Sohan Singh vs State of Punjab

Nirmal Singh, J.—Petitioner has prayed for issuance of writ in the nature of certiorari for quashing order dated 14.6.1982, Annexure P-4 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 respondent 1 to 4 be directed to revise the petition and gratuity.

Petitioner was appointed as Signaller in the Department of Irrigation. Subsequently he was promoted as Head Signaller and was posted in Ferozepur Canal Circle. He retired from service on 31.1.1978.

It was pleaded that Punjab Government Finanace 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 :-

(i) 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 who re-tired on or after the 1st Janu-ary, 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 re-tired on or after the 31st May, 1978 but not 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 the 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, ft was further pleaded that Government of Punjab, Department of Finance, vide its letter No. 9/66/79-FR dated 13.3.1980 allowed one increment in the revised scale from 2.1.1978 to those Government Employees who were drawing maximum in the unre-vised scale for more than a period of one year. It was further pleaded that as the petitioner was retired on 31.1.1978 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 one increment on 2.1.1978 in the revised scale.

The petitioner vide letter dated 1513 dated 21.9.1981 brought into the notice of Superintending Engineer, Ferozepur Canal Circle, respondent No. 4 that his pay has not revised in view of the Punjab, Gov- ernment letter dated 13.3.1980. Petitioner further requested respondent No. 4 to direct Executive Engineer, Eastern Division to fix the pay of the petitioner in revised scale allowed by Punjab Government w.e.f. 1.1.1978 and revised calculation of petitioner''s pension and gratuity be submitted to the Accountant General, Punjab. Accordingly, respondent No. 4 vide letter dated 6.11.1981 directed the Executive Engineer, Eastern Division, Canal Colony to get the pension of the petitioner sanctioned on revised pay scale from the Account General, Punjab.

The Accountant General, Punjab vide letter No. Pen IX/Misc. 3/82/83 2306 dated 14.6.1982 has returned the revised calculation and service book of the petitioner to the Executive Engineer, Eastern Division, Ferozepur with the remarks the petitioner was on leave from 1.77 to 1.78 and he did not join duty on or after 1.1.1978 and as such he was not entitled to the benefit of revised pay and pensionary benefits in terms of F.D. Letter No. 9/23/79-FR(6) dated 6.8.1980.

Petitioner made a representation to the Executive Engineer, Eastern Division, Canal Colony, Ferozepur and a copy of the representation was also sent to Accountant General, Punjab, wherein it was stated that Chaman Lal Bhatia, another employee of the Department was on leave preparatory to retirement from 5.8.1977 to 31.1.1978 i.e. for about 180 days and he did not join duty on or after 1.1.1978, but the Accountant-General, Punjab issued revised gratuity payment order and revised pension payment order vide letter No. A.G. Punjab No. IX/C-6/78-79 G.O. No. 65895/Pb/19747-49 dated 10.3.1982 and letter No. A.G.IX/C-6/78-79/16739-42 dated 10.3.1982 respectively. It was further pleaded that respondent cannot adopt the policy of pick and choose and that petitioner is also entitled to increment on the basis of Punjab Government F.D. Letter dated 13.3.1980, although he was on leave preparatory to retirement on 31.1.1978, but was drawing the maximum in the revised scale for a period of more than one year prior to 2.1.1978.

It was further pleaded that increment earned by the petitioner was required to be included in the average emoluments and thereafter, pension of the petitioner was required to be refixed.

The respondents did not allow one increment and did not issue the revised pension order. Hence, this writ petition was filed.

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 so 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. 3S/52/80/-6F.R/11687 dated 22.12.1980. It is further pleaded that petitioner remained on LPR from 7.11.1977 till he retired on 31.1.1978 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. 7.11.1977 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 entilled 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 show 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 provide that an employee should join duty before his retirement. 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 graiuity and other retiral benefits admissible to him. 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.S. 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 set 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 failing 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 be achieved by grant of liberalised pension and the eligibility criteria devised being thoroghly 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.D. 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 31.1.1978 and he was drawing maximum in the unrevised scale for more than one year prior to the appointed day i.e. 1.1.1978. As stated above, 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. 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 extraordinary 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 Rule, Volume 11.

The respondents No. 3 and 4 under whom the petitioner was working before his retirement has 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 Serv- ices 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-4 is quashed and the respondents 1 to 3 are directed to issue revised pension and gratuity order in favour of the petitioner. The respondents 1 to 3 are further directed to sanction the revised pesion 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 grautiy which will be due to the petitioner.

Petition allowed.