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2005 DIGILAW 295 (JK)

Gh. Mohi-ud-Din v. Accountant General

2005-11-09

MANSOOR AHMAD MIR, R.C.GANDHI

body2005
1. This Latters Patent Appeal is directed against the judgment dated: 28.05.2005 whereby learned Single Judge has dismissed the writ petition of the appellant seeking writ of mandamus to command the respondents to fix his pension in the revised pay scale of Rs. 14300-18300 of the post of Director Economics and Statistics, upgraded on 23.2.1996. 2. The petitioner while working as Director Economics and Statistics (hereinafter called as the Director) in the pay scale of Rs. 3700-5000 superannuated on 31.8.1995. His pension was fixed in this pay scale by the respondents. There was a revision of pay structure as on 1.1.1996. The pay scale of Rs. 3700-5000 was revised to Rs. 12000-16500. The Government vide order No. 276-F of 1998 dated: 19.1.1998 directed the respondent No.2, Accountant General, to revise the pension of the appellant accordingly to the revised pay scale of Rs. 12000-16500 which was revised. Post of Director was upgraded by the respondents vide Government order No. 25/PD of 1996 dated: 23.2.1996 from the pay scale of Rs. 3700-5000 to the pay scale of Rs. 4100-5700. 3. The respondents also issued SRO 18 of 1998 dated: 19.1.1998. Rule 20 thereof contains that all posts created or upgraded on or after 1.1.1996 to the date of issue of these rules shall be deemed to have been created or upgraded in the corresponding revised pay scales for those posts. The respondents ordered rationalization of pension structure in respect of government servants who retired before 1.1.1996 and issued SRO 122 of 2001 dated: 28.3.2001 entitling the government servants for pension at the rate of 50% in the revised pay scale introduced with effect from 1.1.1996. On the basis of this legal position the appellant filed the writ petition seeking to fix his pension in the revised pay scale of Rs. 14300-18300 in terms of rule 20 of SRO 18 read with Para 1-(A) of SRO 122 of 2001 date: 28.3.2001. 4. The respondents in their objections before the learned Single Judge have stated that the appellant is entitled to the pension in the pay scale of Rs. 3700-5000 which he was holding at the time of his retirement i.e. 31.8.1995 and accordingly his pension has been fixed. It is also stated that in terms of Government order No. 46-F of 1998 dated: 19.1.1998 his pension was revised entitling him to get the pension in the revised pay scale of Rs. 3700-5000 which he was holding at the time of his retirement i.e. 31.8.1995 and accordingly his pension has been fixed. It is also stated that in terms of Government order No. 46-F of 1998 dated: 19.1.1998 his pension was revised entitling him to get the pension in the revised pay scale of Rs. 12000-16500 w.e. from 1.1.1996. 5. On appreciation of the rival contentions of the learned counsel for the parties learned, the Single Judge dismissed the claim of the petitioner holding that the appellant is only entitled to the pension on the revised pay scale existing on 1.1.1996 which the respondents have allowed to the appellant. 6. Aggrieved of the order of the learned Single Judge, the appellant has challenged its correctness and legality by means of this appeal on the same grounds as set out in the writ petition. 7. We have heard learned counsel for the parties and perused the record. 8. The admitted facts and legal position is that petitioner at present is getting pension in the revised pay scale of Rs. 12000-16500 though he at the time of his retirement i.e. 31.8.1985 was holding the pay scale of Rs. 3700-5000. Now the question to be addressed is as to whether in terms of the provisions of rule 20 of SRO 18, the appellant is entitled to get the pension in the upgraded pay scale of Rs. 4100-5700 of the post of Director which has been revised to the pay scale pay scale of Rs. 14300-18300. Vide SRO 122 of 2001, the following provision of law was inserted after Ist. Para of Art. 240 A (V) of the Civil Services Regulations; "w.e.f. 01.01.1996 full pension of all the pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post last held by the pensioner. Para of Art. 240 A (V) of the Civil Services Regulations; "w.e.f. 01.01.1996 full pension of all the pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post last held by the pensioner. However the existing provisions in the rules governing qualifying service and minimum pension shall continue to be operative." This provision of laws envisages that full pension of all the pensioners irrespective of the date of their superannuation shall not be less than 50% of the minimum of the pay in the revised pay scale introduced with effect from 1.1.1996 of the post last held by them, which means that the pensioner shall get pension not less than 50% of the minimum in the revised pay scale as it stood on 1.1.1996. This benefit has been granted by the respondents to the petitioner as the appellant is getting his pension in the revised pay scale of Rs. 12000-16500 which pay scale was revised from the pay scale of Rs. 3700-5000, held by the petitioner at the time of his retirement. The appellant has not disputed this position in terms of the fixation of his pension. 9. The dispute projected by the appellant is that he is entitled to the pension according to the spirit of the law contained in Rule 20 of SRO 18 of 1998 dated: 19.1.1998. Rule 20 for convenience is extracted below and reads as: "20. Creation of new posts: -- No post shall be created in future under the Government except in one of the revised pay scale shown in the schedule appended to these rules. All posts created or upgraded on or after 1.1.1996 to the date of issue of these rules shall be deemed to have been created or upgraded in the corresponding revised pay scale for these posts." This rule has been enacted to achieve two purposes: (i) that no post shall be created in future except in the revised pay scale and (ii) that all posts created or upgraded on or after 1.1.1996 to the date of issue of these rules i.e. 19.1.1998, shall be deemed to have been created or upgraded in the corresponding revised pay scales for those posts. The post of Director has been upgraded to the pay scale of Rs. 4100-5700 vide order No. 23.2.1996. The post of Director has been upgraded to the pay scale of Rs. 4100-5700 vide order No. 23.2.1996. This post has been upgraded after 1.1.1996 and before 19.1.1998 and therefore shall be treated to have been created in the corresponding revised pay scale of Rs. 14300-18300. The respondents were aware and alive to the facts that at the time of the upgradation of that post the pay scales were revised on 1.1.1996. Therefore, the pay scale of Rs. 14300-18300 shall be the revised pay scale of the post of the Director as on 1.1.1996. The respondents have already sanctioned the pension in the revised pay scale as it existed on 1.1.1996. The upgradation of the post of the Director with reference to Rule 20 of SRO 18 makes it abundantly clear that the pay scale of Rs.14300-18300 shall take effect with effect from 1.1.1996 therefore the petitioner is entitled to the pension in the revised pay scale as the post has been upgraded to the pay scale of Rs. 14300-18300 in between the period 1.1.1996 to 19.1.1998. 10. For the aforesaid reasons, the Latters Patent Appeal and the writ petition are allowed as the appellant is found entitled to the pension as observed above.