The Telangana High Court has recently dismissed a writ petition filed by certain ex-servicemen who were re-employed as Social Security Assistants in the Employees' Provident Fund Organisation (EPFO) who claimed that their initial pay should be fixed by considering the last pay drawn by them in the Defence Services.

The court reiterated that an Armed Forces employee on reemployment in government service is not entitled to his pay scales at par with his last drawn pay in Armed Force.

For context, the petitioners had served in the Indian Army and Air Force for time periods ranging from 18 to 20 years; they had retired before attaining the age of 55. Their subsequent appointment came in EPFO, under the ex-servicemen quota, during the 2006-2012 time period.

The Division Bench of Acting Chief Justice P. Sam Koshy and Justice Narsing Rao Nandikonda noted as below:

“…having regard to the law laid down by the Hon'ble Supreme Court in Union of India and Others v. Anil Prasad (supra), this Court is of the considered opinion that the petitioners have failed to establish any legally enforceable right to claim fixation of their initial pay at par with the last pay drawn by them in the Defence Services. The action of the respondents in fixing the initial pay of the petitioners in accordance with the applicable rules and instructions cannot be found fault with. The Tribunal has rightly dismissed the Original Application as well as the Review Application…”, the court observed in the order.

Before the High Court, the grievance of the ex-servicemen was that their initial pay upon re-employment came to be fixed without pay protection as per their last defence pay.

The High Court, after hearing both sides, upheld CAT Hyderabad's dismissal of the original application and review application. Before the High Court, the ex-servicemen challenged the Central Administrative Tribunal, Hyderabad Bench's 2018 orders in the Original Application and Review Application.

The petitioners, relying on the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986 [amended by the Department of Personnel and Training Office Memorandum dated 05.04.2010], contended that under paragraph 4(d)(i), for ex-servicemen who held posts below Commissioned Officer rank and retired before 55, the entire pension and pension equivalent of retirement benefits must be ignored while fixing initial pay. According to them, this entitled them to fixation of subsequent pay based on their last defence pay.

The respondents, however, contended that while pension benefits are to be ignored, the initial pay of re-employed ex-servicemen must be fixed at the entry pay in the revised pay structure, which is also applicable to direct recruits appointed on or after 01.01.2006. According to the respondents, the rules do not confer a right to protection of the last pay drawn in the Defence Services.

The High Court underscored that ignoring pension for initial pay fixation in the new employment does not create a right to protect the last pay drawn in the Armed Forces.

“…The petitioners have not been able to demonstrate that the fixation of their initial pay by the respondents is contrary to any mandatory provision of the applicable rules. On the contrary, the material placed on record would disclose that the respondents have fixed the pay of the petitioners in accordance with the instructions governing the re-employment of ex servicemen who held posts below Commissioned Officer rank. The contention that the petitioners are entitled to protection of the last pay drawn by them in the Defence Services, merely because their pensionary benefits are required to be ignored, is devoid of merit”, the court added further.

In Anil Prasad relied upon by the High Court, the Supreme Court had clarified that the reference to last drawn Armed Forces pay operates as a ceiling and does not confer an independent right to pay protection.

“…Though the aforesaid judgment was rendered in the context of paragraph 8 of the 1986 Orders, relating to Emergency Commissioned Officers and Short Service Commissioned Officers, the principle laid down therein, namely, that protection of the last drawn pay upon re-employment cannot be claimed as a matter of right in the absence of a specific provision, is relevant to the issue involved in the present Writ Petition. In the case on hand, the petitioners admittedly held posts below Commissioned Officer rank and their pay fixation is governed by the specific provisions applicable to such category of ex servicemen. …”, the court remarked.

The Court also upheld the CAT's dismissal of the review application, observing that review cannot be treated as an appeal in disguise.

Accordingly, the writ petition was dismissed, confirming the CAT's orders.