THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.No.1335 of 2007 ORDER: (per the Hon’ble Sri Justice Vilas V. Afzulpurkar) The respondent herein had questioned the proceedings of the Audit Officer (Bills), Indian Audit and Accounts Department, Accountant General (Audit) I, A.P., Hyderabad, dated 1/4-3-2002 in O.A.No.474 of 2003 on the ground that as per the Government of India Office Memorandum No.45/73/97- P & PW (G), dated 02-07-1999, the President had approved the recommendation of the Government, which reads as follows:- “Insofar as re-employed pensioners are concerned, the entire pension admissible is to be ignored at present only in the case of those civilian pensioners who held posts below Group ‘A’ and those ex-servicemen, who hold posts below the ranks of Commissioned officers at the time of their retirement. Their pay, on re-employment is to be fixed at the minimum of the pay scale of the post in which they are re-employed. Such civilian pensioners will consequently be entitled to Dearness relief on their pension in terms of the recommendations of the 5th Central Pay Commission at the rates applicable from time to time.” Learned counsel for the respondent had also relied upon the Government of India’s Decisions in M.F., O.M.No.F.4(3)-E.111/82, dated 13-12-1983, which stipulates about quantum of pension to be ignored in fixing pay of pensioner on re-employment. As per the said OM, the Government of India had decided that in case of those ex-servicemen retiring before attaining the age of 55 years, pension as indicated below may be ignored in fixing their pay on re-employment in civil posts. (i) In the case of serving officers, the first Rs.250 on pension; (ii) In the case of persons below Commissioned Officers’ rank, the entire pension. Basing of the above decisions of the Government of India, the respondent questioned the proceedings, dated 1/4-03-2002, wherein recovery was sought to be made against the respondent for Rs.84,524/- on the ground that the said amount was excess paid to him. Learned counsel for the respondent has also placed reliance upon the orders of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short “the Tribunal”), in O.A.No.124 of 2001, dated 25-03-2003 and O.A.No.1447 of 1993, dated 06-12-1994, and submitted that deduction of entire pension as ordered in the aforesaid OAs. by the Tribunal has also been implemented by the petitioners. The Tribunal had considered the matter in the light of the rival contentions and based on the OM extracted above, the Tribunal was of the view that since the respondent was below the category of commissioned officers’ rank, entire pension is liable to be ignored. The Tribunal had also quoted its order in O.A.No.1447 of 1993, wherein similar pension was extended to the applicant therein and it was further followed by another judgment of the Tribunal in O.A.No.446 of 2003, dated 03-05-2006 and the case of the respondent herein is similarly placed as covered by the aforesaid O.As. The learned Assistant Solicitor General contended that the said orders passed by the Tribunal in the earlier OAs. referred to above, similar question came up before the Tribunal in O.A.No.1514 of 2002, which was also decided in favour of the employee on 29-07-2003 holding that Department of Personnel and Training’s OM, dated 19-11-1997, insofar as it operates to deduct the enhanced pension from pay is without justification and unreasonableness and accordingly, declared as ultra vires. The learned Assistant Solicitor General states that writ petition No.5026-29/04 has been filed against the aforesaid order of the Tribunal before the High Court of Delhi. However, the present status thereof has not been stated though we have adjourned the matter earlier for the said purpose. A conjoint reading of the decisions of the Government of India as contained in OM, dated 02-07-1999, referred to above and various orders referred to above, leaves hardly any doubt that in case of retired ex- servicemen, who held posts below the ranks of commissioned officers at the time of their retirement, the entire pension is liable to be ignored and their pay has to be fixed at the minimum of the pay scale in the post in which they are re-employed. In the present case, though the respondent has been employed in the civil post after retirement, his pay was fixed at Rs.1,400/- per month and his pension of Rs.608/- has been calculated, after deducting ignorable portion of Rs.15/- from pension deducted originally of Rs.623/- and thereby, his pay was finally fixed at Rs.792/- per month (Rs.1400-608). Since the said action of the petitioners is not in accordance with OMs., referred to above, the Tribunal has rightly held the respondent is entitled for pay fixation as per the said OM and consequently, the deduction of pay against the respondent was rightly found not justified. The Tribunal also noticed that orders of recovery were passed without notice and opportunity to the respondent. It is also to be noted that the O.As., which were referred to above, relied upon by the respondent before the Tribunal, had attained finality. In the present case, the impugned order has also been implemented by the petitioners. In view of the over all circumstances, we see no error in the impugned order of the Tribunal and it does not require any interference. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J ________________________ VILAS V. AFZULPURKAR, J Date: 09-04-2010 Prv