JUDGMENT 1. - Heard learned counsel for the parties. 2. By this writ petition, the petitioner, who is a widow of deceased employee Sh. Ram Sahay Agarwal, has assailed the order dated 27.02.2008 (Annex.4) passed by learned District & Sessions Judge, Merta whereby the increment in the pay scale of Rs. 5000- 100-8000 of Rs. 150/- fixed on 01.09.2006, was sought to be withdrawn on the objection of the Pension Department and the emoluments as defined under Rule 45 of the Rajasthan Service Rules 1951 and Rajasthan Civil Services (Pension) Rules, 1996 was sought to be reduced from Rs. 5600/- to Rs. 5450/- on the ground that deceased employee expired while he was on privilege leave on 17.10.2006 vide the death certificate (Annex.1); and consequently he was not entitled to grant of said increment of Rs. 150/- on 01.09.2006. The family pension appears to have been consequently reduced and recovery was sought to be made on the basis of said objection raised by the Pension Department. 3. A coordinate bench of this Court vide interim order dated 17.03.2008 while issuing show cause notices to the respondents restrained the respondents from effecting recovery from the pension of the petitioner in pursuance to order dated 27.02.2008. 4. The respondent- Pension Department in its reply to the writ petition in para 5 has explained the position with regard to Rule 45 as under: "5. That the averments made in Para No.9 of the writ petition are not admitted in the manner they have been stated. Per contra it is respectfully submitted that even though if petitioners husband was sanctioned half pay leave after deducting counted medical leave then also petitioners husband's was not entitled for half pay leave encashment for the reason that the petitioner husband did not join from duty after return from the leave whether he was sanctioned privilege leave from 03.10.2006 to 16.10.2006 and during this privilege leave petitioner's husband was expired. Thus there is the provision of Rule 45 of RSR 1951. The petitioner has been denied benefit of half pay leave encashment. As such the contention of the petitioner that interpretation given by the respondent is baseless, absolutely misleading is not sustainable." 5. Mr. Thus there is the provision of Rule 45 of RSR 1951. The petitioner has been denied benefit of half pay leave encashment. As such the contention of the petitioner that interpretation given by the respondent is baseless, absolutely misleading is not sustainable." 5. Mr. Manoj Bhandari, learned counsel for the petitioner submitted that Rule 45, which defines the emoluments with reference to Note No.15 thereunder clearly stipulates that if a Government servant immediately before his retirement or death while in service, was on privilege leave, and earned an increment which was not withheld, such increment, though not actually drawn, shall form part of his emoluments. The said Note No.15 is reproduced as under: "15. If a Government servant immediately before his retirement before or death while in service, was on privilege leave, and earned an increment which was not withheld, such increment, though not actually drawn, shall form part of his emoluments. Provided that the increment was earned during the currency of the privilege leave not exceeding one hundred and twenty days, or during the first one hundred and twenty days of privilege leave where such leave was for more than one hundred and twenty days." The definition of 'Emoluments' in Rule 45 of the Pension Rules of 1996 is also quoted for ready reference: "Emoluments: The expression "emoluments" used for the purposes of Pension, Service Gratuity and Retirement/Death Gratuity means sum of pay in the running pay band plus grade pay and NPA/NCA, if any, which a Government servant was receiving/or to which he was entitled to immediately before his retirement or on the date of his death or on the basis of average of last ten months immediately before the date of retirement, whichever is beneficial. Provided that the amount of Dearness Allowance admissible on sum of running pay bald plus grade pa and NPA/NCA, if any, at the time of retirement/death of a Government servant, as the case may, shall be treated as part of emoluments for the purpose of grant of retirement gratuity/death gratuity." 6. Provided that the amount of Dearness Allowance admissible on sum of running pay bald plus grade pa and NPA/NCA, if any, at the time of retirement/death of a Government servant, as the case may, shall be treated as part of emoluments for the purpose of grant of retirement gratuity/death gratuity." 6. Learned counsel for the petitioner, therefore, submitted that there was no justification or basis behind the objection raised by the Pension Department and the increment which was duly given to the petitioner's husband as on 01.09.2006 before his death on 17.10.2006, could not have been withdrawn as he was on privilege leave for a period of fifteen days from 03.10.2006 to 16.10.2006. 7. Learned counsel for the respondent- Pension Department was not in a position to justify the stand taken in the reply vide Para 5 quoted above and explain as to how it is in consonance with Note No.15 of the Rule 45 of the Rules of 1996, which clearly stipulates that if during privilege leave an increment is earned by an employee to his credit and not withheld for any reason by the respondent- State in the first 120 days of such privilege leave would form part of 'emoluments' as defined in Rule 45 aforesaid. He also could not justified as to why on the date of death itself i.e. 17.10.2006 in the present could not be treated as working day even though Rule 4 (2) of the Pension Rules, 1996 clearly stipulates that day on which a Government servant retires or is retired or discharged or allowed reinstatement from the service shall be treated as last working day and day of death shall be treated as working day. 8. Learned counsel for the petitioner also drew the attention of the Court towards Rule-196 of the General Financial and Accounting Rules of the State Government, which also stipulates that on the date of death, the emoluments including the pay and allowances drawn and the date of death will not effect such claim adversely. 8. Learned counsel for the petitioner also drew the attention of the Court towards Rule-196 of the General Financial and Accounting Rules of the State Government, which also stipulates that on the date of death, the emoluments including the pay and allowances drawn and the date of death will not effect such claim adversely. The said Rule 196 of the General Financial and Accounting Rules is quoted herein below for ready reference: "Rule 196 ljdkjh deZpkjh dh e`R;q&osru ,oa HkRrs O;fDr ds ejus ds fnu ds fy, vkgfjr fd, tk ldrs gSa rFkk deZpkjh dh e`R;q ds le; vkfn dk bl Dyse ij dksbZ izHkko ugha iM+sxkA fVIi.kh & bl vf/kfu;e ds iz;kstukFkZ fnu ls vfHkiz;k e/;jkf= ls izkjEHk o e/;jkf= dks vUr gksus okys fn ls gSA " 9. Having heard learned counsel for the parties at length, this Court is of the opinion that the order impugned dated 27.02.2008 (Annex.4) passed by the learned District & Sessions Judge, Merta on the basis of objection of the Pension Department vide Annex.5 dated 23.04.2007 is not sustainable and both these impugned orders and communications deserve to quashed. 10. Accordingly, this writ petition is allowed and the impugned order dated 27.02.2008 (Annex.4) passed by the learned District & Sessions Judge, Merta and order Annex.5 dated 23.04.2007 passed by Additional Director, Pension Department, Ajmer are quashed and set aside and the petitioner's husband pension would be recomputed on the basis of emoluments of Rs. 5600/- as on 01.09.2006 family pension payable with effect from 17.10.2006 in pay scale of Rs. 5000-100-8000 and the arrears of said pension, would be recomputed accordingly and other consequential retiral benefits, if adversely affected by these impugned orders, shall be released forthwith with interest @ 6% per annum from the date they were due till the date of payment. No order as to costs.Petition allowed. *******