Central Administrative Tribunal - Cuttack
P K Das vs D/O Post on 14 May, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
O.A. No. 796 of 2015
Present: Hon'ble Mr. Gokul Chandra Pati, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member(J)
1. Prasanna Kumar Das, aged about 44 years , Son of Ratnakar Das, at
present working as Sorting Assistant in RMS, ' N' Division, Bhubaneswar,
At/PO-Bhubaneswar, Dist-Khurda.
2. Kedarnath Satpathy, aged about 41 years, Son of Nilakantha
Satapathy, at present workings as Postal Assistant, Head Post Office,
Berhampur, Dist-Ganjam.
3. Sanjib Kumar Dash, aged about 43 years, Son of Rajib Lochan Dash,
Presently working as Sorting Assistant, RMS, K-Division, At/PO/Dist-
Jharsuguda.
4. Bhagaban Moharana, aged about 38 years, Son of Dambarudhar
Moharana, at present working as Sorting Assistant, RMS, N Division,
Bhubaneswar, Dist-Khurda.
5. Gokul Nanda Sahu, aged about 42 years, Son of Kshirodra Sahu, at
present working as Postal Assistant, Rajbora Sambar Sub-Office, Dist-
Bargarh.
6. Nirod Kumar Hati, aged about 44 years, Son of Purna Chandra Hati,
at present working as Postal Assistant, Betanati Sub-office, Mayurbhanj.
7. Sovan Kumar Mohanty, aged about 45 years, son of Late Ganan
Behari Mohanty, at present working as Postal Assistant, at Bhadrak Head
Office, Bhadrak.
8. Smruti Ranjan Behura, aged about 44 years, Son of Kailash Chandra
Behura, at present working as Sorting Assistant, RMS N Division,
Bhubaneswar.
9. Bijay Kumar Tarai, aged about 38 years, Son of Bansidhar Tarai, at
present working as Postal Assistant, Head Post Office, Berhampur.
10. Sanjib Pradhan, aged about 38 years, Son of Gatiram Pradhan, at
present working as Postal Assistant Bargarh H.O, Bargarh.
11. Bhagabat Mohanty, aged about 44 years, Son of Late Sridhar Prasad
Mohanty, at present working as Postal Assistant, Bhubaneswar, G.P.O.
Bhubaneswar.
12. Kulamani Nayak, aged about 46 years, Son of Late Jogendra Nayak, at
present working as Postal Assistant Berhampur Head Office, Berhampur.
.....Applicant
-Versus-
1. Secretary, Government of India, Ministry of Communication,
Department of Posts, At-DAK Bhawan, Sansad Marg, New Delhi-
110001.
2. Union of India represented by the Secretary, Ministry of Personnel,
Public Grievance and Pension Department of Personnel and Training,
New Delhi-110001.
3. Chief PMG, Orissa Circle, Bhubaneswar, Dist-Khurda.
4. Director of Postal Services, Office of Chief PMG Orissa Circle, At/PO.
Bhubaneswar, Dist-Khurda.
5. Director General, Ministry of Communication and I.T Department,
DAK Bhawan, Sansad Marg, New Delhi.
.....Respondents
For the Applicant : Mr. K.B. Panda
For the Respondents: Mr. M. R. Mohanty
Heard & reserved on: 09.04.2019 Order on:
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O R D E R
Per Mr. Gokul Chandra Pati, Member(A):
This Original Application (in short OA) has been filed by 12 ex-military service personnel jointly under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
i) To direct the respondents to fix the pay of the applicants at the time of their entry in the present service at par with their last pay drawn in defence services as has been given to similarly situated persons with all consequential service benefits or in alternative pass any other order/s, direction/s as deemed fit and proper under the facts and circumstances of the case. The Hon'ble be further pleased to hold the circular dated 15.09.2015 as non-est in the eye of law and in applicable so fact as the case of the petitioners are concerned.
ii) To allow the Original Application with costs.
2. The applicants, retired from the defence services after 1.1.2006, are re- appointed by the respondents in various capacities. They are aggrieved because according to them, the guidelines issued by the respondent no.2 are not being followed while fixing the initial pay of the applicants on re-appointment. It is the case of the applicant that their initial pay was fixed at the level of Rs. 9910/- which is less than the last pay being drawn by them at the time of retirement from defence services. It is stated that vide the OM dated 11.11.2008 of the respondent no.2, the initial pay of the ex-servicemen should be fixed at the same stage of pay which was last drawn by them before retirement from defence services after ignoring the pensionary benefit drawn from the defence services. It is also stated by the applicants that clarifications have also been issued by the Ministry of Finance regarding pay fixation of ex- service personnel and the benefit of protection of pay of ex-service personnel has been extended by another department i.e. EPF Organization under the Ministry of Labour as the letter at Annexure-3 of the OA.
3. It is further stated in the OA that the Department of Posts had also fixed the pay of ex-service personnel at the stage of last pay drawn by them at the time of retirement vide the letter dated 1.9.2015 (Annexure-4). The applicants have made representations from time to time about the disparity in the pay fixation as would be seen from the copy of such representations at Annexure-5 series. It is also stated that the Postal department had asked for clarification in the matter from the Ministry and accordingly, the order dated 15.9.2015 (Annexure-6) by which it was clarified that the pay of the ex-servicemen would not be protected as per the CCS (Revised Pay) Rules, 2008.
4. It is mentioned in the OA that the order dated 15.9.2015 is in contrast to the earlier letter dated 17.2.2014 of the Department of Financial Services. Some other Departments of Government of India have also issued similar letters like the letter dated 22.8.2014 and 8.10.2015 (Annexure-7 series). All the applicants were retired from military service after 1.1.2006 and then they 3 were re-appointed at different time. It is stated that not allowing protection of last pay drawn by them would result in discrimination of the applicants.
5. Counter has been filed by the respondents stating that the OM dated 11.11.2008 of the DOPT has been superseded by the OM dated 5.4.2010 of the DOPT. It is also clarified in the directorate letter dated 15.9.2015 (Annexure-6 to the OA) that the initial pay of ex-service personnel on re-appointment will be fixed as per the entry pay in the revised pay structure of 2008. It is stated in the Counter that the letter of the EPFO or other Ministries are not applicable to the Department of Posts. It is stated that the decision of Bihar circle will not apply for Odisha circle. It is stated that in a number of cases the benefit as claimed in the OA has been allowed and the circulars or rules cannot override the judicial pronouncements.
6. Rejoinder has been filed by the applicant. It is stated that since both the Ministry of Labour and Ministry of Communication are part of Central Government, the Ministry of Labour's letter regarding the same issue will apply to this case also. It is also stated that the decision of the postal directorate is not in accordance with the Civil Service Regulation read with Article 313 of the Constitution of India.
7. Learned counsel for the applicant was heard. He has also submitted a written note of argument with citations including the judgment dated 08.11.1996 in the case of DG of Posts & Others Vs. B. Ravindran and another in which it was held that the Government by issuing clarifications orders cannot take away the rights which had allowed to the re-employed pensioners. It is stated that the ratio of the judgment will apply to the OMs/Circulars issued after passing of the judgment dated 08.11.1996. This judgment has been followed in a number of cases as indicated below:-
i) Judgment dated 07.12.2001 in the case of Union of India and Ors. Vs Mool sing and Another by Rajasthan High Court.
ii) Judgment dated 19.09.2007 in the case of Indian Council of Agricultural Research V. Bidesh Singh by Delhi High Court.
iii) Order dated 18.06.2014 of CAT Bangalore Bench in OA No. 1276/2013 in the case of N.V. Nagraj Udupa Vs Union of India & Others.
iv) Order dated 22.07.2016 of CAT, Madras Bench in OA No. 1207/2015 in the case of N. Kalyana Kumar and Others Vs. Union of India and another.
v) Order dated 18.06.2014 of the respondents no. 3 passed in the case of Shri Sayram Keshari Pattnayak extending the benefit of protection of Last pay drawn by the ex-service pensioner on re-
employment.
8. Learned counsel for the respondents was heard. He also submitted his written notes of argument reiterating the contentions in the counter that as per the para 4(b) (ii) of the DOPT OM dated 05.04.2010, the entry pay in the revised pay as applicable for direct recruits is applicable. It is also stated that different coordinate Benches of the Tribunal have ruled accordingly as in the copy of the orders enclosed in following cases.
4i) Order dated 05.10.2018 in OA No. 535/2015 by the CAT, Allahabad Bench in the case of Bijay Kumar Vs. UOI and Others.
ii) Order dated 29.08.2017 in OA No. 27/2017 by the CAT, Bangalore Bench in the case of T. R. Ramesh Kumar Vs. UOI and Others(related Deptt. Of Post. )
iii) Order dated 19.08.2013 in OA No. 401/2013 of CAT, Bombay Bench in the case of B.N. Chamber & Others Vs. UOI & Others.
9. We have considered the submissions and perused the judgments cited by both the parties in this OA. The averment of the applicants is that they are entitled for the protection of last pay drawn by them at the time of retirement from the military service as per the DOPT's OM dated 11.11.2008 (Annexur-1A series) and that the benefit of protection of the pay drawn at the time of retirement of ex-servicemen at the time of re-employment has been allowed to other ex-service personnel re-employed by other Ministry/Organisations. It is also contended by the applicants that although similar claims have been accepted in a number of cases as cited in the OA, the respondents have refunded to extend the benefits.
10. The respondents on the other hand contend that as per Para 4(b)(i) of the DOPT's OM dated 05.04.2010, the initial pay will be fixed at the entry level pay as applicable for the direct recruits appointed on or after 01.01.2006 in case the pension drawn is fully ignored and in support of their averments, the orders of the different Benches of CAT have been cited by the respondents.
11. The orders of the Tribunal in which the protection of pay drawn at the time of retirement has been allowed, have been passed mainly on the ground that similar benefits have been extended to other similarly placed ex-service pensioners on re-employment. In the case of Director General of Posts & Ors. vs. B. Ravindran & Anr. cited by the applicants' counsel, Hon'ble Apex Court examined the entitlement of the reemployed retired ex-service personnel for advance increments with reference to the rules applicable at that point of time. Applicability of the OM dated 11.11.2008 or dated 5.4.2010 of the DOPT was not considered in the case of B. Ravindran, which is therefore, factually distinguishable from the present OA in which the circular dated 15.9.2015 (Annexure-6) issued based on DOPT OMs dated 5.4.2010 has been challenged. In the case of Union of India and Ors. vs. Mool Singh and Anr. decided by Hon'ble Rajasthan High Court, the benefit of OM dated 25.11.58 and 14.3.68 was extended to the re-employed ex-service personnel for availing advance increments depending on the years of defence service. Those OMs are no longer valid as those have been replaced by new OMs which were not considered in the cited judgment. Since the earlier rules or OMs are no longer valid, the cited judgment will not help the cause of the applicants.
12. In the case of Indian Council of Agricultural Research v. Bidesh Singh decided by Hon'ble Delhi High Court, the pay fixation order, 1986 was 5 applicable and the ex-service personnel were re-employed prior to the year 2000. Applying the rules applicable at that point of time, the benefit of additional increment of pay depending on the years of defence service at the time of re-employment was allowed by the Tribunal in line with the decision in two other OAs by a coordinate Bench of the Tribunal, which was upheld by Hon'ble Delhi High Court. However, the present rules and the DOPT OM dated 5.4.2010 has not been examined in the judgment in Bidesh Singh (supra). In the present OA, the issue is the entitlement of the applicants for protection of their pay at the time of retirement from defence service in accordance with the DOPT OM dated 5.4.2010. Hence, the cited case is not applicable to the issued involved in the present OA.
13. The applicants' counsel has also cited the order dated 18.6.2014 of Bangalore Bench of the Tribunal in OA No. 1276/2013 in the case of N.V. Nagraj Udupa vs. Union of India & others. In that case the re-employed ex- service personnel had retired from defence services prior to 1.1.2006 and re- employed after 1.1.2006. In the present OA, the applicants had retired from military service after 1.1.2006 and re-employed thereafter. The para 3(v) of the circular of the DOPT was applicable for the applicants in OA 1276/2013, but the same will not apply for the applicants in the present OA, who retired after 1.1.2006 (vide the details in Annexure-1 of the OA). Hence, the cited case is factually distinguishable.
14. In the case of N. Kalyana Kumar (supra) decided by Madras Bench of the Tribunal, it was found that the respondent-department in that case had allowed the benefit of protection of pay was allowed to some of the employees, for which similar benefit was allowed to the applicants in the cited OA. The applicants in the present OA need to show how their case was similar to the case of the applicants in the case of N. Kalyana Kumar (supra) so as to claim similar benefit.
15. The orders of the Tribunal disallowing the benefit of protection of pay drawn by ex-service personnel at the time retirement, have mainly relied on the DOPT's OM dated 05.04.2010 amending the paragraph 4(b)(i) of the CCS (fixation of Pay of re-employed Pensioners) orders, 1986 while following the order of the Tribunal in earlier OAs with similar issue. These cases have been cited by the respondents as mentioned in para 8 of this order. In the case of Bijay Kumar (supra) decided by Allahabad Bench of the Tribunal in OA No. 535/2015, the applicant had retired from the services after 1.1.2006 and was re-employed after retirement. Following the order of the Tribunal in OA No. 401/2013 of Bombay Bench, it was held that since in case of the applicant in OA No. 535/2015 was not entitled for protection of pay drawn at the time of retirement since the pension drawn for the defence service have been ignored while fixing the pay on re-employment. In the case of T.R. Ramesh Kumar 6 (supra) in OA No. 27/2017, Bangalore Bench of the Tribunal has dismissed the OA following the order in previous OAs with similar facts. In the OA No. 27/2017, the applicant had retired from Air Force after 1.1.2006 and then was re-employed by the Postal Department thereafter. The facts of the applicants in the present OA before us (i.e. OA No. 796/2015) are similar as they has also retired from defence services after 1.1.2006 and re-appointed by Postal department.
16. The issue in this OA is whether the DOPT OM dated 5.4.2010 (Annexure- 1A series) is applicable for the applicants' case and if yes, whether the applicants will be entitled for protection of the pay drawn at the time of retirement from defence services. It is noticed that in none of the cases cited by both the parties in this case, the provisions of the para 4(b)(i) of the DOPT's OM dated 5.4.2010 have been challenged.
17. It is noticed that these were challenged in a batch of OAs before Ernakulam Bench of this Tribunal in the case of I. Mahindra Kumar G.R. & another vs. UOI & others in OA No. 192/2015 along with the OA Nos. 438/2015, 50/2016, 291/2016, 429/2016, 525/2016 and 639/2016. The reliefs sought for in these OAs were for fixing the pay of the retired re-employed ex-servicemen based on the last pay drawn at the time of retirement and for declaring the clause 4(b)(i) of the Central Civil Service (Fixation of Pay of Re- Employed Pensioners) Orders, 1986 is discriminatory and void as it refuses the benefit of pay fixation based on the last pay drawn at the time of retirement. The Division Bench of the Tribunal observed that there are conflicting orders passed by different Benches, for which a reference was made to the Chairman for constituting a Full Bench, which was duly constituted to decide the following points:-
5. Accordingly, the Division Bench finally referred the following points for decision of the Full Bench:-
"1. Whether Rule 4(b) (i) of the (Fixation of Pay of Re-employed pensioners) order 1986 is violative of the At.14, 16 & 21 of the Constitution of India due to it being discriminatory against those who are having their entire pension ignored for the purpose of pay fixation and being violative of equality, right to like and liberty?
2. Whether Ex-Servicemen, who are PBOR (persons Below Officer Rank), entitled to have their fixation of pay with reference to the pay drawn at the time of their discharge from armed forces or whether they are entitled to fixation at minimum of the pay scale of re-
employed pensioners?
73. Whether the Ex-Servicemen who are combatant category are entitled to the benefit of fixation of pay of re-employed pensioners in terms of CCS(Fixation of Pay of Re-employed Pensioners) Order 1986 read with OM No. 03/19/2009-Estt. Pay II dated 05.04.2010 issued by DoPT, G.O.I."
6. As per the order of the Chairman Principal Bench, a Full bench was constituted under R-52 of the CAT rules of practice and the matter was heard. At the time of hearing the counsel appearing on both sides admitted that the Supreme Court had occasion to consider how pay has to be fixed for re-employed Ex-Servicemen in Union Territory of Chandigarh 07 Others V. Gurucharan Singh 7 Another reported in (2013) 12 SCR 853 and the main point to be decided is point No. 1 of the reference i.e. Constitutional validity of Rule4(b)(i) of the CCS(Fixation of Pay of Re-employed Pensioners) order 1986 whether it is discriminatory and violative of Art. 14 & 16 of the Constitution....................
18. The Full Bench of the Ernakulam Bench considered the matter and held as under:-
13. On going through Rule 4 of the Central Civil Services(Fixation of Pay on Re-employment) orders, 1986, we can see that it has given different schemes for pay fixation on re-employment to Commissioned and Non-Commissioned Officers (PBOR). As far as commissioned Officers are concerned, only a minor portion of their pension is ignored (now Rs. 15000/-) and the remaining non-
ignorable portion is deducted from the pay fixed on the basis of pay drawn in the forces, But as regards Non-Commissioned Officers the entire pension is ignored while fixing pay in the new scale. They are not given any pay protection. It is here that the applicants would contend that they are discriminated. If we go through the samples of pay fixation given by DOPT, it can be seen that if the pension so ignored plus the pay at the initial stage is taken, it can be seen that the persons who are PBOR do not suffer from any short fall in income which they would have got in the forces at the time of retirement. The object of this separate fixation of pay for Ex-Servicemen had an object that these Ex-Servicemen who had served the better half of their age in the service of the country should not suffer any short fall in income when they retire from the defence force. The reservation is provided to the personnel of PBOR based on Ex-Servicemen (Re-Employment in Central Services & Posts) Rules, 1979. This rule provides for reservation for Non-Commissioned Ex-Servicemen in Group C and D Posts. This clearly indicates that the commissioned officers who are Group-A Officers is not given such reservation and no such officer is going to complete with PBOR persons in appointment. Besides the ignoring of pension, they are given various benefits like reservation, relaxation of age, educational qualification etc also for getting re-employment.
814. As per the conditions of service of Commissioned Officer, he has to undergo various courses and he is assessed on merits throughout his career as they had to lead the forces of the country. They are considered similar to Group A Officers of the Civil Services. The functions and responsibilities and qualification of these officers are not similar to that of PBOR. Article 16(1) or (2) does not prohibit the prescriptions of reasonable rules for selection to any employment or appointment to any office. In State of Mysore & Another V. Narasing Rao(cited supra) had categorically held that giving different scales classifying tracers in the state as Matriculate and non-Matriculate is valid and the said classification was upheld by the Supreme Court. In this case, members retired from the forces were classified as Commissioned Officer and Non- Commissioned Officers for the purpose of re-employment after retirement. The object of giving re-employment is to protect these persons from difficulties on retirement. The classification is mainly made on the basis of qualifications, functions in their employment and the Non-Commissioned Officers are given reservation in Group C & D Posts in Central Civil Services. The Commissioned Officers are Officers coming under Group A category and there is n possibility of these officers to apply for a Group C and D Posts and they are not given any reservations in the 1979 rules. So these two categories stand apart. So, the classifications is on intelligible differentia which distinguishes persons groped together. The object sought to be achieved is the welfare of the Ex-Servicemen who retire from forces before they attain the age of 55 years. The classification made under 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 Officer as alleged by the applicant. We cannot find any injustice manifest in the classification made in the rules. Article 16 of the Constitution provides for equality of opportunity. It is only an incident of the concept of equality under Article -14. The concept of equality cannot be confused with absolute equality. What is guaranteed is quality of opportunity and nothing more Article 16(1) or (2) does not prohibit the prescription of reasonable rules for classification for selection or appointment. So, we are of the opinion that Rule 4(b) (i) of the CCS (Fixation of Pay on Re- employment) orders, 1986 does not offend Article 14 and 16 of the Constitution as alleged. No discrimination can be found against Non-Commissioned Officers. The principle of fixation of pay for PBOR and Commissioned Officers stand the test laid down by the Hon'ble Apex Court in BudhanChaudhary V. State of Bihar(cited supra). There may be differences in the total benefits received by these two categories. But this type of inequalities have to be mitigated by the executive government and such benefits cannot be granted by the Tribunals. All the applicants were re-employed after 1986 and the rules of fixation given in the rules does not suffer from any arbitrariness or discrimination which is violative of Article 14 and 16 of the Constitution.
15. In the result we answer the reference in favour of the respondents, Rule 4(b)(i) of the CCS (Fixation of Pay on Re- employment) Order, 1896 does not violate the principle of equality enshrined under Article 14 and 16 of the Constitution. In the light of above discussion, the other points raised by the Division Bench 9 are also decided accordingly, having no discrimination or arbitrariness and are not violative of principles of equality under Article 14 and 16 of the Constitution of India.
16. The reference is answered accordingly."
19. It is clear from the Full Bench order dated 27.3.2019 extracted above that the clause 4(b)(i) of the Central Civil Service (Fixation of Pay of Re-Employed Pensioners) Orders, 1986 is valid and it is not discriminatory. Under the said clause, if the pension of the ex-service men is to be ignored fully, then on re- employment in a civil post, his pay is to be fixed at the minimum of the pay scale. This principle has also been laid down by Hon'ble Apex Court in the case of Union Territory of Chandigarh & others vs. Gurcharan Singh & Anr. reported in (2013) 12 SCR 853 and 2014(1) AISLJ 195, in which, it was held on the issue of pay fixation of the re-employed ex-serviceman retired from the defence service as under:-
"10. Upon hearing the learned counsel and upon perusal of the option form dated 18.7.1990, in our opinion, the High Court was in error while allowing the petition because it is clearly revealed from the option form that the respondent had 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. It is pertinent to note that the respondent has been getting regular pension from the Indian Army. As per the provisions of the Orders and as per the option exercised by the respondent, service rendered by the respondent to the Indian Army cannot be taken into account for the purpose of pay fixation as the respondent would be getting his pension and there would not be deduction from his pension or his salary on account of pension received by him from the Indian Army. If nothing has been deducted from the pension of the respondent upon being re-employed and as the respondent would continue to get his pension and other benefits from the Army for his past services, in our opinion, the High Court was not right while permitting the respondent to get his higher pay fixed by taking into account the services rendered by the respondent to the Indian Army. Even from sound common sense, it can be seen that for the past service rendered to the Indian Army, the respondent is getting pension and other perquisites which a retired or discharged soldier is entitled to even after being re-employed. The respondent would, therefore, not have any right to get further advantage in the nature of higher salary or a higher pay scale, especially when nothing from his salary was being deducted on account of his getting pension or perquisites from the earlier employer."
20. Applying the ratio of the judgment of Hon'ble Apex Court in the case of Gurcharan Singh (supra) read with the order dated 27.3.2019 of the Full Bench of Ernakulam Bench of the Tribunal, it is found that the letter dated 15.9.2015 of the respondents (Annexure-6) reiterates the position as stated in the DOPT OM dated 5.4.2010 that for the ex-servicemen who held post below Commissioned officers, the entire pension would be ignored while fixing pay on re-employment and when entire pension is ignored, the pay is to be fixed at the 10 minimum of the pay scale with no protection of the pay drawn at the time of retirement. Hence, the letter dated 15.9.2015 (Annexure-6) is in accordance with the judgment of Hon'ble Apex Court in the case of Gurcharan Singh (supra) and also the DOPT OM dated 5.4.2010 which has not been challenged in this OA. The applicant's challenge of the letter dated 15.9.2015 in this OAs is, therefore, liable to be rejected.
21. Regarding the averment in the OA that similarly situated ex-servicemen on re-employment have been allowed the benefit of last pay drawn at the time of retirement, it is seen that the circular of the EPF Organization and some other employees has been furnished in the OA. Regarding the circular of the EPF Organization, the interpretation of the DOPT OM dated 5.4.2010 in respect of the fixation of pay for retired ex-servicemen retired and re-employed after 1.1.2006, it has been stipulated that the entire pension will be ignored and last pay at the time of retirement will be protected. Such an interpretation is incorrect in view of the order dated 27.3.2019 of the Full Bench of Ernakulam Bench of the Tribunal as well the judgment of Hon'ble Apex Court in the case of Gurcharan Singh (supra) as discussed in para 19 above. Further, such circular cannot be cited as the guidelines of the Government which will have binding effect. It is a circular issued by one Regional P.F. Commissioner which is defective and the applicants cannot claim parity on the basis of that circular. There is another instance furnished at page 43 of the OA in which protection of pay was allowed while ignoring the pension drawn from the defence establishment. It is seen that this order mentions that it is subject to review by audit and subject to further clarification by Government of India. Such interpretation is legally unsustainable. Similar order at page 42 of the OA was subject to review by audit and it is prima facie wrong and it is not as per the letter dated 15.9.2015 (Annexure-6) issued by the higher authorities of the Department of Post. In any case, if a decision in respect of some employee has been taken wrongly fixing his pay on wrong interpretation of the OM dated 5.4.2010, it cannot be a basis for the applicants to claim similar benefit which are legally not sustainable.
22. In this case, the applicants have retired from defence service and re- employed under the respondents after 1.1.2006 and their pay has been correctly fixed as per the clause 4(b)(i) of the Central Civil Service (Fixation of Pay of Re-Employed Pensioners) Orders, 1986 as amended by the DOPT OM dated 5.4.2010 and as discussed above, it is in accordance with the Full Bench judgment dated 27.3.2019 of the Ernakulam Bench of the Tribunal and also the judgment of Hon'ble Apex Court in the case of Gurcharan Singh (supra) as discussed in para 17, 18 and 19 of this order. Hence, the DOPT OM dated 5.4.2010 will be applicable for the applicants' case and as per the para4(b)(i) as amend in the DOPT's OM dated 5.4.2010, the applicants will not be entitled 11 for protection of last pay drawn by them at the time of their re-employment. Hence, both the issues listed in para 16 of this order are decided accordingly against the applicants.
23. In view of the facts as well as the case laws discussed above and following the order dated 27.8.2017 of Bangalore Bench of the Tribunal in the OA No. 27/2017, in which the facts are similar to the applicants in the present OA and the respondents being from the Department of Post, we are of the view that the OA is liable to be dismissed. Accordingly, the OA is dismissed. Under the circumstances, there will be no order as to cost.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI) MEMBER (J) MEMBER (A) pms