U.T. CHANDIGARH Vs GURCHARAN SINGH
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-009873-009873 / 2013
Diary number: 18588 / 2008
Advocates: KAVEETA WADIA Vs
BALBIR SINGH GUPTA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9873 OF 2013 (Arising out of SLP(C) No.17881 of 2008)
U.T. CHANDIGARH & ORS. …APPELLANTS
VERSUS
GURCHARAN SINGH & ANR. ...RESPONDENTS
J U D G M E N T
ANIL R. DAVE, J.
1. Leave granted.
2. Being aggrieved by the Judgment delivered in Civil Writ Petition
No.7006-CAT of 2003 dated 20th March, 2008 by the High Court of Punjab
and Haryana at Chandigarh, this appeal has been filed by the employer –
Union Territory of Chandigarh and others.
3. The facts giving rise to the present litigation in a nut-shell are as
under:
The respondent was appointed as a Clerk by the appellant Chandigarh
Transport Undertaking on the quota reserved for ex-servicemen. The
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respondent had rendered his services to the Indian Army as a Combatant
Clerk upto 31st January, 1990, till the date when he was discharged from the
Indian Army.
Upon his appointment as a Clerk under an office order dated 2nd
September, 1992, his pay had been fixed and he was paid his salary
accordingly. Only when he retired in 1997, it was brought to the notice of
the employer, on getting an audit query, that his salary had been wrongly
fixed under the order dated 2nd September, 1992. The mistake committed in
pay fixation had been rectified by an order dated 13th October, 1998.
4. Being aggrieved by the re-fixation of his pay, the respondent had
made several representations but as no change was effected by the appellant-
employer in the pay so re-fixed, the respondent had approached the Central
Administrative Tribunal (hereinafter referred to as ‘ the Tribunal’) by filing
Original Application No.975/CH/2000. The said OA had been dismissed by
the Tribunal by an order dated 4th January, 2002. Being aggrieved by the
order rejecting the aforestated O.A., the respondent-employee had
approached the High Court by filing the aforestated petition which has been
allowed by an order dated 20th March, 2008 and being aggrieved by the said
order and judgment, this appeal has been filed by the employer.
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5. The learned counsel for the appellant had explained the circumstances
in which the appellant was constrained to re-fix pay of the respondent so as
to rectify the mistake committed while passing the pay fixation order dated
2nd September, 1992. The learned counsel had taken us through the relevant
regulations with regard to pay fixation of re-employed pensioners and had
taken us through the provisions of the Central Civil Services (Fixation of
pay of Re-employed Pensioners) Orders, 1986 (hereinafter referred to as ‘the
Orders’) under which pay of the respondent ought to have been fixed.
6. The learned counsel for the appellant had submitted that there were
several different notifications and orders in relation to the pay fixation of re-
employed pensioners, including ex-servicemen. So as to see that all the
orders are available at one place, the orders had been compiled and notified
in 1986 so that pay of the re-employed pensioners can be fixed only upon
looking at the provisions of the compilation of the Orders instead of looking
at several different orders or notifications which had been issued from time
to time. Thus, according to the learned counsel, a comprehensive
compilation of all the relevant orders, which had been issued from time to
time and which were operative in 1996 was duly considered for the purpose
of re-fixation of the pay of the respondent.
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7. As the respondent had been given appointment on 15th April, 1990 as
a Clerk on a post reserved for the ex-servicemen, the provisions of the
Orders were to be looked into for the purpose of pay fixation of the
respondent. The learned counsel had further submitted that while fixing the
pay on 2nd September, 1992, the appellant did not look into the certain
provisions of the Orders and an option exercised by the respondent in
relation to his pay fixation and therefore, incorrect pay had been fixed under
the order dated 2nd September, 1992. By virtue of the said pay fixation, the
respondent was given benefit of his past services rendered to the Indian
Army and accordingly, he was also given increments which he would have
got in the Indian Army. As a result thereof, the respondent’s pay was fixed
in a higher scale then what he ought to have been allowed. As a matter of
fact, as per the provisions of Order 4 of the Orders, the respondent could not
have been given benefit of his earlier services in the process of fixing his
pay. Order 4 of the Orders, being relevant for the purpose, has been
reproduced herein-below:
“4. Fixation of pay of re-employed pensions.
a) Re-employed 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 re-employment shall be fixed at the minimum of the scales of pay of the re-employed post.
ii) In cases where the entire pension and pensionary benefits are not ignored for pay fixation, the initial pay on re-employment shall be fixed at the same stage as the last pay drawn before retirement. If there is no such stage in the re-employed post, the pay shall be fixed at the stage below that pay. If the maximum of the pay scales in which a pensioner is re-employed is less than the last pay drawn by him before retirement, his initial pay shall be fixed at the maximum of the scales of the re- employed post. Similarly, if the minimum of the scales of the pay in which a pensioner is re-employed is more than the last pay drawn by him before retirement his initial pay shall be fixed at the minimum of the scales of pay of the re-employed post. However, in all these cases, non ignorable past of the pension and pension equivalent of retirement benefits shall be reduced from the pay so fixed.
c) The re-employed pensioner will be in addition to pay as fixed under para (b) above shall be permitted to drawn separately and pension sanctioned to him and to retain any other form of retirement benefits.
d) In the case of persons retiring before attaining the age of 55 years and who are re-employed, pension (including pension equivalent of gratuity and other forms of retirement benefits) shall be ignored for initial pay fixation to the following extent.
(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 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.”
8. The respondent had been given an option whereby he had opted for
the minimum scale of pay, which was paid to the Clerk and therefore, his
pay had been rightly fixed as per the option read with Order 4(a) of the
Rules. The learned counsel had further submitted that while allowing the
writ petition, the High Court had not considered the aforestated facts at all.
The High Court did not look into the fact that an option had been given to
the respondent-employee and his pay had been fixed only as per the option
exercised by him and as per the provisions of Order 4 of the Orders. It had,
therefore, been submitted that the view taken by the Tribunal, confirming re-
fixation of pay was correct and the High Court ought not to have disturbed
the same by allowing the writ petition. It was, therefore, submitted that the
order dated 20th March, 2009 of the High Court should be quashed by
allowing the appeal.
9. On the other hand, the learned counsel appearing for the respondent-
employee had at the first instance submitted that the respondent was not
having a copy of the option and he was not aware about the option so
exercised. He had submitted that the pay had rightly been fixed by the order
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dated 2nd September, 1992 and it ought not to have been re-fixed to the
prejudice of the employee after six years. He had, therefore, submitted that
the view taken by the High Court was correct. He had further submitted that
perhaps the respondent might have to make some payment to the appellant-
employer as according to the employer, the respondent had been paid more
salary on account of incorrect pay fixation. He had also submitted that
recovering the salary so paid would be unjust and therefore, in any case,
nothing should be recovered from the respondent-employee.
10. Upon hearing the learned counsel and upon perusal of the option form
dated 18-7-1990, in our opinion, the High Court was in error while allowing
the petition because it is clearly revealed from the option form that the
respondent had agreed to get his pay fixed as per the minimum of pay in the
pay-scale of the Clerk, the post to which he had been re-employed. It is
pertinent to note that the respondent has been getting regular pension from
the Indian Army for his past services rendered to the Indian Army. As per
the provisions of the Orders and as per the option exercised by the
respondent, service rendered by the respondent to the Indian Army cannot be
taken into account for the purposes of his pay fixation as the respondent
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
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Indian Army. If nothing has been deducted from the pension of the
respondent upon being re-employed and as the respondent would continue
to get his pension and other benefits from the Army for his past services, in
our opinion, the High Court was not right while permitting the respondent
to get his higher pay fixed by taking into account the services rendered by
the respondent to the Indian Army. Even from sound common sense, it can
be seen that for the past service rendered to the Indian Army, the respondent
is getting pension and other perquisites which a retired or discharged soldier
is entitled to even after being re-employed. The respondent would,
therefore, not have any right to get any further advantage in the nature of
higher salary or a higher pay scale, especially when nothing from his salary
was being deducted on account of his getting pension or perquisites from the
earlier employer.
11. In view of the aforestated position, in our opinion, the Tribunal was
absolutely right in coming to the conclusion that the pay fixation under the
order dated 13th October, 1998 was correct because a mistake was committed
in the earlier pay fixation under the order dated 2nd September, 1992.
12. Though a submission had been made on behalf of the respondent that
no amount should be recovered from the salary paid to the respondent, the
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said submission can not be accepted because if any amount had been paid
due to mistake, the mistake must be rectified and the amount so paid in
pursuance of the mistake must be recovered. It might also happen that the
employer might have to pay some amount to the respondent as a result of
some mistake and in such an event, even the appellant might have to pay to
the respondent. Be that as it may, upon settlement of the account, whatever
amount has to be paid to the respondent employee or to the appellant
employer shall be paid and the account shall be adjusted accordingly.
13. For the aforestated reasons, we are of the view that the High Court
was not correct in allowing the writ petition. We quash and set aside the
order passed by the High Court so as to restore the order passed by the
Tribunal and give effect to the pay fixation order dated 13 th October, 1998.
The appeal stands disposed of as allowed with no order as to costs.
……..…………......................J.
(ANIL R. DAVE)
…….........................................J (DIPAK MISRA)
New Delhi November 01 , 2013.
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