1. Heard Sri B.S.Pandey for the petitioner and learned Standing Counsel for the respondent and perused the record. With the agreement and consent of learned counsel for the parties the writ petition is being finally heard and decided under the rules of the Court at this stage.
2. The facts in brief giving rise to the present writ petition are that the petitioner was enrolled as Soldier in Indian Army on 23rd January, 1976 and was discharged from 01.12.1992. Thereafter he was appointed as Constable in U.P. Police Force on 1st August, 1994. He requested the Department for pay fixation after taking into account the service rendered by him in Army and when his matter remained unheard, he filed writ petition no.66579 of 2006 which was disposed of by this Court on 07.12.2006 directing the petitioner to make representation to the respondent no.2 i.e. Deputy Inspector General of Police (Establishment) Police Head Quarter, Allahabad who was required to decide the said representation by reasoned order. It is pursuant to this judgment, the impugned order has been passed by the respondent No.2 rejecting the petitioner's claim by referring to the Government Order dated 5th June, 1999 as also Regulation 526 of Civil Service Regulations (hereinafter referred to as "the Regulations") observing that the petitioner was entitled for such benefit only if he deposit his entire amount of pension in the Government Treasury.
3. Sri Pandey submits that respondent No.2 has clearly misread the relevant provisions. The matter therefore, apparently involves the application of Regulation 526 of the Regulations. Regulation 526 reads as under:
"526. (a) When a person formerly in military service obtains employment in the civil department after having been granted a military pension he shall continue to draw his military pension, but the authority competent to fix the pay and allowance of the post in which he is re-employed shall have in fixing his pay and allowances in the post in which he is re-employed, the power to take into account the amount of pension, including such portion if it as may have been commuted.
(b) A military officer, departmental officer, warrant or non-commissioned officer or soldier who is granted a pension under military rules while he is in civil employ, shall draw such pension while he is in civil employ but the authority competent to fix the pay and allowances of the post in civil employ, may with effect from the date from which the pension is granted, reduce such pay and allowances with reference to such officer or soldier by any amount not exceeding the amount of such pension.
Note -In the case of persons retiring before attaining the age of 55, the military pension as shown below may be ignored in fixing the pay on re-employment:-
(i) In case the military pension does not exceed Rs.50 per mensem, the actual Pension;
(ii) In other cases, the first Rs.50 of the military pension.
Pension for this purpose includes pension equivalent of gratuity and others forms of retirement benefits."
4. It appears to have been amended in 1983 by Government Order dated 18th May, 1983 and again by Government Order dated 11th February, 1987. The entire Government Order dated 11th February, 1987 of much relevance to the disputed question and therefore may be reproduced as under:
^^flfoy lfoZl jsX;wys'ku ds vuqPNsn 526 lifBr 'kklukns'k la[;k lk&3&[email protected]&917&82 fnukad 18 ebZ] 1983 ds v/khu ;g izkfo/kku gS fd ;fn dksbZ lSfud isa'kuj 55 o"kZ vk;q izkIr djus ls iwoZ flfoy in ij iqu;ksZftr fd;k tkrk gS rks mldk osru fu/kkZj.k djus esa mldh lSfud isa'ku fuEu izdkj misf{kr dh tkrh gSA ¼1½ lSfud vf/kdkfj;ksa dh lSfud isa'ku ds izFke :0 [email protected]& ¼2½ deh'kUM vf/kdkfj;ksa ls uhps dh Js.kh ds lSfud isa'kujksa dh iwjh isa'kuA osru fu/kkZj.k esa misf{kr dh tkus okyh isa'ku dh mi;qZDr lhek esa o`f) fd;s tkus dk iz'u dqN le; ls 'kklu ds fopkjk/khu Fkk ftl ij Hkyh HkkWafr fopkjksijkUr jkT;iky egksn; us ;g vkns'k nsus dh d`ik dh gS fd flfoy inksa ij mijksDrkuqlkj iqu;ksZftr lSfud isa'kujksa dk osru fu/kkZj.k djrs le; lSfud isa'ku dh /kujkf'k fuEu izdkj ls misf{kr dh tk;sxh%& ¼1½ lSfud vf/kdkfj;ksa rFkk lewg ^^d** inksa ij dk;Z djus okys flfofy;u vf/kdkfj;ksa ds ekeyksa esa isa'ku ds izFke 500 :i;sa rFkkA ¼2½ deh'ku jSad ls uhps ds dfeZdks rFkk viuh lsok fuo`fRr ds le; lewg ^^[k** vFkok fuEu inksa ds /kkjd flfoy;u vf/kdkfj;ksa ds ekeyksa esa] lEiw.kZ isa'ku misf{kr dj nh tk;sxhA ¼3½ lSfud dh isa'ku ls rkRi;Z mudh ldy isa'ku ls gS ftlesa minku ds lerqY; isa'ku rFkk vU; izdkj dh lsok fuo`fRr izlqfo/kk;sa lfEefyr jgsxhA ¼4½ ;g vkns'k fnukad 1 vizSy 1986 ls izHkkoh le>s tk;saxsA tks O;fDr mDr frfFk vFkkZr 1 vizSy 1986 dks flfoy inksa ij iqu;ksZftr Fks mudk osru bu vkns'kksa ds vk/kkjk ij mDr frfFk ls iqu% fu/kkZfjr fd;k tk;sxk c'krsZ fd bl la'kks/ku dks oj.k djus dk fodYi nsaA bl izdkj fodYi nsus ij mudk osru u;s :i esa bl izdkj fu/kkZfjr fd;k tk;sxk tSls izFke ckj mDr frfFk vFkkZr 1 vizSy 1986 dks iqu;ksZftr gq, gksaA fodYi bl vkns'k ds tkjh gksus dh frfFk ds 6 ekg dh vof/k ds Hkhrj fyf[kr :i ls djuk gksxk rFkk ,d ckj fn;k x;k fodYi vfUre gksxkA ¼5½ lSfud isa'kujksa ds iqu;ksZtu lEcU/kh 'ks"k O;oLFkk;sa iwoZor jgsxhA** "It is provided under Article 526 read with G.O.No.Sa-3-749/X-917-82 dated 18th May 1983 that if a military pensioner is re-employed on a civil post before attaining the age of 55 years, while fixing his salary, his military pension shall be reduced in the following manner:
(1) The first Rs.250/- of military pension of a military officer (2) The entire pension of military pensioners below the rank of Commissioned Officers.
The question of enhancement in the aforesaid limit of pension to be reduced at the time of fixation of pay was under consideration before the Government and after due consideration His Excellency the Governor has been pleased to order that while fixing the pay of military pensioners as aforesaid the amount of military pension shall be reduced in the manner indicated below:
(1) The first Rs.500/- in the matter of military officers and civilian officers Class I (2) The entire pension of the soldiers below the rank of commissioned officers belonging to Group B at the time of their superannuation or civilian officers below the aforesaid rank (3) Pension of soldier means the entire pension equivalent to Updan including other retiral benefits (4) This order shall be effective w.e.f. 01.04.1986. The persons who were re-employed on the aforesaid date i.e. 01.04.1986, their salary shall be fixed in accordance with these orders from the aforesaid date provided they opt for this amendment. An option being given, their salary in new form shall be so determined as if they were re-employed on 01.04.1986. Option should be given in writing within six months of the notification of this order and once option is given, that shall be final.
(5) The remaining provisions regarding soldiers pension shall remain as it has earlier been enforced."
(English Translation by the Court)
5. It appears that thereafter some further clarification was issued by Government Order dated 5th June, 1999 and the same also read as under:
^^flfoy lfoZl jsX;wys'ku ds vuqPNsn 526 lifBr 'kklukns'k la[;k lk&3&[email protected]&919&86 fnukad Qjojh 1987 ds v/khu ;g izkfo/kku gS fd ;fn dksbZ lSfud isa'kuj 55 o"kZ vk;q izkIr djus ls iwoZ flfoy in ij iqu;ksZftr fd;k tkrk gS rks mldk osru fu/kkZj.k djus esa mldh lSfud isa'ku fuEu izdkj misf{kr dh tkrh gSA ¼1½ lSfud vf/kdkfj;ksa dh lSfud isa'ku ds izFke :0 [email protected]& ¼2½ deh'kUM vf/kdkfj;ksa ls uhps dh Js.kh ds lSfud isa'kujksa dh iwjh isa'kuA 2- osru fu/kkZj.k esa misf{kr dh tkus okyh isa'ku dh mi;qZDr lhek esa o`f) fd;s tkus dk iz'u dqN le; ls 'kklu ds fopkjk/khu Fkk ftl ij Hkyh HkkWafr fopkjksijkUr jkT;iky egksn; us ;g vkns'k nsus dh d`ik dh gS fd flfoy inksa ij mijksDrkuqlkj iqu;ksZftr lSfud isa'kujksa dk osru fu/kkZj.k djrs le; lSfud isa'ku dh /kujkf'k fuEu izdkj ls misf{kr dh tk;sxh%& ¼1½ lSfud vf/kdkfj;ksa rFkk lewg ^^d** inksa ij dk;Z djus okys flfofy;u vf/kdkfj;ksa ds ekeyksa esa isa'ku ds izFke 1500 :i;sa rFkkA ¼2½ deh'ku jSad ls uhps ds dfeZdks rFkk viuh lsok fuo`fRr ds le; ^^[k** vFkok fuEu inksa ds /kkjd flfoy;u vf/kdkfj;ksa ds ekeyksa esa] lEiw.kZ isa'ku misf{kr dj nh tk;sxhA ¼3½ lSfud dh isa'ku ls rkRi;Z mldh ldy isa'ku ls gSA ¼4½ ;g vkns'k fnukad 1 tuojh 1996 ls izHkkoh le>s tk;saxsA tks O;fDr mDr frfFk vFkkZr 1 tuojh 1996 dks flfoy inksa ij iqu;ksZftr Fks mudk osru bu vkns'kksa ds vk/kkj ij mDr frfFk ls iqu% fu/kkZfjr fd;k tk;sxk c'krsZ fd bl la'kks/ku dks oj.k djus dk fodYi nsaA bl izdkj fodYi nsus ij mudk osru u;s :i esa bl izdkj fu/kkZfjr fd;k tk;sxk tSls izFke ckj mDr frfFk vFkkZr 1 tuojh 1996 dks iqu;ksZftr gq, gksaA fodYi bl vkns'k ds tkjh gksus dh frfFk ds 6 ekg dh vof/k ds Hkhrj fyf[kr :i ls djuk gksxk rFkk ,d ckj fn;k x;k fodYi vfUre gksxkA ¼5½ lSfud isa'kujksa ds iqu;ksZtu lEcU/kh 'ks"k O;oLFkk;sa iwoZor jgsxhA** "It is provided under Article 526 read with G.O.No.Sa-3-1061/X-919-86 dated February 1987 that if a military pensioner is re-employed on a civil post before attaining the age of 55 years, while fixing his salary, his military pension shall be reduced in the following manner:
(1) The first Rs.500/- of military pension of a military officer (2) The entire pension of military pensioners below the rank of Commissioned Officers.
The question of enhancement in the aforesaid limit of pension to be reduced at the time of fixation of pay was under consideration before the Government and after due consideration His Excellency the Governor has been pleased to order that while fixing the pay of military pensioners as aforesaid the amount of military pension shall be reduced in the manner indicated below:
(1) The first Rs.1500/- in the matter of military officers and civilian officers Class "I".
(2) The entire pension of the soldiers below the rank of commissioned officers belonging to Group B at the time of their superannuation or civilian officers below the aforesaid rank (3) Pension of soldier means the entire pension (4) This order shall be effective w.e.f. 01st January 1996. The persons who were re-employed on the aforesaid date i.e. 01st January 1996, their salary shall be fixed in accordance with these orders from the aforesaid date provided they opt for this amendment. An option being given, their salary in new form shall be so determined as if they were re-employed on 01st January 1996. Option should be given in writing within six months of the notification of this order and once option is given, that shall be final.
(5) The remaining provisions regarding soldiers pension shall remain as it has earlier been enforced."
(English Translation by the Court)
6. A perusal of the aforesaid two Government Orders make it very clear that since 1983 Regulation 526 allowed to exempt the amount of pension to those who are below the Commissioned Officers and in their case neither the amount of pension was to be taken into account before giving the benefit of Army service nor they were required to make any deposit in the Government Treasury. This position has continued thereafter without any change.
7. The learned Standing Counsel could not show as to how and under what circumstances respondent no.2 has stressed upon the petitioner to deposit the entire amount of pension knowing it well that the petitioner was only soldier in the Army and army pensioner of the rank below the commissioned officer. I have no manner of doubt that respondent no.2 has clearly misread the Regulation 526 of the Regulations as amended later on and the Government Order dated 5th June, 1999 has been completely avoided. Hence, the impugned order cannot be sustained.
8. The writ petition is allowed. The impugned order dated 29.03.2007 (Annexure 9 to the writ petition) is hereby quashed. The respondents are directed to consider the pay fixation of the petitioner in accordance with the Civil Service Regulation 526, as amended from time to time and in the light of the observation and discussion made herein above within two months from the date of production of a certified copy of this order and to give all consequential benefits to the petitioner accordingly.
9. The petitioner shall also entitled to cost which is quantified to Rs.5,000/-.
Order Date :- 21.10.2010 KA