The expansive definition of 'pension' and its application to re-employed pensioners under the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986.

SANJIV KHANNA, J.

1. The Union of India and others have filed the present writ petition challenging the correctness of the order dated 20th December, 2012 passed by the Principal Bench of the Central Administrative Tribunal in OA 4357/2011. The impugned order partly allows the original application filed by Baruna Madan, the respondent herein.

2. The respondent was appointed under the Women Special Entry Scheme as a Short Service Commission Officer of the Indian Army in the Corp of Electronic and Mechanical Engineer (EME, for short). She had worked in the EME Corp. from 11.3.1995 to 31.3.2007.

3. The respondent was eligible and was appointed to the post of Assistant Executive Engineer against the 20% quota for re-employment of ex-servicemen. The appointment was made on 7th February, 2007 by the UPSC on the basis of open selection.

4. The dispute pertains to fixation of salary. The Tribunal in the impugned order has referred to the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986, and observed that as per Rule 4, re-employed pensioners are not entitled to protection of the scales of pay of the posts held by them prior to retirement in cases where the pension is fully ignored for fixation of pay. The initial pay on re-employment shall be fixed at the minimum scale of pay of the re-employed post. However, in cases where the entire pensionary benefits are not ignored for fixation of pay, the initial pay on re-employment shall be fixed at the same stage as the last pay drawn before retirement, and if there is no such stage in the re-employed post, the pay shall be fixed at the stage next above that pay. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed. As regards drawl of increments, as per Rule 5, once the initial pay of a re-employed pensioner has been fixed in the manner indicated above, she would be allowed to draw normal increments in the time-scale of the post to which the re-employed is appointed as if the pay had been fixed at the minimum or the higher stage, as the case may be. This interpretation having been made to Rule 4 of the aforesaid Rules, the following directions were issued:-

“In view of the above position, in our considered view, the respondents ought to have fixed the pay of the applicant in terms of the relevant provisions contained in Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986. We, therefore, dispose of this OA by quashing and setting aside the impugned Annexure A1 dated 17.10.2011. We also direct the respondents to fix the pay of the applicant strictly in accordance with the aforesaid rules. Since the applicant has already undertaken that overpayment, if any, has been received by her on account of her earlier fixation, will be refunded. She will be bound by the said assurance. The respondents shall pass appropriate orders of fixation of pay in the case of the applicant within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.”

5. The contention of the petitioners is that the aforesaid directions are extremely confusing and does not decide the controversy in issue.

6. We would agree with the counsel for the petitioners that the aforesaid operative is confusing and ambiguous for it does not settle the controversy. The elucidation examines the Rule position and thereafter leaves it to the petitioners to apply the relevant rules. The petitioners are aggrieved for they believe that the Rule position as interpreted would bind them and the same would not be in consonance with the stand and stance of the government that the respondent, being an ex-servicemen and not a pensioner, would not be governed by the said Rules. Having heard the counsels for the parties, we are convinced that the respondent is entitled to pay protection of the salary last drawn in the army service. We would elucidate and explain our reasons.

7. As noted above, the respon