Union Of India vs Anil Prasad on 20 May, 2022


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Supreme Court of India

Union Of India vs Anil Prasad on 20 May, 2022

Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

                                                                   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




                                            JUDGMENT

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
Signature Not Verified

Digitally signed by R

Force Personnel upon re­appointment in the government
Natarajan
Date: 2022.05.20
17:52:27 IST
Reason:

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 pre­
officers 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 re­

employment 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 short­

service 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/­

9
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 ex­

personnel 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 ex­

armed 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 re­

employment 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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