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Delhi High Court

Govt. Of India & Ors. vs Capt. (Retd.) Kapil Chaudhary on 18 March, 2013

Author: Pradeep Nandrajog

Bench: Pradeep Nandrajog, Pratibha Rani

$~9&10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: March 18, 2013

+                             WP(C) 2331/2012

       GOVT. OF INDIA & ORS.                            .... Petitioners
                 Represented by:        Dr.Ashwani Bhardwaj, Advocate.

                                        versus

       CAPT. (RETD.) KAPIL CHAUDHARY              ..... Respondent
                 Represented by: Mr.Naresh Kaushik, Ms.Amita Kalkal
                                 Chaudhary and Ms.Aditi Gupta,
                                 Advocates.

                              WP(C) 6701/2012

       CAPT. (RETD.) KAPIL CHAUDHARY               ..... Petitioner
                 Represented by: Mr.Naresh Kaushik, Ms.Amita Kalkal
                                 Chaudhary and Ms.Aditi Gupta,
                                 Advocates.

                                        versus

       GOVT. OF INDIA & ORS.                            .... Respondents
                 Represented by:        Mr.Himanshu Bajaj, Advocate for
                                        R-1 and R-2.
                                        Dr.Ashwani Bhardwaj, Advocate for
                                        R-3.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

1. We are concerned in the two writ petitions with the interpretation of para 8 of the CCS (Fixation of Pay of re-employed WP(C) 2331/2012 & 6701/2012 Page 1 of 5 Pensioners) Order 1986, which reads as under:-

"8. Emergency Commissioned Officers and Short Service Commissioned Officers.

Emergency Commissioned Officers and Short Service Commissioned Officers who joined pre-commissioned training or were commissioned after 10-1-1968 may, on their appointment in Government service to unreserved vacancies, be granted advance increments equal to the completed years of service rendered by them in Armed Forces on a basic pay (inclusive of deferred pay but excluding other emoluments) equal to or higher than the minimum of the scale attached to the civil post in which they are employed. The pay so arrived at should not, however exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by them in the Armed Forces."

2. Requiring to be interpolated in the interpretation thereof, the understanding of the definition of 'Pre-retirement pay‟ as per clause 3 (2)

(ix), of the CCS (Fixation of Pay of re-employed Pensioners) Order 1986 which reads as under:-

"3 Definitions:

In these orders, unless, the context otherwise requires -

1. ......

2. „Pre-retirement pay‟ means the substantive pay last drawn before retirement. However,

(i) to (viii) ........

(ix) In the case of retired Defence Services personnel of the rank of JCO, NCO or OR in the Army and corresponding ranks in the Navy or Air Force, the items of emoluments mentioned below shall constitute the pre-retirement pay -

           Army (JCO, NCO or OR)

                 Old Pay Code                New Pay Code

WP(C) 2331/2012 & 6701/2012                                       Page 2 of 5
            Basic Pay
           Grade/trade/technical/       Pay (including deferred
           and rank corps pay           pay) and rank pay.

3. A bare perusal of clause 3 (2) (ix) of CCS (Fixation of Pay of re-employed Pensioners) Order 1986 makes it evident that pre-retirement pay means the substantive pay last drawn before retirement and in cases of retired defence services personnel, would include deferred pay and rank pay.

4. With reference to para 8 of the order, it is apparent that Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces would be entitled to be granted advanced increments equal to the completed years of service rendered by them in the Armed Forces when their basic pay is fixed upon being appointed in Government Service.

5. It may be true that the word used in para 8 of the order is 'May' but we find that in its contextual setting the word has to be read as 'shall‟ for the reason the order is a beneficial legislation and further that even the Government of India so interprets the paragraph inasmuch as the Union of India itself granted benefit of 5 increments with reference to the fact that Captain Kapil Chaudhary (Retd.) had served as Short Service Commissioned Officer in the Indian Army for 5 years.

6. As a captain in the Indian Army, he was drawing a basic pay of `10,200 being placed in the pay scale `8250 - 300 - 10050. But since as a Government Servant he was placed in the pay scale `8000 - 275- 13500, the Government fixed his basic pay less than what he was drawing when he retired as a Short Service Commissioned Officer after 5 years.

7. The point of dispute was whether paragraph 8 required the basic pay to be so fixed that it should not be less than the basic pay being received by the respondent as a Short Service Commissioned Officer.

8. Whereas the Union of India would urge that as per para 8, the last sentence, would make it clear that the only embargo is that the pay so arrived should not exceed the basic pay drawn while in service in an Armed Force. But, the argument overlooks the preceding line where the expression is: 'equal to or higher than the minimum of the scale attached to the civil post in which they are employed‟.

9. It would be nobody's case that upon re-employment a person would be entitled to a basic pay exceeding the last drawn basic pay. Such a claim would obviously be not even acceptable from a common sense point of view. But a claim to the last drawn basic pay being retained would obviously be a logical argument.

10. Meaningfully read, paragraph 8 of the CCS (Fixation of Pay of re-employed Pensioners) Order 1986 would simply mean that a retired Armed Force Personnel, upon re-appointed in Government service, would be entitled to his basic pay being fixed at par with his last drawn pay.

11. To this extent the view taken by the Tribunal as per the impugned order dated July 27, 2011 is correct warranting W.P.(C) No.2331/2012 filed by the Union of India to be dismissed.

12. But as regards W.P.(C) No.6701/2012 filed by Captain Kapil Chaudhary (Retd.), it is not in dispute that he was receiving, while working as a Short Service Commissioned Officer, a rank pay in sum of `400. As per para 3 (2) (ix) of CCS (Fixation of Pay of re-employed Pensioners) Order 1986, as noted above, pay has to include the rank pay. Thus, W.P.(C) No.6701/2012 has to be allowed by modifying the impugned order dated July 27, 2011 passed by the Tribunal with a direction issued to the Union of India that while fixing the basic pay of Captain Kapil Chaudhary (Retd.) upon being re-employed in Government service, his last drawn pay should be treated as `10,200 + `400 = `10,600.

13. To summarize, W.P.(C) No.2331/2012 is dismissed. W.P.(C) No.6701/2012 is allowed in terms of para 12 above.

14. There shall be no orders as to costs.

CM No.5013/2012 (Stay) in WP(C) 2331/2012 Since the writ petition stands disposed of, instant application seeking ad-interim stay of operation of the impugned order stands disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE MARCH 18, 2013 mm WP(C) 2331/2012 & 6701/2012 Page 5 of 5