'Pay Minus Pension' Can't Be Retrospectively Recovered From Retd Doctors Due To AIIMS Jodhpur's Ignorant Attitude: Rajasthan High Court

In pleas by retired doctors “re-employed” by AIIMS Jodhpur against imposition “Pay minus pension” rule five years after their appointment orders were issued without such condition, the Rajasthan High Court slammed the hospital for being ignorant about the law applicable upon its employees.The court was hearing a batch of petitions filed by certain doctors as well as AIIMS Jodhpur against order of the Central Administrative Tribunal (CAT) which ruled that the petitioners shall fall under the category of “re-employed” persons. However, since there was no such condition mentioned in their appointment orders, it was not legally permissible for AIIMS to deduct the pension from the pay with retrospective effect.While the first part of the order was challenged by the doctors, the latter part of the order was challenged by AIIMS Jodhpur. The division bench of Justice Pushpendra Singh Bhati and Justice Chandra Prakash Shrimali held that the statutory provisions governing the field of “re-employed” persons could not be excluded merely because of an omission on part of the employer in clarifying the same in the advertisement notice or appointment order. At the same time, the Court opined that the lackadaisical and ignorant attitude of AIIMS had led to this controversy. Hence, it was not fair to seek retrospective recovery of the amount already paid to the doctors, at this belated stage for no fault on theirs."However, it also has to be noted that the lackadaisical and ignorant attitude of AIIMS, Jodhpur about its own provisions as well as the other provisions of law applicable upon its employees has led to the situation leading to this controversy. It was only when the Ministry of Health and Family Welfare sent repeated communications to apply the “pay minus pension” formula upon the concerned employees, the AIIMS, Jodhpur issued Circular seeking pension details of such employees. Hence, it is not just and fair to seek retrospective recovery of the amount already paid to the doctors, at this belated stage for no fault on their part," the bench said. Hence, the petitions were partly dismissed, wherein application of the “pay minus pension” rule to the petitioners was upheld, and partly allowed wherein the application of the rule was ordered to be made prospective from the date of the order, and not retrospective. The petitioner doctors were appointed in 2018, and in 2023, pursuant to the communications and instructions received from the Ministry of Health and Family Welfare, the pension details of the petitioners were sought to implement the rule of “pay minus pension” which was not mentioned in their appointment order and was the primary contention put forth by petitioners.It was argued by the petitioners that if such condition of applicability of the rule “pay minus pension” was not mentioned in the recruitment notice or the appointment orders, its imposition after a span of five years was not only arbitrary but also illegal. After hearing the contentions, the Court highlighted that rules regarding retirement were made by the legislature in its wisdom. To address the situation where pensioners were re-employed, and might make unjust enrichments since certain heads of their pay were already paid to them under their pension, the pay fixation of re-employed pensioners was done in accordance with Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986 (“1986 Order”) as well as Office Memorandum dated May 1, 2027 that provided “pay minus pension” rule. Furthermore, the Court perused All India Institute of Medical Sciences Regulations, 1999 (“1999 Regulations”) and opined that Regulation 33 indicated that if a retired person was employed at AIIMS, he/she had to be treated as a re-employed person. Further, the Court opined that once it was determined that the petitioners were re-employed, 1986 Orders clearly required application of the rule “pay minus pension”. “This Court is also of the clear opinion that the pay fixations have to be done as per the Orders of 1986 which are governing the field for the Union Government employees, upon their reemployment, and thus, any action contrary thereto, would not be permissible…statutory provisions which are governing the field qua the re-employed persons cannot be excluded only because there has been an omission on the part of the AIIMS, Jodhpur to clarify the same at the time of advertisement or in the appointment order. The statutes have to prevail unless found to be contrary to law.”In this background, the Court ruled that the petitioners shall be considered as re-employed and the principle of “pay minus pension” would be applicable to them. At the same time, highlighting the ignorant attitude of AIIMS, it was held that retrospective application would not be fair, and thus the rule shall be applied prospectively. Accordingly, the petitions were partly dismissed, partly allowed. Title: All India Institute of Medical Sciences, Jodhpur & Anr. v Dr....

'Pay Minus Pension' Can't Be Retrospectively Recovered From Retd Doctors Due To AIIMS Jodhpur's Ignorant Attitude: Rajasthan High Court

Nupur Agrawal

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