Clarification about Para 4(b)(i) of DoPT OM
dated 5.04.2010 for which Shri Pushpender Kumar the under secretary (Pay) DoPT
stated pay is allowed only at the entry pay as pension is not deducted in the
case of PBOR and the orders make a clear distinction between fixation of pay
Commissioned Officers and PBOR .
Para 4 (b) (i) : the
Para states in case where the pension is fully ignored initial pay should be
fixed as per entry pay of the re-employed post as in the case of direct
recruits appointed on or after 1.1.2006 as notified vide section Part A of
first Schedule to CCS (RP) rules, 2008.It is pertinent to note that :
(a)
It
may be noted that due to the introduction running pay bands and Grade Pay in
the 6th CPC, the term “Minimum Pay has been replaced with Entry Pay
in the revised pay structure as given Para (b) (i) of the DoPT O.M dated
05/04/2010.
(b)
Here
the line “Pay shall be fixed as per the entry of the re-employed post” implies
the Pay scale /structure of the re-employed post to be considered while initial
pay fixation and not the minimum pay at which pay is to be fixed.
(c)
That the Ministry of Finance issued
Notification vide GSR 622 (E) dated
29.08.2008 in exercise of powers conferred by the provisions to article
309 and clause (5) of article 148 of constitution of India. Therefore the
eligibility of the applicant for the pay fixation is prescribed by the DOPT OM
dated 11.11.2008 and it is therefore from 01-01-2006 the initial pay of
re-employed government ,who received pension or any other retirement benefits
but which were ignored while fixing on re-employed and who elects or is deemed
to have elected to be governed by the revised pay scale from 1-1-2006 and their pay shall be fixed according to the
provision of by Rule 7 of CCS (RP) Rules, 2008 for determine the initial pay on
re-employment vide Para 2(1) and Para 1(II) of DOPT OM dated 11-11-2008.It also
further clarified the application of Rule 7 is continue to apply in cases of pay fixation re-employed persons
vide DOPT circular No. 997012/2014-Estt(Pay) dated 26-6-2014.
(d)
In
this regard, it has been clarified by the ministry of Defence (Finance) as
communicated by CGDA vide letter No. AT/II/2432-VI dated
15/02/1993,No.AT/Tech/263-XVIII dated 12.05.2015 that in all cases where the entire amount of
pension is ignored , the initial pay on re-employment has to be fixed at the
minimum of the scale of the re-employed post and therefore there is no necessity
of indicating the pay drawn by individual from the date of enrollment to the
date of discharge , and only particulars of Last Pay drawn will serve the
purpose, in the other words , where the entire amount of pension ignored ,
furnishing the Last pay drawn particulars of Military Pensioner will suffice
for the purpose of fixation on re-of pay employment.
(e)
The
pay of the fresh recruit recruited on or after 1.1.2006 is fixed at minimum of
the pay scale and has no relevance to
the ex-servicemen and that is to be done in accordance with Rule 8 and the same is extracted in Para-08 of the Gazette Notification
dated 29.08.2008 that :
“8……..Section-II
of Part-A of the first schedule of these rules indicates the entry level pay in
the pay band at which the pay of direct recruits to a particular post carrying
specific grade pay will be fixed on or after 01.01.2006”
(f)
Office of the Pr.C.D.A. (P), Allahabad vide
their letter No .At/Tech/263-XVI dated 07.03.2013(Circular No.166 ) clarified
about the distinction between pay fixation of pay of Commissioned Officer and
PBOR that in case of re-employed Commissioned Officers the pay in the post of
re-employment is not required to be fixed at the minimum of the scale as a
certain portion of pension is taken into account and entirely ignored whereas in all cases of the ex-servicemen (PBOR) on re-employment their pay fixed at higher stage and the pay
should be treated as fixed at a minimum only for the purpose of ignoring the
entire pension and allowing dearness relief on pension .(Copy enclosed).
(g)
More so Para 3 of the OM dated 5.4.2010 said that
apart from the Para’s 4(a),(b)(i),(b)(ii),(c) it is also clarified in which
(iv) and (v) provided which clearly stipulated about the fixation of pay of
personnel/officers re-employed prior
to 1.1.2006 and who were in employment
as on 11.1.2006 and who retired prior to 1.1.2006 and wh have been re-employed
after 1.1.2006. Further Para 3(v) effected for both officers and personnel
(PBOR) as the word clearly mentioned personnel/Officers. The Para states that their pay on
re-employment will be fixed by notionally arriving at their revised basic pay
at the time of retirement as if they had retired under the revised pay
structure. This will be done with reference to the fitment table of the Defence
Service Rank/civilian service post (as the case may be ) from which they had
retired and the stage of basic pay at the time of their retirement. The basic
pay before retirement so arrived at. However, they shall be granted the grade
pay of the re-employed post. The maximum basic pay in the pay band of Rs.67,
000/- i.e. the maximum of the pay band PB-4.In all these cases, the
non-ignorable part of the pension shall be reduced from the pay so fixed.
Refer the judgments
of Hon’ble CAT Bangalore bench OA No
1276/2013 dated 14.07.2010 and Hon’ble CAT Chennai Bench OA No 310/01207/2015
dated 22.07.2016.
.
Para 4(d): It so clear
that where a pensioner who is retired before attaining the age of 55 years is
re-employed, in fixing is pay on re-employment, his pension is not fully
ignored but is ignored only to the extent provided in Para (d) of clause 4 of DoPT
OM dated 5.4.2010 and his pay is to be fixed as per Clause 4(b)(ii) where he is
re-employed. In such cases Rule is not 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.
Refer the Judgment of Hon’ble High Court of Rajasthan OA
No 2002(4)WLN 603 dated 07 December 2001.
It therefore for the purpose all the elements
constituting Pre-Retirement Pay as mentioned in Para 3.1 of Government of India
, Ministry of defence letter dated 12.11.2010 and the DoPT OM dated 8.11.2010 and
as obtained from their last Pay Certificate and PPO have been consolidated to form the Entry Pay.
The amount so arrived at has been fixed as the Basic Pay as on the date of joining
to the department.
