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Judgment
Nirmal Singh, J.—Petitioner has prayed for issuance of writ in the nature of certiorari for quashing order dated 16.8.1982, Annexure P-8 vide which the pension case of the petitioner for revision of pension was returned with the remarks that the benefit of revised pay for pensionary benefits cannot be given as the petitioner was on leave preparatory to retirement before 1.1.1978. Petitioner has further prayed that respondents 1 and 2 be directed to revise the pension and gratuity.
Petitioner was appointed as Clerk in the Department of Irrigation. Subsequently he was promoted as Superintendent Grade-II and retired from service on 31.1.1978.
It was pleaded that Punjab Government Finance Department vide letter No. 38/52/80-6 FR/11687 dated 22.12.1980 addressed to all Heads of Departments, liberalised the pension and family pension formula in pursuance of the recommendations of the Second Pay Commission. According to para 4 of the letter dated 22.12.1980, the Punjab Government employees retiring on or after the 1st January, 1978 but not later than 30th October, 1978 were allowed the following options for determining their pensions. The options are as follows :-
(1) They continue to draw pension as already sanctioned on the basis of their emoluments in the un-revised scale of pay and the old formula plus ad hoc relief as admissible thereon in addition to increase now being allowed to the pensioners who had retired prior to 1st January, 1978.
(ii) They may get their pensions revised as under :-
(a) In case of persons whore-tired on or after the Ist January, 1978 but not later than the 30th May, 1978.
One half of the pay appropriate to the equal of such emoluments as merged in the basic pay shall be added to the average emoluments.
(b) In case of persons who rc-tired or after the 3lst May, 1978 but run later than the 30th. October. 1978.
Full pay appropriate to the pay equal to such-emoluments as merged in the basic pay shall be added to average emoluments.
The employees were further asked to exercise their option within a period of four months from the date of issue of the aforesaid letter. The petitioner opted for sub-para (ii) (a) of para 4 of the aforesaid letter and this option was conveyed to the competent authority. In view of the option made by the petitioner, it was incumbent upon the authority to have revised the pension of the petitioner. But nothing has been done by the authority. It was further pleaded that Government of Punjab, Department of Finance, vide its letter No. 9/66/79-FR dated 13.3.1980 allowed once increment in the revised scale from 2.1.1978 to those Government Employees who were drawing maximum in the unrevised scale for more than a period of one year. It was further pleaded that as the petitioner was retired on 31.3.1978 and was drawing maximum in the un-re-vised scale for more than one year prior to the appointed day i.e. 1.1.1978, thus he was entitled to be granted on increment on 2.1.1978 in the revised scale.
The Superintending Engineer, Ferozepur Canal Circle vide letter No. 7262/652-C dated 16.7.1981 sent the revised calculation sheet in respect of the petitioner to the Accountant General, Punjab. The office of the Accountant General vide letter No. Pen.IX/Misc./81 -82/17327 dated 4.3.1982 informed the Superintending Engineer Ferozepur Canal Circle that the decision relating to the pensioners who retired between 1.1.1978 to 30.10.1978 had been received. Respondent No. 4 was further directed to send the case of the petitioner alongwith the service book and revised calculation sheet in accordance with the Punjab Government F.D. letter No. 38/52/80-6FR/3965 dated 20.4.1981.
Respondent No. 4 sent the case of the petitioner to Accountant General, Punjab for further action. 7. The Accountant General, Punjab vide letter dated 24.5.1982 returned the documents to respondents No. 4 with the following remarks :-
(i) The official was on LPR from 1.12.1977 till the date of his retirement. Therefore, there was no question of fixation of his pay in the revised scale as he did not resume duty on or after 1.1.1978 in terms of Finance Department letter No. 9/23/79- FD(G)/94 dated 6.3.80, the over payment, if any, may please be worked out and recovered.
(ii) Option if any exercised by the retiree in terms of para 4 of the Finance Department letter dated 22.12.1980 has not been supplied.
(iii) The calculation may be revised in terms of paras 1 and 2.
In view of the afore-mentioned remarks, a request was made to the Accountant General, Punjab to re-fix the pension of the petitioner in the revised scale w.e.f. 1.1.1978.
The Accountant General, Punjab vide letter dated 22.7.1982 informed the respondent No. 4 that the benefits of revision of pay scales, pension etc. could not be given to the petitioner as he was on leave preparatory to retirement before 1.1.1978 and did not join duties on or after 1.1.1978.
The petitioner approached the office of respondent No. 4 regarding his revised pension case. He was informed that respondent No. 4 is in touch with respondents 1 and 2 in connection with his case. Thereafter on 11.1.1983, the Superintending Engineer vide letter No. 252/652-C dated 11.1.1983 brought to the knowledge of Accountant General, Punjab that the Finance Department had clarified that the case of the employees who were on LPR on 1.1.1978 and retired on 31.1.1978, 31.3.1978 and 31.5.1978 were fully covered by para 4 of the Finance Department letter dated 22.12.1980 referred to above. In view of the said clarification, an intimation was sought from Accountant General whether the revised pension and gratuity case of the petitioner be sent to the office of A.G. Punjab after obtaining option from him under para 4 of the F.D. letter dated 22.12.1980. But no response has been given by the Accountant General. |t seems that respondents 1 and 3 do not want to consider the claim of the petitioner to which he is entitled under law.
Respondents 2, 3 and 4 have filed written statements and have not controverted the facts as pleaded in the petition. Respondents 2 and 3 have taken preliminary objection that the pensionary benefits under Rule 6.24(2) of C.S.R. Vol. II have already been given to the writ petition of the petitioner is not maintainable. Respondent No. 2 has admitted in the reply that petitioner opted for sub-para (ii) (a) of para 4 of the Punjab Government F.D. Letter No. 38/52/80/-6FR/11687 dated 22.12.1980, It is further pleaded that petitioner remained on LPR from 1.12.1977 till he retired on 31.3.1978 without resuming his duty after 1.12.1977, therefore, he was not entitled to revision of pay scales w.e.f. 1.1.1978 as envisaged by Rule 6.24(2) of Punjab CSR Volume II.
Respondent No. 2 has also pleaded that petitioner was not entitled to increase in his pension on account of revision, of pay scales which were not actually drawn by him. The pension of the petitioner has thus already been fixed and released in accordance with the aforesaid rules.
I have heard learned counsel for the parties and perused the record.
It is admitted case of the parties that petitioner was on LPR w.e.f. 5.8.1977 to 31.1.1978. The sole point which is to be determined in this petition is whether the petitioner is entitled to grant of increment on 2.1.1978 in view of Punjab Government F.D. Letter No. 9/66/79-FR dated 13.3.1980 and is entitled to revised pension and gratuity ?
Learned Deputy Advocate General, Punjab has submitted that the petitioner did not join duty on 1.1.1978 or thereafter till his retirement. Therefore, he is neither entitled to increment nor the revised pension. The submission made by the State counsel is without any basis.
Learned Deputy Advocate General failed to show any rule, regulation or administrative instructions of the department to the effect that if an employee is on leave preparatory to retirement, he is to join duty before his retirement. Learned DAG rather very fairly conceded that there is no rule which provides that an employee should join duty before his retirement.
The benefit of liberalised pension/family pension cannot be denied to the petitioner solely on the ground that he was on leave preparatory to retirement. In case of D.K. Nakara and others v. Union of India 1983(2) SLR 246, in para 65 it has been held as under :-
"That is the end of the journey. With the expanding horizons of socio-economic justice, the Socialist Republic and Welfare State which we endeavour to sct up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criteria; being in service and retiring subsequent to the specified date for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to he achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of ''being in service on the specified date and retiring subsequent to that date'' in impugned memoranda, Exhibits P.1 and P.2, violates Article 14 and is unconstitutional and is struck down."
As per the Punjab Govt. F.P. letter dated 13.3.1980. it has been decided to allow one increment in the revised scale from 2.1.1978 to those Government employees who were drawing maximum in the unrevised scale for more than a period of one year. Petitioner has pleaded that he retired on 31.3.1978 and he was drawing maximum in the unrevised scale for more than one year prior to the appointed day i.e. 1.1.1978. The respondents have not denied in their written statements that petitioner was not drawing the maximum in the unrevised scale for more than one year prior to the appointed day i.e. 1.1.1978. When the petitioner was drawing the maximum in the unrevised scale for more than one year, then on the basis of Punjab Government letter dated 13.3.1980, he is entitled to the grant of one increment.
In view of Punjab Government letter dated 13.3.1980, the increment earned by the petitioner even though, he was on leave preparatory to retirement is to be included in the average emoluments for calculating the pension as well as gratuity and other retiral benefits admissible to him.
The pension is to be fixed as per Rule 6.24 of the Punjab Civil Services Rules, which reads as under :
"6.24 Para 2 - If during the last ten months of his service a Govt. employee has been absent from duty on leave with leave salary, and also on extra ordinary leave which counts for pension or having been suspended, has been reinstated without forfeiture of service, his emoluments, for the purpose of ascertaining the average, should be taken at what they would have been had he not been absent from duty or suspended, provided always that, except as provided in note I, his pension must not be increased on account of increase in pay not actually drawn.
Note :- In the case of a Govt. employee who during the currency of leave preparatory to retirement upto 180 days on full pay was on earned leave during the last ten months of service had earned an increment which was not withheld during the currency of the earned leave not exceeding one hundred and twenty days, or during the first one hundred and twenty days of any period of earned leave exceeding one hundred and twenty days, such increments though not actually drawn, shall be included in the average emoluments."
The case of the petitioner is covered under note given underneath sub rule (2) of Rule 6.24 of the Punjab Civil Services Rules, Volume II.
The respondents No. 3 and 4 under whom the petitioner was working before his retirement have not denied that the petitioner was not entitled to the increment which is to be granted as per Finance department letter No. 9/66/79-FR dated 13.3.1980. The respondents No. 3 and 4 have also sent the case of the petitioner to the Accountant General, Punjab for revised pension but their contention is that the Accountant General has not agreed to the proposal. The Accountant General has not taken into consideration the note underneath para-2 of Rule 6.24 of Punjab Civil Services Rules, Volume II in the right perspective. As it has been noticed above that the petitioner was entitled to increment as per the Government instructions issued on 13.3.1980 and the case of the petitioner is fully covered by the Note underneath para-2 of Rule 6.24, therefore, the respondent authority is to calculate the average emoluments after granting the increment for the purpose of the pension and other benefits.
For the reasons mentioned above, the petition is accepted. The order Annexure P-8 is quashed and the respondents 1 to 3 are directed to issue revised pension and gratuity order in favour of the petitioner as per the recommendations of the Superintending Engineer-respondent No. 4. The respondents 1 to 3 are further directed to sanction the revised pension and gratuity within a period of 3 months. In case they fail to issue the revised pension and gratuity order then the petitioner will be entitled to 12 per cent interest on the amount of pension and gratuity which will be due to the petitioner.
Petition allowed.