Central Administrative Tribunal - Ahmedabad
Dilipkumar Choudhary vs Central Board Of Direct Taxes on 21 October, 2021
(CAT/AHMEDABAD BENCH OA NO.425/2019) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.425/2019
with M A No.434/2019.
Dated this the 21st day of October, 2021.
Reserved on :08.07.2021
Pronounced on :21.10.2021
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Sh. Dr. A.K. Dubey, Member (A)
1. Dilip Kumar Choudhary,
Son of Shri Ram Nihar Choudhary,
Aged: 45 years,
Residing at: Quarter No.37/435 Income Tax Colony,
Adarsh Nagar New Vadaj Ahmedabad.
Working as Sr. Tax Assistant, Circle 3 (1) (2)
Range 3 (1) Pratyaksh Kar Bhawan,
Ambawadi, Ahmedabad - 380 013.
2. Rajeev Kumar,
Son of Shri Mahesh Sing,
Aged: 44 years,
26, Utkarsh Society, Ambawadi,
Ahmedabad - 380 013.
...Applicants
(By Advocate Mr. A L Sharma)
VS
1. Union of India
Represented by the Pr. Chief Commissioner of Income Tax,
Officer of the Chief Commissioner of Income Tax,
2nd Floor Aayakar Bhavan, Ashram road,
Ahmedabad - 380 009.
2. The Secretary to the Government of India,
Ministry of Finance, Department of Revenue (CBDT),
Room No.460, 4th Floor, Hotel Samrat Chankyapuri,
New Delhi - 110 021.
3. The Zonal Accounts Officer
(CAT/AHMEDABAD BENCH OA NO.425/2019) 2
Zonal Accounts Office, Central Board of Direct Taxes,
4th Floor, Vasupujya Chambers, Ashram Road,
Ahmedabad - 380 014.
4. The Administrative Officer and
Drawing & Disbursing Officer (AO & DDO),
Range 3 (1) Pratyaksh Kar Bhawan
Ambawadi, Ahmedabad - 380 013.
5. The Administrative Officer and
Drawing & Disbursing Officer (AO & DDO),
Range 3 (2) Pratyaksh Kar Bhawan
Ambawadi, Ahmedabad - 380 013.
...Respondents
(By Advocate Ms. M M Bhatt)
ORDER
PER: Hon'ble Shri Jayesh V Bhairavia, Member (J)
1 The present OA has been filed under Section 19 of the AT Act 1985 by applicant against the impugned decision of respondent to revise the pay fixation dated 17.12.2015 seeking following reliefs:
"Para 8:
(A) The Hon'ble Tribunal be pleased to quash and set aside order dated 04.11.2019, directing recovery of the benefits from pay and allowances from the month of November 2019 onwards, failing which the salary bill of November 2019 would not be passed by the office of respondent No.3 as illegal, arbitrary, unconstitutional and contrary to the relevant government instructions, contrary to settled legal position, in utter violation of principles of natural justice, null and void.
(B) Be pleased to direct the respondents to continue making payment of salary to the applicants pursuant their orders dated 17.12.2015 and 31.12.2015 Annexure A-9 and A-10 respectively fixed pursuant to the instructions issued by the Ministry of Communication, Department of Revenue, (Central Board of Direct Taxes) for strict compliance of the instructions issued by the DOPT for fixation of pay of re-employed ex-servicemen, by its communication dated 14.07.2016 and not to reduce the pay of the applicants and effect any recovery from the salary of the applicants.
(C) Be pleased to allow this petition with costs and be pleased to quantify the cost.
(CAT/AHMEDABAD BENCH OA NO.425/2019) 3(D) Be pleased to grant such other and further reliefs as may be deemed just and proper by the Hon'ble Tribunal in the facts and circumstances of the case."
2 The brief facts as stated by applicant are as under:
2.1 The applicants herein, who were Ex Serviceman having retired from Indian Air Force, after clearing Staff Selection Examination vide order dated 04.11.2015, came to be appointed as Tax Assistants in Income Tax 2400/-.
2.2 In the month of December 2015, the applicants herein submitted their representations whereby they requested the respondents to fix their pay in terms of para-4(d) and 4(d)(i) of Central Civil Service (Fixation of pay of Re-employed Pensioners) order 1986 issued by DoP&T vide its OM dated 31.07.1986 read with the amendment of same issued vide OM dated 05.04.2010 (Annexure A/5).
2.3 By considering the said representations of the applicants, as also the provision of CCS Order 1986 issued by DoP&T alongwith the amendment OM dated 05.04.2010, the office of Additional Commissioner of IT Range 3(3), Ahmedabad vide its order dated 17.12.2015 (Annexure A/9) fixed the pay of applicant no.1 at Rs.16610/-
(14210+2400) in pay scale of Rs.5200-20200 (PB-1) & vide its order dated 31.12.2015 (Annexure A/10) fixed the pay of applicant no.2 at Rs.16840/- (14440+2400) in pay scale of Rs.5200-20200 (PB-1).
Vide Head Quarter query letter dated 23.08.2017, some query in respect of the pay fixation of applicant no.1 being a re-employed ex servicemen was raised to which the Administrative Officer and DDO Range 3(3) responded vide Annexure A/12 letter dated 31.08.2017 that the fixation in case of both the applicants have been made in accordance with the CCS Rules (Fixation of Pay Reemployed Pensioners) vide its order dated 1986.
2.3 It is contended that the respondent no.3, i.e. Office of Zonal Account Officer, CBDT, Ahmedabad thereafter vide impugned order dated 04.11.2019 (Annexure A/1) informed the Principal Chief Commissioner of Income Tax, Ahmedabad i.e. respondent no.1 herein that the benefit (CAT/AHMEDABAD BENCH OA NO.425/2019) 4 of pay protection granted to the ex-servicemen who have been appointed on re-employment in the IT Department, including the applicants herein are unjustified as per para 4(b)(2) of Central Civil Service (Fixation of pay of Re-employed Pensioners) order 1986 and DoP&T OM dated 01.05.2017 and OM dated 21.02.2017. Therefore, he had requested to respondent no.1 to look into the matter and stop henceforth giving such benefits in future and also effect recovery of those who have availed such benefit from pay and allowances from the month of November 2019 onwards, failing which the salary bill of November 2019 will not be passed by his office.
2.5 In response to the direction dated 04.11.2019, (Annexure A/1), the applicants herein have submitted detailed representations dated 15.11.2019 (Annexure A/13 & A/14) stating therein that:
(i) On their appointment (on re-employment), applicants joined IT Department, Ahmedabad as Tax Assistant on 04.11.2015 and their pay was fixed as per the policy in vogue at the relevant time of his joining i.e. OM dated 05.04.2010. Accordingly, their pay was fixed as per para 4(d) of CCS Order 1986 read with OM dated 11.11.2008 and OM dated 05.04.2010. Their pay was not fixed in terms of para 4(b)(2) of CCS Order 1986.
(ii) The para 4(d) of the said OM dated 05.04.2010 stipulates that "in case of ex-servicemen who held posts below commissioned officers rank in the Defence Forces and in the case of civilians, who held post below group "A' at the time of retirement, the entire pension and pension equivalent of retirement benefits shall be ignored while fixation of pay on re-employment.
(iii) The applicanst on appointment joined IT Department as Tax Assistant under Ex-servicemen quota in the month of June 2015 and his pay was fixed by the respondents vide order dated 17.12.2015 & 31.12.2015. Therefore, the OM/policy issued on or before his date of joining can only be made applicable to review or restructure his pay.(CAT/AHMEDABAD BENCH OA NO.425/2019) 5
(iv) On introduction of Central Civil Services (Revised Pay) Rules 2016, certain portion of para 4 of OM dated 05.04.2010 were amended by the DoP&T vide OM dated 01.05.2017 and 21.02.2017 and same has been made effective from on and after 1st day of January 2016. Therefore, the amended provisions of para 4 cannot be made applicable in the case of applicant.
On the aforesaid grounds and other grounds stated in their representations, applicants have requested the concerned authority to consider his submissions before revising his pay. 2.6 The said representation sof the applicant had not been considered by the respondents expeditiously and in apprehension of the recovery being made, as also re-fixation of his pay w.e.f. November 2019, the applicant has filed the instant OA.
3 The main contentions raised by Shri M S Rao, Learned counsel for applicant are as under:-
3.1 A close perusal of impugned order dated 04.11.2019 (Annexure A/1) of ZAO, CBDT, Ahmedabad, was issued by the respondent no.7 based on the premise that the CCS (Fixation of Pay of Re-Employed Pensioners) Order 1986 (Annexure A/11) read with DoPT's OM dated 01.05.2017 (Annexure A/12) and OM dated 21.02.2017 does not provide for "pay protection" to the ex-servicemen on their re-
employment in the civil service. However, a minute and close reading of the aforesaid CCS Order, 1986 makes it abundantly clear that said Order 1986 does not bar "pay protection" of an ex-serviceman.
It is submitted that, what is really barred is the "PAY SCALE PROTECTION". The para 4 of the said CCS Order 1986 stipulates that "Re-employed pensioners shall be allowed to draw pay only in the prescribed SCALES OF PAY for the posts in which they are re- employed and that NO PROTECTION OF SCALES OF PAY of the Post held by them prior to retirement should be given.
3.2 In the instant case the documents on record clearly demonstrate that while rendering the military service the applicants were drawing the PB-1 pay scale of Rs.5200- 20200 and on their re-employment as Tax (CAT/AHMEDABAD BENCH OA NO.425/2019) 6 Assistants in the Income Tax Department in December 2015 they were placed in the very same PB-1 pay scale of Rs.5200-20200. Therefore, there is no difference between the two pay scales. 3.3 Learned Counsel further submits that the revise pay fixation order dated 11.01.2016 issued by the income tax department gives protection to the applicant in terms of "pay" that he was drawing as Sailor as on 31.01.2013 in PB-1 Pay Scale Rs.5200-20200 which is the very same PB-1 Pay Scale granted to the applicant on his re- employment as MTS in Income Tax Department in December 2015. In this regard learned counsel also placed reliance on Para 4(a) of OM dated 05.04.2010 and the revised provision in OM dated 01.05.2017 wherein in para 7 the existing and revised provision on pay protection reads as under:
DoPT OM dated 01.05.2017 (Ann. A/12) in para 7 states as under:
Existing provision Revised provision
(1986 Orders read with OM dated 5th
April 2010
Para 4(a): Re-employed pensioners Order 4(a): Re-employed pensioners
shall be allowed to draw pay only in the shall be allowed to draw pay only in prescribed pay scale/pay structure of the Level in the revised pay structure the post in which they are re-employed. applicable to the post in which they are No protection of the scales of pay/pay re-employed. No protection of the structure of the post held by them prior scales of pay/pay structure of the post to retirement shall be given. held by them prior to retirement shall be given.
Note: Under the provisions of CCS (RP) Rules, 2008, revised pay structure Note: Revised pay structure in relation comprises the grade pay attached to the to a post will be as defined in Rule 3(ix) post and the applicable pay band of the Central Civil Services (Revised Pay) Rules, 20916.
The aforesaid table makes it clear that the impugned decision of respondent no. 7 whereby the interpretation of the Para 4(b)(2) is totally incorrect.
3.4 As per para 4(d) of the Order 1986, it is clear that in the case of ex-
servicemen who held posts BELOW the Commissioned Officer rank in the Defence Forces, the entire pension and pension equivalent of retirement benefits shall be ignored.
It is also submitted that the post of SAILOR in Indian Navy is far below the rank of Commissioned Officers and that is the reason (CAT/AHMEDABAD BENCH OA NO.425/2019) 7 why the respondent department while re-fixing the pay on 11.01.2016 had rightly ignored the pension that the applicant herein was then drawing. (Post in Air Force not mention) It is submitted that the para 4 (b)(2) of OM dated 05.04.2010 relates to the cases where the entire pension and pensionary benefits are not ignored for pay fixation. Hence, it is totally illogical on the part of respondent no.7 to take a stand that 4(b)(2) shall apply only to the Commissioned Officers.
3.5 Further it is argued that the paragraph of the said CCS Order 1986, under the head "PRE-RETIREMENT PAY" in the case of retired Defence Personnel of the rank of JCO, NCOP OR (OTHER RANK) in the Army and corresponding ranks in the Navy or Air Force, the items of emoluments mentioned there-under shall constitute "PRE-
RETIREMENT PAY", which means "PRE RETIREMENT PAY SCALE", and therefore it can be seen that without any application of mind to the expression "OR" referred to in the aforesaid sub paragraph, the respondent no. 7 has in undue haste proceeded to hold that the sub paragraph shall apply only to the Commissioned Officers. 3.6 Learned Counsel Mr. Rao further submits that there is a purpose behind the provisions contained in the last sub paragraph of the Paragraph under the head "PRE RETIREMENT PAY". It has to be read in the context of what is contained in the 4(b)(2) of Order 1986. In this regard, it is also submitted that the very same provisions are contained in the DoPT's OM dated 01.05.2017 issued in the wake of introduction of 7th CPC revised pay scales to Central Government servants and on a combined reading of both the orders of 1986 and 01.05.2017, it cannot be denied that pay protection to the ex- servicemen is not barred by the Government of India while fixing their pay in the very same scale of pay on their re-employment against a civilian post debitable to Civil Estimates.
3.6 It is further stated that the respondents in the present case are meting out discriminatory treatment to the applicant. It is also stated that in the Bhopal Zone of the Income Tax Department, two ex-servicemen viz.
(CAT/AHMEDABAD BENCH OA NO.425/2019) 8Ganesh Prasad Shaw and Shri Tapas Patra came to be granted/extended similar "pay protection" when they had joined the services of the Income Tax Department as Tax Assistant in May 2013 upon their re- employment, copies of said orders at Annexure A/13 and they are still enjoying the said pay protection and the ZAO, CBDT, Bhopal did not raise any objection whatsoever to the pay protection granted to the said two ex-servicemen.
3.7 It is submitted that an identical issue had come up before the Chennai Bench of CAT in the case of 25 ex-servicemen (OA No.1207 of 2015), wherein the ex-servicemen who were re-employed in the Income Tax Department when the Pr. CCIT, Tamil Nadu Zone had resorted to withdraw similar pay protection vide order dated 16.04.2015. The said OA came to be allowed and the impugned order was quashed and set aside vide order dated 22.07.2016. The learned counsel has placed reliance on the judgment passed by Delhi High Court in the case of Indian Council of Agriculture v/s Bidesh Singh & Ors decided on 19.09.2007 and submits that by relying on law laid down by Hon'ble Apex Court in the case of D G of Posts & Ors v/s B Raveendran & Anr, the Delhi High Court the pay of the ex-servicemen was rightly protected on being re-employed in ICAR. (Annexure A/14 colly). 3.8 Applicant has also placed reliance on the DoPT's OM dated 02.03.2016 (Annexure A/15) issued in the wake of Hon'ble Supreme Court's ruling in Rafiq Masih's Case and submits that no recovery can be made from the applicant herein.
4 Per contra, the respondents on receipt of notice have filed a detailed reply denying the contentions raised by the applicant. Ms M M Bhatt, Learned counsel appearing on behalf of the respondents mainly stated as under:
4.1 It is submitted that the applicant retired from Military services when he was holding the post below the rank of Commissioned Officer, i.e. Personnel below Officers rank (PBOR). Thereafter, he was reemployed in the Income Tax Department under the ex-servicemen quota and initially his pay was fixed in the pay scale of Rs.5200-
20200 with grade of Rs.1800/-.
(CAT/AHMEDABAD BENCH OA NO.425/2019) 94.2 DoPT vide OM dated 5.4.2010 (Annexure R/1), clarified that in all cases where the pension is fully ignored, the initial pay on re- employment shall be fixed as per the entry pay in the revised pay structure of the re-employment post applicable in the case of direct recruits appointed on or after 1.1.2006.
In the present case as the applicant has admittedly been appointed after 1.1.2006, his initial pay on re-employment shall have to be fixed as per entry pay in the revised pay structure of the re- employment as in the case of direct recruits and therefore the contention of the applicants that the pay fixation done in earlier service prior to his VRS has bearing on re-employment is without any basis.
4.3 Learned Counsel further submits that the existing provision with respect to fixation of pay of Ex-Serviceman on his re-employment as contained in CCS Order, 1986 read with the said OM dated 05.04.2010, i.e., para 4(d)(i) has not been change or amended on the introduction of pay-matrix vide the CCS (Revise Pay) Rule, 2016. The said existing provision of CCS Order, 1986, i.e., 4(d)(i) reads as under :-
"In the case of Ex-Serviceman who held post below Commissioned Officer rank, in 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 have to be ignored."
Therefore, it is submitted by the respondents that they had followed the said existing provision for fixation of the pay of the applicant. 4.4 Further, it is submitted that as per the instructions contained in the DOPT's OM dated 01.05.2017 (Annexure R/2), the 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 scales of pay / pay structure of the post held by them prior to retirement shall be given and thus it is clear that in both the OMs no pay protection on re-employment is to be given to the ex-servicemen.
(CAT/AHMEDABAD BENCH OA NO.425/2019) 104.5 In the Swamy's Compilation (Annexure R/3), the module of pay fixation, the example given to fix the pay on re-employment of the pensioner also reiterates the aforesaid stand. Further the DoPT's OM dated 21.02.2017 (Annexure R/4) which is a copy of information sought by Railway Board in relation to the above subject, it is clarified that the pay of non-commissioned ex-servicemen (PBOR) who retired from Defence Forces before attaining the age of 55 years is to be fixed as per the entry pay in the revised pay structure of the re-employed post applicable in the case of Direct Recruits appointed on or after 1.1.2006 without any pay protection of the last pay drawn. 4.6 It is further contended that the Department of Posts vide communication dated 17.09.2019 informed all the Heads of Circles about the judgment passed by CAT, Bangalore Bench in the case of Shri K Keshava Bhat v/s SSP Puttur Dn. & Ors dated 08.08.2019 wherein the claim of applicant for fixation of his pay on his re- employment as per para 16 of the CCS Order 1986 that too without ignoring his entire pension and other retirement benefit was not accepted by this Tribunal and OA was dismissed (Annexure R/5).
It is argued that in the present case the claim of applicants is also identical in nature to the case decided by CAT, Bangalore Bench, therefore the prayer sought in this OA by the applicant is also required to be rejected.
4.7 A reference has been made to letter dated 15.09.2015 whereby the Department of Posts informed all CPMG and others that the DoP&T vide dated 28.08.2015 issued clarification regarding fixation of pay of re-employed ex-servicemen pensioner retiring before attaining age of 55 years and who held post below commissioned officer rank in the Defence Forces, to the effect that in terms of the para 4 (b)(i) of CCS Orders, 1986 as amended vide OM dated 05.04.2010 that in the case of such re-employed ex servicemen the initial pay on re-employment shall be fixed as per the entry pay in the revised pay structure of the re-employed post applicable in the case of direct recruits appointed on or after 1,1,2006 as notified vide section (II), part A of first schedule (CAT/AHMEDABAD BENCH OA NO.425/2019) 11 to CCS (Revised Pay), Rules 2008. It is further stated therein that instructions do not provide for protection of last pay drawn before retirement, in such cases (Annexure R/6 colly).
4.8 Further, reliance has also been placed on judgments
(i) passed by Hon'ble Delhi High Court in Writ Petition (C) No.4410 of 2015, wherein it has been held that in the case of the non commissioned officers on their re-employment, the pay fixation requires to be fixed under relevant rules i.e. attached to the new civilian post, the right to reckon past service for pay fixation can arise only if provided by the rules. As per the rules 4(b) & (d) (i) for non commissioned employees, their previous pay and pension has to be ignored (Annexure R/7).
(ii) Full Bench judgment of CAT, Ernakulam Bench passed in OA Nos.192/2015 & 6 Ors (Annexure R/8) wherein it was held that the provision of Rule 4(b)(i) of CCS Order 1986 is not violative of article 14 & 16 of Constitution of India and same is applicable in the case of ex-servicemen who are PBOR for fixation of their pay on re-employment (Annexure R/8).
(iii) Order passed by CAT, Cuttack Bench in OA No.796/2015 decided on 09.04.2019.
4.9 Lastly Learned Counsel placed reliance on judgment reported in (2014) 13 SCC 598 U.T.Chandigarh & Ors. v/s Gurucharan and submits that the relief claimed by the applicant is beyond the extant Rules and contrary to the settled law.
5 The Applicant has filed rejoinder and denied the contention of the respondent. He reiterated what he had stated in the present OA. Further, Ld. Counsel for the applicant submits that the deponent of the reply filed by the respondent conveniently seeks to ignore the fact that even as per the DoP&T letter dated 28.08.2015 (Ann. R/6 to the reply) what is meant by the expression "the entire pension and pension equivalent of the retirement benefits shall be ignored" is the fact that "no deduction on this count is to be made from the initial pay fixed on re-employment".
(CAT/AHMEDABAD BENCH OA NO.425/2019) 12Further, learned counsel relied upon judgment dated 11.04.2019 passed by the Hon'ble High Court of Kerala at Ernakulam in the case of Mukund K. Rai & ors. Vs. Punjab National Bank & another and submits that in the said judgment the Court also held that the intention as reflected in the policy of Govt. of India was to protect the last pay drawn of the concerned Ex-Serviceman in the armed forces. The apparent intention was to ensure that the Ex-Serviceman at the time of employment in the Public Sector Bank does not get an amount as pay lesser than what he was drawing while in defence service.
Further, he placed reliance on clarification dated 24.07.2009 issued by Ministry of Defence GOI with respect to pay and allowance of retired armed forces officers on re-employment in the armed force and submits that pay of applicant is required to be protected on his re-employment and as such the respondent ought not to have revised his pay which was correctly fixed vide order dated 11.01.2016. He submits that subsequent decision of the respondent vide impugned order for re-fixation of applicant's pay as also the proposed recovery is unjustified, arbitrary in as much as the representation filed by the applicant has not been decided and even otherwise the impugned decision is bad in law. (Rejoinder not filed) 6 Heard the learned counsel for both the parties and perused the materials placed on record.
7 It is apt to mention that when the matter first came up for hearing, this Tribunal vide order dated 22.11.2019 issued notice to respondents and by order dated 28.11.2019 way of interim relief, the recovery pursuant to impugned order dated 04.11.2019 was stayed till the next date. The said interim relief was extended from time to time. After filing of reply by the respondents on 07.03.2020 the matter was pending for rejoinder and hearing. Due to the prevailing Covid 19 pandemic neither the matter could be taken up for further hearing nor the applicant could file the rejoinder. In the meanwhile, the applicant has filed MA No. 389/2020 for early hearing before the Bench. In the said MA the applicant has also produced the order dated 01.10.2020 passed by respondent no.3 and in view of order passed in OA 427/2019, the order dated 12.10.2020 passed by respondent no.8 (CAT/AHMEDABAD BENCH OA NO.425/2019) 13 (Annexure MA/3 & MA/4) whereby the said respondent has stated that this Tribunal has granted stay only against recovery and not for fixation of pay. Therefore, the pay of the applicant as well as others were also directed to be re-fixed as per entry pay of their respective posts. The applicant in the said M.A. had also prayed for stay against the said order of re-fixation of pay and to permit him to place his rejoinder on record. Considering the submission of the parties, this Tribunal fixed the matter for final hearing on 05.11.2020 and also recorded the assurance given on behalf of respondent that, "Till the final hearing, the respondent will not disturb existing pay of the applicant." Accordingly, the said MA was allowed by this Tribunal vide order dated 14.10.2020. Thereafter, on the request of counsel for parties, the matter was adjourned time to time and the interim relief granted on both recovery and re-fixation of pay was ordered to be continued. (Just mentioned about order passed in OA 427/2019) 8 In the present case it is noticed that learned counsel for both the parties have relied on the provisions of Rule 4 of CCS Order 1986 (Revised and amended time to time) for the purpose of pay fixation on re-employment of ex- servicemen, such as applicant herein. It is not in dispute that applicant while working as Sailor i.e. non commissioned official in Indian Air Force took voluntary retirement before attaining the age of 55 years, thereafter, after retirement, under ex-servicemen quota joined IT Department Ahmedabad as Tax Assistants. As they joined on re-employment being ex-servicemen, admittedly their pay was required to be fixed as per provision of CCS Order 1986 (Revised and amended time to time). The relevant portion of para 4 of the said CCS Order 1986 as amended vide OM 05.04.2010, which was in vogue at the time the applicant joined as ex-servicemen reads as under:
"Para 4(a) Re-employed pensioners shall be allowed to draw pay only in the prescribed scales/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.
Note: Under the provisions of CCS (RP) Rules 2008, revised pay structure comprising the grade pay attached to the post and the applicable pay Band.
4 (b)(i) ; In all cases where the pension is fully ignored, the initial pay on re-employment shall be fixed as per entry pay in the revised pay structure of the re-employed post applicable in the case of direct recruits appointed (CAT/AHMEDABAD BENCH OA NO.425/2019) 14 on or after 01.01.2006 as notified vide Section (II), Part A of first Schedule to CCS (RP) Rules, 2008.
4(b) (ii) ; .........
4(c) .................
4(d) ; In the case of persons retiring before the age of 55 years and who are re-employed, pension (including PEG & other forms of retirement benefits) shall be ignored for initial pay fixation on 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 post 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.4000/- of the pension and pension equivalent retirement benefit shall be ignored. (emphasis supplied).
9 It is apt to mention that with reference to clarification sought by Department of Posts for fixation of pay of re-employed/ex-servicemen pensioners retiring before attaining the age of 55 years, who held post below commissioned officer rank in the Defence Forces and also whether the last pay drawn before retirement is subject to protection or not, the DoP&T vide its clarification/instruction dated 28.08.2015 (Annexure R/6 colly referred) reiterated and pointed out that:
"para 4(a), 4(b)(i) and 4(d)(i) of CCS (Fixation of pay of re- employed pensioners) Orders, 1986 as amended vide this department's OM dated 05.04.2010, provided that in case of ex servicemen who held post 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, pension and pension equivalent of retirement benefits shall be ignored, i.e. so, no deduction on this count is to be made from the initial pay fixed on re-employment. Also, in terms of the para 4(b)(i) of CCS Orders 1986 as amended vide OM dated 05.04.2010, the initial pay on re-employment shall be fixed as per the entry pay in the revised pay structure of the re-employed post applicable in the case of direct recruits appointed on or after 1,1,2006 as notified vide section (II), part A of first schedule to CCS (Revised Pay), Rules 2008. This instruction do not provide for protection of last pay drawn before retirement, in such cases."(CAT/AHMEDABAD BENCH OA NO.425/2019) 15
10 It is further noticed that the DoP&T again issued advice/clarification vide OM dated 21.02.2017 to the effect that the pay of non commissioned ex- servicemen (PBOR) who retired from the Defence Forces before attaining the age of 55 years is to be fixed as per the entry pay in the revised pay structure of the re-employed post applicable in the case of direct recruits appointed on or after 01.01.2006 without any protection of last pay drawn, in accordance with prevailing guidelines vide para 4 of OM dated 31.07.1986 as amended vide OM dated 05.04.2010 which provides for methodology of pay fixation on re-employment.
11 At this stage, it is appropriate to refer the law laid down by Hon'ble Apex Court in the case of U.T. Chandigarh & Ors v/s Gurucharan Singh & Anr 2014 (13) SCC 598, wherein the ex-servicemen was re-employed by the Chandigarh Transport undertaking under ex-servicemen quota as a clerk. Upon his re-employment as a clerk his pay had been fixed and was paid salary accordingly. Only after his retirement as clerk it was brought to the notice of the employer, on getting an audit query, that his salary had been wrongly fixed under the order dated 2nd September 1992. The mistake committed in pay fixation had been rectified by an order dated 30 th October 1998. Being aggrieved by the re-fixation, the said ex-serviceman approached the Chandigarh Bench of this Tribunal the OA filed by him was dismissed. Being aggrieved he filed Writ Petition before High Court, the said Writ Petition was allowed. The judgment passed by High Court was subject matter before Hon'ble Apex Court. After referring the Central Civil Services (Fixation of pay of re-employed pensioners) Order 1986 under which pay of the said ex-serviceman was fixed and also considering the option form filled up by the ex-servicemen whereby he agreed to get his pay fixed as per the minimum of pay in the pay scale of the clerk, the post to which he had been re-employed, The Hon'ble Apex Court held that as the there would not be any deduction from his pension on account of the pension received by him from Indian Army, in such case if nothing has been deducted from the pension of the ex-servicemen upon being re- employed and he would continue to get his pension and other benefit from the Army, it is not right to permit the said employee to get his pay fixed by (CAT/AHMEDABAD BENCH OA NO.425/2019) 16 taking into account the last pay drawn. Therefore, mistake committed by the department in granting higher pay than the entitled initial pay is rightly rectified vide impugned order.
The Hon'ble Apex Court in the said case also upheld the recovery of excess payment since the employee had agreed to get his pay fixed as per the minimum of pay in the pay scale of the clerk, i.e. post to which he had been re-employed.
12 Further, the Full Bench of this Tribunal at Ernakulam Bench in the case of Manichandra Kumar G.R. v/s UoI, Department of Posts and Ors as also other connected OAs had considered the question "whether the Rule 4(b)(i) of the CCS Order, 1986 is violative of Article- 14, 16 & 21 of the Constitution of India and whether Ex-Serviceman who are PBOR(Persons Below Officers Rank) entitled to have their fixation of pay which reference to the pay drawn at the time of their discharge from Armed Forces or whether they are entitled for fixation at minimum of the pay scale of re- employed a pensioners? As also the question "whether the Ex-Serviceman who are combatant category are entitle to the benefit of fixation of pay in terms of CCS Orders, 1986 read with OM dated 05.04.2010 issued by DoP&T; the Full Bench of this Tribunal vide order dated 27th March 2019 answered the said question as under :
"The object sought to be achieved is the welfare of the Ex- Serviceman who retired from forces before the attained the age of 55 years. The classification made under the Rule 4 of the CCS (Fixation of Pay on Re-employment) Order, 1986 for the purpose of pay fixation is reasonable and cannot be considered as discriminatory to PBOR or non-commissioned officers as alleged by the applicant. We cannot find any injustice, manifest in the classification made in the Rules."...... "We are of the opinion that Rule 4(b) (i) of the CCS (Fixation of Pay on Re-employment) Order, 1986 does not offend Article- 14 & 16 of the Constitution as alleged. No discrimination can be found against non-commissioned officers."
And finally in para 15 of the said order it has been held that :-
"In the result we answered the reference in favour of the respondent. Rule 4(b)(i) of the CCS (Fixation of Pay on re- employment) Order, 1986 does not violate the principle of equity enshrined under Article - 14 & 16 of the Constitution."(CAT/AHMEDABAD BENCH OA NO.425/2019) 17
13 The Hon'ble Delhi High Court in the case of Dharmendra Singh Rana & Ors v/s The Government of NCP of Delhi & Anr. (WP. (C) 4410/2015 decided on 12.01.2018) wherein the claim of re-employed ex-servicemen for grant of due weightage to their previous public employment in the forces and placing them at the relevant pay scale and stage of pay instead of pay and pay fixation as fresh entrants in respondent authorities (i.e. the High Court establishment) was not accepted and held that the ex-servicemen, since they are non commissioned employees they were entitled to pay fixation under Rule 4(b) and (d)(i) and their previous pay and pension has to be ignored. 14 It can be seen from the provision stipulated in CCS Order 1986 that for fixation/drawal of employees appointed on re-employment basis and more particularly in the case of ex-servicemen who was holding post below Commissioned Officer Rank in the Defence Force, the para 4(b)(i) and 4(d) of OM dated 05.04.2010 in unequivocal terms stipulates that the pay of such pensioner/ex-servicemen on their re-employment would need to be fixed at the entry pay in the revised pay structure of the re-employed post in the case of direct recruits appointed on or after 01.01.2006 that too by ignoring the pension/pensioner benefits.
15 In the present case, since the applicants herein undisputedly were re-
employed, after 01.01.2006, i.e. on 04.11.2015 under ex-servicemen quota as Tax Assistants in IT Department, Ahmedabad and admittedly nothing has been deducted from his pension the pay of the applicant also require to be fixed at the entry pay in the revised pay structure of Tax Assistants.
Under the circumstances, the submission of the applicants that the last pay drawn by him while working as Sailor require to be protected and to justify the said claim, the applicant has attempted to distinguish the provision of para 4 of the order 1986 by stating that the said provision do not bar the "pay protection" of an ex-army man and the said CCS Order 1986 only barred the "Pay scale protection". According to the applicants they were drawing PB-1 pay scale 5200-20200 while rendering military service and on their re-employment as Tax Assistant, the respondent IT Department in December 2015 placed them in the very same PB-1 scale of Rs.5200- (CAT/AHMEDABAD BENCH OA NO.425/2019) 18 20200. In other words there is no difference between the two aforesaid pay scale. As such, they were granted the protection in terms of "pay" that they were drawing in the very same PB 1 pay scale granted to them. 16 It can be seen that on the one hand applicants admit that their pay requires to be fixed in terms of para 4(d) & d(i) and also demand to protect their last pay drawn at the time of his retirement, the said submission of the applicants runs contrary to the said provision. In this regard it can further be seen that para 4(d) stipulates that "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 initial pay fixation in the extent (i) "in the case of ex-servicemen who held post below Commissioned Officer rank in the Defence Force and in the case of civilians who held post below group 'A' post at the time of their retirement, the entire pension equivalent of retirement benefit shall be ignored" At this stage, it is also appropriate to mention that to resolve the controversy, the said provision of para 4(d) and 4(d)(i) require to be read with provision of para 4(a) and para 4(b)(i). The para 4(a) "allows to draw pay only in the prescribed scale/pay structure of the post in which the re-employed pensioners are appointed. No protection of the scales of pay/pay structure of the post held by them prior to retirement shall be given" and Para 4(b)(i) states that "where the pension is fully ignored the initial pay on re- employment shall be fixed as per entry pay in the revised pay structure of the re-employed post". Therefore, the submission of the applicants that the pay which was last drawn by them before retirement needs to be protected is not tenable in light of unequivocal terms of DoP&T OM dated 05.04.2010. The judgments relied upon by the learned counsel for applicant is of no help in the facts and circumstances of the present case. 17 The general principle of administrative law is that the administrator/employer can correct a mistake made when an erroneous fixation is made. When the employer corrected an erroneous fixation which had given the employee a higher basic pay, then what was lawfully applicable to him, the Court repelled the challenge to such correction and such action of the employer cannot be termed as any legal infirmity in the (CAT/AHMEDABAD BENCH OA NO.425/2019) 19 said decision. In view of this factual matrix, if the pay of the applicants were not fixed in terms of aforesaid provision, the employer i.e. respondent herein are within their right to correct the mistake by way of re-fixation of pay.
18 In the present case we have also noticed that the respondent nos. 3 & 4 in their impugned orders stated that the pay of the applicants fixed is not justified in terms of para 4(b)(ii) of CCS Order 1986 ( revised from time to time). The said para 4(b)(ii) reads as under:
PARA 4(b)(ii) In case 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. However, he shall be granted the grade pay of the re-employed post. The maximum basic pay cannot exceed the grade pay of the re- employed post plus pay in the pay band of Rs.67000 i.e. the maximum of the pay band PB-4, in all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed.
Illustration A Colonel who retired with basic pay of Rs.61700 (grade pay Rs.8700; pay in the pay band Rs.53000) is re-employed as a Deputy Secretary in an organized with grade pay of Rs.61700. However, his grade pay on re- employment will be Rs.7600 and the pay in the pay band Rs. 54100. Thereafter, the non-ignorable part of the pension will be reduced from the pay so fixed.
Note: In the revised pay structure, basic pay is pay in the pay band plus the grade pay attached to the post.
It can be seen that the aforesaid para 4(b)(ii) relates to the cases where the entire pension and pensionary benefits are not ignored for pay fixation. In the present case it is not made clear by the parties whether the pay fixation order dated 11.01.2016 granted to the applicant is without ignoring his pension and pensionary benefits. If that is so, then considering the service record of the applicants, more particularly, they being non commissioned official, his pay ought to have been re-fixed in terms of para 4(b)(i) and para 4(d) & (d)(i). Even otherwise, the pay fixation and the order thereon dated 11.01.2016 issued in favour of the applicant is required to be tested by the employer, whether the same meets with requirement of binding provision of para 4(b)(i), 4(d) & (d)(i) for correct fixation of the pay of non commissioned official ex-servicemen i.e. applicants herein.(CAT/AHMEDABAD BENCH OA NO.425/2019) 20
19. In view of above, the decision/order of fixation of pay of the applicant admittedly requires to be re-examined as has been proposed by the respondents without there being any influence of order dated 04.11.2019, 07.11.2019 and 13.11.2019 (Annexure A/1, A/2 & A/3) but in strict compliance of para 4(a) read with 4(b)(i), 4(d) & (i) of Central Civil Services (Fixation of pay of re-employed pensioners) Order 1986 (revised and amended from time to time) read with OM dated 05.04.2010 by granting due opportunity to the applicant before any order of pay fixation/re-fixation is passed. Accordingly, the matter is remitted back to respondents to expeditiously complete the aforesaid exercise within a period of three months.
20. In view of aforesaid direction, respondents are restrained from implementing the order dated 13.11.2019 issued by respondent no.8 till the above stated direction is fully complied with.
21. Accordingly OA stands disposed of. No order as to costs.
(A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
abp