Hina P. Shah, Member (J)

1. Since the facts and the law point involved in these OAs are similar, therefore, these are being decided by this common order.

2. All the applicants are similarly situated persons and their grievance is also similar, therefore, their prayer to file joint application and to join together is allowed.

3. For the sake of convenience, we are referring pleadings made in OA No. 279/2017.

4. The main prayer of the applicants is that the respondents be directed to fix their pay protecting the last pay drawn by them while in Military Service in accordance with Department of Personnel and Training (DoP&T) OM dated 5.4.2010 by setting aside the impugned order dated 23.12.2015 (Ann. A/1).

5. The case of the applicants is that they are ex-servicemen and are working/worked as T/Mate (Group-D) with 27 Field Ammunition Depot (FAD), Bikaner. The Local Audit Officer (LAO) (A), Bikaner has rejected their representations vide their letter dated 23.12.2015. They claim that they are entitled for protection of their pay which they have last drawn at the time of retirement from Military Service. The respondents have mis-interpreted the instructions issued by the DoP&T vide OM dated 5.4.2010 by stating that last pay drawn will be protected only in case of commissioned officers and not with regard to noncommissioned officers (PBOR). The reason being that the commissioned officer's non-ignorable pension is deducted and he is entitled for pay protection to his last pay drawn, whereas in the cases of non-commissioned, the pension is ignorable and it is not deducted. Therefore, their pay is allowed only at the entry pay in the revised pay structure i.e. at the minimum salary of the direct recruited (civilian) vide Para 3(iv) of DoP&T OM dated 5th April, 2010. The LAO (A) Bikaner has wrongly interpreted the DoP&T directions issued vide letter dated 05th April, 2010 whereas this letter clearly stipulates that the ex-serviceman re-employed in Central Civil Department will be granted benefit of revised pay scale with pay protection of his last pay drawn. It is their contention that similar relief has been granted by several departments in the case of similarly situated persons (ex-sevicemen) who have been re-employed in the Income Tax Department, Postal Department, Railway and Public Sector Banks etc. Surprisingly, 27 FAD has granted and fixed last pay drawn, but from 1st January, 2006, they have not fixed the pay of re-employed ex-servicemen of post-2006 as per para 4(b)(ii) of DoP&T OM dated 5.4.2010 and accordingly, pay of the applicants last drawn by them at the time of retirement from Military Service is not protected.

The basic issue raised by the applicants is that since the respondents have not protected their pay, therefore, there is discrimination caused between the commissioned and non-commissioned officers. The applicants are ex-servicemen and re-employed pensioners. The respondents are required to fix their pay as per the last pay drawn by them in the Military Service as other similarly situated pensioners are getting the benefit of fixation of pay. The applicants also represented to the respondent department raising their grievance with regard to pay fixation to which the respondents replied vide letter dated 23.12.2015. But since the reply to their representations was not satisfactory, therefore, they have filed the present OAs for redressal of their grievance.

6. The respondents vide their reply have raised preliminary objection pertaining to limitation stating that the applicants have not approached the Tribunal at the relevant point of time. They have stated that all applicants are re-employed after 01.01.2006 and thus they are governed by the provisions of OM dated 11.11.2008 read with Cl.(v) of para 3 of OM dated 5.4.2010. While fixing the pay of the applicants, the pension was fully ignored and therefore, they are not entitled for any pay protection. The OM dated 5.4.2010 provides the manner of fixation of pay of re-employed pensioners and Cl. 4(b) (i) of para 2 and Cl. (v) of para 3 categorically speaks for fixation of pay as per fitment tables corresponding to each pre-revised pay scale vide OM dated 30.08.2008. If some other departments have fixed the pay of re-employed ex-servicemen in a different manner that would not confer any right on the applicants. Therefore, the applicants are not entitled to any relief.

7. The applicants have also filed Misc. Application for condonation of delay in approaching the Tribunal. According to them, the delay is only of 8 months till the date of filing of the Misc. Application. Since Ann. A/1 has been passed on 23.12.2015, they have approached the court on 19.7.2017. Therefore, the delay in approaching the Tribunal is not intentional or deliberate and as the issue pertains to fixation of pay and there is financial loss to the applicants, it is recurring cause of action, therefore, the delay may be condoned in the interest of justice.

8. The respondents have filed reply to the Misc. Application stating that the applicant has belatedly filed representation in 2015 and Ann. A/1 is nothing but reply to the said letter/representation of the applicants. According to the respondents, any representation not prescribed under the rules does not provide a cause of action or a fresh cause of action. The persons like the applicants who slept over their alleged rights on the basis of OM dated 5.4.2010 have approached the court only in July, 2017. Therefore, the alleged cause of action has arisen to the applicants in April, 2010 but the present OA has been filed by the applicants in July, 2017. As per Section 21 of the Administrative Tribunals, 1985, the present OA deserves to be dismissed.

9. In rejoinder, the applicants have reiterated the averments made in the OA by annexing Ann. A/16 and A/17 along with the rejoinder.

10. Heard learned counsel for the parties and perused the material available on record.

11. During the course of arguments besides reiterating the facts, the learned counsel for the applicants stated that several directions have been issued by the Central Government time and again vide several Memoranda that the last pay drawn by the ex-servicemen will be protected at the time of re-employment in the ex-cadre post and their pay will be fixed accordingly. Since all the applicants are re-employed pensioners, they are entitled for pay protection from the date of their re-employment as per DoP&T OM dated 5.4.2010. The applicants being ex-servicemen and re-employed pensioners, injustice is caused to them since respondents are protecting the last pay drawn in the matter of commissioned officers, but not for non-commissioned officers such as PBOR. The PBOR have sacrificed their cream period of life for the sake of the nation and still they are discriminated by the respondents in granting service benefits. It is only due to the wrong interpretation done by the LAO (A), Bikaner that their pay is not properly fixed/protected. It is their right to get the pay fixed as per the last pay drawn in the Military Service. This has already been done in several departments in case of ex-servicemen who are similarly situated, but the respondents have created a distinction between commissioned and non-commissioned officers. In the case of commissioned officers, their last pay drawn has been protected and they are getting pay as per the last pay drawn by them in the earlier service, but the same is not done in the case of the non-commissioned officers i.e. the present applicants. In the case of the applicants their pay is allowed only at the entry pay in the revised pay structure of the re-employed post applicable in the case of direct recruits appointed on or after 1.1.2006 as notified vide Section II of first Schedule to RS(RP) Rules 2008 in terms of Para 2 of OM dated 5.4.2010. It is their case that there can be no distinction between commissioned officer and non-commissioned officers but a clear distinction is being made, therefore, they are put to a great hardship though commissioned and non-commissioned are both ex-servicemen.

The learned counsel for the applicant laid stress on the letter dated 2.8.2018 (Ann. A/16) written by the Deputy Controller of Accounts (FYS) as well as letter dated 23.8.2017 (Ann. A/17). It is the submission of the applicants that though major portion of the matter has been dealt with by the Larger Bench but the Larger Bench has not considered the matter which has been clarified in the circular dated 2.8.2018 and the applicants are eligible and entitled for pay fixation as per the recommendations of the 6th CPC and DoP&T OM dated 5th April, 2010 irrespective of the date of retirement even if they are pre or post 2006 retirees. It is their contention that pay should be fixed as per para 4(b)(ii) read with para 4(d) of DOP&T OM dated 5.4.2010. It is also their contention that the Ordnance Factory, Eddumaiaram, Distt-Sangareddy, Factory Order Part-I No. 170410 dated 23rd August, 2017, have carried out pay fixation stating that consequent upon grant of pay for ex-serviceman after re-employment in PB-I/Rs. 5200-20200. Accordingly, the category of applicants do not differs from the ex-servicemen re-employed with Ordnance Factories. Therefore, the pay fixation of the applicants being ex-servicemen shall be carried out on the line of Ordnance Factory's ibid order. The applicants state since that there is a clarification given and they are covered by the said clarification, therefore, they are entitled for the revised pay which is required to be fixed by the respondents in terms of ibid DoP&T OM applicable to them by treating them as ex-servicemen. Therefore, the applicants are entitled for their pay to be fixed as per OM dated 5.4.2010 as well as subsequent clarification dated 6.7.2018 which covers their case.

12. The respondents on the other hand stated that the OA is barred by limitation. Ann. A/1 is nothing but reply to the letter of the respondents dated 21.09.2015 and 03.12.2015. The actual cause of action has arisen when all these applicants were re-employed. The claim in these OAs is made as per DOPT OM dated 5.4.2010 by approaching this Tribunal only in 2017. Therefore, the respondents pray for dismissal of the OA on the ground of limitation only.

The respondents have further contended that the entire issue has been settled by the Larger Bench vide its order dated 23.7.2019 in a bunch of cases which covers the present controversy and since the present case is identical and on the same footing, therefore, the present OA lacks merit and deserves to be dismissed. Pertaining to the letter dated 2.8.2018 and clarification dated 6.7.2019, the respondents state that there is several internal correspondence of various departments which do not have any statutory force and, therefore, the same are not applicable to the present case. The basic controversy pertaining to protection of pay of the applicants as per the last pay drawn by them in Military Service as per DoP&T OM dated 5.4.2010, has been answered by the Full Bench in detail. Therefore, all the OA deserves to be dismissed.

The respondents also contended that the issue has already been dealt by a Coordinate Bench of this Tribunal at Patna in OA No. 715/2015-Surendra Kumar Singh vs. Union of India and Ors. decided vide order dated 30.6.2017 where in para 9, 10, 11 and 12 the Coordinate Bench has observed as under:-

"9. It is clear that the revision dated 01.05.2017 does not substantively change any of the provisions. It only makes some verbal changes and figures necessitated by the implementation of 7th Pay Commission recommendations w.e.f. 01.01.2016. From the above, the scheme of pay fixation of re-employed pensioners can be briefly summarized as follows:-

(i) The pay scale admissible will be only for the scale of the post to which a person applied. If he was earlier in a higher pay scale, that has no relevance [As per para 4(a) of OM dated 05.04.2010/01.05.2017].

(ii) Now we come to the issue of pay fixation in the pay band or pay scale. There are two different provisions, one for those whose entire pensionary benefits are not ignored. In their cases, their initial pay is fixed at the same stage as the last pay drawn at the time of retirement, from which the non-ignorable part of the pension shall be reduced from the pay so fixed [as per para 4(b) (ii) of the OM dated 05.04.2010].

(iii) The second category is whose entire pension is to be ignored. This pertains primarily to ex-servicemen who held posts below commissioned officer's rank in the Defence Forces and who retired below the age of 55 falling under para 4(d) (i) of the said OM. Since the applicant is below commissioned officers ranks and retired below age of 55, he falls under the category of 4(d) (i). For such persons the relevant provision for pay fixation is para 4(b)(i) which stipulates that in cases where the pension is fully ignored, the initial pay on re-employment shall be fixed as per the entry pay in the revised pay structure of the re-employed post. Post-01-01-2016, this would be revised as per Rule 8 of the CCS (RP) Rules, 2016.

10. The confusion arises because the applicant is under the presumption that he can get the benefit of full pension mentioned under para 4(d)(i) and pay protection as in para 4(b)(ii) of the DoP&T OM dated 05.04.2010. This presumption is erroneous, because 4(b)(ii) specifically refers to the cases where the entire pension and pensionary benefits are not ignored for pay fixation. In all cases where the pension is fully ignored, the relevant provision is para 4(b)(i) which provides that the initial pay on re-employment shall be fixed as per the entry pay in the revised pay structure of the re-employed post.

11. Therefore, the above provisions leave no ambiguity that in cases where pension is to be entirely ignored, as is the case with the applicant, the initial pay on re-employment has to be fixed as per the entry pay. We hold that the fixation of pay at the entry level was in accordance with the Rules, and later revision and payment of arrears was erroneous.

12. If some other departments have fixed the pay of re-employed ex-serviceman in a different manner that would not confer any right on the applicant. The right and entitlement of the applicant has to be adjudicated in terms of relevant rules which the applicant has himself cited on the basis of which we have already held that there was no error made by the pay fixation authorities initially, and later revision upwards and payment of arrears was erroneous."

Thereafter the said matter went before the Hon'ble Patna High Court in Writ wherein the Hon'ble High Court vide order dated 4.1.2018 have upheld the order of the CAT-Patna Bench and dismissed the Writ Petition filed by the applicant therein.

13. Considered the rival contentions of both the parties. Though there is a delay in filing the present OAs, but in the interest of justice, we condone the delay and the matter is considered on merit. The Misc. Applications for condonation of delay are allowed accordingly.

14. The confusion with regard to pay fixation of re-employed non-commissioned pensioners was clarified by the Patna Bench of this Tribunal vide para-10 of the above order (supra) observing that claiming benefit of full pension under Para 4(d)(i) and pay protection as in para 4(b) (ii) of the DoP&T OM dated 05.04.2010 is erroneous. In the cases where pension is fully ignored, the relevant provision is para 4(b)(i), which provides that initial pay on re-employment shall be fixed as per the entry in the revised pay structure of the re-employed post.

15. The present controversy has also been dealt with by the various Benches of this Tribunal and when a Division Bench of this Tribunal at Ernakulam Bench found that there are conflicting orders passed by various Benches, the matter was referred to the Larger Bench for decision on the following points:-

"1. Whether Rule 4(b)(i) of the (Fixation of Pay of Re-employed Pensioners) Order 1986 is violative of the At. 14, 16 & 21 of the Constitution of India due to it being discriminatory against those who are having their entire pension ignored for the purpose of pay fixation and being violative of equality, right to life and liberty

2. Whether Ex-Servicemen, who are PBOR (Persons Below Officer Rank), entitled to have their fixation of pay with reference to the pay drawn at the time of their discharge from armed forces or whether they are entitled to fixation at minimum of the pay scale of re-employed pensioners

3. Whether the Ex-Servicemen who are combatant category are entitled to the benefit of fixation of pay of re-employed pensioners in terms of CCS (Fixation of Pay of Re-employed Pensioners) Order 1986 read with OM No. 3/19/2009-Estt. Pay II dated 05.4.10 issued by DoPT, G.O.I."

After considering the reference in detail, the Larger Bench in para 10-15 observed as under:-

10. We have anxiously heard the arguments advanced by the learned counsel on both sides. The only point to be considered is whether Rule 4(b)(i) of Central Civil Services (Fixation of Pay on Re-employment) Orders, 1986 is discriminatory to PBOR persons and is violative of Article 14 & 16 of the Constitution.

11. The question of reasonable classification was dealt with by the Hon'ble Apex Court in numerous decisions. In Budhan Chaudhary v. State of Bihar (reported in AIR 1955 Sc 191, [LQ/SC/1954/169] the Apex Court had laid down a test to know whether classification is discriminatory. "In order however to pass the test of permissible classification two conditions must be fulfilled namely,

• that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group and

• that the differential must have a rationale relation to the object to be sought to be achieved by the statute in question."

12. How far the classification should be perfect was dealt with by the Hon'ble Supreme Court in Kedarnath Bajoria v. State of West Bengal AIR 1953 SC 404 [LQ/SC/1953/66] ). It was held that "Article 14 does not insist that legislative classification should be scientifically perfect or logically complete. In Venkateshwara Theatre v.s State of U.P. AIR 1993 SC 1947 [LQ/SC/1993/465] ) it was held that "a court should not interfere unless the classification results in pronounced inequality." A classification would be justified if it is not palpably arbitrary. If there is equality and uniformity within each group, the law will not be condemned as discriminatory, though due to some fortuitous circumstances arising out of a peculiar situation where some included in the class get an advantage over others, so long as they are not singled out, for special treatment. The Apex Court had observed in State of Bombay v. Balsara (1966 SC 1044) [LQ/SC/1966/39] that "the presumption is always in favour of constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds."

13. On going through Rule 4 of the Central Civil Services (Fixation of Pay on Re-employment) Orders, 1986, we can see that it has given different schemes for pay fixation on re-employment to Commissioned and Non-Commissioned Officers (PBOR). As far as commissioned officers are concerned, only a minor portion of their pension is ignored (now Rs. 15000/-) and the remaining non-ignorable portion is deducted from the pay fixed on the basis of pay drawn in the forces. But as regards Non-Commissioned Officers, the entire pension is ignored while fixing pay in the new scale. They are not given any pay protection. It is here that the applicants would contend that they are discriminated. If we go through the samples of pay fixation given by DOPT, it can be seen that if the pension so ignored plus the pay at the initial stage is taken, it can be seen that the persons who are PBOR do not suffer from any short fall in income which they would have got in the forces at the time of retirement. The object of this separate fixation of pay for Ex-Servicemen had an object that these Ex-Servicemen who had served the better half of their age in the service of the country should not suffer any short fall in income when they retire from the defence force. The reservation is provided to the personnel of PBOR based on Ex- Servicemen (Re-Employment in Central Civil Services & Posts) Rules, 1979. This rule provides for reservation for Non-Commissioned Ex-Servicemen in Group C and D posts. This clearly indicates that the commissioned officers who are Group A officers is not given such reservation and no such officer is going to compete with PBOR persons in appointment. Besides the ignoring of pension, they are given various benefits like reservation, relaxation of age, educational qualification etc. Also for getting re-employment.

14. As per the conditions of service of Commissioned Officer, he has to undergo various courses and he is assessed o merits throughout his career as they had to lead the forces of the country. They are considered similar to Group A officers of the Civil Services. The functions and responsibilities and qualification of these officers are not similar to that of PBOR. Article 16(1) or (2) does not prohibit the prescriptions of reasonable rules for selection to any employment or appointment to any office. In State of Mysore & Another v. Narasing Rao (cited supra) had categorically held that giving different scales classifying tracers in the state as Matriculate and non-Matriculate is valid and the said classification was upheld by the Supreme Court. In this case, members retired from the forces were classified as Commissioned Officers and Non-Commissioned Officers for the purpose of reemployment after retirement. The object of giving re-employment is to protect these persons from difficulties on retirement. The classification is mainly made on the basis of qualifications, functions in their employment and the Non-Commissioned Officers are given reservation in Group C and D posts in Central Civil Services. The Commissioned Officers are officers coming under Group A category and there is no possibility of these officers to apply for a Group C and D posts and they are not given any reservations in the 1979 rules. So, these two categories stand apart. So, the classification is on intelligible differentia which distinguishes persons grouped together. The object sought to be achieved is the welfare of the Ex-Servicemen who retire from forces before they attain the age of 55 years. The classification made under Rule 4 of the CCS (Fixation of Pay on Re-employment) Order, 1986 for the purpose of pay fixation is reasonable and cannot be considered as discriminatory to PBOR or Non-Commissioned Officers as alleged by the applicant. We cannot find any injustice manifest in the classification made in the rules. Article 16 of the Constitution provides for equality of opportunity. It is only an incident of the concept of equality under Article 14. The concept of equality cannot be confused with absolute equality. What is guaranteed is equality of opportunity and nothing more. Article 16(1) or (2) does not prohibit the prescription of reasonable rules for classification for selection or appointment. So, we are of the opinion that Rule 4(b)(i) of the CCS (Fixation of Pay on Re-employment) orders, 1986 does not offend Article 14 and 16 of the Constitution as alleged. No discrimination can be found against Non-Commissioned Officers. The principle of fixation of pay for PBOR and Commissioned Officers stand the test laid down by the Hon'ble Apex Court in Budhan Chaudhary v. State of Bihar (cited supra). There may be differences in the total benefits received by these two categories. But this type of inequalities have to be mitigated by the executive government and such benefits cannot be granted by the Tribunals. All the applicants were re-employed after 1986 and the rules of fixation given in the rules does not suffer from any arbitrariness or discrimination which is violative of Article 14 and 16 of the Constitution.

15. In the result we answer the reference in favour of the respondents. Rule 4(b)(i) of the CCS (Fixation of Pay on Re-employment) Order, 1986 does not violate the principle of equality enshrined under Article 14 and 16 of the Constitution. In the light of above discussion, the other points raised by the Division Bench are also decided accordingly, having no discrimination or arbitrariness and are not violative of principle of equality under Article 14 and 16 of the Constitution of India."

16. In view of above, it is clear that the matter has already been considered by the Coordinate Bench at Patna which has been further upheld by the Hon'ble Patna High Court. When the Division Bench of this Tribunal at Ernakulam found conflicting orders passed by various Benches, the matter was referred to the Larger Bench and the Larger Bench considered the reference in detail and held that Rule/Para 4(b)(i) of the CCS (Fixation of Pay on Re-employment) Order, 1986 does not violate the principle of equality enshrined under Article 14 and 16 of the Constitution and there is no discrimination and arbitrariness.

17. So far as letters dated 2.8.2018 and 6.7.2018 referred by the applicants are concerned, these are internal communications written by one authority to another and, therefore, cannot have any statutory force.

18. Looking the matter in the light of the above discussions, we find no merit in these OAs and accordingly the same are dismissed with no order as to costs.