CLARIFICATION OF DOPT ORDERS REGARDING PAY FIXATION

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 6^th 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.

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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.