High Court · 2012

lso heard Mr. B.R. Dey, learned senior counsel for the respondents. 2. By way of this writ petition, the petitioner seeks benefit of th e circular dated 2.6.1989 and challenges the order dated 5.6.2003 passed by the Respondent No.3, rejecting the claim of the petitioner for pay protection/re-fix ation in terms of the aforesaid circular. Brief narration of the facts is considered necessary. 3. The petitioner was serving in the Life Insurance Corporation of 4. India ( (cid:28)the Corporation (cid:29)) and retired from service on attaining the age of super annuation on 31.12.1997 in the rank of Assistant. He had served the Indian Army as an Emergency Commissioned Officer from 1964 to 1969, whereafter, he was relea sed from his service in the Army. He was appointed as an Assistant in the Corpor ation on 17.3.1970 in the scale of Rs.249 - 500/- p.m. At the time of release fr om the Army, the petitioner was drawing pay and allowance totalling Rs.860/- p.m . as per the Last Pay Certificate. The Corporation had issued a circular dated 2 .6.1989 framing revised instructions regarding the methodology and manner of fix ation of pay of Ex-servicemen consequent upon their re-employment in the Corpora tion. As per the said circular, the last pay drawn by the Ex-servicemen in the Army was to be protected in the employment in the Corporation. When option was c alled for from the Ex-servicemen, the petitioner exercised his option to have hi s salary re-fixed as per pay fixation formula contained in the circular dated 2. 6.1989. According to the petitioner, since his pay in the Corporation was lower than the last pay drawn in the Army, as per the afore mentioned circular, the i ncremental difference that would emerge on such fitment should be added to his basic pay as on date of re-employment and that arrears were required to be relea sed accordingly effective from 1.1.1988. Petitioner contends that the authoriti es in the Corporation had worked out a formula as per the aforementioned circula r vide departmental communication dated 14.11.1990 and had fixed his salary at R s.4366/- thereby conferring a financial benefit of Rs.1880/- over the pay drawn by him effective from 1.1.1988. He, therefore, claims pay protection of Rs.1880/ - p.m. w.e.f. 1.1.1988. His claim was, however, rejected by the Corporation by o rder dated 22.3.1991. At this stage, the petitioner approached this Court in Civil Rul 5. e No.6760/1998. This Court by order dated 13.2.2003 disposed of the said writ p etition directing the petitioner to approach the Corporation by filing a fresh a pplication, whereafter, the competent authority of the Corporation would conside r the case of the petitioner for re-fixation of his salary thoroughly in accorda nce with law and also in the light of the circular dated 2.6.1989, specially, cl ause 4 thereof as well as the departmental communication in this regard. 6. When the petitioner submitted application before the competent a uthority in terms of the aforesaid order of this Court, the claim of the petitio ner was considered but rejected by order dated 5.6.2003. 7. sent writ petition. 8. The Corporation has filed the counter affidavit. In the counter affidavit, the Corporation has stated that the petitioner was initially recruit ed as a general employee in the Corporation. He was not recruited as an Ex-servi ceman. While serving in the Corporation, the petitioner was granted lien to joi n the Army as Emergency Commissioned Officer. After his release from the Army, he was allowed to re-join the post which he was holding prior to joining the Arm y as Emergency Commissioned Officer and was granted pay and allowances which he would have drawn had he not joined the Army, but continued in the Corporation. T he contention of the Corporation is that the petitioner is not an Ex-serviceman and, therefore, is not entitled to benefit as per the circular dated 2.6.1989. F urther contention of the Corporation is that the petitioner cannot take advantag e of inter-departmental communication between the officials of the Corporation a Aggrieved, the petitioner has moved this Court by way of the pre s such communication was part of the decision making process while finalizing th e claim of the petitioner. Additionally, it is stated that as the petitioner was enjoying the maximum in the revised pay scale as on 1.1.1988, there was no scop e to consider addition either to his basic pay or in his personal allowance in t erms of the above circular dated 2.6.1989. The respondents have stated that the case of the petitioner in the light of the aforementioned circular and the order of this Court was thoroughly examined whereafter it was found that he was not e ntitled to any benefit. 9. In his rejoinder affidavit, the petitioner reiterated his status as Ex-serviceman. He, however, admitted that he had initially entered the servi ce in the Corporation as Assistant in May, 1961, but subsequently he was release d by the Corporation in the public interest to enable him to join the Indian Arm y on Short Service Commission. After his release by the Army, he rejoined the Co rporation as Assistant. The petitioner has contended that notwithstanding the ab ove, his status as Ex-serviceman cannot be denied. 10. Learned counsel for the petitioner referring to various clauses of the circular dated 2.6.1989 has contended that the petitioner would come with in the definition of Ex-serviceman as provided in the circular and therefore sub mitted that the petitioner would be entitled to the benefit of the aforesaid cir cular which provides for protection of pay of Ex-servicemen on their re-employme nt. If it is found that the pay fixed on re-employment is lower than the last pa y drawn by the Ex-serviceman in the Army, then clause 4 would come into play. A s per clause 4 of the said circular, if the basic salary determined on such comp arison is higher than the basic salary at which the employee was fitted on the d ate of re-employment, incremental difference that would emerge on such fitment would be added to the individual’s basic pay as on 1.1.1988 and arrears would be released accordingly from 1.1.1988 only. He, therefore, submits that necessary direction may be issued to the Corporation to extend the benefit of the said cir cular to the petitioner. In support of his submission, the learned senior counse l refers to and relies on a decision of the Hon’ble Supreme Court in the case of O.K. Udayasankaran & Ors v. Union of India & Ors, reported in AIR 1996 SC 1901. Learned senior counsel for the respondents on the other hand, su 11. bmits that the petitioner cannot be termed as an Ex-serviceman. He was not emplo yed in the Corporation as an Ex-serviceman. In the course of his employment, on being released by the employer, he had joined the Army on Short Service Commissi on and after completion of the period, he rejoined his parent employment. That being the position, he submits that the rejoining of the petitioner in the Corpo ration cannot be termed as re-employment of Ex-serviceman in terms of the circul ar dated 2.6.1989. He also places reliance on the decision of the Apex Court in the case of O.K. Udayasankaran & Ors (supra). Rival submissions have been considered. 12. 13. At the outset, it may be relevant to dilate on the relevant prov isions of the circular dated 2.6.1989. The said circular was issued as revised i nstructions on the subject of fixation of pay of Ex-serviceman employees includi ng the Emergency Commissioned Officers on their re-employment in the Corporation . As per clause 1, the instructions contained in the circular would hold the fie ld superseding all the existing instructions in this regard. The term (cid:28)Ex-servi ceman (cid:29) has been defined in clause 2, which is quoted hereunder :- (cid:28)(2) ’EX-SERVICEMAN \\’ TO INCLUDE : The word ’XSM’ wherever used in these instructions shall refer to all categories of Ex-servicemen including released Emergency Commissioned Officers, Short Serv ice Commissioned Officers and Retrenched Commissioned Officers unless otherwise specified. (cid:29) Clause 3 provides for pay fixation on re-employment. Relevant p

14. rovisions of clause 3 are as under:- (cid:28)3.1 um of the scale in which he is appointed. However, if the gross salary as per ’Y ’ below at the minimum of the scale does not produce an amount equal to or more Basic Salary of a re-employed Ex-serviceman shall be fitted at the minim vii) 3.4 : i) ii) iii) iv) 3.5 than the last drawn gross salary as per ’X’ below in the Defence Services, addi tional increment/s as may be necessary, over minimum of the scale shall be allow ed to make up the difference and, thus, provide protection to the last drawn gro ss salary. 3.2 If in exceptional cases, fitment, even at the ceiling of the entry grade does not provide full protection, personal allowance shall be granted which may be absorbed against future increase in emoluments. ’X’ i.e. last drawn gross salary in the Defence Service at the time of r

3.3 elease shall be the aggregate of the following components : i) Pay as defined in sub-para 3 (ix) of the Dept. of Personnel & Training O .M. No.3/1/85-Estt (P II) dated 31.7.1986. Relevant extracts of the O.M. are gi ven in the Appendix ’A’; ii) iii) iv) v) vi) Dearness Allowance; Additional Dearness Allowance; Interim Relief ; City Compensatory Allowance; Compensation in lieu of Quarters (C.I.L.Q)/ House Rent Allowance; Ration Allowance. ’Y’ i.e. gross salary in L.I.C. shall be the aggregate of the following Basic salary in which the Ex-serviceman is re-employed; Dearness Allowance; House Rent Allowance; City Compensatory Allowance. Components of last drawn salary in the Defence Services (’X’) including such allowances as are indicated at (3.3) above are to be taken into account on the basis of discharge certificate/Last Pay Certificate of the individual emplo yee. If the Last Pay Certificate does not show details of such allowances e.g. R ation Allowance or C.I.L.O., the same may be ascertained as per rankwise entitle ment with proper proof from the concerned employee. In case of difficulties in t his regard, reference may be made to Central Office with full details. The component of pension will not be considered for pay fixation. 3.6 3.7 If the Ex-serviceman was re-employed within a period not exceeding 3 yea rs from the date of discharge from the Defence Services ’X’ (Last Drawn Salary i n Defence Services) to be compared shall be as drawn on the date of release of t he Ex-serviceman whereas the ’Y’ (Starting salary in L.I.C.) to be compared shal l be as on date of re-employment in L.I.C. (cid:29) 15. Clause 4 may now be examined. It provides that if the last salar y determined is higher than the basic salary at which the employee was fitted on the date of re-employment, the incremental difference that would emerge out on such fitment would be added to individual’s basic pay as on 1.1.1988 and the a rrears released accordingly from 1.1.1988 only. Clause 4 along with the example appended thereto is extracted hereunder :- If the basic salary determined on such comparison is higher than the bas (cid:28)4. ic salary at which the employee was fitted on the date of re-employment, increme ntal difference that would emerge out on such fitment would be added to individ ual’s basic pay as on 1.1.1988 and arrears released accordingly from 1.1.1988 on ly. Example : Suppose an Ex-serviceman’s basic salary as on 1.11.1979 i.e. the date of re-empl oyment was fitted at Rs.175/- in the Assistant’s scale, his basic salary determi ned on the basis of above formula in para 3.1 comes to Rs.195/- thus resulting i n 2 more incremental stages in the Assistant’s scale. He continued in the same i .e. Assistant’s scale on 1.1.1988 and was drawing basic salary of Rs.850/-. He i s due to get benefit of two increments. So, his basic salary as on 1.1.1988 woul d be stepped up from Rs.850/- to Rs.970/-. He may be paid arrears of difference in salary from 1.1.1988.No arrears are to be paid for the period before 1.1.1988 . Similar procedure is to be adopted for those who entered in the scale of Offic ers or Development Officers and continued in the same scale on 1.1.1988. (cid:29)

16. The Apex Court had the occasion to examine the aforesaid scheme in O.K. Udayasankaran & Ors (supra). The issue before the Apex Court was as to whether the benefit of the said circular should be given to those Ex-servicemen who were employed by the Corporation after 1.1.1988. The stand taken by the Corp oration was that the benefit of pay fixation was given only to those Ex-servicem en who were already employed in the Corporation prior to 1.1.1988 and that this benefit is not available to those Ex-servicemen who were employed in the Corpor ation after 1.1.1988. After examining various provisions of the circular, the A pex Court held that the Ex-servicemen employed prior to 1.1.1988 would be entitl ed to such benefit as the scheme of the circular particularly, paragraphs 3.8 an d 4 deals with the existing Ex-servicemen i.e. Ex-servicemen who had been employ ed prior to 1.1.1988 whether serving or not. While deciding the aforesaid case, the Hon’ble Supreme Court examined the scheme as framed by the Corporation and o bserved that since Ex-servicemen including released Emergency Commissioned Offic ers, Short Service Commissioned Officers and retrenched Commissioned Officers ar e relieved from military service at a comparatively young age, certain facilitie s had been given to them for re-employment in various Government and Public Sect or Undertakings including the Corporation. This is the real intent and purport of the circular dated 2.6.1989. 17. re quoted hereunder :- (cid:28)5. To resolve the dispute it is necessary to examine the scheme framed by the L ife Insurance Corporation on 2nd of June, 1989, for pay fixation which is in sup ersession of earlier existing scheme. Paragraph 3 deals with fixation of pay on re-employment of ex- servicemen in Life Insurance Corporation. Since ex- service men including released emergency commissioned officers, short service commission ed officers and retrenched commissioned officers are relieved from military serv ice at a comparatively young age, certain facilities have been given to them for re-employment in various Government and Public Sector Undertakings including th Paragraphs 5, 6 and 7 of the aforesaid judgment being relevant a e Life Insurance Corporation. 6. Under Paragraph 3.5 when the ex-serviceman is re-employed by the Life In surance Corporation he is normally fitted at the minimum of the scale for the po st to which is appointed. However, if his last drawn gross salary in Defence Ser vice as specified in Paragraph 3.3 was more than the gross salary which he will get in Life Insurance Corporation as specified in Paragraph 3..4 his salary to b e paid in Life Insurance Corporation is adjusted so that he does not get less th an his last drawn pay in the Defence Services. This adjustment is done as per Pa ragraph 3.1 adding to his minimum of the scale additional increments as may be n ecessary to make up the difference so that his last drawn gross salary is protec ted. This adjustment is made so as to protect the last drawn salary of ex-servic emen in the case of all re-employed ex-servicemen whether they were appointed pr ior to 1.1.1988 or subsequent to 1.1.1988. Having noticed the intent and purport of the aforesaid circular

7. Paragraph 3.7 however, provides that if an ex-serviceman was re-employed within three years from the date of his discharge from Defence Services then hi s last drawn salary in the Defence Services will be compared to his starting sal ary on the date of his re- employed in Life Insurance Corporation so as to adjus t the salary first drawn by him on the date of re- employment to equal the last drawn salary. (cid:29) 18. , let us now examine the claim of the petitioner. 19. The petitioner did not disclose in his writ petition that he was already in employment in the Corporation. Case that is projected by him in th e writ petition is that he had joined the Indian Army as an Emergency Commission ed Officer in the year 1964 and was released from the Army in July, 1969 whereaf ter he was appointed as an Assistant in the Corporation on 17.3.1970 as Ex-servi ceman (Paragraphs 3, 4 and 5 of the writ petition may be seen). Only when he wa s confronted by the respondents in the counter affidavit that he was originally recruited in the Corporation as a general employee and while he was in the emplo yment of the Corporation, he was released to enable him to join the Army on Shor t Service Commission in the national interest and after completion of his stint in the Army, he re-joined the Corporation in the said post which he had held ear lier that the petitioner in the rejoinder affidavit admitted that he was initial ly appointed in the Corporation as Assistant in May, 1961 and subsequently, he w as released by the Corporation in the public interest to enable him to join the Army in Short Service Commission. 20. Firstly, the petitioner did not disclose this fact in the writ p etition. By suppressing the relevant fact that he was already in employment in t he Corporation, the petitioner tried to project an altogether different case tha t his initial appointment in the Corporation was as an Ex-serviceman, which is f actually not correct. Secondly, in the considered opinion of this Court, the pe titioner cannot be termed as an Ex-serviceman for the purpose of the circular da ted 2.6.1989. He may be an Ex-serviceman in general terms but not so in terms of the aforesaid circular. The stand taken by the respondents in the counter affi davit that the petitioner cannot be termed as an Ex-serviceman, appears to be a correct understanding of the position. 21. In view of the aforesaid, this Court finds no good ground to acc ede to the prayer of the petitioner. Accordingly, the writ petition stands dism issed. Parties to bear their own costs.