Central Administrative Tribunal - Hyderabad
M Shiva Raju vs M/O Defence on 10 January, 2024
OA No.20/1273/2015 & Batch
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA No.20/1273/2015, 1269/2015, 1270/2015, 1271/2015, 1275/2015,
1488/2015, 1489/2015, 1274/2015, 1276/2015, 1470/2015, 1481/2015,
1490/2015, 1644/2015, 374/2016, 565/2016, 869/2016 & 1054/2016
Reserved on: 09.11.2023
Pronounced on: 10.01.2024
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
Hon'ble Ms. Shalini Misra, Administrative Member
OA No. 1273/2015
J. Rama Rao, S/o. J.V.Subba Rao,
Aged about 37 years, Occ: Office Assistant,
O/o. Superintendent of Post Offices,
Machilipatnam Division, Krishna District. APPLICANT
(By Advocate: Dr. A. Raghu Kumar)
AND
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01.
3. The Director of Postal Services,
O/o. Postmaster General, Vijayawada Region,
Vijayawada, Krishna District.
4. The Superintendent of Post Offices,
Machilipatnam Division, Machilipatnam-1.
5. The Postmaster HSG -I,
Avanigadda HO, Machilipatnam Division
Machilipatnam. RESPONDENTS
(By Advocate: Mrs. B. Gayatri Varma, Sr. CGSC )
OA No. 1269/2015
CH Venkat Reddy, S/o. Late Ch.Rama Krishna Reddy,
Aged about 42 years, Occ : Sub Post Master,
Parasatyallur SO, Narasaraopet Division,
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OA No.20/1273/2015 & Batch
Guntur District, Andhra Pradesh.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01,
3. The Director of Postal Services,
O/o Postmaster General, Visakhapatnam Region,
Visakhapatnam - 530017.
4. The Superintendent of Post Offices,
Narasarao pet Division, Guntur District
5. The Postmaster HSG -I,
Sattenpalle, Narasarao pet Sub Division
Guntur District
... Respondents
(By Advocate: Mr. A. Radhakrishna, Sr. PC for CG)
OA 1270/2015
E. Anki Reddy, S/o. Late E. Hanimi Reddy,
Aged about 48 years, Occ : Sub Post Master,
Brahmanapalle SO, Narasaraopet Division,
Guntur District, Andhra Pradesh.
... Applicants
(By Advocate : Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01
3. The Director of Postal Services,
O/o Postmaster General, Visakhapatnam Region,
Visakhapatnam-530017.
4. The Superintendent of Post Offices,
Narasaraopet Division, Guntur District
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OA No.20/1273/2015 & Batch
5. The Postmaster HSG -I,
Sattenapalle, Narasaraopet Sub Division, Guntur District
... Respondents.
(By Advocate: Mr. Paravastu Krishna, Sr. PC for CG)
OA 1271/2015
J.S.N. Malleshwar Rao, S/o. Venkateswarlu,
Aged about 45 years, Occ : Sub Post Master,
Mupalla (VKD) SO, Narasaraopet Division,
Guntur District, Andhra Pradesh.
... Applicant
(By Advocate : Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01,
3. The Director of Postal Services,
O/o Postmaster General, Visakhapatnam Region,
Visakhapatnam- 530017.
4. The Superintendent of Post Offices,
Narasaraopet Division, Guntur District
5. The Postmaster HSG -I,
Narsaraopet HO, Narasaraopet Sub Division
Guntur District.
... Respondents
(By Advocate: Mr. P. Krishna, Sr. PC for CG)
OA 1275/2015
M.S.H.Krishna, S/o. Late M.Narasimha Murthy,
Aged about 43 years, Occ: Postal Assistant,
Gopalapuram SO, West Godavari District, A.P.
... Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
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OA No.20/1273/2015 & Batch
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01,
Now at Krishna Lanka, Vijayawada-520013.
3. The Director of Postal Services,
O/o Postmaster General, Vijayawada Region,
Vijayawada - 520003.
4. The Superintendent of Post Offices,
Tadepalligudem Division, Vijayawada.
5. The Postmaster,
Kovvur HO, Tadepalligudem Division,
Vijayawada, Krishna District.
... Respondents.
(By Advocate: Mr. A. Vijaya Bhaskar Babu, Addl. CGSC)
OA 1488/2015
1. K. Sambasiva Rao, S/o. Late K. Sitaramaiah,
Aged about 49 years, Occ: Postal Assistant,
Tiruvuru Sub Post Office, Vijayawada Division.
2. Ch. S.B.R.Sastry, S/o. Dyvagna Charyulu,
Aged about 51 years, Occ: Postal Assistant,
Guntupalli Sub Post Office, Vijayawada Division.
... Applicants
(By Advocate : Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01,
Now at Krishna Lanka, Vijayawada-520013.
3. The Director of Postal Services,
O/o Postmaster General, Vijayawada Region,
Vijayawada - 520003.
4. The Senior Superintendent of Post Offices,
Vijayawada Division, Vijayawada-520001.
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OA No.20/1273/2015 & Batch
5. The Director of Accounts (Postal),
Andhra Pradesh Circle, Hyderabad-500001.
... Respondents.
(By Advocate: Mr. A. Radha Krishna, Sr. PC for CG)
OA 1489/2015
1. P. Sankaraiah, S/o. P. Lakshmaiah,
Aged about 49 years, Occ: Sorting Assistant,
RMS Y Division, Vijayawada-520001.
2. G. Nagabhushanam, S/o. Late G.Sambasivarao,
Aged about 48 years, Occ: Sorting Assistant,
RMS Y Division, Vijayawada-520001.
3. L. Balaji Rao, S/o. Late L. Venkaiah,
Aged about 45 years, Occ: Sorting Assistant,
Head Record Office, RMS Y Division, Vijayawada-520001.
4. A. Sitaramanjaneyulu, S/o. Mahankali Sastry,
Aged about 43 years, Occ: Sorting Assistant,
RMS Y Division, Vijayawada-520001.
5. G. Srinivasa Rao, S/o. Venkateswar Rao,
Aged about 43 years, Occ: Sorting Assistant,
Head Record Office, RMS Y Division, Vijayawada-520001.
... Applicants
(By Advocate : Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01,
Now at Krishna Lanka, Vijayawada-520013.
3. The Postmaster General,
Vijayawada Region, Vijayawada.
4. The Superintendent of Post Offices,
RMS Y Division, Vijayawada-520001.
5. The Director of Accounts (Postal),
Andhra Pradesh Circle, Hyderabad-500001.
... Respondents.
(By Advocate: Mr. P. Krishna, Sr. PC for CG)
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OA No.20/1273/2015 & Batch
OA 1274/2015
G. Subramanyam, S/o. G. Ganesh,
Aged about 46 years, Occ: Office Assistant,
Divisional Office, Tirupathi,
Tirupathi Division, Chittoor District.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01.
3. The Director of Postal Services,
O/o Postmaster General, Kurnool Region,
Kurnool.
4. The Superintendent of Post Offices,
Tirupathi Division, Tirupathi.
5. The Postmaster,
Tirupathi HO, Tirupathi, Chittoor District.
... Respondents
(By Advocate: Mr. M. Venkata Swamy, Sr. PC for CG)
OA 1276/2015
P. Venakatramaiah, S/o. P. Sivaiah,
Aged about 39 years, Occ: Postal Assistant,
Tirumala SO, Under deputation as Officiating SPM,
Korlagunta SO, Tirupathi Division, Tirupathi.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01,
Now at Krishna Lanka, Vijayawada-520013.
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OA No.20/1273/2015 & Batch
3. The Director of Postal Services,
O/o. Postmaster General, Kurnool Region, Kurnool
4. The Superintendent of Post Offices,
Tirupathi Division, Tirupathi.
5. The Postmaster, Tirupathi HO,
Tirupathi, Chittoor District.
... Respondents
(By Advocate: Mr. T. Hanumantha Reddy, Sr. PC for CG)
OA 21/1470/2015
Donavalli Ramesh, S/o. D. Rama Rao,
Aged about 56 years, Occ: Junior Engineer (Civil),
O/o. Garrison Engineer (Air Force Academy),
Dundigal, Hyderabad - 43.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by the Chief Enginer,
Military Engineering Services, Southern Command, Pune.
2. The Chief Engineer (Air Force),
Jalahalli Camp Cross, Off MES Road,
Yesvanthpur, Bangalore.
3. The Commander Works Engineer,
Air Force, Bowenpllay, Secunderabad.
4. The Garrison Engineer,
Air Force Academy, Dundigal, Hyderabad.
5. The Principal Controller of Defence Accounts (Pensions),
Draupadi Ghat, Allahabad - 211014.
6. The Principal Controller of Defence Accounts (Pensions),
Hyderabad.
7. Union of India, Rep. by Ministry of Defence,
South Block, New Delhi.
... Respondents
(By Advocate: Mr. M. Venkataswamy, Sr. PC for CG)
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OA No.20/1273/2015 & Batch
OA 1481/2015
1. R. Lakshmi Narayana, S/o. Late R. Kama Raju,
Aged about 49 years, Occ: Mate (SSK),
Military Engineering Services,
Air Force Academy, Dundigal, Hyderabad-43.
2. S. Radha Krishna, S/o. S. Nemilaiah,
Aged about 38 years, Occ: Mate FGM,
Military Engineering Services,
Air Force Academy, Dundigal, Hyderabad-43.
3. K. Rama Subba Reddy, S/o. Late K.Narayana Reddy,
Aged about 47 years, Occ: Mate SSK,
Military Engineering Services,
Assistant Garrison Engineer (E&M),
Dundigal, Hyderabad-43.
4. Pothula Venkateswara Rao, S/o. P. Chitti Babu,
Aged about 48 years, Occ: Mate SSK,
Military Engineering Services, Air Force Academy,
Dundigal, Hyderabad-43.
(By Advocate: Dr. A. Raghu Kumar)
...Applicants
Vs.
1. Union of India rep by the Chief Engineer,
Military Engineering Services,
Southern Command, Pune.
2. The Chief Engineer (Air Force),
Jalahalli Camp Cross, Off MES Road,
Yesvanthpur, Bangalore.
3. The Commander Works Engineer,
Air Force, Bowenpally, Secunderabad.
4. The Garrison Engineer,
Air Force Academy, Dundigal, Hyderabad.
5. The Principal Controller of Defence Accounts (Pensions),
Draupadi Ghat, Allahabad-211014.
6. The Principal Controller of Defence Accounts (Pensions),
Hyderabad.
... Respondents
(By Advocate: Mr. T. Hanumantha Reddy, Sr. PC for CG)
Page 8 of 26
OA No.20/1273/2015 & Batch
OA 1490/2015
1. K. Kondala Rao, S/o. Nooka Raju,
Aged about 48 years, Occ: Sub Postmaster,
NTPC Sub Post Office, Anakapalli Division,
Visakhapatnam Region, Visakhapatnam District.
2. P. Rama Krishna, S/o. Late P.Parasuramayya,
Aged about 42 years, Occ: Sub Postmaster,
Chodavaram Sub Post Office, Anakapalli Division,
Visakhapatnam Region, Visakhapatnam District.
3. C. Sanakara Rao, S/o. Thatharao,
Aged about 42 years, Occ: Postal Assistant,
Anakapalli Head Post Office, Anakapalli Division,
Visakhapatnam Region, Visakhapatnam District.
4. Rangala Krishna, S/o. R. Paidaiah,
Aged about 49 years, Occ: Postal Assistant,
Chodavaram MDG, Anakapalli Division,
Visakhapatnam Region, Visakhapatnam District.
5. S.A.V.Jagannadha Rao, S/o. Late Suryanarayana,
Aged about45 years, Occ: Sub Postmaster,
Paravada Sub Post Office, Anakapalli Division,
Visakhapatnam Region, Visakhapatnam District.
6. Ravi Setti, S/o. Purushottam Setti,
Aged about 41 years, Occ: Postal Assistant,
Subbavaram, on deputation at RPLI Section,
Regional Office, Visakhapatnam-17,
Anakapalli Division, Visakhapatnam Region,
Visakhapatnam District.
....Applicants
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01,
3. The Postmaster General,
Visakhapatnam Region, Visakhapatam.
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OA No.20/1273/2015 & Batch
4. The Superintendent of Post Offices,
Anakapalli Division, Anakapalle-531001.
5. The Head Postmaster,
Head Post Office, Anakapalle-531001.
6. The Director of Accounts (Postal),
Andhra Pradesh Circle, Hyderabad-500001.
... Respondents
(By Advocate: Mrs. B. Gayatri Varma, Sr. PC for CG)
OA 1644/2015
K. Manikya Rao, S/o. Late K.V. Rajeswara Rao,
Aged about 38 years,
Occ: Postal Assistant, Nizamabad,
Nizamabad Division, Nizamabad District.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids Hyderabad -01,
3. The Postmaster General,
Hyderabad Region, Hyderabad.
4. The Superintendent of Post Offices,
Nizamabad Division, Nizamabad.
5. The Director of Accounts (Postal),
Andhra Pradesh Circle, Hyderabad-500001.
... Respondents
(By Advocate: Mrs. Megha Rani Agarwal, Sr. PC for CG)
OA 374/2016
M. Shiva Raju, S/o. Late M. Rajeshwar,
Aged about 54 years, Occ: Lower Division Clerk,
Military College of EME,
Trimulgherry Post, Secunderabad - 10.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
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OA No.20/1273/2015 & Batch
1. The Union of India, rep by the Director General,
Electronics and Mechanical Engineer,
MGO Branch, Integrated Head Quarters,
Ministry of Defence (Army), Head Quarters,
DHQ Post, New New Delhi-110 011.
2. The Commandant,
Military College of EME,
Trimulgherry, Secunderabad - 15.
3. The Controller of Defence Accounts,
No.1 Staff Road, Mudfort, Secunderabad.
4. The Chief Record Officer,
EME Records, Trimulgherry, Secunderabad.
... Respondents
(By Advocate: Mr. M. Venkata Swamy, Sr. PC for CG)
OA 565/2016
L. Sanyasi Rao, S/o. Appa Rao,
Aged about 50 years, Occ: High Skilled,
O/o. Naval Dockyard, Visakhapatnam,
R/o. D. No. 13-10-3, BC Road,
New Gajuwaka, Visakhapatnam - 530 026.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. Union of India rep by its Secretary,
Ministry of Defence, South Block, New Delhi.
2. The Chief of the Naval Staff,
Integrated Head Quarters,
Ministry of Defence (Navy) (DCP),
D-II Wing, Sena Bhavan, New Delhi - 110011.
3. The Commanding in Chief,
Eastern Naval Command, Naval Base,
Visakhapatnam - 530014.
4. The Admiral Superintendent,
Naval Dockyard, Visakhapatnam - 530014.
5. The Principal Controller of Defence Accounts (Navy),
Cooperage Road, Mumbai - 400 001.
... Respondents
(By Advocate: Mr. V. Venu Madhava Swamy, Sr. PC for CG)
Page 11 of 26
OA No.20/1273/2015 & Batch
OA 869/2016
K. Ravi Shankar, S/o. late K. Ramachandraiah,
Aged about 45 years, Occ: Postal Assistant,
Hindupur Head Post Office,
Anantapur District.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi 1.
2. The Chief Postmaster General
AP Circle, Abids,
Hyderabad -01.
3. The Postmaster General,
Kurnool Region, Kurnool - 02.
4. The Superintendent of Post Offices,
Hindur Division, Hindupur - 515201.
5. The Director of Accounts (Postal),
Andhra Pradesh Circle,
Hyderabad - 500 001.
... Respondents
(By Advocate: Mr. D. Laxmi Narayana Rao, Sr. PC for CG)
OA 1054/2016
Domakonda Sudhakar, S/o. Domakonda Lingaiah,
Aged about 47 years, Occ: Sub Postmaster,
Madgulapally Sub Post Office,
Suryapet Division, Nalgonda District.
....Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. The Union of India, rep by its Secretary,
Department of Posts, Dak Bhavan
Ministry of Communications and Information Technology
Parliament Street, New Delhi -1.
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OA No.20/1273/2015 & Batch
2. The Chief Postmaster General
AP Circle, Abids,
Hyderabad -01,
3. The Postmaster General,
Hyderabad Region,
Hyderabad-01.
4. The Superintendent of Post Offices,
Suryapet Division,
Suryapet - 508213.
5. The Director of Accounts (Postal),
Andhra Pradesh Circle,
Hyderabad-500001.
... Respondents
(By Advocate: Mrs. G. Gayatri Varma, Sr. PC for CG)
Page 13 of 26
OA No.20/1273/2015 & Batch
COMMON ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) Since the cause of action and the relief sought is similar, all the OAs were taken up together for hearing and a common order is being passed.
2. The OAs are filed seeking for a direction that the applicants are entitled for pay fixation protecting their last pay drawn in the Armed Forces in terms of the DOPT OM dt. 05.04.2010 and consequent benefit of higher pay on their re-employment in the Respondents' organisations.
3. Upon notices being issued, the respondents filed similar reply statements in all the OAs.
4. Heard learned counsel for respective parties in all the mattes at length and carefully perused the pleadings and material including the judgments by the parties.
5. For the purpose of convenience, the pleadings made in the OA No. 1273 of 2015 are being referred to.
6. The applicants joined Defence Forces in different posts and they were discharged from service. The applicants were selected and appointed as Postal Assistant under direct recruitment quota vide Dept of Posts Memo dt. 03.06.2011 under Ex-servicemen quota.
7. It is the case of the applicants that the DOPT issued OM dt. 31.07.1986 relating to fixation of pay for re-employed pensioners and that initial fixation of pay and other benefits on re-employment of ex- servicemen pensioners would be governed by the CCS (Fixation of Pay of Page 14 of 26 OA No.20/1273/2015 & Batch Re-employed Pensioners) Orders, 1986 as per Rule 4 & 5 of the said orders. Subsequently, Dept of Expenditure issued Notification GSR 622(E) dated 29.08.2008 for fixation of the revised pay in terms of the VI CPC, however, ignored the applicability of CCS (RP) Rules, 2008 to persons re-employed in Government service after retirement. Subsequently, DOPT issued OM dt. 11.11.2008 extending the benefit of the revised pay rules to the persons re-employed in Govt. service. Thereafter, the DOPT vide OM dt. 05.04.2010 issued certain clarifications and vide para 4(b) (ii) thereof, it is clarified that 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. Therefore, the applicants submitted representations and the 2nd respondent took up the matter for pay fixation of re-employed pensioners with the 3rd respondent. It appears that the 4th respondent has taken a stand that re- employed pensioners are not entitled to pay protection in terms of Para 4(a) of OM dt. 05.04.2010 and 4(d)(i) read with para 4(b)(i) of the said OM. On that basis, the respondents issued the impugned order directing the applicant(s) to credit the arrears drawn. The cause of the applicants was taken up by the Service Unions/ Associations and held discussions with the 2nd respondent and consequently, the 2nd respondent issued orders dt. 17.04.2015 to all units not to recover the pay and allowances from re- employed pensioners as a committee has to look into the matter. It is further stated by the applicants that, information furnished to similarly situated persons under RTI Act revealed that a committee was formed on 27.05.2015 and as per the committee report, the issue was taken up with 1 st Page 15 of 26 OA No.20/1273/2015 & Batch respondent by the 4th respondent and the result is awaited. In the meanwhile, the 5th respondent ignoring the above developments, proposed to recover the amount of arrears.
8. The respondents filed reply statement stating that the applicants were appointed as Postal Assistant as Direct Recruit under Ex-Servicemen Category and the pay of the applicants was fixed at the entry pay for Postal Assistant cadre in the Department. Later on, on the representation of the applicants requesting for re-fixation of pay on the basis of the DOPT OM dt. 11.11.2008 and 05.04.2010, the pay of the applicants was revised taking into account their last pay drawn while in Military service, duly taking necessary unconditional undertaking dt.25.09.2014 and accordingly, arrears of pay and allowances were paid to the applicants for the period from 23.05.2011 to 31.08.2014. The said pay fixation was objected by the Director of Accounts (Postal), Hyderabad vide letter dt. 17.11.2014 and ordered for crediting the entire amount paid and regulate the pay and allowances. Based on that, a notice, which is impugned in the OAs, was served on the applicants to credit the arrears amount paid.
9. It is the case of the respondents that the applicants were discharged from the Defence forces in the post below the Commissioned Officer Rank/ Group 'A' post and therefore, the para 4(d)(ii) of CCS (Fixation of Pay of Re-employed Pensioners) Orders, 1986 as amended vide DOPT OM dt. 05.04.2010 are not applicable to the applicants. Therefore, the revision of their pay done taking into account the last pay drawn by them in the Defence Forces is incorrect and the same was objected by the internal audit. It is further contended that as para 4(b)(i) read with para 4(d)(i) of OM dt. Page 16 of 26
OA No.20/1273/2015 & Batch 05.04.2010, the re-employed Ex-Servicemen are entitled for entry pay in the Revised Pay Structure of the re-employed post 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 and they are not entitled for pay protection. On reference by the Dept of Posts, the DOPT also clarified vide ID Note dt.28.08.2015, communicated through DG (Posts) letter dt. 15.09.2015, to the effect that the ex-servicemen who held the post below Commissioned Officer rank in the defence forces, the entire pension and the retirement benefits ignored; No deduction on this count is to be made from the initial pay fixed on re-employment; the initial pay on re- employment shall be fixed as per the entry pay in the revised pay structure of the post and there is no protection of last pay dawn before retirement. Based on the DOPT/Postal Directorate clarification, the Director of Accounts (Postal), AP Circle issued directions that the entire pension and retirement benefits shall be ignored, the initial pay on re-employment shall be fixed at entry pay of the post. Pursuant thereto, the impugned notices were issued for crediting the arrears amount paid erroneously to the applicants.
10. The respondents relied upon the judgment of the Hon'ble Apex Court dt. 02.11.2013 in Civil Appeal No. 9873 of 2013 (Arising out of SLP (C) No. 17881 of 2008 between Union Territory of Chandigarh & ors v. Gurucharan Singh & Anr and submitted that, in similar circumstances, the Hon'ble Apex Court held that pay protection cannot be given to the re- employed pensioners who held below the rank of Commissioned Officers posts in the Military Service and in so far as the recovery of excess paid pay Page 17 of 26 OA No.20/1273/2015 & Batch and allowances, the Apex Court held that if any amount has been paid due to mistake, the mistake must be rectified and the amount so paid can be recovered. Thus, the respondents prayed for vacating the interim order and for dismissal of the OA.
11. The applicants filed rejoinder reiternating their contentions made in the OA. The respondents filed additional reply statement wherein they have submitted that Full Bench of the Hon'ble CAT, Ernakulam Bench adjudicated batch of cases filed by the Non-Commissioned Officers of the defence forces, who were re-employed in Civil services in various departments/ organizations in the Central Government and dismissed the batch of cases i.e. OA Nos. 180/00192/2015 & batch vide Order dt. 27.03.2019. Following the said order of the Ernakulam Bench, CAT as well as the judgment of the Hon'ble Apex Court in UT of Chandigrah & ors v. Gurucharan Singh & Anr (supra), Cuttack Bench also dismissed similar case vide OA No. 796/2015 vide order dt. 14.05.2019. Further, Bangalore Bench of this Tribunal also dismissed OA No. 14/2018 on 08.08.2019 and OA No. 1531/2018 on 11.10.2019. The respondents also filed the judgment of the Jodhpur Bench of this Tribunal in OA No. 279/2017 & batch, dt., 14.01.2020, wherein similar claim was dismissed. The respondents also filed vacate stay petition, wherein they referred to the orders in OA No. 1337/2015 dt.28.07.2016; OA No. 414/2016 dt. 03.02.2017; and OA No. 27/2017 dt. 29.08.2017, which were dismissed by the Bangalore Bench of this Tribunal in similar circumstances. The respondents, thus, submitted that the above judgments are squarely applicable to the instant cases and the same are liable to be dismissed.
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12. The respondents also filed written arguments, in response to the arguments of the learned counsel for the applicants that the impugned action is premature as it was done without consultation with the DOPT. In the written arguments, the respondents stated that the matter was taken up by the Department with the Nodal Ministry i.e. DOPT in similar cases and the DOPT vide ID Note dt. 24.06.2019 reiterated the rule position for pay fixation of re-employed ex-servicemen at the entry pay in the revised pay structure of the re-employed post in the case of direct recruits, appointed on or after 01.01.2006. As the applicants held the post below the Commissioned Officer in the Defence forces at the time of their retirement, they are not entitled for any protection of last pay drawn by them in the armed forces. It is further submitted, that in view of the several orders of the Coordinate Benches of this Tribunal and the Hon'ble Supreme Court, the subject matter of the case is no more res integra.
13. Having heard both sides and perused the pleadings on record, the issue that arises for consideration is whether the applicants are entitled for the relief sought.
14. As seen from the above, Hon'ble Apex Court and various Coordinate Benches of this Tribunal have already considered the issue involved in these OAs and therefore, the subject matter of these cases is no more res integra.
15. We have carefully gone through the judgment of the Hon'ble Supreme Court in Civil Appeal No. 9873 of 2013, dt. 01.11.2013, cited by the respondents and the relevant observations of the Hon'ble Apex Court are as under:
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OA No.20/1273/2015 & Batch "7. As the respondent had been given appointment on 15th April, 1990 as a Clerk on a post reserved for the ex-servicemen, the provisions of the Orders were to be looked into for the purpose off pay fixation of the respondent. The learned counsel had further submitted that while fixing the pay on 2nd September, 1992, the appellant did not look into the certain provisions of the Orders and an option exercised by the respondent in relation to his pay fixation and therefore, incorrect pay had been fixed under the order dated 2nd September, 1992. By virtue of the said pay fixation, the respondent was given benefit of his past services rendered to the Indian Army and accordingly, he was also given increments which he would have got in the Indian Army. As a result thereof, the respondent‟s pay was fixed in a higher scale then what he ought to have been allowed. As a matter of fact, as per the provisions of Order 4 of the Orders, the respondent could not have been given benefit of his earlier services in the process of fixing his pay. Order 4 of the Orders, being relevant for the purpose, has been reproduced herein-below:
"4. Fixation of pay of re-employed pensions.
a) Re-employed pensioners shall be allowed to draw pay only in prescribed scales of pay for the posts in which they are re- employed. No protection of the scales of pay of the post held by them prior to retirement shall be given.
b) i) In all cases where the pension is fully ignored, the initial pay on re-
employment shall be fixed at the minimum of the scales of pay of the re- employed 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 re- employed post, the pay shall be fixed at the stage below that pay. If the maximum of the pay scales in which a pensioner is re-employed is less than the last pay drawn by him before retirement, his initial pay shall be fixed at the maximum of the scales of the re-employed post. Similarly, if the minimum of the scales of the pay in which a pensioner is re-employed is more than the last pay drawn by him before retirement his initial pay shall be fixed at the minimum of the scales of pay of the re-employed post. However, in all these cases, non ignorable past of the pension and pension equivalent of retirement benefits shall be reduced from the pay so fixed.
c) The re-employed pensioner will be in addition to pay as fixed under para
(b) above shall be permitted to drawn separately and 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 benefits shall be ignored.
(ii) In the case of service officers belonging to the Defence Forces and Civilian Pensioners who hold 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."
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8. The respondent had been given an option whereby he had opted for the minimum scale of pay, which was paid to the Clerk and therefore, his pay had been rightly fixed as per the option read with Order 4(a) of the Rules. The learned counsel had further submitted that while allowing the writ petition, the High Court had not considered the aforestated facts at all. The High Court did not look into the fact that an option had been given to the respondent-employee and his pay had been fixed only as per the option exercised by him and as per the provisions of Order 4 of the Orders. It had, therefore, been submitted that the view taken by the Tribunal, confirming re-fixation of pay was correct and the High Court ought not to have disturbed the same by allowing the writ petition. It was, therefore, submitted that the order dated 20th March, 2009 of the High Court should be quashed by allowing the appeal.
9. On the other hand, the learned counsel appearing for the respondent- employee had at the first instance submitted that the respondent was not having a copy of the option and he was not aware about the option so exercised. He had submitted that the pay had rightly been fixed by the order dated 2nd September, 1992 and it ought not to have been re-fixed to the prejudice of the employee after six years. He had, therefore, submitted that the view taken by the High Court was correct. He had further submitted that perhaps the respondent might have to make some payment to the appellant-employer as according to the employer, the respondent had been paid more salary on account of incorrect pay fixation. He had also submitted that recovering the salary so paid would be unjust and therefore, in any case, nothing should be recovered from the respondent- employee.
10. Upon hearing the learned counsel and upon perusal of the option form dated 18-7-1990, in our opinion, the High Court was in error while allowing the petition because it is clearly revealed from the option form that the respondent had agreed to get his pay fixed as per the minimum of pay in the pay-scale of the Clerk, the post to which he had been re-employed. It is pertinent to note that the respondent has been getting regular pension from the Indian Army for his past services rendered to the Indian Army. As per the provisions of the Orders and as per the option exercised by the respondent, service rendered by the respondent to the Indian Army cannot be taken into account for the purposes of his pay fixation as the respondent would be getting his pension and there would not be any deduction from his pension or his salary on account of the pension received by him from the Indian Army. If nothing has been deducted from the pension of the respondent upon being re-employed and as the respondent would continue to get his pension and other benefits from the Army for his past services, in our opinion, the High Court was not right while permitting the respondent to get his higher pay fixed by taking into account the services rendered by the respondent to the Indian Army. Even from sound common sense, it can be seen that for the past service rendered to the Indian Army, the respondent is getting pension and other perquisites which a retired or discharged soldier is entitled to even after being re-employed. The respondent would, therefore, not have any right to get any further advantage in the nature of higher salary or a higher pay scale, especially when nothing from his salary was being deducted on account of his getting pension or perquisites from the earlier employer.
11. In view of the aforestated position, in our opinion, the Tribunal was absolutely right in coming to the conclusion that the pay fixation under the order dated 13th October, 1998 was correct because a mistake was committed in the earlier pay fixation under the order dated 2nd September, 1992.
12. Though a submission had been made on behalf of the respondent that no amount should be recovered from the salary paid to the respondent, the said Page 21 of 26 OA No.20/1273/2015 & Batch submission can not be accepted because if any amount had been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the mistake must be recovered. It might also happen that the employer might have to pay some amount to the respondent as a result of some mistake and in such an event, even the appellant might have to pay to the respondent. Be that as it may, upon settlement of the account, whatever amount has to be paid to the respondent employee or to the appellant employer shall be paid and the account shall be adjusted accordingly.
13. For the aforestated reasons, we are of the view that the High Court was not correct in allowing the writ petition. We quash and set aside the order passed by the High Court so as to restore the order passed by the Tribunal and give effect to the pay fixation order dated 13th October, 1998. The appeal stands disposed of as allowed with no order as to costs."
16. We have also carefully gone through the order of the Full Bench of Ernakulam Bench of this Tribunal dt. 27.03.2019 in OA No.180/00192/2015 & batch and the relevant observations are as under:
"3. All the above OAs were filed challenging the orders passed by the respondents fixing their pay on re-employment. All the applicants are Non- Commissioned Officers of the defence forces and they are employed in Civil services Group C & D posts (now only C). Except in OA 438/15, the main relief sought is that they are entitled fixation of pay on the basis of the last pay drawn, which the respondents denied. The applicant in OA 438/15 has challenged the constitutional validity of clause 4(b)(i) of CCS (fixation of pay on re-employment) order 1986 as discriminatory to Non-Commissioned Officers and violative of Art. 14,16 & 21 of the Constitution to the extent it refuses the benefit of pay fixation reckoning the last pay drawn to the person who retired from the post of personal below the officer rank or Group B, C & D of the Civil Services and to quash the impugned order A1 to that extent.
4. When the matter came up for hearing before the Division Bench, it was found that there are conflicting orders passed by various benches and it will be good if the law is settled by a larger bench. The Chairman, Principal Bench ordered for constitution of a Full Bench as per letter No.PB/13/04/2015-JA dated 14.8.2018 and the Full Bench heard the submissions on both sides and found that points referred earlier are not sufficient as even the constitutional validity of Rule 4(b)(i) of CCS (Fixation of Pay of Re-employed Pensioners) Order 1986 was also challenged by the applicants. Hence the matter was sent back to the Division Bench for formulating the points to be decided by the Full Bench.
5. Accordingly, the Division Bench finally referred the following points for decision of the Full Bench:-
"1. Whether Rule 4(b)(i) of the (Fixation of Pay of Re-employed Pensioners) Order 1986 is violative of the At. 14, 16 & 21 of the Constitution of India due to it being discriminatory against those who are having their entire pension ignored for the purpose of pay fixation and being violative of equality, right to life and liberty?Page 22 of 26
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2. Whether Ex-Servicemen, who are PBOR (Persons Below Officer Rank), entitled to have their fixation of pay with reference to the pay drawn at the time of their discharge from armed forces or whether they are entitled to fixation at minimum of the pay scale of re-employed pensioners?
3. Whether the Ex-Servicemen who are combatant category are entitled to the benefit of fixation of pay of re-employed pensioners in terms of CCS (Fixation of Pay of Re-employed Pensioners) Order 1986 read with OM No.3/19/2009-Estt. Pay II dated 05.4.10 issued by DoPT, G.O.I."
Xxxx
10. We have anxiously heard the arguments advanced by the learned counsel on both sides. The only point to be considered is whether Rule 4(b)(i) of Central Civil Services (Fixation of Pay on Re-employment) Orders, 1986 is discriminatory to PBOR persons and is violative of Article 14 & 16 of the Constitution.
xxxx
13. On going through Rule 4 of the Central Civil Services (Fixation of Pay on Re-employment) Orders, 1986, we can see that it has given different schemes for pay fixation on re-employment to Commissioned and Non-Commissioned Officers (PBOR). As far as commissioned officers are concerned, only a minor portion of their pension is ignored (now Rs.15000/-) and the remaining non- ignorable portion is deducted from the pay fixed on the basis of pay drawn in the forces. But as regards Non-Commissioned Officers, the entire pension is ignored while fixing pay in the new scale. They are not given any pay protection. It is here that the applicants would contend that they are discriminated. If we go through the samples of pay fixation given by DOPT, it can be seen that if the pension so ignored plus the pay at the initial stage is taken, it can be seen that the persons who are PBOR do not suffer from any short fall in income which they would have got in the forces at the time of retirement. The object of this separate fixation of pay for Ex-Servicemen had an object that these Ex-Servicemen who had served the better half of their age in the service of the country should not suffer any short fall in income when they retire from the defence force. The reservation is provided to the personnel of PBOR based on Ex-Servicemen (Re-Employment in Central Civil Services & Posts) Rules, 1979. This rule provides for reservation for Non-Commissioned Ex-Servicemen in Group C and D posts. This clearly indicates that the commissioned officers who are Group A officers is not given such reservation and no such officer is going to compete with PBOR persons in appointment. Besides the ignoring of pension, they are given various benefits like reservation, relaxation of age, educational qualification etc. also for getting re-employment.
14. As per the conditions of service of Commissioned Officer, he has to undergo various courses and he is assessed on merits throughout his career as they had to lead the forces of the country. They are considered similar to Group A officers of the Civil Services. The functions and responsibilities and qualification of these officers are not similar to that of PBOR. Article 16(1) or (2) does not prohibit the prescriptions of reasonable rules for selection to any employment or appointment to any office. In State of Mysore & Another v. Narasing Rao (cited supra) had categorically held that giving different scales classifying tracers in the state as Matriculate and non-Matriculate is valid and the said classification was upheld by the Supreme Court. In this case, members retired from the forces were classified as Commissioned Officers and Non- Commissioned Officers for the purpose of reemployment after retirement. The Page 23 of 26 OA No.20/1273/2015 & Batch object of giving re-employment is to protect these persons from difficulties on retirement. The classification is mainly made on the basis of qualifications, functions in their employment and the Non-Commissioned Officers are given reservation in Group C and D posts in Central Civil Services. The Commissioned Officers are officers coming under Group A category and there is no possibility of these officers to apply for a Group C and D posts and they are not given any reservations in the 1979 rules. So, these two categories stand apart. So, the classification is on intelligible differentia which distinguishes persons grouped together. The object sought to be achieved is the welfare of the Ex-Servicemen who retire from forces before they attain the age of 55 years. The classification made under Rule 4 of the CCS (Fixation of Pay on Re- employment) Order, 1986 for the purpose of pay fixation is reasonable and cannot be considered as discriminatory to PBOR or Non-Commissioned Officers as alleged by the applicant. We cannot find any injustice manifest in the classification made in the rules. Article 16 of the Constitution provides for equality of opportunity. It is only an incident of the concept of equality under Article 14. The concept of equality cannot be confused with absolute equality. What is guaranteed is equality of opportunity and nothing more. Article 16(1) or (2) does not prohibit the prescription of reasonable rules for classification for selection or appointment. So, we are of the opinion that Rule 4(b)(i) of the CCS (Fixation of Pay on Re-employment) orders, 1986 does not offend Article 14 and 16 of the Constitution as alleged. No discrimination can be found against Non-Commissioned Officers. The principle of fixation of pay for PBOR and Commissioned Officers stand the test laid down by the Hon'ble Apex Court in Budhan Chaudhary v. State of Bihar (cited supra). There may be differences in the total benefits received by these two categories. But this type of inequalities have to be mitigated by the executive government and such benefits cannot be granted by the Tribunals. All the applicants were re- employed after 1986 and the rules of fixation given in the rules does not suffer from any arbitrariness or discrimination which is violative of Article 14 and 16 of the Constitution.
15. In the result we answer the reference in favour of the respondents. Rule 4(b)(i) of the CCS (Fixation of Pay on Re-employment) Order, 1986 does not violate the principle of equality enshrined under Article 14 and 16 of the Constitution. In the light of above discussion, the other points raised by the Division Bench are also decided accordingly, having no discrimination or arbitrariness and are not violative of principle of equality under Article 14 and 16 of the Constitution of India. 16."
17. Following the above judgments, Jodhpur Bench of this Tribunal also dismissed batch of cases vide OA No. 290/00279/2017 & batch on 14.01.2020.
18. Admittedly, all the applicants in the instant batch of cases are ex- servicemen and retired as non-commissioned officers and they continue to draw the pension for the services rendered in the defence forces and the said pension has not been subjected to any deduction or adjustment on their Page 24 of 26 OA No.20/1273/2015 & Batch re-employment in the respondents department and they were recruited by way of direct recruitment under ex-servicemen quota. Therefore, the pay of the applicants has to be fixed as per the entry pay in the revised pay structure in the re-employed post as applicable to direct recruits and as such, we do not find anything unjustified in the action taken by the respondents. The law laid down in the judgments, referred to supra, is squarely applicable to the instant cases.
19. It is the cardinal principle of judicial discipline, as held by the Apex Court in the case of S.I.Rooplal vs Lt. Governor of Delhi (2000) 1 SCC 644 that precedents are to be strictly adhered to. The Apex Court has categorically held therein as under:-
" xxx Precedents which enunciate rules of law from the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bounded by the enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. "
20. In so far as the recovery, the Hon'ble Supreme Court in U.T. Chandigarh & Ors v. Gurcharan Singh & Anr (supra) also observed that if any amount has been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the mistake must be recovered. In the instant case, the applicants were not at all entitled for the benefit of fixation of pay taking into account the last pay drawn by them in the defence forces at the time of their retirement and the said benefit was granted to the applicants on their representations. It is also evident from the Page 25 of 26 OA No.20/1273/2015 & Batch record that, the applicants gave specific undertaking at the time of revision of their pay and payment of arrears consequent to such revision of their pay. One such undertaking reads thus:
"I hereby undertake that any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment detected in the light of discrepancies noticed subsequently will be refunded by me to the Government in a lump sum by adjustment against future payments due to me or otherwise. I will not approach legally if any cases arise."
21. Further, Hon'ble Supreme Court in High court of Punjab & Haryana & Ors v. Jagdev Singh in Civil Appeal No. 3500 of 2006, dt. 29.07.2016 held that recovery is permissible in case an undertaking is given and the relevant observation is as follows:
"...In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The Officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. ..."
22. In view of the above discussion, we do not see any merit in the OAs and the same are accordingly dismissed. The interim orders are vacated. Pending MAs shall stand disposed. There shall be no order as to costs.
(SHALINI MISRA) (SUDHI RANJAN MISHRA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
//evr//
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