'Pay Minus Pension' formula applicable to Doctors Re-employed after Retirement- HC slams AIIMS Jodhpur for lackadaisical approach
Rajasthan High Court
Jodhpur: The Rajasthan High Court recently held that the 'pay minus pension' policy would apply to doctors who were re-employed after retirement. The bench 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.'
This observation was made by the HC bench while considering a batch of pleas that challenged the Central Administrative Tribunal's order, which held that AIIMS Jodhpur could not deduct pension from the pay of the re-employed doctors with retrospective effect by applying the formula of 'Pay minus Pension'.
However, the HC bench held that the 'Pay minus Pension' principle was an outcome of the statutory provisions and therefore it couldn't be obliviated merely because such conditions were not mentioned in the advertisement or the appointment orders.
"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. The ‘Pay minus Pension’ principle is an outcome of the statutory provisions, particularly the Orders of 1986, and Regulation 33 of the Regulations of 1999, and thus cannot be obliviated merely on the ground that such conditions were not mentioned in the advertisement or the appointment orders," observed the HC bench comprising Justices Pushpendra Singh Bhati and Chandra Prakash Shrimali.
The issue concerned doctors who were employed by AIIMS Jodhpur while receiving a pension from the Union of India. Their grievance was that on the strength of the provisions of All India Institute of Medical Sciences Act, 1956, All India Institute of Medical Sciences Regulations, 1999, Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986 as well as the Circulars of the Ministry of Health, Government of India and AIIMS, Jodhpur, they were being considered and treated as re-employed persons.
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After being appointed by AIIMS Jodhpur, the authorities sought their pension details, and the 'Pay minus Pension' policy was applied to them. While considering the issue, the Central Administrative Tribunal had held that since these doctors were getting pension and were re-employed by AIIMS Jodhpur, they certainly fell in the category of 'Re-employed Persons', as per Regulation 33 of the Regulations of 1999 and in the absence of any condition in the appointment order.
Secondly, the Tribunal had held that it was not legally permission for AIIMS, Jodhpur to deduct the pension from the pay of the Doctors with retrospective effect i.e. from the date of their appointment to the AIIMS, Jodhpur, by applying the formula of 'Pay minus Pension', being violative of the principles of natural justice.
Aggrieved by the first part of the order, the doctors had filed a plea before the HC. Meanwhile, the second part of the order was assailed by AIIMS, Jodhpur. It was argued by the counsel for the doctors that the formula/principle of 'Pay minus Pension' was neither there in the advertisement nor was it made applicable in the case of the Doctors at the time of appointment, and therefore, the same could not be imposed at any subsequent stage.
While considering the matter, the HC bench explained that currently, the Pay fixation of the government employees who are appointed in Central Civil Services is done in accordance with the Central Civil Services (Revised pay) Rules, 2016.
However, an exception is carved out on the applicability of the said Rules, under Rule 2(vi), on re-employed pensioners in Government Services. In cases of re-employed pensioners, including that of defense forces personnel/Officers, the bench noted that the pay fixation is carried out in accordance with Order of 1986 read with Office Memorandum dated May 1, 2017, Ministry of Personnel, Public Grievance and Pension Department of Personnel & Training, which requires the application of 'Pay minus Pension' formula in case of re-employed pensioners.
After perusing the rules, the bench noted that without any clear definition of the term 'reemployment', a purposive interpretation is required to be done in this regard. The bench observed that the doctors here are professionals who, after they retired from their government services, in pursuance of the respective notifications of Direct recruitment on the various faculty posts (Group 'A') in various Departments, were given appointment in the AIIMS, Jodhpur. They were appointed by issuing Office orders, where the pay matrix and rules applicable for their service were mentioned along with other details.
Clarifying that the services of the doctors are subject to the 1956 Act, and the Regulations of 1999, and the service conditions of the doctors appointed are government by the Central Civil Service Rules as applicable to the Central Government employees, the HC bench noted,
"This Court further observes that the provision of Regulation 33 of the Regulations of 1999, indicates that if a retired person is employed in the AIIMS, he/she is to be be treated as a reemployed person...Thus, there is no ambiguity in the findings of the learned Tribunal that Regulation 33 of the Regulations of 1999 is governing the field of the Doctors herein, and thus, they have been rightly declared as “re-employed” persons."
Addressing the policy of 'pay minus pension', the bench noted,
"The Orders of 1986 and ‘Pay minus Pension’ formula becomes a foregone conclusion once it is determined that the doctors are re-employed persons, and therefore, arriving at the second conclusion that since the conditions which were neither there in the advertisement nor in the appointment order would not apply in the case of the doctors herein, is not correct, because the Rules which apply to the service, including consolidated and conjoint reading of the Act of 1956, the Regulations of 1999 and Orders of 1986 clearly demarcates that once the employees are re-employed, the ‘Pay minus Pension’ formula should be applicable to them."
"The 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. It is true that it was a direct recruitment, but at the same time, Regulation 33 of the Regulations of 1999 clearly prescribed that such re-employment in common parlance of the Doctors was under the same employer i.e. Union of India," the bench further mentioned in its order.
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.
Therefore, the bench held that the doctors were re-employed and they shall be governed by the applicable provisions of law regarding their pay fixation, and the 'pay minus pension' formula would be applied to them in its true spirit and essence, prospectively, from the date of the order.
"...accordingly, the recovery of amount by application of “pay minus pension” shall not be made with retrospective effect i.e. from the date of their appointment in AIIMS, Jodhpur. All pending applications stand disposed of," the bench ordered.
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/rajasthan-hc-judgment-290519.pdf
