Dismissed

Rajendra Ganpat Shinde and Anr. v. Syndicate Bank and 5 Ors.

Bombay HC19 Aug 2019WP/3041/2018

Case brief

AI extract

What is this about?

Four writ petitions filed by retired army personnel employed as security guards in public sector banks. The petitioners sought revision of their pay fixation to reflect the notional revised pay under the 6th Pay Commission, relying on government office memoranda applicable to Central Government employees. The High Court of Bombay held that such DoPT directives do not automatically apply to public

What did the court decide?

Petitions dismissed; no revision of pay fixation granted.

Rajendra Ganpat Shinde and Anr. Vs Syndicate… — Labour and Industrial Disputes | Bombay HC (2019)

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Sherla V.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. / CIVIL APPELLATE SIDE

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WRIT PETITION NO.3022 OF 2018 (ORIGINAL SIDE)

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Dilip Ramu Pawar & Others … Petitioners Vs Chairman & Managing Director … Respondents Union Bank of India & anr.

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WITH WRIT PETITION NO.3041 OF 2018 (ORIGINAL SIDE)

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Rajendra Ganpat Shinde & anr. … Petitioners Vs Syndicate Bank & ors. … Respondents

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WITH WRIT PETITION NO.12696 OF 2018 (CIVIL APPELLATE SIDE)

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Suresh Narayan Bhonsale & Ors … Petitioners Vs Chairman & Managing Director … Respondents Union Bank of India & anr.

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WITH

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WRIT PETITION NO.12593 OF 2018 (CIVIL APPELLATE SIDE)

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Gajanan Rajaram Sakpal & Ors … Petitioners Vs Syndicate Bank & ors. … Respondents

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Page 1 of 11

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Mr.R.R. Salvi with Ms.Reshma K. i/b Mr.Robin Thomas for the Petitioners in both petitions.

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Mr.A.D. Shetty with Dr.S.N. Jadhav for the respondents in WP/3022/2018 and for Respondent No.1 in WP/12696/2018

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Mr.Piyush Shah with Mr.Jay V. for Respondent Nos.1 to 5 in WP/3041/2018 and in WP/12593/2018

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CORAM: AKIL KURESHI & S.J. KATHAWALLA, JJ.

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DATED: AUGUST 19, 2019

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P.C.:

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The petitions arise in common background. The petitioners are ex-servicemen. They dispute their non-revision of pay fixation upon re-employment after retirement. The case of each petitioners may vary in respect of the date of retirement, the position held at the time of retirement and pay drawn on such date. However, these differences are cosmetic. The central issue is whether an ex-armyman upon re-engagement in the public sector bank, would be entitled to revised pay fixation upon implementation of 6^th Pay Commission recommendations w.e.f. 1.1.2006 and by virtue of which, his pay would notionally have undergone upward revision as on the date of the retirement. In order to test the challenge of

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Page 2 of 11

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the petitioners, it would be sufficient to record the facts of the petitioner No.1 in Writ Petition No.3022 of 2018. The said petitioner retired from army service as Naik on 1.10.2001. He was re-employed by respondent No.1 – Union Bank of India as a security guard on 5.4.2010. Protecting his retiring pay, his pay on re-employment was fixed at Rs.5,500/- per month (basic). As is well known, the periodic pay revisions in Central Government pay structures are implemented with retrospective effect. Accordingly, the 6^th Pay Commission recommendations were implemented by Central Government some time in the year 2009 by framing revised pay rules, however, with retrospective effect from 1.1.2006. The pay of existing employees and the pension of the retirees would accordingly be revised and refixed with effect from such date. The question of pay fixation of the employees who might have retired prior to 1.1.2006 and who are re-employed after 1.1.2006 came up for consideration before the Union of India. Clarificatory office memorandum was, therefore, issued on 5.4.2010 in which it was inter alia clarified as under:

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“(v) fixation of pay of personnel / officers who retired prior to 1.1.2006 and who have been re-employed after 1.1.2006: In the case of personnel/officers who had retired prior to 1.1.2006 and who have been re-employed after 1.1.2006,

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Page 3 of 11

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their pay on re-employment will be fixed by notionally arriving at their revised basic pay at the time of retirement as if they had retired under the revised pay structure. This will be done with reference to the fitment table of the Defence Service Rank/Civilian service post (as the case may be) from which they had retired and the stage of basic pay at the time of their retirement. Their basic pay on re-employment will be fixed at the same stage as the notional basic pay before retirement so arrived at. However, they shall be granted the grade pay of the re-employed post. The maximum basic pay cannot exceed the grade pay of the re-employed post plus pay in the pay band of Rs.67000 i.e., the maximum of the pay band PB-4. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed.”

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The petitioners place heavy reliance on this clarification and claim that on their re-employment as bank employees also, similar pay protection on the basis of notional pay fixation pursuant to the implementation of the 6^th Pay Commission recommendations should be made. The petitioners also rely on the clarification issued by Ministry of Finance under communication dated 28.8.2012 made in relation to the ex-armymen. Further reliance is placed on the guidelines issued by the Union of India in relation to pay fixation of ex-servicemen re-employed in public sector banks in which following provision is made:

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“2.1. Ex-Servicemen joining in workmen cadre

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Pay fixation of an ex-serviceman would be through protection of pay plus D.A. drawn by him at the time of released from Armed Forces. As per the instructions issued by the Ministry

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Page 4 of 11

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of Defence vide their letter No.1/69/2008/D(Pay/Service) dated the 24^th July, 2009 and advised by DoPT vide OM No.3/19/2009 – Estt. (Pay II) dated the 8^th November, 2010, pre-retirement pay has been defined as under: -

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(i) … (ii) In case of officers who retired before 1.1.2006 and also those who retired after 1.1.2006 in the pre-revised pay scales without opting for the revised pay scales promulgated on or after 1.1.2006 the pay will be basic pay including stagnation increment and Rank Pay plus Dearness Pay and Dearness Allowance drawn at the time of retirement. As such, the figure of pay plus D.A. admissible in the Bank will be fixed with reference to this protection i.e. pay as mentioned above plus DA and relevant stage of the basic pay in the re-employed scale will be determined after deducting DA admissible in the Bank from the figure protected. For the purpose of fixation of pay on reemployment, the pay would mean the basic pay plus the special allowance/special pay as the case may be, attached to the re-employed post. (where applicable). As the MSP has not been included in pre-retirement pay as per the definition given by the Ministry of Defence vide letter No.1/69/2008/D {Pay/Service) dated 24.7.2009, the protection of the component of MSP in re-fixation of pay in Bank has been excluded. Moreover, the ex-servicemen on re-employment in the banks are allowed to draw entire pension i.e. entire pension is ignored and not reduced from the re-fixed pay. As such, they will get the benefit of the component of Military Service Pay (MSP), if any, in their pension from the Government.”

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3. Similarly situated employees of the banks made a detailed

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representation on 19.3.2014. No relief was granted and, therefore, present petition came to be filed.

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Page 5 of 11

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Respondent No.1 has filed an affidavit dated 9.7.2019 denying the averments made in the petition primarily contending that the circulars and clarifications relied on by the petitioners concern re-employed ex-armymen in Government of India service. Such circulars would not apply to the banks. Clarifications were sought from the Ministry. Based on that, it was found that the petitioners are not entitled to refixation of their salaries. Reference is made to the communication from the Indian Banks Association to respondent No.1 dated 2.1.2016 in which it is clarified that the instructions issued by the Department of Personnel and Training (‘DoPT’ for short) do not apply to re-employment in banks. This has been reiterated by the Government of India in its letter dated 17.3.2016.

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On the basis of such material on record, the learned Counsel for the petitioners contended that the respondents have committed grave error in not revising the pay of the petitioners despite corresponding pay revision on their retiring pay. The Government of India has decided to give benefit of such notional pay fixation to the ex-armymen who are re-employed in Government of India service. These instructions and guidelines also apply to public

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Page 6 of 11

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sector banks. The banks are, therefore, bound to give effect to such circulars of the Government of India.

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On the other hand, the learned Counsel for Respondent No.1 opposes the petition contending that the circular dated 5.4.2010 is confined to re-employment of ex-armymen in Government of India service and would not apply to respondent No.1 bank. The payscales of the bank employees are governed by bipartite agreements executed between the association of the employees and the banks. In absence of any directive from the Government of India or a decision from the Banks to give effect to the notionally revised payscales of the retired ex-servicemen, benefit claimed by the petitioners cannot be granted. He submitted that the banks have protected the last pay drawn by the ex-armymen. Any modification in the pay subsequent to the retirement cannot have any effect on their pay fixation as reemployed bank employees.

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Having heard the learned Counsel for the parties, the documents on record would suggest that the Office Memorandum dated 5.4.2010 is concededly made applicable only to the reemployment of an ex-armyman in the services of the Central

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Government. The preamble to the Office Memorandum itself records that it pertains to pay fixation of re-employed pensioners on re-employment in Central Government including defence forces personnel/officers which is done in accordance with the CCS (fixation of pay of reemployed pensioners) Orders, 1986. Admittedly, the pay of the petitioners is not governed by the said CCS (Fixation of pay of reemployed pensioners) Orders, 1986. All the provisions made in the said Office Memorandum, therefore, would not apply to ex-armymen employed by public sector banks. There is no other provision in the said Office Memorandum making the clarifications and guidelines applicable to such employees. It is undoubtedly true that clause (v) of para 3 of the said Office Memorandum makes pay protection of an ex-armyman on reemployment in government service relatable to his revised notional pay on the basis of the implementation of the revised pay rules. However, in absence of any decision by banks or the Union of India to apply such facility to the re-employed ex-servicemen in banks, the same cannot be made applicable to the petitioners and other similarly situated employees.

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Page 8 of 11

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There is no other document which would suggest that the said policy decision taken by the Government of India in its Office Memorandum dated 5.4.2010 for revised pay fixation of reemployed ex-armymen in Government of India service, has been taken or adopted for the purpose of bank employment also. Reference to the communication dated 28.8.2012 is of no avail in this context. It only clarifies that the ex-servicemen, who are reemployed in banks, who retired on or after 1.1.2006, are eligible for pay fixation in banks on the basis of pay drawn by them at the time of discharge from the defence service which would include basic pay. Firstly, it appears that this clarification is in connection with those servicemen, who had retired on or after 1.1.2006. It is not the case of any of the petitioners herein. Secondly and more importantly, the focus of the entire clarification is with respect to inclusion of the component of military service pay for the purpose of pay protection upon re-employment. The fact that the basic pay and grade pay would be protected as on the date of retirement is not even disputed by respondent No.1. On the other hand, the petitioners also do not claim the benefit of the component of military service pay for protecting their re-employment salaries. This circular, therefore, has no bearing on the controversy at hand.

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Page 9 of 11

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Likewise, the guidelines for pay fixation of ex-servicemen upon re-employment in public sector banks after 1.1.2006, relevant portion of which we have reproduced earlier, also refers to the issue of inclusion of military service pay for pay protection on re-employment.

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We have noted the stand of the bank and the documents produced alongwith the reply suggesting that the directives and the instructions issued by the DoPT do not automatically apply to the public sector banks. We do not need to labour much to accept such a contention. The Department of Personnel and Training issues office memoranda, clarifications and guidelines governing the service conditions of employees of different departments and other orgnisations in the Government of India. Unless these guidelines and circulars are made applicable to public sector banks, the same would obviously have no automatic applicability. It may be that in the limited sphere of governing the pay fixation of ex-servicemen on re-employment in the banks, DoPT may still retain its jurisdiction. Nevertheless, unless and until clear directions have been issued by DoPT to govern such pay fixation, the general directives issued for the purpose of other Central

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Page 10 of 11

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Government organisations and Ministries, would not apply to public sector banks. In absence of any directives to take into account notionally revised pay of an ex-serviceman, who retired prior to 1.1.2006 for the purpose of pay protection in public sector banks upon re-employment after 1.1.2006, the prayer of the petitioners cannot be granted. Respondent No.1 has protected the last pay drawn by ex-armyman on the date of their respective retirements.

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In the result, no case for interference is made out. Petitions are dismissed.

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(S.J. KATHAWALLA, J.)

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(AKIL KURESHI, J.)

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Page 11 of 11

Rajendra Ganpat Shinde and Anr. v. Syndicate Bank and 5 Ors.

Case brief

What is this about?

What did the court decide?

Rajendra Ganpat Shinde and Anr. v. Syndicate Bank and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Parties & counsel

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