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2005 DIGILAW 333 (RAJ)

Amar Singh Choudhary v. State

2005-02-04

R.P.VYAS

body2005
Judgment R.P. Vyas, J.-The instant petition has been filed by the petitioner claiming relief therein that the impugned order Annexure 5 issued by Vikas Adhikari, Panchayat Samiti, Ahore may be quashed and set aside and the respondents may be directed to amend the pension payment (Annexure 6), gratuity payment order (Annexure 7), and commutation of pension payment order (Annexure 8), to the effect that all retiral benefits including original pension of the petitioner be fixed in terms of Last Pay Certificate (Annexure 4) and issue a revised pension payment, gratuity and commutation of pension orders. It is further prayed that the respondents may be directed to work out the correct retiral benefits and pension as per Last Pay Certificate (Annexure 4) and make payment of the arrears of difference of retiral benefits including pension arrears at an early date along with interest @ 24% p.a. thereon. 2. Brief facts of the case giving rise to the instant petition are as follows: 3. Petitioner was initially appointed on the post of Assistant Inspector in the Cooperative Department on 112.1964. The State Government, vide its Notification dated 06.01.1996 (Annexure 1) invited applications for appointment on the post of Vikas Adhikari under Rajasthan Civil Services (Special Selection & Special Conditions of Services of Vikas Adhikari) Rules, 1982. In response to the said Notification dated 06.01.1996 (Annexure 1), the petitioner applied for the said post and was selected and appointed vide order dated 21.02.1997 (Annexure 2) on the post of Vikas Adhikari, on deputation for a period of one year. The petitioner after attaining the age of superannuation on 28.02.2003, retired from the post of Vikas Adhikari, Panchayat Samiti, Ahore, District Jalore vide order dated 11.02.2003 (Annexure 3) issued by the Chief Executive Officer, Zila Parishad, Jalore. 4. The petitioner produced his Last Pay Certificate dated 28.02.2003 (Annexure 4), issued by the Vikas Adhikari, Panchayat Samiti, Ahore for calculating his pension, gratuity and other retiral benefits etc. Thereafter, Vikas Adhikari, Panchayat Samiti, Ahore issued a subsequent Last Pay Certificate (Annexure 5) on imaginary basis. The grievance raised by the petitioner in the instant petitioner is to the effect that the Department of Pension and Pensioners Welfare, determined the Gratuity Payment Order on the basis of Last Pay Certificate (Annexre 5), instead of taking into consideration the Last Pay Certificate (Annexure 4). The grievance raised by the petitioner in the instant petitioner is to the effect that the Department of Pension and Pensioners Welfare, determined the Gratuity Payment Order on the basis of Last Pay Certificate (Annexre 5), instead of taking into consideration the Last Pay Certificate (Annexure 4). It is submitted by the learned Counsel for the petitioner that the pension and other retiral benefits of the petitioner were not determined on the actual basis pay which the petitioner was drawing at the time of his retirement. The petitioner is entitled to draw the pension and other retiral benefits as per the Last Pay Certificate (Annexure 4), whereas the petitioner has been given the pension and other retiral benefits based on the imaginary pay determined by the respondent authorities in terms of Last Pay Certificate (Annexure 5). Learned Counsel for the petitioner, therefore, submits that the action of the respondents in determining wrong pension and other retiral pension benefits of the petitioner based on imaginary Last Pay Certificate is arbitrary, erroneous, against the provisions of law and is discriminatory. Learned Counsel for the petitioner further submits that the petitioner, thereafter made a representation to the respondents authorities, but the same has not been taken into consideration till the date, hence this writ petition. 5. Learned Counsel for the petitioner in support of his contentions also produced decisions of Coordinate Bench of this Court rendered in Manohar Lal Jain vs. the State of Rajasthan in S.B. Civil Writ Petition No. 2525/1997 decided on 06.03.2002 and Kanheya Lal Sharma vs. State & Ors., in S.B. Civil Writ Petition No. 730/2003 decided on 18.09.2003 and submits that the matter in hand is squarely covered by the aforesaid decisions. He further submits that as per Rules 250 of the Rajasthan Service Rules, 1951 (hereinafter referred to as “the Rules of 1951”) which was subsequently amended by Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as “the Rules of 1996”), the petitioner is entitled to get his retiral benefits based on the Last Pay drawn by him as shown in Annexure 4, whereas the respondents have wrongly determined his pension and other retiral benefits on the basis of Annexure 5. 6. Controverting these submissions, learned Counsel appearing on behalf of the respondents submits that the petitioner was substantively holding the post of Assistant Inspector only, and was on deputation on the post of Vikas Adhikari. 6. Controverting these submissions, learned Counsel appearing on behalf of the respondents submits that the petitioner was substantively holding the post of Assistant Inspector only, and was on deputation on the post of Vikas Adhikari. 7. By drawing attention of the Court to the Notification Annexure 1, it is contended that the petitioner was appointed as Vikas Adhikari by way of deputation in accordance with the Rajasthan Service (Special Selection and Special Conditions of Service of Vikas Adhikaris) Rules, 1982 and one of the conditions of the Notification itself was that the candidate will retain lien in the parent department, and on their repatriation, they will not be entitled to protect the pay of Vikas Adhikari. On this basis, it is sought to be contended that since the petitioner was on deputation, the pension and other retiral benefits have rightly been calculated vide Annexure 5. It is further submitted by the learned Counsel appearing for the respondents that as per Rule 15 (Schedule II) of the Rules of 1982, the pension and other retiral benefits of the post shall be given on which the officer has worked in his parent department. 8. Learned Dy. Government Advocate appearing for the respondents, however, does not controvert the fact that the matter is squarely covered by the decisions rendered in Kanheya Lal Sharma and Manohar Lal Jain’s case (Supra). 9. I have heard rival contentions advanced by the learned Counsels appearing for the parties and scanned the entire record with respect to the facts existing on the record, as well as the provisions of the Rules and the decisions cited by the learned Counsel for the petitioners. 10. It is admitted position on record that the petitioner was initially appointed as Assistant Inspector. Later on, by virtue of Notification dated 06.01.1996 (Annexure 1), he was selected and appointed on the post of Vikas Adhikari vide order dated 21.02.1997 (Annexure 2) on deputation for a period of one year. The petitioner worked at various Panchayat Samities and lastly, after attaining the age of superannuation on 28.02.2003, he was retired vide order dated 11.02.2003 (Annexure 3) from the post of Vikas Adhikari, Panchayat Samiti, Ahore, District Jalore. The petitioner worked at various Panchayat Samities and lastly, after attaining the age of superannuation on 28.02.2003, he was retired vide order dated 11.02.2003 (Annexure 3) from the post of Vikas Adhikari, Panchayat Samiti, Ahore, District Jalore. The petitioner in support of his arguments has submitted his Last Pay Certificate 28.02.2003 (Annexure 4) issued by the competent authority, but later on, the respondent authorities have issued subsequent Last Pay Certificate (Annexure 5) on imaginary basis and determined the pension and other retiral benefits on the basis of the said Annexure 5. 11. The controversy thereafter is that, on such retirement, for the purpose of retiral benefits, the petitioner was issued the Last Pay Certificate (LPC) being Annexure 4 considering the emoluments as were being drawn by him as Vikas Adhikari and the pension etc., was to be determined accordingly. However, the Pension Department, vide Annexure 5 made an order to the effect that since the post of Vikas Adhikari is not in the cadre of Cooperative Department, and since the petitioner, at the time of retirement, was substantively appointed as Vikas Adhikari, and was only on deputation, therefore, according to Rule 250 of the Rajastthan Service Rules, for the purpose of calculating pension, his emoluments are required to be taken as if the emoluments he had received while on deputation. 12. According to Rule 250 of the Rajasthan Service Rules, 1951 (hereinafter referred to as "the Rules of 1951", the expression "emoluments" means: ". . . . . theemoluments which the Govt. servant was receiving immediately before his retirement and includes certain payments as detailed in Sub Clause (a) (b) (c) onwards as mentioned therein. Likewise according to Rule 250-C (1)(a), which has been insertted on 01.04.1970, the term emoluments means for the purpose of pension, service gratuity and death-cum-retirement gratuity is to mean the "Pay" as defined in Rule 7(24) and dearness pay appropriate to pay, if any, which the officer was receiving "immediately before his retirement. 13. I have also gone through the relevant provisions of amended Pension Rules which are subsequently amended i.e. Rajasthan Civil Services (Pension) Rules, 1996. According to Rule 45 of the Rules of 1996 "emoluments" means: ". . . . . 13. I have also gone through the relevant provisions of amended Pension Rules which are subsequently amended i.e. Rajasthan Civil Services (Pension) Rules, 1996. According to Rule 45 of the Rules of 1996 "emoluments" means: ". . . . . for thepurpose of Pension, Service Gratuity and Retirement/Death Gratuity means pay as defined in Rule 7(24) of Rajasthan Service Rules which a Government servant was receiving/or to which he was entitled to immediately before him retirement or on the date of his death”. 14. It also appears from the amended Rules that no changes have been made in the substituted provisions regarding pension and emoluments means pay which a Government servant was receiving/or to which he was entitled to immediately before his retirement. 15. In this view of the matter, for the purpose of Rule 250, 250-C and 7(24), for the purpose of calculating pension, the emoluments mean the pay which the officer was receiving immediately before his retirement, was obviously that of Vikas Adhikari, and it is not in dispute that the Last Pay Certificate (Annexure 4) was factually rightly issued on the basis of the matter, it is held that the petitioner is entitled to the retiral benefits on the basis of the Last Pay Certificate being Annexure 4. 16. The net out come of the aforesaid discussions is that the writ petition succeeds and is allowed. The Annexure 5 issued by the respondents authorities is quashed and set aside. The respondents authorities are directed to issue amended orders with respect to the pension payment, gratuity payment and commutation of pension payment order (Annexures 6, 7 and 8 respectively) on the basis of Last Pay Certificate dated 28.02.2003 (Annexure 4), issued by the respondents-authorities, while the petitioner was working as Vikas Adhikari at the time of his retirement. The respondents-authorities are further directed to do the needful within a period of three months from the date of receipt of certified copy of this order. In case, the amended pension payment is not made within the time stipulated by this Court, the petitioner will be entitled to get the benefit of interest @ 12% p.a. on the amount of arrears from the date of retirement. 17. With the aforesaid observations and directions, the writ petition stands allowed.