Author: Nanavati.
Bench: S.C. Agrawal, G.T. Nanavati
DIRECTOR GENERAL OF POSTS & ORS.
Vs.
B. RAVINDRAN & ANR.
S.C. AGRAWAL, G.T. NANAVATI
(With CA Nos. 4079, 4080, 4042/92, SLP(C) Nos. 10,747/92, 2422/93, 12271/93, 14027/93,
16075/93, 17609/93, 21462/93, 7717/94, C.A. Nos. 4710/94, 3136/95, 7832/95, 2872/93, SLP(C)
17023/92, C.A. Nos. 3864/93, 3865/93, 6226/90, 9384/95, 9416/95, 65/92, 2429/94, 15/91,
7367/93, 4369/90, 75/95, SLPC(C) 16076/93, C.A. No. 4458/96, SLP(C) Nos. 10472/95, 1170/96,
11949/96, 3706/92, 7187/95, 14102/95, 5344/94, 11469/94, 12383/94, 12971/94, CA. Nos.
11376/96,10486/95 10487/95 & 10488/95)(Civil Appeal Nos. 14493-14512/96 against SLPs
10747/92,2422/93 etc. etc. respectively mentioned above) J U D G M E N T NANAVATI. J.
Leave granted.
re-employment on 29.11.83 should have been fixed at Rs. 350/- per month. He was denied his
benefit and his initial pay was pegged down to the minimum of the pay scale at Rs. 260/- on the
ground that his case cannot be regarded as a case of hardship in view of the clarification made by the
Department of Personnel and Training after consulting the Ministry of Finance and which is
contained in the circular letter dated 30.12.85 issued by The Director General, P & T. The applicant,
therefore, approached the Central 6 Administrative Tribunal and challenged the said clarification
and the letter dated 30.12.85 as arbitrary and against the provisions of pay taxation of re-employed
pensioners. The respondents in other appeals were also denied the benefit of advance increments for
the same reason and, therefore, they had also challenged before the Tribunal the said clarification
and the letter dated 30.12.85.
The contention of the applicants before the Tribunal was that it an ex-serviceman on being re
employed in civil service does not get by way of pay plus pension plus pension equivalent of gratuity
less than the last pay drawn by him at the time of retirement then it cannot be said that fixation of
his initial pay at the minimum of the prescribed pay scale has causes undue hardship to him and,
therefore, his pay was not required to 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. This was the policy of the Government right from 1958 and what was
implied was made clear by department of Personnel and Training after consulting the Ministry of
Finance. Therefore, the said clarification cannot be regarded as arbitrary or contrary to any
statutory provision or a provision having force of law.
When O.A. No.3 of 1989 along with O.A. No.15 of 1989 came up for hearing before the Division
Bench of the Tribunal Ernakulam it noticed that a Single Member Bench of the Tribunal had upheld
this contention in an earlier matter. As it was inclined to take a different view it raised the following
two issues and referred them to a larger Bench:
(a) Whether for the purpose Of granting advance increments over and above the
minimum of the pay scale or re-employment post in accordance with the O.M . of
25.11.1958, the whole or part of the military pension of the ex- servicemen which is to
be ignored for the purpose of pay fixation, can be taken into account to reckon that
the minimum of the pay scale of the re-employment post plus pension, is more or less
than the last military pay drawn by the re- employed ex-serviceman for the grant of
advance increments on re- employment; and
(b) If Yes , i.e., if it is decided that the ignorance pension also has to be reckoned for
the purpose of admissibility or advance increments, whether the order issued to this
effect in 1985 or 1987 can be given retrospective effect so to adversely affect the initial
pay of ex-servicemen who were re-employed prior to the issue of these instructions."
A Full Bench of the Tribunal answered those questions as follows:
"(a) We hold that for the purpose of granting advance increments over and above the
minimum of the pay scale of the re-employed post in accordance with the 1958
instructions (Annexures IV in O.A. No.3 of 1989), the whole or part of the military
pension of ex- servicemen which are to be ignored for the purpose of pay fixation in
accordance with the instructions issued in 1964, 1978 and 1983 (Annexures V, V-a,
and VI, respectively), cannot be taken into account to reckon whether the minimum
of the pay-scale of the re- employed post plus pension is more or less than the last
military pay drawn by the re employed ex- servicemen.
(b) The orders issued by the respondents in 1985 or 1987 contrary to the
administrative instructions of 1964, 1978 and 1983 cannot be given retrospective
effect to adversely affect the initial pay of ex-servicemen who were re- employed prior
to the issue of these instructions."
Following the decision of the Full Bench, O.A.No.3 of 1978 and O.A. No.15 of 1989 were disposed of
by the Division Bench by declaring that the applicants were entitled to be granted one advance
increment for each completed year of their military service in equivalent grade in fixing their pay in
the post of Post Assistant with effect from the date from which they were appointed if the minimum
of Rs. 250/- in the pay scale of Postal Assistant together with unignorable part of their pension did
not exceed last pay drawn by them in the Armed Force. The Tribunal also directed the respondents
in those applications to exclude the ignorable part of their pension while deciding whether any
undue hardship was caused to the applicants by fixing their reemployment pay at the minimum of
the pay scale of Postal Assistant. The Tribunal set aside the impugned orders and also the
clarification to the extent they were contrary to the said declaration. Aggrieved by the orders passed
by the Tribunal in those two applications and similar orders passed in other applications the
appellants have filed these appeals after obtaining special leave of this Court.
The learned counsel for the appellants submitted that the concept of hardship was introduce by the
Government in O.M. dated 25.11.1958 to ensure that there was no drop in the total package of pay
and pension on re-employment. It was never the intention of the Government to allow advance
increments after comparing the minimum pay to The pre- retirement pay as that would nave
entitled the ex-serviceman to double and unintended benefit. Thus the G.M. dated 30.12.1985 was
clarificatory in nature as it made explicit what was implicit in O.M. dated 25.11.1958. The learned
counsel further submitted that the tribunal having rightly found that the instructions issued in
1964,1978 and 1983 did not deal with the concept of hardship committed an error in holding that
the O.M. dated 30.12.1985 was not clarificatory in nature and was inconsistent with the statutory
provision contained in the Civil Service Regulations and the instructions issued thereunder which
also have equally binding force. As the O.M. dated 30.12.1985 was clarificatory in nature the
question of giving it retrospective effect did not arise at all. It was submitted that the view taken by
the Tribunal is therefore wholly misconceived. As against these submissions made on behalf of the
appellant the learned counsel appearing for the respondents have submitted that the tribunal has
correctly interpreted the O.Ms. of 1958, 1964, 1978, 1983 end 1985 and the effect of making a
corresponding amendment in the Civil Service Regulations which are admittedly statutory in nature.
On 25.11.58 the Government of India took a policy decision in the matter of the procedure to be
adopted in fixing The pay of pensioners re-employed in Central Civil Departments. It is applicable to
all such pensioners. The relevant part of the said policy decision is as follows:
"(a) Re-employed pensioners should be allowed only the prescribed scales of pay,
that is, no protected time scales such as those available to pre-1931 entrants should
be extended to them .
(b) The initial pay, on re- employment should be fixed at the minimum stage of the
scale of say prescribed for the post in which an individual is re-employed. In cases
where it is felt that the fixation of initial pay of the re- employed officers at the
minimum of the prescribed pay scale will cause undue hardship, the pay may be fixed
at a higher stage by allowing one increment for each year of service which the officer
has rendered before retirement in a post not lower than that in which he is
re-employed.
(c) In addition to (b) above the Government servant may be permitted to draw
separately any pension sanctioned to him and to retain any other form of retirement
benefit for which he is eligible e.g., Government's contribution to a Contributory
Provident Fund, gratuity, commuted value of pension, etc. provided that the total
amount of initial pay as at
(b) above, plus the gross amount of pension and/or the pension equivalent of other
forms of retirement benefit does not exceed :-
i) the pay he drew before his retirement (pre-retirement pay); or
ii) Rs. 3,000/-, whichever is less.
Note 1 :
In all cases where either of these limits is exceeded, the pension and other retirement
benefits may be paid in full and the necessary adjustments made in the pay 50 as to
ensure that the total of pay and pensionary benefits is within the prescribed limits.
Where, after the pay is fixed at the minimum or any higher stage, it is reduced below
the minimum as a result of the said adjustments, increase in pay may be allowed after
Director General Of Posts & Ors vs B. Ravindran & Anr on 8 November, 1996
Indian Kanoon - http://indiankanoon.org/doc/916508/ 4
each year of service at the rates of increments admission, as if the pay had been fixed
at the admission minimum or the higher stage as the case may be."
The Government of India felt that the capacity and usefulness of a person could not be greater than
what it was at the time of retirement but this consideration became irrelevant when applied to
persons who retired much earlier than the normal age of retirement of 58 years. Moreover, some of
the lower rank in the Defence Services, e.g., sepoys who retired at a very early age qualified
themselves for various trades and professions after undergoing some training. It therefore thought
that a distinction between officers who retired at the normal age of 58 and those who retired at an
early age was desirable. taking into account the difficulties of low paid pensioners who retire at an
early age. It decided that in case of persons retiring before attaining the age of 55 years, a part of the
pension may be ignored in computing pay on re employment. Accordingly an O.M. was issued
directing Civil pensions upto Rs. 10 p.m. and Military pension upto Rs. 15 p.m. should be ignored in
fixing pay on re-employment. An amendment to that effect was also made in Articles 521 and 526 of
the Civil Service Regulations. As declared by the dated 19.1.1964 the Government again raised the
limit in the following terms :-
(i) in the case of pensions not exceeding Rs. 50/- per mensum the actual pension,
(ii) in other cases, the first Rs. 50/- of the pension.
A corresponding amendment in the Civil Service Regulation was also made. This limit was further
raised from Rs. 50/- to Rs. 125/- by Ministry of Finance O.M. dated 19.7.1978. By its O.M. dated
8.2.1983 Ministry of Defence issued an order by raising the limit of pension to be ignored in fixing of
pay from Rs. 125/ to Rs. 250/ in the case of Service Officers and declaring that the entire pension
should be ignored in the case of personnel below Commissioned Officer's rank. All these orders were
made effective from the dates on which they were issued. We have referred to only those orders
which are relevant for the purpose of these appeals.
It appears that the effect of making the entire pension ignorable in certain cases was examined by
the Department of Personnel and Training in consultation with the Ministry of Finance. It was
decided to issue the following clarification with respect to the mode of pay fixation of re-employed
pensioner :-
" When a re-employed pensioner askes for refixation of pay under the 1983 orders,
his pay has to be fixed at the minimum of the scale.
The question of granting him advance increments arises only if there is any hardship.
Hardship is seen from the point (whether pay plus pension plus pension equivalent of
gratuity whether ignorable or not) is less than the last pay drawn at the time of
retirement. If there is no hardship no advance increments can be granted."
The said clarification was brought to the notice of all the concerned authorities of the postal
department by the Assistant Director General of Posts by circular dated 30.12.1985 and they were
directed to review all such previous cases in which the pay of the re-employed
pensioners/ex-serviceman were otherwise fixed under the Ministry of Defence order dated 8.2.1983.
As stated earlier this circular and the consequent action were the subject matter of the applications
filed by the respondents before the tribunal.
The effect of the order dated 8.2.1983 and the circular dated 30.12.1985 was that in case of a
pensioner who was re employed on or after 8.2.1983 his pay was to be refixed in terms of the said
order and the clarification. In respect of those ex-servicemen who opted to come under those orders
their pay was also to be fixed in the same manner.
It is not in dispute that the original order for fixation of pay of re-employed pensioners was
contained in O.M. dated 25.11.1958. In the matter of fixation of pay of such re-employed pensioners
the first step required to be taken was to fix his initial pay at the minimum stage of scale of pay
prescribed for the post on which he was re- employed. The next step to be taken was to find out
whether his pay thus fixed plus pension (including other pensionary benefits) exceeded the pay
which he drew before his retirement or Rs. 3000/-. If it exceeded either of those limits then
necessary adjustment was to be made in the pay by reducing it below the minimum stage so as to
ensure that the total pay including pension was within the prescribed limits. If the initial pay plus
the pension was found to be less then it was to be regarded as a case of undue hardship and his pay
was required to be fixed at higher stage by allowing one increment for each year of service which the
officer had rendered before retirement in a post not lower than in which he was re-employed.
However, when it was noticed that this formula was not fair and just in cases of pensioners who
retired at an early age that is before 55 years, the Government in relaxation of the policy contained
in the 1958 order decided to grant some benefits to such re- employed pensioners and issued an
order directing that civil pension upto Rs. 10 per month and military pension upto Rs. 15 per month
should be ignored in fixing pay on reemployment. Thus while totalling up the initial pay and the
pension for the purpose of finding out whether the pensioner on re-employment was likely to get
more or less then what he was getting earlier Rs. 10/- in case of civil Pensioners and Rs. 15/- in case
of military pensioners were to be ignored. In other words the amount of pension to be added to the
initial Pay was to be reduced to that extent. Thereafter his pay was to be adjusted depending upon
whether the pensioner would thus get more or less on his re- employment. This relaxation was
obviously in the nature of a modification of the earlier policy. As narrated above the said limits to be
ignored were increased from time to time and by the O.M. dated 8.2.1983 in case of ex-serviceman
the limit was raised to Rs. 250/- in case of service officers and in case of personnel belonging to
Commissioned Officer ranks the entire pensionery benefits were to be ignored. Though in the
beginning, according to the original policy contained in the 1958 order the entire pension was to be
added to the initial pay to find out whether it gave unintended advantage or caused undue hardship
to the re- employed pensioner the position did not remain the same after the passing of the orders in
1963 and 1964 and thereafter. The modifications thus made by the 1963 and 1954 orders were given
legal status by amending Articles 521 and 526 of the Civil Service Regulations accordingly.
However it was submitted by the learned counsel for the appellants that the orders which were
issued in 1963, 1964,1978 and 1983 did not deal with the aspect of hardship and were not intended
to replace or change the basic policy contained in the 1958 instructions. They were intended as
relaxations and, therefore, they cannot be said to have the effect of altering or modifying the 1958
policy. When the entire pension was made ignorable in the case of personnel below Commissioned
Officers rank the position substantially changed and therefore the Government was obliged to clarity
that as contemplated by the 1958 instructions hardship is to be seen from the point whether pay
plus pension plus pension equivalent of gratuity (whether ignorable or not) was less than the e time
of retirement. What the Government thereby did was to reiterate that it there was no hardship no
advance increment should be granted. What is overlooked by the learned counsel is that he
intention behind the orders issued in 1963, 1964, 1978 and 1983 was to give some more benefit to
the re-employed pensioner/ex-servicemen. The effect of the benefit was to be given at a stage prior
to the consideration of hardship. The ignorable part of the pension was to be ignored while totalling
up the initial pay plus the pension in order to find out whether the retired pensioner thereby was
likely to get more or less than what he was getting at the time of the retirement. To that the 1958
policy stood altered or modified. Though the said four order did not directly deal with the aspect of
hardship they did by widening the gas between the initial pay plus the non-ignorale part of the
pension and the pay he drew before his retirement and thereby further necessitated giving of
advance increments to alleviate hardship. It is, therefore, not correct to say that those orders had no
concern with the aspect of hardship. What the contention raised on behalf of the appellants further
overlooks is that pursuant to the orders issued in 1963 and 1964 corresponding amendments were
made in Articles 521 and 526 of Civil Service Regulations. The said Regulations were some time
prior to 1914 and had acquired statutory authority under Section 96-B(4) of the government of India
Act, 1919 and have been continued in force by virtue of Article 313 of the Constitution. They are,
therefore. statutory in nature. After its amendment in 1964 it read as under:-
"526(a) .... .... ....
(b) .... .... ....
(c) In case of service personnel who retire from the Forces before attaining the age of
55 and are re- employed in civil posts on or after 16th January 1964 the pension
shown below shall be ignored in fixing their pay on re-employment-
(i) in the case of pensions not exceeding Rs. 50 Per mensem, the actual pension;
(ii) In other case the first Rs. 50 of the pension.
The subsequent orders issued in 1978 and 1983 were supplementary in nature and did have a
binding force. Under these circumstances, the Government could not have, under the guise of a
clarificatory order, taken away the right which had accrued to such re-employed pensioners with
retrospective effect by declaring that while considering hardship the last pay drawn at the time or
retirement was to be compared with the initial pay plus pension whether ignorable or not. The 1985
clarificatory instructions were not only in consistent with the relevant provisions of the Civil Service
Regulations and the 1978 and 1983 orders but its effect was to supersede the said provision and the
orders. The Tribunal was, therefore, right in holding the said instructions in so far as it directed to
take into consideration the ignorable part of the pension also while considering hardship invalid and without any authority of law. These appeals are, therefore, dismissed with no order as to costs.
Delhi High Court
Indian Council Of Agricultural ... vs Bidesh Singh And Ors. on 19 September, 2007
Equivalent citations: 2008 (1) SLJ 559 Delhi
Author: M Mudgal
Bench: M Mudgal, A Suresh
JUDGMENT Mukul Mudgal, J.
1. This writ petition has been filed against the Judgment dated 5th May, 2004 passed in OA No.
4/2002 by the Central Administrative Tribunal (hereinafter referred to as 'CAT'), Principal Bench,
New Delhi by which the CAT held that the decision of the Hon'ble Supreme Court in Director
General of Posts and Ors. v. B. Ravindran and Ors. , was a binding precedent. It also held that the
applicants are similarly circumstanced with the applicants in OA Nos. 33 and 34 of 1994. The
objection with respect to the territorial jurisdiction was overruled as part of the cause of action had
arisen within the jurisdiction of the Principal Bench, CAT. The petitioners were directed to extend to the applicants, the benefits accorded in OA No. 33/1994 and OA No. 34 /1994 and to refix their pay by grant of one increment for each year of service rendered by them in defense with all
consequential benefits.
2. The brief facts of the case are as follows:
a) Fifty two employees who are ex-servicemen were appointed by the Indian Council for Agricultural
Research (hereinafter referred as ICAR) in response to the application invited by the Indian
Veterinary Research Institute, a division of ICAR. The vacancies were meant for ex-servicemen and
they were to be employed on various posts in Group C and D.
b) All the employed persons were ex-servicemen who had retired before attaining the age of 55 years
from the defense service and all of them had been re-employed in Civil Service with ICAR on a lower
pay than the last pay drawn by them in defense services.
c) The appointed employees made representations to the ICAR for grant of advance increments in
terms of the judgment of the CAT dated 15th October, 1997 in OA Nos. 33 and 34 of 1994 in the case
of Mahavir Singh and Ors. v. ICAR, wherein similarly placed persons who were ex-servicemen and
working as security persons in Central Avian Research Institute, a division of ICAR, were given
advance increments for each year of service rendered by them before joining the Civil Service as well
as their pay has been accordingly fixed.
d) Aggrieved by the conduct of ICAR in not giving the said employees benefit of the judgment in OA
Nos. 33 and 34 of 1994, OA No. 04/2002 was filed by the appointed persons before the Central
Administrative Tribunal (hereinafter referred to as the "CAT") with a prayer for direction to extend
the benefit of the judgment dated 15th October, 1997 in OA No. 33/1994 and 34 /1994 and as per the
position of law laid down by the order
e) The employer ICAR by the impugned judgment dated 5th of May, 2004 of the CAT was directed
to extend to the appointed persons, the benefits accorded in OA 33/1994 and OA 34 /1994 and to
refix their pay by grant of one increment for each year of service rendered by them in defense with
all consequential benefits within 3 months.
f) It is against this judgment dated 5th May, 2004 of the CAT that the present writ petition has been
filed before this Court.
3. The learned Counsel for the petitioner submitted as under:
a) The CAT overlooked the fact that the respondents herein are governed by the Central Civil
Services (Fixation of Pay of Re-employed Pensioners) Orders 1986 (hereinafter referred to as the
'CCS Orders, 1986') issued vide O.M. No. 3/1/85-Estt. (P-II) dated 31st July, 1986 according to
which the pay of the re-employed pensioner appointed on or after 1st July, 1986 is to be fixed as per
the provisions of the CCS Order 1986 which were issued in supercession of all the previous orders of
fixation of pay and other benefits on reemployment of ex-servicemen as well as civilian pensioners.
Therefore, the learned Tribunal has erred in holding that the respondents herein are similarly
situated as those applicants in OA No. 33 and 34 of 1994 and are entitled to one increment for each
year of service rendered in the department of defense. The impugned judgment of the CAT was
based on the judgment of the Hon'ble Supreme Court in B. Ravindran's case (supra). However, in B.
Ravindran's case CCS Orders, 1986 were not in dispute and there was no finding about it. In the said
case only the Government of India O.M. dated 25th November, 1958, 16th November, 1964, 10th
July, 1978 and 8th February, 1983 relating to the refixation and reemployment were considered by
the CAT and the Hon'ble Supreme Court. The judgment dated 15th October, 1997 in OA No. 33 and
34 of 1994 were implemented by the petitioners and few applicants who were appointed on or after
1st July, 1986 also got the benefit wrongly along with the other applicants, who were re-employed
before 1st July, 1986. Orders wrongly implemented do not give right to the others for the same
relief. Therefore, the CAT Principal Bench at Delhi has exceeded its jurisdiction by the impugned
judgment when granting one increment for each year of service rendered in defense services on the
basis of the judgment in B. Ravindran's case (supra).
b) The CAT failed to follow the decision of the Coordinate Bench dated 4th June, 2002 in OA No.
975-CH-2000, passed by the Chandigarh Bench of the CAT in which it was held that the instructions
of OM dated 31st July, 1986 superceded all the previous orders on fixation of pay of re-employed
pensioners. In view of the order of the Coordinate Bench of the CAT dated 4th June 2002, the
impugned order dated 5th May 2004 could not pronounce a judgment contrary to the declaration of
law made by another Coordinate Bench. It can only be referred to a Larger Bench if such Bench
disagrees with the earlier pronouncement. In S.I. Rooplal v. Lt. Governor , also the following
position of law was laid down:
12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a
coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another coordinate
Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the
subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the coordinate
Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so
that the difference of opinion between the two coordinate Benches on the same point could have
been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but
knowingly it proceeded to disagree with the said judgment against all known rules of precedents.
Precedent which enunciate rules of law from the foundation of administration of justice under our
system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to
know, for consistency in interpretation of law alone can lead to public confidence in our judicial
system. This Court has laid down time and again law must be followed by all concerned; deviation
from the same should be only on a procedure known to law. A subordinate court is bounded by the
enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce
judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench
if it disagrees with the earlier pronouncement. This court in the case of Tribhbvandas
Purshottamdas Thakur v. Ratilal Motilal Patel while dealing with a case in which the Judge of the
High Court had failed to follow the earlier judgment of a larger Bench of the same court observed
thus:
The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned
Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai's case and of Macleod,
C.J., in Hardas's case did not lay down the correct Law or rule of Practice, it was open to him to
recommend to the Chief Justice that the question be considered by a larger Bench. Judicial
decorum, propriety and discipline required that he should not ignore it. Our system of
administration of justice aims at certainty in the law and that can be achieved only if Judges do not
ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C.J.,
observed in Lala Shri Bhagwan and Anr. v. Shri Ram Chand and Anr.
It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that
if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the
High Court, whether of a Division Bench or a Single Judge, need to be reconsidered, he should not
embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench,
or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a
larger Bench to examine the question. That is the proper and traditional way to deal with such
matters and it is founded on healthy principles of judicial decorum and propriety.
c) The CAT has wrongly come to the conclusion that the decision of the Hon'ble Supreme Court in
the case of Director General, ESI Corporation, New Delhi and Anr. v. Sh. M.P John and Ors.
contrary to B. Ravindran's case (supra) is per in curiam and cannot be treated as a binding
precedent.
4. The learned Counsel for the respondents submitted as under:
a) The impugned judgment of the CAT dated 5th May 2004 has been challenged by the petitioners
after a gap of about 10 months and thus is hit by laches and should be dismissed on this ground.
b) The question whether an ex-serviceman while getting re-employed in civilian jobs should or
should not be given increments in their pay-scale for each year of service in the Armed Forces has
been well settled by the Hon'ble Supreme Court in B. Ravindran's case (supra).
In the case of B. Ravindran, the Full Bench of the Tribunal had given the following directions:
(a) We hold that for the purpose of granting advance increments over and above the minimum of
the pay scale of the re-employed post in accordance with the 1958 instructions (Annexure IV in OA
3/89), the whole or part of the military pension of ex-servicemen which are to be ignored for the
purpose of pay fixation in accordance with the instructions issued in 1964, 1978 and 1983 (Annexure
V, V-a and VI respectively) cannot be taken into account to reckon whether the minimum of the pay
scale of the re-employed post plus pension is more or less than the last military pay drawn by the
re-employed ex-servicemen.
(b) The orders issued by the respondents in 1985 or 1987 is contrary to the Administrative
Instructions of 1964, 1978 and 1983, cannot be given retrospective effect to adversely affect the
initial pay of ex-servicemen who were re-employed prior to the issue to these instructions.
This decision of the Tribunal was assailed before the Apex Court in UOI v. B. Ravindran (supra)
wherein the Apex Court has observed as under:
The Tribunal was, therefore, right in holding the said instructions in so far as it directed to take into
consideration the ignorable part of the pension also while considering hardship invalid and without
Paras (b) and (c) of the 1958 instructions which are relevant in the present context, read as under:
(b) The 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.
In case where it is felt that the fixation of initial pay of the re-employed officer at the minimum of
the prescribed pay scale will cause undue hardship, the pay may be fixed at a higher stage by
allowing one increment for each year of service which the officer has rendered before retirement in a
post not lower than in which he is re-employed.
(c) In addition (b) above, the Government servant may be permitted to draw separately any pension
sanctioned to him and to retain any other form of retirement benefit for which he is eligible, e.g.,
Government contribution to a Contributory Provident Fund, gratuity, commuted value of pension,
etc., provided that the total amount of initial pay as at (b) above, plus the gross amount of pension
and/or the pension equivalent of other forms of retirement benefit, does not exceed:
(i) The pay he drew before his retirement (pre-retirement pay), or Rs. 3,000/- whichever is less.
Therefore, in B. Ravindran's case (supra) the Hon'ble Supreme Court held that the CAT was right in
so far as it directed to take into consideration the ignorable part of the pension also while
considering the hardship invalid and without any authority of law. The petitioner's case is not that
the decision in B. Ravindran's case is not applicable to the present case but that the decision in B.
Ravindran's case no longer holds the field in view of M.P. John's case.
5. In the case of MP. John and Ors. (supra), the Hon'ble Supreme Court was dealing with one
particular case of Ex-serviceman and was considering the question of the hardship based upon the
facts and circumstances of his case. The Court in that matter held that there was no conflict between
the OM dated 25th November, 1958 and OM dated 8th February 1983 as the latter one governs the
pay which an ex-serviceman draws in the ordinary course of re-employment. It also prescribed that
in addition he will receive the pension which has to be ignored for pay fixation. Departure from this
norm of granting minimum pay scale is permissible only in the case of hardship and that too, to the
extent permitted. Thus, the aforesaid decision was based on the facts of that case where hardship on
facts was not found and does not affect the applicability of B. Ravindran's case (supra) to the facts of
the present case.
6. The decision by the Tribunal (Ernakulam Bench) of the CAT in OA No. 1839/1991 and OA No.
1841/1991 dated 1st July 1992 and 20th July 1992 relates to the case of similarly situated persons
and having parity with the respondents herein. In this case ex-servicemen employed in Civil Services
sought extension of the benefits which were granted by the petitioner ICAR and the same judgment
was implemented as well.
7. In this judgment we have only dealt with those pleas which were urged before us in the hearing
though the written submissions contain pleas not urged before us during the hearing of the writ
petition. In so far as plea of Coordinate Bench of CAT, Chandigarh Bench is concerned, that has no
binding force in so far as this Court is concerned and since this Court is deciding the issue on merits
we are not deciding this question. We have also noticed the fact that the impugned judgment of the
CAT dated 5th May 2004 was challenged after about 10 months of its being passed. However, by the
impugned judgment the arrears were directed to be restricted only to one year prior to the date of
filing of the OA while directing the refixing of the pay by grant of one increment for each year of
service rendered by the respondents with all consequential benefits. The judgment was required to
be complied within a period of three months from the date of receipt of the copy of the judgment.
The judgment dated 5th May 2004 was challenged for the first time in this Court only on 18th
March 2005. The impugned judgment of the Tribunal was not stayed in this Court by any order and
even then up-to-date the petitioner has not implemented the said judgment.
8. In our view, this conduct of the petitioner in first not obeying the mandate of the Tribunal's
judgment to comply with it within the period of three months and approaching this Court after
about 10 months and thereafter not implementing the judgment even up-to-date without any
interim order would have been sufficient to dis-entitle the petitioner to seek the discretionary relief
under Article 226 of the Constitution of India. The impugned judgment directed the extension of the
benefit accorded in OA No. 33/94 and 34 /94 to the respondents herein also.
9. However, even otherwise on merits we find no cause for interference. The crux of the case of the
petitioner is that the relief available in the judgment of B. Ravindran's case (supra) was no longer
available in light of the subsequent order of M.P. John (supra). In our view, this plea of the
petitioner cannot be accepted. The principles laid down by the judgment of the Hon'ble Supreme
Court in the B. Ravindran's case (supra) are as follows:
However, it was submitted by the learned Counsel for the appellants that the orders which were
issued in 1963, 1964, 1978 and 1983 did not deal with the aspect of hardship and were not intended
to replace or change the basic policy contained in the 1958 instructions. They were intended as
relaxations and, therefore, they cannot be said to have the effect of altering or modifying the 1958
policy. When the entire pension was made ignorable in the case of personnel below Commissioned
Officer's rank the position substantially changed and, therefore, the Government was obliged to
clarify that as contemplated by the 1958 instruction hardship is to be seen from the point whether
pay plus pension plus pension equivalent of gratuity (whether ignorable or not) was less than the
last pay drawn at the time of retirement. What the Government thereby did was to reiterate that if
there was no hardship no advance increment should be granted. What is overlooked by the learned
Counsel is that the intention behind the orders issued in 1963, 1964, 1978 and 1983 was to give some
more benefit to the re-employed pensioners/ex-servicemen. The effect of the benefit was to be given
at a stage prior to the consideration of hardship. The ignorable part of the pension was to be ignored
while totalling up that initial pay plus the pension in order to find out whether the retired
pensioners thereby was likely to get more or less than what he was getting at the time of his
retirement. To that extent the 1958 policy stood altered or modified. Though the said four orders did
not directly deal with the aspect of hardship they did by widening the gap between the initial pay
plus the non-ignorable part of the pension and the pay he drew before his retirement and thereby
further necessitated giving of advance increments to alleviate hardship. It is, therefore, not correct
to say that those orders had no concern with the aspect of hardship. What the contention raised on
behalf of the appellants further overlooks is that pursuant to the orders issued in 1963 and 1964
corresponding amendments were made in Articles 521 and 526 of the Civil Service Regulations. The
said Regulations were made sometime prior to 1914 and had acquired statutory authority under
Section 96-B(4) of the Government of India Act, 1919 and have been continued in force by virtue of
Article 313 of the Constitution. They are, therefore, statutory in nature. After its amendment in 1964
526 (a) - (b)
(c) In case of service personnel who retire from the Forces before attaining the age of 55 and are
re-employed in civil posts on or after 16-1-1964 the pension shown below shall be ignored in fixing
their pay on -re-employment -
(i) in the case of pensions not exceeding Rs. 50 per mensem, the actual pension;
(ii) in other cases the first Rs. 50 of the pension.
16. The subsequent orders issued in 1978 and 1983 were supplementary in nature and did have a
binding force. Under these circumstances, the Government could not have, under the guise of a
clarificatory order, taken away the right which had accrued to such re-employed pensioners with
retrospective effect by declaring that while considering hardship the last pay drawn at the time of
retirement was to be compared with the initial pay plus pension whether ignorable or not. The 1985
clarificatory instructions were not only inconsistent with the relevant provisions of the Civil Service
Regulations and the 1978 and 1983 orders but its effect was to supersede the said provision and the
orders. The Tribunal was, therefore, right in holding the said instructions insofar as they directed to
take into consideration the ignorable part of the pension also while considering hardship invalid and
without any authority of law. These appeals are, therefore, dismissed with no order as to costs.
10. In M.P. John's order of the Hon'ble Supreme Court the earlier judgment of the Hon'ble Supreme
Court in B. Ravindran's case was not even referred to as apparently it was not brought to the notice
of the later Bench of the Hon'ble Supreme Court. In our view, we are bound by the earlier judgment
of the Hon'ble Supreme Court in B. Ravindran's case and accordingly no warrant for interference
with the judgment of the Tribunal which applies the judgment in B. Ravindran's case. The relevant
part of the said judgment in M. P. John's case (supra) reads as follows:
6. Office Memorandum of 25.11.58 is for a very different purpose G.O. of 25.11.58 enables the
employer to give certain increments in the prescribed pay scale to a re-employed ex-serviceman at
the time of his joining in a case of hardship. This hardship is defined as arising if his pay on
re-employment together with his pension fall short of his last drawn pay while in military service.
Office Memorandum quite clearly refers to pension "whether ignorable or not". Therefore, pension
which is ignored for the purpose of determining the pay, may be considered under G.O. of 25.11.58
for the purpose of deciding if there is any financial hardship to the ex-serviceman. This cannot be
considered as in any way in conflict with the G.O. of 8.2.83 prescribing the grant of pay at the
minimum of the scale on re-employment. The latter governs the pay which an ex serviceman will
draw in the ordinary course on re-employment. It is also prescribes that in addition, he will get
pension which has to be ignored for pay fixation. A departure from this norm of granting minimum
in the pay scale is permissible only in the case of hardship and that too, to the extent permitted.
There is no hardship as contemplated under G.O. of 25.11.58, in the case of the respondent. Hence
his pay fixation under the G.O. of 8.2.83 is proper.
Even the perusal of the above order in M. P. John's case shows that it was found on facts that there
was no hardship as contemplated in the case of the respondent. Furthermore, the contents of the
order of the Hon'ble Supreme Court in M.P. John's case clearly show that it was largely based on the
facts of the case and the detailed principles of law are laid down in B. Ravindran's judgment.
Besides, if M.P. John's order had noticed the judgment in B. Ravindran's case and explained its
effect, then of course this Court and indeed all courts in India would have been bound to follow the
said order. In the present case the earlier judgment in B. Ravindran's was not brought to the notice
of the Hon'ble Judges who passed the order in M. P. John's case.
11. The judgment of the B. Ravindran's case not having been noticed by the order of the later Bench
of the Hon'ble Supreme Court, in our view, we are bound by the law laid down in the judgment of B.
Ravindran's case by the Hon'ble Supreme Court which fully covers the present case. The
Constitution Bench of the Hon'ble Supreme Court in the case of Sub-committee of Judicial
Accountability v. Union of India and Ors. , held as follows:
Indeed, no co-ordinate bench of this Court can even comment upon, let alone sit in judgment over,
the discretion exercised or judgment rendered in a cause or matte before another co-ordinate bench.
However, we are of the view that it is not a healthy precedent for a CAT or any other court other
than the Hon'ble Supreme Court to hold that a judgment of the Hon'ble Supreme Court is per
incuriam and we hold that the law laid down by the CAT in its judgment dated 15th October, 1997 in
O.A. No. 33/94 and O.A. No. 34 /94 on the issue of M.P. John's order of the Hon'ble Supreme Court being per incuriam does not lay down the correct position of law. The principle of per incuriam can
at best be invoked only by a Court of Coordinate jurisdiction and not by a court subordinate.
12. Besides, the respondents are ex-servicemen and have been fighting the battle for seeking benefits
of the 1958 order and parity with similarly situated employees by making representations since
2000. We cannot help noticing the fact that the already similarly situated persons who are covered
by the judgment of the CAT dated 15th October, 1997 delivered in OA Nos. 33/94 and 34 /94 have
been granted the benefits by implementing the judgment of the CAT dated 15th October, 1997. This
is an additional reason why no interference is warranted under Article 226 of the Constitution of
Indi as the petitioner is an authority falling under Article 12 of the Constitution and thus cannot
differentiate between two similarly situated employees.
Rajasthan High Court
Union Of India (Uoi) And Ors. vs Mool Singh And Anr. on 7 December, 2001
Equivalent citations: 2002 (4) WLN 603
Author: R Balia
Bench: R Balia, O Bishnoi
JUDGMENT Mr. R. Balia, J.
1. Heard learned counsel for the parties.
2. The respondent-applicant before the CAT had been initially appointed as Signalman on 26.6.66
and after serving 15 years actively and being kept on reserved list for two years, he was retired from the services on 31st August, 1981. Thereafter, he was re-employed in the Telecommunication
Department as Telephone Operator on 26th February, 1982 in the pay-scale of Rs. 260-480. At the time of his retirement, the applicant was drawing pay of Rs.250/- plus 20=270, which was more
than the minimum of the pay-scale in which he was appointed on re-employment. So also the
minimum of the pay-scale applicable to the post of re-employment was lower than the maximum of
the pay-scale in which the respondent-applicant was drawing his emoluments at the time of his
discharge from the defence service. His pay-scale at the time of retirement was Rs. 205-265. By
considering that the respondent-applicant has been appointed in pay-scale higher than in which he
was drawing his emolument in his previous employment, he was fixed at the minimum of pay-scale
at Rs. 260 per month.
3. Aggrieved with fixation at the minimum of the pay-scale as the Telephone Operator, the petitioner represented that he is entitled to be fixed at that stage of the scale at which he was drawing pay
while he was serving in the Army.
4. The employer having not agreed with the demand of the applicant, an Original Application was
filed before the Central Administrative Tribunal raising grievance about fixation of pay in the
pay-scale of Rs. 260-480 on his re-employment by the Telecommunication Department.
5. The respondent U.I.O. contended before the Tribunal that the applicant was drawing his
emoluments in the pay-scale of Rs. 260-265 (sic 205-265 ?) in the Indian Army and he was
re-employed on the post of Telephone Operator which carries the higher pay-scale Rs. 260-400. He was, therefore, not entitled to be fixed at any higher stage in the pay-scale, but could be fixed at the
minimum of the pay-scale. The Tribunal held, following its earlier decision rendered in Shyam Lal
Saran v. Union of India in O.A. No. 36/2000, that the fixation of pay on re-employment in the case
of Shyamlal was held to be as per terms of Office Memorandum dated 25.11.58 and 14.3.68 which
entitled the applicant in the aforesaid case to be fixed at that stage of the pay-scale after according
increment for the number of years served in the previous employment.
6. Following the aforesaid decision, the application filed by the applicant was allowed by directing
the respondents to fix his pay in accordance with O.M. dated 25.11.58 and 14.3.68 by grant of
advance increment equal to the number of completed years of service with the Indian Army 7. Aggrieved with the order dated 10th April, 2001, this writ petition has been preferred by the
Union of India in its Telecommunication Department.
8. It has been contended by Mr. Bishnoi, learned counsel for the petitioners, that in terms of
Regulation of Pay during Re-employment, the fixation of the respondent-applicant at the lowest of
the pay-scale applicable to the post was rightly done for the reasons noticed by us above as per the
contention raised before the Tribunal.
9. He has further pointed out that decision in Shyam Lal's case (supra) by the CAT which was
founded on joint reading of the office memorandum dated 25.11.58, 11.4.63 and 14.3.68 was
subjected to D.B. Civil Writ Petition No. 3144/2001 (U.O.I. v. Shyam Lal Saran). He, therefore,
states that no finality could be attached to the decision passed by the Tribunal in O.A. No. 36/2000.
10. So far as the decision in Shyamlal's case is concerned, the writ petition has since been dismissed
and was so informed by the learned counsel for the respondents) on 3rd December, 2001 holding
that the office memorandums issued after 25.11.85 (sic 25.11.58 ?) were not merely clarificatory but
were in fact modifying the earlier memorandum. The office memorandum dated 25.11.58 provided
fixing of the pay in the pay-scale applicable to the post on which the ex-employee is re-employed at
the minimum of the pay-scale applicable to the post. Only in the case of hardship, the power has
been conferred on the Appointing Authority to remove such hardship and it has further been
provided that in case the emoluments fixed under the re-employment fall-short of last drawn pay of
the previous service, it is to be treated as hardship needing exercise of such authority.
11. It appears to be true that for removing such hardship by fixing the pay at the minimum of the
pay-scale/ under O.M. dt. 25.11.58. But the question needs consideration after fixation of
emoluments as per Rules governing such fixations. The later circulars, to which reference has been,
issued in 1963 and 1968 extended further benefits in the matter of fixation of pay on re-employment by providing the fixation at the stage in the pay-scale applicable to the post, at which stage the
incumbent was drawing his pay in the previous employment and that exercise was to be done prior
to considering the question of hardship for the purpose of further increase in the pay fixation to a
12. In coming to this conclusion, the Tribunal has placed reliance on the ratio laid in Director
General of Posts v. B. Ravindran [(1997) 1 SCC-641 in which the Supreme Court by referring to the
Office Memorandum dated 25.11.58 and subsequent Memorandums issued in 1963, 1964, 1978 and
1983 has held that the intention behind the orders issued in 1963, 1964, 1978 and 1983 was to give
some benefit to the re-employed pensioners/ex-servicemen. The effect of the benefit was to be given at a stage prior to the consideration of hardship as per the O.M. dt. 25.11.58. The ignorable part of
the pension was to be ignored while totalling up the initial pay plus the pension in order to find out
whether the retired pensioner thereby was likely to get more or less than what he was getting at the
time of his retirement. To that extent the 1958 policy stood altered or modified.
13. The Court further observed that though the said four orders did not directly deal with the aspect
of hardship they did by widening the gap between the initial pay plus the non-ignorable part of the pension and the pay he drew before his retirement and thereby further necessitated giving of
advance increments to alleviate hardship.
14. Thus, the Court held that by issuing subsequent orders, the Office Memorandum dt. 25.11.58 was
not superseded but was brought into operation after fixation of pay under the subsequent circulars
initially. If still there was a gap between the last drawn pay and pay fixed under the said
memorandums plus non-ignorable part of the pension.
15. The Rules of 1979 envisage that all ex-servicemen within the meaning of Rules, any person who
has served in any rank whether as combatant or as a non-combatant in the Regular Army, Navy and
Air Force of the Indian Union and who has retired from such service after earning his pension is
deemed to be an ex-serviceman for the purpose of re-employment. The fixation in the Central
services was reserved for re-employment, such ex-servicemen subject to relaxation in age limit and
educational qualification.
16. By issuing another order dated 31st July, 1986, the Central Govt. provided the criteria for
fixation of pay to re-employment pensioners an order was known as Central Civil Services (Fixation
of pay of Re-employed Pensioners) Orders, 1986.
17. Learned counsel contends in terms of Clause 4 of the said Order respondent No. 1 on his
re-employment has to be fixed at the minimum of pay-scale of the post only. The Clause 4 reads as
under :
Clause 4 : 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 there is no such stage in the re-employed post, the pay shall be fixed at 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 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 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 draw separately any pension sanctioned to him and to retain any other form of
(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 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.
18. Having perused this provision, we are of the opinion that this provision does not carry the case
of the petitioners any further. Clause (a) envisages that there is no protection of the scales of pay of
the posts held by them prior to retirement snail be given.
19. Clause (b) classifies the cases in two categories, one is the case where the pension is fully
ignored. So far as in the case of such ex-serviceman, who is re-employed on the post and his pension
is fully ignored, sub-para (i) of Para (b) directly provides that the initial pay on re-employment shall be fixed at the minimum of the scale of pay of the re-employed post.
20. Other is the class of persons in whose case pension is not fully ignored Such cases are governed
by Para b(ii) of Cause 4.
21. Para (d) of Sub-clause (b) states that any person who retires before attaining the age of 55 years
and who is re-employed pension shall be ignored to the extent mentioned therein only.
22. Thus, it is dear that where a person who is retired before attaining the age of 55 years is
re-employed, in fixing his pay on re-employment his pension is not to be fully ignored but is ignored
only to the extent provided in para (d) of Clause 4 and his pay is to be fixed as per Clause b(ii),
where he is re-employed. In such case Rule is not to fix the pay at the minimum of pay-scale
applicable to the post. But has to be fixed at the same stage at the last pay drawn before retirement.
23. Apparently the case of the applicant-respondent No. 1, who is retired before attaining the age of
55 years after serving 15 years on active service and remaining on reserved list for two years 1982 is
governed by the criteria laid in Sub-clause (ii) of Clause (b).
24. Reading that provision makes the following criterion for fixation of pay on re-employment in
clear terms (i) that 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. 25. As per this general principle the respondent-applicant is entitled to be fixed at the same stage at
the test pay drawn by him in his previous employment.
26. Exception to the general rule has been provided in the following manner : (i) where the
maximum of the pay scale of pay 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 pay of re-employed
post. Obviously, this is not exception in which applicant's case falls inasmuch as he has not been
re-employed at the maximum of pay-scale which is less than last drawn pay maximum. We have
noticed above that last drawn pay for the purpose of Rs. 270 whereas maximum of pay-scale in
which he has been found Rs. 400/-. (ii) 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.
27. It is also dear that since the minimum of the pay-scale of the pay of the post in which pensioner
is re-employed is not more than the last pay drawn by him before retirement. He cannot be fixed
under this exception also inasmuch as minimum of the pay-scale of pay in which the pensioner has
been re-employed is Rs. 260/-. whereas last drawn pay of the respondent-applicant was Rs. 270/- is
28. In these circumstances, as per the provisions of Order of 1986 relied upon by the petitioners also
the respondent-applicant was entitled to be fixed in the pay-scale of the post on which he was
re-employed at the same stage at which he was last drawing the pay in his previous employment.
29. In view of this it cannot be said the order of Tribunal suffers from any error apparent from
record which may justify issue of writ of certiorari by invoking extraordinary jurisdiction.
Accordingly, we do not find any force in this writ petition and the same is hereby dismissed with no
order as to costs.
for providing such valuable informations.
