Applicability of CCS (RP) Rules, 2016 to persons re-employed Government Service and whose pay is debitable to civil estimates -reg.

Applicability of CCS (RP) Rules, 2016 to persons re-employed Government Service and whose pay is debitable to civil estimates -reg.

No. Conf/Re-emp.Ex-Service/2016-19

Dated - 01.01.2018

Shri Ajay Narayan Jha,
Secretary
Department of Expenditure
Ministry of Finance, Government of India
Room No.129-A, North Block
New Delhi - 110001

Sub: Applicability of CCS (RP) Rules, 2016 to persons re-employed Government Service and whose pay is debitable to civil estimates - reg.

Ref : DoPT O.M. No. F.No. 3/3/2016-Estt.(Pay-II) dated 18.10.2017.

Sir,
1. Confederation of Central Government Employees and Workers has received numerous complaints from re-employed ex-servicemen on the matter of their initial pay fixation in the re-employed posts. We have taken up this case in the Standing Committee meeting of JCM National Council as an agenda item. Minutes of the Standing Committee meeting circulated in DOP & T OM No.3/3/2016-JCA dated 08-08-2017 is reproduced below:

"S.No.36 - Removal of ambiguity in fixation of pay of re- employed ex-servicemen and grant of the same benefit extended to commissioned officers to Personal Below Officers Rank (PBOR) also.
Reply: Establishment Division in their comments dated 28-03-2017 had stated that -

(i) The first issue relates to pay fixation on re- employment in Civil Services and Public Sector Banks etc. Department of Financial Services (DoFS) is stated to have clarified that pay fixation of ex-servicemen would be through protection of pay plus DA drawn by them at the time of release from the Armed Forces. DoFS orders provide that in addition to the pay fixed on re-employment, pension and other retirement benefits would also be allowed.

(ii) Establishment Division of DOP&T has clarified to Department of Posts that initial pay on re-employment in case of ex-servicemen who had held posts below Commissioned Officers and Civilians below Group-A, shall be fixed as per the entry pay in the revised pay structure of the re-employed posts applicable to the case of direct recruits appointed on or after 01-01-2006.

(iii) Staff side says there is contradictions in the two clarifications and, as a result of the ambiguity, one section has benefited (Personnel who are covered under the instructions of DoFS) while others are not (Personnel who are covered under the instructions of DoPT). JS(E) stated that they had received a number of grievances and the Department of Welfare of Ex-Servicemen had also raised this issue. Presently there are two formulations for pay fixation of ex-servicemen - one for Group-A Posts and another for others - which is not an ideal situation. It was stated that the same is under active consideration and a decision is likely shortly."

We understand that it is in this background DOPT has circulated a revised draft proposal seeking opinion from other nodal Ministers. In that context, I would like to draw your kind attention to the succeeding facts and circumstances of the case.

History of Rules/ OMs Governing Pay-fixation on Re-Employment

2. Before delving into the above captioned subject, it would be prudent to retrace the evolution of statutory rules governing the initial fixation of pay of re-employed pensioners. The first comprehensive policy on the subject was issued by Department of Expenditure, MoF vide their O.M. No. 8(34)/Est. III/57 dated 25.11.1958 (Annexure-I) which when read in conjunction with Article 510-526 of Central Services Regulation (Annexure-II), inter-alia states that:-

(a) Re-employed pensioners should be allowed only the prescribed scales of pay, that is, no protected time scales such as those available to pre-1931 entrants should be extended to them.

(b) The initial pay, on re-employment should be fixed at the minimum stage of the scale of pay prescribed for the post in which an individual is re-employed. In cases where it is felt that the fixation of initial pay of the re-employed officer at the minimum of the prescribed pay scale will cause undue hardship, the pay may be fixed at a higher stage by allowing one increment for each year of service which the officer has rendered before retirement in a post not lower than that in which he is re-employed.

(c) In addition to (b) above the Government servant may be permitted to draw separately any pension sanctioned to him and to retain any other form of retirement benefit for which he is eligible e.g. Government's contribution to a Contributory Provident Fund, gratuity, commuted value of pension, etc.

3. The said policy was in vogue till 30.07.1986, with suitable amendments from time to time in so far as the amount of pension to be ignored while fixing the pay in the re-employed post is as given below :-

4. However, the subject was transferred to DoPT in 1986, therefore, all subsequent instructions were issued under the aegis of DoPT. One such impugned instruction is the CCS (Fixation of Pay of Re-employed Pensioners) Orders, 1986 issued vide DOPT OM No. 3/1/85-Estt. (Pay-II) dated 31.07.1986 (Annexure-VIII). The subject order has been subsequently amended by DOPT vide their O.M. No. 3/19/2009-Estt (Pay-II) dated 05.04.2010 (Annexure-XI), 08.11.2010 (Annexure-XII)and O.M. No. 3/3/2016-Estt (Pay II) dated 01.05.2017(Annexure-X). However, these orders have failed to incorporate 'Hardship Clause' for pay fixation in respect of PBORs which has resulted in lot of heartburn and anomalous situation of pay-fixation post 1986 order viz-a-viz pre-1986 retirees. The situation has worsened post implementation of the 6th CPC and the recent 7th CPC, causing large-scale upheaval among PBOR ex-servicemen and further resulting in unending litigation in various courts of law across the country. Confederation has submitted a representation in September 2015 addressed to Shri. Jithendra Singh, Minister for State, Department of Personnel explaining the above position and requested to review the DOP&T orders. The matter was taken up in JCM also as stated above. Under such circumstances, DoPT has now decided to formulate a new policy, for which they have sought comments of Department of Ex-servicemen Welfare, MoD, Department of Expenditure, MoF and Department of Pension and Pensioners Welfare. I would like to reiterate that unless there is a cogent reason, the policies affecting lives of millions of ex-servicemen should not be arbitrarily amended. This is especially evident from intentional/ unintentional omission of "hardship clause" from pay-fixation orders issued by DoPT which are at variance from the instructions issued by DoE till 1986.

5. It is also brought to the notice of Department of Expenditure that in view of large scale representation/litigation and discontent among re-employed ex-servicemen after issue of DoPT O.M.3/3/2016-Estt (Pay-II) dated 01.05.2017, Department of Ex-servicemen Welfare, MoD vide their O.M. No 28(11)2017/D (Res-I) dated 24.07.2017 (Annexure-XIII) had suggested DoPT to completely revive the provisions contained in DoE, MoF O.M. No. 8(34)/Est. III/57 dated 25.11.1958. But, the proposal of DESW stated in Para 6 of their above cited O. M. would only be beneficial only if status quo existed till 30.06.1986 is fully revived. In other words, any proposal to revive the 1958 Orders would be beneficial to re-employed ex-servicemen (PBOR) only if the entire pension is ignored for fixation of pay in the re-employed post, i.e. the pension is not to be taken into account while fixing the pay as per Ministry of Defence O.M. No. 2 (1)/83/D (Civ.I) dated 08.02.1983 and Ministry of Finance, Dept. of Expenditure No. F. 4 (3)-E. III (B)/82 dated 13.12.1983.

OPINION/ RECOMMENDATION OF THE CONFEDERATION

Computation of Pre-Retirement Pay for the purpose of Pay-Fixation

6. Similarly, the concept of pre-retirement pay (PRP) has undergone changes to the detriment of re-employed pensioners/ex- servicemen. It may be appreciated that Article 510 of Central Service Regulations, DoE O.M. 5(21)-Est. III(B)/64 dated 15.06.1964(Annexure XIV), DoPT O.M. No. 3/1/86-Estt (P.II) dated 31.07.1986 include all components of pay such as rank pay, increments of pay for length of service, Good Service Pay, Classification Pay and X-Group Pay as a part of PRP. However, the proposal sent by DoPT for comments only takes basic pay as PRP like Armed Forces Officers, while ignoring other components which are part of pension. It would be prudent to mention that PRP of Armed Forces Officer and Personnel Below Officer Rank (PBOR) has never been same and treating PRP of Armed Forces Officer as that of PBOR will not only create anomalous situation but also bring financial losses to PBOR.

Treatment of Military Service Pay.

7. It is submitted that as per Part I, Section-3 of Gazette Notification dated 30 August, 2008 (Annexure XV), Cabinet Resolution accepted Military Service Pay (Serial 2 of Annexure I-Part A) as part of pay in respect of all defence forces and is to be counted for pay fixation and pension in accordance with Para 2.3.12 of 6th CPC Recommendations(Annexure XVI). However, Defence Ministry arbitrarily overridden the above aspect through their O.M. dated 24.07.2009. Accordingly, DOPT has denied the benefit of MSP to all defence pensioners whereas the said O.M. of MoD was meant only for military officers on their re- employment within Armed Forces. In this context, I humbly refer to enclosed judgment of Hon'ble Supreme Court of India on Civil Appeal No 3744 of 2016 dated 08.12.2017(Annexure XVII) on admissibility of MACP on similar lines. In this judgment, Hon'ble Supreme Court has held that cabinet decisions cannot be overridden/ modified through the means of any executive order. Hence, Department of Expenditure may like to take cognizance of this ruling while forwarding its views to DoPT. It is imperative that the issue of MSP while fixing PRP is handled now in the spirit of above judgment which would go a long way in avoiding future litigation.

Methods of Pay Fixation

8. Since, DoPT has proposed to consolidate, rationalise and simplify existing orders on pay fixation of re-employed ex- servicemen (including reservists and ex-combatant clerks) in a single policy framework, we as representatives of employees including re-employed ex- servicemen, being a major stake holder in the matter would like to suggest that pay fixation policy envisaged from 25.11.1958 to 30.06.1986 may be revived. Accordingly, all re-employed ex-servicemen may be given two options to exercise, whichever may be beneficial to them and the subject option shall have a retrospective effect since 31.07.1986 at the discretion of affected ex-servicemen, as under :-

(a) Option I - The initial pay, on re-employment shall be fixed at the minimum of the scale of pay prescribed for the post in which the individual is re-employed. After fixing the pay as above, in case the initial pay is lesser than the last pay drawn (pre-retirement pay), such cases are to be treated as causing undue hardship, the pay is to be fixed at a higher stage by granting one increment for each year of service rendered by him, so as to bring the initial pay at par with the pre-retirement pay. The pay so fixed is to be treated as "minimum of the pay scale". In addition to the above, the government servant is permitted to draw pension and all other forms of retirement benefits including Dearness Relief on pension which he is eligible.

(b) Option II - The initial pay of a re-employed pensioner shall be fixed in the time scale of the re-employed post at a stage equivalent to the stage that would have been reached by putting in the Civil Posts, the number of completed years of service rendered in the posts in the Armed Forces. The pay so fixed will not be restricted to the 'pre- retirement pay'. The pension (including pension equivalent retirement benefit) may be reduced from the pay so fixed after ignoring an amount of Rs.15000/- as proposed by DOPT. In addition to the above, the government servant is permitted to draw pension and all other forms of retirement benefits including Dearness Relief on pension which he is eligible. (The amount of ignorable part of pension and PEG for pensioners re-employed prior to 01.01.2016 will remain at Rs.4000/-).

9. It is requested that the proposals of this Confederation may kindly be considered on merit while formulating DoE views for onward submission to DoPT. I am hopeful that appropriate policy would be formulated in consonance with the spirit of government orders in vogue till 1986.

Thanking You

Encl: As stated.

Yours faithfully,

(M. Krishnan,)
Member, Standing Committee,
National Council JCM &
Secretary General,
Confederation of Central Government Employees & Workers.
Mob: 09447068125, Email: mkrishnan6854@gmail.com

Source - http://confederationhq.blogspot.in/