A Prabhakar vs State Of TG

This writ petition is filed seeking a writ of mandamus declaring the action of the respondents in treating the retirement of the petitioner with retrospective effect vide proceedings No. E1/GVC.IV/PF/2001 dated 24.04.2001 and thereby denying and depriving the special grade pay and the annual grade increments due and payable to the petitioner in March, 2001, resulting in the petitioner drawing less pay/pension on par with his junior, as being illegal, arbitrary and contrary to the provisions of FR 22, and consequently, direct the respondents to revise and re-fix the petitioner’s pay and pension on par with his junior duly sanctioning the increment which fell due to the petitioner in March, 2001, with all consequential benefits without reference to the retrospective retirement.

The facts of the case, in brief, are that the petitioner was initially appointed as a Lower Division Clerk on 22.07.1968. Later, the petitioner was promoted as Upper Division Clerk and thereafter, as Superintendent vide proceedings dated 22.02.1993 and his services were regularized with effect from that date. It is stated that consequent upon the promotion, the petitioner’s pay was fixed in the pay scale of Rs.1330-6-1930-70-2630 under FR 22(a)(i) w.e.f. 02.03.1992. Subsequently, the respondents have issued a seniority list, wherein the name of the petitioner was shown at Sl.No.9 and the name of one Sri D. Anandam, who is junior to him in the category of Superintendent and whose services were regularized w.e.f. 27.12.1995, was shown at Sl.No.10. Thereafter, the petitioner fell sick. Hence, he submitted a representation dated 05.11.2000 to the respondent No.2 to permit him to retire on Medical Grounds.

It is stated that pursuant to the said representation, the petitioner was referred to the District Medical Board, which in turn, examined him and forwarded the Medical Report dated 23.01.2001 to the respondent No.2 declaring the petitioner to be completely and permanently incapacitated for further service of any kind in the Department due to ‘Lumber Spondylosis Arthrathritics in both knees and Thot in Tevior Syetal Luchermia’. While so, due to the medical conditions, the petitioner proceeded on Half Pay Leave from 27.02.2001 to 31.03.2001 handing over the charge to one Sri M. Anjaneyulu, Senior Assistant, in compliance to the proceedings of the respondent No.4 dated 05.03.2001.

It is further stated that subsequent to the recommendations of the District Level Committee and the District Medical Board, the petitioner was permitted to retire from service on medical invalidation pension and Medical Grounds w.e.f. 28.02.2001 vide the impugned proceedings dated 24.04.2001. Though the petitioner made the representation on 15.11.2000 i.e., prior to the issuance of the impugned proceedings, for sanction of Half Pay Leave from 27.02.2001 to 31.03.2001, the impugned proceedings were issued permitting the petitioner to retire with effect from 28.02.2001.

It is stated that the respondents unjustly denied the legitimate claim of eight years Special Grade Pay under the Automatic Advancement Scheme and also the increment, which fell due to the petitioner in March, 2001, as he continued to hold the post upto 02.05.2001 i.e., the date on which the impugned proceedings were communicated to him. It is further stated that though the petitioner made several representations to the respondents to revise and re-fix his pension, no action has been taken thereon.

The respondent No.2 filed counter affidavit inter alia stating that the petitioner was promoted as Superintendent and joined in the said post on 02.03.1993 and his services were regularized with effect from the said date. It is stated consequent to the said promotion, his pay was fixed under F.R. 22 (a)(1) w.e.f. 02.03.1993. It is further stated that the application made by the petitioner to retire on medical grounds was considered and his case was referred to the District Medical Board, Karimnagar, which in turn, has examined the petitioner and submitted the report dated 23.01.2001 stating that the petitioner is unfit to discharge his duties. As per G.O.Ms.No.214 dated 09.06.1998 and the recommendations of the District Level Committee, the petitioner was retired from service w.e.f. 28.02.2001, even though he was on leave.

It is further stated that as per G.O.(P.) No.290 dated 22.07.1993, an employee is eligible to be placed in Special Grade Scale, on completion of eight years of service. However, the petitioner is not entitled to Special Grade Pay, as there is a shortfall of two days for completion of eight years. It is further stated that due date of increment of the petitioner is June, 2001, but not March, 2001, and therefore, he is not entitled for increment, as he was already retired on 28.02.2001.

Heard Sri D. Linga Reddy, the learned counsel for the petitioner, and the learned Government Pleaders for Irrigation and Command Area Development, Finance and Planning and Services – I. Perused the record.

The learned counsel for the petitioner contended that by the impugned proceedings, the petitioner was permitted to retire from service with retrospective effect, which is contrary to service rules. He further contended that an employee, who is on leave or probation or undergoing training, does not cease to be a member of service. Therefore, the petitioner is entitled to the increment, which fell due in March, 2001, as he continued to hold post upto 02.05.2001 i.e., the date on which the impugned proceedings dated 24.04.2001 was communicated to him.

On the other hand, the learned Government Pleader for Services has stated that as per the Medical Board’s Report dated 23.01.2001, the petitioner is unfit to discharge his duties. Further, as per para 5 of G.O.Ms.No.214 dated 09.06.1998, the District Level Committee headed by the District Collector has recommended the retirement of the petitioner w.e.f. 28.02.2001. In view of the same, the petitioner had option to retire from service either on 23.01.2001 i.e., the date of issuance of the Report of the Medical Board or on 28.02.2001 i.e., the date on which the recommendation was made by the District Level Committee. He further contended that the petitioner is not entitled for Special Grade Pay, as there is a shortfall of two days for completion of eight years.

A perusal of the record shows that the petitioner was promoted as Superintendent vide proceedings of the respondent No.2 dated 22.02.1993 and his services were regularised with effect from the said date. As the petitioner fell sick, he made a representation to the respondent No.2 on 05.11.2000 to permit him to retire on medical grounds. Pursuant to the said representation, the petitioner was referred to Medical Board, which in turn, had examined him and issued Report dated 23.01.2001 declaring that the petitioner is completely and permanently incapacitated for doing further service of any kind in the Department due to his medical condition. While so, the petitioner proceeded on Half Pay Leave from 27.02.2001 to 31.03.2001 handing over the charge to one Sri M. Anjaneyulu, Senior Assistant, in compliance with the proceedings of the respondent No.4 dated 05.03.2001. However, the respondent No.4 vide the impugned proceedings dated 24.04.2001 permitted the petitioner to retire on Medical Invalidation Pension retrospectively with effect from 28.02.2001.

Admittedly, the petitioner proceeded on Half Pay Leave from 27.02.2001 to 31.03.2001, only after sanction of his leave by the respondent No.4 vide proceedings dated 05.03.2001. However, the impugned proceedings dated 24.04.2001 were issued by the respondent No.4 retiring him from service with retrospective effect i.e., 28.02.2001.

It is not in dispute that the petitioner is granted pension with effect from 01.03.2001. It is also not in dispute that the petitioner is deprived of the monetary benefit of Special Grade Pay to which he is entitled to, on the ground that there was short fall of two days for completion of eight years of service.

It is to be seen that if the respondent No.4 would allow the petitioner to retire from service after joining duty, the petitioner would not lose the monetary benefit of Special Grade Pay. It is to be noted that the petitioner opted for retiring from service only on medical grounds but not otherwise.

Further, except stating that an employee can be retired from service with retrospective effect, the learned Government Pleader has not brought to the notice of this Court any provision relating to retirement of an employee, who is on leave that too after sanctioning of the same by the competent authority with retrospective effect.

In view of foregoing discussion and as there is no provision in the Fundamental Rules with regard to the retirement of an employee with retrospective effect, this Court is of the opinion that the impugned proceedings dated 24.04.2001 issued by the respondent No.4 are unsustainable and per se illegal.

Accordingly, the impugned proceedings are set aside and the respondents are directed to re-fix the pay of the petitioner and pay the pension duly sanctioning the Special Grade Pay and other benefits to which he is entitled to, within a period of eight weeks from the date of receipt of a copy of this order.

The writ petition is accordingly allowed. There shall be no order as to costs.

Pending Miscellaneous Applications, if any, shall stand closed.