AI Structured Summary
Not yet generated for this judgment
Judgment
Vinod K. Sharma, J.—The Petitioner seeks a Writ in the nature of Certiorari for quashing the order of fixation of pension, with
consequential prayer for issuance of Writ in the nature of Mandamus to re-fix the pay and allowances of the Petitioner in accordance with, law
Ministry of Finance(Department of Expenditure)) Memorandum in O.M. No. 8(34)/E iii /57, dated 25.11.1958 and O.M. No. F.7(34)-E.III/62,
dated 16.11.1964 and to release arrears etc.
In support of the prayer made, it is pleaded that the Petitioner served the Indian Air Force for 16 1/2 years and thereafter, took Voluntary
Retirement from Service on 27.03.1978. The Petitioner was appointed as Clerk and subsequently promoted as Special Assistant, from where he
retired in the year 2001.
It is the case of the Petitioner that the Ministry of Finance in order to regulate the pay of Re-employed ex-servicemen issued a General Policy
memorandum in the year 1958 vide Memo No. 8(34) E III/67, dated 25.11.1958, protecting the pay last drawn by ex-servicemen in the defence
services.
The circular reads as under:
The initial pay on re-employment, should be fixed at the minimum stage of the scale of pay prescribed for the post in which an
individualisreemployed.
In cases where it is felt that the fixation of initial pay of the re employed of ficer at the minimum of the prescribed pay scale will cause undue
hardship,the pay may be fixed at the higher stage by allowing one increment for each year of service which the officer has rendered before
retirement in apost not lower than that in which he is reemployed.
The Circular was subsequently modified vide Office memorandum No. F 7(34)-E.III/62, dated 16.1.1964.
The case of the Petitioner is that at the time of his voluntary retirement from the defence services he was drawing basic pay of Rs. 378/-with
batch pay of Rs. 15/-. The Respondent bank in violation of the guidelines issued by the Ministry of Finance, fixed the salary of the Petitioner at the
basic pay of Rs. 170/-as against Rs. 378/-drawn by the Petitioner in the Indian Air Force.
The basic pay of the Petitioner however was subsequently revised to Rs. 200/-w.e.f 1.4.80 which according to the Petitioner should have been
with effect from 27.03.1978 under a bi-partite agreement.
The submission of the Petitioner is, that because of non-implementation of the Government Circular in letter and spirit the basic salary of the
Petitioner, had not been correctly fixed which has caused great prejudice to the Petitioner.
Therefore the action in fixing the basic salary at Rs. 200/-(Rupees two hundred only) totally arbitrary, which has further resulted in wrong
fixation of the pension.
The Writ Petition is opposed by the Respondent/bank by taking a stand, that there is no violation of any circular in fixing the pay of the
Petitioner.
It is the stand of the Respondent, that the pay of the Petitioner was fixed at much higher rate i.e.,at Rs. 460/-as against Rs. 392/-drawn by him
in the Indian Air Force.
The contention of the learned Counsel for the Respondent therefore that the Petitioner is not entitled to the relief of re-fixation of salary at the
time of initial appointment.
In support of the contentions, the learned Counsel for the Respondent placed reliance on a decision of the Honourable Supreme Court in the
case of Canara Bank .v. D.S. Ananda Thirtha (Civil Appeal No. 7414/2010), decided on 31.8.2010, wherein, the Honourable Supreme Court
has been pleased to laid down as under:
The narrow issue that remains consideration is whether the instructions and guidelines contained in the circular No. 398/84, dated 8.8.1984 are
superseded and substituted by the para referring to re-fixation in the circular No. 103/85, dated 9.3.1985. The circular dated 9.3.1985 has been
issued in clarification of the circular dated 8.8.1984. As notice above,a combined reading of the circular dated 8.8.1984 and 9.3.1985 clearly
demon strates that in so faras Ex-service menbelowthe rank of commissioned officers who were appointed prior to 1.9.1978 (to which category
Respondent belongs) the circular No. 398/84, dated 8.8.1984 continued to be applicable. The provision relating to re-fixation in the circular dated
9.3.1985 is intended to be merely clarification of the provision for re-fixation in the circular dated 8.8.1984. As notice above, the circular dated
8.8.1984 provided that only if the initial pay and DA in the Bankwas less than the last pay in the armed forces) that is basic pay plus DA last
drawn in the armed forces,re-fixation had to be resorted to;and where initial payplus DA in the Bank was more than the last pay,then nore-fixation
need be made. It further made it clear that the pay fixations hould ensure that the basic pay plus DA in the Bank on the date of joining Bank''s
services hould bee qual to and not less than the basic pay plus DA last drawn in the armed forces.
The provision in the circular dated 9.3.1985 that the ""maximum number of increments that can be given to the ex-servicemen in the bank scale
is limited to the length of service put in by the ex-service men in the cadreequivalent to the cadre in which he is appointed in the Bank"", is only a
clarification/explanation in regard to the following clause in the circular No. 398/1984,dated8.8.1984..
In the case of ex-servicemen who joined a service before 1.9.1978,the basic pay plus DA drawn by the mint he armed forces will be protected.
Hence if an initial pay plus DA isequivalentor more than the last payas definedabove, then nore-fixation need be done. Only if our initial payplus
DA is less than the last pay as defined above,suitable number of increments may be given to make it equivalent to the last pay....
The effect of the clarificatory circular dated 9.3.1985 is that when calculating the suitable number of increments as per the provision in circular
dated 8.8.1984, aceiling had to be put in regard to the number of increments and that ceiling was then umber of years ofserviceputin by the Ex-
service men in the Armed Forces. There fore the provision in the circular dated 9.3.1985 does not mean that if an ex-servicemen employed by the
bank had put in 15 years of service in armed forces, such person when appointed in a Bankbe comes auto matically entitled to 15 increments. It
only means that while giving suitable number of increments while making the Bank''sinitial pay plusD. Aequal to the last pay in the armed forces in
terms of the circular dated 8.8.1984, the increments to bead ded should be subjected to the ceiling prescribe din the circular dated 9.3.1985.
While fixing the pay on joining the bank,ifit is found that the initial pay plus DA in the bank is less than the last pay(basic pay plusDA last drawn in
armed forces),then suitable number of increments(not exceeding the number of increments equal to the number of years of armed forces service)
could be given to make it equivalent to the last pay. This is also evident from the re-fixation clarification clause in the circular dated9..3.1985as it
uses the words"" maximum number of increments that can be given"" and not ""maximum number of increments that shall be given"". Therefore,weare
of the view that the circular No. 103/85has to be read with circular dated8.8.1994. It does not entitle the Respondent to claim 15 increments as
has been interpreted by the High Court. In the view we have taken, it is unnecessary to consider whether subsequent circular No. 107/86 dated
18.3.1986 of the Bank was quashed by the High Court in some other decision.
Accordingly,we allow this appeal,set aside the Judgment of the High Court,up hold there-fixation by the Bank and dismiss the writ petition filed
by the Respondent.
In view of the law laid down by the Honourable Supreme Court, that the object of the circulars is to see that an employee does not get a less
salary than the salary drawn by ex-servicemen in the defense. There is no merit in this case, as the Petitioner was placed at a salary which is not
above the one drawn by him in the Indian Air Force.
No ground is made out to interfere with the fixation of salary at the time of initial appointment of the Petitioner. The Writ Petition being devoid
of merits also suffers from delay and laches, as the cause of action to challenge fixation of pay arose to Petitioner in the year 1976, whereas
present writ has been filed, after 5 years of retirement.
For the foregoing reasons, the Writ Petition being void of merit and hit by delay and laches is ordered to be dismissed. No costs.