Central Administrative Tribunal - Allahabad
Ramesh Kumar Gaur vs M/O Defence on 23 March, 2018
(RESERVED ON 13.03.2018)
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH
ALLAHABAD
This the 23rd day of March 2018.
ORIGINAL APPLICATION NO. 48 OF 2013
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A).
1. Ramesh Kumar Gaur son of Raja Ram Gaur Ticket No. 7008, E.E.
Mech Unit C.O.D. Chheokli, 508 Army Base Work Shop Fort,
Allahaad. Resident of 366A/3 Chak Raghoo Nath Naini, Post Office
Naini, District Allahabad.
...............Applicant.
VER S U S
1. Union of India through Secretary Ministry of Defence, New Delhi.
2. Director General of EME (Civilian) Master General Ordinance
Branch Army Head Quarter D.H.Q. New Delhi.
3. Commandant and Managing Director 508 Army, Base Workshop,
Fort Allahabad.
4. Establishment Officer, 508 Army Base Workshop, Fort Allahabad.
.................Respondents
Advocate for the Applicant : Shri Rajeshwar Yadav
Shri V.B. Yadav
Advocate for the Respondents : Shri Arvind Singh
ORDER
The present Original Application (in short OA) has been filed by the applicant under Section-19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
(i) That this Hon'ble Tribunal may graciously be pleased to allow this application quashing the order dated 06.12.2012 passed by the respondent no. 4.
(ii) That this Hon'ble Tribunal may further be pleased to direct the respondent no. 3 and 4 to pay to the applicant Rs. 5670/-
Family planning allowance deducted from the salary of December 2012 of the applicant and continue to pay the family planning allowance to the applicant regularly.. 2
(iii) That this Hon'ble Tribunal further be pleased to pass any other and further order which this Hon'ble Tribunal may deem fit and just in the nature and circumstances of the case to meet the ends of justice.
(iv) That this Hon'ble Tribunal may be pleased to award the cost of this application in favour of the applicant and against the respondents.
2. The brief facts of the O.A. are that the applicant was appointed as a Civil Engineer Equipment Mechanic in the pay scale of Rs. 4000-100- 6000 on regular basis in Station Workshop, Kirkee Pune by appointment order dated 30.04.2007 (Annexure No. A-1 to the O.A.), after his retirement from regular service under Indian Army.. He joined the said post on 01.05.2007.
3. According to the applicant, his wife underwent a Vasectomy/Tubectomy operation on 25.04.1997 for which the applicant was getting a family planning allowance of Rs. 100/- per month as per rules and he continued getting it after his re-employment with effect from 01.06.2008 in till 15.08.2010. After 15.08.2010, the applicant was transferred on mutual transfer basis from Station Workshop, Kirkee, Pune to 508 Army Base Workshop Fort, Allahabad as per order of transfer passed by the competent authority directing the applicant to proceed for mutual posting on 11.08.2010 and report on the transferred place on 16.08.2010.Accordingly, the applicant joined Allahabad on 16.08.2010.
4. The respondent no. 4 issued a notice dated 20.11.2012 (Annexure No. 6 to the O.A.)) directing the applicant to show cause why his family 3 planning allowance of Rs. 100/- per month granted to him will not be stopped on account of his re-employment and why the family planning allowance paid to him should not be recovered from him on the ground that the said incentive has been drawn in terms of family planning prior to the date of re-employment of the applicant. The applicant submitted the reply/representations dated 23.11.2012, 27.11.2013 and 17.12.2012 against the show cause notice dated 20.11.2012 passed by the respondent no. 4, who issued an order dated 06.12.2012 (Annexure No.1 to the O.A.) against the applicant withholding grant of family planning allowance and also deducted Rs. 5670/- family planning allowance granted and paid to the applicant as per pay slip December 2012. Due to this action of the respondents, the applicant was compelled to file this O.A. challenging the order dated 06.12.2012.
5. It is the contention of the applicant that he applicant was appointed on regular post of Engineer Equipment Mechanic at Station workshop E.M.E. Kirkee, Pune by appointment order dated 30.04.2007 and he was not re-employed. He further submitted that the applicant availed the pay scale and other benefits and consequential benefits including family planning allowance till November 2012 and that the impugned order dated 06.12.2012 is issued arbitrarily.
6. Learned counsel for the respondents filed counter affidavit, by which it has been stated that the applicant was offered re-employment after retirement from military service in the pay scale of Rs. 4000-100- 6000 plus allowances as admissible to the Central Government 4 Employees with a probation period of two years. While the applicant was serving with Indian Army as Combatant, Vasectomy/Tubectomy operation of his wife was conducted by the Military Hospital, Ambala on 25.04.1997. Accordingly, the applicant became eligible to draw the family planning allowance ( in short FPA) at the rate of Rs. 100/- per month during his service in the capacity of combatant for adopting small family norms. He was drawing the said allowance after his re-employment as a civilian Central Government Employee against the norms and provisions regarding grant of FPA as per the policy in vogue. While reviewing the case for grant of the said FPA in the light of clarification under FR-27 vide Government of India order 12 (v) in respect of some of the ex- servicemen, on the request made vide their application dated 17.08.2012, it was revealed that the grant of said FPA to the applicant is not in order and against the norms applicable on the subject. Accordingly, the applicant was intimated by note dated 20.11.2012 that FPA being paid to the applicant is to be discontinued immediately with recovery of amount already.
7. In the counter it has also been stated that the Ministry of Defence have approved the reemployment for retiring Armed Forces Personnel in the Civilian Posts. DOP&T promulgated the provisions to be incorporated by respective departments for lateral induction of Armed Forces Personnel. This method of recruitment for civil posts is known as deputation/re-employment. A second career is being provided to Personnel Below Officer Rank, who otherwise retire at younger age as compared to their civilian counterparts. The individuals selected on 5 deputation/re-employment will be absorbed on the deputation basis, against the civilian posts, till the individual finishes his terms of service engagement. On attaining superannuation the individual will be absorbed on re-employment basis in the unit. The appointment letter will mention the date of employment to the civilian post i.e., the next day after retirement with the provision that the appointee will be on probation for a period as specified in Recruitment Rules for the civilian posts. As per the above policy, the applicant was appointed/re-employed as Mechanic w.e.f. 01.05.2007 at Station Workshop, Kirkee, Pune in the pay scale of Rs. 4000-100-6000 plus allowances as applicable to the Central Government employees in force.
8. The applicant has filed rejoinder affidavit in which he stated that he was appointed vide appointment order dated 30.04.2007 and it is not a re-employment. Therefore, the argument in the counter affidavit that after secession of military service the Family Planning Allowance will be discontinued has been contradicted.
9. Heard the learned counsel for the applicant who reiterated the contentions in the O.A. as well as the rejoinder. His argument was that since the applicant was given family planning allowance till November 2012, after his appointment w.e.f., 01.05.2007, the reasons for which he was found be not eligible are not valid.
10. Learned counsel for the respondents drew our attention to the counter and the paragraph 6 of the order of the Government of India as 6 indicated in Service Fundamental Rules in Swamy's Book, copy of which is enclosed as Annexure-1 to the counter affidavit. The following paragraph has been pointed out by the respondents in their counter affidavit which states as under:-
"3. It has been clarified by Ministry of Finance vide I.P. No. 587/E-III(A)/2002, dated 2-9-2002, that incentive for adopting small family norms is admissible during service life of eligible Government servants. Once an employee demits office/retire from/ceases to be in the Government service on whatsoever consideration, his/her service life ends, and the incentive for adoption of small family norms also come to an end. In the case of re-employment which is in the nature of fresh employment/appointment, the incentive admissible in the past service before re-employment cannot automatically be continued. Consequently, reemployed persons are not entitled to incentive, if the sterilization operation on this account was undergone prior to re-employment."
11. The decision of the Ministry of Finance as quoted in Swamy's book that the family planning allowance cannot be automatically be continued after re-employment. However, it is an admitted fact that the applicant was given fresh appointment as per general policy applicable for ex employees as mentioned in paragraph 6 of the counter, which is being quoted below:-
"....A second carrier is being provided to Personnel Below Officer Rank, who otherwise retire at younger age as compared to their civilian counterparts. The individuals selected on deputation/re- employment will be absorbed on the deputation basis, against the civilian posts, till the individual finishes his terms of service engagement. On attaining superannuation the individual will be absorbed on re-employment basis in the unit. The appointment letter will mention the date of employment to the civilian post i.e., the next day after retirement with the provision that the appointee will be on probation for a period as specified in Recruitment Rules for the civilian posts......"
12. From the above, it is clear that the objective of the policy under which the applicant was reemployed is to ensure that after retirement 7 from armed forces in younger age, the services of the personnel can be utilized. Further, the The reemployment order dated 30.04.2007 (Annexure A-2 to the O.A) states the following regarding the pay and allowances:-
"(c) Pay and Allowances - Pay scale : 4000-100-6000 plus allowances as applicable to the Central Government Employee in the force."
Hence, the terms and conditions of appointment of applicant with regard to the pay and allowances does not imply that the family planning allowance, which he was continuing to get till November, 2012 is not payable, as the allowances payable to the applicant are as applicable for Central Government Employee, which clearly include the family planning allowance..
13. The instructions in Swamy's Book as quoted in Annexure-1 to the counter affidavit also states that in case of re-employment which is in the nature of fresh employment, the incentives admissible in the past service before reemployment cannot be automatically continued. It is true that the similar benefit of allowance and incentives that the applicant was getting prior to the applicant's reemployment is as per the order dated 30.04.2007, was not be automatically continued after retirement as per instructions of the Government quoted in Annexure-1 to the counter, but the appointment order dated 30.04.2007 does not specifically say whether family planning allowance that he was continuing to get is admissible or not. Rather, the wordings of the order dated 30.04.2007 as mentioned above, imply that the family planning allowance is permissible 8 to the applicant who is entitled to all allowances as applicable to Central Government employees as per order dated 30.04.2007.
14. There is no dispute that the family planning allowance is admissible to central government employees. Therefore in terms of the order dated 30.04.2007, which states "allowances" as applicable to the Central Government employees, will also include the family planning allowance, which was being paid to the applicant even after his re- employment till November 2012.
15. In view of the above, the impugned order dated 06.12.2012 (Annexure No. 1 to the O.A.) is incorrect in terms of the order dated 30.04.2007 and hence, it cannot be sustained. Accordingly, the said impugned order dated 06.12.2012 is quashed and set aside and the matter is remanded back to the respondent no. 2 to reconsider the case of the applicant in the light of the order dated 30.04.2007 and decide whether the allowances payable to the applicant will include family planning allowance or not.
(GOKUL CHANDRA PATI) MEMBER-A Arun..