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2009 DIGILAW 334 (GAU)

W. Sanatombi Singh v. Commissioner/Secretary

2009-05-18

T.NANDAKUMAR SINGH

body2009
JUDGMENT T. Nandakumar Singh, J. 1. Heard Mr. A. Bimol, learned Counsel appearing for the petitioner and Mr. A. Jagjit, learned Govt. Advocate appearing for the respondent Nos. 1 and 2 as well as Mr. C. Kamal, learned Counsel appearing for the respondent No. 3. 2. For the order proposing to be passed by this Court, it is not required to delve deep into factual matrix, it would be sufficed to mention only the admitted fact leading to the filing of the present writ petition and accordingly a short admitted fact is recapitulated. The petitioner was initially appointed as Section Officer (Elect.) Grade-I in the Electricity Department, Manipur on 11.9.1972. After rendering regular service as Section Officer (Elect.) Grade-I for a period of 12 (twelve) years he was promoted on 17.8.1984 as Asstt. Engineer (Elect.) on ad hoc basis vide order of the Government of Manipur dated 17.8.1984, for a period of 6 (six) months; and the terms of the ad hoc appointment of the petitioner as Asstt. Engineer (Elect.) had been extended from time to time without any break till his ad-hoc appointment as Asstt. Engineer (Elect.) had been regularised vide order of the Governor of Manipur being No. 25/35/92- Power dated 14.12.1992. By the subsequent order of the Government of Manipur on 21.1.1998-Power (HC), Imphal, the 23rd June, 1998, the service of the petitioner as Asstt. Engineer (Elect.) had been regularised retrospectively w.e.f. 17.8.1984. 3. Subsequently by the order of the Government of Manipur being No. 18/5/94-Power dated 2.9.1998, the petitioner was allowed to hold the post of Executive Engineer (Elect.), Manipur and vide order of the Government of Manipur being No. 18/5/94- Power (Pt. II), Imphal, the 25th May, 2000, the petitioner was appointed as Executive Engineer (Elect.) on officiating basis in the pay scale of Rs. 10,000/- 325-15200 plus usual allowances as admissible under the rules with immediate effect until further order. The officiating appointment of the petitioner was challenged by Mr. P. Kullachandra Sharma by filing a writ petition i.e. W.P. (C) No. 712 of 2000 before this Court. In that writ petition this Court passed an interim order dated 16.6.2000 suspending the officiating appointment of the petitioner dated 25.5.2000 until further orders. The officiating appointment of the petitioner was challenged by Mr. P. Kullachandra Sharma by filing a writ petition i.e. W.P. (C) No. 712 of 2000 before this Court. In that writ petition this Court passed an interim order dated 16.6.2000 suspending the officiating appointment of the petitioner dated 25.5.2000 until further orders. Pursuant to the interim order of this Court dated 16.6.2000 passed in W.P. (C) No. 712 of 2000, the Government of Manipur again passed an order dated 14.7.2000 for suspending the officiating appointment of the petitioner dated 25.5.2000 to the post of Executive Engineer until further orders. 4. The said writ petition, i.e. W.P. (C) No. 712 of 2000 filed by Shri P. Kullachandra Sharma was finally disposed of by this Hon'ble Court by passing a final order on 16.12.2004 to the effect that the said writ petition, i.e. W.P. (C) No. 712 of 2000 had become infructuous and the interim order of this Hon'ble Court dated 16.6.2000 passed in W.P. (C) No. 712 of 2000 was vacated subsequently. Pursuant to the order of this Hon'ble Court dated 16.12.2004 passed in W.P. (C) No. 712 of 2000, the Government of Manipur again passed an order being No. 21/38/2000- Power (HC) dated 19.1.2005 for restoring the said order for officiating appointment of the petitioner dated 25.5.2000, as Executive Engineer and since 19.1.2005, the petitioner had continued to serve as Officiating Executive Engineer by enjoying the pay and allowances for the post of Executive Engineer till he attained the age of superannuation on 31.3.2008 vide order of the Government of Manipur being No. 20/2/84-Power (PF), Imphal, the 26th February, 2008. It is stated that the Government of Manipur passed the impugned order being No. 21/38/2000-Power (HC), Imphal, the 21st March, 2008 in supersession of the earlier order dated 19.1.2005 for restoring the officiating appointment of the petitioner as Executive Engineer by allowing the petitioner to draw the pay and allowances of the Executive Engineer (Elect.) in the pay scale of Rs. 10,000 - 15,200 per month w.e.f. 25.5.2000 till he relinquished his officiating appointment as Executive Engineer (Elect.) with certain conditions. 10,000 - 15,200 per month w.e.f. 25.5.2000 till he relinquished his officiating appointment as Executive Engineer (Elect.) with certain conditions. The petitioner being aggrieved with para No. 2 (iv) of the impugned order of the Government of Manipur dated 21.3.2006 that, "in the event of his expiry/retirement while holding charge of the post of E.E. on officiating basis, his retrial benefits shall be determined by reference to the pay to which he would have been entitled had he not been appointed to the post of E.E. on officiating basis" filed by the present writ petitioner. According to the last pay certificate for the month of March, 2008, total emolument of the petitioner was Rs. 27,389/- per month. In the present petition, from the cases of the parties, it appears that the average emolument of the petitioner per month during the last 10 months before his retirement on superannuation was not taken into consideration for his retirement benefit by the respondents because of the impugned order dated 21.3.2006 i.e. para No. 2 (iv) of the impugned order dated 21.3.2006, which had been quoted above. Rule 49 of the Pension Rules contemplates the amount of pension to be paid to a government servant and also manner as to how the amount of pension is to be calculated for a concerned employee. Under Rule 49(2) (a) of the Pension Rules, in the case of a Government servant retiring in accordance with the provisions of the Pension Rules after completing qualifying service of not less than 33 years, the amount of pension shall be calculated at fifty percent of average 'emoluments'. 5. In the present case in hand, it is the admitted case of both the parties that the petitioner had retired from service on superannuation after completing 33 years of service, and as such, it appears that the amount of pension for the petitioner would be the fifty percent of the average emoluments. The Expression "emoluments" according to Rule 33 of the pension Rules, means the basic pay as defined in Rule 9(21)(a) (i) of the Fundamental Rules. Under Rule 34 of the pension Rule, the "average emolument" shall be determined with reference to the emolument drawn by a Government Servant for the last 10 months of this service. The Expression "emoluments" according to Rule 33 of the pension Rules, means the basic pay as defined in Rule 9(21)(a) (i) of the Fundamental Rules. Under Rule 34 of the pension Rule, the "average emolument" shall be determined with reference to the emolument drawn by a Government Servant for the last 10 months of this service. On conjoint reading of Rule 33 and 34 of the Pension Rules and FR 9 (21) (a) (1), it is clear that the "average emoluments" means the pay drawn by a Government Servant during the last 10 months before his superannuation. The learned Counsel appearing for the petitioner strenuously contended that the present case is squarely covered by the decision of this Hon'ble Court (incidentally Justice T. Nandakumar Singh) Judgment and Order dated 1.2.2005 passed in W.P. (C) No. 1007 of 2002. The said Judgment and Order dated 1.2.2005 passed by this Court (Learned Single Judge) in W.P. (C) No. 1007 of 2002 was also affirmed by the Judgment and Order dated 9.8.2007 of the Division Bench of this Hon'ble passed in W.A. (C) No. 119 of 2005. The said judgment and order dated 1.5.2005 of the learned Single Judge passed in W.P. (C) No. 1007 of 2002 was also again affirmed by the Apex Court. For easy reference para No. 4 of the Judgment and Order dated 1.2.2005 of the Learned Single Judge passed in W.P. (C) No. 1007 of 2002 is quoted herein below: 4. Learned Counsel for the petitioner submits that the Governor of Manipur in exercise of power conferred by proviso to Article 309 of the Constitution of India made the Manipur Civil Services (Pension) Rules by adopting the Central Civil Services (Pension) Rules, 1972 vide order being No. 1./3/71/H-F, Imphal the 3.3.1977. The Manipur Civil Service (Pension) Rules, 1972 is nothing but the Central Civil Services (Pension) Rules, 1972, 1972 in as much as the Central Civil Services (Pension) Rules, 1972 had been adopted only with the condition that whenever the word/words "Union", "President", "Government", "Ministry" and "Head of Department" as/had been referred to the Central Civil Services (Pension) Rules, 1972, the same shall be construed as referring to the "State of Manipur", "Governor of Manipur", "Government of Manipur" and "Head of Department" declared as such by the Governor of Manipur respectively. A clear-cut submission of the learned Counsel for the petitioner is that since the petitioner was enjoying basic pay i.e. Rs. 6800/- w.e.f. 1.8.1996 till his retirement on 31.7.1997, his retirement benefit ought to have been calculated on the average emolument drawn by a government servant during the last 10 (ten) months before his superannuation. The only grievance of the petitioner is that his retirement benefits had been calculated at Rs. 6000/- per month. Learned Counsel for the petitioner submits that the meaning of "emolument" defined in Rule-33 of the Pension Rules and means basic pay as defined in Rule-9(21)(a)(i) of the Fundamental Rules. According to FR 9(21)(a)(i) "pay" means the amount drawn monthly by a Government servant as other than the special pay or pay granted in view of his personal qualification, which had been sanctioned for the post held by him substantively or on officiating capacity or to which he is entitled by reason of his position in the cadre. Therefore, according to the learned Counsel for the petitioner, the total emolument mentioned in Rule-33 of the Pension Rules is nothing but the amount calculated basing on the basic pay of the government employee at the time of retirement and further, Rule 34 of the Pension Rules defined the meaning of "average emolument" and it means that "the average emolument shall be determined with reference to the emolument drawn by a government servant during the last ten months of his service". Therefore, as the petitioner has been enjoying his pay of Rs. 6800/- per month, the average emolument of the petitioner within the meaning of Rule 34 of the Pension Rules would be Rs. 6800/- per month, and as such, the amount of pension is to be calculated according to Rule 49 of the Pension Rules. It is further submitted by learned Counsel for the petitioner that on bare perusal of the Rule 49 of Pension Rules it is very clear that the government servant retiring in accordance with the provisions of Rules after completing qualifying service of not less than 33 years, the amount of pension shall be calculated at 50% of the average emolument. As stated above in the case of the present petitioner the amount of pension according to Rule 49 of the Pension Rules would be half of the average emolument i.e. Rs. As stated above in the case of the present petitioner the amount of pension according to Rule 49 of the Pension Rules would be half of the average emolument i.e. Rs. 6800/- inasmuch as the petitioner retired on superannuation after serving more than 39 years. 6. Mr. A. Bimol, learned Counsel appearing for the petitioner further contended that in the case of the other officiating Executive Engineers (Elect.) of the same Department similarly situated with the petitioner, the State Government passed orders for allowing them to enjoy all the benefits of their pay and allowances as the officiating Executive Engineer for the purpose of their retirement benefits. One of those orders of the Government of Manipur is available at Annexure-A/4 (Colly) i.e. order of the Government of Manipur dated 18.10.2006 passed in favour of one officiating Executive Engineers, namely, Shri N. Birendra Singh of the same department. This Court is of the considered view that such submission made by Mr. A. Bimol, learned Counsel appearing for the petitioner that the petitioner shall be equally treated with others similarly situated employees i.e. officiating Executive Engineers for the purpose of his pensionary benefit has the force of law. 7. For the foregoing reasons, the para No. 2(iv) of the impugned order dated 21.3.2006 is hereby quashed and set aside. In other word, in the given case "average emoluments" of the petitioner for the purpose of calculating the amount of pension under Rule 49 of the Pension Rules would be the pay and allowances of the petitioner as officiating Executive Engineer for the last 10 months before his retirement on superannuation. The corollary of this order is that the amount of pension of the petitioner is to be calculated basing on the average pay and allowances drawn by him for the last 10 months before his retirement on superannuation. 8. This writ petition is allowed. Petition allowed