$~7 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 3111/2013 UNION OF INDIA AND ORS. ........ Petitioner
Date of decision:
25. h October,2016 Through Mr. R.V. Sinha and Mr. A.S. Singh, Advocates versus BARUNA MADAN ..... Respondent Through Mr. Shekhar Kumar, Advocate for with respondent along the respondent in person CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MS. JUSTICE SUNITA GUPTA SANJIV KHANNA,J.
(ORAL) 1. The Union of India and others have filed the present writ petition challenging the correctness of the order dated 20th December, 2012 passed by the Principal Bench of the Central Administrative Tribunal in OA43572011. The impugned order partly allows the original application filed by Baruna Madan, the respondent herein.
2. The respondent was appointed under the Women Special Entry Scheme as a Short Service Commission Officer of the Indian Army in the Corp of Electronic and Mechanical Engineer (EME, for short). She had worked in the EME Corp. from 11.3.1995 to 31.3.2007. W.P.(C) 3111/2013 Page 1 of 10 3. The respondent was eligible and was appointed to the post of Assistant Executive Engineer against the 20% quota for re- employment of ex-servicemen. The appointment was made on 7th February, 2007 by the UPSC on the basis of open selection.
4. The dispute pertains to fixation of salary. The Tribunal in the impugned order has referred to the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986, and observed that as per Rule 4, re-employed pensioners are not entitled to protection of the scales of pay of the posts held by them prior to retirement in cases where the pension is fully ignored for fixation of pay. The initial pay on re-employment shall be fixed at the minimum scale of pay of the re-employed post. However, in cases where the entire pensionary benefits are not ignored for fixation of pay, the initial pay on re-employment shall be fixed at the same stage as the last pay drawn before retirement, and if there is no such stage in the re- employed post, the pay shall be fixed at the stage next above that pay. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed. As regards drawl of increments, as per Rule 5, once the initial pay of a re-employed pensioner has been fixed in the manner indicated above, she would be allowed to draw normal increments in the time-scale of the post to which the re- employed is appointed as if the pay had been fixed at the minimum or the higher stage, as the case may be. This interpretation having been made to Rule 4 of the aforesaid Rules, the following directions were issued:-
"“In view of the above position, in our considered view, the respondents ought to have fixed the pay of the applicant in terms of the relevant provisions contained in Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986. We, therefore, dispose of this OA by quashing and setting aside the impugned Annexure A1 dated 17.10.2011. We also direct the W.P.(C) 3111/2013 Page 2 of 10 respondents to fix the pay of the applicant strictly in accordance with the aforesaid rules. Since the applicant has already undertaken that overpayment, if any, has been received by her on account of her earlier fixation, will be refunded. She will be bound by the said assurance. The respondents shall pass appropriate orders of fixation of pay in the case of the applicant within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.” 5. The contention of the petitioners is that the aforesaid directions are extremely confusing and does not decide the controversy in issue.
6. We would agree with the counsel for the petitioners that the aforesaid operative is confusing and ambiguous for it does not settle the controversy. The elucidation examines the Rule position and thereafter leaves it to the petitioners to apply the relevant rules. The petitioners are aggrieved for they believe that the Rule position as interpreted would bind them and the same would not be in consonance with the stand and stance of the government that the respondent, being an ex-servicemen and not a pensioner, would not be governed by the said Rules. Having heard the counsels for the parties, we are convinced that the respondent is entitled to pay protection of the salary last drawn in the army service. We would elucidate and explain our reasons.
7. As noted above, the respondent had served in the Indian Army as Short Service Commission Officer from 11.3.1995 to 31.3.2007. She was selected and appointed as Assistant Executive Engineer, a civil post, after selection pursuant to the advertisement dated 12.2.2005 issued by the Director General, Electronics and Mechanical Engineering. By the letter dated 7.2.2007, the respondent was informed that her pay would be fixed in the scale of Rs. 8000-275-13,500/- and as per the Rules pertaining to the re- W.P.(C) 3111/2013 Page 3 of 10 employed members, she would be entitled to draw any other allowances as admissible and subject to the condition laid down in rules and order governing the grant of such allowances in force from time to time. On the basis of the aforesaid letter, the respondent had accepted the offer i.e. the terms and conditions mentioned in the letter dated 7th February, 2007.
8. The respondent had thereafter submitted her technical resignation to the Indian Army which was accepted. By the order dated 17.08.2007, the Indian Army issued a pay fixation pro forma certificate for protection of pay. This certificate dated 17.08.2007 issued by the Indian Army states that the respondent, on the date of resignation from the post of Assistant Executive Engineer, was drawing a salary of Rs. 13,500/- plus rank pay of Rs. 1600/-. By the letter dated 15.10.2008, the Establishment Office of the Commandant, Army Base Workshop clarified that as per the Rules, the actual basic pay drawn by the respondent was Rs. 15,100/- per month. This figure was inclusive of the Rank pay of Rs. 1600/-. On re-employment, the basic pay of the respondent would be Rs. 13,500/- along with personal pay of Rs. 1600/- per month under FR22read with the Government of India decision/circulars/Office Memorandum in this regard. We would observe that the question of basic pay is not being examined in the present petition as it has not been raised.
9. Having elucidated the relevant facts, we would examine the core issue; whether the respondent can be treated as pensioner whose pension has been partially ignored for the purpose of Rule 4 of the Rules. In order to appreciate the controversy, we would like to reproduce the definition of the term „Pension‟ as defined in Sub Rule W.P.(C) 3111/2013 Page 4 of 10 1 to Rule 3 and Rule 4 of the Rules in entirety. The same read as under:-
"“3. Definitions In these orders, unless, the context otherwise requires:-
"(1) “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 prior to his retirement. Where the pension has been commuted partly or fully, pension means the gross pension payable prior to commutation. XXXXX4 Fixation of pay of re-employed pensioners (a) 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. No protection of the scales of pay of the posts held by them prior to retirement shall be given. (b) (i) In all cases where the pension is fully ignored, the initial pay on re-employment shall be fixed at the minimum of the scale of pay of the re-employed post. (ii) In cases where the entire pension and pensionary benefits are not ignored for pay fixation, the initial pay on re-employment shall be fixed at the same stage as the last pay drawn before retirement. [If the stage next above that pay.]. If the maximum of the pay scale in which a pensioner is re-employed is less than the last pay drawn by him before retirement, his initial pay shall be fixed at the maximum of the scale of pay of the re- employed is less than the last pay drawn by him before retirement, his initial pay shall be fixed at the maximum of the scale of pay of the re- employed post. Similarly, if the minimum of the scale of pay in which a pensioner is re-employed is more than the last pay drawn by him before retirement, his initial pay shall be fixed at the minimum of the scale of pay in which a pensioner is re-employed is more than the last pay drawn by him before retirement, his initial pay shall be fixed at the minimum of the scale of pay of the re-employed post. However, in all these cases, the non- ignorable part of the pension shall be reduced from the pay so fixed. (c) The re-employed pensioner will, in addition to pay as fixed under Para (b) above shall be permitted to drawn separately any pension sanctioned to him and o retain any other form of retirement benefits. W.P.(C) 3111/2013 Page 5 of 10 (d) In the case of persons retiring before attaining the age of 55 years and who are re-employed, pension (including pension equivalent of gratuity and other forms of retirement benefits) shall be ignored for initial pay fixation to 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 posts 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 service officers belonging to the Defence Forces and Civillian pensioners who held Group „A‟posts at the time of their retirement, the first Rs. 4000/- of the pension and pension equivalent of retirement benefits shall be ignored.” 10. The term „pension‟ has been given an expansive and wide definition to include even pension equivalent of gratuity 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 prior to his retirement. It also includes Government‟s Contribution to Contributory Provident Fund. This is not the normal and usual definition of term „pension‟. It is obvious that the broad and wide definition has a purpose behind it. The effect thereof is to be examined.
11. The respondent, as a Short Service commission officer, was not entitled to a normal pension but to terminal gratuity. The said terminal gratuity, in our opinion, would constitute pension for the purpose of the aforesaid definition of pension. It was a retirement benefit payable to the respondent under the relevant and applicable Rules governing her employment as a Short Service Commission Officer. Entitlement of the respondent to terminal gratuity is an accepted fact and is noted in the letter dated 4th July, 2007 written by the Accounts Officer of the Indian Army who has stated that the respondent was not granted or paid terminal gratuity and the terminal W.P.(C) 3111/2013 Page 6 of 10 gratuity was being returned. This is also indicated in the letter dated 24th April, 2010 which uses acronym T.G. which stands for Terminal Gratuity and states that it was not paid. Thus, it would be safe to conclude and hold that the respondent was entitled to pension as defined Rule 3(1) of the Order.
12. Rule 4(b), it is noticeable, consists of two separate Clauses. Clause (i) refers to cases where the pension is fully ignored, i.e., the pensioner would continue to get pension and the said amount is not taken into consideration while fixing the pay on re-deployment. Clause (ii) deals with the cases where the entire pension or pensioner benefits are not fully ignored, i.e., the cases where as per law, the entire pension of pensioner benefits are not required to be ignored and are required to be taken into consideration for fixing the pay of a re-employed pensioner.
13. This brings us to Sub-Rule (d) of Rule 4. This rule applies to persons retiring before the age of 55 years and who were being re- employed. Clause (i) relates to ex-servicemen who have held post below Commissioned Officer. In such cases, entire pension or pension equivalent of retirement benefits are to be ignored. In other words, such ex-servicemen would continue to get pension as well as the pay of the new post. Both the amounts are payable simultaneously. The pension is not to be set off. Clause (ii) applies to those service officers belonging to Defence Forces or Civilian Pensioners who have held Group „A‟ posts at the time of their retirement. In such cases, first Rs.4000/- of the pension and pension equivalent of retirement benefits is to be ignored. In other words, this rule stipulates that pension or pensioner benefits shall be partially ignored to the extent stated therein. The expression W.P.(C) 3111/2013 Page 7 of 10 „ignored‟ used in Sub Rule (b) to Rule 4 in Clauses (i) and (ii) finds articulation and meaning in Sub-rule (d). The two clauses have to be read together harmoniously in a manner that is reflective of the legislative intent of the Order.
14. In the present case, the respondent was a service officer in the Defence Forces who had held Group-A post before she was recruited and re-employed as the Assistant Executive Engineer. In her case, Clause (ii) of Sub Rule (d) to Rule 4 would be applicable. As per the said Rule, first Rs.4000/- of her pension and pension equivalent of retirement benefits is to be ignored. Once the said principal precept applies, then she would be covered and Clause (ii) of Rule (b) to Rule 4. This is inescapable.
15. Learned counsel for the petitioner argues that the respondent was not entitled to any pension, therefore, it is a case wherein rule (b) to Rule 4 would not be applicable. In fact, it is pleaded that the entire Rule 4 does not apply. It is not possible to accept the said contention for the reasons stated and indicated above, i.e. the respondent was entitled to Terminal gratuity, which falls within the four corners of the expression "pension" for the purpose of the Rules.
16. The petitioner could have possibly raised the contention that the respondent had given up terminal gratuity and, therefore, in her case, no pension was paid and, therefore, it is not a case where entire pension or pensioner benefits were ignored. We would not accept the said interpretation. In fact, this argument was not raised and is being examined to rule out any contradiction or inconsistency in our finding. Clause (ii) to Sub Rule (d) to Rule 4 states the position in law when pension or pension equivalent or retirement benefits are to W.P.(C) 3111/2013 Page 8 of 10 be ignored and to what extent. When we refer to Clause (ii) to Sub Rule (b) to Rule 4, it would refer to the legal position emerging on application of Sub Rule (d) to Rule 4. It does not matter whether the respondent had voluntarily forgone her claim or right to terminal gratuity. Any other interpretation of Clause (ii) to Sub Rule (b) to Rule 4 would create anomalies. In the present case, as noticed, the respondent has not claimed terminal gratuity. She has voluntarily given up her right because she wanted to take benefit of pay protection. If the rejected interpretation is to be accepted, then the retired employees who take terminal gratuity would be still entitled to benefit of Clause (ii) to Sub Rule (b) to Rule 4 whereas a person like the respondent would be disentitled to the same. We should avoid such absurdity.
17. Therefore, the logical way of interpreting Clause (ii) to Sub Rule (b) to Rule 4 is to interpret in the manner that it refers to the legal position as emerging from the Sub-rule (d) to Rule 4 and not in reference to the actual payment of pension or pensionary benefits.
18. In this manner, we have no hesitation in recording that the respondent‟s case would be covered by Clause (b) (ii) to Rule 4 of the Rules. The petitioner would proceed and compute the salary of the respondent.
19. Any other issue or dispute which could arise pursuant to the determination of pay by the petitioners would have to be necessarily made the subject matter of the challenge in separate proceedings. However, we hope and trust that the petitioners, while commuting the salary payable to the respondent, would do so in a fair manner. The aforesaid exercise would be completed within a period of three months from the date of receipt of the order by the petitioners. W.P.(C) 3111/2013 Page 9 of 10 20. With the aforesaid observations, the writ petition is disposed of. No orders as to costs. OCTOBER25 2016/rs SANJIV KHANNA, J SUNITA GUPTA, J W.P.(C) 3111/2013 Page 10 of 10