IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32064 of 2008(S)
1. P.N.RAVEENDRAN PILLAI,AGED 62 YEARS
... Petitioner
Vs
1. UNION OF INDIA, REPRESENTED BY
... Respondent
2. CHIEF POST MASTER GENERAL, KERALA CIRCLE
3. SUPERINTENDENT OF POST OFFICES
For Petitioner :SRI.KRB.KAIMAL (SR.)
For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :24/07/2009
O R D E R
K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.
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W.P.(C) No. 32064 OF 2008
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Dated this the 24th day of July, 2009
J U D G M E N T
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Balakrishnan Nair, J.
The applicant in O.A.No.363/2007, before the Central
Administrative Tribunal, Ernakulam Bench, is the writ
petitioner. The said Original Application was filed by him,
challenging Annexure A1 and A10, produced along with the
memorandum of Original Application, a copy of which is
produced as Ext.P2.
2. The brief facts of the case are the following:
The writ petitioner joined the Air Force as a Combatant
Clerk on 31.1.1967. On completion of 15 years service, he was
discharged from the Air Force on 31.1.1982. The petitioner got
re-employment as Postal Assistant on 6.8.1984 in the scale of
pay of Rs.260-480. Regarding the fixation of pay, a dispute
arose between the petitioner and the respondents. As per the
office memorandum issued by the Central Government on
W.P.(C) No.32064/2008 2
25.11.1958, the petitioner was entitled to get 15 increments for
the 15 years’ service rendered by him in the post of Combatant
Clerk. So, he claimed, he was entitled to get the pay fixed at the
stage of Rs.396/-. The Central Government issued a further
order on 8.2.1983, a copy of which is produced as Ext.P6,
providing that the entire pension drawn by a non-commissioned
officer shall be ignored while fixing the pay of an ex-service man
on re-employment in civil service. Based on those two orders, the
petitioner claimed fixation of pay at the stage of Rs.396. But, the
respondents took the view that his pay can be fixed only at the
minimum of the scale of pay and he cannot get the benefit of
past service in the Air Force . The said dispute led to the filing of
O.A.No.661/1993, which was allowed by Annexure-A2 order by
the C.A.T., Ernakulam Bench. In that order, the C.A.T relied on a
Full Bench decision of the C.A.T in O.A.No.3/89. The operative
portion of Annexure A2 order of the C.A.T. reads as follows:
“In this view of the matter, I follow the Full
Bench judgment of the Tribunal in
O.A.NO.3/89 and allow the application. The
respondents shall fix the pay of the applicant
in the re-employed post in the scale ofW.P.(C) No.32064/2008 3
Rs.260-480 by allowing one increment for
each completed year of service of the
applicant in the Armed Forces, ignoring the
pension drawn by him with all attendant
benefits from the date of his re-employment.
This shall be done within a period of four
months from the date of receipt of a copy of
the judgment. There shall be no order as to
costs.”
3. The C.A.T. has specifically ordered that the petitioner
is entitled to get one increment for each completed year of
service of the applicant in the Armed Forces ignoring the
pension drawn by him with all attendant benefits. Pursuant to
the said order of the C.A.T., the petitioner’s initial pay was fixed
as per Annexure-A3 at the stage of Rs.396/- in the scale of pay of
Rs.260-480/-. In the meantime, the respondents moved the
Hon’ble Supreme Court and obtained stay of Annexure-A2.
Therefore, fixation in Annexure-A3 was never implemented.
Later, the Apex Court, as per Annexure-A4 disposed of the
appeal stating that the same is disposed of in terms of the
decision in Civil Appeal Nos.4077-78/1992 Director General of
Posts and other v. B.Ravindran and another. A copy of that
judgment referred to in the order of the Apex Court is Ext.P8.
W.P.(C) No.32064/2008 4
Apparently, in obedience to Annexure-A4 order of the Apex
Court, the respondents fixed the pay of the applicant at the stage
of Rs.324/-. The apparent reason for the reduction of the amount
was that out of the total 15 years’ service rendered by him, the
respondents maintained that only 8 years’ service could be
reckoned. The reason was that only 8 years’ service was in the
post having the same scale of pay. But, in fact, though the post
was the same, the pay happened to be different because for the
first seven years out of the fifteen years, he was drawing salary
in the pre-revised scale. Challenging that order, a copy of which
is produced as Annexure-A5 along with Ext.P2, the petitioner
filed O.A.No.153/1998. The said Original Application was heard
and allowed by Annexure A7. The relevant portion of the said
order reads as follows:
“In the result, we find that the applicant is
entitled to have his pay fixed in accordance
with the provisions contained in Rule 16(2) of
the CCS (Fixation of Pay of Re-employed
Pensioners) Orders, 1986. Accordingly, the
impugned orders are set aside and the
respondents are directed to refix the pay of
the applicant in terms of the provisions ofW.P.(C) No.32064/2008 5
Rule 16(2) of the CCS (Fixation of Pay of Re-
employed Pensioners) Orders, 1986 giving him
benefit of increment for the entire service as
Combant Clerk in 15 years. The order fixing
the pay of the applicant accordingly shall be
issued and the monetary benefit flowing
therefrom made available to the applicant
within two months from the date of receipt of
a copy of this order.”
4. The respondents challenged that order before this
Court by filing O.P.No.16443/2001. The said Original Petition
was dismissed by Annexure-A8 judgment. The relevant portion
of the said judgment reads as follows:
“7. This contention is in effect an attempt
to undo what has been held in Annexure-A1 by
the Tribunal below, which has been confirmed
by the Supreme Court as revealed by
Annexure-A3. As already mentioned above,
the direction in Annexure-A1 is to grant one
increment for each completed year of service
of the second respondent in the Armed Force.
When the petitioners themselves admit that
the second respondent did have 15 completed
years of service before he was discharged
from the Army, going by Annexure-A1, he is
entitled to 15 increments. In the light of
Ext.A1 pronouncement by the Tribunal belowW.P.(C) No.32064/2008 6
which has been confirmed by the Supreme
Court, the petitioners cannot contend that he
would be granted only 8 increments.
Therefore, the Tribunal was well justified in
setting aside Exts.A5 and A7.”
In purported implementation of Annexure-A7 as affirmed in
Annexure-A8, the petitioner’s pay was again fixed by
Annexure-A10. His pay was fixed at Rs.260+1, i.e., Rs.261/-. He
was granted 15 increments, but, the entire pension minus Rs.15
was deducted from the basic pay of Rs.396/- arrived at after
granting 15 increments. Therefore, his pay was further reduced
to Rs.261. By Annexure-A1 he was called upon to remit the
excess salary paid to him. The petitioner was earlier granted the
fixation at Rs.324/- and therefore, going by the present fixation
under Annexure-A10, he has drawn excess salary every month.
The total excess salary comes to Rs.94,065/-. In the present
Original Application, as mentioned earlier, Annexure A1 and
A10 were challenged.
W.P.(C) No.32064/2008 7
5. The petitioner contended that being dissatisfied with
the pay fixed at Rs.324/-, he started the legal fight and the same
finally ended in his pay being fixed at Rs.260+1, though he
succeeded in all the cases. The petitioner pointed out that the
respondents never had a case that his entire pension cannot be
ignored. Their only dispute was relating to the counting of 15
years service for the purpose of grant of increment. According
to them, his service for 7 years was in a lower scale of pay, the
same could not be counted. The said dispute was resolved in his
favour. But, relying on a mistake committed by the Tribunal while
rendering Annexure-A6, the present stand was taken by the respondents.
Before the Tribunal, in the present Original Application the respondents
stuck to their stand and supported the impugned orders. The Tribunal,
after hearing both sides, upheld the contentions of the respondents made
relying on Annexure-A7 and dismissed the Original Application by Ext.P1
order. Feeling aggrieved by the said order, this Writ Petition was filed.
6. We heard the learned senior counsel Sri.K.R.B. Kaimal
for the petitioner and Sri. Thomas Thomas on behalf of
Sri.P.Parameswaran Nair, Assistant Solicitor General of India.
W.P.(C) No.32064/2008 8
The learned senior counsel submitted that going by
Annexure-A7, it can be seen that the Tribunal committed a
mistake in ordering to fix the pay of the petitioner under Rule 16
(2) of the CCS (Fixation of Pay of Re-employed Pensioners)
Orders, 1986. In fact the said rule was introduced only on
31.7.1986 with effect from 1.7.1986. The said rule has no
application to the fixation of pay of the writ petitioner on re-
employment on 6.8.1984. There was no dispute before any
forum regarding ignoring the full pension of the petitioner for
fixation of pay, as he is a non-commissioned officer. This right
accrued to him under Ext.P6 order. The relevant portion of the
said order reads as follows:
“The undersigned is directed to refer to this
Ministry’s OM No.2(7)/78/6664/D (Civ-1)
dated 30.8.1978 and to say that the question
of raising the limit of present ceiling/pension
which has to/ of being ignored in fixing of pay
on reemployment of ex servicemen, who retire
before attaining the age of 55, has been
under the consideration of the government
for some time. The President is pleased to
decide that in case of those Ex-servicemen
retiring before attaining the age of 55, the
pension as indicated below may be ignored in
fixing their pay on re-employment.
W.P.(C) No.32064/2008 9
(i) In the case of Service Officers, the
first Rs.250/- of pension.
(ii) In the case of personnel below
commissioned officer rank, the entire
pension."
7. So, in the case of the petitioner, who was a
non-commissioned officer, the learned senior counsel submitted
that at no point of time there was any dispute regarding ignoring
the entire pension. So, the judgment, Annexure-A7, should be
read as a whole and in fact Rule 16(2) was relied on only to
highlight or support the claim of the petitioner that he is entitled
to get one increment for the entire 15 years’ service. The said
Rule was comparable to the earlier provisions under the 1958
Government Order. But, the Tribunal in Ext.P1 mechanically
followed the direction in Annexure-A7 and held that the
petitioner is entitled to get fixation only under Rule 16(2) and by
virtue of explanation (2) to Rule 16(2), Rs.15, out of the total
pension alone is ignorable. So, the impugned orders were held
to be valid. The same is a perverse approach warranting
interference by this Court, it is submitted.
W.P.(C) No.32064/2008 10
8. The learned counsel for the respondents on the other
hand fully supported the view taken by the Tribunal.
Annexure-A7 being an inter-parte judgment, the petitioner
cannot demur against that and the respondents have only
implemented it, it is submitted.
9. Evidently, there is a mistake in Annexure-A7. If,
mechanically, Annexure-A7 is applied, explanation 2 of Rule 16
(2) will come into ply and only Rs.15 of the pension drawn by the
petitioner alone could be ignored. But, we notice that the new
rules were introduced only from 1.7.1986 and we are concerned
with the fixation of pay in 1984. At that time Ext.P6 was
governing the field and all along the stand of the respondents
was that Ext.P6 will apply. In other words at no point of time,
they claimed that his pension has to be deducted from the basic
pay of the petitioner. So, if Annexure-A7 is read in the light of
the pleadings and in the background facts of the case, we have
no doubt in our mind that the Tribunal mentioned Rule 16(2) only to
support the petitioner’s right to get increment for each year’s service.
The pay of an incumbent, who joined in 1984, could not be fixed
W.P.(C) No.32064/2008 11
in the light of a Rule which came into force on 1.7.1986. Further,
we notice that in the earlier proceedings before the Tribunal,
this Court and the Apex Court, the claim of the writ petitioner for
ignoring pension on the strength of Ext.P6 was never disputed
by the respondents or rather it was conceded and all authorities
proceeded on the footing that he is entitled to have his entire
pension ignored by virtue of Ext.P6.
10. In the light of the above position, we have to read
Annexure-A7. If that be so, the same will not stand in the way of
the petitioner getting 15 increments for fixation of his initial
basic pay and also the right to ignore the entire pension drawn
by him. In view of the above position, the order of the Tribunal,
Ext.P1 is plainly untenable. The Tribunal has missed the wood
for the trees and rendered a decision, which has to be described
as perverse. In the result, Ext.P1 is quashed. We also quash
Annexures-A1 and A10 produced along with Ext.P2. It is
declared that the petitioner is entitled to get his initial basic pay
fixed at Rs.396/- with effect from 6.8.1984 (as fixed in
Annexure A3). The respondents shall implement the above
W.P.(C) No.32064/2008 12
declaration and grant the consequential benefits to the writ
petitioner within three months from the date of
production/receipt of a copy of this judgment.
The Writ Petition is disposed of as above.
(K.BALAKRISHNAN NAIR, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
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