Central Administrative Tribunal - Ernakulam
Ramkumar R vs M/O Defence on 22 January, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00523/2016
Monday this the 22nd day of January 2024
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Ramkumar.R.,
Chargeman (Air Engineering),
Naval Aircraft Yard (K),
Naval Base, Kochi - 4. ...Applicant
(By Advocate Mr.S.Radhakrishnan)
versus
1. Union of India
represented by the Secretary,
Ministry of Defence, South Block,
New Delhi - 110 001.
2. The Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions,
New Delhi - 110 001.
3. The Principal Controller of Defence Accounts (Pension),
Office of the PCDA, Allahabad - 1.
4. Flag Officer Commanding-in-Chief,
Southern Naval Command, Kochi - 4.
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5. The Commodore Superintendent,
Naval Aircraft Yard,
Naval Base, Kochi - 4. ...Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil, Sr.PC)
This application having been heard on 6 th November 2023, the
Tribunal on 22nd January 2024 delivered the following :
ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant in this O.A is working as a Chargeman (Air Engineering) (CM-AE) at the Naval Aircraft Yard (NAY), Kochi in the Naval Base, Southern Naval Command. He had earlier been working in the Indian Navy from 01.05.1999 as Artificer - IV Class as a Serviceman. He was promoted in the Navy to Chief Engine Room Artificer on 01.04.2006. After completion of 10 years service on bond, he was released on 30.04.2009, as per his certificate of discharge dated 30.04.2009 produced at Annexure A-1. After his discharge from the Navy he joined the NAY, Kochi, Southern Naval Command in the post of CM (AE). He has filed the O.A as he is aggrieved by the "illegal and arbitrary action" adopted by the respondents in reducing his pay by ordering a review of his pay fixation which had been effected under Rule 19 of the CCS (Pension) Rules, 1972. It is submitted that the -3- respondents have also issued a notice to effect recovery of an alleged excess amount paid to him which, he submits, was under a wrong impression that he was a 'pensioner'.
2. The applicant submits that on the date of discharge from the Navy on 30.04.2009, he had been drawing salary in the Pay Band 2 (PB-2) (Rs.9300-34800) with a Grade Pay of Rs.4200/- and 22% D.A. His last pay certificate on the date of his release on 30.04.2009, copy produced at Annexure A-2, shows that his pay in the said PB-2 was Rs.12230/-. Besides this, he was drawing Grade Pay (GP) of Rs.4200/-, Military Service Pay (MSP) of Rs.2000/-, X Group Pay (X-Pay) of Rs.1400/-, a Good Conduct Badge of Rs.160/-, a Composite/Kit Maintenance Allowance of Rs.150/-, Dearness Allowance (DA) at the rate of 22% amounting to Rs.4363/- and a Transportation Allowance of Rs.976/-. His total pay and allowances amounted to Rs.25479/-. He submits that going by these details, it is clear that the said D.A of 22% could amount to Rs.4363/- only on the basis of the total pay in the PB of Rs.12230/- plus MSP of Rs.2000/- plus X-Pay of Rs.1400/- amounting to a total of Rs.15630/-. If the Grade Pay of Rs.4200/- was added to this amount of Rs.15630/-, his pay would amount to Rs.19830/-. Thus, it is clear that -4- the said D.A of 22% was calculated based on this total pay of Rs.19830/-, as 22% of this amount comes to Rs.4363/-. What he seeks to establish from the above calculation details based on his last pay certificate is that, the Navy had treated his basic component of pay to be including not just the pay in the PB plus Grade Pay but also Military Service Pay and X Group Pay.
3. The applicant has stated that while he was serving in the Navy, the Southern Naval Command (SNC) invited applications to fill up vacancies of Chargeman - II (Air Engineering) under it. Since he had all the required qualifications and was nearing the anticipated date of discharge, he applied for the post through proper channels. It is submitted that after the selection proceedings and within a span of 101 days from the date of discharge on 30.04.2009, he had been selected and appointed as Civilian Chargeman - II (Air Engineering) in the Southern Naval Command as a direct recruit. He joined the post on 10.08.2009 with the entry pay in the PB-2 (Rs.9300-34800) with a Grade Pay of Rs.4200/-. It is submitted that this post was later re-designated as Chargeman (Air Engineering) (CM-AE). As a direct recruit, he was initially inducted with the entry pay of Rs.9300/- in the said PB-2 with Grade Pay of Rs.4200/-. A copy -5- of his appointment order dated 10.08.2009 issued by the Headquarters, Southern Naval Command to the Commodore Superintendent, Naval Aircraft Yard, Kochi has been produced at Annexure A-3. In the said order showing his appointment with effect from 10.08.2009, it has been indicated that the appointment will be on an entry pay of Rs.13500/- (Rs.9300 + Rs.4200/-) in PB-2 (Rs.9300-34800 with Grade Pay of Rs.4200/-) plus the allowances as admissible and that he would be posted in the NAY, Kochi against existing vacancies.
4. Coming to the core issue in this O.A., the applicant submits that the Government of India had issued certain orders, granting Ex- Servicemen like him the benefit of counting previous Military Service on reemployment. He submits that there are basically two types of Ex- Servicemen ie., some of whom are Ex-Servicemen with pension and others Ex-Servicemen without pension. Pension is calculated as 50% of the last basic pay drawn which includes all the components of basic pay for Ex-Servicemen with pension. However, for Ex-servicemen without pension, the whole pay is reckoned for the purpose of fixing the service benefits due in the new employment, since there is no benefit of military pension. It is submitted that the applicant has the status of an Ex- -6- Servicemen without pension. He submits that a specific provision in the CCS (Pension) Rules, 1972 as Rule 19 has been incorporated for people like him. As this Rule 19 will be referred to at various points in what follows, it would be instructive to bring out the rule in full below :
"19. Counting of military service rendered before civil employment (1) A Government servant who is re-employed in a civil service or post before attaining the age of superannuation and who, before such re-employment, had rendered military service, may, on his confirmation in a civil service or post, opt either -
(a) to continue to draw the military pension or retain gratuity received on discharge from military service, in which case his former military services shall not count as qualifying service; or
(b) to cease to draw his pension and refund -
(i) the pension already drawn, and
(ii) the value received for the commutation of a part of military pension, and
(iii) the amount of [retirement gratuity] including service gratuity, if any, and count previous military service as qualifying service, in which case the service so allowed to count shall be restricted to a service within or outside the employee's unit or department in India or elsewhere which is paid from the Consolidated Fund of India or for which pensionary contribution has been received by the Government : -7-
Provided that -
(i) the pension drawn prior to the date of re-employment shall not be required to be refunded.
(ii) the element of pension which was ignored for fixation of his pay including the element of pension which was not taken into account for fixation of pay on re-
employment shall be refunded by him,
(iii) the element of pension equivalent of gratuity including the element of commuted part of pension, if any, which was taken into account of fixation of pay shall be set off against the amount of [retirement gratuity] and the commuted value of pension and the balance, if any, shall be refunded by him.
EXPLANATION. - In this clause, the expression `which was taken into account' means the amount of pension including the pension equivalent of gratuity by which the pay of the Government servant was reduced on initial re-employment, and the expression `which was not taken into account' shall be construed accordingly.
(2)(a) The authority issuing the order of substantive appointment to a civil service or post as is referred to in sub-rule (1) shall along with such order require in writing the Government servant to exercise the option under that sub-rule within three months of date of issue of such order, if he is on leave on that day, within three months of his return from leave, whichever is later and also bring to his notice the provisions of Clause (b).
(b) If no option is exercised within the period referred to in Clause (a), the Government servant shall be deemed to have opted for Clause (a) of sub-rule (1) -8- (3)(a) A Government servant, who opts for Clause (b) of sub-rule (1) shall be required to refund the pension, bonus or gratuity received in respect of his earlier military service, in monthly instalments not exceeding thirty-six in number, the first instalment beginning from the month following the month in which he exercised the option.
(b) The right to count previous service as qualifying service shall not revive until the whole amount has been refunded.
(4) In the case of a Government servant, who, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension or gratuity shall be adjusted against the [death gratuity] which may become payable to his family.
(5) When an order is passed under this rule allowing previous military service to count as part of the service qualifying for civil pension, the order shall be deemed to include the condonation of interruption in service, if any, in the military service and between the military and civil services."
5. It is submitted that it is evident from Rule 19 of the CCS (Pension) Rules, 1972 that an Ex-Servicemen is entitled to get his previous military service reckoned as qualifying service on his re-employment and, in such case, he is bound to refund the pension, if any, already drawn as well as the amount of retirement gratuity, including service gratuity. It is submitted that the discharge certificate at Annexure A-1 clearly indicates that the applicant is not a pensioner and that he was discharged from the -9- service without pension. Hence, for getting the benefit under Rule 19 of the CCS (Pension) Rules, 1972, the applicant only needed to return only the amount of retirement gratuity and service gratuity. This would then enable him to get his military service rendered before the civil employment to be counted as qualifying service as defined under the CCS (Pension) Rules, 1972. The applicant submits that the service gratuity is in any case given only to non pensioners. The applicant, being a non pensioner, had received the service gratuity. Therefore, to get his earlier military service counted and also to get his last drawn pay protected on reemployment, he was liable to repay the retirement gratuity and service gratuity. He submits that on remittance of this amount he was also entitled to get his last drawn military pay protected after the reckoning of his former military service as qualifying service in the new civil service.
6. In compliance with Rule 19(2) of the CCS (Pension) Rules, 1972, the applicant submits that he had exercised an option to follow Rule 19(1)(b) in order to get the benefit indicated within the statutory period. This option was exercised on 21.01.2010. This was acknowledged and accepted by the respondents when they issued orders in respect of -10- counting of former military service towards Civil Pension in respect of him as is evidenced at paragraph 4 of the letter at Annexure A-9 dated 07.11.2014. Along with the option, the applicant submitted a representation dated 21.01.2010 produced at Annexure A-4 to the 4th respondent, Flag Officer Commanding-in-Chief, Southern Naval Command, Kochi. In this representation he clearly submitted that necessary directions should be passed to count his military service earlier rendered not just for calculation of service benefits including pension under the Old Pension Scheme but also protection of last drawn military pay for fixation of pay. The applicant submits that there was, however, no further movement for more than three years after he had submitted the representation at Annexure A-4. It was only on 08.02.2013 that the Principal Controller of Defence Accounts (Pension), Allahabad, who is the 3rd respondent in the O.A., issued the circular No.103, produced at Annexure A-5. This circular related to counting of former service in respect of employees covered under the New Pension Scheme and rendering audit reports. In any case, it is submitted that, on receipt of Annexure A-5, the authorities directed the applicant to exercise an option again in a prescribed proforma furnished by the Southern Naval Command. In compliance with these directions, the applicant once again -11- submitted an option certificate, as per Annexure A-6 dated 11.03.2013. He opted to count his past military service for the period from 01.05.1999 to 30.04.2009 towards civil pension, in accordance with the Rule 19 of the CCS (Pension) Rules, 1972. It was also stated in the certificate that he was willing to refund the amount of gratuity received by him with interest to Government.
7. It is submitted that word 'Pension' in the option certificate at Annexure A-6 was scored out and only 'Gratuity' was retained. This further indicates that, if indeed, the applicant was a pensioner, he would then have had to return the pension drawn as well in order to get his military service/pay protected. However, since he was a non pensioner, he had to return only the retirement gratuity and service gratuity, which had been paid to him. Hence, on the basis of this option certificate submitted by him the respondents issued a statement vide Annexure A-7 showing the amount of gratuity and interest therein, which was to be refunded for getting the former military service reckoned for pay protection. The statement at Annexure A-7, indicates the calculation of the interest amount to be refunded by the applicant for counting of former military service. It shows that an amount of Rs.423378/- was to -12- be refunded as the amount of retirement gratuity and service gratuity. Interest at rates varying from 8.0% to 8.8% for the period from June, 2009 to July, 2013 amounting to Rs.123295/- is also calculated in the statement. Hence, the total amount to be refunded by the applicant is Rs.546673/-.
8. The applicant submits that, even though he had exercised the option and expressed his willingness to repay the required amount as early as on 21.01.2010 in his first option itself, he was however only permitted to refund this amount in July, 2013. It is submitted that this delay is solely due to the respondents. For this delay of around 3 ½ years, he was made to pay a huge amount of Rs.123295/- as interest at a high rate between 8.0% to 8.8%. At the same time, from Annexure A-7 it is evident that he had been directed to pay only the Gratuity amount and not any Pension, since he was not a military pensioner. The applicant then remitted amount of Rs.546673/- in the name of Commodore Superintendent, Naval Aircraft Yard, Kochi as per Annexure A-8 receipt dated 14.08.2013. After the remittance of his entire gratuity benefit, it is submitted that the Principal Controller of Defence Accounts then issued orders permitting him to count his military -13- service towards civil pension, by their letter at Annexure A-9 dated 07.11.2014. He again points out that as per the appendix to the Annexure A-9, which is the certificate of verification of military service applicable to him, in response to the information required at point No.8(c) he is indicated as a "non pensioner". His length of service against the point No.15 is shown as 10 years.
9. Consequent to the above Annexure A-9 letter permitting the counting of military service towards civil pension issued on 07.11.2014, it is submitted that the Southern Naval Command refixed his pay on 15.06.2015, about two years after he had submitted his second option dated 11.03.2013. A copy of this pay fixation order proforma issued on 15.06.2015 by the Naval Aircraft Yard, Kochi is produced at Annexure A-10. The order shows that the applicant is appointed on 10.08.2009 as Chargeman II (counting of former service) in the Pay Band of Rs.9300- 34800 with Grade Pay of Rs.4200/-, as a direct recruit from military service. His former service was counted in the order and in the column against 'Basic Pay' it is indicated that his pay was Rs.12230/- + Grade Pay Rs.4200/- (30.04.2009) with Rs.2000/- as Military Service Pay and Rs.1400/- as X pay. Accordingly, against the column 'Pay proposed to -14- be fixed in the new post', his pay is indicated as Rs.15630/- + Grade Pay Rs.4200/- with effect from 10.08.2009. It is submitted that by the pay fixation order at Annexure A-10, the applicant's pay has been fixed by taking into account all components of the basic pay drawn by him in his previous service, including Military Service Pay and the X Group Pay. It is only the Good Conduct Badge amount of Rs.160/- and Kit Maintenance Allowance of Rs.150/- that have not been reckoned by the respondents. The applicant submits that he drew this revised pay, as shown at Annexure A-10 with effect from 10.08.2009, as indicated in the Civilian Establishment (CE) List No.149/2015 dated 01.10.2015 produced at Annexure A-11. In other words, he submits that he started drawing this pay from the month of September, 2015. It is submitted that a perusal of Annexure A-11 CE List, along with his last pay certificate produced at Annexure A-2, indicates that his last drawn basic components of Military Service Pay has been protected as basic pay, while fixing his pay on re-employment. In both orders, the pay in the Pay Band plus Military Service Pay plus X Group Pay comes to Rs.15630/- with Grade Pay of Rs.4200/-. In other words, it is submitted that the Principal Controller of Defence Accounts as well as the Southern Naval Command, as of June to September, 2015, approved and accepted -15- that his Military Service Pay was part of his basic pay of Rs.15630/- drawn by him on the date of discharge. This was taken to be the entry pay on his re-employment since he was a non pensioner. He submits that, in fact, he is entitled to get his entire last pay protected but the respondents have only reckoned the components in relation to pay in the Pay Band (Rs.12230/- + Military Service Pay of Rs.2000/- + X Group Pay of Rs.1400/-) as his basic pay.
10. It is then submitted that after this a memo dated 22.03.2016 was received by the Commodore Superintendent of Naval Aircraft Yard, Kochi from the Area Accounts Office (Navy) in relation to fixation of pay of reemployed pensioners and treatment of Military Service Pay (MSP). A copy of this letter has been produced at Annexure A-12. It is stated, therein, that the Principal Controller of Defence Accounts (Navy), Mumbai had forwarded a Department of Personnel and Training (DoP&T), Government of India, O.M.No.3/19/2009-Estt.Pay II dated 08.11.2010 with directions to review the cases where Military Service Pay has been taken into account while fixing pay of re-employed pensioners. It was requested that the pay fixation case of the applicant herein be forwarded to the office of the Area Accounts Office (Navy) -16- along with pay fixation proforma excluding MSP for review. A copy of the letter was also given to the applicant from his office for information. Further, the applicant has produced a copy of the aforementioned DoP&T O.M dated 08.11.2010 at Annexure A-13. It is this Annexure A-13 O.M., which has also been produced by the respondents at Annexure R-4 with their reply statement is the proximate cause of the issue being dealt in this O.A. The O.M., therefore, bears some detailing. The subject of the O.M is the "Fixation of pay of reemployed pensioners
- treatment of Military Service Pay". In its first paragraph it states that the O.M is with reference to the orders issued vide O.M dated 05.04.2010 on fixation of pay of reemployed pensioners. These orders, inter-alia, had laid down that on reemployment in civilian organisations, Military Service Pay shall not be admissible. However, the benefit of MSP given to all retired Defence Forces officers/personnel by reckoning it at the time of calculation of their pension (notionally in the case of pre 01.01.2006 pensioners) should not be withdrawn. Accordingly, while the pension of such reemployed pensioners will include the element of MSP, they will not be granted MSP while working in civilian organisations. Further the above O.M also states that with reference to the instructions issued by the Ministry of Defence vide their letter dated -17- 24.07.2009 in relation to pre-retirement pay that, for pre-2006 retirees, rank pay is included as a part of pay, but for post-2006 retirees, the MSP is not reckoned in the pre-retirement pay for the purposes of pay fixation on re-employment. However, for pension purposes, the reckonable emoluments are - basic pay + Grade Pay + MSP + NPA wherever admissible. The O.M then goes on to state in the third paragraph that "....Therefore, while MSP is not taken into consideration for the purposes of pay fixation on reemployment, the element of MSP in pension is deducted." It then goes on to state that "It has been decided in consultation with the Department of Expenditure that since the element of MSP is not reckoned in the pay fixation on re- employment, it need not be reduced from the pension either. Hence, in respect of all those Defence Officers/personnel, whose pension contains an element of MSP, that need not be deducted from the pay fixed on re- employment."
11. It is the applicant's contention, however, that the above O.M makes it quite evident that it deals with the pay fixation of reemployed pensioners, and in that case, since Military Service Pay is reckoned as part of the basic pay for the purpose of calculating the pension, that -18- benefit cannot be granted again in the pay fixation on re-employment. He submits that this O.M has no application at all in the case of non pensioners, since non pensioners like him have not been given any benefit of this Military Service Pay in pension. On the other hand, admittedly, the MSP was part of basic pay at the time of his discharge. According to the Annexure A-13 O.M on re-employment of pensioner Ex-Servicemen, Military Service Pay is reckoned for the purpose of pension but not with respect to pay fixation on re-employment. In other words, as far as non pensioners like him are concerned, the Military Service Pay, which is part of the basic pay, is also to be reckoned while fixing pay on re-employment. The applicant is thus drawing a distinction between the fixation of pay of Ex-Servicemen drawing pension vis-a-vis those not drawing pension. In case of those drawing pension, if they were drawing the Military Service Pay, it would have been naturally taken into account for the fixation of their pension. Thus, it is only for the pensioners, that the O.M at Annexure A-13 indicates that fixation of pay on re-employment should not take into account Military Service Pay. However, for non pensioners Ex-Servicemen like the applicant, since it is a part of the basic pay, it should be included.
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12. It appears that the respondents did not buy into the above logic expressed by the applicant. Immediately after receipt of the letter at Annexure A-12 the applicant's pay was reduced to Rs.12230/- from Rs.15630/- with effect from 10.08.2009, vide the impugned order at Annexure A-14. As per this Civilian Establishment List No.94/2016 dated 03.05.2016, it has been indicated against the name of the applicant that "Consequent on counting of former Military (Navy) service towards civil pension pay refixed at Rs.12230/- + Grade Pay Rs.4200/- with effect from 10.08.2009 in PB-2 (Rs.9300-34800). The next increment due on 01.07.2010." Further, the earlier Civil Establishment List No.149/2015 was cancelled. In other words, a comparison between the Annexure A-14 CE List No.94/2016 and the Annexure A-11 Civil Establishment List No.149/2015 would reveal that the basic pay of the applicant was reduced from 10.08.2009 by Rs.3400/- per month by removing the Military Service Pay of Rs.2000/- and X Group Pay of Rs.1400/-. This reduction of amount of Rs.3400/- from the basic pay is, as per the applicant, not in tune with the Annexure A-13 O.M., which only stated that the re-employed pensioners were not entitled to reckon Military Service Pay on re-employment. It is submitted that even though the applicant is not a re-employed pensioner, not only his Military -20- Service Pay but the X Group Pay has been reduced by the respondents, though the latter was not even mentioned in the Annexure A-12 letter. The said reduction was also done, without giving him an opportunity of being heard and without authority. A few days later on 11.05.2016, the Commodore Superintendent, Naval Aircraft Yard, Kochi issued a letter to the applicant in relation to the fixation of pay. It was indicated in this letter dated 11.05.2016 produced as the impugned letter at Annexure A-16 that as per the directives of the Principal Controller of Defence Accounts (PCDA) (Navy), Mumbai, the DCDA (Navy), Kochi had intimated that the fixation of pay in respect of re-employed Ex- Servicemen was to be carried out considering the emoluments ie., Basic Pay + Grade Pay and the Military Service Pay and X Group Pay are not to be taken into consideration for fixation of pay. Accordingly, his case had been resubmitted to audit authorities for refixation. The DCDA (Navy) Kochi has then refixed the pay at Rs.12230/- + Grade Pay Rs.4200/-, reviewing the earlier pay fixation at the stage of Rs.15630/- + Grade Pay Rs.4200/-. Further, this revised pay would be effective from 10.08.2009. His pay having been thus reduced, the pay and allowances for the month of May, 2016 onwards would be disbursed accordingly. In addition, the applicant was also directed by the Annexure A-15 letter to -21- remit the excess amount already drawn between 10.08.2009 to April, 2016, which would be intimated separately. This letter was then followed up by the Annexure A-18 letter dated 23.06.2016 from the Commodore Superintendent to the applicant stating that the excess amount on refixation of pay of re-employed Ex-Servicemen amounting to Rs.587505/- may be refunded to the Government through MRO. The letters at Annexure A-14, Annexure A-15 and Annexure A-18 have been produced as impugned communications in the O.A.
13. The applicant submits in this connection that the refixation of pay has only happened in the Southern Naval Command, whereas, to the best of his knowledge and information, other Central Government Departments have protected the last pay drawn by the Ex-Servicemen on re-employment. The applicant has produced a copy of an order issued by the Chief Commissioner of Income Tax, Bhopal in the case of a Ex- Servicemen Shri.Ganesh Prasad Shah at Annexure A-19. It is submitted that Shri.Shah's consolidated last military pay on the date of discharge had been reckoned as his pay and was protected by the Income Tax Department when he joined on 27.05.2013. Similarly, in the case of one Shri.Tapas Patra, the Chief Commissioner of Income Tax passed an -22- identical order produced at Annexure A-20. A third order issued to Shri.Prakash Chand, a re-employed Ex-servicemen has been produced at Annexure A-21. It is to be noted that all these cases relate to orders passed by Chief Commissioner of Income Tax, Bhopal. It is submitted that the last pay drawn, including the Military Service Pay, Classification Pay and Good Conduct Badge amount were protected in these cases. Thus, in this context, he submits that the Annexure A-15 Memo dated 11.05.2016 issued by the Commodore Superintendent, Naval Aircraft Yard, Kochi to him and the reduction by way of Civilian Establishment List No.94/2016 dated 03.05.2016 (Annexure A-14) are illegal, unjust, arbitrary and liable to be set aside.
14. In his grounds in the O.A., the applicant has submitted that the Central Government had clarified time and time again earlier that, for non pensioners Ex-Servicemen all the benefits that were being drawn in the military pay would have to be protected on re-employment. As far as pensioners were concerned, a different treatment protocol was adopted since they continue to get the benefits of different components of military pay in their pension. He submits that the Ministry of Railways, Employees Provident Fund Organization, the Indian Bank Association -23- etc., had clarified that for non pensioners, the pay on re-employment would have to be fixed protecting the last pay drawn in the military including Military Service Pay, X Group Pay, Good Conduct Badge, Classification Pay, Dearness Allowance, etc. It is submitted that the respondents are confusing the status of Ex-Servicemen pensioners and Ex-servicemen non pensioners. This has resulted in the wrong fixation of pay as far as the applicant is concerned.
15. The applicant also brought to notice the recommendations of a 2015 Committee known as Raksha Manthri's Committee of Experts constituted by Ministry of Defence with extracts at Annexure A-22. As per the report of the said Committee submitted in 2015, all these basic components of military pay would have to be protected on re- employment. However, a closer look at the extracted recommendations of the Committee makes it clear that these recommendations, since they have been issued by a Committee appointed by the Ministry of Defence, cannot be taken as something which has been approved by the Government. It only appears to be something in the realm of the recommendations. However, it is also to be noted that the Committee had recommended that the Ministry of Defence should inform the -24- Department of Personnel & Training (DoP&T) regarding the existence of the Gazette Notification dated 30.08.2008 which had ordained that Military Service Pay shall be included for pay fixation and, therefore, cannot be ignored by any instrumentality of the State. The Committee had also taken into account that confusion had been caused by the fact that the DoP&T had based its letter (Annexure A-13 O.M presumably) on Ministry of Defence's letter dated 24.07.2009, wherein, the definition of pre-retirement pay for pay fixation admittedly does not include Military Service Pay. The applicant submits that from these recommendations of the Committee it is evident that the Area Accounts Office (Navy) had issued the Annexure A-12 communication based on a wrong notion that the Military Service Pay cannot be reckoned for all reemployed Ex-servicemen, whereas, from the Annexure A-22 report, it is quite evident that the Ministry of Defence had clearly stated that the benefit of the Military Service Pay component should be extended to the Ex-Servicemen, either in their pension or in their subsequent employment in the Civil Establishments. Hence, in light of this, a complete rejection of the Military Service Pay element was clearly against the purpose for which it had been introduced and, therefore, is to be clearly taken as illegal and unjust. It is also submitted that the -25- Principal Controller of Defence Accounts is issuing circulars without consulting the Ministry of Defence, which is not proper. It is submitted that the decision to omit the Military Service Pay element from the salary of a re-employed non pensioner Ex-Servicemen is thus to be deprecated.
16. The applicant further submits in his grounds that Rule 19 of the CCS (Pension) Rules, 1972 also provides that, on satisfying the conditions provided therein, an Ex-servicemen on re-employment is entitled to count the previous military service as qualifying service. The Principal Controller of Defence Accounts in Annexure A-9 had clearly ordered that he was entitled to get the credit of his past 10 years military service. It is submitted that the definition of pay under FR 9(21)(a) is not applicable in respect of post under the Defence, as per Ministry of Finance O.M F.No.7(19)/208-E.III(A) dated 30.08.2008. Hence, the exclusion of Military Service Pay and X Group Pay from the pay of the re-employed Ex-Servicemen without pension is illegal. Further, the applicant has submitted that, in his case, he had given the option under Rule 19 of the CCS (Pension) Rules, 1972 on 21.01.2010, expressing his willingness to repay the gratuity received for the purpose of refixing his pay on re-employment, by taking into account the basic pay drawn in the -26- military at the time of discharge. It took 3 ½ years for the authorities to order him to repay the amount and further, after a span of another 3 ½ years, he was directed to pay interest for the refund of the gratuity at the rate of 8.8%. Hence, due to the delay on the part of the respondents, he had been forced to pay an amount of Rs.123295/-. Even after that, they took another 2 more years to release arrears of pay due to him. Even so, after a span of almost a total of 6 years, these arrears were given without any interest. It was quite unfair and unjust to penalise him for the delay on the part of the authorities in computing the amount to be repaid. It is submitted that if the respondents are entitled to get interest as per government orders, the applicant is also entitled to get interest for the arrears of salary paid after a span of 6 years due to the delay on the part of the administration.
17. The applicant submits that under Rule 19 (5) of the CCS (Pension) Rules, 1972 it has been provided that when an order is passed allowing Military Service to count as part of the service for qualifying for civil pension, the order shall be deemed to include the condonation of interruption in service, if any, in the military service and between the Military and Civil Services. As is evident from the Annexure A-1 -27- Discharge Certificate he was discharged from Navy on 30.04.2009. He was then re-employed as Chargeman - II in the Navy on 10.08.2009 vide Annexure A-3. There was an interruption of 3 months and 9 days between his Military Service and the Civil Service. The Principal Controller of Defence Accounts by Annexure A-9 had allowed his previous military service to count as part of the re-employed civil service qualifying for civil pension. It is thus submitted by the applicant that as per Rule 19(5), Annexure A-9 should be deemed to have also included the condonation of interruption in service. However, the benefit of such a condonation was not recorded in his Service Book.
18. Further, the applicant submits that he has also not so far been granted the benefit of the completed years of service by granting him an increment for the period from 01.07.2008 to 30.04.2009. Even if the break is not reckoned, since he is having 10 years of actual service he is entitled to get an increment for that period. When his pay was fixed vide Annexure A-10 the respondents however only reckoned his basic pay as on 30.04.2009. He thus submits that he is entitled to get 3% of the sum of the pay in the PB and the Grade Pay ie., Rs.595/- as increment for the completed year of service with effect from 10.08.2009 on re-employment -28- by reckoning the service in military from 01.07.2008 to 30.04.2009 as a full year since it is continued. This amount was not granted though he had been actually entitled to get the same also as part of his basic pay, with effect from 10.08.2009. He had submitted a representation for the condonation of the break on 09.02.2015 before fixation of his pay with a reminder on 03.05.2016. However, no response has been received from the Southern Naval Command, who have ignored the components of Rule 19(5) of the CCS (Pension) Rules.
19. The applicant also submits that by Annexure A-15 he had been also directed to repay the 'excess' amount drawn from 10.08.2009 to 30.04.2016. There is no case that this amount was drawn by him due to a mistake, misrepresentation or fraud on his part. The highest authority in this regard ie., the CDA itself, had fixed his salary with the approval of Principal Controller of Defence Accounts. Now this amount is being revised and deducted without hearing him and without considering the relevant provisions in this regard. His salary is being reduced and recovery for the last 80 months has also been ordered. Hence, drawing from all the above disparate issues, the relief sought by the applicant are for a series of orders to be passed by this Tribunal on the following : -29-
(a) Call for the records connected with the case.
(b) Declare that it is illegal and arbitrary to reduce the salary of the applicant after accepting the whole gratuity with interest, in accordance with Rule 19 of the CCS (Pension) Rules.
(c) Set aside Annexure A-15 dated 11.05.2016, Annexure A-14 dated 03.05.2016 and Annexure A-18 dated 23.06.2016.
(d) Declare that the applicant is entitled to get his last drawn consolidated military pay protected on reemployment, on satisfying the conditions prescribed under Rule 19 of the CCS (Pension) Rules.
(e) Direct the respondents to record the condonation of the interruption in service between the Military and Civil Services in accordance with the Rule 19(5) of the CCS (Pension) Rules and grant him the consequential increment by reckoning the military service rendered during period July 2008 - April 2009 upon re-employment.
(f) Direct the respondents to grant all the consequential benefits including MACPS and payment of weightage of retirement gratuity on his retirement.
(g) Direct the respondents to pay interest for the arrears of pay fixation to the applicant since he was made to pay the interest of Rs.123295/- for the administrative delay.
(h) Grant such other reliefs as this Hon'ble Tribunal may deem fit, just and proper in the facts and circumstances of the case.
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20. It is to be noted that this O.A was filed before this Tribunal on 28.06.2016. The matter then came up before the Division Bench of this Tribunal on 29.06.2016. After hearing the learned counsel for the applicant for some time and also after recording the submissions of SCGPC (R), who took notice on behalf of the respondents and prayed for two days time to get instructions in the matter, the Bench on that day itself passed an interim order staying the operation of the Annexure A-14, Annexure A-15 and Annexure A-18 letters/orders till the next date of hearing. We note that this interim order was then continued from posting date to posting date and, in fact, has so far traversed the last 7 ½ years. It is to be noted that the respondents have filed, over the last 7 ½ years, a series of reply statements, argument notes, M.As for production of documents etc., in connection with the relief sought in this O.A. Indeed, at the later stages, the applicant objected to certain new contentions being put forth, which he submitted were in the nature of contradictions to the stands taken in the earlier reply statements and against the judicial admissions made in the first few reply statements. He submitted that these new arguments cannot be taken into consideration. As we shall see later in this order, the stand taken by the applicant was that mutually repugnant and contrary pleas destructive of each other -31- cannot be permitted to be argued. These contentions, backed by case laws, will be dealt with later in this order. Meanwhile, we will outline the contentions in the reply statements as they were filed in the following paragraphs.
21. The first reply statement filed by the respondents was on 10.02.2017, in response to the contentions made in the O.A. In this reply statement the basic position taken by the respondents was that an Ex- Serviceman on re-employment was only eligible for the entry pay attached to the post to which he is appointed through direct recruitment, to which he is being selected. The same point had been indicated in the appointment order of the applicant. It is submitted at paragraph 3 of this reply statement that the matter pertaining to the protection of pay for fixation of initial pay of reemployed pensioners (Ex-Serviceman) had been referred to the DoP&T. The matter was examined by the DoP&T and it was advised that the instructions issued in Do&T O.M.No.3/1/85- Estt.(Pay-II) dated 31.07.1986 would regulate pay fixation on re- employment of pensioners in Central Civil Services and posts, including Ex-Servicemen. It may be noted that this O.M of 1986, hereinafter intermittently referred to as the 1986 orders, will play a central role in -32- what follows. Further, in the same paragraph 3 of the reply statement, a contention was made which, much later in an additional reply statement was withdrawn (details will be given later). The contention was to the effect that "However, in accordance with Rule 19 of CCS (Pension) Rules, an Ex-Serviceman is entitled to get his previous pay protected and in such case he is bound to refund the pension, if any, already drawn and the amount of retirement gratuity including service gratuity". This last contention, as stated, was much later withdrawn by the respondents in an additional reply statement filed later.
22. In any case, in the first reply statement the respondents took the position that the applicant, being an Ex-Serviceman without pension, his last pay drawn was initially protected by them. Accordingly, they accept that his pay on re-employment as Chargeman (Air Engineering) was fixed taking into consideration the Basic Pay + Grade Pay + Military Service Pay + X Group Pay, with respect to the pay fixation proforma issued by Naval Pay Officer, Mumbai in respect of the applicant. A copy of the pay fixation proforma dated 27.02.2015 issued by the Naval Pay Office at Annexure R-1 has been produced. This showed the details of pay of the applicant as Basic Pay Rs.12230/-, Grade Pay Rs.4200/-, -33- Military Service Pay Rs.2000/-, X Pay Rs.1400/-, CPMA Rs.150/-, DA Rs.4363/-, GCB Rs.160/- and TPT Rs.976/-. However, the Principal Controller of Defence Accounts (Navy) Mumbai issued certain directives to review all pay fixation cases where the Military Service Pay had been taken into account. This was in the letter produced by the applicant in the O.A at Annexure A-12 which is also produced by the respondents as Annexure R-2. This letter dated 22.03.2016 relying on the DoP&T's O.M.No.3/19/2009 Estt.Pay-II dated 08.11.2010 (produced at Annexure A-13 in the O.A) indicated that the erroneous fixation of pay including Military Service Pay had been objected by the Audit authorities. It had been directed to recover the excess pay granted on account of reckoning the Military Service Pay. The respondents submit that the pay of the applicant was accordingly again refixed by the Audit authorities, excluding the Military Service Pay, as directed by the Annexure R-2/Annexure A-12 O.M. A revised pay fixation proforma as a result of this exercise, issued by the Naval Aircraft Yard, Kochi in respect of the applicant, is enclosed as Annexure R-3. In this the Basic Pay is shown as Rs.12230/- + Grade Pay Rs.4200/-. For some reason, the X Pay of Rs.1400/- was also included in the entry against the Basic Pay. Hence, the pay including the X Pay was shown as Rs.13630/- with Grade Pay of -34- Rs.4200/- in this pay fixation proforma, proposed to be fixed in the new post with effect from 10.08.2009. It was then submitted in the reply statement that the Annexure R-2 was based on the relevant orders of the Government and, hence, the O.A being devoid of merit may be dismissed.
23. The respondents also brought to forth in this reply statement certain details mentioned in the DoP&T O.M.No.3/19/2009 Estt.Pay-II dated 08.11.2010 produced by the applicant at Annexure A-13 and also by them in reply statement at Annexure R-4. Since main details of the O.M have already been indicated earlier in this order, they are not being repeated. The respondents took the contention that the O.M clearly indicates that for pre 2006 retirees rank pay is included as a part of pay but for post 2006 retirees, the Military Service Pay is not reckoned in the pre retirement pay for the purpose of pay fixation on re-employment. However, for pension purposes the reckonable emoluments are Basic Pay, Grade Pay, Military Service Pay and NPA, wherever admissible. Hence, their contention was that the Military Service Pay is not taken into consideration for the purpose of pay fixation on re-employment. They contended that Military Service Pay is not a component for pay -35- fixation irrespective of the status of re-employed Ex-Serviceman, being a pensioner or non pensioner. In addition to the O.M at Annexure R-4/Annexure A-13, it was submitted that the DoP&T, vide another O.M.No.3/19/2009-Estt.(Pay II) dated 05.04.2010 (produced at Annexure R-5 by the respondents) had clarified at paragraph 3 (iii) in relation to treatment of Military Service Pay as follows :
" Military Service Pay is granted to Defence Forces officers/personnel while they are serving in the Defence Forces. Accordingly, on their reemployment in civilian organizations, including secret organizations under the Cabinet Secretariat umbrella, the question of grant of Military Service Pay to such officers/personnel does not arise. However, the benefit of Military Service Pay given to all retired Defence Forces officers/personnel by reckoning it at the time of calculation of their pension (notionally in the case of pre 01.01.2006 pensioners) should not be withdrawn. Accordingly, while the pension of such reemployed pensioners will include the element of Military Service Pay, they will not be granted Military Service Pay while working in civilian organizations."
24. The above O.M issued on 05.04.2010 was in relation to the applicability of CCS (RP) Rules, 2008 to persons re-employed in Government Service after retirement, whose pay is debitable to Civil Estimates. In its first paragraph, it had indicated that the pay fixation of re-employed pensioners on re-employment in Central Government, -36- including that of Defence Forces personnel/officers, was being done in accordance with CCS (Fixation of pay of Re-employed Pensioners) Orders, 1986 issued vide the DoP&T O.M.No.3/1/85-Estt.(Pay II) dated 31.07.1986 (as revised from time to time). This O.M revised the paragraph 4(a) of the said 1986 orders to read as "Re-employed pensioners shall be allowed to draw pay only in the prescribed pay scale/pay structure of the post in which they are re-employed. No protection of the scales of pay/pay structure of the post held by them prior to retirement shall be given." Further to these contentions, the respondents also submitted that the applicant has relied on fixations in few other departments under the 1 st respondent, Union of India, Ministry of Defence. This was done due to the ignorance of the stand taken by the Government in the matter. The Principal Controller of Defence Accounts (Navy) had verified the matter in detail. Based on Government directives in Annexure R-4, Principal Controller of Defence Accounts (Navy) Mumbai had directed that all similar cases in respect of Ex- Servicemen re-employed in the units under Navy where pay fixation has been granted as being claimed by the applicant herein, had to be reviewed. Necessary instructions were issued to all the units/establishments under the jurisdiction of the respective audit -37- authority. It is submitted that Annexure R-4/Annexure A-13 also substantiates the point in relation to taking into account the Military Service Pay in the matter of pay fixation. Hence, the references given by the applicant are not relevant in the context of the present case. It was reiterated that the initial fixation of the pay of the applicant incorporating Military Service Pay in it had been done erroneously. This was later corrected as per the directives of the Principal Controller of Defence Accounts at Annexure R-2/Annexure A-12.
25. In other words, the respondents have contended in their reply statement that the Military Service Pay is a special pay, which is granted to the Defence Forces officers/personnel while in service. It is not counted in the calculation of pre-retirement pay for the purposes of pay fixation on re-employment, but it may be included in the estimation of pay for pension purposes as noted earlier. It is contended that the applicant, who had not even put in 'pensionable service', is not entitled to Military Service Pay for pay fixation in the re-employed post. An erroneous pay fixation granted in other organizations cannot be said to be binding on the respondents, who are only to be guided by the Government Orders in force which are applicable to them. The -38- respondents have contended that no Government O.M or Order, either of the DoP&T or the Ministry of Defence, has specified the reckoning of Military Service Pay for pay fixation in a re-employed post for re- employed Ex-Serviceman. The Annexure A-22 report of the Committee being relied upon by the applicant is not a Government Order but just a proposal which, at the time of filing the reply statement, had not been considered by the Government. The respondents state that it is pertinent to note that it is routine for Government to constitute bodies for analysis of various issues, pertaining to Government policies. However, such Committee Reports have to be considered at various levels of the Government and then an order to the effect has to be issued. Since there are no specific Government Orders based on the contention of the applicant at present, all the averments of the applicant are liable to be rejected.
26. The respondents submit that it is also to be noted that the applicant's pay had been protected, excluding the Military Service Pay (at least, this is the position taken in the first reply statement). Further, the respondents also submit (this contention was withdrawn later by a subsequent additional reply statement) "in comparison to a direct -39- recruitment candidate the applicant is drawing a much higher pay and even higher than his seniors who have put in years of service in the cadre by virtue of protection of his last pay drawn." An illustration to establish this contention is brought out by them in the reply statement as follows :
Revised pay of the applicant in the reemployed post (Chargeman) Pay in the Pay Band - Rs.13630/-
Grade Pay - Rs.4200/- DA as on 01.01.2006 (119%) of (a) + (b) - Rs.21217/- HRA & TA - as admissible Total - Rs.39047/-
Entry pay of a direct recruitment candidate in the same post Pay in the Pay Band - Rs.9300/-
Grade Pay - Rs.4200/- DA as on 01.01.2006 (119%) of (a) + (b) - Rs.16065/- HRA & TA - as admissible Total - Rs.29565/-
27. However, as mentioned earlier, the above contention in relation to comparison between a Chargeman appointed through 'direct recruitment' vis-a-vis the applicant was later withdrawn by an additional reply statement. In any case, the reply statement basically tries to establish the position that the applicant is not eligible for the counting of his Military Service Pay in his pay fixation in the re-employed post and the earlier pay fixation erroneously ordered, was liable to be changed and recovery made from pay already drawn.-40-
28. Consequent to the reply statement filed on 10.02.2017 a rejoinder was filed by the applicant on 22.05.2017. The applicant once again reiterated his contention that all the orders of the DoP&T, such as the Annexure R-4 order dated 08.11.2010 produced by him at Annexure A-13 in the O.A, in their very subject deal with "fixation of pay of re-employed pensioners - treatment of Military Service Pay". He reiterated that, being a non pensioner, these DoP&T O.Ms are not applicable as far as he is concerned. Further, in his option certificate at Annexure A-6, he had clearly scored off the word 'pension' to indicate that he was not receiving any pension. Hence, by Annexure A-6 it is established that he is a non pensioner. This was further reaffirmed by the Annexure A-9 letter of the Principal Controller of Defence Accounts dated 07.11.2014, which had verified his military service and classified him as non pensioner. Thus, there can be no doubt to his status as a non pensioner. It was also submitted that an understanding of the true purpose for deduction of Military Service Pay indicated in Annexure R-4 would clarify the issue. The applicant submitted that as far as Ex-Servicemen pensioners are concerned, the Military Service Pay is being already included as part of their basic pay for calculation of pension. Thus for these pensioners (if they are re-employed) a -41- further inclusion of Military Service Pay in the re-employed pay would result in duplication or a double counting of the military benefit and would amount to unjust enrichment. Hence, what Annexure R-4/Annexure A-13 does is to simply avoid such a situation. However, this situation is not applicable to his case because he is a re-employed Ex-Serviceman without pension. Since he does not receive any pension, he has not received any amount as an element of Military Service Pay in violation of Annexure R-4. It is thus ridiculous to suggest that he is not eligible for his previous Military Service Pay to be taken into account for his pay fixation.
29. It is submitted by the applicant in his rejoinder that, vide Annexure A-10 and Annexure A-11 pay fixation proforma dated 15.06.2015 and 01.10.2015, his last drawn basic component of military service was protected in his basic pay when the fixation of pay was done on re-
employment. At that time the Principal Controller of Defence Accounts and the Southern Naval Command had clearly approved and accepted the counting of his military service benefits and had protected his basic pay as Rs.15630/-. Subsequently, by the Annexure A-15 communication dated 11.05.2016, the Naval Aircraft Yard, Kochi relying on the -42- Principal Controller of Defence Accounts letter dated 22.03.2016 informed him that the Military Service Pay and X Pay are not to be taken into consideration for fixation of his pay on re-employment and that, therefore, his salary is to be refixed. It is to be noted that this letter dated 22.03.2016 (Annexure R-2) has again in its subject line stated that it is with respect to 'fixation of pay of reemployed pensioners'. It is only indicated in the letter that the DoP&T had directed a review of the cases where Military Service Pay had been taken into account while fixing the pay of re-employed pensioners. The applicant submits that it is only under a wrong impression that he is also a re-employed pensioner that the Area Accounts Officer (Navy) had requested to review his pay fixation. It is a grave error that the matter had been reviewed and not only the benefit of Military Service Pay but also the benefit of X Pay was recovered even without any indication to that effect in Annexure R-2. He was also not given an opportunity to be heard or to contest this contention.
30. Further, the applicant contends that the reliance on the Annexure R-5 DoP&T O.M dated 05.04.2010, to establish that the applicant is not entitled to Military Service Pay by citing paragraph 3(iii) dealing with -43- 'treatment of Military Service Pay' to reach a conclusion that the grant of Military Service Pay does not arise on re-employment in civilian organizations is also misplaced. This O.M reiterates, as can be seen in the last portion of the paragraph, that the benefit of Military Service Pay is being denied to re-employed pensioners on fixing their salary, solely because the pension of such re-employed pensioners already included the element of Military Service Pay. For a non-pensioner like him, clearly and admittedly the benefit of Military Service Pay cannot be denied since he is entitled to get all components of his military pay protected. The introductory paragraph in Annexure R-5 also states that the pay fixation of pensioners is to be reconsidered and in the tabulated comparison, every specific comparison is done with respect to pensioners. The applicant submits that he has again and again reiterated in the O.A that he is a non pensioner and there is no question of any of these provisions being extended to him. Further it is contended that the respondents are confusing the status of the applicant with that of pensioners. It is submitted that in D.S.Nakara vs. Union of India, AIR 1983 SC 130, the Hon'ble Apex Court had clearly illustrated that the expression 'pensioner' is to be generally understood to mean 'a person retired on superannuation and in receipt of pension'. Thus, it cannot be presumed -44- or assumed by any stretch of imagination that the definition of pensioner includes a non pensioner also. The term 'non-pensioner' should be understood in contradistinction to the term 'pensioner' and a scheme intended for pensioners cannot be invoked in the case of a non pensioner. The respondents are denying him the benefit of last pay drawn unlike what is envisaged under Rule 19 of the CCS (Pension) Rules, even after recovering his retirement gratuity and service gratuity with interest by treating him as a pensioner. They know very well that as a non pensioner he is entitled to get the whole military pay protected on re-employment.
31. After this, the first of the additional reply statements was filed by the respondents on 26.07.2017 in response to the rejoinder. To the applicant's contention that the respondents have been confusing or hiding the fact that he is an Ex-Serviceman non pensioner, the respondents submitted that there is no such confusions as is evident from the reply statement. The short question that has arisen for consideration is only whether the directives contained in Annexure R-4/Annexure A-13 are to be applied in the case of the applicant or not. In this regard the respondents submit that another DoP&T O.M., No.3/3/2016-Estt.(Pay-II) -45- dated 01.05.2017, has further ratified the position taken at Annexure R-4. It has been specifically stated that the decision indicated earlier will cover all Government servants re-employed in Central Civil Departments other than those employed on contract except where the contract provides otherwise, whether they have retired with or without a pension and/or gratuity or any other retirement benefits e.g., contributory fund etc., from a civil post or from the Armed Forces. A copy of this O.M has been produced along with the additional reply statement at Annexure R-6. In this O.M dated 01.05.2017, at paragraph 8(ii) it has been clarified that MSP is granted to Defence Forces officers/personnel while serving in the Defence Forces. Accordingly, on their re-employment in civilian organizations, including secret organizations under the Cabinet Secretariat umbrella, the question of grant of MSP to such officers/personnel does not arise. However, it is reiterated that benefit of MSP taken into account while calculating basic pay for the pension should not be withdrawn.
32. It is submitted that the above O.M dated 01.05.2017, which was issued in relation to the Central Civil Services (Revised Pay) Rules, 2016 on the implementation of the 7 th Central Pay Commission (CPC) -46- recommendations has clearly indicated that there was no question of giving any Military Service Pay on re-employment of Defence Forces officers/personnel in civilian organizations. Further, it is again submitted that the applicant's claim cannot be acceded to in the absence of any other relevant Government orders to that effect. It is reiterated that there exists no specific order for reckoning Military Service Pay in pay fixation on re-employment, produced by the applicant. Further, it is submitted that the recommendations of the 7 th CPC are relevant as it is quite evident that no separate recommendations have been made by the CPC for reckoning of Military Service Pay in pay fixation of re- employed Ex-Serviceman. Given this position, it is clear that there was no ground for reckoning Military Service Pay in the pay fixation of the applicant on re-employment. It is submitted that the Annexure R-6 O.M is binding on the applicant and that there is no provision for any alternate interpretation in the absence of a specific Government order. The Pay fixation of serving defence personnel pursuant to 7 th CPC also indicates that the pay to be counted is only the Basic Pay (pay in the Pay Band) + Grade Pay. It does not include any other special pay like X Pay or Military Service Pay.
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33. After the above additional reply statement was filed on 25.07.2017, there was some sort of quietus in the matter in the sense that no more affidavits were filed by either side till an affidavit was filed by the respondents almost 3 years later on 07.01.2020. This affidavit was filed in response to an interim direction of this Tribunal on 28.11.2019 asking for details in relation to the amount remitted by the applicant to the authorities while considering counting of his 10 year military service for the purpose of civil pension under the rule on re-employment. A 'clarification' was given in the affidavit filed by the respondents that under Rule 19 of the CCS (Pension) Rules, 1972, a copy of which was enclosed by them as Annexure R-7, an Ex-Serviceman was entitled to get his previous military service counted as qualifying service on his re- employment and that in such a case, he was bound to refund the pension, if any, drawn by him along with the retirement gratuity including service gratuity. Hence, it was indicated that the applicant had refunded the service gratuity and Death Cum Retirement Gratuity (DCRG) amounting to Rs.423378/- along with interest of Rs.123295/- (total Rs.546673/-) through MRO.
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34. Soon after the above affidavit was filed, another rejoinder was filed by the applicant on 16.03.2020. This mainly reinforced the contentions made in the O.A and the earlier rejoinder. The applicant reiterated that he was a non pensioner who had received only the terminal benefits upon retirement. He submitted that it is evident that before exercising the option under Rule 19, initially his basic pay when he joined as Chargeman (Air Engineering) on August 2009 was fixed at Rs.9300/-. Later, after remitting Rs.546673/-, his basic pay was fixed at Rs.15630/-. This was again later reduced to Rs.12230/-. He submitted that this cannot be the intent or purpose of the Rule 19 of CCS (Pension) Rules, 1972 which granted protection of military service on re-employment in civil service. It cannot be used for the purpose of recovering the service gratuity earned and reducing the entry pay. Hence, these actions of the respondents are not correct. The applicant also submitted that there should be no doubt or dispute that the Military Service Pay and X Group Pay were part of the basic components of his military pay when he was discharged and re-employed. He further brought to notice that the 6 th CPC in its report had also recommended that the Military Service Pay will have to be extended to all posts in the Defence Forces upto the level of Brigadier/equivalent. In -49- paragraph 2.3.12 the 6th Central Pay Commission had recommended that the Military Service Pay should be reckoned for the purpose of fixation of pay and pension. It was also recommended at paragraph 2.1.13 that the Military Service Pay should count as pay for all purposes except for computing the annual increments. It is submitted that these recommendations had been accepted by the Government, except in the case of Major Generals and Lieutenant General, by resolution dated 30.08.2008. A copy of the relevant extract of the resolution passed by the Ministry of Defence dated 30.08.2008 was produced by the applicant at Annexure A-25 along with the additional rejoinder. Hence, on invoking the option under Rule 19 and on returning the service gratuity along with interest, it is contended that he is entitled to get all the basic components of the military pay protected on re- employment.
35. An additional reply statement was then filed by the respondents on 30.09.2020 in response to this additional rejoinder reiterating the same position that had been indicated earlier especially with reference to the Annexure R-6 DoP&T OM dated 01.05.2017. It was stated that the Military Service Pay had been unambiguously defined in this O.M. The -50- O.M had indicated that "MSP is granted to Defence Forces officers/personnel while they are serving in the Defence Forces. Accordingly, on their reemployment in civilian organizations, including secret organizations under the Cabinet Secretariat umbrella the question of grant of MSP to such officers/personnel does not arise." The amount of Rs.546673/- refunded by the applicant was only for the purpose of counting his past service in the new re-employed post, which was done appropriately by the respondents. Further, the Sub Para (I) of Annexure R-4 also had specified that the pre-retirement pay for those who retired after 01.01.2006, comprised of the pay in the Pay Band plus Grade Pay, inclusive of Non Practicing Allowance, if any, last drawn before retirement. However, MSP was not applicable in the said case. The Last Pay Certificate which was issued by the Naval Pay Officer, Mumbai showed that his Basic Pay was Rs.12230/- + Grade Pay Rs.4200/-. The applicant was re-employed as Chargeman in the Pay Band of Rs.9300- 34800 with Grade Pay of Rs.4200/- on 10.08.2009 and after counting his former military service like MSP etc., his pay was refixed at Rs.15630/- + Grade Pay Rs.4200/- with retrospective effect from 10.08.2009 vide NAY CE List No.149/2015. Hence, the arrears of pay amounting to Rs.843471/- was paid to him. Later, however, as per rules, salary was -51- revised and refixed from Rs.15630/- + Grade Pay Rs.4200/- to Rs.12230/- + Grade Pay Rs.4200/-, which was the last basic pay and Grade Pay drawn by him while being relieved from his military service. It is reiterated by the respondents that the last pay drawn shall be as per definition of pre-retirement pay in terms of Clause 3 of the CCS (Fixation of Pay of Reemployed Pensioners) Orders 1986 (the 1986 Orders) read with Annexure R-4. Further, after his option was received and his military service got counted in full, he was converted from being covered under the New Pension Scheme to being covered under the CCS (Pension) Rules, 1972.
36. After filing of the above additional reply, there was another period of quietus in the case until there was another flurry of filings of statements during the last few months. Learned counsel for the applicant on 06.07.2023 produced a copy of an Office Order dated 29.09.2014 issued by the Assistant Director (Establishment), Subsidiary Intelligence Bureau, Ministry of Home Affairs, Government of India in the matter of one Shri.Deviprasad Vasudevan, ACIO-II/G which indicated the counting of Military Service Pay as part of Basic Pay for fixing pay when the officer joined the service of the Intelligence Bureau after military -52- service. After this and also after hearing both sides on various occasions in the June-July, 2023 period, the matter was reserved by this Bench for orders on 03.07.2023. At that stage learned Senior Panel Counsel (SPC) for the respondents Shri.Thomas Mathew Nellimoottil filed a Memorandum with the Registry of this Tribunal enclosing further additional documents. He also separately filed some detailed argument notes. The matter was called before the Bench on 10.07.2023 and was again reserved for orders. Since some additional documents have been produced by the learned SPC it was again decided to list the matter on 04.08.2023 'for being spoken to'. At that time both sides were heard in part and it was decided to hold further hearings. Learned counsel for the respondents then filed a M.A.No.180/766/2023 on 04.09.2023 to accept another additional reply. The M.A to accept the additional reply was allowed and the applicant was granted a further 10 days time to file a rejoinder to the additional reply, if deemed necessary. The applicant filed an additional rejoinder on 18.09.2023. The matter, after being heard once again in detail on few other occasions, was then finally reserved for orders only on 06.11.2023.
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37. It is to be noted that the filing of the last additional reply statement by the learned SPC for the respondents in August, 2023 enclosing the documents from Annexure R-8 to Annexure R-18 for the first time brought out some new elements in the matter for consideration. In response to this, learned counsel for the applicant, Shri.S.Radhakrishnan also filed a detailed additional rejoinder on 18.09.2023. Learned counsel put forth certain objections to the filing of the additional reply statement on various grounds. These contentions in regard to filing of such new contentions by the respondents will be taken up later for consideration. We note that in the additional reply statement filed in August, 2023 (filed on 25.08.2023) it had been at the outset submitted that the same has been filed in order to elaborate the prior reply statements filed and to clarify on certain submissions therein. With regard to paragraph 3 of the original reply statement dated 09.02.2017, which was referred to earlier in this order, it had been submitted in the reply statement that the matter pertaining to protection of pay for fixation of initial pay of re-employed pensioner (Ex-Serviceman) had been referred to the DoP&T. The DoP&T had advised that the instructions issued vide the DoP&T O.M dated 31.07.1986 regulates pay fixation on re-employment of pensioners including Ex-Serviceman in Central Civil Services and posts. The same -54- paragraph in the original reply statement has also made the point that the appointment order issued to the applicant had categorically mentioned that an Ex-Serviceman on re-employment was eligible only for the entry pay attached to the post to which he is appointed through direct recruitment. Hence, unlike what is being argued before this Tribunal by counsel for the applicant during the course of hearing, it is contended in this additional reply statement dated 25.08.2023 that the applicability of the CCS (Fixation of Pay of Reemployed Pensioners) Orders, 1986 to the facts of this case has been consistently stated by the respondents right from the beginning. However, a copy of the 1986 Orders is produced in the additional reply statement at Annexure R-8 for the first time.
38. It is reiterated in the additional reply statement filed on 25.08.2023 that these Orders of 1986 govern the fixation of pay of re-employed pensioners. On the other hand, the CCS (Pension) Rules, 1972 are only concerned with the sanction and disbursal of pension on culmination of civilian service. The said Rules have no applicability to mode of fixation of pay on entry into such service. The respondents made another important submission in their reply statement filed on 25.08.2023. They -55- submitted that the description of the applicant as a 'non pensioner' in various documents issued by them or by the Navy and also by virtue of refund of his gratuity in terms of Rule 19 of the CCS (Pension) Rules, 1972 was only for the specific purpose of establishing his entitlement for qualifying service under the CCS (Pension) Rules, 1972. The same latitude cannot be transposed on the applicant in the context of his pay fixation under the CCS (Fixation of Pay of Reemployed Pensioners) Orders, 1986 (the 1986 Orders). This is particularly so since what is 'pension' has been specifically defined in the 1986 Orders. Further, the 'applicability' and 'manner of fixation' are clearly stated in the said Order. In these circumstances, it was submitted that submissions unrelated to the issue, if any, in the prior reply statement may be ignored. It was further submitted that the submission made by the respondents earlier that by virtue of being an Ex-Serviceman without pension, he is entitled to pay protection stands withdrawn as not reflective of the correct legal position. Further, the comparison drawn of the pay received by the applicant with a direct recruit in the reply statement should also be treated as expunged.
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39. The respondents also made another important contention in their additional reply statement received on 25.08.2023. They submitted that "the applicant being disentitled for any protection of pay, the revised fixation of pay at Annexure R-3 is also liable to be modified in course." Further it was submitted that the remaining submissions made in the earlier reply statements are only narrations of fact and may be read as part of the consolidated reply to the O.A. It was submitted that the applicant is clearly a 'pensioner' in the context of the CCS (Fixation of Pay of Reemployed Pensioners) Orders, 1986. By virtue of Clause 4(a) and (b) of the Order he was entitled to 'no protection of the scales of pay of the post held by them prior' and his 'initial pay on re-employment shall be fixed at the minimum of the scale of pay of the re-employed post'. These submissions will be discussed in greater detail in subsequent paragraphs.
40. It is submitted by the respondents in their additional reply statement that the applicant has been contending that he being a non pensioner, the 1986 Orders as amended along with the various O.Ms relied upon to deny the benefit of the counting of Military Service Pay in the refixation of pay, do not apply. The respondents, however, point out -57- that indisputably the applicant was in receipt of gratuity on release from the defence service (Navy). He had refunded the said gratuity as envisaged in the provisions of Rule 19 of the CCS (Pension) Rules, 1972. It is pointed out that Rule 19 of the said Rules is within the chapter heading 'Qualifying Service' and spells out the requirements for counting of military service rendered before civil employment. Under this Rule, which has been quoted in full earlier in this order, the official has a choice. On the one hand he continues to draw the military pension or retains gratuity received on discharge from military service and forfeits reckoning of his former military service towards qualifying service. Alternatively, he ceases to draw his pension/refunds gratuity for the purpose of counting of previous service. Rule 19 evidently thus does not deal with the question of fixation of pay on re-employment of pensioners but rather states the conditions for reckoning of previous service for computation of qualifying service for civil pension. It is also relevant to note that the option which is envisaged under Rule 19, is exercisable only on the confirmation in civil service. The option is, thus, something that is given to the employee after some time of his re- employment, whereas, the 'character' of being a 'pensioner' for the purpose of fixation of pay under the 1986 Orders, is one attained -58- immediately after release from military service and re-employment in the civilian service. Hence, while Annexure A-9 is a certification relied upon by the applicant to underline that he is a 'non pensioner' and not affected by the 1986 Orders or other O.Ms it is actually as shown in its title only a certificate of 'verification of military service', which expressly states that the information therein is provided for the purpose of counting of War/Military Service towards civil pension. Hence, the Annexure A-9 document is not one generated for the purpose of fixation of pay on re- employment but is one relevant only for determination of qualifying service. The respondents have submitted, therefore, that the Rule 19 of the CCS (Pension) Rules, 1972 and the 1986 Orders have different purposes. They underline the contention that the Pension Rules are only to be referred to in this matter in relation to counting of the applicant's former military service as qualifying service for civil pension and for nothing else, as in relation to the matter of pay fixation.
41. The additional reply statement then proceeds to make the point that the CCS (Fixation of Pay of Reemployed Pensioners) Orders, 1986, as amended, completely governs the fixation of pay of re-employed persons such as the applicant. The relevant provisions of this order issued under -59- DoP&T's O.M dated 31.07.1986 enables a clear understanding of how its provisions apply in the case of the applicant. The additional reply statement then brings out certain relevant provisions of the 1986 Order, a copy of which is produced by the respondents at Annexure R-8. They point out that Clause 2(1) provides that these Orders will apply to all persons who are re-employed in civil services and posts in connection with the affairs of the Union Government after retirement on pension, gratuity and/or contributory Provident Fund benefits from the services of the Union Government including Defence Services. Further, under Clause 2(4), which is an exclusionary clause, it is stated that the orders shall not apply to persons re-employed after resignation, removal or dismissal, provided they have not received any retirement terminal benefits for the pre-employed service. It is submitted that pay fixation under the 1986 Order is fully applicable in the case of the applicant since he had received the retirement terminal benefits like gratuity at the time of retirement. As such, he is covered under the application clause and not excluded under the exemption. It is pointed out that the applicant having retired on gratuity and having received such gratuity at the point of retirement, falls within this provision. Further, the refund of gratuity so received for the purpose of reckoning military service as qualifying -60- service for pension under Rule 19 of the Pension Rules is an act independent of the 1986 Order. This act of refunding does not disqualify the applicant from falling within the ambit of this Order. It is contended that the prescription of receipt of gratuity in the 1986 Order having been fully complied with before such refund, the applicant is fully governed by the 1986 Order.
42. Further, the 1986 Order at Clause 3 (1) has provided that unless the context otherwise requires "'Pension' means the gross monthly pension and/or pension equivalent of DCRG and/or pension equivalent of gratuity or Government's contribution to Contributory Provident Fund and/or other retirement benefits, if any, payable under the CCS (Pension) Rules, 1972 or the relevant rules of the Government or body under which the reemployed pensioner is serving prior to his retirement. Where pension has been commuted partly or fully, pension means the gross pension payable prior to commutation." Under this definition of pension, the receipt of gratuity clearly makes the applicant to be considered as a 'pensioner', notwithstanding his refund of the gratuity under Rule 19 of the Pension Rules.
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43. In addition to the above, Clause 4 of the 1986 Order is in relation to fixation of pay of re-employed pensioners. This clause is important in consideration of this matter. The Clause 4 of the CCS (Fixation of Pay of Re-employed Pensioners) Order 1986 reads as follows : (this extract is from O.A.No.180/192/2015 and connected cases pronounced by a Full Bench of this Tribunal on 27.03.2019 as it seems to have incorporated all the latest amendments. The said Order is produced by the respondents as Annexure R-12 along with the additional reply statement filed on 25.08.2023).
"4. Fixation of pay of re-employed pensioners -
(a). Re-employed pensioners shall be allowed to draw pay only in the Level in the revised pay structure applicable to the post in which they are re-employed. No protection of the scales of pay/pay structure of the post held by them prior to retirement shall be given.
Note.- Revised pay structure in relation to a post will be as defined in Rule 3(ix) of the Central Civil Services (Revised Pay) Rules, 2016.
(b)(i) In all cases where the pension is fully ignored, the initial pay on re-employment shall be fixed as per Rule 8 of the Central Civil Services (Revised Pay) Rules, 2016. Note 1.-The case where pension is fully ignored is given in Order 4(d) below.
-62-Note 2.- Pension is fully ignored means that pension is not deducted from pay.
(b)(ii) 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. If there is no such stage in the re-employed post, the pay shall be fixed at the stage next above that pay. If the maximum pay in the Level applicable to the post in which a pensioner is re- employed is less than the last Basic Pay drawn by him before retirement, his initial Basic Pay shall be fixed at such maximum pay of the re-employed post. Similarly, if the minimum pay in the Level applicable to the post in which a pensioner is re-employed is more than the last basic pay drawn by him before retirement, his initial Basic Pay shall be fixed at such minimum pay of the re-employed post. However, in all these cases, the nonignorable part of the pension shall be reduced from the pay so fixed."
Note 1.- Revised pay structure in relation to a post will be as defined in Rule 3(ix) of the Central Civil Services (Revised Pay) Rules, 2016.
Note 2.- "Basic Pay" in the revised pay structure means the pay drawn in the prescribed Level in the Pay Matrix. Note 3.- Last Pay drawn shall be as per definition of pre- retirement pay in terms of Order 3 of the CCS (Fixation of Pay of Re-employed Pensioners) Orders, 1986, read with DoP&T O.M.No.3/19/2009-Estt. (Pay II), dated the 8th November, 2010.
(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.
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(d) In the case of persons retiring before attaining the age of 55 years and who are re-employed, pension (including PEG and other forms of retirement benefits) shall be ignored for 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 Commissioned Service Officers belonging to the Defence Forces and Civilian pensioners who held Group 'A' posts at the time of their retirement, the first Rs.15,000 of the pension and pension equivalent retirement benefits shall be ignored."
44. It is clear from the above version of the 1986 Orders (after the 7 th CPC recommendations) that the Clause 4(a) provides that re-employed pensioners shall be allowed to draw pay only in the level or prescribed scales of pay for the posts in which they are re-employed. Further, no protection of the scales of pay/pay structure of the posts held by them prior to retirement shall be given. Further, Clause 4(b)(i) provides that where the pension is fully ignored, the initial pay on re-employment shall be fixed as per Rule 8 of the CCS (Revised Pay) (RP) Rules, 2016. (For the applicant who joined the post on 10.08.2009, it was the CCS (RP) Rules of 2008 which were applicable). Further, under Clause 4 (b) (i), the Note (1) & (2) provide that the cases where pension is fully ignored -64- is given in Clause 4(d) of the Order below. (It is clarified that the pension is fully ignored only means that pension is not deducted from pay.) Further, Clause 4(d)(i) which provides that in the case of persons retiring before attaining the age of 55 years and who are re-employed, pension including pension equivalent of gratuity (PEG) and other forms of retirement benefits shall be ignored for pay fixation to the following extent, ie., in cases 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.
45. In the applicable version of the 1986 Orders provided at Annexure R-8 of the additional reply statement which was in force at the time the applicant joined the post of Chargeman (AE) on 10.08.2009 the provision of Clause 4(b)(i) was different. It provided that in all cases where the pension was fully ignored the initial pay on re-employment shall be fixed at the minimum of the scale of pay of the re-employed post. Further, Clause 4(b)(ii) of this version provided that in the case where the entire pension and pensionary benefits are not ignored for pay -65- fixation, the initial pay on re-employment shall be fixed at the same stage as the last pay drawn before retirement. It is submitted by the respondents that in the case of the applicant, it is Clause 4(b)(i) that is applicable ie., where his pension was fully ignored (not deducted from pay) and thus, the initial pay has to be fixed at the minimum of the scale of pay of the re-employed post. It is for this reason, perhaps, that an assertion is made in the additional reply statement that the revised scale of pay which was issued by the Pay Fixation Proforma produced in the first reply statement at Annexure R-3, which had protected the pay in the Pay Band as drawn at the time of the applicant's discharge as well as the X Group Pay, amounting to Rs.13630/- with applicable Grade Pay of Rs.4200/- would also have to be now modified. In other words, it appears that the respondents are contending at this point that the applicant's pay has to be refixed at Rs.9300/-, pay at the minimum of the Pay Band-II (Rs.9300-34800) with applicable Grade Pay of Rs.4200/-. Further, it is submitted that ignoring of pension and retirement benefits (non deduction from pay) is solely dependent as per the applicable Clause 4(d) of the 1986 Order as to whether the applicant was a commissioned officer or otherwise and is not subject to an option exercised by him. Thus, it is submitted that the 1986 Order at Annexure -66- R-8 is fully applicable to the case of the applicant. The applicant has not put forth an alternate provision of law which is applicable for pay fixation. In such a situation he will have to be treated as a direct recruit in the re-employed post and his pay has to be fixed accordingly.
46. In addition, the respondents point out in the additional reply statement that the DoP&T O.M dated 05.04.2010 produced at Annexure R-5 in the reply statement clarifies at in its first paragraph itself that the pay fixation of re-employed pensioners on re-employment in Central Government, including that of Defence Force personnel/officers is being done in accordance with the 1986 Orders. This O.M had been issued to amend various provisions of the 1986 Orders in order to synchronize it with the revised pay structure brought about after the 6 th CPC and with the CCS (Revised Pay) Rules, 2008. It brought in an amendment to paragraph 4(b)(i) to read thus : "In all cases where the pension is fully ignored, the initial pay on reemployment shall be fixed as per entry pay in the revised pay structure of the reemployed post applicable in the case of direct recruits appointed on or after 01.01.2006 as notified vide Section II, Part A of First Schedule to CCS (Revised Pay) Rules, 2008". The same O.M also went on to clarify regarding the whole concept and -67- treatment of Military Service Pay, which we have already noted and is not being repeated here. In addition, it is submitted that another DoP&T O.M dated 08.11.2010 produced at Annexure R-4 with the reply statement on fixation of pay of re-employed pensioners, referring to an instruction issued by the Ministry of Defence dated 24.07.2009 has also clarified that "......for post 2006 retirees the Military Service Pay is not reckoned in the pre-retirement pay for the purpose of pay fixation on reemployment. However, for pension purposes the reckonable emoluments are Basic Pay + Grade Pay + Military Service Pay + NPA wherever admissible." It is submitted that it thus follows that in the case of the applicant herein, where the pension is completely ignored ie., not deducted from pay, the eligible pay will have to be fixed as the entry pay in the re-employed post, which will have no element of Military Service Pay in it. Further, the O.M having specifically excluded Military Service Pay in the determination of pay in civilian organizations, the case of the applicant for inclusion cannot be considered. It is further submitted that the DoP&T O.M dated 01.05.2017 issued after the 7 th CPC, which was brought out as Annexure R-6 in the earlier additional reply statement, only reiterated the above position in relation to the Military Service Pay and that its applicability ceases with their re-employment in civilian -68- organizations. It is only protected in the pension. It only stated that the benefit of the element of Military Service Pay in pension should not be withdrawn. Thus, pursuant to the 7 th CPC as well, the pay fixation of re- employed Ex-Serviceman personnel does not include the element of Military Service Pay.
47. In addition, it is submitted that with reference to the reliance of the applicant to the annexure A-1 to the Resolution dated 30.08.2008, produced by him in his additional rejoinder as Annexure A-25, it is to be noted that this resolution solely governs matters relating to the emoluments, allowances and conditions of service of Armed Forces Personnel to the total exclusion of civilian employees. The applicability of the resolution is stated in the very first paragraph which states that "the Commission submitted its report on 24 th March, 2008. The report covered among other things matters relating to the structure of emoluments, allowances and conditions of service of Armed Forces Personnel....". It was also laid down in the paragraph that the recommendations of the commission in the matters in respect of these categories of defence personnel shall be accepted without any material change. Hence, this resolution has no application to the case of the -69- persons re-employed in civilian service. It is, therefore, reiterated that the re-employed applicant herein is entitled to only the entry pay admissible to direct recruits in the re-employed post and no Military Service Pay shall form part of such entry pay.
48. The respondents have relied on a series of judgments/orders passed by Courts/Tribunals in the additional reply statement. The first reference is to orders passed in the matter of Prithvi Nath Tiwari vs. Union of India & Ors., in O.A.No.277/2014 by the Chandigarh Bench of this Tribunal. It was held at paragraph 10 of the order in this O.A that "From the content of para 4(a), 4(b)(i) and 4(d) as reproduced above, it is quite clear that the applicants who retired after 01.01.2006 and who were reemployed in 2011 are not entitled to protection of their Military Service Pay as claimed by them." A copy of the order has been produced along with the additional reply statement at Annexure R-10. Similarly, in Dharmendra Singh Rana & Ors. vs. The Government of NCT of Delhi & Anr., (W.P.(C) No.4410/2015) of the Hon'ble High Court of Delhi, it was held in paragraph 8 that "in the present case, the material on record shows that the petitioners were non commissioned -70- officers. They were entitled to pay fixation under the relevant rules, ie., that attached to the new civilian post; their right to reckon past service for pay fixation can arise only if provided by the rules. So viewed, the relevant rules are Rule 4(b) and (d)(1), since they are non commissioned employees. Thus, their previous pay and pension has to be ignored." This decision has been produced at Annexure R-11. Further, in relation to a matter of alleged discriminatory treatment in the 1986 Orders between the non commissioned officers and commissioned officers in the matter of pay fixation, a Full Bench of this very Tribunal had held in paragraph 13 in the matter of Manichandra Kumar & Ors. vs. Union of India & Ors., O.A.No.192/2015 and connected cases, as follows :
"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, -71- 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 ExServicemen (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."
49. In addition to this, in the matter of Union of India & Ors. vs. Anil Prasad, (2022 Live Law (SC) 513) answering the question whether on re-employment in the Government service, an employee who was serving in the Indian Army in the Armed Forces shall be entitled to his pay scales at par with his last pay drawn pay, the Hon'ble Supreme Court held that after examination of the paragraph 8 of the 1986 Orders which relates to 'Emergency Commissioned Officers and Short Service Commissioned Officers' that the High Court had committed a grave error in observing and holding that the retired Armed Forces personnel on reappointment in -72- the Government service would be entitled to the last drawn pay as Armed Forces personnel. It was also held that the paragraph 8 of the 1986 Orders does not indicate that the pay last drawn by the respondent in the Armed Forces should be the pay to be computed when he joined the civil post. There is no entitlement of pay protection under paragraph 8 of the 1986 Orders. The manner of computation of pay as envisaged under paragraph 8 also clearly stipulates that the pay so arrived at should not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the respondent in the Armed Forces. This does not mean that the respondent is entitled to a pay equal to what was last drawn by him in the Armed Forces. Therefore, a claim for the last drawn pay in the Armed Forces is not a matter of right. It is, therefore, submitted that the principle of the above order makes it very clear that the pay fixation has to be done under the 1986 Orders and that there is no claim for protection of last pay drawn in the context of a Short Service Commissioned officer.
50. It is further submitted in the additional reply statement in relation to the applicant's grievance regarding his X Group Pay being withdrawn, that the applicant being entitled only to the entry pay as applicable to -73- direct recruits, no claim for X Group Pay can survive. Further, the Annexure R-4 O.M dated 08.11.2010 at paragraph 2 has indicated with reference to the instructions issued by the Ministry of Defence that the pre-retirement pay in respect of re-employment taking place on/or after 01.01.2006, means the pay in the Pay Band plus Grade Pay but inclusive of Non Practicing Allowance (NPA) if any, last drawn before retirement. Thus, the pre-retirement pay as defined by the Ministry of Defence does not include the X Group Pay. As such, the applicant who is being re- employed in civilian service does not stand entitled for inclusion of this element in the pre-retirement pay. Further to this, in regard to the submissions made that under Rule 19 (5) of the CCS (Pension) Rules, an order allowing military service to be counted for civil pension shall also be deemed to include condonation of interruption between the military and civil services and the contention that having been discharged from Navy on 30.04.2009 and re-employed on 10.08.2009, he should be granted increment for the period from 01.07.2008 to 30.04.2009 and further that even if that break is not condoned, since he is having 10 months of actual service he is entitled for increment for that period, it is submitted as follows in the additional reply statement at paragraph 41 : -74-
" It is respectfully submitted that Rule 19(5) being part of the Pension Rules, is discussing treatment of interruptions in service for the purpose of determining qualifying service for pension and has no relevance to increments while in service. Further, Rule 10 of the CCS (Revised Pay) Rules, 2008 reads : Date of next increment in the revised pay structure - There will be a uniform date of annual increment viz., 1st July of every year. Employees completing 6 months and above in the revised pay structure as on 1st of July will be eligible to be granted the increment. The applicant would thus be entitled for increment only on the 1st of July of every year and only if he was an employee in service on that date."
51. The respondents have also submitted in the additional reply statement that with reference to the extension of Military Service Pay to a re-employed pensioner in the Intelligence Bureau (the case of Shri.Deviprasad Vasudevan referred to earlier), there cannot be any case made for 'negative equality'. The provisions of law on the subject being clear, the same needs to be complied with. In this connection, they have placed reliance on the decision of the Hon'ble Supreme Court in R.Muthu Kumar vs. The Chairman and Managing Director, TANGEDCO & Ors., Civil Appeal No.1144/2022 arising out of SLP (C) No.19059/2019 along with connected Civil Appeals (2022 Live Law SC 140) produced at Annexure R-14. In this case the Hon'ble Supreme Court had held that "A principle, axiomatic in this country's -75- constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply or be relied upon as a principle of parity or equality." Further to this, as a case in particular, a clarification dated 26.07.2017 was issued by the Employees Provident Fund Organization (EPFO) directing subordinate offices to review the protection of pay allowed to similarly placed Ex- Serviceman at the time of joining service and to initiate necessary action to rectify wrong fixation of pay and allowances. A copy of the clarification dated 26.07.2017 has been produced at Annexure R-15. Further, numerous guidelines/clarifications have been issued in the context of pay fixation of similarly placed Ex-Serviceman, re-employed in Public Sector Banks/Public Sector Insurance Companies/Public Financial Institutions which have reiterated the same legal position as above. Copies of Department of Financial Service Guidelines 4/3/2012- Welfare dated 17.02.2014, Department of Personnel and Training O.M.No.1418309/20-Estt.(Pay-II) dated 08.09.2020 and Department of Financial Service Guidelines 4/4/2021-Welfare dated 03.11.2021 have been produced at Annexure R-16, Annexure R-17 and Annexure R-18 respectively. All these guidelines bring out the point that Military -76- Service Pay is not to be taken into consideration for the purposes of initial fixation of pay on re-employment in civil organizations. Thus, in these circumstances, it is again reiterated that the applicant is only eligible for the entry pay on re-employment and there cannot be a case for interest on delayed payment of arrears etc., as claimed by him.
52. We have, in the course of this order already indicated that the above details had been filed as argument notes after this matter had been reserved for orders. This had then resulted in the matter being listed 'for being spoken to'. During this period, while being heard, the learned SPC for the respondents filed the additional reply statement as detailed above. After this additional reply statement was filed, the applicant was naturally allowed to file an additional rejoinder, which he did on 18.09.2023. In the additional rejoinder, the applicant, at the outset, reiterated the same contentions that were made by him earlier. He pointed out that in the initial reply statement filed on 10.02.2017, it had been clearly admitted by the respondents that the applicant was an Ex- Serviceman without pension and that, in accordance with Rule 19 of the CCS (Pension) Rules, 1972, an Ex-Serviceman was entitled to get his previous pay protected and that in such case, he is bound to refund the -77- pension, if any, already drawn and the amount of retirement gratuity including service gratuity. The applicant also pointed out that the Annexure R-1 issued by the HQSNC, countersigned by the Naval Pay Officer, Pay Accounts Office stated that he was a non pensioner and invoking Rule 19 of the Pension Rules, he had been granted protection of basic pay including Military Service Pay and X Group Pay. The only objection raised by the respondents was that, subsequently, it was clarified that for 'Ex-Serviceman pensioners', on re-employment in civil service, the MSP cannot be reckoned as part of Basic Pay, since it is already reckoned in the pension. On this premise in the reply statement, the applicant had filed his first rejoinder on 25.07.2017. Subsequently the first additional reply statement was filed on 25.07.2017 reiterating the same contention. Following this an affidavit was also filed on 07.01.2020 again reiterating the same contention that as per Rule 19 of the CCS (Pension) Rules, an Ex-Serviceman is entitled to get his previous military service reckoned on his re-employment.
53. The applicant points out that it was on this premise that the O.A was heard on different dates. There were no further arguments or any other issues which was brought forward by the respondents. On -78- 27.06.2023 after the matter was heard in part, learned counsel for the respondents had sought time for further hearing. It was heard on 03.07.2023, and on that date the Tribunal had reserved the case for orders. It was at this stage when the matter was reserved that an argument note was filed taking up contentions contrary to the stand taken in the reply statement. Further, certain documents were also produced illustrating pay fixation of pensioners on re-employment. The applicant submits that at this stage when the matter had come up for being spoken to, this Tribunal had observed that the respondents cannot take contentions contrary to the stand taken in the reply statement. It was then that the respondents filed the additional reply statement on 25.08.2023. They have taken up contentions which are contradictory and repugnant to the stand taken in the earlier reply statement, additional reply statement and affidavit. It is submitted that the respondents cannot be permitted to take up contradictory or repugnant contentions against the clear judicial admissions made in the earlier reply statements. Such admissions are binding on them and they are estopped from modifying the earlier contentions made in the same proceedings.
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54. The applicant has brought out a series of decisions of the Hon'ble Supreme Court underlining the above legal position in his additional rejoinder. These decisions are as follows :
(A) Modi Spinning & Weaving Mills Co. Ltd. vs. Ladha Ram & Co., (1976) 4 SCC 320 wherein it had been observed by the Hon'ble Supreme Court that "9. .......inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants....".
(B) Steel Authority of India Ltd. (SAIL) vs. Union of India, (2006) 12 SCC 233 wherein it was found that "28. ....To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication." In this case -80- the Hon'ble Supreme Court further concluded that by taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission.
(C) Sarva Shramik Sangh vs. Indian Oil Corporation Ltd., (2009) 11 SCC 609 applying the ratio in SAIL (supra) the Hon'ble Apex Court held that "19. ......The assumption that there is an absolute bar on inconsistent pleas being taken by a party, is also not sound. What is impermissible is taking of an inconsistent plea by way of an amendment thereby denying the other side, the benefit of an admission contained in the earlier pleading. Mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously by a petitioner-plaintiff. But when there is no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law. Similarly, on the same facts, different or alternative reliefs can also be claimed." The Hon'ble Apex Court concluded that "....What was held to be impermissible in SAIL (supra) was raising inconsistent and mutually destructive pleas in the same proceedings....".
-81-(D) Nagindas Ramdas vs. Dalpatram Ichharam, (1974) 1 SCC 242, the Hon'ble Apex Court considered the effect of admissions in pleadings, in the light of Section 58 of Evidence Act and held that "27. ...Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They be themselves can be made the foundation of the rights of the parties....."
(E) Union of India vs. Pramod Gupta, (2005) 12 SCC 1 the Hon'ble Apex Court held that "134. ...Before an amendment can be carried out in terms of Order 6 Rule 17 of the Code of Civil Procedure the court is required to apply its mind on several factors including viz., whether by reason of such amendment the claimant intends to resile from an express admission made by him. In such an event the application for amendment may not be allowed." Further, these principles were followed with -82- approval in Gautam Sarup vs. Leela Jetly, (2008) 7 SCC 85 wherein the Hon'ble Apex Court held that a categorical admission cannot be resiled from by way of an amendment or additional pleadings, but it can only be explained or clarified; but they cannot be mutually destructive of each other.
(F) LIC vs. Sanjeev Builders (P) Ltd., (2022) SCC Online SC 1128, it was held that "Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause prejudice to the other side..."
55. Applying the ratio laid down by the Hon'ble Apex Court in the above cited decisions, it is submitted by the applicant in the additional rejoinder dated 18.09.2023 that the pleadings in this case on the part of the respondents have exhibited inconsistency or incongruency if the pleadings in the original reply statement, additional reply statement and the affidavit is compared with the positions taken in the last additional reply statement filed on 25.08.2023, filed after the hearings and when the -83- orders were reserved. Further the applicant at paragraphs 16 and 17 of the additional rejoinder has brought out a comparison point wise in relation to the assertions in the original statements vis-a-vis the additional reply statement filed on 25.08.2023. He submits that in the original reply statement and affidavit it was asserted by the respondents that his last pay drawn is protected under Rule 19 of the Pension Rules and by Annexure R-1 his Basic Pay + Grade Pay + Military Service Pay + X Pay were protected by the Naval Pay Officer, Mumbai. Further, the applicant is an Ex-Serviceman without pension. It was also asserted that in accordance with Rule 19 of CCS (Pension) Rules, an Ex-Serviceman is entitled to get his previous pay protected. These assertions had been made in paragraph 3 of the reply statement dated 09.02.2017. However, in comparison, in the additional reply statement filed on 25.08.2023 it was stated that by virtue of the applicant being an Ex-Serviceman without pension, he is not entitled to pay protection and the stand taken in the earlier reply statement thus stands withdrawn. Further the comparison drawn of the pay received by the applicant with a direct recruit was to be treated as expunged. The applicant was not entitled to pay protection. In addition, a stand is also taken that the applicant is clearly to be taken as a pensioner and not entitled for the protection of -84- scale of pay of the post held by him prior to his appointment to the re- employed post. His initial pay actually had to be fixed at the minimum of the scale of pay of the reemployed post.
56. It is submitted that the pleadings in the additional reply statement filed on 25.08.2023 after the case was reserved for orders is thus contradictory to the earlier reply statements and affidavit and they are mutually destructive of each other. The original case of the respondents was that the applicant is entitled to get the protection of the last pay drawn as per Rule 19 of the CCS (Pension) Rules on refunding all the retirement benefits drawn by him. Accordingly, he had refunded all the retirement benefits and the protection of last pay drawn was granted. The only case for the respondents was that the last pay drawn would not include the MSP and X Pay. However, now, the stand taken in the additional reply statement filed on 25.08.2023 is that he is not even entitled to get the pay protection under Rule 19 of the CCS (Pension) Rules and his initial pay on re-employment has to be fixed at the minimum of the scale of pay of the re-employed post. There was no such case for the respondents up to the filing of the additional reply statement after the hearing, in any of the documents -85- issued to the applicant or in any of the documents produced by the respondents in the O.A. Thus, the stand taken in the initial series of reply statements and affidavits and the contentions in the last additional reply statement being mutually contradictory and destructive in nature cannot be admissible.
57. It is submitted that the admissions made by the respondents in the original reply statements and the annexures produced by them are clearly 'judicial admissions', and this cannot be denied or negated by a subsequent statement as the applicant is entitled to take the benefit out of these judicial admissions. The contention in the additional reply statement filed on 25.08.2023 cannot alter or change the contentions in the original reply statements/affidavits and cannot be expunged by the respondents in his discretion. The annexures in the additional reply statement filed on 25.08.2023 start at Annexure R-8, which also clearly shows that the respondents are still relying on the earlier reply statements and the same is not withdrawn. It is also true that this cannot be withdrawn based on the ratio taken by the Hon'ble Apex Court in the series of decisions brought out earlier. In addition to the argument made on the basis of the contention that the pleadings made at a later date -86- cannot be contradictory or mutually destructive to earlier statements, the applicant has dealt with the issue of the Annexure R-8 1986 Order, which is now being relied upon by the respondents to justify the pay fixation being proposed 'on merit'. It is pointed out in the additional rejoinder that the 1986 Order is applicable in the case of pay fixation of 're-employed pensioners'. The applicant has again relied on the statement of the Hon'ble Supreme Court in D.S.Nakara (supra) that a pensioner is a person retired on superannuation and is in receipt of pension. He submits that there is no case for the respondents that the applicant is in receipt of a 'pension'.
58. It is submitted by the applicant that the respondents are relying on the definition of 'pension' given in the Annexure R-8 O.M (1986 Order) which includes pension to mean pension equivalent of DCRG or Government's contribution to CPF. It is submitted that this definition of pension for the purpose of the 1986 O.M will not and cannot expand the concept of pensioner and take a different view from what has been established in D.S.Nakara (supra). It is submitted that to state that a person who had received gratuity or contribution to PF without monthly pension is to be termed or described as a pensioner is clearly wrong, -87- illegal and impermissible. It is submitted that the definition given in the 1986 Order should be restricted to the purpose of the said Order. The definition given to the word 'pension' in the 1986 Order cannot be imported to the word 'pensioner' which has not been defined in the said Order. In addition, whatever definition is given to the word 'pensioner' it cannot be against the law laid down by the Constitutional Bench in D.S.Nakara (supra) case. It is also pointed out that even though the word pensioner is liberally used in the 1986 Order, it is not defined, clearly warranting that in such situation, the law laid down in D.S.Nakara (supra) is to be followed under Article 141 of the Constitution of India.
59. It is submitted that even a cursory reading of the 1986 Order/O.M would illustrate that this order deals with the pay fixation of re-employed pensioners. Further, it is to be noted that even the 1986 Order is not denying the protection of last basic pay drawn, for an Ex-Serviceman who is not having any pension or it is not ignored. Almost all the provisions in the 1986 Order deal with pay fixation of pensioners and since the applicant is not a pensioner in the sense that it is declared by the Hon'ble Apex Court, the provisions provided for -88- pensioners cannot be applied in the case of a non pensioner. Further, as far as Annexure R-10 order passed by the Chandigarh Bench of this Tribunal in O.A.No.277/2014 dated 01.05.2015 is concerned, it is evident that it was a case of Ex-Serviceman getting pension on the basis of their military service and therefore it has no application in this case. In addition, Annexure R-11 order passed by the Hon'ble High Court of Delhi in W.P.(C) No.4410/2015 dated 22.01.2018 is also a case where the applicants were given the benefit of past service and pension. Annexure R-12 is the Full Bench decision of this Tribunal wherein it was clarified that classification of military pensioners under Clause 4(b)(i) and (b)(ii) of the 1986 Orders into commissioned officers and non commissioned officers and treating them differently is not arbitrary. It is also a case dealing with Ex-Serviceman drawing pension. Annexure R-13 is a judgment of the Hon'ble Supreme Court considering paragraph 8 of the 1986 Orders which deals with emergency commissioned officers and short service commission officers which states that they should be granted advance increments equal to the completed years of service rendered by them in the Armed Forces on a basic pay (inclusive of deferred pay but excluding other emoluments) equal to or higher than the minimum of the -89- scale attached to the civil post in which they are employed. It also states that the pay so arrived at should not exceed the basic pay last drawn by the employee in the Armed Forces and has no connection with the present case.
60. It is also submitted that Annexure R-14 judgment of the Hon'ble Apex Court dealing with the concept of negative equality is not applicable as the claim of the applicant is not based on the concept of negative equality but on the positive aspect of Article 14 of the Constitution of India. Further, Annexure R-15 and Annexure R-16 dated 26.07.2017 and 17.02.2014 respectively are orders dealing with the pay fixation of pensioners whose pension is fully ignored, and which cannot be applied with retrospective effect. In Annexure R-16 it is stated that in Public Sector Banks, Military Service Pay cannot be included in the basic pay since it has not been included in the pre-retirement pay of the workman. Hence, it is submitted that all the documents that have been provided in relation to the Court orders/judgments as well as other documents along with the last additional reply statement filed on 25.08.2023 are liable to be discarded as they are based on a contradictory stand now taken by -90- the respondents. Further, it is also contended that according to Rule 19 of the CCS (Pension) Rules, 1972 the Military Service can be counted as qualifying service in the new employment. The Principal Bench of this Tribunal in O.A.No.4069/2013 in Sosamma K Sam vs. AIIMS dated 10.02.2017 considered this issue and following the law laid down in Captain Mrs.Surjit Kaur & Ors. vs. P.G.Institute of Medical Education and Research, Chandigarh (CWP No.20281/2001) directed the respondents to notionally fix the initial pay of the applicants by counting her Military Nursing Service with all consequential benefits including fixation of pension. Similarly, in O.A.No.3160/2015 in the case of Suresh Kumar Bukka vs. Government of NCT of Delhi and O.A.No.3162/2015 in the case of A.V.Koteswara Rao vs. Government of NCT of Delhi, the Principal Bench of this Tribunal considered the application of Rule 19 of the Pension Rules and directed to consider the case of the applicants for notional fixation of their pay by counting their respective Military Service rendered as Sailor in the Indian Navy with all consequential benefits, including for fixation of pension.
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61. It is submitted that in the latter two cases above the applicants were pensioners and it was directed that under Rule 19 their initial pay has to be fixed by reckoning their past Military Service. In the present case, the applicant claimed his benefit on his re-appointment and the same was granted. Now it cannot be contended that Rule 19 is not protecting the last pay drawn in the Military Service. It is submitted that Rule 19 of the CCS (Pension) Rules, 1972 is not just for the purpose of counting the number of qualifying years of service, but also protecting the last pay drawn. The amount of pension is calculated at 50% of the emoluments or average emolument whichever is more beneficial to him. Reckoning of Military Service by itself without protection of pay will not enhance the quantum of pension, if the initial pay is not fixed by reckoning the Military Service. Otherwise, the actual purpose behind Rule 19 will not be served. It is already established before this Tribunal that Military Service Pay and X Group Pay are part of the basic pay and it is also to be protected as has been done in the other organizations such as the Income Tax Department and Intelligence Bureau, as had been brought out earlier. The applicant is also entitled to get the benefit under the Modified Assured Career Progression Scheme (MACPS) on completion of 10/20 years of service cumulatively as provided under -92- paragraph 24 of the MACP and the increment by condoning the break in service. Hence, for these reasons it is submitted that the O.A may be allowed.
62. We have brought out all the arguments taken at different points of time sequentially in the course of the above description in the previous 61 paragraphs. Balancing all these very diverse contentions to provide a coherent, judicious decision in respect of the relief sought by the applicant in the O.A is quite obviously not a very easy exercise. We will, at the outset, deal with the contention made with fair amount of detail by the applicant to the effect that the contentions made in the additional reply statement filed on 25.08.2023 is contradictory, mutually destructive and repugnant to the stand taken in the original reply statement, the first additional reply statement and the affidavit. It is contended that the respondents cannot be permitted to take such contradictory, mutually destructive or repugnant contentions against clear 'judicial admissions' made in the earlier statements which had been taken benefit of by the applicant. It is submitted that the earlier statements are binding on the respondents and they are estopped from modifying these earlier contentions made in the same proceedings. This is supported by the -93- catena of decisions of the Hon'ble Supreme Court which were described in fair detail earlier. We now take up the issue of whether the contradictions in the additional reply statement filed by the respondents on 25.08.2023 vis-a-vis the earlier reply statements/affidavit have fatally damaged the case as is being contended.
63. On going through the additional reply statement filed on 25.08.2023 we note that at the outset it does have a statement that it is being filed with an intent to elaborate upon prior reply statements filed and to clarify on certain submissions therein. A careful reading of the original reply statement dated 09.02.2017 reveals that in paragraph 3 it had been clearly mentioned that the issue pertaining to the protection of pay for fixation of initial pay of re-employed pensioners/Ex-Serviceman had been referred to DoP&T by the concerned respondents. Further, it had been advised by the DoP&T that the instructions issued vide their O.M dated 31.07.1986 (the 1986 Order) regulates pay fixation on re- employment of pensioners in Central Civil Services and posts, including that of Ex-Serviceman. The said paragraph 3 also did indicate that the appointment order issued to the applicant had categorically stated that the Ex-Serviceman on re-employment is eligible only for the entry pay -94- attached to the post to which he is appointed through direct recruitment. Hence it does appear that the fact of the applicability of the 1986 Order in the matter of pay fixation in the case of re-employed Ex-Serviceman was flagged by the respondents right from the beginning in the original reply statement dated 09.02.2017 filed by the respondents. However, we are also well aware and accept the point that this crucial contention was not elaborated in any detail. The precise way in which the 1986 Order, especially, in relation to the definition of pension, applicability in the present case to this Ex-Serviceman without pension as well as the calculation of pay as per the provisos given in Clause 4 of the order were not at all explored in the earlier reply statements until the last additional reply statement was filed on 25.08.2023. To that extent we would agree that the additional reply statement filed on 25.08.2023 was indeed more specific on the points which should have been dealt with in the earlier reply statements.
64. It is to be accepted that to that extent, the earlier statements had a lacunae in as much as they did not deal with the issue in full in terms of the 1986 Order. The last additional reply statement, however, dealt with the issue in full. It has made it clear in no uncertain terms and in detail -95- that it is only the 1986 Order which governs the fixation of pay of re-employed Ex-Serviceman such as the applicant herein. Coming to the question of whether this is a new contention since as we have noted earlier the 1986 Order had been referred to only fleetingly in the initial reply statement filed by the respondents on 09.02.2017, we observe that the difference is that the bald statement that the applicant is governed by the 1986 Order in the matter of pay fixation as advised by the DoP&T, was not followed up in any detail, until admittedly the last additional reply statement was filed on 25.08.2023. We, however, do not think this establishes the contention of the applicant that the last statement is contradictory, mutually destructive or repugnant vis-a-vis the earlier judicial admissions made in the initial reply statement. We note that the last additional reply statement filed on 25.08.2023 did not shy away from taking into consideration all the earlier contentions, if they were to some extent not in line with the positions taken earlier. There are two specific positions which the respondents have taken in the additional reply statement filed on 25.08.2023. They have stated at paragraph 6 of the statement that the submissions unrelated to the issue, if any, in the prior reply statements should be ignored. Further, they have also specifically withdrawn contentions made at paragraph 3 of the initial reply statement -96- dated 09.02.2017 that by virtue of being an Ex-Serviceman without pension, the applicant is entitled to pay protection. They have now admitted that this is not the correct legal position. Further, another change in stand that they have taken in the new statement is that a comparison drawn earlier in the said original reply statement between the pay drawn by the applicant vis-a-vis the pay of a direct recruit should be treated as expunged.
65. On a very careful reading of the reply statements in seriatim, we feel that while admittedly there are errors, as has been pointed out by the respondents themselves, and a position is now being taken for the first time that the applicant is not entitled to any protection of pay, all these have all been taken during the course of pleadings, albeit at the last stage even after the matter had been reserved for orders. At the same time the applicant was then given a fair chance to respond. There has clearly been some confusion on the part of the respondents in their approach as evidenced by the fact that the earlier reply statement concentrated on the provisions under the Rule 19 of the CCS (Pension) Rules, 1972 to make their case more than the 1986 Order which was at the crux of the issue. This position has become clearer only in the additional reply statement -97- filed on 25.08.2023. Hence to arrive at a conclusion that pleadings taken earlier cannot be contradicted, changed or amended by the additional pleadings in any circumstances is not acceptable even in the light of the ratio laid down in the cases brought out by the applicant decided by the Hon'ble Apex Court. In fact in one of the cases relied upon by the applicant, Sarva Shramik Sangh (supra), the Hon'ble Supreme Court declared in no uncertain terms that the assumption that there is an absolute bar on inconsistent pleas being taken by a party is also not sound. What is impermissible is taking of an inconsistent plea by way of an amendment thereby denying the other side the benefit of an admission contained in the earlier pleading. It was held that mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously by a petitioner/plaintiff. But when there is no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law. Similarly, on the same facts, different or alternative reliefs can also be claimed.
66. We have observed that in this matter there is no dispute on the broad facts of the case in relation to the service periods of the applicant, the treatment of his service as qualifying service for the purposes of -98- pension, the dates that he had joined military service/civil service etc. The only main distinction which has arisen is in relation to how these facts have been used for fixation of pay and whether he is to be regarded as a pensioner in terms of the 1986 Order or not. The 1986 Order was referred to right from the very beginning of the pleadings, but was not explored or explained in the submissions. We do not think that there was any inconsistency ever made in the pleas that he is not eligible for MSP or X-Pay right from the beginning. There is only a change in position by the 'discovery' at a later stage that the pay fixation done as defended in the earlier reply statements, was also wrong and needed to be corrected. In that overall sense, the additional reply statement filed on 25.08.2023 can be looked upon as an extension of the position taken earlier and also a correction of an earlier wrong contention made regarding the fixation of pay. In consideration of these aspects, we cannot accept the applicant's contention that the stand taken in the additional reply statement is mutually destructive of the earlier position and has fatally damaged the case of the respondents. We find that even if there has been a change in the position to the extent as pointed out above in the case of the respondents it only amounts to correction of -99- a mistake made with full opportunity given to the other side to meet these contentions on merit. At the end of the day, what is important is that the position taken in the pleadings by either side is clear to the Court which can then proceed without error on the basis of the facts and rules applicable. Hence, we are rejecting the argument and contentions made by the applicant that the additional reply statement filed on 25.08.2023 should be ignored. The additional reply statement filed on 25.08.2023 is a judicial admission which has been allowed to be countered fairly by way of a rejoinder as well as in oral submissions before this Tribunal. These statements were allowed by this Tribunal in the interest of proper adjudication of the issue. Thus, we have so far established that the contentions made in the additional reply statement filed on 25.08.2023 are acceptable for deciding the matter as also the contents of the additional rejoinder dated 18.09.2023.
67. We now go into the merits of the issue at hand. Let us at the point note as to how the additional reply statement has outlined the 1986 Order as crucial in deciding the case of the applicant. The statement has gone clause by clause into the 1986 Order from the definition of 'pension' given at Clause 3(1) which is not just gross monthly pension, but also -100- includes pension equivalent of DCRG and/or pension equivalent of gratuity or Government's contribution to Contributory Provident Fund and/or other retirement benefits, if any payable under the CCS (Pension) Rules, 1972 or other relevant rules and how the applicant's case is covered by the Order. It makes the point that the retirement benefits that had been drawn, such as retirement gratuity including service gratuity etc., by the applicant, even if they were later refunded by him under the applicable provisions of Rule 19 of the CCS (Pension) Rules in order to ensure that his military service would be counted for the purpose of qualifying service has made it clear that he is to be treated as if he was in receipt of a 'pension', as defined under the 1986 Order. The next point is whether this would qualify him to be treated as a 'pensioner' under the said Orders and whether this is crucial. The applicant has submitted that in the context of the orders of the Constitutional Bench of the Hon'ble Supreme Court in D.S.Nakara (supra), he cannot be treated as a pensioner because a pensioner has been defined in the judgment as a person retired on superannuation and is in receipt of a pension. However, we do not feel that that definition of 'pensioner', which was issued in the context of the specific facts of the D.S.Nakara's (supra) case, is all that relevant in the matter of treatment of fixation of pay of -101- 're-employed pensioners' under the CCS (Fixation of Pay of Re-employed Pensioners) Orders, 1986. The 1986 Order defined what is pension specifically for the purpose of pay fixation and nothing else. It is clear that what the applicant had drawn by way of service/retirement gratuity at the time of his discharge/retirement from military service falls under the definition of 'pension' in the Order. There is no further definition of pensioner in the 1986 Order, as is pointed out by the applicant. This does not ipso facto, however, lead to a conclusion that the definition by the Hon'ble Supreme Court of 'pensioner' made in the context in the D.S.Nakara case (supra) would be immediately apply to an Ex-Serviceman pensioner or non pensioner for the purpose of pay fixation by the CCS (Fixation of Pay of Re-employed Pensioners) Orders, 1986. To our mind, therefore, unless the context otherwise suggests, if anyone was drawing a monthly pension or pension equivalent of DCRG or pension equivalent of gratuity or Government's contribution to Contributory Provident Fund or other retirement benefits as defined in the 1986 Order, he can be reasonably taken to be considered as a 'pensioner' falling under the ambit of the 1986 Order. -102-
68. Clause 2 (1) of the Order also makes it clear that it applies to all persons who are re-employed in Civil Services and posts in connection with the affairs of the Union Government after retirement on pension, gratuity, and/or Contributory Provident Fund benefits from the services of the Union Government including Defence. Since the applicant has drawn retirement gratuity including service gratuity from the Indian Navy, he therefore can be reasonably be considered to fall under the CCS (Fixation of Pay of Re-employed Pensioners) Orders, 1986. It is thus clear to us from the details brought out in the additional reply statement filed on 25.08.2023 as well as the DoP&T O.Ms referred to earlier that fixation of pay of the applicant is fully to be considered and done under the provisions of the 1986 Order. There is, further, no other Order or O.M or Rule or Act or any other legislation produced by the applicant to establish an alternative way of fixation of pay of such re-employed Ex-Serviceman like him.
69. Now that we have concluded that the 1986 Order covers the fixation of pay of the applicant, we note that before we go into further details thereof, we also have to deal with some issues raised by the -103- applicant in the matter of how the provisions of Rule 19 of the CCS (Pension) Rules, 1972 in relation to counting of military service rendered before the civil employment are to be considered. We have already gone into fair amount of detail earlier about the contention of the respondents that Rule 19 and generally the Pension Rules of 1972 are not relevant to the question of fixation of pay on re-employment of pensioner. They are only to be limited to the identifying the conditions for reckoning of previous service for computation of qualifying service for civil pension. The respondents had made the point that the option given under Rule 19(1) to either continue to draw the military pension or to cease to draw pension and refund the pension and the value of retirement gratuity etc., drawn is only exercisable on confirmation in civil service much after re-employment. However, the character of being a 'pensioner' in terms of the applicability of the CCS (Fixation of Pay of Re-employed Pensioners) Orders, 1986 rises not after the period of confirmation in civil service but is applicable immediately, as soon as one is released or discharged from military service and re-employed in civil service. Hence, Rule 19 is to be wholly considered only for the purpose of counting of past military service for civil pension. The aim is to ensure that the benefit of previous service is not lost by the re-employed -104- Ex-Serviceman on re-employment in the civil service, in terms of what would be the length of service and fixation of pension after he retires from the said civil service. This is a facility which is given to the Ex-Serviceman in addition to other instructions for employing in Ex-Serviceman after their retirement from military service.
70. The purpose of Rule 19 thus is only for counting the military service undergone earlier for pension. Nothing more or nothing less is to be read into the provisions of Rule 19 of the CCS (Pension) Rules, 1972. There is not even a broad hint in relation to pay fixation implied in any of the sub-clauses of Rule 19. To interpret the Rule in terms of fixation of pay by taking the last pay drawn as protected will not be proper in terms of what the intent and purpose of the Rule is in the context of its appearance in the chapter on Qualifying Service within the larger CCS (Pension) Rules. The purpose of the Pension Rules are in relation to the fixation of pension as well as the Conditions of pension after retirement from Central Civil Service. It thus does not have anything to do with the fixation of pay which is clearly governed only by the provisions of the 1986 Order. Hence, various attestations made in the documents issued to the applicant such as Annexure A-9 letter or any other such documents -105- are only for the purpose of verification of the military service. The status of the applicant 'as a non pensioner' has been indicated at Annexure A-9 certificate of verification of military service in response to the question 'had he earned on ordinary service pension for his qualifying service' is only for the purpose of counting the service towards civil pension. To stretch from this description in this document or from other documents indicating his last pay drawn and thus describing the applicant as a non pensioner for the purpose of pay fixation as well is a leap in logic which is to our mind not justified. Hence, we do not find that Rule 19 confers, in any way, the protection of the pay earlier received by the applicant, including the Military Service Pay, X Group Pay or other assorted components for fixation of pay after joining the civil service.
71. Now we take up the important issue of how the pay is to be actually calculated and fixed under the 1986 Order. This will have to be done under the provisions of Clause 4 of the Order which, as we have already seen relates to the fixation of pay of re-employed pensioner. We have noted that this Clause specifically lays down the procedure in relation to fixation of pay in relation to cases where the pension is fully ignored ie., pension is not deducted from the pay and also separately, -106- where it is not ignored. It is clear in this regard that Clause 4 (b)(i) along with Clause 4 (d)(i) of the 1986 Order as was applicable at the time when the applicant joined the civilian service, produced at Annexure R-8, will have to be taken into consideration. These clauses along with the Clause 4(a) which provides that re-employed pensioners shall be allowed to draw pay only in prescribed scales of pay for the posts in which they are re-employed. Further, it provides that no protection of the scales of pay held by them prior to retirement shall be given. Clause 4 (b)(i) of Annexure R-8 clearly states that where the pension is fully ignored (ie., not deducted from pay) the initial pay on re-employment shall be fixed at the minimum of the scale of pay of the re-employed post. At the time when the applicant joined as Chargeman (Air Engineering) in the civilian service of the Navy Clause 4(b)(i) has indicated that the initial pay on re-employment shall be fixed at the minimum of the scale of pay of the re-employed post. Clause 4(b)(ii) on the other hand has indicated that in cases where the entire pension and pensionary benefits are not ignored for pay fixation, (ie., pension is being deducted) that the initial pay on re-employment shall be fixed at the same stage as the last pay drawn before retirement. Clause 4(d) further lays down that in the case of persons retiring before attaining the age of 55 years and who are -107- re-employed, pension (including Pension equivalent of Gratuity and other forms of retirement benefits) shall be ignored for pay fixation. Further, Sub-clause (i) of Clause 4 (d) provides that 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.
72. It is clear that the relevant provisions of Clause 4 of the 1986 Order will have to be taken into account by the respondents while again fixing the pay of the applicant. They have already stated at paragraph 6 of their additional reply statement filed on 25.08.2023 that the applicant is disentitled for any protection of pay and that even the revised fixation of pay as at Annexure R-3, will have to be modified in due course. As per Annexure R-3 Pay Fixation Proforma of the applicant, the pay was fixed after protecting the stage of pay in the Pay Band (Rs.12230/- along with Grade Pay of Rs.4200/- and X Group Pay of Rs.1400/-, at Rs.13630/- + Grade Pay Rs.4200/- with effect from 10.08.2009). From what is now implied, as a result of a 'proper' consideration of the 1986 Order, this pay fixation would also need to be revised, thereby further -108- implying that the Annexure A-14 and Annexure A-15 orders, which are the impugned orders in this O.A will also need to be changed, if required. If so, then the associated Annexure A-18 impugned order directing the applicant to refund the excess payment of Rs.5,87,505/- will also need to be changed. We have already pointed out that these aspects was not clearly clarified by the respondents but it seems to be hinted when they contend that the fixation of pay of the applicant will need to undergo further changes in the light of proper implementation of the 1986 Order. This is, thus, to be noted for guiding our directions in this matter later. At this stage, we only express our agreement with the position taken by the respondents to strictly fix the pay of the applicant as per his applicability under the terms and conditions of the 1986 Order, especially with reference to Clause 4 in relation to fixation of pay of a re-employed pensioner. We have already indicated earlier as to why we have arrived at the conclusion that the 1986 Order is applicable to the case. Further the refixation may be done from his date of joining the service of the Navy as Chargeman (Air Engineering). However, these steps will also be subject to certain conditions, which we will indicate in due course below.
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73. Now we come to the issue which had provoked the applicant to file this O.A., ie., in relation to the drawal of protection and Military Service Pay as part of his pay in the civilian service. Naturally, in light of our earlier findings we accept the position that the DoP&T O.M dated 08.11.2010 produced by the respondents at Annexure R-4 and by the applicant at Annexure A-13, being an extension of the 1986 Order, is fully applicable in the matter. The Annexure R-4 order had made it clear that the Military Service Pay is not to be taken into account while calculating any pre-retirement pay for the purposes of pay fixation on re-employment. However, for pension purposes, it was indicated that the reckonable elements are Basic Pay + Grade Pay + Military Service Pay + NPA wherever admissible. The respondents have contended at paragraph 30 of the additional reply statement filed on 25.08.2023 that the case of the applicant herein falls in the situation of the 1986 Order (Clause 4) where the pension is completely ignored (not deducted) and thus the eligible pay will be the entry pay in the re-employed post, which will have no element of Military Service Pay in it. In any case, we note that the concerned DoP&T O.M., having specifically excluded Military Service Pay in the determination of pay in civilian organisations, the case of the applicant for including the same also has to fail. Further, the -110- DoP&T O.M dated 05.04.2010 produced at Annexure R-5 has clearly laid down that the Military Service Pay is granted to Defence Forces Officers/Personnel while they are serving in the Defence Forces. Accordingly, on their re-employment in Civilian Organisations, including secret organisations under the Cabinet Secretariat umbrella, the question of grant of Military Service Pay to such officers/personnel does not arise. Accordingly, while the pension of such re-employed pensioners may include the element of Military Service Pay, they will not be granted Military Service Pay as part of pay while working in civilian organisations. We, therefore, reiterate that the pay of the applicant may be fixed in terms of the 1986 Order as amended by the DoP&T O.M's dated 05.04.2010 as well as the DoP&T O.M dated 08.11.2010 produced at Annexure R-4/Annexure A-13. There is no provision for Military Service Pay to be taken into account while fixing the pay of the applicant. We further note that the Annexure R-6 in relation to the orders issued after the 7th CPC has taken a similar stand in relation to Military Service Pay. Hence, from all these documents it is quite clear that the Military Service Pay cannot be counted or treated as part of the pay fixation of a re-employed Ex-Serviceman.
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74. The applicant and his counsel have also placed great stone on the Annexure A-25 Resolution of the Ministry of Defence. We agree that this Resolution has no application to the case of persons re-employed in civil service. These are recommendations in relation to Armed Forces personnel and their military allowances and conditions of service. Further, the orders of the Chandigarh Bench of this Tribunal in the matter of Prithvi Nath Tiwari (supra) in O.A.No.277/2014 as well as the other cases referred to in the additional reply statement filed on 25.08.2023 (brought out earlier) have established the fixation of pay by the 1986 Order as well as non protection of Military Service Pay. Unlike what is being contended by the applicant in the additional rejoinder, the 1986 Orders have applicability, since we have found that the applicant is also covered under these Orders. The Full Bench decision of this Tribunal in Manichandra Kumar (supra) (O.A.No.192/2015 and connected cases) had found that any difference in the nature of treatment between commissioned and non commissioned officers in the 1986 Order is not arbitrary and is acceptable. All these orders, which have been brought to notice by the respondents in the additional reply statement filed on 25.08.2023 make the case for implementation of the 1986 Order in the case of re-employed Ex-Serviceman. Further, we also accept the -112- contention of the respondents that because certain organisations of the Government of India such as the Intelligence Bureau or Income Tax Department of Bhopal had given the benefit of various components of pay to their Ex-Serviceman employees, the applicant here is not automatically entitled to the same. If a mistake is made by a particular department, it cannot be allowed to be repeated again by another department. The logic of negative equality, as per the decision of the Hon'ble Supreme Court in R.Muthukumar (supra), would apply herein. We also note that certain other departments of the Government of India such as the EPFO and Department of Financial Services have taken steps to redo pay fixation, as per the legal position as indicated in our order above.
75. We now come to the relief sought by the applicant at point (e) of the relief array in relation to the applicability of Rule 19(5) of the CCS (Pension) Rules in the matter of condonation of interruption of service. Rule 19(5) of the CCS (Pension) Rules, 1972 states that when an order is passed under this Rule (ie., Rule 19) allowing previous military service to count as part of the service qualifying for civil pension, the order shall be deemed to include the condonation of interruption in service, if any, in -113- the military service and between the military and civil services. The applicant was discharged from the Navy on 30.04.2009 and re-employed on 10.08.2009 as a civilian in Navy Service. He has claimed that he ought to have been granted increment for the period from 01.07.2008 to 30.04.2009. It is his case that even if the break is not condoned, since he has 10 months of actual service in 2008-09 he is entitled for increment for this period. The respondents in paragraph 41 of their additional reply statement filed on 25.08.2023 have pointed out that the purpose behind Rule 19(5) is for clarifying the treatment of any interruption in service for the purpose of determining qualifying service for pension. It has no relevance to the grant of increment while in service. Further, Rule 10 of the CCS (Revised Pay) Rules, 2008 provides that in the revised pay structure there will be a uniform date of annual increment viz., 1 st of July of every year. Further, employees completing 6 months and above in the revised pay structure as on 1 st of July will be eligible to be granted the increment. The applicant, as per this, would have been entitled to increment on the 1st of July of the year only if he had been employed as on that date. He was, however, not in service as on July 1 st, 2009. It is also clarified in the additional reply statement that the applicant is not entitled to the X Group Pay as he is entitled only to the entry pay as -114- applicable to direct recruits. The O.M dated 08.11.2010 in Annexure R-4 at paragraph 2 has referred to the instructions issued by the Ministry of Defence in its letter dated 24.07.2009, where pre-retirement pay has been defined as pay in the Pay Band plus Grade Pay but inclusive of NPA, if any, last drawn before retirement. Thus the pre-retirement pay as defined by the Ministry of Defence also does not include X Group Pay.
76. We now, in conclusion, drawing from our analysis above, declare as follows on each point of the relief sought by the applicant in the O.A :
(i) In relation to reliefs sought at (a) to (c) of the array, as noted earlier, the orders/communications at Annexure A-14 dated 03.05.2016, Annexure A-15 dated 11.05.2016 and Annexure A-18 dated 23.06.2016 will require to undergo some amendment in line with the provisions of the 1986 Order read with the relevant DoP&T O.Ms at Annexure R-4 and Annexure R-5. The pay fixation proforma at Annexure R-3 may need to be changed. The respondents are, therefore, directed to abide by the 1986 Order, particularly, in relation to Clause 4, as amended by the relevant orders at Annexure R-4/Annexure R-5 or any other relevant amendments and to accordingly refix the pay of the applicant in line with -115- these orders right from his date of re-employment on 10.08.2009.
However, after so refixing the pay of the applicant from the date of his re-employment on 10.08.2009 in the civilian service of the Navy, no orders shall be passed in relation to refund of excess payment arising due to the said refixation of pay. There will not be any recovery of overpayment as a result of the refixation. While passing this order regarding non recovery of any overpayment, we are guided by the fact that this Tribunal had given a stay of the recovery of pay as well as stay on the operations of Annexure A-14, Annexure A-15 and Annexure A-16, as early as on 29.06.2016 when the O.A was filed. Further, we are also aware of the fact that the applicant had to repay DCRG and Service Gratuity along with interest at rates ranging from 8.0% to 8.8% more than 3 years after he had submitted his option certificates. Further, the arrears that he was received due to the fixation of pay were also given after a span of 6 years without payment of any interest, even if these arrears are now discovered to have been wrongly released. The applicant cannot be made to suffer by the process of a separate recovery proceeding due to the sustained confusion on the part of the respondents in relation to his fixation of pay. We are also respectfully guided in our decision by the reasoning of the Hon'ble Supreme Court in State of -116- Punjab & Ors. vs. Rafiq Masih & Ors., (2015) 4 SCC 334, in relation to the condition No.(v) therein, that "In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." However, the pay may be fixed, as we have ordered, from the date of joining civilian service ie., 10.08.2009 as per the provisions of the 1986 Order as amended as well as the provisions of the CCS (Revised Pay) Rules, 2008 which are applicable in his case. This exercise may be completed within a period of 2 months from the date of receipt of a copy of this order.
(ii) In relation to the relief sought at (d) of the relief array, we find that the applicant is not entitled to get his Military Service Pay or any other components of his Military Service Pay protected on re- employment as it is not permitted under the said applicable 1986 Order and since the conditions prescribed under Rule 19 do not apply in the case of pay fixation. We have already brought out the logic behind this conclusion earlier in this order.
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(iii) Further, in relation to the relief sought at (e) of the relief array, regarding the condonation of the interruption in service between the Military and Civil Services prayed for accordance with the Rule 19(5) of the CCS (Pension) Rules, as brought out earlier, we find that the applicant is not eligible for any increment for the services rendered, as per the CCS (Revised Pay) Rules, 2008. Hence this relief is not granted.
(iv) Similarly, in relation to the relief sought at (f) of the relief array, in relation to consequential benefits including MACPS and payment of weightage of retirement gratuity on retirement, we direct that after the refixation is done, the respondents may issue appropriate orders as per rules applicable in such cases. We make no further directions in this regard.
(v) In relation to the relief sought at (g) of the relief array to pay interest for late receipt of the arrears of pay fixation, we cannot grant the same because of the fact that the applicant's pay itself will need to be refixed in the light of the above orders. Our orders relating to non recovery passed at (I) above are also relevant in this. -118-
77. We dispose of the O.A with the above directions. We make no order as to costs.
(Dated this the 22nd day of January, 2024)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00523/2016
1. Annexure A-1 - A true copy of the discharge certificate dated 30.04.2009 issued to the applicant.
2. Annexure A-1(a) - A true copy of Memo dated 07.12.2014 issued by the 5th respondent.
3. Annexure A-2 - A true copy of the last pay certificate of the applicant from the Indian Navy dated 30.04.2009
4. Annexure A-3 - A true copy of appointment order as Chargeman II issued to the applicant dated 10.08.2009.
5. Annexure A-4 - A true copy of representation submitted by the applicant to the 4th respondent dated 21.01.2010
6. Annexure A-5 - A true copy of the circular No.103 dated 08.02.2013 issued by the PCDA (Pension).
7. Annexure A-6 - A true copy of 2nd option certificate dated 11.03.2013 submitted by the applicant.
8. Annexure A-7 - A true copy of the statement of the amount to be refunded by the applicant for counting of former Military Service issued by the 5th respondent.
9. Annexure A-8 - A true copy of the depositors counter foil dated 14.08.2013 showing the remittance of Rs.5,46,673/-
10. Annexure A-9 - A true copy of the letter issued by the PCDA (P) dated 07.11.2014 ordering reckoning of Military Service of the applicant on reemployment and its Appendix.
11. Annexure A-10 - A true copy of the pay fixation proforma dated 15.06.2015 issued to the applicant by the 5th respondent.
12. Annexure A-11 - A true copy of the civilian establishment list No.149/2015 dated 01.10.2015.
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13. Annexure A-12 - A true copy of letter dated 22.03.2016 issued by the Area Accounts Office to the 5th respondent.
14. Annexure A-13 - A true copy of Office Memorandum No.3/19/2009 Estt. Pay II dated 08.11.2010 issued by the DoPT.
15. Annexure A-14 - A true copy of the civilian establishment list No.94/2016 dated 03.05.2016 issued by the 5th respondent.
16. Annexure A-15 - A true copy of the Memo No.277/6/12 dated 11.05.2016 issued by the 5th respondent.
17. Annexure A-16 - A true copy of the representation dated 27.05.2016 submitted by the applicant.
18. Annexure A-17 - A true copy of pay slips of the applicant for the month of April 2016 and May 2016.
19. Annexure A-18 - A true copy of the Memo No.277/6/25 dated 23.06.2016 issued by the 5th respondent.
20. Annexure A-19 - A true copy of the pay fixation order issued to another Ex-servicemen dated 03.07.2014.
21. Annexure A-20 - A true copy of the pay fixation order issued to another Ex-servicemen dated 03.07.2014.
22. Annexure A-21 - A true copy of the pay fixation order issued to another Ex-servicemen dated 03.07.2014.
23. Annexure A-22 - A true copy of the relevant extract of Report of Raksha Manthri's Committee of Experts-2015.
24. Annexure A-23 - A true copy of the applicant's pay slip for the month of January 2010.
25. Annexure A-24 - A true copy of the applicant's pay slip for the month of July 2010.
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26. Annexure A-25 - A true copy of the relevant extract of the resolution passed by the MoD dated 30.08.2008.
27. Annexure R-1 - Copy of Pay fixation proforma dated 27 Feb 2015.
28. Annexure R-2 - Copy of DCDA Kochi letter dated 22 Mar 2016.
29. Annexure R-3 - Copy of pay fixation proforma dated 04 Apr 2016.
30. Annexure R-4 - Copy of DOPT OM dated 08 Nov 2010.
31. Annexure R-5 - Copy of DOPT OM dated 05 April 2010.
32. Annexure R-6 - Copy of DOPT OM No 3/3/2016-Estt (Pay II) dated 01 May 17.
33. Annexure R-7 - Copy of excerpt of Rule 19 of CCS Pension Rules, 1972
34. Annexure R-8 - True copy of DoP&T OM dated 31.07.1986.
35. Annexure R-9 - True copy of Rule 19 of the CCS (Pension) Rules, 1972.
36. Annexure R-10 - True copy of the decision in the OA 277/2014 of the Hon'ble CAT, Chandigarh Bench.
37. Annexure R-11 - True copy of the decision in WP(C) 4410/2015 (Dharmendra Singh Rana and Other. Vs The Govt of NCT of Delhi and Another.
38. Annexure R-12 - True copy of order in OA Nos. 192/2015, 438/2015, 50/2016, 291/2016, 429/2016, 525/2016 & 639/2016 of the Hon'ble CAT (Ekm) Bench.
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39. Annexure R-13 - True copy of the judgement of the Hon'ble Supreme Court in the case of UOI & Ors. v. Anil Prasad.
40. Annexure R-14 - True copy of the judgement of the Hon'ble Supreme Court in the case R. Muthu Kumar V. The Chairman and Managing Director, TANGENDCO & other.
41. Annexure R-15 - True copy of the clarification dated 26.07.2017 issued by the Employees Provident Fund Organisation.
42. Annexure R-16 -True copies of Department of Financial Service guidelines 4/3/2012-Welfare dated 17.2.2014.
43. Annexure R-17 - True copy Department of Personnel and Training OM No. 1418309/20-Estt (Pay-II) dated 08.09.2020
44. Annexure R-18 - True copy of the guidelines 4/4/2021-Welfare dated 03.11.2021 issued by Department of Financial Service.
45. Annexure II- - A copy of the Office Order No.483/2014 dated 29.09.2014 issued by the Assistant Director/E, Subsidiary Intelligence Bureau, MHA, Government of India, produced by the learned counsel for the applicant along with Memo dated 06.07.2023.
46. Document-1 - A copy of the instructions issued F.No.HRM- IV/III/5(1)2009/EX-SM dated 26.07.2017 issued by the EPFO New Delhi, produced by the learned counsel for the respondents along with Memo dated 11.07.2023.
47. Document-2 - A copy of the Letter F.No.4/4/2021-Welfare dated 03.11.2021 issued by the DFS, GO., produced by the learned counsel for the respondents along with Memo dated 11.07.2023.
48. Document-3 - A copy of the Letter F.No.4/3/2012-Welfare dated 17.02.2014 issued by the DFS, produced by the learned counsel for the respondents along with Memo dated 11.07.2023.
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49. Document-4 - A copy of the O.M.F.No.1418309/20-Estt.Pay-II dated 08.09.2020, produced by the learned counsel for the respondents along with Memo dated 11.07.2023.
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