Union of India & Ors. vs Anil Prasad case

Union of India & Ors. vs Anil Prasad case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4073 OF 2022

Union of India & Ors.           ..Appellants

Versus

Anil Prasad    ..Respondent

J U D G M E N T 

M. R. Shah, J.

1. Feeling   aggrieved   and   dissatisfied   with   the   impugned

judgment and order dated 05.10.2021 passed by the High

Court of Delhi at New Delhi in Writ Petition (C) No.2135 of

2020   by   which   the   High   Court   has   allowed   the   said   writ

petition preferred by the respondent herein and has held that

the respondent – original writ petitioner being retired Army

Force   Personnel   upon   re­appointment   in   the   government

service, would be entitled to his basic pay being fixed at par

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with his last drawn pay, the Union of India and others have

preferred the present appeal.

2. The respondent – original writ petitioner was a Major in

the   Indian   Army   and   was   discharged   from   service   on

15.07.2007.  He was appointed as an Assistant Commandant

(Medical Officer) in the Central Reserve Police Force, in the

pay scale of Rs.15600 ­ 39100 with grade pay of Rs.5400.  The

respondent – original petitioner claimed that as on the date of

his discharge from the Indian Army, he was drawing pay of

Rs.28340 with grade pay of Rs.6600, the same was entitled to

be protected in terms of Para 8 of the Central Civil Services

(fixation   of   Pay   of   Re­employed   Pensioners)   Order,   1986

(hereinafter referred to as ‘CCS Order’).     The original writ

petitioner made a representation which came to be rejected by

an   order   dated   24.04.2019.     Thereafter   the   original   writ

petitioner preferred the writ petition before the High Court

claiming that he would be entitled to his basic pay being fixed

at par with his last drawn pay.  Before the High Court heavy

reliance was placed on the decision of the Division Bench of

the High Court in the case of  Government of India &  Ors.

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Vs.  Captain   (Retd.)  Kapil  Chaudhary   in  Writ  Petition   (C)

No.2331 of 2012.  By the impugned judgment and order, the

High Court has allowed the said writ petition and has directed

the appellants to rework the pay fixation of the original writ

petitioner by holding that upon reappointment in government

service the original writ petitioner being a retired Armed Force

Personnel would be entitled to his basic pay being fixed at par

with his last drawn pay.

2.1 Feeling   aggrieved   and   dissatisfied   with   the   impugned

judgment and order passed by the High Court in holding that

on reappointment in the government service the original writ

petitioner would be entitled to his basic pay being fixed at par

with his last drawn pay, the Union of India and others have

preferred this appeal.

3. Ms. Aishwarya Bhati, learned ASG, appearing on behalf

of Union of India – appellant herein has vehemently submitted

that the impugned judgment and order passed by the High

Court is on a misreading of Para 8 of CCS Orders.

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3.1 It is submitted that as per Para 8 of the CCS Order on

reappointment,   an   Emergency   Commissioned   Officer   and

Short Service Commissioned Officer who join the government

service   will   be   granted   advance   increments   equal   to   the

completed years of service rendered by him in Armed Forces

on the basic pay scale which will be equal to or higher than

the pay scale of the re­employed organization i.e. the civil

post/the government post and not on the last drawn pay by

the personnel in the Armed Forces.

3.2 It is submitted that Para 8 of the CCS Order does not

speak about retaining of the last drawn basic pay or fixation

at the rate of last drawn pay.

3.3 It is submitted that if the claim made by the respondent

is   allowed   and   it   is   held   that   on   re­employment   his   pay

fixation should be the last drawn pay in that case it violates

the statutory provision of Para 8 of the CCS Order.  

Making   above   submission,   it   is   prayed   to   allow   the

present appeal.

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4. Present   appeal   is   vehemently   opposed   by   Shri   Vinay

Kumar Garg, learned Senior Advocate appearing on behalf of

the respondent.   It is vehemently submitted by Shri Garg,

learned Senior Advocate for the respondent that the impugned

judgment and order passed by the High Court is absolutely in

consonance with Para 8 of the CCS Order.

4.1 It is submitted that the respondent was working as a

Captain in the Army Medical Corps of the Indian Army.  In the

year 2007, CRPF issued advertisement inviting applications

for  the  post  of  Assistant   Commandant  (Medical  Officer)  to

which the respondent applied.   In the meantime, vide order

dated   15.07.2007,   the   respondent   was   released   from   the

Indian Army.  It is submitted that at the time of his discharge

from the Indian Army in the rank of Major, his last pay was in

the pay scale of Rs.15600 – 39100 and was drawing Rs.28340

as basic pay and grade pay at Rs.6600.  It is submitted that

subsequently   he   was   appointed   as   Assistant   Commandant

(Medical   Officer)   in   the   year   2009   in   the   pay   scale   of

Rs.15600­ 39100 with grade pay at Rs.5400.  It is contended

that on re­employment his pay scale was required to be fixed

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at par with the pay scale he was drawing while in the Indian

Army Service and as per the last drawn pay.  It is submitted

that   as   per   Para   8   of   CCS   Order,   though   the   appellants

granted   six   increments   i.e.   for   the   number   of   years   the

respondent served in the Indian Army, however, the same was

granted on the pay wrongly fixed by the appellants which

ought to have been fixed at Rs.28340 i.e. the pay last drawn

by the respondent in the rank of Major in the Army. 

4.2 It   is   submitted   that   his   grade   pay   was   also   fixed   at

Rs.5400 instead of Rs.6600, which was lower than what the

respondent was receiving at the time when he was in the

Indian   Army.     It   is   urged   submitted   that   on   a   true

interpretation of Para 8 of CCS Order, the High Court rightly

observed and held that the respondent shall be entitled to the

pay scale as per last drawn salary while working in the Indian

Army.  Hence, no error has been committed by the High Court

in holding so is the submission.  

Making the above submissions, it is prayed to dismiss

the present appeal.

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5. We have heard learned counsel for the respective parties

at length.

5.1 The   short   question   which   is   posed   for   consideration

before   this   Court   is   whether   on   re­employment   in   the

government   service,   an   employee   who   was   serving   in   the

Indian Army/in the Armed Forces shall be entitled to his pay

scales at par with his last drawn pay?

5.2 While answering the aforesaid question Para 8 of CCS

Order which is relevant for our purpose is required to be

referred to which is as follows:

“8.     Emergency   Commissioned   Officers   and

Short Service Commissioned Officers:

Emergency Commissioned Officers and Short

Service   Commissioned   Officers   who   joined   preofficers   who   joined   pre­commissioned   training   or

were commissioned after 10.01.1968 may, on their

appointment in Government service to unreserved

vacancies,   may   be   granted   advance   increments

equal to the completed years of service rendered by

them in Armed Forces on a  basic pay (inclusive of

deferred pay but excluding other emoluments) equal

to   or   higher   than   the   minimum   of   the   scale

attached   to   the   civil   post   in   which   they   are

employed.     The   pay   so   arrived   at   should   not,

however,   exceed   the   basic   pay   (including   the

deferred pay but excluding other emoluments) last

drawn by them in the Armed Forces."

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5.3 On a plain reading of the above provision an Emergency

Commissioned   Officer   and   a   Short   Service   Commissioned

Officer working in the Armed Forces on his employment to a

civil post shall be entitled to advance increments equal to the

completed years of service rendered in the Armed Forces on a

basic pay equal to or higher than the minimum of the scale

attached   to   the   civil   post   in   which   they   are   employed.

However, the pay arrived at should not exceed the basic pay

last drawn by them in the Armed Forces.  Therefore, on a true

interpretation of Para 8 on re­employment in the government

service, an employee working with the Armed Forces, on reemployment shall be entitled to advance increments equal to

the completed years of service rendered by him in the Armed

Forces on a basic pay equal to or higher than the minimum of

the scale attached to the civil post in which he is employed.  

Para 8 of the CCS Order makes a reference to two rates

of pay in case of emergency commissioned officers and shortservice   commissioned   officers   being   appointed   in   the

government   service:   First,   they   may   be   granted   advance

increment equal to the completed years of service rendered by

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them in the armed forces on a basic pay equal to or higher

than the minimum of the scale attached to the civil posts in

which they are employed. The pay is to be fixed with reference

to the scale attached to the civil posts in which they are

employed; Second, while computing the pay in the aforesaid

manner it should not exceed the basic pay last drawn by them

in the armed forces.  In another words, while computing the

pay of the said officers who joined the civil posts their pay

cannot exceed last drawn pay by them in the armed forces. In

case it exceeds then it is capped to the last drawn pay in the

armed forces. Therefore, a claim for the last drawn pay in the

armed forces is not a matter of right. 

Applying the above in the present case, it is noted that

the   respondent   was   fixed   at   the   entry   level   of   PB­3

(Rs.15,600–Rs.39,100) in the armed forces and six advance

increments   equal   to   the   number   of   years   the   respondent

served in the Indian Army was added to the basic pay i.e.

Rs.15,600/­ = Rs.19,600/­. The Grade Pay fixed in the civil

post is Rs.5,400/­ and hence a total of Rs.25,080/­ was the

computed pay in the civil post. The said pay of Rs.25,080/­

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does not exceed the pay last drawn by the respondent in the

armed forces. Hence, the pay so computed is just and proper. 

Para 8 of the CCS Order does not indicate that the pay

last drawn by the respondent in the armed forces should be

the pay to be computed when he joined the civil post. There is

no entitlement of pay protection under para 8 of the CCS. The

manner of computation of pay as envisaged under para 8 also

clearly stipulates that the pay so arrived at should not exceed

the basic pay (including the deferred pay but excluding other

emoluments) last drawn by the respondent in the armed force.

That does not mean that the respondent is entitled to a pay

equal to what was last drawn by him in the armed force. 

Also, para 8 of the CCS Order makes a reference to the

civil   post   in   which   the   personnel   of   armed   force   is   to   be

employed with reference to the minimum scale of pay attached

to the civil post and while computing the pay scale the last

drawn pay in the armed force has no relevance in the sense

that there is no pay protection that can be sought by the expersonnel of armed force. The reference to the last drawn pay

in the armed forces is only to ensure that the pay computed in

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the civil post in the manner envisaged in para 8 of CCS Order

does not exceed the basic pay (including the deferred pay but

excluding other emoluments) last drawn by the personnel in

the armed forces. For example, if the minimum of the scale

attached to the civil post is higher than the last drawn pay of

the personnel in the armed force and while computing the pay

for the civil post as envisaged under para 8 of CCS if it so

exceeds then possibly the last drawn pay in the armed forces

could   be  paid.  The  said  Rule   proscribes   fixation   of   a  pay

exceeding   the   basic   pay   (including   the   deferred   pay   but

excluding other emoluments) last drawn by the personnel in

the armed forces in respect of the civil post to which an exarmed force personnel is appointed. Thus, in a case where

computation   of   pay   exceeds   last   drawn   pay   in   the   armed

forces then, in such a situation possibly the last drawn pay of

such a personnel can be fixed.

In the present case while serving in the Armed Forces

respondent was in the pay scale of Rs.15600 – 39100.  The

post on which he was re­employed in the government service

also carries the pay scale of Rs.15600 – 39100 and he has

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been allowed advance increments of six years as he completed

six years of service in the Armed Forces.  However, his grade

pay has been fixed at Rs.5400 being the grade pay which is

available for the civil post.

5.4 Therefore,   the   pay   fixation   of   the   respondent   in   the

government service was absolutely in consonance with para 8

of the CCS Order 1986.  Para 8 does not provide that on reemployment in Government Services a retired Armed Force

personnel would be entitled to his basic pay being fixed at par

with his last drawn pay.  Holding so will violate para 8 of the

CCS Order.   Under the circumstances the High Court has

committed a grave error in observing and holding that the

retired   Armed   Forces   personnel   on   re­appointment   in   the

government service would be entitled to the last drawn pay as

Armed Forces personnel.  Therefore, the impugned judgment

and order passed by the High Court is unsustainable being

contrary to para 8 of the CCS Order, 1986.

6. In view of the above and for the reason stated above,

present appeal succeeds.  The impugned judgment and order

passed by the High Court is hereby quashed and set aside.

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Consequently, the writ petition preferred by the respondent

before the High Court is dismissed.  However, in the facts and

circumstances of the case, there shall be no order as to costs.

…………………………………J.

                (M. R. SHAH)

…………………………………J.

 (B.V. NAGARATHNA)

New Delhi, 

May 20, 2022.

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