1. Both learned Counsel heard. The applicant has impugned the letter dated 15.11.2000 issued by the respondents by which they have rejected his claim for refixation of pay on re-employment which, according to the applicant, is arbitrary, mala fide, discriminatory and against the principles of natural justice.
2. This is the second round of litigation of the applicant. The earlier O.A. filed by the applicant (O.A. 33/97) was disposed of by the Tribunal vide order dated 25.7.2000 directing the respondents to take a final decision in the matter in accordance with rules and instructions regarding his pay fixation. Accordingly the aforesaid impugned order dated 15.11.2000 has been passed.
3. The brief relevant facts of the case are that the applicant retired as Havildar in East Infantry in the Army on 15.2.83. Subsequently he was re-employed with the Respondent No. 3 i.e., 510, Army Base Workshop, Meerut Cantonment as a civilian employee with effect from 23.7.1984. One of the main contentions raised by Mr. U. Srivastava, learned Counsel is that other similarly situated persons, for example S/Shri Kedar Singh and Y.S. Tyagi, who have been re-employed like the applicant with the respondents on 23.7.84 and 26.11.84, respectively, have been fixed at higher pay in the pay scale of Rs. 210-290. He has therefore submitted that fixation of pay of the applicant at the minimum of the pay scale is discriminatory and mala fide as other similarly situated persons have been fixed in higher pay in the pay scale. According to the learned Counsel, applicant has made several representations against the order of the respondents which have been rejected in an arbitrary and illegal manner. Hence this O.A. He has in particular referred to the case of Shri Kedar Singh, who has been re-employed with the respondents on the same date as the applicant, namely 23.7.1984 and Shri Y.K. Tyagi, who has been re-employed with the respondents about four months later on 26.11.1984. His contention is that these two persons have been fixed at higher pay in the pay scale which has been denied to the applicant.
4. We have seen the reply filed by the respondents and heard Mr. Madhav Panickar, learned Counsel for the respondents.
5. Mr. Madhav Panickar, learned Counsel has submitted that in case of Shri Mukund Lal, he was re-employed on 19.6.1979 i.e., prior to the date of the relevant order issued by the respondents with regard to pay fixation and the date on which the applicant was re-employed on 23.7.1984. As regards the case of Shri Kedar Singh and Shri Y.S. Tyagi, he drew our attention to the order issued by the respondents fixing their pay which are dated 21.4.1989 and 26.6.1987, respectively (Copies placed at pages 15 and 14 of the paper book). Learned Counsel has submitted that in the case of these two persons as also that of Shri Bhagat Singh, their pay has been erroneously fixed. Another contention of the learned Counsel is that the pay of these persons namely S/Shri Kedar Singh, Y.S. Tyagi and Bhagat Singh, who have been impleaded as private respondents, have been fixed prior to the clarificatory order issued on 20.8.1990. He has submitted that as per Government of India, Ministry of Defence letter dated 8.2.1983, which is the relevant O.M.on the subject of fixation of pay of re-employed pensioners, in the case of those retiring before attaining the age of 55 years like the applicant as well as the private respondents the pay has to be fixed by ignoring the entire pension. By the clarificatory letter dated 20.8.1990, it has been further clarified that pay in respect of re-employed individuals is required to be fixed at the minimum of the pay scale in all cases where the pension is to be ignored. This condition has been repeated at the bottom of the impugned letter dated 15.11.2000, which has been relied upon by the learned Counsel for the respondents. He has submitted that as the pay of the other three persons mentioned above have been fixed earlier to the clarification given by letter dated 20.8.1990, which was not the case of the applicant, he cannot claim parity of pay fixation drawn erroneously in other cases. It is however relevant to note that no remedial action has been taken by the respondents to refix the pay of the other persons where they are claiming that they have committed an error.
6. We have considered the pleadings and the submissions made by the learned Counsel for the parties.
7. We note from the letter dated 21.4.89 regarding fixation of pay of Shri Kedar Singh (Respondent No. 5) that respondents have fixed his pay in the office of Respondent No. 3 at Rs. 270/- per month with effect from 23.7.1984 in the pay scale of Rs. 210-290 in addition to his pension. Similarly in the case of Shri Y.S. Tyagi (Respondent No. 6) his pay has been fixed by letter dated 26.6.87 in the same office of Respondent No. 3 at Rs. 308/- per month with effect from 26.11.84 in the pay scale of Rs. 260-400. Respondents have submitted in their reply that they have also erroneously fixed the pay of Shri Bhagat Singh (Respondent No. 4) by fixing his pay at a higher stage in the pay scale ignoring his pension. The main contention of the learned Counsel for the respondent is that the pay of the private respondents has been fixed prior to receipt of Government of India letter dated 20.8.1990.
The relevant portion of the letter dated 20.8.1990 reads as follows: "In the recent rulings given by the Ministry of Defence, consultation with the Department of Personnel & Training, Government of India, the pay in respect of re-employed individuals is required to be fixed at the minimum of the pay scale in all cases wherein the entire pension is to be ignored.
Ministry of Defence have also intimated that the subject matter is also subjudice in the Hon'ble Supreme Court of India and till a final verdict is pronounced by the Court, the ruling of the Department of Personnel & Training, Government of India will be implemented".
8. During the hearing, Mr. Madhav Panickar, learned Counsel has submitted a copy of the letter dated 3.5.2001 together with enclosure regarding "Fixation of pay of re-employed pensioners; review of the cases (wherein the pay was fixed at an advanced stage under order dated 8.2.83) and re-fixation of the pay at the minimum of scale". It is seen from this letter issued by the respondents that the judgment of the Hon'ble Supreme Court against O.A. No. 3/89 filed by Shri B. Ravindran has already been decided, though a copy of this judgment has not been placed on record. It is further relevant to note that respondents have themselves stated that they will have to decide such cases on merit on case-to-case basis.
9. In the present case, the main grievance of the applicant is that other similarly situated persons like the three persons mentioned above who have also been re-employed either on the same date as the applicant or later have been given higher pay taking into account their pension but when it came to applicant, this has not been done. It is also relevant to note that in spite of the executive instructions issued by the respondents themselves as far back as 20.8.1990 i.e., soon after fixation of pay of the other similarly situated persons for whom the respondents claim pay has been erroneously fixed, they have done nothing by way of correcting their mistake for all these years. Why they have not taken any remedial action is not satisfactorily explained. Once an error has been noticed by the respondents, it was their duty to rectify the same in accordance with law, relevant rules and instructions as early as possible, which in this case they have failed to do.
10. Therefore, prima facie, based on the clarifications issued by the respondents on 20.8.1990, they have followed the same in subsequent cases with regard to pay fixation i.e. at the minimum of the pay scale by ignoring the earlier pension. In the circumstances, the contention of the respondents in the impugned letter that the pay of the re-employed pensioners is to be fixed at the minimum of the scale in the posts they are re-employed where the entire pension has to be ignored cannot be faulted. It is also seen that they have taken into account the judgment of the Supreme Court in Ravindran 's case, and have taken a decision to decide such cases on merit on case-to-case basis.
11. In the facts and circumstances of the case, we consider that this is one of the cases where the respondents should take an appropriate decision in the matter on the merit of the case, they shall consider the aforesaid anomalies for which they are responsible on fixing the pay of other persons who are similarly situated like the applicant and take also into account the fact that a number of years have lapsed since their initial wrong fixations done in 1987-89.
12. In the above view of the matter, the impugned order dated 15.11.2000 is quashed and set aside. The respondents are directed to reconsider the case of the applicant for fixation of his pay, keeping in view the aforesaid observations and the judgment of the Hon'ble Supreme Court in B. Ravindran's case, and also the relevant rules and instructions. This shall be done within a period of two months from the date of receipt of a copy of this order with intimation to the applicant. No order as to costs.