BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL,

CHANDIGARH BENCH AT CHANDIGARH.

O.A.NO. 060/00338/2016

Suresh Kumar Siwatch Applicant

Versus

Union of India & Others Respondents

Rejoinder to the written

statement on behalf of
respondents.

Respectfully Showeth:

Preliminary Submissions:

1. And 2. That the contents of these paras of written

statement are wrong and hence denied to the extent the

self serving interpretation has been given to the

contents of the documents annexed in the written

statement. The statement of the respondent is contrary

to DoPT OM dated 05.04.2010. In addition to general

instructions on implementation of pay scales/pay

structure, DoPT issues separate Office Memorandums

towards extending legitimate benefits to applicants and

other Ex-serviceman who took re employment under

different Central Govt services. The respondents cannot

discriminate while fixing the pay of applicants in the

light of so many instance mentioned in OA as well as

Para 5(c) of the present rejoinder. The pay of

applicants is also liable to be fixed in same manner as

has been done in cases of their colleagues/batch mates

serving in other offices within the department by

applying the same yard stick/OM’s as have been made

applicable in their case. As per the statement of

respondents it is understood that the issue of pay

fixation of re-employed military pensioners in EPFO for

the post of Security Assistant in the pay band scale of

Rs.4000-6000 (pre-revised) was sent to the Nodal

Department of Personnel & Training, New Delhi and the

advice has not come from the competent authority vide

note dated 02.05.2016 (Annexure R-1) as forwarded by

Ministry of Labour & Employment, New Delhi vide letter

dated 09.05.2016 (Annexure R-2). The respondents have

mentioned the post as ‘Security Assistant’ whereas it

is ‘Social Security Assistant’. The respondents plead

that the notional pay is required only in case of

Commissioned Service officers belonging to the Defence

Forces and civilian pensioners who held Group ‘A’ posts

at the time of their retirement. The respondents are

misleading the Hon’ble Tribunal by quoting that the

said para relates to officers only. Had it been the

intention of competent authority while incorporating

Para 3(v) in DoPT OM dated 05.04.2010, there was no

question to include the word “personnel”. On one hand,

respondents are stating that the notional pay

determination is in respect of personnel/officers who

retired prior to 01.01.2006 and who were re-employed

after 01.01.2006 and on the other hand the respondents

have stated that this is applicable in the case of

officers only. The word “personnel” means Ex serviceman

who held posts Below Commissioned Officer Ranks and

 Officers means who held posts on and above Commissioned

Officer Ranks.

The respondent department has interpreted Para 3(v) of

DoPT O.M. dated 05.04.2010 wrongly, the said aspect is

explained here under:

Para3(v) of DoPT OM dated

05.04.2010 (Annexure A-8) Correct Interpretation as per Applicants

Fixation of pay of The personnel / Officers who retried prior to 01.01.2006

personnel/officers who retired and who are re-employed after 01.01.2006, their pay on re-
prior to 1.1.2006 and who have
employment is to be fixed with reference to the fitment
been re-employed after
table of the Defence Service Rank / Civilian service post (as
1.1.2006:
the case may be) from which they had retired and the stage
of basic pay at the time of their retirement. On fixation of
In the case of personnel/officers
initial pay on re-employment, the re-employed post grade
who had retired prior to 1.1.2006
pay only to be allowed. Here, personnel means below
and who have been re-employed
after 1.1.2006, their pay on re- Commissioned Officer Ranks and Officers Means

employment will be fixed by Commissioned Officers.

notionally arriving at their revised
Illustration:
basic pay at the time of retirement
as if they had retired under the If an ex-serviceman retires from his previous service prior
revised pay structure. This will be to 01.01.2006 [Date of retirement : 28.02.2005] with
done with reference to the fitment basic pay of Rs. 5720 in scale of pay 5000-100-6500 [
table of the Defence Service including GCB Rs. 120 which is specially classed by
Rank/Civilian service post (as the President as pay vide FR SR Part-I Rule 9(21)(iii)] and re-
case may be) from which they had employed after 01.01.2006 in the scale of pay 4000-6000, [
retired and the stage of basic pay Date of joining 28.10.2006] , his initial pay on re-
at the time of their retirement.
employment will be fixed notionally arriving at their revised
Their basic pay on re-employment
basic pay at the time of retirement as if they had retired
will be fixed at the same stage as
under the revised pay structure. This will be done with
the notional last basic pay before
reference to the fitment table of the Defence Service
retirement so arrived at. However,
Rank/Civilian service post (as the case may be) from which
they shall be granted the grade
they had retired and the stage of basic pay at the time of
pay of the re-employed post. The
maximum basic paycannot their retirement. Their basic pay on re-employment will be
exceed the grade pay of the re- fixed at the same stage as the notional last basic pay before
employed post plus pay in the pay retirement so arrived at. However, they shall be granted
band of Rs.67000 i.e. the the grade pay of the re-employed post. [Refer PCDA
maximum of the pay band PB-4. Circular 471 dated 30.09.2011 for Defence Service Fitment
In all these cases, the non- Table ]
ignorable part of the pension shall
be reduced from the pay so fixed. In this regard, the initial pay on re-employment to be
arrived as follows [ in respect of personnel who retired
prior to 01.01.2006 and re-employed after 01.01.2006] : -

Pre-revised basic pay : 5600+GCB120

[ scale of pay 5000-100-6500 ]

[Notional Pay in the Revised Pay Structure = Revised Pay

Band +Grade Pay+ MSP+ “X” group pay, if any ]

Notional Pay : Pay Band (5200-20200)+2400+2000+1400 (if

applicable) = 10420+ 2400+ 2000+ 1400+ GCB120 = 16340

Pay in PB-I as per VI CPC i.e. as on 01.01.2006 : 13940

Grade Pay : 2400

Total Pay : 16340

It is also evident from the judgment of the Hon’ble

CAT, Bangalore in OA No. 1189 to 1196/2013 decided vide

order dated 18.06.2014 (Annexure A-13) that the

‘personnel’ means Below Commissioned Officers and

‘Officers’ means Commissioned Officers. Further the

Madras Bench of Hon’ble Tribunal in OA

No.310/01207/2015 vide its order dated 22.07.2016

granted the relief of removal of anomaly/pay fixation

pleaded in terms of OM dated 05.04.2010 in same manner

as had been given to similarly placed Ex-serviceman in

same department. Similar is the case of applicants in

present OA.

On Merits

1. That the contents of this para of written statement are

wrong and thus denied and the contents of this para of
 OA read with contents of para 1 to 2 of the Preliminary
Submissions of the present rejoinder are reiterated and
the same are not being repeated for the sake of
brevity. Applicants are entitled for the reliefs as
prayed in the present O.A.

2. That the contents of this para of written statement

need no reply.

3. That the contents of this para of written statement

need no reply.

4. (1 to 7) That the contents of these paras of written

statement need no reply being matter of record.

4. (8 and 9). That the contents of these paras of written

statement are wrong and hence denied and the contents

of these paras of OA read with contents of para 1 to 2

of the Preliminary Submissions of the present rejoinder

are reiterated and the same are not being repeated for

the sake of brevity. It is to humbly submitted that the

respondents have stated that their action in impugned

order is strictly in accordance with the advice

tendered by DoPT whereas the Internal Audit Party has

quoted irrelevant para in the matter i.e. 4(b)(ii)

which is not applicable to applicants. Further, it was

mentioned by the internal audit Party that “para

4(b)(i) is applicable to the petitioners”. The

respondents have falsely stated that audit was only

conducted at Rohtak office where applicants serve

whereas the details of all Audits where similarly

placed Ex-serviceman are serving has been obtained by

applicants under RTI Act, 2005 and reproduced in

 tabular form in sub para c of para 5 of present

rejoinder and the same is not being repeated for the

sake of brevity.

4(10)That the contents of these paras of written statement

are wrong and thus denied and the contents of these

paras of OA read with para 1 to 2 of the Preliminary

Submissions of the present rejoinder are reiterated

and the same are not being repeated for the sake of

brevity. The respondents had fixed the pay of the

applicants and granted benefits of financial

upgradation/promotion on their own without any fraud,

concealment, inducement on part of the applicants who

are group C & D employees. Applicants are Group ‘C’

and employees ‘D’ employees and severe hardship shall

be caused if recovery is allowed to be effected from

their pay as detailed out in Para 5(k) of their OA.

The impugned orders as well as unilateral action of

reduction of salary of applicants on refixation of pay

and recovery thereof with penal interest are

arbitrary, harsh, illegal, bereft of logic, against

the DoPT OM’s with regard to fixation of salary,

discriminatory, amounts to pick and choose, is against

the settled law, unjust, unfair, harsh and violative

of Articles 14 and 16 of the Constitution of India.

5. GROUNDS FOR RELIEF WITH LEGAL PROVOSIONS:

(a) That the contents of this para of written statement

are wrong and thus denied and the contents of this para
of OA read with para 1 to 2 of the Preliminary

Submissions of the present rejoinder are reiterated and

the same are not being repeated for the sake of brevity.

The judgment relied upon is distinguishable on facts of

present case.

(b) That the contents of this para of written statement

are wrong and thus denied and the contents of this para

of OA read with para 1 to 2 of the Preliminary

Submissions of the present rejoinder are reiterated and

the same are not being repeated for the sake of brevity.

(C)That the contents of this para of written statement

are wrong and thus denied and the contents of this para

of OA read with para 1 to 2 of the Preliminary

Submissions of the present rejoinder are reiterated and

the same are not being repeated for the sake of brevity.

The respondents have alleged that only audit was done in

office of applicants whereas it was done in number of

other offices where their colleagues and batch mates are

serving and at par with whom their pay was fixed and

there was no Audit objection or reduction of salary as in

case of applicants only. In RTI information with regard

to their pay fixation respondents are referring to OM’s

dated 11.11.2008, 08.11.2010 and in one 05.04.2010, the

applicants pay is also liable to be fixed by adopting

same manner as has been applied in their cases. The gist

of Information sought and obtained by applicants under

RTI Act, 2005 (Annexure A-14)as to no objection having

been raised for same parameters of pay fixation of

similarly placed Ex servicemen is as follows:

Name of Office No. of Employees Date of Audit Party visit Any observant- Comments /
whose pay has after refixation. - ion made IAP visit at Rohtak
been fixed on 03/11/2015

R O Gurgaon 16 IAP Visit on 13/06 to 21/06/2016 Nil i.e. after SRO Rohtak

RO Shimla 02 CAG Visit on 16/05 to 27/05/2016 Nil ---------

IAP Visit on 11/07 to 05/08/2016 Nil ---------

RO Dhehradun 02 IAP Visit on 13/06 to 08/07/2016 Nil ---------

RO Nagpur 02 IAP Visit on 20/01 to 26/02/2016 Nil ---‘’------

RO Peenya 06 IAP Visit on 29/02 to 24/03/2016 Nil ---‘’------

RO Ludhiana 01 IAP Visit on 23/01 to 21/02/2014 Nil before SRO Rohtak

SRO Karnal 01 IAP Visit on 01/06 to 10/07/2015 Nil ---‘’-----

AG Visit on 17/11 to 30/11/2015 Nil i.e. after SRO Rohtak

RO Chandigarh 02 IAP Visit on 02/05 to 27/05/2016 Nil i.e. after SRO Rohtak

(d to h) That the contents of these paras of written

statement are wrong and thus denied and the contents of
these paras of OA read with para 1 to 2 of the
Preliminary Submissions of the present rejoinder are
reiterated and the same are not being repeated for the
sake of brevity.

(i) That the contents of this para of written statement

are wrong and thus denied and the contents of this para
of OA read with para 1 to 2 of the Preliminary
Submissions of the present rejoinder are reiterated and
the same are not being repeated for the sake of brevity.
In case of ‘Purshottam Lal Das vs State of Bihar’ the
Hon’ble Supreme Court directed that “no recovery shall be
made from the amounts already paid in respect of the
promotional posts. However, no arrears or other financial
benefits shall be granted in respect of the concerned
period.”

(j) That the contents of this para of written statement

are wrong and thus denied and the contents of this para
of OA read with para 1 to 2 of the Preliminary
Submissions of the present rejoinder are reiterated and
the same are not being repeated for the sake of brevity.
The orders mentioned in this para of reply which are
impugned orders in OA are being termed as notices which
is blatantly wrong and an attempt to mislead.

(k to m) That the contents of these paras of written

statement are wrong and thus denied and the contents of
these paras of OA read with para 1 to 2 of the
Preliminary Submissions of the present rejoinder are
reiterated and the same are not being repeated for the
sake of brevity. The judgment relied upon is
distinguishable on facts of present case.

6. That the contents of this para of the written statement

need no reply.

7. That the contents of this para of the written statement

need no reply.

8 & 9. That the contents of these paras of written

statement are wrong and hence denied and the contents of

these paras of OA are reiterated and the same are not

being repeated for the sake of brevity. The applicants are

entitled to the reliefs prayed for in the present OA.

10 to 12. That the contents of these paras of written

statement need no reply.

It is, therefore, most respectfully prayed that

the O.A. of applicants may kindly be allowed while

granting the prayers sought therein while quashing the

impugned orders and action of the respondents in the

interest of justice, equity and fair-play.

 Place: Chandigarh

Dated: Applicant

Through Counsel

(ROHIT SETH, ANIRUDH GUPTA & DHARINDRA SHUKLA)

Advocate’s
Counsel for the applicant
Verification:

I, Suresh Kumar Siwatch (SSA), S/o Sh. Chattar

Singh, Aged 45 years, Regional Provident Fund
Commissioner, Sub Regional Office, Plot No.1,
Sector 3, Rohtak, Haryana, do hereby verify that
the contents of para 1 to 2 of preliminary
submissions, and Paras 1, 4 and 6 to 12 on merits
of above Rejoinder are true and correct as per my
knowledge and submissions made in para 2, 3 and 5
on merit, are believed to be true and correct as
per the advice of the counsel and there is no
concealment.

Place: Chandigarh
Dated: Applicant