AI Structured Summary
Not yet generated for this judgment
Judgment
Through the medium of instant petition, petitioner is seeking quashment of PO/Cell/03-04/28193-95 dated 12.02.2004 issued by respondent No.3 to
the extent it denies the benefit of SRO 19 of 1998 to the petitioner and also a direction to the respondents to calculate the pension of the petitioner in
terms of Revised Pension Rules issued vide SRO 19 of 1998 dated 01.12.1998 and accord all the benefits to the petitioner flowing therefrom along
with interest @ 12% per annum as directed by this Court vide judgment dated 31.05.2001.Â
The case of the petitioner is that he was serving in respondent Department. For grant of benefit of grade of the post of Principal w.e.f. 30.03.1981
at par with similarly situated persons, he approached the respondents. However, when respondents did not grant him the benefit of the grade at par
with similarly situated persons, he filed a writ petition, bearing SWP No. 707/93, which was disposed of vide judgment dated 31.05.2001, whereby this
Court held the petitioner entitled to the grant of benefit of the grade of the post of Principal w.e.f. 1981 when his juniors were given the grade and a
direction was issued to calculate the said benefit and release the same within a period of two months from the date a copy of the said order passed by
this Court was served upon the respondents.
When nothing was done, petitioner filed a contempt, petition bearing COA(SW) No.51-C/2002 titled K.L.Bhardwaj v. Vijay Bakaya and
others, seeking a direction to the respondents to comply with the judgment dated 31.05.2001 passed in SWP No.707/93. The said contempt petition
came to be disposed of vide order dated 13.10.2005. The operative part of the order dated 13.10.2005 reads as under :- “In the present case,
petitioner retired on 31.12.1995 and was entitled to the salary and other service emoluments as were payable to him on the said date though he
become pensioner w.e.f. 01.01.1996. Any emoluments which became payable after the date of retirement or when he ceases to be a government
servant, cannot be made the basis for grant of retiral benefit even if the said day follows the date of retirement or be the first day of his retirement.
Therefore, by no stretch of imagination, petitioner can be said to be entitled to seek the pensionary benefits at par with those who retired on 1.1.1996
or thereafter.
In view of the above, this contempt petition is disposed of with the direction that if the petitioner has been paid all pensionary benefits by treating his
emoluments as were payable to him on 31.12.1995, he is not entitled to any other amount. However, if anything remains payable on that basis, the
same may be paid and released in his favour within a period of two months.â€
Learned counsel for the petitioner contends that while disposing of the contempt petition, this Court had returned a finding about the entitlement
of the petitioner to claim the retiral and other service emoluments in terms of SRO 19, which was not permissible under contempt jurisdiction, as such,
being aggrieved of the said finding, the petitioner had approached the Division Bench of this Court with an LPA, which was finally withdrawn by the
petitioner with a liberty to take recourse to an appropriate remedy available to him under the law to get adjudicated the issue with regard to the
entitlement of the petitioner to seek pensionary benefits w.e.f. 01.01.1996. The Division Bench of this Court has further observed that anything said by
the Contempt Court shall have no bearing on any remedy to be taken by the petitioner herein, which would otherwise proceed uninfluenced by any
observation or finding returned in order dated 13.10.2005.Â
Learned counsel for the petitioner further contends that the petitioner, who admittedly attained the superannuation on 31.12.1995, continued to enjoy
the status of a government servant till midnight of 31.12.1995 and as such, the date of retirement in case of the petitioner, in any case, is to be taken as
01.01.1996 and not as 31.12.1995. The petitioner, having completed the age of superannuation on 31.12.1995 and relinquished the charge of his office
on 31.12.1995 (AN), shall be deemed to have effectively retired from service w.e.f. 01.01.1996 and as such, being a retiree w.e.f. 01.01.1996, he is
entitled to the benefit as accrued from the Revised Rules issued vide SRO 19 of 1998.Â
Respondents have filed the objections, contending therein that as per Rule 226 of the J&K CSR Vol-I, incorporated vide Finance Department’s
Notification issued under SRO 157 dated 24.03.1976, the retirement of the government employee in service on 01.01.1976 or appointed on or after
that date, shall take effect from afternoon of last day of month, in which the employee concerned attains the age of superannuation and hence the
contention of the petitioner that his retirement commenced from 01.01.1996 is not correct. It is further contended that at the time of retirement, i.e.
31.12.1995, the petitioner was drawing and disbursing the basic pay of Rs.6500/- in the scale of 4500-7300 and his pension was, accordingly,
fixed/authorised as Rs.3230/- on the basis of average emoluments drawn for the last ten months as per the Pension Rules in force on 31.12.1995. The
rationalization of pension structure for pre 01.01.1996 pensioners took place and as per Govt. Order No.46-F of 1998 dated 19.01.1998 read with
SRO19 dated 19.01.1998, the basic pension of the petitioner was revised from 3230/- to 8225/-. Besides, the commuted value of the pension (one third
of basic pension) was also authorised in favour of petitioner on the basis of pension fixed, i.e. Rs.3230/- as on 31.12.1995, as per Pension Rules
authorised in terms of Govt. Order No.90-F/89-F of 2001 dated 28.03.2001 and SRO 122 dated 28.03.2001 vide office letter No.PPO Cell/2003-
04/28193-95 dated 01.03.2004.
Heard learned counsel for the parties and perused the record.
In terms of SRO 19 of 1998 dated 19.01.1998, the provisions of the J&K Civil Service Regulations, 1956 were amended. The following was
inserted as Rule 5(bbb) in Civil Pension (Commutation Rules-Schedule):
“5(bbb) a Govt. servant who is retired from service on or after 01.01.1996 shall be entitled to commute 40% of his pension payable to him.â€
By another Govt. Order No.46-F of 1998 dated 19.01.1998, the Government ordered the rationalization of pension structure for the pre 01.01.1996
pensioner/family pensioners wherein the definition of existing pensioners as well as existing pension was also given. It provided in the following
manner:
“2. In these orders:-
a) “Existing pensioner “and, existing family pensioners will mean a pensioner who was drawing/entitled to pension/family pension on 31.12.1995.
b) “existing pension†will mean the basic pension inclusive of commuted pension of pension, if any, due on 31.12.1995.â€
From the above Govt. Order, it is evident that the petitioner, in no case, falls under the category of pre 01.01.1996 pensioner as his status as on
31.12.1995 was not that of the pensioner but, as contended by the learned counsel for the petitioner, the petitioner was an employee under active
Government service till 31.12.1995 (AN) and on 31.12.1995, he was discharging his duties and thus, he became pensioner only on 01.01.1996. In that
view of matter, by no stretch of imagination, it can be presumed that the petitioner was an existing pensioner as on 31.12.1995 as described under
Govt. Order No.46-F of 1998 dated 19.01.1998. It is also contended that the petitioner being a retiree on 01.01.1996, he is entitled to the benefit
flowing from SRO 19 of 1998 and, as such, entitled to pensionary benefits, accordingly. But the contention of learned counsel for the respondents is
that petitioner is not entitled to any benefit of emoluments as were payable to the Government servants, who retired on 01.01.1996, as the effective
date of his retirement continues to be 31.12.1995. It is admitted by petitioner that he retired on 31.12.1995, but it is argued that he continued to be in
service upto mid-night of 31.12.1995 and thus he is deemed to have retired w.e.f. 01.01.1996 and thus the emoluments as were payable to
Government servants on 01.01.1996 should be made the basis for calculation of his post-retiral benefits.Â
A Full Bench of the Andhra Pradesh High Court in Principal Accountant General, A.P. and another Vs. C. Subba Rao reported as 2005 LAB
I.C.1224, while considering the similar question, whether a Government servant who retired on the last day of the month is entitled to the benefit of
annual increment, which falls on the 1stof the next month, held as under:
“As per F.R. 17, extracted hereinabove, a Government servant shall begin to draw the pay and allowances attached to his post with effect from
the date when he assumes the duties of that post until he ceases to discharge those duties. ""Pay"" as defined in F.R.9(21)(a) means, the amount drawn
monthly by a Government servant which also includes the increment given at an anterior date. Therefore, after retirement, a person will not be entitled
to any pay including the increment that may be due from the posterior date. F.R.22 regulates the initial pay of a Government servant who is appointed
to a post in time-scale and F.R.24 and F.R.26 regulate the sanction of increment to a Government servant, who is on duty. A reading of various
Fundamental Rules extracted hereinabove would show that a person appointed as a Government servant is entitled to pay in time-scale of pay. He is
also entitled to draw the increment as per time-scale of pay as a matter of course as long as such Government servant discharges duties of the post
and such Government servant shall not be entitled to draw the pay and allowances attached to the post as soon as he ceases to discharge those duties.
In other words, as per F.R. 17 read with F.Rs.24 and 26 annual increment is given to a Government servant to enable him to discharge duty and draw
pay and allowances attached to the post. If such Government servant ceases to discharge duties by any reason say, by reason of attainment of age of
superannuation, such Government servant will not be entitled to draw pay and allowances. As a necessary corollary, such employee would not be
entitled to any increment if it falls due after the date of retirement, be it on the next day of retirement or sometime thereafter.
The petitioner, in the present case, had retired on 31.12.1995 and was entitled to the salary and other service emoluments as were payable to him
on the said date, though he become pensioner w.e.f. 01.01.1996. Any benefits which became payable after the date of retirement or when he ceases
to be a government servant, cannot be made the basis for grant of retiral benefit even if the said day follows the date of retirement or be the first day
of his retirement. Therefore, by no stretch of imagination, the petitioner can be said to be entitled to seek the pensionary benefits at par with those who
retired on 01.01.1996 or thereafter. In this regard, this Court vide Order dated 13.10.2005 passed in COA (SW) No.51-A/2002 filed by the petitioner
has already elaborately dealt with the issue.Â
That being the situation and in view of the above discussion, I do not find any merit in the petition and the same is accordingly, dismissed along with
connected MP(s).