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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