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2003 DIGILAW 122 (RAJ)

Raj Krishna Duggar v. State of Rajasthan

2003-01-28

JAGAT SINGH, RAJESH BALIA

body2003
JUDGMENT 1. 1. We have heard learned counsel for the parties. 2. The appellant-petitioner was erstwhile employee of the State of Rajasthan until 30th June, 1963. Thereafter, with effect from 1st July, 1963, he was permanently absorbed in the then University of Jodhpur (now known as Jai Narain Vyas University, Jodhpur). The appellant-petitioner ultimately retired in the year 1979 from the University. 3. The petitioner's claim in the writ petition relates to computation of pension for which he is entitled against the qualifying services he rendered under the State of Rajasthan. 4. There is now no dispute amongst parties that an incumbent such as the petitioner is entitled to pension from both the employers proportionately for the services rendered under each. 5. According to the appellant-petitioner, he was entitled to be fixed as per his average emoluments drawn over last 36 months, as on 30th June, 1963, which ought to be at Rs. 54.25 as on 1.7.1963 and he was thereafter entitled to Temporary Increase at the rate of Rs. 10/- per annum, as per option-II for which he was entitled to opt and that option he exercised on 26th June, 1987. 6. We are given to understand that two options were open for computing pension for retiring incumbents, for the qualifying services rendered by him under the State. In option-I, Dearness Allowance was considered to be part of total emoluments and pension is to be calculated on that basis i.e. taking the total emoluments including D.A. on the relevant date. As per this option, initially pension amount is little higher than option-II, for the obvious reason of inclusion or exclusion of DA in computing total emoluments for the purpose. The option-II was about foregoing inclusion of the Dearness Allowance towards computation of total emoluments on the relevant date for the purpose of determination of pension, in the first instance and the pensioner becomes entitled for a Temporary Increase in such pension at the rate of Rs. 10/- per annum. 7. The respondents have contended that the appellant-petitioner himself had given option, in the first instance on 12th February, 1986, for computing his pension as per Option No. 1, by including the D.A. towards total emoluments, which document has been produced on record as Annx. 6 to the writ petition whereas case of the appellant-petitioner before us is that Annx. 7. The respondents have contended that the appellant-petitioner himself had given option, in the first instance on 12th February, 1986, for computing his pension as per Option No. 1, by including the D.A. towards total emoluments, which document has been produced on record as Annx. 6 to the writ petition whereas case of the appellant-petitioner before us is that Annx. 6 can not be construed as his option but was merely a suggestive computation on both the methods. His option, in fact, he has tendered on 26th June, 1987 vide Annx. 7 only. 8. As the respondents did not accede to his request for change over in the method of computation of his pension with effect from 1st July, 1963, for the proportionate period of service he had rendered under the State of Rajasthan, he filed an appeal before the Rajasthan Service Appellate Tribunal. The Tribunal found that he had already given an option vide Annx. 6 dated 12th February, 1986 and the respondents having acted thereon, the appellant-petitioner could not have retraced his step and opt for the second one by subsequent communication dated 26th June, 1987 (Annx. 7). The order of the Tribunal was made on 11th December, 1991 in Appeal No. 27/89. 9. Aggrieved of the aforesaid order of the Tribunal, the appellant-petitioner preferred D.B. Writ Petition No. 6625/92, which finally came to be decided by the learned Single Judge because of change of assignment of business to Single and Division Benches in this Court. Learned Single Judge vide judgment under appeal agreed with the Tribunal about appellant-petitioner having given his option vide communication dated 6th February, 1986 and therefore, his shifting to second option was held to be not permissible. 10. The same contention has been raised before us by learned counsel for the appellant, urging that Annx. 6 can not be construed as an option given by him and Annx. 1 dated 26.6.1987 can only be treated as the option given by the appellant-petitioner. 11. Learned counsel for the respondents urged that tenor of two documents clearly goes to show that the appellant-petitioner had given a detailed computation about the manner in which his pension ought. to be computed from 01.7.1963 and also requested for benefit of increase in the pension with effect from 13.7.1979 in terms of Finance Department's order dated 17.10.1970. 11. Learned counsel for the respondents urged that tenor of two documents clearly goes to show that the appellant-petitioner had given a detailed computation about the manner in which his pension ought. to be computed from 01.7.1963 and also requested for benefit of increase in the pension with effect from 13.7.1979 in terms of Finance Department's order dated 17.10.1970. The same has been acted upon by the respondents and the appellant-petitioner is being paid his pensionary benefits in accordance therewith. 12. According to this computation, his pension as on 01.7.1963 was to be fixed at Rs. 56.10 and would be slightly higher than under second option. The appellant-petitioner in his letter Annx. 1 dated 26th June, 1987 has also referred that his pension with effect from 01.7.1963 may be kept at Rs. 54.25 'as originally computed' and he may be considered for annual Temporary Increase of Rs. 10/- as per Rules in force as on 01.7.1963. 13. The aforesaid request made by the appellant-petitioner clearly betrays that petitioner was originally fixed at Rs. 54.25 as per option-II, which was slightly lower than fixed as on 01.7.1963, which was made under option one. It was only in that context that a request was made by the appellant-petitioner on 12th February, 1986 to determine his pension "at Rs. 56.25 per month as on 01.7.1963, by giving a detailed computation how his pension ought to be so computed. Along with that he also made a prayer that as per Finance Department's order dated 17.10.1970, he may be given an increase of Rs. 17.50 in his pension with effect from 01.3.1970. The two documents clearly suggest that pension having been fixed at Rs. 54.25 under option No. 2, the appellant-petitioner was not satisfied as it was without inviting his option. Therefore, he invited attention of the competent authority for computing his pension correctly as per computation given by him, which was clearly in terms of option-I and also to allow annual increase in the pension as per Finance Department's order. This option having been granted, the appellant-petitioner again sought to revert to original of his pension, with a view to avail benefit of per annum Temporary Increase. Annexure 6 dated 12.2.1986 was, therefore, a clear option by the appellant-petitioner to revert to computation of his pension as on 01.7.1963, as per option 4, which resulted an increase in pension by Rs. 1.85p. Annexure 6 dated 12.2.1986 was, therefore, a clear option by the appellant-petitioner to revert to computation of his pension as on 01.7.1963, as per option 4, which resulted an increase in pension by Rs. 1.85p. It was also after this prayer vide Annx. 1 dated 26.6.1987 was accepted that he wanted to revert back to original fixation. 14. The findings of the Tribunal as well as of the learned Single Judge can not be interfered with on this aspect that appellant-petitioner secured determination of pension under option-I vide Annx. 6,from which he can not resile. 15. Accordingly, there is no merit in this appeal and the same is hereby dismissed. There shall be no order as to costs.Appeal dismissed. *******