C.W.P.No.7245 of 2007 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA, CHANDIGARH C.W.P.No.7245 of 2007 Date of Decision:01.09.2008 Ex-Naik Jang Masih .......Petitioner(s) Versus Union of India and Others ......Respondent(s) CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. B.S. Sehgal, Advocate for the petitioner. Mr. Anil Rathee, Advocate for respondents No.1 to 3. Mrs. Charu Tulli, Sr. DAG, Punjab for respondent No.4. JASWANT SINGH,J This judgment shall dispose of 16 writ petitions bearing CWP Nos.7245, 7384, 7385, 9682, 9715, 9824, 10388 of 2007 and CWP Nos. 6346, 6347, 6348, 6349, 8350, 9490, 13713, 513, 4752 of 2008 as common questions of law and facts are involved except the slight deviation in CWP No.9715/2007 (Jagir Singh v. UOI) where the department of the petitioner on re-employment is Fire Department, Municipal Corporation, Chandigarh whereas in the remaining writ petitions, the petitioners are re-employed in Police Department. For the sake of brevity and with the consent of counsel for the parties, the facts from CWP No.7245 of 2007 have been taken and dealt with. By filing the instant writ petition, the petitioner, an Ex- serviceman has challenged order dated 3.5.2007 (Annexure P.5) passed by Defence Pension Disbursing Officer, Ferozepur Cantt (respondent No.3) directing the petitioner to deposit the over payment of a sum of Rs.1,31,875/- on account of unauthorized withdrawal of Dearness Relief on his service pension granted by the army, with a further prayer for issuance C.W.P.No.7245 of 2007 2 of directions to the respondents-army authorities to the effect that the petitioner is entitled to be paid the Dearness Relief on this army pension from 18.7.2007 onwards as per instruction/letter dated 2.7.1999 (Annexure P/2) read with letter dated 28.8.2000 issued by the Government of India. The facts in brief are that the petitioner was enrolled in the army on 10.4.1971 and was discharged in the rank of Naik on 31.5.1988. He was released service pension on account of his almost 17 years of service. He was re-employed in the Punjab Police Telecommunication Wing under respondent No.4 vide order dated 29.12.1988 and he joined the Department as Radio Technician on 2.1.1989 as a Constable in the initial start of pay of Rs.420/- per month in the grade/scale of pay of Rs.400-600. A copy of appointment letter is Annexure P.1. It is categorically stated that no benefit of past military service towards increments was granted while fixing his pay as Constable at the initial start of Rs.420/- per month although the pay scale was Rs.400-600/-. The petitioner retired on his superannuation on 29.2.2008. Prior to his retirement, the office of respondent No.4 vide their letter dated 15.1.2007 forwarded a Certificate to respondent no.3, giving the details of his service particulars with the Telecommunication Department. On receipt of the said information, respondent No.3 proceeded to issue the impugned order dated 3.5.2007 (Annexure P.5) by construing that the pay of the petitioner on his re-employment was not fixed at the minimum of the pay scale and hence the Dearness Relief on his service pension was unauthorizedly drawn. Petitioner has stated that the respondent- Government of India had issued instructions dated 2.7.1999 whereby the recommendations of the 5th Central Pay Commission were accepted w.e.f 18.7.1997 and it was provided that Dearness Relief should be paid to the re- employed defence pensioners, in case, their pay is fixed at the minimum of the pay scale of the post of re-employment ignoring the entire army service pension. This instruction covers the case of the Persons Below Officer Rank (PBORs) including the petitioner and, thus, he was entitled to payment of Dearness Relief on his pension w.e.f 18.7.1997 onwards as he had been re-employed as Constable in the minimum of the pay scale. Hence the present writ petition. Respondents, upon notice, have filed their respective replies. The Telecommunication Wing of the Punjab Police (respondent C.W.P.No.7245 of 2007 3 No.4) has, in their reply, admitted that the petitioner was given the initial start of Rs.420/- per month in the pay scale of Rs.400-600/- on the rank of Constable as was given to all the Constables, at the time of re-employment of petitioner, in the Punjab Police. It is further stated that for all practical purposes, minimum pay scale admissible to all Constables including Ex- Servicemen was Rs.420/- per month in the pay scale of Rs.400-600/-. Respondent-Army Authorities in their reply have stated that the petitioner had failed to disclose the factum of his re-employment till on the verge of retirement from the Telecommunication Wing of the Punjab Police. It was further alleged that w.e.f 2.1.1989 when the petitioner was re- employed till 1997, he was not entitled to the grant of Dearness Relief/Dearness Allowance on his army pension because of the fact that he was drawing Dearness Allowance on his pay earned from the Punjab Police Telecommunication Wing. It was further stated that Dearness Relief, which was over paid, is required to be recovered. At the time of issuance of notice of motion, this Court had stayed the recovery of the dearness relief amount already paid to the petitioner. We have heard learned counsel for the parties. Learned counsel for the petitioner, by relying on the contents of para 3(a) of the instructions dated 2.7.1999 (Annexure P.2) issued by the Government of India, submitted that the petitioner was entitled to grant of Dearness Relief on his army pension w.e.f 18.7.1997 onwards as he was re- employed in the Telecommunication Wing of the Punjab Police (respondent No.4) in the minimum of the pay scale admissible to the rank of Constable and hence the demand of Rs.1,31,875/- towards recovery of excess Dearness Relief paid vide impugned letter dated 3.5.2007 (Annexure P.5) is illegal and unsustainable. Learned counsel very fairly conceded that the petitioner was not entitled to grant of Dearness Relief paid on his army pension by the Army Authorities with effect from his date of re-employment i.e. 2.1.1989 till 17.7.1997 and the petitioner is willing and ready to deposit such amount of dearness relief for the said period already paid to him. 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 C.W.P.No.7245 of 2007 4 the 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 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 the 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 C.W.P.No.7245 of 2007 5 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 fulfills 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. Learned counsel for Union of India, on our repeated queries, could not point out any Regulation, Instruction or Letter requiring the petitioner to disclose about the re-employment to the pension authorities of the army, hence the argument was not pressed. In view of the aforesaid discussion, we direct that the petitioner shall be entitled to the grant of Dearness Relief on his Army pension w.e.f 18.7.1997 in terms of Instruction dated 2.7.1999 and no recovery qua the period from 18.7.1997 onwards shall be made, further such Dearness Relief already paid to the petitioner from the date of his re-employment with respondent no.4 till 17.7.1997 shall be calculated and be liable to be recovered. It is further clarified that in case more than the due amount has already been recovered, then the same shall be refunded to the petitioner forthwith. The petitioner shall, however, be not entitled to any interest on such refunded amount. With the aforesaid directions, petition stands allowed. ( JASWANT SINGH ) JUDGE September 01, 2008 ( JASBIR SINGH ) manoj JUDGE