Daya Shanker and anr. Vs. Union of India (Uoi) and ors.

1. This is an application under Section 19 of the Administrative Tribunals Act, 1985 against the alleged wrong fixation of pay of the applicants on their re-employment. In the O.A., the applicants sought for a number of reliefs as detailed in paras 8(A) to 8(F) of the O.A.During hearing, applicants' counsel stated that he was pressing for relief under para 8(A) only, which is reproduced below: "Respondent No. 3 may be directed to fix the pay of the applicants in accordance with the provisions of Order 4 and5 of the C.C.S. (Fixation of Pay of Re-employed Pensioners) Orders, 1986 and the other extant provisions referred to in para 4 and allow annual increments after fixing the pay on the date of re-employment." 2. The applicants in the O.A. stated that having retired from Army before completion of 65 years of age, they were called for test and interview for re-employment by the respondent No. 3 on 8.3.1984 and even though they were selected on 1.4.1984, appointments were made on 23.5.1988. They were appointed as labourers in the pay scale of Rs. 196-232 which was revised as Rs. 750-940 w.e.f. 1.01.1986. The applicants stated that had the respondents followed the instructions contained in the Department of Personnel and Training O.M. dated 12.9.1986, they would have been re-employed in the pre-revised scale of rupees 225-335 or in the revised equivalent scale of Rs. 950-1500. They stated that they were accordingly eligible and entitled to be appointed in Group 'C' immediately after release from Army, but they were re-employed in Group 'D' in the revised scale of pay of Rs. 750-940 w.e.f. 23.5.1988; however, their pay fixation was not done in accordance with the provisions contained in C.C.S. (Fixation of Pay of Re-employed Pensioners) Order, 1986 effective from 1.7.1986. The applicants quoted the regulations of pay fixation on re-employment as following: "(a) Initial pay on re-employment should be fixed at the minimum stage of the scale of pay prescribed for the post in which an individual is re-employed viz: Rs. 750/- in the scale of Rs. 750-940.

(b) That in case of the applicants, fixation of initial pay of there-employed at the minimum of the prescribed pay scale causes undue-hardship, their pay should be fixed at a higher stage by allowing one increment for each year of service, which the officer had rendered before retirement in a post not lower than that in which he is -re-employed. Hence in the case of the applicants, they are entitled for increment for each completed year of service." They stated that respondent No. 3 did not accede to the applicants' request for fixation of pay of the applicants as per C.C.S. (Fixation of Pay of Re-employed Pensioners) Order, 1986 nor they acceded to the applicants' request to the personal hearing on the plea that under Order 4 of C.C.S. (Fixation of Pay of Re-ernployed Pensioners) Order, 1986, pay had been fixed at the minimum of re-employed post. They stated that the respondents had ignored the fact that the applicants, were holding Group 'C' posts were denied re-employment in Group 'C' post in 1984. According to them, had they been re-employed in 1984, their pay would have been fixed in the grade of Rs. 196-232 not at the minimum, but by giving increment equal to the number of years of service put in by them in the same or higher grade before retirement and on introduction of revised pay scales from 01.01.1986, pay would have been refixed in the revised-pay scales. Further the applicants stated that re-employment was unduly delayed from the date of their release from the Indian Army i.e. April, 1982 and February 1984 respectively to 23.5.1988, though they were selected for the Group 'D' post on 1.4.1984 by the respondent No. 3 and that fixation of pay at minimum of the stage would cause undue hardship. The applicants further stated that the respondent No. 3 had also denied the benefit of annual increments due to the applicants on 23.5.1988, 23.5.1990, 23.5.1991, 23.5.1992 and 23.5.1993 even after fixing the pay at the minimum of the pay scale as per para 5 of C.C.S. (Fixation of Pay on Re-employment of Pensioners) Order, 1986. The applicants in their O.A. also stated that they had not been credited with the leave as per rules and Dearness relief on pension is being denied to them. As the applicants* counsel had stated that he was pressing for relief under para 8(A) only during hearing, we need not go into these further.

3. Respondents filed counter affidavit and resisted the claim of the applicants. They stated that the applicants' were selected for the post of Mazdoor in 1984 but they could not be appointed due to imposition of ban vide Army Headquarter's letter No. A/02384/15/ Org-4 (CW) (b) dated 13.7.1984 and both the applicants were appointed in 1988 on relaxation of the ban on recruitment vide Army Headquarter's letter No.A/08131/OS-20 dated 8.10.1987. They further stated that their pay had been fixed at the minimum of the scale at Rs. 750 per month as their full pension had been ignored in terms of Government of Ministry of Defence letter No. 21 (1)85 D CIV-1 dated 8.2.1983 and Order 4(a) and (b) of C.C.S. (Fixation of Pay of the Re-employed Pensioners) Orders, 1986. They stated that the applicants did not raise objection on fixation of their pay at the time of their appointment. They also stated that the applicants' were granted annual increments. They stated that on representation, the applicant No. 1 was informed vide the respondents office note dated 25.1.1994 (Annexure A-1) and other representations mentioned in the O.A. were not on record. Respondents stated that the O.A. as presented was highly time barred.

4. In the rejoinder-affidavit filed, the applicants' reiterated their claims made in the O.A. In addition they stated that they were selected on 1.4.1984 and the ban was imposed on 13.7.1984 and there was no explanation for this delay in appointment during the period. Further they stated that three persons viz: S/Shri Ram Sakhal, K.K. Shukla, and Ram Naresh were appointed in the first week of May, 1984, causing discrimination and violation of Articles 14 and 16 of the Constitution.

5. We heard the learned counsel for the parties as well as have given careful consideration to the rival pleadings and perused the complete records.

6. Learned counsel for the applicants resisted the plea of limitation and stated that the same is not sustainable and relied upon the following judgments of the Hon'ble Supreme Court and different benches of the Tribunal.S.S. Rathore v. State of Madhya Pradesh, 1990 Supreme Court Cases (L and S)50=1990(1)SLJ 98(SC).State of Madhya Pradesh v. Bani Singh, 1990 Supreme Court Cases 1308. (iii) M.R. Gupta v. Union of India and Ors., ATJ (iv) Aziz Ahmad v. D.R.M. delivered by Hon'ble Supreme Court in SLP 14434 of 1989 and 16260 of 1990 vide order and direction dated 25.11.1984.

(v) Smt. Kamla Devi v. Union of India and Ors., ATC (1989) 9 CAT-PB 49=1989(2) SLJ 632 (PB-ND) (CAT).

(vi) P.S. Subramanium v. Union of India and Ors., ATC (1994) 26 CAT-Madras 187 7. Learned counsel for the applicants also reiterated the pleadings made in the rejoinder, of the CA not being maintainable because of the same being filed without seeking condonation of delay. Learned counsel argued that as the appointments were delayed in this case, the appellants were entitled for the consequential benefits as had been decided by the Bombay bench of the Tribunal in Sri Raja Ram Bachchu Lot v. Union of India and Anr. in O.A. No. 803 of 1988, ATJ (1995) (1) CAT 356. Learned counsel for the respondents stated that the fixation of pay of the applicants had been done as per the Office Memorandum issued by the Department of Personnel and Training regarding fixation of pay to the re-employed pensioners. He submitted extracts of D.O.P. and T's O.M. dated 31.7.1986 reproduced from Chapter 2 of the Swamy's compilation on Re-employment of Pensioners.

8. We find from the records that on 9.4.1996, 4 weeks time was given to the respondents to file C. A. and the applicants' to file R.A! within two weeks thereafter, by the bench, but the C.A. was filed on 14.10.1996 and there was no delay condonation application filed along with the C.A. The case came up next on 7.2.1997 after more than three months when the applicants' counsel had not filed the R.A.. A week's time was given for the same on that day. If the C.A. is not maintainable in the absence of condonation of delay in filing the same as pleaded and argued by the applicant, the R.A. filed in response thereto cannot also come upon record. We are of the view that in the interest of justice both C.A. and R.A. should be taken on record and we decide accordingly.

9. We have given careful consideration to the pleas of limitation by the respondents and the arguments of the learned counsel for the applicants. Out of the judgments relied upon by the learned counsel for the applicants, in the facts and circumstances of this case, we hold that the judgment delivered by the Hon'ble Supreme Court in M.R. Gupta v. Union of India and Ors. and the judgment of Madras bench of the Tribunal in P.S. Subramaniam v. Union of India and Ors. will be applicable, as in this case also a cause of action arises every month due to alleged incorrect fixation of pay. Accordingly we reject the plea of limitation put forth by the respondents.

10. The applicants were selected in 1984 and appointed in 1988. In the O.A, there was no plea that some persons who were lower placed in the merit list than the applicants or who were selected in a recruitment initiated later than the one in which the applicants were selected, were appointed earlier than the applicants and prior to 1986. Even in the rejoinder affidavit, it had not been pleaded that the three persons appointed in the first week of May, 1984 were junior in merit to the applicants or selected in a recruitment initiated later than those in which the applicants were selected. Thus in absence of any plea of juniors to the applicants getting some benefits which are denied to the applicants the argument of the learned Counsel for the applicants for applying the ratio of judgment-of the Bombay bench of the Tribunal in O.A. No. 803 of 1988 Sri Rajaram Bachchulal v. Union of India and Anr.

fails.

11. The applicants were interviewed for re-employment in 1984, and actual appointments were made in 1988. Therefore fixation of pay of these applicants have to be done as per Rule 4 of Central Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986 reproduced below: (a) Re-employed pensioners shall be allowed to draw pay only in the prescribed scale of pay for the post 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 there is no such stage in the re-employed post, the pay shall be fixed at the stage below 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 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 of the re-employed post. However, in all these cases, the non-ignorable part of the pension equivalent of retirement benefits shall be reduced from pay so fixed.

(c) The re-employed Pensioners will in addition to pay as fixed under para (b) above shall be permitted to draw separately any pension sanctioned to him and to retain any other form of retirement benefits.

(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-serviceman, who held posts below commissioned officer rank in the Defence Forces and in the case of civilian who held posts below Group 'A' post 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 Civilian Pensioners, who held Group 'A' posts at the time of their retirement, the first Rs. 500/- of the pension and pension equivalent of retirement benefits shall be ignored" 12. Respondents have stated in the C.A. (para 3) that the fixation of pay of the applicants have been done as per Ministry of Defence letter No. 21(i)/83/B/C iv dated 8.2.1983 and order 4(a) and (b)(i)of C.C.S.(Fixation of Pay of Re-employed Pensioners) Orders, 1986. Again in para 8 of the C.A., it had been stated that in pursuance to Ministry of Defence's letter No. 2(3) 92-3(C-iv-l) dated 25.6.1992, the pay of the applicants was fixed at the minimum of the scale at Rs. 750/- in the scale of Rs. 750-940/- ignoring their full pension as per Govt. of India, Ministry of Defence O.M. No. 21 (i)/85/D (C iv-1) dated 8.2.1993. In para 2 of the letter dated 25.1.1994 in reply to the representation of the applicant No. 1, the following had been stated.

(Annexure II to C.A. and Annexure A-1 to the O.A.).

"In term of Order 4 of the C.C.S. (Fixation of Pay of Re-employed Pensioner) Orders, 1986, fixation of re-employrnent is not to be done as pay had already been granted from the minimum of the re-employed post." 13. The respondents did not submit the copies of the letter dated 25.6.1992 and O.M. dated 8.2.1993.

14. It appears from above submissions made that the respondents, had not fixed the pay of the applicants as per the provisions of the C.C.S.(Fixation of Pay of Re-employed Pensioners) Orders, 1986, which is the relevant order applicable to the applicants having been re-employed in 1988. Rule 4(d)(i) is applicable to the applicants as they had retired prior to attaining 55 years of age and they were not Commissioned Officers in Army.

15. Rule 5 of the C.C.S. (Fixation of Pay of Re-employed Pensioners) Orders, 1986, deals with drawal of increment which reads as under.

"Once the initial pay of are-employed Pensioner has been fixed in the manner indicated above, he may be allowed to draw normal increments in the time scale of the post to which he is appointed as if the pay had been fixed at the minimum or the higher stage, as the case may be (i.e. before an adjustment on account of other forms of retirement benefits is made) provided that the pay and gross pension/pension equivalent of other retirement benefits taken together do not at any time exceed Rs. 8,000/- per month." 16. It is clear from the above that the applicants are entitled for drawal of annual increments, from May, 1989 onwards, having been appointed in May' 88. Though in para 3 of the C.A., respondents stated that the applicants were getting annual increments, a reading of para 8 of the counter affidavit gives an impression that the applicants started getting to annual increments from 1993 only.

17. The learned counsel for the applicants have pressed for only one relief during hearing as reproduced in para 1 above. In view of our findings inparas 10, Hand 16 above, the applicants are entitled for the said relief in part and accordingly we direct the respondents to review the matter and take corrective action as necessary to fix the pay of the applicants on re-employment in May 1988 and grant annual increments from May, 1989 onwards as per paras 4(d)(i) and 5 respectively of the C.C.S. (Fixation of Pay of Re-employed Pensioners) Orders, 1986 and make payment of monetary arrears, if any due to the applicants within a period of three months from the date of receipt of the copy of this judgment.

18. The O.A. is disposed of with the above directions with no order as to costs.