C. W. P. No.11725 of 1999 [1] THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No.11725 of 1999 Date of Decision: 16 - 10 - 2008 Avtar Singh and others ....Petitioners v. State of Haryana and another ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Pritam Saini, Advocate for the petitioners. Mr.Lokesh Sinhal, Addl.A.G., Haryana for respondent No.1. Mr.Anurag Goel, Advocate for respondent No.2. *** KANWALJIT SINGH AHLUWALIA (ORAL) The present petition has been filed by the petitioners who were re-employed as Clerks in Kurukshetra University, Kurukshetra. A table has been drawn in para 2 of the petition giving the dates of joining the petitioners in Armed Forces and re-employed in Kurukshetra University. It would be apposite here to reproduce the table drawn by the petitioners:- Sr.No. Name of Persons Date of Date of Date of joining joining in retirement in K.U. Armed from Armed Forces Forces -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- 1. Avtar Singh 20.02.79 26.11.81 2. Balwant Singh 15.01.66 31.01.90AN 23.05.90AN 3. Jai Gopal 20.11.63 01.12.87 28.05.90 C. W. P. No.11725 of 1999 [2] 4. Sunder Ram 11.9.63 30.09.89AN 28.05.90 5. Joginder Walia 20.11.74 01.12.89 09.04.90 6. Balbir Singh 29.04.63 30.04.89AN 29.11.89 7. Om Parkash 18.02.65 28.02.86AN 30.11.89 8. Baldev Singh 29.11.63 01.12.87 04.05.89 9. Ram Karan 29.09.80 03.03.89 29.11.89 10. D.S.Kundu 26.08.69 01.08.87 02.12.89 Government of India had issued instructions on 11.4.1963, Annexure P-1. These instructions were regarding the fixation of pay of ex- combatant Clerks who have been employed as LDC/Junior Clerks in the Civil Departments. It has been specifically stated that pension or pension equivalent to gratuity, which does not exceed Rs.15/- per annum will be ignored. On 1.7.1992 Finance Department of Government of Haryana issued instructions Annexure P-2. Para 3 of these instructions reads as under:- “3. These orders will take effect from the date of issue and the existing limit of military pension to be ignored in fixing of pay of re-employed military pensioners will, therefore, cease to be applicable to cases of such pensioners as are re-employed on or after the date of issue of these orders. In the case of those military pensioners who are already on re-employment the pay may be refixed on the basis of these orders with immediate effect provided they opt to come under these orders. If they so opt, their terms would be determined afresh as if they have been re-employed for the first time from the date of these orders. The option should be exercised in writing within a period of four months from the date of issue of these orders. The option once exercised shall be final.” One Krishan Thakran who was employed as Clerk in Government Senior Secondary School, Sohna and was an ex-serviceman preferred Civil Writ Petition No.11351 of 1995 which was allowed by a C. W. P. No.11725 of 1999 [3] Division Bench of this Court on 18.12.1995 with the following observations:- “It is true that the petitioner is not entitled to the benefit of total military service for the purpose of seniority but so far as the fixation of pay of ex-combatant clerk is concerned, the same is governed by the instructions issued by the Government of India on 11.4.1963. The respondents have not contested the claim made by the petitioner that the instructions contained in Annexure P4 are applicable in his case. This being the position, the pay of the petitioner has to be fixed in accordance with Annexure P4 and as that was not done, we deem it proper to issue a mandamus to the respondents to consider and decide the case of the petitioner for fixation of his pay in terms of the office memorandum Annexure P4. This action be taken by the respondents within three months of submission of a certified copy of this order. We order accordingly. The writ petition is allowed in the manner indicated above.” Thereafter, the Government of India in consonance with the orders passed by this Court in Civil Writ Petition No.11351 of 1995 issued instructions. Accordingly, vide Annexure P-5 pay of one Des Raj, Clerk, office of Deputy Commissioner, Kurukshetra was refixed after re- employment. Thereafter, Government of Haryana issued another instructions on 16.2.1999, Annexure P-6. Mr.Pritam Saini, learned counsel appearing for the petitioners has drawn my attention to Clause 2(ii) of the instructions dated 16.2.1999, Annexure P-6 which reads as under:- “2(i) xx xx xx xx xx xx xx xx (ii) The initial pay in such cases shall be fixed in the time scale of the re-employed posts at a stage equivalent to the C. W. P. No.11725 of 1999 [4] stage that would have been reached by putting in the civil posts, the number of completed years of service rendered in the post in the armed forces. The pay so fixed will not be restricted to the “pre-retirement pay”.” He has also referred to Clause 2(iv), (v) and (vi) of Annexure P-6 which read as under:- (iv) Pension and Pension equivalent of gratuity shall be deducted from the pay fixed under this rule after ignoring Rs.15/- thereof and only the net pay is payable. (v) If the resultant amount does not correspond to a stage in the scale applicable to the re-employed post, pay may be fixed at the next lower stage and the difference allowed as personal pay to be absorbed in future increment of pay. (vi) Where the pay in such cases is fixed below the minimum of the pay scale of the re-employed post, as a result of adjustment of amount of pension drawn by him from the Army in excess of Rs.15/- per month, increase in the pay may be allowed after the each year of service at the rate of increment admissible as if the pay had been fixed at the minimum till the minimum of the scale is reached. Thereafter, subsequent increments, may be granted in the scale of the re-employed post in the usual manner.” Relying upon this, counsel states that a grave error has been committed by deducting the amount of pension from the salary refixed. In the reply, in preliminary objections, it has been stated as under:- “The petitioners are seeking quashing of Government of Haryana instructions dated 16.2.99 (Annexure P-6). However, these instructions are only a clarification of the factual position as reflected in Government of India circular dated 31-7-86 by which Central Civil Services (Fixation of Pay of Re-employed pensioners) Orders 1986 have been promulgated (Annexure R- I). Order 16 deals with ex-combatant clerks and Government C. W. P. No.11725 of 1999 [5] of Haryana instructions dated 16-2-99 are based solely on this order.” Instructions issued by the Government of India, Annexure R-I have been perused by me with the help of counsel for the parties. Interpretation of Clause 16 of these instructions is called for. Clause 16 specifically states that Ex-Clerks on re-employment as Clerks or Lower Division Clerks on civil posts shall have the option to get their pay fixed under Orders 4 and 5 in accordance with the procedure indicated in sub para 2 to Clause 16 which reads as under:- “(2) Service rendered as Combatant Clerks and Storemen in Armed Forces shall be treated as equivalent to service as Lower Division Clerks/Junior Clerks and Storemen respectively in Civil posts, irrespective of the pay drawn in those posts in the Armed Forces. The initial pay in such cases shall be fixed in the time scale of the re- employed posts at a stage equivalent to the stage that would have been reached by putting in the civil posts, the number of completed years of service rendered in the posts in the Armed Forces. The pay so fixed will not be restricted to the 'pre-retirement pay'. The fixation of pay in these cases shall be done by invoking the provisions of Fundamental Rules 27.” Sub-clause (2) of Clause 16 of instructions Annexure R-1 is to be read along with the Explanation (ii) which states that pension as defined in Order 3(1) above shall be deducted from the pay fixed under this rule after ignoring Rs.15/- thereof and only the net pay is payable. Relying upon the criteria and formula devised in the instructions of the Government, salary of the petitioners has been fixed to the extent that the amount of pay is to be re-fixed after deducting the pension. It is evident that only pension upto Rs.15/- which is meager has to be ignored. Therefore, the rest of the C. W. P. No.11725 of 1999 [6] amount of pension is not available. Since it is the stand of the respondent- State that instructions dated 16.2.1999, Annexure P-6 are clarificatory and are in consonance with the instructions, no directions as prayed are called for. Accordingly, the present petition is disposed off. ( KANWALJIT SINGH AHLUWALIA ) October 16, 2008. JUDGE RC