IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.15539 of 2007 Date of Decision: February 02, 2009 Dharam Pal .....PETITIONER(S) VERSUS Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Harish Sharma, Advocate, for the petitioner. Mr. Namit Kumar, Advocate, for respondent Nos.1 and 3. Mr. H.S. Brar, Deputy Advocate General, Punjab, for respondent Nos.2 and 4. . . . AJAI LAMBA, J (Oral) This civil writ petition filed under Article 226/227 of the Constitution of India prays for issuance of a writ in the nature of certiorari for quashing Annexure P-2 dated 3.10.2006 which is a letter issued by respondent No.3. i.e. the Defence Pension Disbursing Officer, Patiala, directing recovery of Rs.1,28,829/- from the gratuity of the petitioner. Facts in brief are that the petitioner joined Indian Army as a Sepoy on 17.7.1967. The petitioner was discharged from the Army on the post CWP No.15539 of 2007 [2] of Havildar in March 1987 after having served for about 20 years. The petitioner was re-employed in Department of Telecommunication in Punjab Police on 2.6.1989 in the Pay Scale of 950-1800 (with initial start of Rs.1,000/- per month). The petitioner retired as Assistant Sub Inspector on 30.4.2006. Vide impugned order dated 3.10.2006, Annexure P-2, respondent No.3 informed respondent No.4 i.e. the Superintendent of Police, Telecommunication, Punjab, that a sum of Rs.1,28,829/- be recovered from gratuity of the petitioner as Dearness Allowance had been over-paid to the petitioner with effect from 2.6.1989 to 30.4.2006. Learned counsel for the petitioner has argued that recovery cannot be effected from the petitioner in view of the contents of Annexure P-3 i.e. Circular dated 15.9.1999 which came into effect from 18.7.1997. Learned counsel for the petitioner has further drawn the attention of the Court towards Division Bench judgment of this Court rendered in Civil Writ Petition No.7716 of 2004 (Ex.Naik Ramesh Chander vs. Union of India & Others) decided on 28.7.2005. Another judgment rendered by the Division Bench to which reference has been made is dated 1.9.2008 passed in Civil Writ Petition No.7245 of 2007 (Ex.Naik Jang Masih vs. Union of India & Others). CWP No.15539 of 2007 [3] Learned counsel for respondent Nos.1 and 3 states that there cannot be any dispute in regard to the applicability of the judgments, however, as per the pleadings contained in Para 7 of the petition, the petitioner would be entitled to Dearness Allowance only from 18.7.1997 i.e. the date of applicability of Annexure P-3 to 30.4.2006 i.e. the date of retirement of the petitioner. I have heard the learned counsel for the parties and considered the issue. Para 3 and 4.1 of Annexure P-3 read as under:- “3. The orders shall be effective from 18/7/1997. Applicability 4.1. It will be soon from the above O.M. dated 2/7/99 that as per recommendations of vth C.P.C. the payment of dearness relief should not be suspended where pay is fixed at the minimum of the pay scale during employment/ re-employment of family pensions/ pensioners.” Learned counsel for respondent Nos.1 and 3 has not been able to show as to how the scale, at the time of induction of the petitioner with respondent No.4, was not the minimum. Reference to judgment rendered in Ex.Naik Jang Masih’s case, in this regard is necessary. The relevant portion when extracted reads as under:- “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. 2.1.1989 in the rank of Constables, he had been placed in initial start of Rs.420/- in the pay scale of Rs.400-600/-, 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 CWP No.15539 of 2007 [4] 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.400-600/-, 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.400-600 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 20.1.1989, while providing for revision of pay scale of various categories of Personnels, had revised the pay scale of all Constables in the Police Department from Rs.400-600/- with initial start of Rs.420/- to Rs.900-1800/- 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. 2.11.1989. A bare reading of para 3(a) of Instructions dated 2.7.1999 (Annexure P.2) reveals that recommendations of 5th 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. 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 2.7.1999 once this Court has held that the petitioner was, in fact, re-employed w.e.f. 2.1.1989 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 2.7.1999 (Annexure P/2) w.e.f. 18.7.1997, the date, the instructions were enforced.” Considering the case of the CWP No.15539 of 2007 [5] petitioner, I find that the respondents have not been able to show that the petitioner was not inducted at the minimum of the pay scale. On re-employment of the petitioner as Constable, his initial service in Army had been ignored. All the Constables had been granted the initial starting salary and therefore, it has to be considered that Rs.1,000/- is the minimum of the Pay Scale. Having held thus, the case of the petitioner is covered by instructions, Annexure P-3. Under the circumstances, respondents would be entitled to recover Dearness Allowance paid on pension by Union of India with effect from 2.6.1989 to 17.7.1997 only. It is held that the petitioner is entitled to the Dearness Allowance from 18.7.1997 to 30.4.2006 i.e. his date of retirement. The petition is allowed in the above terms. (AJAI LAMBA) February 02, 2009 JUDGE avin