Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 257 (PAT)

Sita Ram Chaudhary v. State Of Bihar

2008-02-06

BARIN GHOSH, RAJESH BALIA

body2008
Judgment 1. Heard learned counsel for the parties. 2. The grievance of the petitioner is about revision of his pensionary benefits in terms of order, Annexure-2, dated 21st of September, 2001, which, according to the petitioner, has not been taken into account while revising his pension in the revised pay scales and consequently his pension has been determined at a lower stage. 3. The facts of the present case are that the petitioner has been promoted before retirement on 25th of July, 1996 on the post of Subordinate Judge and was placed in the pay scale of Rs. 3,372 to Rs. 5,500 with effect from 1st of January, 1986. He retired on 31st of December, 1996. His initial pension was fixed on the basis of pay which he was actually drawing on the date of his retirement. Subsequent thereto the petitioner, by order dated 21st of September, 2001 was accorded promotion, termed as a need based promotion, to the third level of need based post. In other words, he was promoted to the third level post amongst the hierarchy of the judicial services. He was appointed, in the first instance, as a Munsif, now redesignated as Civil Judge, Junior Division. He has been promoted in 1996 as Civil Judge, Senior Division, that is to say the second level of the promotion post in the cadre and by order dated 21st of September, 2001 he was promoted to the third level though the promotion was caused to be need based. The third level of the post identified as Additional District Judge at Rs. 4,500 to Rs. 5,700/- which is applicable to the post of Additional District Judge. This promotion was made with effect from 31st of May, 1990. 4. When the pay scale was revised and the Judicial Officer in terms of the recommendations made by First National Judicial Pay Commission the petitioners pension was also to be revised in terms of the said recommendations. 5,700/- which is applicable to the post of Additional District Judge. This promotion was made with effect from 31st of May, 1990. 4. When the pay scale was revised and the Judicial Officer in terms of the recommendations made by First National Judicial Pay Commission the petitioners pension was also to be revised in terms of the said recommendations. While revising the pension of the petitioner in the revised pay scales with effect from the date of his retirement, which was after 1st of July, 1996, petitioners pension was computed by considering him to have retired on the post of Subordinate Judge only and taking the pay scale applicable to the Civil Judge, Senior Division, in the revised pay scale, his pension was fixed at 50% of the salary which was drawable by Subordinate Judge in the revised pay scale applicable to the said post. In coming to this conclusion, apparently,the position of the petitioner which obtained as a result of order dated 21st of September, 2001 had not been taken into account. While the effect of order dated 21st of September, 2001, was that the petitioner was promoted to the post of Additional District Judge with effect from 31st of May, 1990 and he must be deemed to have retired from the post of Additional District Judge on 31st of December, 1996. The petitioner retired on the post of Additional District Judge on 31st of December, 1996. As a consequence of order dated 21st of September, 2001, his revised pension ought to have been fixed on that basis by considering the petitioner having been retired as Additional District Judge and the pension ought to have been fixed at pay scale as Additional District Judge. That having not been done, apparently the revised pay scale of the petitioner in pursuance of the recommendation of the First National Judicial Pay Commission suffers from the patent error. 5. As per scale of pay applicable to third level Judicial Officer as Additional District Judge was at Rs. 16,750 to Rs. 20,500 at the entry point, and Rs. 18,750 to Rs. 22,850 in the senior scale. 6. 5. As per scale of pay applicable to third level Judicial Officer as Additional District Judge was at Rs. 16,750 to Rs. 20,500 at the entry point, and Rs. 18,750 to Rs. 22,850 in the senior scale. 6. Even if we are to take the stand taken by the Accountant General to be correct that the petitioner had retired from the post of Subordinate Judge and not been promoted in the scales even then the fixation of the petitioners pension by taking his pay at the time of retirement in the scale of Rs. 10,000 to Rs. 15,200 cannot be sustained, nor taking the fixation of the petitioners pay in the pay scale of Rs. 12,850 to Rs. 17,550 is enough. If we consider the pay scales prescribed for the Civil Judge, Senior Division, it carries three pay scales, the entry point, the pay scale on first ACP (Assured Career Progression) and the second ACP. 7. It is not in dispute before us that the petitioner has been a Subordinate Judge since before 1986. By order dated 25th of July, 1996 the petitioner has been given a need based promotion in the second level of the cadre in the pay scale of Rs. 3,700 to Rs. 5,500 retrospectively with effect from 1st of January, 1986 and by order. dated 1st of July, 1996 he has been promoted to third level of promotion. 8. If petitioners promotion vide order dated 21st of September, 2001 is taken to be third level within the pay scales applicable for Subordinate Judge or Civil Judge (Senior Division) then too the last pay of the petitioner ought to have been taken in the third level of pay scales applicable to Subordinate Judge or Civil Judge (Senior Division) which is the same as pay scale as applicable to the post of Additional District Judge at entry level i.e., that is to say, Rs. 16,750-400-19,150-450-20,500. 9. By whatever route we travel, we reach same destination that petitioners pension ought to have been fixed by taking his last drawn salary in pay scale of Rs. 16,750 to 20,500 and not in the lower pay scale applicable to entry point scale of Civil Judge (Senior Scale) as has been done. 10. 16,750-400-19,150-450-20,500. 9. By whatever route we travel, we reach same destination that petitioners pension ought to have been fixed by taking his last drawn salary in pay scale of Rs. 16,750 to 20,500 and not in the lower pay scale applicable to entry point scale of Civil Judge (Senior Scale) as has been done. 10. Moreover considering that with effect from 1st of January,, 1996 the State of Bihar has implemented the Shetty Commission Report about grant of Assured Career Progression in case a Judicial Officer. The petitioner had not received any promotion in last five years since immediately before 1st of January, 1996 he has become entitled to first Assured Career Progression scale with effect from 1st of January, 1986. Not only this vide order dated 21st of September, 2001 the petitioner has been put in the scale of Rs. 4,500 to Rs. 5,700 which is otherwise payable to an Additional District Judge with effect from 31st of May, 1990. Considering from that also as on 1st of January, 1996 he becomes entitled to earn one Assured Career Progression as a Subordinate Judge on 1st of January, 1996, which could not have been less than the salary he was also entitled to. To this conclusion we reach from the fact that the two orders, which have been referred, do show that the petitioners service record had been satisfactory else these two orders would not have been passed during the period for which the service record was considered for grant of promotion to second and third level of posts. In that view also peti- tioner is entitled to get his salary fixed, in the pay scales under First National Judicial Pay Commission in the pay scale applicable to him, as noted above, Rs. 16,750-20,500 with effect from 1st of January, 1996. On that basis his last drawn salary as on 31st of December, 1996 ought to be determined and retiral benefits are to be computed on that basis. 11. Viewed from any angle the determination of petitioners revised pay under the scales recommended for the revision of pension as per the recommendations made by the first National Judicial Pay Commission is erroneous and requires to be reconsidered. 12. 11. Viewed from any angle the determination of petitioners revised pay under the scales recommended for the revision of pension as per the recommendations made by the first National Judicial Pay Commission is erroneous and requires to be reconsidered. 12. As we have found from the oruer, Annexure-2, that the petitioner has definitely been promoted against the vacancy caused by promotion of Sri A.K. Verma with effect from 31st of May, 1990 on the post of Additional District Judge, his retirement must- be taken to be from the post of Additional District Judge on 31st of December, 1996 and considering that his revision of pension ought to be determined afresh. 13. The petition is, accordingly, allowed with the aforesaid directions. The revised pension may be determined in the light of above discussions and arrears be paid to the petitioner within a period of three months from the date of production of this order or receipt of the order by the competent Officer entrusted with the task of revised pension. 14. No costs.