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1997(5) Supreme 648
SUPREME COURT OF INDIA
S.C. Agrawal and G.T. Nanavati, JJ.
Director General of Posts & Ors. -Appellants
versus
B. Ravindran & Anr. -Respondents
Civil Appeal Nos. 4077-78 of 1992
(With CA Nos. 4079, 4080, 4042/92, SLP (C) Nos. 10747/92, 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, SLP (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, C.A. 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)
Decided on 8-11-1996
Counsel for the Parties :
For the Appearing Parties : R. Venugopal Reddy, K.N. Shukla, Sr. Advocates, Hemant Sharma, W.A. Quadri, K.V. Viswanathan, S.R. Setia, P.K. Manohar, C.V. Subba Rao, M.K.D. Namboodri, Ms. Malini Poduval, Vijaykumar Verma, G. Prakash, Anil Katiyar, Ms. A. Subhashini, K.M.K. Nair, K.V. Venkataraman, S.N. Terdol, Arvind Kr. Sharma, Advocates.
Held 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 re-employment. 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 of less on his re-employment. This is relaxation was obviously in the nature of a modification of the earlier policy. jAs 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 1964 orders were given legal status by amending Articles 521 and 526 of the Civil Service Regulations accordingly. (Para 12)
The subsequent orders issued in 1978 and 1983 were supplementary in nature and did have a binding force. Under those circumstances, the Government could not have, under the guise of a clarificatory order, taken away the right which had accrued to such re-employed pensioner 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 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 provisions 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. (Para 14)
JUDGMENT
Nanavati, J.-Leave granted.
2. The point which arises for consideration, in this batch of appeals, is whether an ex-serviceman, who after his retirement before attaining the age of 55 is re-employed in civil service, while getting his pay fixed, is entitled to an advance increment only if his pay plus pension plus pension equivalent of gratuity is less than the last pay drawn at the time of retirement.
3. This question arises in the context of the following facts and circumstances. It is unnecessary to refer to the facts of all these appeals and, therefore, we refer to the facts of Civil Appeal No. 4077 of 1992 only. Ravindran, Applicant in O.A. No. 3 of 1989, out of which this appeal arises, after his retirement from Air Force, was re-employed as a Postal Assistant on 29.11.83. He had served in the Air Force from 4.11.65 to 30.11.80. His last pay in the Air Force was Rs. 400/- per month and his pension on the basis of the said service was fixed at Rs. 187/- per month. The pension equivalent of gratuity was Rs. 20.17. On his re-employment as a Postal Assistant in the scale of Rs. 260-8-340-10-360-12-480 his pay was fixed at Rs. 260/- being the minimum of the pay scale. According to him while fixing his pay and determining hardship the whole of military pension which he was getting was required to be ignored and he ought to have been granted one advance increment for each completed year of military service in view of the Government of India, Ministry of Finance O.M. dated 25.11.58 read with Government of India, Ministry of Defence O.M. dated 8.2.83, as he was getting Rs. 140/- less than what he was getting at the time of retirement from military service. As he had put in 11 years service in equivalent or higher grade in the Air Force his pay at the time of re-employment on 29.11.83 should have been fixed at Rs. 350/- per month. He was denied this 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 Administrative Tribunal and challenged the said clarification and the letter dated 30.12.85 as arbitrary and against the provisions of pay fixation 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.
4. The contention of the applicants before the Tribunal was that if 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 caused undue hardship to him and, therefore, his pay 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 the 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.
5. 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 at 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)
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