Central Administrative Tribunal - Ahmedabad
Dinanath Choudhary vs D/O Income Tax on 21 October, 2021
(CAT/AHMEDABAD BENCH OA NO.433/2019) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.433/2019
with M A No.390/2020.
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. Dinanath Choudhary
Son of Shri Shivjee choudhary Aged: 41 years,
Residing at: C-408 Swati Residence,
3, IOC Road, Chandkheda, Ahmedabad - 382 424.
Working as: Multi-Tasking Staff
Pratyaksh Kar Bhawan
Range 3 (3) 5th Floor 'B' Wing
Panjarapole, Ahmedabad - 380 013.
2. Suresh Kumar
Son of Shri OM Prakash, Aged: 43 years,
House No.109/928, Nirmal Appts.
Green Park Society, Jaimangal, Ahmedabad - 380013.
Working as: Mult-Tasking Staff
Pratyaksh Kar Bhawan, Principal CIT - 3
4th Floor. 'C' Wing, Panjarapole, Ahemdabad- 380 013.
3. Rakesh Kumar,
Son of Shri Rajaram Yadav, Aged: 40 years, (MTS)
Residing at: House No. 301,
Parmeshwar-5, Chandkheda, Ahmedabad - 382 424.
Working as Multi-Tasking Staff,
Pratyaksh Kar Bhawan, Principal CIT-3,
4th Floor 'C' Wing, Panjarapole, Ahemdabad - 380 013.
4. Shankara Rao Marrapu
Son of Shri Madhannaidu Marrapu,
Aged: 40 year (MTS), Army (NCO)
Residing at: C-1, Sarvottamnagar Sabarmati,
Near ONGC, Ahmedabad - 380 005. Working as Multi-Tasking Staff
Pratyaksh Kar Bhawan, Ramge 3(1) 4th Floor, 'B' Wing
Panjarapole, Ahmedabad - 380 015.
5. Balaram Patra, Son of Shri Brundaban Patra,
Age: 43 years (MTS), Army (SEP)
(CAT/AHMEDABAD BENCH OA NO.433/2019) 2
Residing at: House No.11
Gukul Co- op. Housing Society, IOC Road, Chandkheda,
Ahmedabad - 382 424.
Working as: Multi-Tasking Staff , Range 3(3) 5th Floor, 'B' Wing
Panjarapole, Ahmedabad - 380 015.
...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
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),
Principal Commissioner of Income Tax - 3
Pratyaksh Kar Bhawan, Ambawadi
Ahmedabad - 380 013.
5. The Administrative Officer and
Drawing & Disbursing Officer (AO & DDO),
Principal Commissioner of Income Tax - 3
Pratyaksh Kar Bhawan, Ambawadi, Ahmedabad - 380 013.
6. The Administrative Officer and
Drawing & Disbursing Officer (AO & DDO),
Range 3 (3) Pratyaksh Kar Bhawan, Ambawadi,
Ahmedabad - 380 013. ...Respondents
(By Advocate Ms. M M Bhatt)
ORDER
(CAT/AHMEDABAD BENCH OA NO.433/2019) 3
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 five applicants against the impugned decision of respondent to revise the pay fixation dated 26.07.2019 seeking following reliefs:
"8 (A) The Hon'ble Tribunal be pleased to quash and set aside orders dated 04.11.2019 and 07.11.2019 directing recovery of 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 make payments of salary to the applicants in terms of the order dated 26.07.2019 passed after taking into consideration the instructions issued by the DOPT for fixation of pay of re-
employed ex-servicemen and its strict compliance reiterate by Ministry of Communication vide its communication dated 14.07.2016 and not to reduce the pay of the petitioner 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.
(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 & Army after clearing Staff Selection Examination vide order dated 12.09.2018, came to be appointed as MTS in Income Tax 1800/-. The details of date of appointment order and date of joining are given below:-
S.No. Name Department Order Date of Date of
Joining Representation
1 Dinanath Air Force 12.09.2018 31.12.2018 Not available
(CAT/AHMEDABAD BENCH OA NO.433/2019) 4
Choudhary
2 Suresh Army 12.09.2018 03.10.2018 26.12.2018
Kumar
3 Rakesh Army 12.09.2018 01.10.2018 26.12.2018
Kumar
4 Sankara Rao Army 12.09.2018 03.10.2018 06.12.2018
Marrapu
5 Balaram Army 12.09.2018 06.11.2018 31.01.2019
Patara
2.2 In the month of December 2018/January 2019, 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 as was done in the case of Shri Ganpat Prasad Shaw and Shri Tapas Patra who were working as Tax Assistants at relevant time at Hoshangabad Raod, Bhopal (Annexure A/4 to A/13).
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 26.07.2019 (Annexure A/14 to A/18)) fixed the pay of all the applicants as follows:-
1 Dinanath Choudhary - Rs.42,300/-
2 Suresh Kumar - Rs.37,600/-
3 Rakesh Kumar - Rs.35,400/-
4 Sankara Rao Marrapu - Rs.32,400/-
5 Balram Patra - Rs.36,500/-
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/20 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.
(CAT/AHMEDABAD BENCH OA NO.433/2019) 52.4 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 of pay protection granted to the ex-servicemen who have been appointed on re-employment in the IT Department, including the applicants herein was 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 respondent no.1 to look into the matter and stop henceforth giving such benefits and also effect recovery from those who had availed such benefit of the pay and allowances from the month of November 2019 onwards, failing which the salary bill of November 2019 would not be passed by his office.
2.5 The applicants were individually notified vide communication dated 14.11.2019 (Annexures A/21 to A/23) regarding the advise to Restructure and Revise Pay Fixation to all the applicants and in response, the applicants filed detailed representation dated 18.11.2019 (Annexures A/24 to A/26) stating therein that:
(i) On their appointment (on re-employment), applicants joined IT Department, Ahmedabad as MTS on dates mentioned at para 2.1 above 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.
(CAT/AHMEDABAD BENCH OA NO.433/2019) 6(iii) The applicants on appointment joined IT Department as MTS under Ex-servicemen quota and their pay was fixed by the respondents vide order dated 26.07.2019, the OM/policy issued on or before his date of joining can only be made applicable to review or restructure his pay.
(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 applicants who had joined in October/November & December 2018.
On the aforesaid grounds and other grounds stated in their representations, applicants requested the concerned authority to consider his submissions before revising his pay. 2.6 The said representations of the applicants 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, issued by the respondent no.3 reveals that it was 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 7 "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 MTS in the Income Tax Department in September 2018 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 revised pay fixation order dated 26.07.2019 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 Tax Assistant 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 shall be allowed to draw pay only in
the prescribed pay scale/pay structure the Level in the revised pay structure
of the post in which they are re- applicable to the post in which they are
employed. No protection of the scales re-employed. No protection of the
of pay/pay structure of the post held by scales of pay/pay structure of the post them prior 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 to a post will be as defined in Rule the post and the applicable pay band 3(ix) of the Central Civil Services (Revised Pay) Rules, 20916.
Learned counsel by relying upon the aforesaid provision submits that the impugned decision issued by respondent no.3 which is based on (CAT/AHMEDABAD BENCH OA NO.433/2019) 8 provision of para 4(b)(ii) is totally incorrect and he reiterates that the provision of The aforesaid table makes it clear that the impugned decision of respondent no. 3 and the interpretation of the Para 4(b)(2) therein 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 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.3 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, NCO 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 9 their pay in the very same scale of pay on their re-employment against a civilian post debitable to Civil Estimates. 3.7 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. Ganesh 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. 3.8 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 held that the pay of the ex-servicemen was rightly protected on being re-employed in ICAR. (Annexure A/27 colly).
3.8 Applicant has also placed reliance on the DoPT's OM dated 02.03.2016 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:
(CAT/AHMEDABAD BENCH OA NO.433/2019) 104.1 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/-.
4.2 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 applicants have admittedly been appointed after 1.1.2006, their 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.
(CAT/AHMEDABAD BENCH OA NO.433/2019) 114.4 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.
4.5 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 12 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 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 13 submits that the relief claimed by the applicant is beyond the extant Rules and contrary to the settled law.
5 Heard the learned counsel for both the parties and perused the materials placed on record.
6 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 filed MA No. 390/2020 for early hearing before the Bench. In the said MA the applicant 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 (Annexure MA/3 & MA/4) whereby the said respondent had stated that this Tribunal had 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) 7 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 14 ex-servicemen, such as applicant herein. It is not in dispute that applicants while working in Indian Air Force & Army took voluntary retirement before attaining the age of 55 years; thereafter, after retirement, joined IT Department Ahmedabad as MTS under ex-servicemen quota. 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 from 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 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).
8 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 15 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 does not provide for protection of last pay drawn before retirement, in such cases."
9 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.
10 At this stage, it is appropriate to refer to 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-serviceman 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 16 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 to 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 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 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.
11 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 17 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 27 th 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."
12 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, held that the ex-servicemen, since they were non commissioned employees were entitled to pay fixation under Rule 4(b) and (d)(i) and their previous pay and pension had to be ignored.
13 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 18 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 and in that, the pension/pensioner benefits would be ignored. 14 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, their pay required to be fixed at the entry pay in the revised pay structure of MTS.
Under the circumstances, by the submission of the applicants that the last pay drawn by him while working requires to be protected and the justification of 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 after rendering military service and on their re-employment as MTS. and the respondent IT Department in December 2015 placed them in the very same PB-1 scale of Rs.5200-20200. In other words there is no difference between the two aforesaid pay scale. As such, the PB 1 pay scale that was granted to them upon their re-employment was the same scale that they were getting while in service in Army & Air Force.
15 It can be seen that applicants plea that their pay requires to be fixed in terms of para 4(d) & d(i) and also their demand to protect their last pay drawn at the time of his retirement, this 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 19 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.
16 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 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.
17 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 (CAT/AHMEDABAD BENCH OA NO.433/2019) 20 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. . It however makes it clear that the pay of the applicant was fixed therein in pursuance of provision in para 4(d) of DoPT OM dated 05.04.2010 read with the OM dated 08.11.2010 for fixation of pay of persons retiring before attaining the age of superannuation. It is this pay fixation that was sought to be revised in the order dated 13.11.2019. Obviously, 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.
18. In view of above, the decision/order of fixation of pay of the applicants 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.
(CAT/AHMEDABAD BENCH OA NO.433/2019) 2119 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.
20 Accordingly OA stands disposed of. No order as to costs.
(A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
abp