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2008 DIGILAW 643 (PAT)

Thakur Prasad Singh v. State Of Bihar

2008-04-25

V.N.SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner and the State. 2. Petitioner having completed more than 33 years of service superannuated while serving as Dy. S.P. with effect from 31.1.1986 and thereafter his terminal benefits were finalized and pension fixed. Later Government of Bihar accepted the recommendations of the 5th Pay Revision Committee, in terms whereof the pension of the petitioner was revised with effect from 1.1.1996 at Rs. 3959.00 per month. 3. By filing this writ application petitioner has asserted that such revision of pension is arbitrary and violative of Articles 14 and 16 of the Constitution of India. According to him those who have completed more than 33 years of qualifying service and retired on or before 31.12.1985 are allowed pension of Rs. 5265.00 per month with effect from 1.1.1996 which is Rs. 1306.00 more than the petitioner who also superannuated after completing more than 33 years of qualifying service after 1.1.1986 but without completing ten months service in the revised scale. It is submitted that the anomalous situation has arisen because for revising the pension with effect from 1.1.1996 average of the ten months pay and emoluments in the revised scale is taken but as the petitioner served in the revised scale only for one month, his pension is revised on the basis of average of emolument of nine months in pre-revised and one month in revised scale. Those who superannuated on or before 31.12.1985 average of ten months notional pay and emolument in the revised scale is taken that is how their pension in the revised scale is more than the petitioner and others superannuating after 1.1.1986 but without completing ten months in the revised scale. On account of such fixation petitioner is suffering pecuniary loss of Rs. 1306.00 per month. 4. By filing counter affidavit State respondents with reference to the order passed by the Chief Secretary, Bihar bearing memo No.1577 dated 22.11.2007 has justified the fixation of the pensionary benefits of the petitioner on 1.1.1996 at Rs. On account of such fixation petitioner is suffering pecuniary loss of Rs. 1306.00 per month. 4. By filing counter affidavit State respondents with reference to the order passed by the Chief Secretary, Bihar bearing memo No.1577 dated 22.11.2007 has justified the fixation of the pensionary benefits of the petitioner on 1.1.1996 at Rs. 3,959.00 as according to the respondents in terms of the recommendation/resolution of the State Government pursuant to the submission of the 5th Pay Revision Committee report the pensionary emoluments of those who have superannuated after 1.1.1986 is required to be fixed taking into account the average of the ten months pay and emoluments but as the petitioner served in the revised scale only for one month till 31.1.1986, in his case for revising his pensionary emoluments, nine months pay and emolument were taken from the pre-revised scale admissible to him prior to 1.1.1986 and one months emolument in the revised scale whereas those who have retired on or before 31.12.1985, in their case ten months notional revised pay and emoluments effective from 1.1.1986 have been taken into account which is the reason for paying higher pension for those who have retired on or before 31.12.1985. Had the petitioner also retired one month earlier, his pension would also have been revised taking into account notional pay and emoluments in the revised scale for ten months but as the petitioner superannuate after serving for one month in the revised scale, he cannot be allowed the benefit of fixation of pension on the basis of notional pay and emoluments of nine months. 5. Having heard the Counsel for the parties I am of the view that petitioner who superannuated with effect from 31.01.1986 after completing more than 33 years of qualifying service but without completing ten months in the revised scale and those who superannuated on or before 31.12.1985 after completing more than 33 years of qualifying service also without completing ten months in the revised scale are similarly situate as both on the eve of retirement had completed more than 33 years of qualifying service but had not completed ten months in the revised scale, in the circumstances while revising their pension State Respondent ought to have dealt with by applying similar yardstick i.e. ten months pay and emoluments in the revised scale. To treat similarly situate employees differently is arbitrary and violative of Articles 14 and 16 of the Constitution of India. The action of the State respondent to revise pension of the petitioner on the basis of average pay and emoluments of nine months in pre-revised and one months in the revised scale is arbitrary and violative of Arts. 14 and 16 of the Constitution of India as the State respondents themselves while revising the pension of those who retired on or before 31.12.1985 after completing 13 years of qualifying service without serving in the revised scale took into account notional pay for ten months in the revised scale. Had the respondent treated the petitioner and others retiring after 01.01.1986 without completing ten months in the revised scale similarly and revised their pension on the basis of ten months notional pay in the revised scale present anomalous situation may not have arisen at all. 6. Accordingly it is deemed expedient to direct that as the petitioner served for only one month in the revised scale in his case also pension be revised after taking into account actual emolument for January 1986 and notional emoluments for the period February to October 1986 so that the reduced pension amount may be equal to those who have superannuated prior to 31.12.1985. Necessary exercise to re-fix the revised pension of the petitioner after taking into account the actual pay and emolument for January 1986 and notional pay for nine months in the revised scale i.e. February to October 1986 be completed as early as possible in any case within a period of two months from the date of receipt/production of a copy of this order. 7. This writ application is, accordingly disposed of.