Central Administrative Tribunal - Hyderabad
Shri T.T.M. Tharakan S/O Abraham Thomas vs The Director General, Employees State ... on 3 August, 2007
ORDER
P. Lakshmana Reddy, J. (Vice Chairman)
1. This is an application filed by the applicant aggrieved of the rejection of his request for refixation of his pay in the cadre of Deputy Director of first respondent organisation in accordance with Rule 19 of Central Civil Services (Pension) Rules 1972 read with CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986 duly taking into consideration the service in military rendered by the applicant.
2. The relevant facts in brief are as follows:
The applicant, Mr. T.T.M. Tharakan joined civil service under the Accountant General, Kerala and served there from 15.2.79 to 31.8.83. Thereafter, he joined the military service, i.e. Army service on 4.9.83. After rendering more than 12 years of service he opted for voluntary premature retirement with effect from 14.9.95. Accordingly, he was permitted to retire. His pre-commissioned civil service was also counted for pensionary benefits by the military authorities. His military service was taken as 16 years 6 months and 29 days. After his retirement, he was paid Rs. 67,200/- towards retiring service gratuity and Rs. 79,748/- towards death-cum-retirement gratuity.
3. After retirement he worked as a Manager in a Private Company by name Escotel Communication between the period December 1997 to March 1998. Thereafter, in pursuance of an advertisement issued by the Union Public Service Commission, inviting applications for the post of Deputy Director in ESI Corporation, he applied for the same and got selected to the post. The ESI issued orders dated 1.1.98 offering him the said post in the scale of Rs. 8000-275-13500 with a stipulation that the applicant shall be entitled to the pay as stipulated under the rules or the instructions issued by the Government of India in the said scale. The applicant accepted the offer and joined as Deputy Director in ESI Corporation on 4.1.98. Thereafter, he claimed that he is entitled to his pay fixed in post-retirement civil service duly taking into account the military service rendered by him in the armed forces. His request was not taken into account at the time of fixation of his initial pay and his pay was fixed in the minimum of Rs. 8,000/-. Then the applicant submitted a representation dated 5.11.98 to Director General requesting him that his pay has to be refixed taking into account his past service in the armed forces besides counting the said past service for pensionary benefits in the civil service. On 22.6.99, the Joint Director of ESI Corporation issued an office order stating that the Director General has approved the appointment of the applicant as Deputy Director in regional office at Hyderabad ESI Corporation with effect from 1.5.98 in the pay scale of Rs. 8000-275-13500 on temporary basis and that he will be on probation for a period of two years and that he will draw an initial pay of Rs. 8,000/- p.m. in the pay scale of Rs. 8000-275-13500 pending fixation of pay, if necessary. Thereafter on 14.9.99, the applicant wrote a d.o. letter to the Additional Commissioner, Pay & Accounts, Headquarters, ESI Corporation requesting him to dispose of his representation in accordance with the existing rules and that on receipt of communication from the headquarters he may have to remit the retiral benefits received by him as per rules along with interest since his retirement in 1995. Thereafter, on 20.9.99, he submitted another representation to the Director General, ESI Corporation, New Delhi intimating him the last pay drawn before his retirement in pre-revised scale, equivalent pay as per the revised scale according to fixation table and the stage in the scale at which pay is to be fixed. In that representation it is stated that his pay has to be fixed at Rs. 11,575/- as his last pay drawn was Rs. 4,350/- in the pre-revised scale which is equivalent to Rs. 11,370/- in the revised pay scale. But on 13.10.99, the ESI Corporation, New Delhi issued memorandum informing him that the Additional Commissioner (Personnel & Administration) fixed the pay of the applicant at Rs. 8,000/- with effect from 1.5.98 in the scale of Rs. 8000-275-13500/- with next date of increment on 1.5.99.
4. Later on 23.11.99, the Regional Office of ESI, Hyderabad advised the applicant to deposit the amount of terminal benefit received from his previous employer along with interest @ 12% per annum from the date of receipt till date of deposit in ESI Fund Account No. I and submit the challan to take further action on the subject, viz. Account of past service as directed by the headquarters letter dated 17.11.99. Accordingly, the applicant remitted about Rs. 1,75 lakhs to the ESI Corporation during the year 1999. As his pay was not re-fixed, even after the deposit of the retirement benefits, he submitted a representation to the Additional Commissioner, Pay & Accounts on 30.12.99 informing him that as per headquarters letter dated 17.11.99 he has remitted terminal benefits received from military authorities with interest @ 12% per annum from the date of joining as required vide para 2 of G.I. Dept. of Pension and Pension Welfare O.M. No. 28/50/87- P&P W. dated 31.5.88 which was an amendment to Rule 19 of CCS (Pension) Rules. He further stated therein that on repayment of terminal benefits for counting of his past service, his pay is also required to be refixed according to the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders 1986. He requested for the early re-fixation. He sent several reminders thereafter. On 8.8.2000, the second respondent informed the applicant that there is a short payment of an amount of Rs. 1515/- towards interest and directed him to make the short payment. Accordingly, the applicant remitted the said amount also.
5. Prior to that on 10.3.2000, the E.S.I. Headquarters, New Delhi addressed letter to Regional Director, ESI Corporation, Hyderabad stating that the question of pay protection to the applicant does not arise since the applicant has joined the service of ESI corporation after leaving the service of a private company and therefore, the rules quoted by the applicant have no relevance in this case and the pay has been correctly fixed. Thereafter, the applicant submitted another representation to the Director General on 16.3.2000 stating that he has never asked for pay protection and he made representation only for re-fixation of his pay as re-employed ex-serviceman in civil service as per the rules in existence and that the fixation of pay will be as a result of counting of his past service and the full repayment of retirement benefit obtained from military authorities. The applicant further stated therein that the relevant rules are not being correctly referred to in his case. On 6.4.2000, the headquarters of ESI Corporation, New Delhi addressed another letter to the Regional Director, Hyderabad to inform the applicant that the pay fixation made on 13.10.99 is correct as per rules. The very next day, the applicant made representation to the Regional Director requesting that the regional office may analyse the case and apprise the correct rule position to headquarters office so that they can be specific in considering his case with the existing rules on the subject. He further stated therein that though he had repaid the full retiral benefits to the Corporation almost five months back (i.e. on 21.11.99), no action has been taken to refix his pay. On 25.4.2000, he wrote another d.o. letter to the Additional Commissioner, Pay and Accounts, Headquarters, ESI Corporation reiterating that he is asking for refixation of pay taking into consideration his past service as per rules relating to re-employed ex-servicemen. He asserted that he is eligible for re-fixation besides counting of past service as per existing rules on re-employment. The applicant submitted another representation on 14.11.2000 with the same request to the Joint Director, ESI Corporation, New Delhi. He submitted another d.o. letter to the Additional Commissioner (Vigilance), ESI Corporation, New Delhi on 10.1.2001 with request to look into the matter of his re-fixation of pay. On 17.7.2001, the Headquarters, New Delhi wrote a letter to the Regional Office, Hyderabad with a direction to inform the applicant that as the applicant is not covered under the definition of ex-serviceman, the pay fixation dated 13.10.99 in the case of the applicant is correct. On 2.8.2001, the applicant made another representation to the Director General, ESI Corporation, New Delhi asserting that he is eligible for re-fixation of pay as per the Govt. of India, Department of Personnel and Training OM No. 3/13/89-P.II dated 22.1.91 as he fulfilled both the conditions, i.e. To have opted for combined service and refunded the terminal benefits in full. On 16.4.2002, the applicant addressed another representation to Joint Director, ESI Corporation, New Delhi through proper channel with a request to place before the Director General to decide whether the provisions of Govt. of India, DOPT OM No. 3/13/89-P.II dated 22.1.91 is applicable in his case or not and the same may be clarified. On 16.5.2002, he submitted another representation through proper channel. On 20.5.2002, the first respondent addressed letter to the Regional Office, Hyderabad with the request to inform the applicant that he is not covered under ex-serviceman category as he did not earn any pension before quitting army service and as such he is not eligible for re-fixation of pay as ex-serviceman.
6. Aggrieved by the ultimate rejection of re-fixation of his pay taking into account his military service, he filed this OA reiterating the contentions raised in the representation submitted to the respondents and seeking the above referred relief.
7. The respondents contested the application and filed reply affidavit of the Regional Director, ESI Corporation, Hyderabad, the third respondent. In the said reply, the respondents have stated that the applicant himself has stated in his letter dated 5.11.98 that he was not in receipt of any pension for his past service. Therefore, his pay cannot be fixed taking into consideration his last pay drawn. It is pleaded that only when the applicant comes under the definition of `ex-serviceman', he is entitled for fixation of the pay with reference to the pay drawn by him in his previous post. The Army Headquarters, New Delhi, in their letter dated 16.4.2002 informed the respondents that the applicant was not covered under ex-serviceman category as he did not earn any pension before quitting army service. The applicant in his letter dated 16.5.2002 stated that the clarification must be obtained from DOPT and therefore, a reference was made to the Ministry of Defence on 31.3.2003 asking for clarification whether the applicant was an ex-serviceman and whether he can be given pay protection as ex-serviceman as per the provisions relating to the re-employed persons and a reminder was also sent to the Ministry of Defence on 14.7.2003 and that if it is confirmed by the parent department of the applicant that he is an ex-serviceman, he can be given benefit of pay protection as ex-serviceman, the respondents are prepared to fix his pay accordingly and that the final decision in this regard is pending only for want of clarification from the Ministry of Defence. It is further stated that the requisite certificate from the previous employers of the applicant indicating the period of his past service as qualifying past civil service for determining the retirement benefits has not yet been furnished by the applicant in spite of several letters dated 18.10.2000, 20.11.2000, 23/26.3.2002 and 12.1.2004 and the said certificate is essential for counting his past service rendered in the army and AG's office. It is admitted in the reply that the applicant deposited an amount of Rs. 1,74,414/- on 25.11.99 and another sum of Rs. 1,515/- on 9.8.2000. But, it is stated that the said amount was received as a preliminary step towards counting of his past service, and that however, the applicant has not submitted the requisite certificate issued by his erstwhile employer indicating the period of his past civil service as qualifying service for determining the retirement benefits and that in the absence of the same, his services cannot be counted for combined pensionary benefits. The respondents have not denied the revised pay fixation of the applicant but because of the negative reply given by the Additional Directorate General on 16.4.2002 stating that the applicant was not an ex-serviceman pay could not be refixed. It is further pleaded that the applicant ought to have impleaded his previous employers for better adjudication of the dispute and in fact they are necessary parties to this OA as the claim of the applicant depends upon their reply. It is further pleaded that the OA is premature and is devoid of merits.
8. After filing the reply, the respondents on 16.10.2004 filed MA 710/2004 for permission to file letter dated 24.8.2004 written by Additional Adjutant General, Army Head Quarters, New Delhi to the Joint Director, ESI Corporation, New Delhi, whereunder the military headquarters advised the ESI Corporation to seek advice of DOPT Establishment Section regarding the fixation of the pay of the applicant. The said MA is allowed and the document received. Thereafter, another MA 52/2005 is filed requesting the Tribunal to receive the letter of Dept. of Pension & PW I.D. Note No. 28/6/2001- P&W (B), dated 2.9.2004 as additional material for the purpose. The said MA is also allowed and the said letter dated 2.9.2004 is also received. In the said letter, the Department of Pension and Pensioner Welfare, stated that the ESIC cannot be treated as central autonomous body with reference to OM dated 29.8.2004 as amended from time to time and the Central Government employees joining ESIC will continue to be eligible for pro rata pensionary benefits under Rule 37 of Pension Rules 1972 which is applicable to the PSU and other statutory bodies as per O.M. dated 29.8.1984.
9. During the course of hearing, the learned Counsel for the applicant reiterated the contentions raised in the application. He invited our attention to Rule 19 of the CCS Pension Rules and also the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders 1986 wherein the word 'pension' is defined under Rule 3(1) and also prescribed the method of fixation of pay of the re-employed pensioners under Rule 4 of the said Orders. He submitted that one need not receive monthly pension in previous service in order to claim benefits under Central Civil Service (Fixation of Pay of Re-employed Pensioners) Orders 1986 and as per the definition given in Section 3(1) 'pension' means the gross monthly pension and/or pension equivalent of death-cum-retirement gratuity and/or pension equivalent of gratuity and or Government's contribution to the Contributory Provident Fund and/or other retirement benefits if any payable under the Central Civil Services (Pension) Rules 1972 and that as the applicant admittedly received not only retiring service gratuity but also death-cum-retirement gratuity for the service rendered by him in the army and therefore, it cannot be said that he is not a pensioner entitled to the benefits of Central Civil Services (Fixation of Pay of Re-Employed Pensioners) Orders 1986 in the event of re-employment. He submitted that as the applicant appeared for the examination conducted by the UPSC and got selected on his own merit in the open category and not under ex-serviceman category, it is immaterial whether he comes under the definition of 'ex-serviceman'. He further submitted that as per Rule 19(1) of the CCS Pension Rules, a Government servant who is re-employed in civil service, before such re-employment, had rendered military service, on his confirmation in the civil service, can opt either to retain gratuity received on discharge from military service in which case his former military service shall not be counted as qualifying service or he may opt to refund the amount of retirement gratuity including service gratuity if any and count previous military service as qualifying service. He submitted that as the applicant opted for refund of terminal benefits received from the military authorities and remitted back the amount on the advice of the respondents, the applicant is entitled not only for treatment of his military service as qualifying service in civil service at the time of superannuation, but also for re-fixation of his pay in accordance with Order 4 of Central Services (Fixation of pay of re-employed pensioners) Orders 1986 and that the respondents without properly applying their mind to the relevant rules, took different stands at different stages and erroneously rejected the claim of the applicant and hence the impugned orders of rejection are liable to be set aside and the pay of the applicant has to be re-fixed in accordance with Rule 19(1) of CCS Pension Rules read with Order 4 of CCS (Fixation of Pay of Re-Employed Pensioners) Orders 1986 and Government Instructions dated 22.1.1991.
10. On the other hand, the learned standing counsel submitted that as the applicant does not come under the definition of 'ex-serviceman' as he did not earn his pension, he cannot be called as re-employed pensioner and hence he is not entitled for the benefits of Rule 19(1) or Rule 4 of the CCS (Fixation of Pay of Re-Employed Pensioners Orders) 1986. He submitted that the application is devoid merits and is liable to be dismissed.
11. The points that arise for consideration are:
(i) Whether the applicant is entitled for the benefit of Rule 19(1) of CCS Pension Rules for the purpose of counting his military service as qualifying service in the civil service post in which he is re-employed at the time of superannuation from civil service?
(ii) If so, if the applicant is entitled for refixation of his pay in accordance with Rule 4 of CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986?
(iii) Whether the impugned orders of rejection of the request of the applicant are sustainable in law?
(iv) To what result?
12. Point No. (i):
For better appreciation of the rival contentions in this regard, it is useful to extract relevant portion of Rule 19 of the CCS Pension Rules:
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:
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 for 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 for Clause (a) of Sub-rule (1).
(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.
As seen from the above said Rule (1), the Government servant who is re-employed in civil service had served in the military prior to appointment in civil service, after confirmation in the re-employed civil post he has got option whether either to continue to enjoy retiral benefits received for his military service or to refund the retiral benefits to the employer. In the event of his retaining the retiral benefits, his military service prior to re-employment in civil service cannot be treated as qualifying service for the purpose of retiral benefits at the time of retirement from the re-employed civil post. In other words, the military service cannot be treated as qualifying service in the civil post. In case he opts not to retain the retiral benefits obtained in the past military service and to refund the same to the new employer, the period of his entire military service shall be counted as qualifying service in the re-employed civil service. Here, in the instant case, admittedly, the applicant served in the military and took premature retirement. As seen from the certificate annexed at page 45 to the application, Addl. Dte General, Manpower (Police and Planning), Adjutant General's Branch, Army Head Quarters, New Delhi dated 16.4.2002, the applicant bearing No. IC-42258 Maj TM Tharakan was commissioner in the army on 4.9.1983 and retired prematurely from service on 15.5.95 and further the said officer had served in civil service from 14.2.79 to 31.8.83 prior to joining in military service and the same has also been counted towards military service vide CCDA (Pension) letter No. G1/M/47221/C5 dated 5.8.92 and therefore, the total service rendered by the officer including civil service is 16 years, 6 months and 29 days was treated as military service for calculation of retrial benefits. From this certificate issued by the Army Headquarters, New Delhi, it is clear that the applicant served in the military for a period of 16 years, 6 months and 29 days. As seen from the Annexure at page 40, the Army Headquarters paid Rs. 67,200/- towards retiring service gratuity and Rs. 79,748/- towards death-cum-retirement gratuity. As seen from the letter at Annexure page 23 dated 23.11.99, the third respondent wrote a letter to the applicant under the subject `counting of past service' in respect of the applicant, advising the applicant to deposit the amount of terminal benefits received from his previous department along with interest @ 12% p.a. from the date of receipt till the date of deposit in ESI Account No. I and submit the challan to take further necessary action on the subject as directed by the Headquarters Office letter No. A.40/12/553/99.E.III dated 17.11.99. Therefore, it is clear that the applicant opted for refunding the terminal benefits received from his previous employer, Military Headquarters, New Delhi. As seen from the letter of the applicant dated 30.12.99 addressed to the Additional Commissioner, Pay & Accounts, ESI Corporation, the applicant stated that he has remitted the terminal benefits received from military authorities with interest @ 12% from the date of joining as required vide para 2 of G.I., Dept. of Pension and Pension Welfare, O.M. No. 28/50/87- P&P.W dated 31.5.88 which was an amendment to Rule 19 of CCS (Pension) Rules. The third respondent addressed another letter dated 8.8.2000, stating that there is a short payment of an amount of Rs. 1,515/- by the applicant towards interest and the applicant paid the said amount also. Thus, it is clear that he opted to refund the retrial benefits and accordingly refunded the same as required under Rule 19(1). Therefore, the applicant is entitled for the benefit of Rule 19(1) and his military service shall be treated as qualifying service for the purpose of calculating the terminal benefits at the time of future retirement from the ESI Corporation. In fact, the respondents themselves advised the applicant to refund the terminal benefits received from the military authorities for that purpose. Therefore, it is obvious that the respondents have no serious objection to treat the military service of the applicant as qualifying service in the re-employed civil post. The correspondence between the applicant and the respondents go to show that the dispute is only regarding re-fixation of the pay. So far as the counting of military service as qualifying service, there appears to be no serious dispute between the parties. However, during the course of hearing, the learned senior standing counsel contended that Rule 19 of CCS Pension Rules is applicable only to the ex-serviceman who earned pension in the military service, this point is framed. It is nowhere stated therein that the military service rendered by a person who earned pension in the military service alone shall be counted as qualifying service in the civil post. The very heading of Rule 19 clearly goes to show that any military service rendered by any person before civil employment will be counted as qualifying service subject to the condition mentioned in Rule 19(1)(b). The learned senior standing counsel relied on the word `pension' used in Clause (b)(i) and (ii). As seen from the definition given under Rule 2.0 pension includes gratuity. The applicant herein received service gratuity and death-cum-retirement gratuity and therefore, it cannot be said that the terminal benefits received by the applicant cannot be called as pension for the purpose of Rule 19(1) of CCS (Pension) Rules. Hence, we do not find any force in the contention of the learned standing counsel in this regard. We are of the considered view that Rule 19(1) is applicable in the case of the applicant and the respondents have rightly gave advice to refund the terminal benefits received by the applicant from his previous employer in order to treat his military service as qualifying service. Thus, this point is found in favour of the applicant.
13. Point No. (ii):
Firstly, it has to be seen whether the Central Civil Service (Fixation of Pay of Re-employed Pensioners) Orders, 1986 are applicable to the facts of this case. The Order 2 of the said orders itself declares as to whom these orders are applicable and as to whom these orders are not applicable. In this regard, it is useful to extract Order 2 of the said orders which reads as follows:
2. Application (1) Save as otherwise provided in these orders, these orders shall 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-
(a) Union Government including Railways, Defence, Posts and Telecommunications;
(b) State Governments and Union Territory Administrations; and
(c) Public Sector Undertakings, Local Bodies, Autonomous Bodies like Universities or Semi-Government Organizations like Port Trusts.
(2) These orders shall also apply to persons re-employed in regular work-charged capacity.
(3) Unless otherwise provided, these orders shall also apply to persons re-employed on contract basis.
(4) These orders shall not, however, apply to -
(a) Persons re-employed after resignation, removal or dismissal, provided they have not received any retirement/terminal benefits for the pre-employed service;
(b) Persons re-employed in posts, the expenditure of which is not debitable to the civil estimates of the Union Government;
(c) Persons paid from contingencies;
(d) Persons on casual or daily-rated or part-time employment;
(e) Persons appointed as Consultants on payment of Consolidated fees; and
(f) Retired Judges of Supreme Court/High Courts appointed on Commissions/Committees who are governed by separate orders on the subject issued from time to time.
As seen from the said orders, it is clear that these orders are applicable to all the persons who are re-employed in civil services in connection with the affairs of the Union Government other than those persons mentioned in Order 2(4). These orders are applicable irrespective of the nature of service rendered prior to re-employment whether military service or civil service. Order 4 deals with the fixation of pay of re-employed pensioners. Pensioner has not been defined in these orders. But, in Order 3 which deals with definitions, the word 'pension' has been defined in Order 3(1) as follows:
Pension means the gross monthly pension and/or pension equivalent of Death-cum-Retirement Gratuity and/or Pension equivalent of Gratuity or Government's contribution to Contributory Provident Fund and/or other retirement benefits, if any, payable under the Central Civil Services (Pension) Rules, 1972, or the relevant rules of the Government or body under which the re-employed pensioner was serving to his prior to his retirement. Where pension has been commuted partly or fully, pension means the gross pension payable prior to commutation.
As seen from the said definition of `pension', it is wide enough to include any kind of retirement benefits not only payable under the CCS (Pension) Rules, 1972 but also any relevant rules of the Government or body under which the re-employed pensioner was serving prior to his retirement. Here, in the instant case, admittedly, the applicant received retirement benefits on his premature retirement. He does not come under any of the persons mentioned in Order 2(4). The applicant received service retirement gratuity and also death-cum-retirement gratuity. His civil service prior to his joining army was also counted as military service for the purpose of calculation of his retrial benefits. It is also not disputed that the applicant was discharged from military service at his request and not by way of any disciplinary action and that is the reason why he has been paid retirement or terminal benefits though he did not earn monthly pension. Merely because the applicant did not earn monthly pension and does not come under the definition of `ex-serviceman' category, it cannot be said that the CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986 are not applicable to him. The only ground on which the respondents refused to refix the pay of the applicant on his opting for combined service is that the applicant does not come under the category of ex-service man. They relied on the letter addressed by the military authorities to ESI Corporation, New Delhi dated 16.4.2002 whereunder it is stated that the applicant was commissioned in the army on 4.9.83 and permitted premature retirement in the year 1995. While informing the same, it is stated in the last paragraph No. 5 as follows:
The above named officer is not covered under ex-serviceman category as defined in MOD letter No. 36034/5/85-Estt (SCT) dated 14.4.87 as he did not earn any pension before quitting army service.
Basing on this para 5 in that letter, the respondents rejected the request of the applicant for refixation of his pay. In the reply statement in para 3, it is stated that if it is confirmed by the parent department of the applicant that he is an `ex-serviceman', he can be given the benefit of pay protection as ex-serviceman as per provisions governing the re-employed persons, the respondents are prepared to fix his pay accordingly and the final decision in this regard is pending only for want of clarification from the Ministry of Defence, as the earlier letter dated 16.4.2002 received from the additional Directorate General (Manpower) was specific that the applicant was not covered under ex-serviceman category. So, from this, it is clear that the applicant's request is rejected only the basis of para 5 of the letter dated 16.4.2002 written by the Army Headquarters, New Delhi. As seen from Annexure at page 51, on the same subject, the Addl. Dte General Manpower who wrote earlier letter dated 16.4.2002 addressed a letter to the applicant marking a copy to the Regional Office, ESI Corporation, Hyderabad stating that the military service rendered by the applicant is required to be counted towards civil service/pension and that counting of previous government service with present service has got nothing to do with the ex-serviceman status. It is further stated in that letter that para 5 of his earlier letter dated 16.4.2002 may please be deleted as being irrelevant. When the said letter is submitted by the applicant, respondents did not choose to take cognizance of this letter as it was not addressed to them directly and as it is addressed only to the applicant marking a copy to them. However, after the filing of this OA, the respondent themselves filed MA on 27.10.2004 with the request to receive letter dated 24.8.2004 addressed to the Joint Director, ESI Corporation, New Delhi from the Addl. Dte. General, Personnel & Services, Army Headquarters, New Delhi. The said MA is allowed and the said letter is received as additional document. The said letter was addressed in reply to the letter of ESI Corporation dated 28.6.2004 on the same subject written by the respondents to Secretary, Ministry of Defence. In that letter, it is stated that the status of the applicant has already been explained by the Army Headquarters vide letter dated 16.4.2002 and as regards the fixation of the pay of the applicant, the ESI Corporation may seek advice of the DOPT Establishment Section.
14. The material on record show that the respondents misdirected themselves to the issue involved. The Army Headquarters is not the competent authority to consult regarding the pay fixation. It is immaterial whether the applicant comes under the category of 'ex-serviceman' or not as he is not claiming any reservation or any benefit on the ground that he comes under the category of `ex-serviceman'. The applicant sought only to consider his past military service into consideration in accordance with the rules. That is why under Rule 3 which deals with definitions in CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986, 'ex-serviceman' has not been defined as it is not relevant for the purpose of the above said orders. The definition of `ex-serviceman' category is relevant only where any reservation or additional or special benefit is claimed on the ground of ex-serviceman to provide special facilities like reservation in the posts in civil service. The Government framed rules, called Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules 1979 and under those rules, 'ex-serviceman' is defined under Rule 2(c) as a person who served in any rank in the Regular Army, Navy and Air Force of the Indian Union and who has retired from such service after earning his/pension or who has been released from such service on medical grounds, otherwise than on his own request etc. Under the said rules, Rule 4 deals with reservation of vacancies for ex-servicemen. Rule 5 of the said rules, deals with relaxation in the case of ex-servicemen. Rule 6 of the said rules deals with relaxation of educational qualifications for entry into service. Rule 6- A of the said rules deals with lower standard of selection. Rule 8 of the said rules deals with exemption from payment of application/examination fee. As the said rules provided certain special benefits, relaxing the age, educational qualification etc. and also reserving certain percentage of vacancies, definition of 'ex-serviceman' was found necessary and therefore it is defined under Rule 2(c) of those rules. The said definition is applicable only to those who claims benefit under the said rules, viz. Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 and not for the purpose of either CCS (Pension) Rules or for the purpose of CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986. The word ex-serviceman is used in CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986, shall be understood as a person served in the military prior to his re-employment. Whoever served in the military will generally be called as ex-serviceman in the normal parlance. Only when anybody claims any special benefit conferred on the ex-serviceman provided under Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, he shall satisfy the definition of ex-serviceman as defined in Rule 2(c) of the said rules and not otherwise.
15. Further, under Rule 3(2) of the CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986, the definition of `pre-retirement pay' is given. As per the said definition, even the pay drawn on officiating appointment, and also the pay drawn in a tenure post shall be treated as pay last drawn before retirement provided that it was drawn continuously for 10 months immediately before retirement. Therefore, it cannot be said that one must serve for the required period and earn pension in the previous post in order to claim benefits under CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986. Further, as seen from Order 6, persons who are re-employed after obtaining compensation or invalid pension will also be governed by these orders subject to condition that if the re-employment is in qualifying service, they may either retain their pension in which case their former service will not count for future pension or cease to draw any part of their pension and count their previous service. It is further stated there in Order 6, that in case the pensioners elect to count their previous service for pension, by foregoing their entire pension including death-cum-retirement gratuity, their pay would be fixed by treating them as if they are not in receipt of any pension. If these orders are read in conjunction with the definition of 'pension', it is clear that whoever received retirement/terminal benefits for the service rendered by him/her, he/she is entitled for benefits of CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986.
16. In respect of Order 4 of the said order, there are Govt. instructions in the form of it is given under Government of India decision (4) which reads as follows:
(4) Refixation of pay on opting for combined service for pension under Rules 18 and 19 of CCS (Pension) Rules, 1972. - As per Ministry of Finance, O.M. No. 8 (32) Estt./60, dated 19.7.1960 and Para.6 of this Department, O.M. No. 3/1/85-Estt. (Pay-II), dated 31.7.86, the pay of Government servants who are in receipt of compensation/invalid pension and re-employed in civil posts and who submit option for combined services for pension [under Rule 18 of CCS (Pension) Rules, 1972], is refixed from the date of re-employment in terms of relevant provisions of Ministry of Finance. O.M. No. 8 (34)/E. III/67, dated 25.11.58 or this Department's O.M. dated 31.7.86, as the case may be, by assuming that they are not in receipt of any pension.
2. However, at present there are no orders on refixation of pay of Ex-servicemen who can similarly give an option for combined service for pension under Rule 19 of CCS (Pension) Rules, 1972, by surrendering their pensionary benefits. This issue has been considered and it has been decided that pay of such Ex-servicemen who were re-employed prior to 1.7.86 and who being eligible, have opted for combined service for pension in terms of Rule 19 of CCS (Pension) Rules, 1972, shall also be refixed from the date of re-employment in terms of Ministry of Finance, O.M. Dated 25.11.58, as amended from time to time, by assuming that they were not in receipt of any pension. In respect of Ex-servicemen re-employed on or after 1.7.86, and who have similarly opted for combined service for pension under Rule 19 of CCS (Pension) Rules, pay shall be refixed from the date of re-employment in the manner given in Para. 15 of this Department's O.M. Dated 31.7.86, ibid. However, this refixation will be done only after the pensionary benefits have been refunded in full as per provision of Rule 19 ibid of CCS (Pension) Rules, 1972.
[G.I., Dept. of Per. & Trg., O.M. No. 3/13/89-P.II, dated the 22nd January, 1991].
It is not disputed that the applicant herein opted for combined service for pension, under Rule 19 of CCS (Pension) Rules and the same has been accepted by the respondents and directed the applicant to refund all the retirement benefits he got from the previous employer, viz. military authorities and accordingly, the applicant refunded the entire terminal benefits received by him from the military authorities as long back as in December 1999. Along with the reply, the respondents filed letter dated 18.10.2000 written by the ESI Corporation headquarters, New Delhi to the regional office to advise the applicant to furnish a copy of the certificate issued by his employer to indicate that his past service was taken into consideration for sanctioning benefits and the calculation details of retirement benefits paid. Again on 20.11.2000 and 23.2.2002 also similar letters were addressed on the subject. In the latest letter dated 9.1.2004, the ESI Corporation headquarters addressed to the Regional Director, Regional Office, Hyderabad stating as follows:
You are once again requested to advice Shri Tharakan to furnish a copy of certificate issued by his erstwhile employer indicating the period of his past civil service as qualifying service for determining the retirement benefit which has since been refunded to the ESI Corporation for getting his pas service counted.
From this, it is clear that the respondents have accepted to extend the benefit of Rule 19 of CCS (Pension) Rules. It is already found supra that the respondents are bound to count the military service rendered before the civil employment for the purpose of fixing pension at the time of superannuation in the civil service, irrespective of the fact whether the applicant earned pension in his military service or not. When once the past civil service under Rule 18 of CCS (Pension) Rules or military service under Rule 19 of CCS (Pension) Rules is treated as qualifying service for the purpose of future pension at the time of superannuation from the re-employed civil service, Order 4 of CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986 comes into play. Under the said Order 4, Government of India issued instructions regarding the manner of fixation of pay in such cases in G.I., Dept. of Per. & Trg., O.M. No. 3/13/89-P.II, dated the 2nd January, 1991. Therefore, the refixation of the pay of the applicant is to be made in accordance with the instructions of the Government of India in its OM dated 22.1.1991. Thus, this point is found in favour of the applicant.
17. Point No. (iii):
As seen from the impugned order, the only ground on which the request of the applicant for re-fixation of his pay in accordance with Govt. of India instructions dated 22.1.91, referred to supra was rejected, is that the applicant is not covered under 'ex-serviceman' category and he did not earn any pension before quitting army service. It is already found supra that there is no need for the applicant to come under the definition of ex-serviceman category as defined in Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 to claim the benefits of Rule 19 of CCS (Pension) Rules or Order 4 of CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986. Hence, the impugned orders are not sustainable in law and are liable to be set aside.
18. Point No. (iv):
In the result, the application is allowed and the impugned orders are set aside and the respondents are directed to refix the pay of the applicant in accordance with Order 4 of CCS (Fixation of Pay of Re-employed Pensioners) Orders 1986 read with Government of India, Department of Personnel & Training O.M. No. 3/13/89-P. II, dated the 22nd January, 1991. No order as to costs.