UNION OF INDIA & ORS.versusANIL PRASAD

260                       [2022]
               SUPREME COURT     3 S.C.R. 260
                              REPORTS                     [2022] 3 S.C.R.


A                        UNION OF INDIA & ORS.
                                       v.
                               ANIL PRASAD
                        (Civil Appeal No. 4073 of 2022)
B                               MAY 20, 2022
              [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
             Service Law – Re-appointment of retired Armed Force
      personnel – Fixation of Pay – Central Civil Services (Fixation of
      Pay of Re-employed Pensioners) Order, 1986 – Para 8 – Respondent-
C
      retired Armed Force personnel upon re-appointment in government
      service – Whether entitled to his basic pay being fixed at par with
      his last drawn pay, in view of Para 8 of the CCS Order – Held:
      Para 8 of the CCS Order does not provide that on re-employment in
      government service, a retired Armed Force personnel would be
D     entitled to his basic pay being fixed at par with his last drawn pay
      – No entitlement of pay protection under Para 8 of the CCS Order
      – Manner of computation of pay as envisaged under Para 8 of the
      CCS Order clearly stipulates that the pay so arrived at should not
      exceed the basic pay (including the deferred pay but excluding other
      emoluments) last drawn by the respondent in the armed force – That
E
      does not mean that respondent is entitled to a pay equal to what
      was last drawn by him in the Armed Force – High Court erred in
      holding that retired Armed Forces personnel on re-appointment in
      the government service would be entitled to the last drawn pay as
      Armed Forces personnel.
F
            Allowing the appeal, the Court
            HELD : 1.1. On a plain reading of Para 8 of the Central
      Civil Services (fixation of Pay of Re-employed Pensioners) Order,
      1986, it is clear that an Emergency Commissioned Officer and a
      Short Service Commissioned Officer working in the Armed
G     Forces on his employment to a civil post shall be entitled to
      advance increments equal to the completed years of service
      rendered in the Armed Forces on a basic pay equal to or higher
      than the minimum of the scale attached to the civil post in which
      they are employed. However, the pay arrived at should not exceed
H     the basic pay last drawn by them in the Armed Forces. Therefore,
                                       260
          UNION OF INDIA & ORS. v. ANIL PRASAD                         261


on a true interpretation of Para 8, on re-employment in the            A
government service, an employee working with the Armed
Forces, on re-employment shall be entitled to advance increments
equal to the completed years of service rendered by him in the
Armed Forces on a basic pay equal to or higher than the minimum
of the scale attached to the civil post in which he is employed.
                                                                       B
[Para 5.3][266-G-H; 267-A-B]
      1.2. Para 8 of the CCS Order makes a reference to two
rates of pay in case of emergency commissioned officers and short-
service commissioned officers being appointed in the government
service: First, they may be granted advance increment equal to
the completed years of service rendered by them in the armed           C
forces on a basic pay equal to or higher than the minimum of the
scale attached to the civil posts in which they are employed. The
pay is to be fixed with reference to the scale attached to the civil
posts in which they are employed; Second, while computing the
pay in the aforesaid manner it should not exceed the basic pay         D
last drawn by them in the armed forces. In other words, while
computing the pay of the said officers who joined the civil posts
their pay cannot exceed last drawn pay by them in the armed
forces. In case it exceeds then it is capped to the last drawn pay
in the armed forces. Therefore, a claim for the last drawn pay in
the armed forces is not a matter of right. [Para 5.3][267-C-E]         E

      1.3. Applying the above in the present case, it is noted that
the respondent was fixed at the entry level of PB-3 (Rs.15,600–
Rs.39,100) in the armed forces and six advance increments equal
to the number of years the respondent served in the Indian Army
was added to the basic pay i.e. Rs.15,600/- = Rs.19,600/-. The         F
Grade Pay fixed in the civil post is Rs.5,400/- and hence a total of
Rs.25,080/- was the computed pay in the civil post. The said pay
of Rs.25,080/- does not exceed the pay last drawn by the
respondent in the armed forces. Hence, the pay so computed is
just and proper. [Para 5.3][267-E-G]                                   G
      2.1. Para 8 of the CCS Order does not indicate that the pay
last drawn by the respondent in the armed forces should be the
pay to be computed when he joined the civil post. There is no

                                                                       H
262           SUPREME COURT REPORTS                     [2022] 3 S.C.R.


A     entitlement of pay protection under para 8 of the CCS. The manner
      of computation of pay as envisaged under para 8 also clearly
      stipulates that the pay so arrived at should not exceed the basic
      pay (including the deferred pay but excluding other emoluments)
      last drawn by the respondent in the armed force. That does not
      mean that the respondent is entitled to a pay equal to what was
B
      last drawn by him in the armed force. [Para 5.3][267-G-H;
      268-A]
            2.2. Also, para 8 of the CCS Order makes a reference to
      the civil post in which the personnel of armed force is to be
      employed with reference to the minimum scale of pay attached to
C     the civil post and while computing the pay scale the last drawn
      pay in the armed force has no relevance in the sense that there is
      no pay protection that can be sought by the ex-personnel of armed
      force. The reference to the last drawn pay in the armed forces is
      only to ensure that the pay computed in the civil post in the
D     manner envisaged in para 8 of CCS Order does not exceed the
      basic pay (including the deferred pay but excluding other
      emoluments) last drawn by the personnel in the armed forces.
      For example, if the minimum of the scale attached to the civil
      post is higher than the last drawn pay of the personnel in the
      armed force and while computing the pay for the civil post as
E     envisaged under para 8 of CCS if it so exceeds then possibly the
      last drawn pay in the armed forces could be paid. The said Rule
      proscribes fixation of a pay exceeding the basic pay (including
      the deferred pay but excluding other emoluments) last drawn by
      the personnel in the armed forces in respect of the civil post to
F     which an ex-armed force personnel is appointed. Thus, in a case
      where computation of pay exceeds last drawn pay in the armed
      forces then, in such a situation possibly the last drawn pay of
      such a personnel can be fixed. [Para 5.3][268-B-E]
             3.1. In the present case while serving in the Armed Forces
G     respondent was in the pay scale of Rs.15600 – 39100. The post
      on which he was re-employed in the government service also
      carries the pay scale of Rs.15600 – 39100 and he has been allowed
      advance increments of six years as he completed six years of
      service in the Armed Forces. However, his grade pay has been
      fixed at Rs.5400 being the grade pay which is available for the
H     civil post. [Para 5.3][268-F]
           UNION OF INDIA & ORS. v. ANIL PRASAD                                263


      3.2. Therefore, the pay fixation of the respondent in the                A
government service was absolutely in consonance with para 8 of
the CCS Order 1986. Para 8 does not provide that on re-
employment in Government Services a retired Armed Force
personnel would be entitled to his basic pay being fixed at par
with his last drawn pay. Holding so will violate para 8 of the CCS
                                                                               B
Order. Under the circumstances the High Court has committed
a grave error in observing and holding that the retired Armed
Forces personnel on re-appointment in the government service
would be entitled to the last drawn pay as Armed Forces
personnel. Therefore, the impugned judgment and order passed
by the High Court is unsustainable being contrary to para 8 of                 C
the CCS Order, 1986. [Para 5.4][268-G-H; 269-A]
      Government of India & Ors. v. Captain (Retd.) Kapil
      Chaudhary [Decision of High Court of Delhi in Writ
      Petition (C) No.2331 of 2012]- referred to..
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.4073                      D
of 2022.
      From the Judgment and Order dated 05.10.2021 of the High Court
of Delhi at New Delhi in W.P. (C) No.2135 of 2020.
      Ms. Aishwarya Bhati, ASG, Shiv Ram Pandey, Ms. Ruchi Kohli,              E
Ms. Aakanksha Kaul, O. P. Shukla, Arvind Kumar Sharma, Advs. for
the Appellants.
      Vinay Kr. Garg, Sr. Adv., Ankur Chhibber, Nikunj Arora, Parv
Garg, K. S. Rekhi, Amit Kumar, Santosh Kumar Pandey, Advs. for the
Respondent.                                                                    F
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 05.10.2021 passed by the High Court of Delhi at New
Delhi in Writ Petition (C) No.2135 of 2020 by which the High Court has         G
allowed the said writ petition preferred by the respondent herein and has
held that the respondent – original writ petitioner being retired Army
Force Personnel upon re-appointment in the government service, would
be entitled to his basic pay being fixed at par with his last drawn pay, the
Union of India and others have preferred the present appeal.                   H
264            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A            2. The respondent – original writ petitioner was a Major in the
      Indian Army and was discharged from service on 15.07.2007. He was
      appointed as an Assistant Commandant (Medical Officer) in the Central
      Reserve Police Force, in the pay scale of Rs.15600 - 39100 with grade
      pay of Rs.5400. The respondent – original petitioner claimed that as on
      the date of his discharge from the Indian Army, he was drawing pay of
B
      Rs.28340 with grade pay of Rs.6600, the same was entitled to be protected
      in terms of Para 8 of the Central Civil Services (fixation of Pay of Re-
      employed Pensioners) Order, 1986 (hereinafter referred to as ‘CCS
      Order’). The original writ petitioner made a representation which came
      to be rejected by an order dated 24.04.2019. Thereafter the original writ
C     petitioner preferred the writ petition before the High Court claiming that
      he would be entitled to his basic pay being fixed at par with his last
      drawn pay. Before the High Court heavy reliance was placed on the
      decision of the Division Bench of the High Court in the case of
      Government of India &Ors. Vs. Captain (Retd.) Kapil Chaudhary
      in Writ Petition (C) No.2331 of 2012. By the impugned judgment
D
      and order, the High Court has allowed the said writ petition and has
      directed the appellants to reworkthe pay fixation of the original writ
      petitioner by holding that upon reappointment in government service the
      original writ petitioner being a retired Armed Force Personnel would be
      entitled to his basic pay being fixed at par with his last drawn pay.
E            2.1 Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court in holding that on reappointment in
      the government service the original writ petitioner would be entitled to
      his basic pay being fixed at par with his last drawn pay, the Union of
      India and others have preferred this appeal.
F           3. Ms. Aishwarya Bhati, learned ASG, appearing on behalf of
      Union of India – appellant herein has vehemently submitted that the
      impugned judgment and order passed by the High Court is on a misreading
      of Para 8 of CCS Orders.
            3.1 It is submitted that as per Para 8 of the CCS Order on
G     reappointment, an Emergency Commissioned Officer and Short Service
      Commissioned Officer who join the government service will be granted
      advance increments equal to the completed years of service rendered
      by him in Armed Forces on the basic pay scale which will be equal to or
      higher than the pay scale of the re-employed organization i.e. the civil
H
           UNION OF INDIA & ORS. v. ANIL PRASAD                               265
                      [M. R. SHAH, J.]

post/the government post and not on the last drawn pay by the personnel       A
in the Armed Forces.
      3.2 It is submitted that Para 8 of the CCS Order does not speak
about retaining of the last drawn basic pay or fixation at the rate of last
drawn pay.
       3.3 It is submitted that if the claim made by the respondent is        B
allowed and it is held that on re-employment his pay fixation should be
the last drawn pay in that case it violates the statutory provision of Para
8 of the CCS Order.
      Making above submission, it is prayed to allow the present appeal.
                                                                              C
       4. Present appeal is vehemently opposed by Shri Vinay Kumar
Garg, learned Senior Advocate appearing on behalf of the respondent. It
is vehemently submitted by Shri Garg, learned Senior Advocate for the
respondent that the impugned judgment and order passed by the High
Court is absolutely in consonance with Para 8 of the CCS Order.
                                                                              D
       4.1 It is submitted that the respondent was working as a Captain
in the Army Medical Corps of the Indian Army. In the year 2007, CRPF
issued advertisement inviting applications for the post of Assistant
Commandant (Medical Officer) to which the respondent applied. In the
meantime, vide order dated 15.07.2007, the respondent was released
from the Indian Army. It is submitted that at the time of his discharge       E
from theIndian Army in the rank of Major, his last pay was in the pay
scale of Rs.15600 – 39100 and was drawing Rs.28340 as basic pay and
grade pay at Rs.6600. It is submitted that subsequently he was appointed
as Assistant Commandant (Medical Officer) in the year 2009 in the pay
scale of Rs.15600- 39100 with grade pay at Rs.5400. It is contended           F
that on re-employment his pay scale was required to be fixed at par with
the pay scale he was drawing while in the Indian Army Service and as
per the last drawn pay. It is submitted that as per Para 8 of CCS Order,
though the appellantsgranted six increments i.e. for the number of years
the respondent served in the Indian Army, however, the same was granted
on the pay wrongly fixed by the appellants which ought to have been           G
fixed at Rs.28340 i.e. the pay last drawn by the respondent in the rank
of Major in the Army.
       4.2 It is submitted that his grade pay was also fixed at Rs.5400
instead of Rs.6600, which was lower than what the respondent was
receiving at the time when he was in the Indian Army. It is urged submitted   H
266            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A     that on a true interpretation of Para 8 of CCS Order, the High Court
      rightly observed and held that the respondent shall be entitled to the pay
      scale as per last drawn salary while working in the Indian Army. Hence,no
      error has been committed by the High Court in holding so is the
      submission.
B           Making the above submissions,it is prayed to dismiss the present
      appeal.
             5. We have heard learned counsel for the respective parties at
      length.
             5.1 The short question which is posed for consideration before
C     this Court is whether on re-employment in the government service, an
      employee who was serving in the Indian Army/in the Armed Forces
      shall be entitled to his pay scales at par with his last drawn pay?
             5.2 While answering the aforesaid question Para 8 of CCS Order
      which is relevant for our purpose is required to be referred to which is
D     as follows:
            “8. Emergency Commissioned Officers and Short Service
            Commissioned Officers:
            Emergency Commissioned Officers and Short Service
            Commissioned Officers who joined pre-officers who joined pre-
E
            commissioned training or were commissioned after 10.01.1968
            may, on their appointment in Government service to unreserved
            vacancies, may be granted advance increments equal to the
            completed years of service rendered by them in Armed Forces
            on a basic pay (inclusive of deferred pay but excluding other
F           emoluments) equal to or higher than the minimum of the scale
            attached to the civil post in which they are employed. The pay so
            arrived at should not, however, exceed the basic pay (including
            the deferred pay but excluding other emoluments) last drawn by
            them in the Armed Forces.”
G            5.3 On a plain reading of the above provision an Emergency
      Commissioned Officer and a Short Service CommissionedOfficer
      working in the Armed Forces on his employment to a civil post shall be
      entitled to advance increments equal to the completed years of service
      rendered in the Armed Forces on a basic pay equal to or higher than the
      minimum of the scale attached to the civil post in which they are
H
           UNION OF INDIA & ORS. v. ANIL PRASAD                              267
                      [M. R. SHAH, J.]

employed. However, the pay arrived at should not exceed the basic pay        A
last drawn by them in the Armed Forces. Therefore, on a true
interpretation of Para 8 on re-employment in the government service, an
employee working with the Armed Forces, on re-employment shall be
entitled to advance increments equal to the completed years of service
rendered by him in the Armed Forces on a basic pay equal to or higher
                                                                             B
than the minimum of the scale attached to the civil post in which he is
employed.
       Para 8 of the CCS Order makes a reference to two rates of pay
in case of emergency commissioned officers and short-service
commissioned officers being appointed in the government service: First,
they may be granted advance increment equal to the completed years of        C
service rendered by them in the armed forces on a basic pay equal to or
higher than the minimum of the scale attached to the civil posts in which
they are employed. The pay is to be fixed with reference to the scale
attached to the civil posts in which they are employed; Second, while
computing the pay in the aforesaid manner it should not exceed the           D
basic pay last drawn by them in the armed forces. In another words,
while computing the pay of the said officers who joined the civil posts
their pay cannot exceed last drawn pay by them in the armed forces. In
case it exceeds then it is capped to the last drawn pay in the armed
forces. Therefore, a claim for the last drawn pay in the armed forces is
not a matter of right.                                                       E

        Applying the above in the present case, it is noted that the
respondent was fixed at the entry level of PB-3 (Rs.15,600–Rs.39,100)
in the armed forces and six advance increments equal to the number of
years the respondent served in the Indian Army was added to the basic
pay i.e. Rs.15,600/- = Rs.19,600/-. The Grade Pay fixed in the civil post    F
is Rs.5,400/- and hence a total of Rs.25,080/- was the computed pay in
the civil post. The said pay of Rs.25,080/- does not exceed the pay last
drawn by the respondent in the armed forces. Hence, the pay so computed
is just and proper.
       Para 8 of the CCS Order does not indicate that the pay last drawn     G
by the respondent in the armed forces should be the pay to be computed
when he joined the civil post. There is no entitlement of pay protection
under para 8 of the CCS. The manner of computation of pay as envisaged
under para 8 also clearly stipulates that the pay so arrived at should not
exceed the basic pay (including the deferred pay but excluding other         H
268             SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A     emoluments) last drawn by the respondent in the armed force. That
      does not mean that the respondent is entitled to a pay equal to what was
      last drawn by him in the armed force.
             Also, para 8 of the CCS Order makes a reference to the civil post
      in which the personnel of armed force is to be employed with reference
B     to the minimum scale of pay attached to the civil post and while computing
      the pay scale the last drawn pay in the armed force has no relevance in
      the sense that there is no pay protection that can be sought by the ex-
      personnel of armed force. The reference to the last drawn pay in the
      armed forces is only to ensure that the pay computed in the civil post in
      the manner envisaged in para 8 of CCS Order does not exceed the basic
C     pay (including the deferred pay but excluding other emoluments) last
      drawn by the personnel in the armed forces. For example, if the minimum
      of the scale attached to the civil post is higher than the last drawn pay of
      the personnel in the armed force and while computing the pay for the
      civil post as envisaged under para 8 of CCS if it so exceeds then possibly
D     the last drawn pay in the armed forces could be paid. The said Rule
      proscribes fixation of a pay exceeding the basic pay (including the
      deferred pay but excluding other emoluments) last drawn by the personnel
      in the armed forces in respect of the civil post to which an ex-armed
      force personnel is appointed. Thus, in a case where computation of pay
      exceeds last drawn pay in the armed forces then, in such a situation
E     possibly the last drawn pay of such a personnel can be fixed.
             In the present case while serving in the Armed Forces
      respondentwas in the pay scale of Rs.15600 – 39100. The post on which
      he was re-employed in the government service also carries the pay scale
      of Rs.15600 – 39100and he has been allowed advance increments of six
F     years as he completed six years of service in the Armed Forces. However,
      his grade pay has been fixed at Rs.5400 being the grade pay which is
      available for the civil post.
            5.4 Therefore, the pay fixation of the respondent in the government
      service was absolutely in consonance with para 8 of the CCS Order
G     1986. Para 8 does not provide that on re-employment inGovernment
      Services a retired Armed Force personnel would be entitled to his basic
      pay being fixed at par with his last drawn pay. Holding so will violate
      para 8 of the CCS Order. Under the circumstances the High Court has
      committed a grave error in observing and holding that the retired Armed
H     Forces personnel on re-appointment in the government service would
            UNION OF INDIA & ORS. v. ANIL PRASAD                             269
                       [M. R. SHAH, J.]

be entitled to the last drawn pay as Armed Forces personnel. Therefore,      A
the impugned judgment and order passed by the High Court is
unsustainable being contrary to para 8 of the CCS Order, 1986.
       6. In view of the above and for the reason stated above, present
appeal succeeds. The impugned judgment and order passed by the High
Court is hereby quashed and set aside. Consequently, the writ petition       B
preferred by the respondent before the High Court is dismissed. However,
in the facts and circumstances of the case, there shall be no order as to
costs.

Bibhuti Bhushan Bose                                       Appeal allowed.   C




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