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2008 DIGILAW 840 (GAU)

Durgadas Purakayastha v. Union of India

2008-12-10

BIPLAB KUMAR SHARMA, P.K.MUSAHARY

body2008
JUDGMENT B.K. Sharma, J. 1. Heard Mr. B. Das, learned senior Counsel and Mr. S.M. Chakraborty, learned senior Counsel assisted by Mr. A. Sengupta, learned Counsel for the petitioner as well as Mr. P.K. Biswas, learned Asstt. S.G. representing the Accountant General, Tripura, Agartala. We have also heard Mr. S. Chakraborty, learned State counsel appearing for the State respondents. 2. The petitioner who was the member of Grade-I of the Tripura Judicial Service is aggrieved by the Annexure-F.1 F.2 and F.3 calculation sheets issued by the Office of the Accountant General, Tripura (A &E), reducing the amount of provisional pension and ordering for recovery Rs.76,375. The petitioner is also aggrieved by the Annexure-J communication dated 29.10.1998 by which he was conveyed with the decision that his qualifying service would be 23 years 8 months and 12 days as against the claim of the petitioner that the same should be 32 years. 3. The petitioner was a direct recruit Tripura Judicial Service Grade-1 Officer and he joined as Additional District and Sessions Judge, on 25.1.19983, In the normal circumstances, he would have retired from service on attaining the age of superannuation on 25.1.2005. 4. The petitioner was selected for appointment as Judicial member of the Central Administrative Tribunal, Patna Bench. He was so selected on the basis of recommendation made by the Hon'ble the Chief Justice of Gauhati High Court, Guwahati. Necessary notification in that regard was issued by Annexure-A order dated 30.8.1996 by the Government of India in the Ministry of Personnel, Public Grivance and Pension conveying the decision of the President of India to appoint the petitioner as Judicial Member. By Annexure-B notification dated 27.9.1996, the decision of the Governor of Tripura to the effect that the petitioner would go on retirement and such retirement would be deemed to be retirement on superannuation under Rule 22(b) of the Tripura Judicial Service Rules, 1974 protecting his all service and pensionary benefits under the said Rules. 5. By Annexure-C communication dated 26.9.1996, the Registrar of the Gauhati High Court, Guwahati intimated the Chief Secretary to the Government of Tripura, Agartala about the appointment of the petitioner, the then the District and Sessions Judge, West Tripura, Agartala as Judicial member in the Central Administrative Tribunal, Patna Bench. By the said communication, a request was made to issue notification retiring the petitioner for the purpose and enabling him to join the CAT. By the said communication, a request was made to issue notification retiring the petitioner for the purpose and enabling him to join the CAT. It was further conveyed that the retirement of the petitioner would be deemed to be under Rule 22(b) of the Tripura Judicial Service rules and that all service and pensionary benefits under the said rule would be protected. 6. The petitioner duly joined the service as Judicial member of the Central Administrative Tribunal, Patna Bench, and as per the terms and conditions of appointment, he continued as such for a period of five years. Upon his retirement from service, he was provided with the provisional pension of Rs.3,152 per month w.e.f. 7.10.1996 and provisional gratuity of Rs.75,000. It has been argued by Mr. Das, learned senior Counsel for the petitioner that as per of the operation the relevant rules such provisional pension is to remain operative for a period of six months and on expiry of the said period, the provisional pension is to be treated as final pension. He submits that the said stipulated period of six months having expired, the provisional pension of Rs.3,152 granted to the petitioner attained its finality and could not have been interfered with as has been done. 7. The petitioner, as stated above, is aggrieved by the Annexure-F series-calculation sheets issued by the office of the Accountant General, Tripura by which the monthly pension of the petitioner has been reduced to Rs.2,315 indicating that such reduction of monthly pension is to the tune of Rs.1,544. By the said calculation sheets the recovery of Rs.76,375 has also been proposed. By Annexure-J communication, the petitioner was conveyed that his total qualifying period of service would be 23 years 8 months and 12 days for the purpose of calculating the pension etc. 8. By the said calculation sheets the recovery of Rs.76,375 has also been proposed. By Annexure-J communication, the petitioner was conveyed that his total qualifying period of service would be 23 years 8 months and 12 days for the purpose of calculating the pension etc. 8. According to the petitioner, since he was allowed to go on retirement by Annexure-B notification dated 27.9.1996 issued by the Government of Tripura in the Law Department, clearly indicating that his retirement would be superannuation under Rule 22(b) of the Tripura Judicial Service Rules 1974 protecting his all service and pensionary benefits under the aforesaid Rules, he is entitled to get pension calculating his service up to the date of normal retirement, plus ten years of weightage as envisaged under the Rule 22(b) of the aforesaid Rules which on calculation in total comes to 32 years below the maximum prescription of 33 years. On the other hand the it is the case of the official respondents that the petitioner having retired from his service on his appointment as Judicial member of CAT in the years 1996, the petitioner is entitled to get his pension counting his service up to 1996 plus 10 years weightage as per Rule 22(b) of the aforesaid Rules. 9. In the counter Affidavit filed by the Accountant General, Tripura, it is their case that the provisional pension was calculated having regard to the facts and circumstances and the Annexure-B notification dated 27.9.1996 by which it was provided that the petitioner would be deemed to have retire on superannuation and would be entitled to get protection of his service and pensionary benefits. It has further been stated in their affidavit that a proposal was mooted to the Finance Department to the Government of Tripura to extend necessary relaxation towards protecting the pension of the petitioner taking his service up to 2.5.1.2005 as it was indicated in Annexure-B notification dated 27.9.1996. However, such proposal having not been accepted, the A.G. Tripura was left with no option than to recalculate the pension by Annexure-F series calculation sheets. 10. Supporting the case of the petitioner, the office of the Accountant General, Tripura by its Annexure-G letter dated 18.2.1997 requested the office of the District and Sessions Judge, West Tripura, Agartala to obtain necessary concurrence of the Finance Department for further necessary action. 10. Supporting the case of the petitioner, the office of the Accountant General, Tripura by its Annexure-G letter dated 18.2.1997 requested the office of the District and Sessions Judge, West Tripura, Agartala to obtain necessary concurrence of the Finance Department for further necessary action. For a ready reference the Annexure-G letter dated 18.2.1997 is reproduced below: OFFICE OF THE ACCOUNTANT GENERAL (A & E) No. Pen-1/Tripura Judicial Services/DDP/96-97/7141 dt.... To The Registrar, District and Sessions Judges Court, West Tripura District, Agartala. Subject: Pension proposal of Shri D. Purkayastha, Retired District and Sessions Judge (Retd. On 7.10.1996) (F/N) West Tripura, Agartala. Sir, With reference to the above mentioned Pension case received with your letter No. F2(d) (85) (14)-DJ/W/96/8388-89 dated 13.12.19961 am to state as follows: 2. It appears from the Notification No. F.I (8)-J(G)/82 dated 27.9.1996 issued by the Government of Tripura, Law Deptt. That Sri Purkayastha was allowed to retire pre-maturely on superannuation w.e.f. 7.10.1996 (F/N) without mentioning the provisions of the relevant pension rules as adopted by the Government of Tripura. The same may be indicated stating the provisions of the rules bid as Sri D. Purkayastha was due to retire on superannuation on 25.1.2005 (A/N) at the age of sixty years. 3. In this connection, this office letter No. Pen-3/Judicial Service, 96-97/1600 dated 10.9.1996 may please be referred. 4. Further such retirement has been deemed as retirement on superannuation under Rule 22(b) of Tripura Judicial Services Rule, 1974 in relaxation of normal Rules so as to give benefit of qualifying service for recruitment from the Bar and weightage in qualifying service from 7.10.1996 to 25.1.2005 A.D., has been allowed which is not applicable under Rule 36 of the CCS. (P) rules. 5. The Relevant Rules of Pension Rules 1972 under which weightage of qualifying service from 7.10.1996 to 25.1.2005 has been allowed may be mentioned with concurrence of the Finance Deptt. as per Rule 88 of CCS (P) Rules, 1972 for treating the retirement on superannuation pension (though to allowed to retire prematurely) as a special case in case of Sri D. Purkayastha, Retd. District and Sessions Judge, West Tripura District. In view of the above concurrence of the Finance Deptt. May be obtained in this regard and conveyed to this office for further necessary action. District and Sessions Judge, West Tripura District. In view of the above concurrence of the Finance Deptt. May be obtained in this regard and conveyed to this office for further necessary action. The weightage if any admissible to the qualifying service of Sri D. Purkayastha may be indicated in Form 7 (which is returened herewith) under proper attestation quoting rules supporting such weightage. Yours faithfully, Sd/- Senior Accounts Officer. 11. We have considered the submissions made by the learned Counsel for the parties and the materials on record. Admittedly, the provisional pension granted to the petitioner was reduced by Annexure-F series calculation sheets without affording any opportunity of being heard to the petitioner. Likewise Annexure-J communication dated 29.10.1998 conveying the decision to count the qualifying service as 23 years 8 maths and 12 days was also issued to the petitioner without affording him an opportunity of being heard. Neither in the calculation sheets nor in the Annexure-G communication dated 29.10.1998 there is any reference of the Annexure-B notification dated 27.9.1996 which is reproduced below: No.F.1(8)-J (G)/82 GOVERNMENT OF TRIPURA LAW DEPARTMENT Dated, Agartala, the 27th September, 1996. NOTIFICATION On the recommendation of the hon'ble Gauhati High Court and in the interest of Public Service, the Governor of Tripura is pleased to order retirement of Shri Durgadas Purkayastha, District and Sessions Judge, West Tripura, Agartala (a Officer of Tripura Judicial Service) on his being appointed as Judicial Member of Central Administrative Tribunal, Patna Bench. The Governor is also pleased to order that such retirement shall be deemed to be retirement on superannuation under Rule 22(b) of Tripura Judicial Service Rules, 1974 protecting his all service and pensionary benefits under the aforesaid rules. The retirement will be effective from the date of his joining to the Patna Bench of the Central Administrative Tribunal. By order of the Governor Sd/- B.K. Banerjee L.R. and Secretary (Law) Government of Tripura. 12. The petitioner was appointed by the President of India as Judicial Member of CAT with due approval of the hon'ble the Chief Justice, Gauhati High Court. He had gone to the services of the Central Administrative Tribunal for public purpose. By order of the Governor Sd/- B.K. Banerjee L.R. and Secretary (Law) Government of Tripura. 12. The petitioner was appointed by the President of India as Judicial Member of CAT with due approval of the hon'ble the Chief Justice, Gauhati High Court. He had gone to the services of the Central Administrative Tribunal for public purpose. There was no indication in the communication made and orders passed in respect of such appointment of the petitioner in the Central Administrative Tribunal on the basis of the deemed retirement in, the year 1996, that he would be deprived of his normal pensionary and other retirement benefits which otherwise would have accrued to him, had he continued in service up to 25.1.2005. A clear understanding was given to him that it would be his deemed retirement on superannuation and that he would be entitled to all service and pensionary benefits under the rules. It is on such a promise made out to the petitioner he accepted the same and joined the CAT as Judicial member. In fact the office of the Accountant General, Tripura also calculated the monthly pension as provisional on that basis. However, since approval of the Finance Department was not forthcoming, the Accountant General, Tripura, had no option than to re-fix the monthly pension of the petitioner reducing the same to the tune of Rs.1,544 with further order towards recovery of the amount of Rs.76,375. 13. Rule 35 of the CCS (Pension) rules provides for Superannuation pension. That superannuation had been mentioned in Annexure-B notification dated 27.9.1996. In case of any difficulty and as suggested by the Accountant General, Tripura, the Government of Tripura in the Finance Deptt. could have invoked the provisions of Rules 88 of the pension rules which confers power to relax. In the counter Affidavit filed by the Accountant General it has been stated that the provisional pension was provided to the petitioner in anticipation of such relaxation and thereafter a proposal was mooted for relaxation of the rules as the simple calculation, which the Government of Tripura eventually may be caused hardship to the petitioner. At this stage Mr. Das, learned senior Counsel for the petitioner submits that as per the Annexure-B notification dated 27.9.1996 even no such relaxation is required and the petitioner is entitled to get pension taking his service up to 25.1.2005. 14. At this stage Mr. Das, learned senior Counsel for the petitioner submits that as per the Annexure-B notification dated 27.9.1996 even no such relaxation is required and the petitioner is entitled to get pension taking his service up to 25.1.2005. 14. We see no reason as to why the petitioner should be deprived of his full pensionary benefits taking his retirement to be on 25.1.2005 as he was appointed as Judicial member of the CAT. It was never made known to him that he would be in a disadvantageous position that view of the matter, the authority now can not deprive of the petitioner of his full pensionary benefit which in the normal circumstances, he would have been entitled to. 15. For all the aforesaid reasons we are of the considered opinion that the petitioner has been able to make out his case as has been project in the writ petition. Consequently, we interfere with the Annexure-F. 1. F. 2 and F. 3 calculation sheets issued by the office of the Accountant General, Tripura, Agartala and also the Annexure-J communication dated 29.10.1998. 16. The writ petition is allowed with the direction to the respondents to calculate the pension of the petitioner taking into account his service up to 25.1.2005 and to add weightage of 10 years as envisaged under Rule 22(b) of the Rules. It is made clear that if the aforesaid amount of Rs.76,375 (Rupees seventy-six thousand three hundred seventy-five) only which was ordered to be recovered, has already been recovered from the petitioner, the respondents shall repay the same to him. 17. With the aforesaid directions the writ petition stands allowed. There shall be no order as to costs. Petition allowed.