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2002 DIGILAW 1591 (RAJ)

Jagdish Lal Mathur v. State of Rajasthan

2002-09-13

D.N.JOSHI, RAJESH BALIA

body2002
JUDGMENT 1. - Heard learned counsel for the parties.The instant appeal has been filed against the judgment of learned Single Judge dated 8.7.99. The appellant has filed S.B. Civil Writ No. 1414/99 to seek the consequential relief of pay fixation retrospectively with effect from 1.9.88 the date of w.e.f. which Revised Pay Scale Rules, 1989 came into force. 2. The appellant had retired from service on 31.8.1989. At the time of his retirement the appellant-petitioner was getting basic pay of Rs. 2360/- in the pay scale of Rs. 1160-2360/-. 3. The petitioner has in the first instance filed a writ petition before this Court bearing No. 3353/1996. On 24.4.98, the learned counsel for the respondent has submitted before the Court that the petitioner has been granted relief and the controversy did not survive. He has placed on record a copy of the order passed by the respondents. The said order was dated 24.2.1998 by which the petitioner's pay was fixed in the Revised Pay Scale of Rs. 1400-2600 w.e.f. 1.9.88 and the date of next increment was on 27.1.89. Consequently the basic pay was fixed at Rs. 2420 w.e.f. 27.1.89. With said order on record and statement of learned counsel for the State, writ petition was dismissed as having become insfructuous on 29.4.98. 4. The present grievance of the petitioner is that after the order dated 24.2.98 though he has been paid the arrears of salary w.e.f. the date of revision of pay till the date of retirement but fixation of pension and other retiral benefits on the basis of last drawn pay as per the revised pay had not been done. The writ petition filed by the petitioner S.B. Civil Writ Petition No. 1414 of 1999 out of which the appeal has arisen was dismissed by the learned Single Judge solely on the ground that since in the order dated 24.4.1998 the petitioner had recorded his satisfaction about the relief claimed by him. The second petition is not maintainable and therefore the present writ petition was dismissed. 5. The second petition is not maintainable and therefore the present writ petition was dismissed. 5. Having perused the material placed before us, we are of the opinion that very relevant fact has not been brought to the notice of the learned Single Judge that as on 24.4.98 only order of fixing the pay of the petitioner in revised pay scale w.e.f. 1.9.1988 had been done but by that day no consequential benefits had been released nor was it the case of the respondents when the earlier petition was dismissed as having become insfructuous by recording statement and noticing order dated 24.2.98 and no stage of actual payment in pursuance of such order has been reached. It was only expected that once pay has been fixed retrospectively w.e.f. 1.9.88 when the petitioner was in service consequential benefits will automatically follow within reasonable time. 6. The petitioner alongwith this writ petition had filed the remittances made in pursuance of the order dated 24.2.98 under cover of letter dated 1st July 1998. This payment has obviously been made after the order was passed in earlier writ petition referred to above. The order itself reveals that under said communication only arrears of salary as per revision of pay in the revised pay scale has been released. This communication which is after order passed in earlier writ petition on a demand was made for payment consequently thereto vide his letter dated 16.6.98. Said letter dated 1.7.1998 clearly goes to show that this referred to payment of arrears of salary amounting to Rs. 2218 only and no revision of pension and consequential payment of arrears of increased pension on the basis of revision of pay has been made. 7. Said letter dated 1.7.1998 clearly goes to show that this referred to payment of arrears of salary amounting to Rs. 2218 only and no revision of pension and consequential payment of arrears of increased pension on the basis of revision of pay has been made. 7. Therefore, cause of action for seeking mandamus to claim revision of pension on the basis of revised pay under Revised Pay Scales 1989 has arisen in favour of the petitioner when notwithstanding fixing the petitioner in revised Pay Scales 1989, which came into force retrospectively from a date before the petitioner's retirement, the consequential benefits have been confined to payment of arrears of pay to the petitioner only after order passed in the earlier writ petition while giving the consequential benefits to the order dated 24.2.1998 after the date of the order passed in writ petition No. 3353 of 96, only arrears of salary for the period until date of retirement were paid, but no revision of pension and other retiral benefits were made on the basis of revised pay and arrears on that basis were not paid. 8. Non fixation of pension as a result of revision of pay while in service and non payment of arrears notwithstanding revision of pay and payment of arrears of salary upto date of retirement was a fresh cause of action that has arisen after date of decision of earlier petition and could not be subject matter of earlier writ petition. 9. In the aforesaid circumstances the writ petition could not have been dismissed on the basis of decision in writ petition No. 3353/1996. 10. On merit there cannot be any dispute about the claim of the petitioner that once his pay was revised w.e.f. the date before his retirement and his last drawn emoluments were increased due to revision of pay in the revised pay scale, the determination of pension and other retiral benefits which takes place as on the date of retirement must also relate to such revised emoluments. The petitioner is entitled to the revision of pension and other retiral benefits on such revision of pay which admittedly has not been done so far. 11. Accordingly, we allow the appeal and set aside the judgment passed by the learned Single Judge. The petitioner is entitled to the revision of pension and other retiral benefits on such revision of pay which admittedly has not been done so far. 11. Accordingly, we allow the appeal and set aside the judgment passed by the learned Single Judge. We further allow the writ petition and direct the respondents to revise the petitioners retiral benefits including the pension w.e.f. 1.9.89 on the basis of the revised pay fixed in the pay scale of 1400-2600/- by the order dated 24.2.1998 within two months from today and arrears arising from such revision shall be paid to the petitioner within further period of two months from the date of such determination. The arrears shall be paid with interest as per the rules. 12. There should be no orders as to costs.Appeal and Writ Petition Allowed. *******