UNION OF INDIA & ORS. versus ANIL PRASAD on 20 May 2022

SUPREME COURT REPORTS

[2022] 3 S.C.R.

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UNION OF INDIA & ORS.

v.

ANIL PRASAD

(Civil Appeal No. 4073 of 2022)

BMAY 20, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Service Law – Re-appointment of retired Armed Forcepersonnel – Fixation of Pay – Central Civil Services (Fixation ofPay of Re-employed Pensioners) Order, 1986 – Para 8 – Respondent-Cretired Armed Force personnel upon re-appointment in governmentservice – Whether entitled to his basic pay being fixed at par withhis last drawn pay, in view of Para 8 of the CCS Order – Held:Para 8 of the CCS Order does not provide that on re-employment ingovernment service, a retired Armed Force personnel would beDentitled to his basic pay being fixed at par with his last drawn pay– No entitlement of pay protection under Para 8 of the CCS Order– Manner of computation of pay as envisaged under Para 8 of theCCS Order clearly stipulates that the pay so arrived at should notexceed the basic pay (including the deferred pay but excluding otheremoluments) last drawn by the respondent in the armed force – ThatEdoes not mean that respondent is entitled to a pay equal to whatwas last drawn by him in the Armed Force – High Court erred inholding that retired Armed Forces personnel on re-appointment inthe government service would be entitled to the last drawn pay asArmed Forces personnel.F

Allowing the appeal, the Court

HELD : 1.1. On a plain reading of Para 8 of the CentralCivil Services (fixation of Pay of Re-employed Pensioners) Order,1986, it is clear that an Emergency Commissioned Officer and aShort Service Commissioned Officer working in the ArmedGForces on his employment to a civil post shall be entitled toadvance increments equal to the completed years of servicerendered in the Armed Forces on a basic pay equal to or higherthan the minimum of the scale attached to the civil post in whichthey are employed. However, the pay arrived at should not exceedHthe basic pay last drawn by them in the Armed Forces. Therefore, on a true interpretation of Para 8, on re-employment in thegovernment service, an employee working with the ArmedForces, on re-employment shall be entitled to advance incrementsequal to the completed years of service rendered by him in theArmed Forces on a basic pay equal to or higher than the minimumof the scale attached to the civil post in which he is employed.[Para 5.3][266-G-H; 267-A-B]

1.2. Para 8 of the CCS Order makes a reference to tworates of pay in case of emergency commissioned officers and short-service commissioned officers being appointed in the governmentservice: First, they may be granted advance increment equal tothe completed years of service rendered by them in the armedforces on a basic pay equal to or higher than the minimum of thescale attached to the civil posts in which they are employed.Thepay is to be fixed with reference to the scale attached to the civilposts in which they are employed; Second, while computing thepay in the aforesaid manner it should not exceed the basic paylast drawn by them in the armed forces.In other words, whilecomputing the pay of the said officers who joined the civil poststheir pay cannot exceed last drawn pay by them in the armedforces. In case it exceeds then it is capped to the last drawn payin the armed forces. Therefore, a claim for the last drawn pay inthe armed forces is not a matter of right. [Para 5.3][267-C-E]

1.3. Applying the above in the present case, it is noted thatthe respondent was fixed at the entry level of PB-3 (Rs.15,600–Rs.39,100) in the armed forces and six advance increments equalto the number of years the respondent served in the Indian Armywas added to the basic pay i.e. Rs.15,600/- = Rs.19,600/-. TheGrade Pay fixed in the civil post is Rs.5,400/- and hence a total ofRs.25,080/- was the computed pay in the civil post. The said payof Rs.25,080/- does not exceed the pay last drawn by therespondent in the armed forces. Hence, the pay so computed isjust and proper. [Para 5.3][267-E-G]

2.1. Para 8 of the CCS Order does not indicate that the paylast drawn by the respondent in the armed forces should be thepay to be computed when he joined the civil post. There is no A

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Aentitlement of pay protection under para 8 of the CCS. The mannerof computation of pay as envisaged under para 8 also clearlystipulates that the pay so arrived at should not exceed the basicpay(including the deferred pay but excluding other emoluments)last drawn by the respondent in the armed force. That does notmean that the respondent is entitled to a pay equal to what wasBlast drawn by him in the armed force. [Para 5.3][267-G-H;268-A]

2.2. Also, para 8 of the CCS Order makes a reference tothe civil post in which the personnel of armed force is to beemployed with reference to the minimum scale of pay attached toCthe civil post and while computing the pay scale the last drawnpay in the armed force has no relevance in the sense that there isno pay protection that can be sought by the ex-personnel of armedforce. The reference to the last drawn pay in the armed forces isonly to ensure that the pay computed in the civil post in theDmanner envisaged in para 8 of CCS Order does not exceed thebasic pay (including the deferred pay but excluding otheremoluments) last drawn by the personnel in the armed forces.For example, if the minimum of the scale attached to the civilpost is higher than the last drawn pay of the personnel in thearmed force and while computing the pay for the civil post asEenvisaged under para 8 of CCS if it so exceeds then possibly thelast drawn pay in the armed forces could be paid. The said Ruleproscribes fixation of a pay exceeding the basic pay (includingthe deferred pay but excluding other emoluments) last drawn bythe personnel in the armed forces in respect of the civil post to Fwhich an ex-armed force personnel is appointed. Thus, in a casewhere computation of pay exceeds last drawn pay in the armedforces then, in such a situation possibly the last drawn pay ofsuch a personnel can be fixed. [Para 5.3][268-B-E]

3.1. In the present case while serving in the Armed ForcesGrespondent was in the pay scale of Rs.15600 – 39100. The poston which he was re-employed in the government service alsocarries the pay scale of Rs.15600 – 39100 and he has been allowedadvance increments of six years as he completed six years ofservice in the Armed Forces. However, his grade pay has beenfixed at Rs.5400 being the grade pay which is available for theHcivil post. [Para 5.3][268-F]

3.2. Therefore, the pay fixation of the respondent in thegovernment service was absolutely in consonance with para 8 ofthe CCS Order 1986. Para 8 does not provide that on re-employment in Government Services a retired Armed Forcepersonnel would be entitled to his basic pay being fixed at parwith his last drawn pay. Holding so will violate para 8 of the CCSOrder. Under the circumstances the High Court has committeda grave error in observing and holding that the retired ArmedForces personnel on re-appointment in the government servicewould be entitled to the last drawn pay as Armed Forcespersonnel. Therefore, the impugned judgment and order passedby the High Court is unsustainable being contrary to para 8 ofthe CCS Order, 1986. [Para 5.4][268-G-H; 269-A]

Government of India & Ors. v. Captain (Retd.) KapilChaudhary [Decision of High Court of Delhi in Writ Petition (C) No.2331 of 2012]- referred to..

CIVIL APPELLATE JURISDICTION : Civil Appeal No.4073of 2022.

From the Judgment and Order dated 05.10.2021 of the High Courtof Delhi at New Delhi in W.P. (C) No.2135 of 2020.

Ms. Aishwarya Bhati, ASG, Shiv Ram Pandey, Ms. Ruchi Kohli,Ms. Aakanksha Kaul, O. P. Shukla, Arvind Kumar Sharma, Advs. forthe Appellants.

Vinay Kr. Garg, Sr. Adv., Ankur Chhibber, Nikunj Arora, ParvGarg, K. S. Rekhi, Amit Kumar, Santosh Kumar Pandey, Advs. for theRespondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 05.10.2021 passed by the High Court of Delhi at NewDelhi in Writ Petition (C) No.2135 of 2020 by which the High Court hasallowed the said writ petition preferred by the respondent herein and hasheld that the respondent – original writ petitioner being retired ArmyForce Personnel upon re-appointment in the government service, wouldbe entitled to his basic pay being fixed at par with his last drawn pay, theUnion of India and others have preferred the present appeal.

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A2. The respondent – original writ petitioner was a Major in theIndian Army and was discharged from service on 15.07.2007. He wasappointed as an Assistant Commandant (Medical Officer) in the CentralReserve Police Force, in the pay scale of Rs.15600 - 39100 with gradepay of Rs.5400. The respondent – original petitioner claimed that as onthe date of his discharge from the Indian Army, he was drawing pay ofBRs.28340 with grade pay of Rs.6600, the same was entitled to be protectedin terms of Para 8 of the Central Civil Services (fixation of Pay of Re-employed Pensioners) Order, 1986 (hereinafter referred to as ‘CCSOrder’). The original writ petitioner made a representation which cameto be rejected by an order dated 24.04.2019. Thereafter the original writCpetitioner preferred the writ petition before the High Court claiming thathe would be entitled to his basic pay being fixed at par with his lastdrawn pay. Before the High Court heavy reliance was placed on thedecision of the Division Bench of the High Court in the case ofGovernment of India &Ors. Vs. Captain (Retd.) Kapil Chaudharyin Writ Petition (C) No.2331 of 2012. By the impugned judgmentDand order, the High Court has allowed the said writ petition and hasdirected the appellants to reworkthe pay fixation of the original writpetitioner by holding that upon reappointment in government service theoriginal writ petitioner being a retired Armed Force Personnel would beentitled to his basic pay being fixed at par with his last drawn pay.

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2.1 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court in holding that on reappointment inthe government service the original writ petitioner would be entitled tohis basic pay being fixed at par with his last drawn pay, the Union ofIndia and others have preferred this appeal.F

3. Ms. Aishwarya Bhati, learned ASG, appearing on behalf ofUnion of India – appellant herein has vehemently submitted that theimpugned judgment and order passed by the High Court is on a misreadingof Para 8 of CCS Orders.

3.1 It is submitted that as per Para 8 of the CCS Order onGreappointment, an Emergency Commissioned Officer and Short ServiceCommissioned Officer who join the government service will be grantedadvance increments equal to the completed years of service renderedby him in Armed Forces on the basic pay scale which will be equal to orhigher than the pay scale of the re-employed organization i.e. the civil H

post/the government post and not on the last drawn pay by the personnelin the Armed Forces.

3.2 It is submitted that Para 8 of the CCS Order does not speakabout retaining of the last drawn basic pay or fixation at the rate of lastdrawn pay.

3.3 It is submitted that if the claim made by the respondent isallowed and it is held that on re-employment his pay fixation should bethe last drawn pay in that case it violates the statutory provision of Para8 of the CCS Order.

Making above submission, it is prayed to allow the present appeal.

4. Present appeal is vehemently opposed by Shri Vinay KumarGarg, learned Senior Advocate appearing on behalf of the respondent. Itis vehemently submitted by Shri Garg, learned Senior Advocate for therespondent that the impugned judgment and order passed by the HighCourt is absolutely in consonance with Para 8 of the CCS Order.

4.1 It is submitted that the respondent was working as a Captainin the Army Medical Corps of the Indian Army. In the year 2007, CRPFissued advertisement inviting applications for the post of AssistantCommandant (Medical Officer) to which the respondent applied. In themeantime, vide order dated 15.07.2007, the respondent was releasedfrom the Indian Army. It is submitted that at the time of his dischargefrom theIndian Army in the rank of Major, his last pay was in the payscale of Rs.15600 – 39100 and was drawing Rs.28340 as basic pay andgrade pay at Rs.6600. It is submitted that subsequently he was appointedas Assistant Commandant (Medical Officer) in the year 2009 in the payscale of Rs.15600- 39100 with grade pay at Rs.5400. It is contendedthat on re-employment his pay scale was required to be fixed at par withthe pay scale he was drawing while in the Indian Army Service and asper the last drawn pay. It is submitted that as per Para 8 of CCS Order,though the appellantsgranted six increments i.e. for the number of yearsthe respondent served in the Indian Army, however, the same was grantedon the pay wrongly fixed by the appellants which ought to have beenfixed at Rs.28340 i.e. the pay last drawn by the respondent in the rankof Major in the Army.

4.2 It is submitted that his grade pay was also fixed at Rs.5400instead of Rs.6600, which was lower than what the respondent wasreceiving at the time when he was in the Indian Army. It is urged submitted A

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Athat on a true interpretation of Para 8 of CCS Order, the High Courtrightly observed and held that the respondent shall be entitled to the payscale as per last drawn salary while working in the Indian Army. Hence,noerror has been committed by the High Court in holding so is thesubmission.

BMaking the above submissions,it is prayed to dismiss the presentappeal.

5. We have heard learned counsel for the respective parties atlength.

5.1 The short question which is posed for consideration beforeCthis Court is whether on re-employment in the government service, anemployee who was serving in the Indian Army/in the Armed Forcesshall be entitled to his pay scales at par with his last drawn pay?

5.2 While answering the aforesaid question Para 8 of CCS Orderwhich is relevant for our purpose is required to be referred to which isDas follows:

“8. Emergency Commissioned Officers and Short ServiceCommissioned Officers:

Emergency Commissioned Officers and Short ServiceCommissioned Officers who joined pre-officers who joined pre-Ecommissioned training or were commissioned after 10.01.1968may, on their appointment in Government service to unreservedvacancies, may be granted advance increments equal to thecompleted years of service rendered by them in Armed Forceson a basic pay (inclusive of deferred pay but excluding otherFemoluments) equal to or higher than the minimum of the scaleattached to the civil post in which they are employed. The pay soarrived at should not, however, exceed the basic pay (includingthe deferred pay but excluding other emoluments) last drawn bythem in the Armed Forces.”G5.3 On a plain reading of the above provision an EmergencyCommissioned Officer and a Short Service CommissionedOfficerworking in the Armed Forces on his employment to a civil post shall beentitled to advance increments equal to the completed years of servicerendered in the Armed Forces on a basic pay equal to or higher than theminimum of the scale attached to the civil post in which they areH

employed. However, the pay arrived at should not exceed the basic paylast drawn by them in the Armed Forces. Therefore, on a trueinterpretation of Para 8 on re-employment in the government service, anemployee working with the Armed Forces, on re-employment shall beentitled to advance increments equal to the completed years of servicerendered by him in the Armed Forces on a basic pay equal to or higherthan the minimum of the scale attached to the civil post in which he isemployed.

Para 8 of the CCS Order makes a reference to two rates of payin case of emergency commissioned officers and short-servicecommissioned officers being appointed in the government service: First,they may be granted advance increment equal to the completed years ofservice rendered by them in the armed forces on a basic pay equal to orhigher than the minimum of the scale attached to the civil posts in whichthey are employed.The pay is to be fixed with reference to the scaleattached to the civil posts in which they are employed; Second, whilecomputing the pay in the aforesaid manner it should not exceed thebasic pay last drawn by them in the armed forces. In another words,while computing the pay of the said officers who joined the civil poststheir pay cannot exceed last drawn pay by them in the armed forces. Incase it exceeds then it is capped to the last drawn pay in the armedforces. Therefore, a claim for the last drawn pay in the armed forces isnot a matter of right.

Applying the above in the present case, it is noted that therespondent was fixed at the entry level of PB-3 (Rs.15,600–Rs.39,100)in the armed forces and six advance increments equal to the number ofyears the respondent served in the Indian Army was added to the basicpay i.e. Rs.15,600/- = Rs.19,600/-. The Grade Pay fixed in the civil postis Rs.5,400/- and hence a total of Rs.25,080/- was the computed pay inthe civil post. The said pay of Rs.25,080/- does not exceed the pay lastdrawn by the respondent in the armed forces. Hence, the pay so computedis just and proper.

Para 8 of the CCS Order does not indicate that the pay last drawnby the respondent in the armed forces should be the pay to be computedwhen he joined the civil post. There is no entitlement of pay protectionunder para 8 of the CCS. The manner of computation of pay as envisagedunder para 8 also clearly stipulates that the pay so arrived at should notexceed the basic pay (including the deferred pay but excluding other AB

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Aemoluments) last drawn by the respondent in the armed force. Thatdoes not mean that the respondent is entitled to a pay equal to what waslast drawn by him in the armed force.

Also, para 8 of the CCS Order makes a reference to the civil postin which the personnel of armed force is to be employed with referenceBto the minimum scale of pay attached to the civil post and while computingthe pay scale the last drawn pay in the armed force has no relevance inthe sense that there is no pay protection that can be sought by the ex-personnel of armed force. The reference to the last drawn pay in thearmed forces is only to ensure that the pay computed in the civil post inthe manner envisaged in para 8 of CCS Order does not exceed the basicCpay (including the deferred pay but excluding other emoluments) lastdrawn by the personnel in the armed forces. For example, if the minimumof the scale attached to the civil post is higher than the last drawn pay ofthe personnel in the armed force and while computing the pay for thecivil post as envisaged under para 8 of CCS if it so exceeds then possiblyDthe last drawn pay in the armed forces could be paid. The said Ruleproscribes fixation of a pay exceeding the basic pay (including thedeferred pay but excluding other emoluments) last drawn by the personnelin the armed forces in respect of the civil post to which an ex-armedforce personnel is appointed. Thus, in a case where computation of payexceeds last drawn pay in the armed forces then, in such a situationEpossibly the last drawn pay of such a personnel can be fixed.

In the present case while serving in the Armed Forcesrespondentwas in the pay scale of Rs.15600 – 39100. The post on whichhe was re-employed in the government service also carries the pay scaleof Rs.15600 – 39100and he has been allowed advance increments of sixFyears 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 isavailable for the civil post.

5.4 Therefore, the pay fixation of the respondent in the governmentservice was absolutely in consonance with para 8 of the CCS OrderG1986. Para 8 does not provide that on re-employment inGovernmentServices a retired Armed Force personnel would be entitled to his basicpay being fixed at par with his last drawn pay. Holding so will violatepara 8 of the CCS Order. Under the circumstances the High Court hascommitted a grave error in observing and holding that the retired ArmedHForces personnel on re-appointment 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 isunsustainable being contrary to para 8 of the CCS Order, 1986.

6. In view of the above and for the reason stated above, presentappeal succeeds. The impugned judgment and order passed by the HighCourt is hereby quashed and set aside. Consequently, the writ petitionpreferred by the respondent before the High Court is dismissed. However,in the facts and circumstances of the case, there shall be no order as tocosts.

Bibhuti Bhushan Bose

Appeal allowed.

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