ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR. TA No.1139 of 2010 (arising out of C.W.P. No.8469 of 2004) Versus

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1 1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR TA No.1139 of 2010 ( C.W.P. No.8469 of 2004) Kishan Singh Union of India & others For the petitioner For the Respondent(s) Versus : Mr.Arun Singla, Advocate : Mr.S K Sharma, Sr.PC...Petitioner Respondent(s) CORAM:JUSTICE PRAKASH KRISHNA, JUDICIAL MEMBER AIR MARSHAL (RETD) NARESH VERMA, ADMINISTRATIVE MEMBER ORDER The present T.A.No.1139 of 2010 was, originally, filed as CWP No.8469 of 2004 in the High Court of Punjab & Haryana and has come to this Tribunal by way of transfer. The petitioner has inter alia prayed for the following reliefs:- (i) (ii) To issue a writ of certiorari quashing the orders dated and (Annexures P-4 & P-7, respectively), passed by Respondent No.3; To issue a writ of mandamus, directing the respondents to pay Dearness Allowance to the petitioner on pension w.e.f , which was wrongly stopped by Respondent No.3, with interest; (iii) To issue a direction to the respondents to refund Rs.10,209/-, wrongly recovered from the petitioner on account of the impugned action of the respondents; and

2 2 2. The impugned orders (Annexures P-4 & P-7), are to the following effect:- Annexure P-4: It is intimated that Ex.No , Nk Kishan Singh is employed in SPN College Mukerian Distt. Hoshiarpur as Mali and his pay has been fixed as Rs with initial start of 2620/- which is not in minimum of the pay scale. As such he is not entitled for DA on pension in accordance with Govt. of India No.45/73157 P & P to (G) dt of 7(i) 95/D (Pension/ Service/99 dt and even no. dt Annexure P-7: In accordance with the provision laid down in the GOI Min of Personnel, Public Grievances and Pension Deptt. of Pension & Pensioners Welfare OM No.45/73/97-P & PW (G) dt the ex. pensioner Nk Kishan Singh is not entitled for dearness relief on pension as his basic pay at initial stage on reemployment was fixed Rs i.e. more than the minimum of the pay scale. Re individual may be advised not to process matter in future. 3. Brief facts of the case are that the petitioner joined the Indian Army on and was discharged from service on On , he got re-employed with Respondent No.4 in the pay scale of Rs On recommendations of the 5 th Pay Commission, the said scale was revised and he was placed in the revised scale of Rs w.e.f The Govt. of India, Ministry of Personnel issued O.M. dated (Annexure P-1), regarding payment of Dearness Relief to the reemployed pensioners/ employed family pensioners. In this regard, the Ministry of Defence also issued letter dated (Annexure P-2). According to these instructions, the pay of re-employed pensioners was required to be fixed at the minimum of the pay scale of the post in which they get re-employed.

3 3 5. Pursuant to the above instructions, the Pension Disbursing Authorities at different quarters issued notices for furnishing the requisite certificate in the specified proforma certifying fixation of pay of the concerned re-employed pensioners/ employed family pensioners at the minimum of the pay scale. Such a notice was issued by the Pension Disbursing Authority of the petitioner as well and in pursuance thereof, the requisite certificate (Annexure P-3) was submitted by Respondent No.4 to the Pension Disbursing Authority duly certifying that the pay of the petitioner was fixed at the minimum of the pay scale of the post in which he had been initially re-employed after his retirement from the Central Govt.. Respondent No.3, however, issued the impugned order dated (A-4) stating that the pay of the petitioner having fixed in the pay scale of Rs with initial start of Rs.2,620/- was not at the minimum of the scale and, as such, he is not entitled to payment of Dearness Relief on pension. In view of this, Respondent No.3 stopped paying Dearness Relief on pension to the petitioner w.e.f and also made recovery of the amount of Dearness Relief already paid to the petitioner. 6. The grievance of the petitioner is that stoppage of payment of Dearness Allowance and recovery of the amount already paid to him in this regard, is illegal, arbitrary, unjust, unfair and malafide besides being contrary to the rules, regulations and instructions on the subject. Despite repeated requests/ representations made, the respondents are adamant to restore the same to him. Hence the present proceedings and the reliefs prayed for, which deserve to be granted.

4 4 7. The case of the petitioner is that his claim is squarely covered under instructions of the Government and that the Ministry of Defence (Annexures P-1 & P-2) and, accordingly, he is entitled for payment of Dearness Relief on pension. He was appointed with the initial minimum scale and was holding a post below the rank of a Commissioned Officer without getting any benefit of the Army Service. The action of the respondents in stopping payment of Dearness Relief on pension and making recovery of the amount paid is per se illegal and arbitrary. 8. The respondents have filed a written statement. They have justified their stand with reference to the instructions at Annexure P-1 according to which payment of Dearness Relief is admissible to those re-employed pensioners whose pay is fixed at the minimum of the pay scale of the post of reemployment, ignoring the entire pension and that in other cases of reemployment, dearness relief shall be payable on pay plus the non-ignorable portion of pension as per the earlier position Similarly, as per Annexure P-2, the Dearness Relief on pension is admissible to those re-employed pensioners whose pay is fixed at the minimum of scale and who fulfill the criteria laid down in Para II of that letter. In the instant case, the pay of the petitioner, initially fixed at Rs.770/- in the re-employment pay scale of Rs and, thereafter, on revision of the said scale at Rs.2620/- P.M. in the re-employment scale of Rs , was not at the minimum of the scale as on Therefore, payment of Dearness Relief on pension was correctly stopped being impermissible in terms of Annexure P-1 which does not deserve to be restored. Such claim was also considered and rejected in the case of Ex.Rfn Inderjit

5 5 Singh, No Since the petitioner is not entitled to such a claim, his case has also been rejected on clarifications received from CDA(PB) Meerut Cantt. and JCDA(PD Jalandhar Cantt. Therefore, the petition deserves to be dismissed. 9. We have heard learned counsel for the parties and have examined the record. 10. It is quite clear from the facts of the present case that parties on both sides have placed reliance on the instructions at Annexure P-1, dated and P-2, dated to justify their respective stand. The petitioner claims that his case is covered under those instructions, whereas, the respondents, on the other side, have justified stoppage of payment of Dearness Relief on pension to the petitioner on the basis thereof. 11. On consideration of the rival contentions, we find that the substantive question involved in the present case is as to whether the petitioner in the facts and circumstances, mentioned above, is entitled to payment of Dearness Relief on pension or not and if reply to the said question is in the affirmative, whether the respondents are liable to refund the recovered amount to the petitioner? 12. The very issue, as involved in the present case, was considered by a Division Bench of Hon ble Punjab & Haryana High Court in CWP No.7245 of 2004 (Ex-Naik Jang Masih vs. Union of India & others), decided on The relevant portion from the said decision is extracted below:-

6 6 On the other hand, Standing counsel for Union of India argued that the petitioner was not entitled to the relief claimed, as on his re-employment w.e.f in the rank of Constables, he had been placed in initial start of Rs.420/- in the pay scale of Rs , which cannot be said to be the minimum of the pay scale. Learned counsel further argued that the petitioner had concealed the fact of his re-employment and, therefore, he is not entitled to any discretionary relief from this Court. Learned counsel for respondent No.4 conceded before the Court that the petitioner, on his re-employment as Constable, was placed at the initial start of Rs.420/- in the pay scale of Rs /-, by ignoring his previous army service, as all the Constables had been granted the same initial start and it was for all purposes the minimum of the pay scale. It is evident that the initial start of Rs.420/- per month in the pay scale of Rs was applicable to all Constables of Telecommunication Wing of the Punjab Police (respondent No.4) including ex-servicemen and the petitioner was not granted any increment on account of his previous army service. This factual position is borne out from a bare reading of Annexure P.4, the stand of respondent No.4 in their written statement and at the time of arguments. In fact, it has been admitted that the Punjab Government vide Punjab Civil Services (Revised Pay Rules 1988) issued vide notification dated , while providing for revision of pay scale of various categories of Personnel, had revised the pay scale of all Constables in the Police Department from Rs /- with initial start of Rs.420/- to Rs /- with initial start of Rs.1,000/-, hence establishing that the minimum of the pay scale always started with one increment. Therefore, the stand of the respondent-union of India that the petitioner was not placed in the minimum of pay scale, on his re-employment, is not sustainable. As a sequel, it is held that the petitioner was placed in the minimum of pay scale on his re-employment w.e.f A bare reading of para 3(a) of Instructions dated (Annexure P.2) reveals that recommendations of 5 th Central Pay Commission were accepted and it was provided that PBORs Pensioners like the petitioner, were entitled to be paid Dearness Relief on their army pension at the rates applicable from time to time provided they were placed in the minimum of the pay scale of the post, on which they were re-employed i.e. no benefit of their previous army service was granted while fixing their pay.

7 7 Learned counsel for the respondents-union of India has more or less conceded that the petitioner is entitled to the grant of Dearness Relief under the Instructions dated once this Court has held that the petitioner was, in fact, re-employed w.e.f in the minimum of the pay scale. Thus, we hold that the petitioner fulfils the laid down criterion and hence is entitled to the grant of Dearness Relief in terms of the instructions dated (Annexure P/2) w.e.f. 18/7/1997. The date, the instructions were enforced. 13. We further find that the above decision was followed by a Single Member Bench of the High Court which, on the same analogy, allowed similar relief prayed for in CWP No.6608 of 2007 on in the case titled Narinder Singh vs. Union of India & others. 14. In view of the above, in the instant case as well we have no option but to hold that the stand of the respondents that the petitioner was not placed in the minimum of pay scale on his re-employment, is not sustainable and as a sequel thereto it is held that the petitioner was placed in the minimum of pay scale on his re-employment. The impugned action of the respondents is not sustainable. It is held that the petitioner herein joined the post of Mali on re-employment at the minimum of the pay scale of that post and, therefore, is entitled to payment of Dearness Relief on pension from the date of such re-employment ab initio. The impugned recovery made by the respondents is also held to be illegal. 15. In view of the above findings, the impugned orders (Annexures P-4 and P- 7) are hereby quashed and set aside and the instant T.A. is allowed with the following orders/ directions to the respondents:-

8 (i) 8 To refund the amount of Rs.10,209/- wrongly recovered from the petitioner forthwith and, in any case, in a month from the date of pronouncement of this order with Rs.6% per annum from the date of its recovery, till the date of actual payment thereof; and (ii) To calculate the arrears of Dearness Relief payable to the petitioner for the remaining period by virtue of this order and to disburse the same to the petitioner within three months from the date of receipt of a certified copy of this order by the learned counsel for respondents, failing which, the respondents shall be liable to pay 8% per annum from the date of this order, till the date of actual payment of this amount. 16. The TA is allowed in terms of the observations and directions, given above. (JUSTICE PRAKASH KRISHNA) Chandimandir (AIR MARSHAL(RETD)NARESH VERMA) Dated: `bss Whether the judgment for reference to be put on internet Yes/ No