 (pension) i.e. Rs. 744/-asagainstRs. 575/- which was the last drawn pay, there cannot be said to be arty hardship, proceeds on the assumption that pension also has to be considered in considering hardship. There are no such words in the circular. Even otherwise, benefit of any ambiguity must be given to the petitioners since the respondent is seeking to disturb the order already passed in favour of petitioners and burden is on the respondents to show how the order passed earlier is wrong. "
6. The position is, however, different in the case of persons reemployed after 1-7-86. As per Office Memorandum No. 2/1/86 Estt. (P.II) dated 31-7-1986, the initial fixation of pay and other benefits of ex-servicemen pensioners and civilian pensioners reemployed after 1-7-1986 will be governed by the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders 1986. Rule 4 of the Order reads as follows:
"4. Fixation of pay of re-employed pensioners.
(a) Reemployed pensioners shall be allowed to draw pay in the prescribed scales of pay for the posts in which they are reemployed. No protection of the scales of pay of the posts held by them prior to retirement shall be given.
(b) (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 case where the entire pension and pensionary, benefits are not ignored for pay fixation, the initial pay on reemployment 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 pay of the reemployed post. Similarly, if the minimum of the scale of 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 of the scale of pay of the reemployed post. However, in all these cases, in non-ignorable part of the pension and equivalent of retirement benefits shall be reduced from the pay so fixed.
(c) 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 to 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 service officers belong 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."
Thus, as per this rule, persons similar to petitioners but employed after 1-7-1986 will not be entitled to advance increments. But these rules, as per Office Memorandum dated 31-7-1986 issued by the Ministry of Personnel, applies only to appointments made on or after 1-7-1986. As the petitioners were reemployed before 1-7-1986, this Office Memorandum does not apply to them.
7. The claim of the other four petitioners is similar to that of petitioner in W.P.No.17408 of 1992. In the result, all the five writ petitions are allowed and the impugned orders as confirmed by the appellate authority are quashed and it is declared that petitioners in W.P.Nos.17408,17409,17410,17411 of 1992 and W.P.No. 323 of 1993 are all entitled to pay of Rs. 530/-, 308/-, 358/-, 400/- and 400/- respectively (pre-revised) from the date of their appointments and corresponding new scales as per the revised pay scales from 1-1-1986, and with all consequential benefits. The respondents are directed to pay the arrears of pay, within a month from today. No costs.