DIRECTOR GENERAL, ESI CORPORATION NEW DELHI AND ANR. versus SHRI M.P. JOHN AND ORS.

Citation: [1998] SUPP. 3 S.C.R. 268 · Decided: 01-12-1998 · Supreme Court of India · Bench: SUJATA V. MANOHAR, G.B. PATTANAIK · Disposal: Appeal(s) allowed

Judgment (excerpt)

A DIRECTOR GENERAL, ESI CORPORATION NEW DELHI AND ANR. 
v. 
SHRI M.P. JOHN AND ORS. 
DECEMBER I, 1998 
B 
[MRS. SUJATA V. MANOHAR AND G.B. PATTANAIK, JJ.] 
Service Law-Ex-servicemen-Re-employment-Fixation of pay-
Government order dated 8. 2.1983 end Memorandum dated 2 5. // .19 58-
Fixation of pay at the minimum of prescribed scale on re-employment-
C Provision for fixation of pay at higher stage in case of hardship--Government 
order dated 19.9.85-Fixation of pay of re-employed pensioners-Provision 
for fixation of pay at minimum of scale-Entitlement to draw full pension from 
Military authorities-Respondent an ex-serviceman-Re-employed in 
appellant-Corporation-His pay fixed at minimum-Also entitled to full 
D pension-His contention that his pension has to be ignored in fixing his pay 
on re-employment-Rejection of-There was no hardship as contemplated 
under G.O. of 25.11.58, in the case of the respondent-Hence his pay fixation 
under the G.O. of 8.2.83 was proper-The Tribunal was not right in coming 
to the conclusion that the respondent's initial pay should be fixed by giving 
him one increment for each completed year of military service, ignoring his 
E pension-The impugned order of the Tribunal is, therefore, set aside. 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6872-
6875 of 1994. 
From the Judgment and Order dated 14.3.90 of the Central Administrative 
F Tribunal, Emakulam in 0.A. Nos.K 4 77 /88, K 504, K505 and 525 of 1988. 
G 
H 
WITH 
Civil Appeal Nos. 7622-23 of 1994 and Civil Appeal No. 6890 of 1994. 
S.K. Gambhir and Diwakar Chaturvedi, Advocates for the Appellants. 
V.C. Mahajan, Roy Abrahim, (Sudhir P.S.) for M.M. Kashyap, (Ms. 
Arnita Verma) for S.W.A. Qadri and Ms. Anil Katiyar for the Respondent>. 
The following Order of the Court was delivered : 
Civil Appeal Nos. 6872-6875 and 7622-23/94. 
268 
DIRECTOR GENERAL, ESI CORPN. v. M.P. JOHN 
269 
Learned counsel for the appellants states that in view of the decision A 
of the Court in Union of India & Others v. G. Vasudevan Pi/lay & Ors., (1995) 
1 JT 417 they are not pressing these appeals. The appeals are dismissed as 
not pressed. 
Civil Appeal No. 6890/94. 
Respondent No. 1 who was an ex- serviceman was re-employed by the 
appellant-corporation as Lower Division Clerk. His pay 'was fixed at the 
minimum of the pay scale and' he was also entitled to his full pension as an 
ex-serviceman. The Government order of 8.2.83 inter alia, provides that in the 
, 
B 
case of ex-services men who retire before attaining the age of 55 years and C 
are re-employed (in the case of personnel below the rank of a commissioned 
officer) the entire pension may be ignored in fixing the pay on re-employment. 
This Government order was in operation at the material time along with the 
office Memorandum of25. l l.58. 
Under the office Memorandum of25. l l .58, re-employed pensioners were D 
allowed only the prescribed scales of pay. The initial pay, on re-employment, 
was required to be fixed at the minimum of the scale of pay prescribed for 
the post in which the ex-serviceman was re-employed. However , it was 
provided that where the fixation of initial pay of a ni-employed person, at the 
minimum of the prescribed scale of pay, would cause hardship, the pay may E 
be fixed at a higher stage in the scale by allowing one increment for each 
year of service which the officer had rendered before retirement in a post not 
lower than that in which he was re-employed. Under the clarification which 
was issued pertaining to this office Memorandum, "hardship" was defined as 
follows:-
"There would be a case of hardship if on re-employment, the total 
amount received by the ex-serviceman namely the minimum of the pay 
scale plus pension and pension equivalent of gratuity, whether ignorable 
or not, is less than the last pay drawn at the time of the retirement,''. 
F 
On 19.9.1985, another Office Memorandum was issued pertaining to the G 
fixation of pay ofre-employed pensioners (ex-servicemen). Under clause I, the 
pay of ex-serviceman upto the rank of non-commissioned officers re-employed 
on 25. I .83 or thereafter, may be fixed at the minimum of the pay scale under 
the Government oflndia order dated 25.11.58 and they will be entitled to draw 
full pension from military authorities subject to the fulfilment of other conditions 
as laid down in the order. 
H 
270 
SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R. 
A 
The respondent, in the present case, was re-employed on 29

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