Dismissed

Shaju Thomas v. Union of India

Karnataka HC10 Mar 2021WP/12560/2018

Case brief

AI extract

What is this about?

Petitioner, an ex-serviceman re-employed as a Nursing Orderly in ESIC before age 55, challenged Tribunal's dismissal of his pay fixation application. Court held that since petitioner held a post below Group A at retirement, entire pension must be ignored, making initial pay fixation applicable per entry pay for direct recruits under 1986 Orders. Petition dismissed.

What did the court decide?

Writ petition dismissed; all pending applications disposed of as dismissed.

Shaju Thomas Vs Union of India — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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W.P.No.12560/2018 (S – CAT)

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BETWEEN :

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SHAJU THOMAS S/O T.R.THOMAS, AGED ABOUT 45 YEARS, WORKING AS NURSING ORDERLY ESIC MODEL HOSPITAL RAJAJI NAGAR, BANGALORE-560 010

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...PETITIONER

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(BY SRI PRASANNA D.P., ADV.)

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AND :

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1 . UNION OF INDIA REP BY THE SECRETARY DEPARTMENT OF LABOUR & EMPLOYMENT BHAVAN, RAFI MARGE, SANSAD MARGE AREA, NEW DELHI-110 001

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2 . THE DIRECTOR GENERAL ESIC HEAD QUARTER PANCHADEPA BHAVAN, CIG MARG, NEW DELHI-110 002.

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3 . THE MEDICAL SUPERINTENDENT EMPLOYEES’ STATE INSURANCE CORPORATION ESIC MODEL HOSPITAL RAJAJINAGAR, BANGALORE-560 010

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4 . THE JOINT DIRECTOR (ADMN.) EMPLOYEES’ STATE INSURANCE CORPORATION ESIC MODEL HOSPITAL RAJAJINAGAR, BANGALORE-560 010

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5 . THE DEPUTY DIRECTOR (ADMN.) EMPLOYEES’ STATE INSURANCE CORPORATION ESIC MODEL HOSPITAL, RAJAJINAGAR, BANGALORE-560 010 …RESPONDENTS

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(BY SRI N.KUMAR, CGC FOR R-1; SRI B.PRAMOD, ADV. FOR R-2 TO R-5.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 28.07.2016 IN O.A.NO.170/1335/2015 (ANNEXURE-A) AND THE ORDER DATED 15.06.2017 IN R.A.NO.83/2016 (ANNEXURE-B) PASSED BY THE HON’BLE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE, ILLEGAL, ARBITRARY AND CONTRARY TO THE FACTS ON RECORDS.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, S. SUJATHA, J ., MADE THE FOLLOWING:

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O R D E R

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The petitioner has challenged the order dated 28.07.2016 passed by the Central Administrative Tribunal (‘Tribunal’ for short) in

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O.A.No.170/01335/2015, whereby the application filed by the petitioner/applicant has been dismissed.

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The petitioner, an ex-serviceman, who

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apparently before attaining the age of 55 years, had been discharged from service and joined other arms of the government service as a regular recruitee, is aggrieved by his pay fixation. The petitioner had filed representation for pay fixation of re-employed post in recruitment scale in terms of the DoPT and OM dated 05.04.2010 considering the last pay drawn in the reemployed post which came to be rejected on the ground that the same cannot be considered in view of Para 4(b)(i) of Official Memorandum ignoring eligibility criteria. Being aggrieved, the petitioner preferred the application before the Tribunal which has been rejected. Further, the petitioner had filed the Review Application No.83/2016 which also came to be rejected. Hence, the present writ petition.

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Learned counsel appearing for the petitioner vehemently contended that the Hon’ble Tribunal has

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failed to consider the pay fixation of similarly placed persons by the Tribunal at Chandigarh in O.A.No.T-19CH-2009 dated 20.08.2009 as well as the order of the Tribunal inasmuch as employees in railways. Placing reliance on the judgment of the Hon’ble Apex Court in the case of U.T. Chandigarh and others vs Gurucharan Singh and another (Civil Appeal No.9873/2013, D.D. 01.11.2013), it was stoutly argued that the pay fixation of the petitioner in the reemployed post ought to have been made in terms of rule 4(d)(ii) of para 4 of the Central Civil Services (Fixation of

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Pay of Reemployed Pensioners) Orders, 1986. Reliance was also made to the Official Memorandum dated 25.11.1958 as well as the Official Memorandum dated 31.07.1986 regarding fixation of pay of re-employed pensioners – general policy thereof. Official Memorandum dated 31.07.1986 has been issued by the Government of India in supersession of all the previous orders on the subject, the initial fixation of pay and

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other benefits on re-employment of ex-servicemen pensioners as also civilian pensioners will be governed

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by the Central Civil Services (Fixation of Pay of Reemployed Pensioners) Orders, 1986 with reference to all the appointments made on or after the 1^st July, 1986. Learned counsel also placed reliance on the judgment of the Hon’ble Apex Court in the case of Director General of Posts and others vs. B. Ravindran and another reported in (1997) 1 SCC 641.

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Learned counsel for the respondents supported the impugned order distinguishing the judgment relied upon by the learned counsel for the petitioner.

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Indisputedly, the petitioner was re-employed

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to the post of ‘Nursing Orderly’ on 15.11.2012 on direct recruitment with the basic pay of Rs.5,200/- and Rs.1,800/- grade pay. Hence, the Official Memorandum

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dated 31.07.1986 is applicable to the facts of the present case. Para 4 of the Central Civil Services (Fixation of Pay of Reemployed Pensioners) Orders, 1986 annexed to Official Memorandum dated 31.07.1986 is relevant for adjudication of the present case and the same reads thus:

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“ 4. Fixation of pay of re-employed

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pensioners;-

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(a) Reemployed pensioners shall be allowed to draw pay only in prescribed scales of pay for the posts in which they are re-employed. No protection of the scales of pay of the post held by them prior to retirement shall be given.

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(b) (i) In all cases where the pension is fully ignored, the initial pay on reemployment shall be fixed at the minimum of the scale of pay of the reemployed post.

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(ii) In cases where the entire pension and pensionary benefits are not ignored for pay fixation, the initial pay on reemployment shall be fixed at the same stage as the last pay drawn before retirement. If there is no such stage in the reemployed post, the pay shall be

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fixed at the stage below that pay. If the maximum of the pay scale in which a pensioner is reemployed is less than the last pay drawn by him before retirement, his initial pay shall be fixed at the maximum of the scale of the reemployed post. Similarly, if the minimum of the scale of the pay in which a pensioner is reemployed is more than the last pay drawn by him before retirement, his initial pay shall be fixed at the minimum of the scale of pay of the reemployed post. However, in all these cases, non-ignorable part of the pension and pension equivalent of retirement benefits shall be reduced from the pay so fixed.

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(c) the re-employed pensioner will be in addition to pay as fixed under para (b) above shall be permitted to draw separately any pension sanctioned to him and to retain any other form of retirement benefits.

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(d) In the case of persons retiring before attaining the age of 55 years and who are reemployed, pension (including pension equivalent of gratuity and other forms of retirement

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benefits) shall be ignored for initial pay fixation to the following extent:-

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(i) In the case of ex-servicemen who held posts below commissioned officer rank in the Defence Forces and in the case of Civilians who held posts below Group (A) posts at the time of their retirement, the entire pension and pension equivalent of retirement benefits shall be ignored.

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(ii) In the case of service officers belonging to the Defence Forces and Civilian Pensioners who hold Group ‘A’ posts at the time of their retirement, the first Rs.500 of the pension and pension equivalent of retirement benefits shall be ignored.”

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This Order of 1986 was revised by Official

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Memorandum dated 05.04.2010, whereby para 4(b)(i),

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4(b)(ii), 4(c), 4(d)(i) and (ii) are revised as under: -

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*Existing provision*	*Proposed revisedprovision*
Para 4(b)(i): In all cases where	Para 4(b)(i): In all cases where the
the pension is fully ignored, the	pension is fully ignored, the initial
initial pay on re-employment	pay on re-employment shall be fixed
shall be fixed at the minimum of	as per entry pay in the revised pay
the scale of pay of the re-	structure of the re-employed post
employed post.	applicable in the case of direct

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recruits appointed on or after 1.1.2006 as notified vide Section II, Part A of First Schedule to CCS (RP) Rules, 2008. Para 4(b)(ii): In cases where the Para 4(b)(ii): In cases where the entire pension and pensionary entire pension and pensionary benefits are not ignored for pay benefits are not ignored for pay fixation, the initial pay on refixation, the initial basic pay on reemployment shall be fixed at employment shall be fixed at the the same stage as the last pay same stage as the last basic pay drawn before retirement. If drawn before retirement. However, there is no such stage in the rehe shall be granted the grade pay of employed post, the pay shall be the re-employed post. The maximum fixed at the stage next above basic pay cannot exceed the grade that pay. If the maximum of the pay of the re-employed post plus pay scale in which a pensioner pay in the pay band of Rs.67000 is re-employed is less than the i.e., the maximum of the pay band last pay drawn by him before PB-4. In all these cases, the nonretirement, his initial pay shall ignorable part of the pension shall be fixed at the maximum of the be reduced from the pay so fixed. scale of pay of the re-employed Illustration. post. Similarly, if the minimum A Colonel who retired with basic of the scale of pay in which a pay of Rs.61700 (grade pay pensioner is re-employed is Rs.8700; pay in the pay band more than the last pay drawn Rs.53000) is re-employed as a by him before retirement, his Deputy Secretary in an organization initial pay shall be fixed at the with grade pay of Rs.7600. In this minimum of the scale of pay of case, on re-employment, his basic the re-employed post. However, pay will continue to be Rs.61700. in all these cases, the nonHowever, his grade pay on reignorable part of the pension employment will be Rs.7600 and shall be reduced from the pay the pay in the pay band Rs.54100. so fixed. Thereafter, the non-ignorable part of the pension will be reduced from the pay so fixed. Note: In the revised pay structure, basic pay is pay in the pay band plus the grade pay attached to the post. Para 4(c): The re-employed Para 4(c): No change. pensioner will, in addition to

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pay as fixed under Para (b) above shall be permitted to draw separately any pension sanctioned to him and to retain any other form of retirement benefits.

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Para 4(d): In the case of persons Para 4(d): In the case of persons retiring before attaining the age retiring before attaining the age of of 55 years and who are re55 years and who are re-employed, employed, pension (including pension (including PEG and other PEG and other forms of forms of retirement benefits) shall retirement benefits) shall be be ignored for initial pay fixation in ignored for initial pay fixation in the following extent: the following extent: (i) In the case of ex-servicemen (i) No change. who held posts below Commissioned Officer rank in the Defence Forces and in the case of civilians who held posts below Group ‘A’ posts at the time of their retirement, the entire pension and pension equivalent of retirement benefits shall be ignored. (ii) In the case of service officers (ii) In the case of Commissioned belonging to the Defence Forces Service officers belonging to the and Civilian pensioners who Defence Forces and Civilian held Group ‘A’ posts at the time pensioners who held Group ‘A’ of their retirement, the first posts at the time of their retirement, Rs.500/-* of the pension and the first Rs.4000/- of the pension pension equivalent retirement and pension equivalent retirement benefits shall be ignored. benefits shall be ignored. (*Already revised to Rs.4000/vide O.M. No.3/13/2008-Estt. (Pay II) dated 11^th November, 2008).

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(ii) In the case of Commissioned Service officers belonging to the Defence Forces and Civilian pensioners who held Group ‘A’ posts at the time of their retirement, the first Rs.4000/- of the pension and pension equivalent retirement benefits shall be ignored.

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7. A conjoint reading of these Orders would

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make it clear that where the pension is fully ignored, the initial pay on re-employment shall be fixed as per entry pay in the revised pay structure of the reemployed post applicable in the case of direct recruits appointed on or after 01.01.2006 as per para 4(b)(i). Para 4(b)(ii) states that where the entire pension and pensionary benefits are not ignored for pay fixation, the initial basic pay on re-employment shall be fixed at the same stage as the last basic pay drawn before retirement. However, he shall be granted the grade pay of the re-employed post. There are certain conditions for the maximum basic pay to be considered.

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Para 4(d) deals with the cases of persons

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retiring before attaining the age of 55 years and who are re-employed. In para 4(d), there are two categories:(i) ex-servicemen who held posts below Commissioned

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Officer rank in the Defence Forces and in the case of

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civilians who held posts below Group ‘A’ posts at the time of their retirement; ii) Commissioned Service Officers belonging to the Defence Forces and Civilian pensioners who held Group ‘A’ posts at the time of their retirement.

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It is not in dispute that the petitioner got

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retired before attaining the age of 55 years and was holding the post below Group ‘A’ post. As per 4(d)(i), the entire pension and pension equivalent of retirement benefits requires to be ignored while considering for fixation of pay. On such pension being ignored, certainly the case of petitioner would fall under para 4(b)(i) where the initial pay on re-employment shall be fixed as per entry pay in the revised pay structure of the reemployed post applicable to the direct recruits. Accordingly, the pay of the petitioner has been fixed in terms of para 4(b)(i) read with para 4(d)(i) of the Order as aforesaid. Considering the same, the Tribunal has

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rightly upheld the pay fixation dismissing the

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application.

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The judgment relied upon by the learned counsel for the petitioner in U.T. Chandigarh supra, was rendered in the context of the re-employed person getting regular pension from Indian Army for his past services. It is held that as per the Orders and the option exercised by the respondent therein, the service rendered by him to the Indian Army cannot be taken into account for the purposes of his pay fixation as he would be getting his pension and there would not be any deduction from his pension or his salary on account of the pension received by him from the Indian Army. Nothing would be deducted from the pension of the respondent therein upon being re-employed and the respondent therein would continue to get his pension and other benefits from the Army for his past services.

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This judgment indeed would support the respondents herein.

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It is not in dispute that the petitioner herein is getting pension as an ex-serviceman. No pension is deducted in the fixation of pay. Hence, the said judgment is of no assistance to the petitioner.

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Similarly, O.A.No.T-19-CH-2009 is relating to the Army Nurses who had been discharged from service without any pension. In that background no pension being made available to them, their earlier services have been counted while fixing the fixation in the re-employed posts. Hence, the said order is also not come to the aid of the petitioner.

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13. In Director General of Posts and others,

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supra, the Hon’ble Apex Court has considered the point, whether an ex-serviceman, who after his retirement before attaining the age of 55 re-employed in civil service, while getting his pay fixed, is entitled to an

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advance increment only if his pay plus pension plus pension equivalent of gratuity is less than the last pay drawn at the time of retirement. The law rendered in the context of fixation of pay in such scenario of entitlement to advance increment would not be applicable to the facts of the present case. Moreover, the validity of Order, 1986 has not been challenged by the petitioner.

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The Tribunal has made it very clear that there is a provision relating to the railway employees whereby the officers who had retired prior to 01.01.2006 and who had been re-employed after 01.01.2006, 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 revised pay structure. Such a special benefit is not available in the ESIC, these will be covered only by the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986.

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