Girishbhai Jivrajbhai Dave v. Bhavnagar Municipal Corporation
2017-06-05
K.M.THAKER
body2017
DigiLaw.ai
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Shah, learned advocate for the petitioner, and Mr. Munshaw, learned advocate for the respondent corporation. 2. In present petition, the petitioner has prayed, inter alia, that:- "13(A) Be pleased to issue an appropriate writ, direction petition and/or order by directing the respondent Municipal Corporation to revise and to pay monthly retirement pensions as per statement prepared by the Chief Accountant Officer at Annexure E and Office order passed by the respondent Commissioner at Annexure F and to release the amount of Arrears of difference of pension @ 181 p.m. withheld from the date of retirement with interest and cost, particularly when promotion of petitioner is confirmed by the General Board at Annexure A and subsequently sanctioned by the State Govt. at Annexure B." 3. So far as factual background is concerned, the petitioner has averred and stated that:- 2. The facts of the case of the Petitioner for the purpose of the present Special Civil Application in brief are that, the Petitioner was initially recruited as daily wager Time Keeper with effect from 22.11.1958 and thereafter was appointed as Jr. Clerk with effect from 7.10.1961 and thereafter as he was fully qualified and as his work was satisfactory, he was promoted as Inspector with effect from 1.4.1974 and thereafter further promoted as Superintendent with effect from 2.5.1986 and thereafter further promoted as Asst. Commissioner of the respondent corporation with effect from 23.11.1997 subject to sanction of the General Board of the Corporation and sanction of State Government. A copy of promotion given to the petitioner as Asst. Commissioner is annexed here to and marked as Annexure A. A copy of General Board Resolution No. 34 Dt. 24.8.1999 passed by the Respondent Corporation confirming the promotion of the petitioner is annexed here to at Annexure A A copy of sanction by the State Govt. promoting the petitioner as Asst. Commissioner is annexed here to and marked as Annexure B A copy of order of regularising the promotion of the petitioner as Asst. Commissioner is annexed here and marked as Annexure C 3. That the petitioner has been given salary for the last Ten months before the date of his retirement and monthly pension payable to the petitioner @ of Rs.
Commissioner is annexed here and marked as Annexure C 3. That the petitioner has been given salary for the last Ten months before the date of his retirement and monthly pension payable to the petitioner @ of Rs. 5790 statement is annexed here to and marked as Annexure D That the Chief Account Officer of the respondent corporation under his statement prepared for the payment of monthly pension is also of Rs. 5790/- A copy of statement for monthly pension payable to the petitioner prepared by the Chief Account Officer is annexed here and marked as Annexure E 4. The petitioner states that the respondent Commissioner has also fixed monthly pension payable to the petitioner is also Rs. 5790/- A copy of Office Orders Dtd. 29.12.1999 passed by the respondent Commissioner is annexed here to and marked as Annexure F. 5. The petitioner further states that subsequently by order Dtd. 7.4.2000 his monthly pension is fixed and reduced from Rs. 5790/- to @ Rs. 5609/- per month without any justifiable legal reasons and by withholding payment of Rs. 181 p.m. less pension each and every month from the date of his retirement is paid, eventhough the post and promotion of the petitioner as Asst. Commissioner is sanctioned by the General Board of the respondent Corporation and State Government. As the sanction of the State Government was not available at the time of retirement, pension was fixed as if petitioner retired on the lower post of Superintendent. A copy of Order is annexed hereto and marked as Annexure : G. 6. That therefore the petitioner having Fundamental Rights to get proper monthly pension @ Rs. 5709 PM and paid less amount of Rs. 181 PM, the petitioner had severally requested the respondent from time to time and by written representations Dtd. 6.1.2003, 9.7.2003, 11.9.2008 and 9.8.2011 to revise pension, but the respondent has neglected to decide the same and petitioner gets Rs. 181 less amount of pension each and every month from the date of his retirement without any justifiable valid reasons for his no fault. That the petitioner states that when his promotion is confirmed by the General Board of the respondent and State Govt. has also sanctioned his promotions, he ought to have been given proper pensions @ Rs. 5790 and not Rs. 5609 for each and every month from the date of his retirement.
That the petitioner states that when his promotion is confirmed by the General Board of the respondent and State Govt. has also sanctioned his promotions, he ought to have been given proper pensions @ Rs. 5790 and not Rs. 5609 for each and every month from the date of his retirement. That the petitioner has not committed any such misconduct to reduce his pensions at the lower rate. That once pension is fixed @ Rs. 5709 PM, it cannot be with held and punished the petitioner without due process of Law. That the petitioner is aged above 70 years old and he is senior citizen and has fundamental right to get the proper amount of pension. That the respondent corporation as per usual habit has neglected to decide the representations filed by the petitioner without the order of the Hon'ble Court and, petitioner will not be paid proper pension. Thus the impugned action of the respondent corporation of not giving the petitioner pension @ Rs. 5790 as per Annexure E and F is violating to the Fundamental rights of the petitioner guaranteed under article 14, 16, and 21 of the Constitution of India. 7. That the petitioner submits that when Chief account Officer of the respondent Corporation at Annexure E and respondent Commissioner at Annexure F has fixed the pension of the petitioner payable at the rate of Rs. 5790 p.m. and promotion of the petitioner is confirmed by the General Board and State Govt., there is no valid reasons for the corporation to withhold Rs. 181 pm. and to pay less amount each and every month' The cause of action for the petitioner to get proper pension as per Annexure E and F @ Rs. 5790 p.m. continues and arises each and every month and respondent corporation has neglected to decide the representations filed by the petitioner at Annexure H collectively. Thus the impugned actions of the respondent corporation of withholding 181 Rs. P.M is arbitrary and illegal after the continuous service of 41 years." The petitioner is aggrieved by the decision and action of the respondent of reducing pension. 4. The petitioner claims that initially, he was engaged as daily wager time keeper w.e.f. 22.11.1958, subsequently, in October 1961, he was appointed as Junior Clerk. Thereafter, in April 1974, the petitioner came to be appointed as Inspector.
4. The petitioner claims that initially, he was engaged as daily wager time keeper w.e.f. 22.11.1958, subsequently, in October 1961, he was appointed as Junior Clerk. Thereafter, in April 1974, the petitioner came to be appointed as Inspector. The petitioner was thereafter promoted as Superintendent in May 1987 and thereafter, in November 1997 he was promoted as Assistant Commissioner. The said promotion to the post of Assistant Commissioner was subject to sanction of the General Board and State Government. However, the petitioner has claimed that the General Board had passed resolution No. 34 in August 1999 and confirmed his promotion to the post of Assistant Commissioner. 4.1 In November 1999, the petitioner reached age of superannuation. 4.2 Formal sanction to the post was granted/confirmed by the Government somewhere in July 2000. 4.3 In that view of the matter, the petitioner's promotion to the post of Superintendent and Assistant Commissioner were regularized vide order dated 29.7.2000. 4.4 In December 1999, the corporation fixed petitioner's pension at Rs. 5,790/-, however, subsequently, vide order dated 7.4.2000, the petitioner's pension came to be reduced to Rs. 5,609/-. 4.5 The petitioner has claimed that said reduction in the pension amount was made without prior intimation/notice and without granting any opportunity of hearing to him. It appears that, thereafter, the petitioner submitted various representations against the said decision and action of the respondent but to no avail. Therefore, the petitioner filed present petition. 5. The respondents have opposed the petition. Legal Officer of respondent corporation has filed affidavit dated 13.10.2011 wherein it is averred and stated that:- "2. The respondent humbly submits that the petitioner herein was holding the post of Office Superintendent in the pay scale of Rs. 8000-13500/- prescribed by the 6th Pay Commission and accepted by the respondent Corporation. The respondent submits that the petitioner herein was granted additional promotion to the post of Assistant Municipal Commissioner through an order dated 22/10/1997 subject to the approval of State Government as required under the provisions of Section-45(2) & (3) of Bombay Provincial Municipal Corporation Act. It is stated that the petitioner was placed in the pay scale of Rs.
The respondent submits that the petitioner herein was granted additional promotion to the post of Assistant Municipal Commissioner through an order dated 22/10/1997 subject to the approval of State Government as required under the provisions of Section-45(2) & (3) of Bombay Provincial Municipal Corporation Act. It is stated that the petitioner was placed in the pay scale of Rs. 2500-4200/- as recommended by 4th Pay Commission under implementation at that point of time and a copy of the said conditional order is annexed herewith and marked as Annexure-A. It is pertinent to note that the Standing Committee and the General Body of Bhavnagar Municipal Corporation passed appropriate resolution in that regard subject to (sic)y the approval of State Government and a copy of said resolution is annexed herewith and marked as Annexure-B. The respondent craves leave to add that immediately thereafter a proposal was forwarded to the Government of Gujarat, Urban Development & Urban Housing Department on 01/09/1999 for its approval as envisaged under the provisions of Section-45(2) of the Bombay Provincial Municipal Corporation Act, 1949 and a copy of the proposal is annexed herewith and marked as Annexure-C. It is pertinent to note that the State Government approved the promotion through order dated 10/07/2000 and thereupon his promotion to the post of Assistant Municipal Commissioner was regularized. It is stated that the petitioner was placed in the pay scale of Rs. 8,500-14000/- meant for Class-II post and he was drawing the same pay scale at the time of his retirement. 3. The respondent most respectfully submits that however, so far as the issue of retiral benefits is concerned, at one stage the pension papers were prepared on the basis of his last drawn pay scale of Rs. 8500 -14000/- and the order was also prepared, but the said order was unnumbered and not issued by the office of Municipal Commissioner at that point of time. It is stated that the orders referred to and cited by the petitioner is without worksheet as well as date and the respondent craves leave to annex herewith a copy thereof and marked as Annexure-D. It is pertinent to note that the order produced by the petitioner was not at all issued as it came to the notice that the promotion to the post of Assistant Municipal Commissioner was subject to the approval of State Government.
At this stage, the respondent craves leave to state that the petitioner herein who was Incharge Office Superintendent and holding the post of Assistant Municipal Commissioner, has unauthorizedly obtained the copy of the said order and placed before the Hon'ble Court to substantiate his case. It is submitted that as such the Personnel Department raised the objection that as the pay scale was not sanctioned by the State Government, the petitioner herein was not entitled to retiral benefits on the basis of last drawn pay scale of Rs. 8500-14000/- and therefore, the said order was not at all finalized and issued. 7. In view of the above mentioned facts & circumstances it is crystal clear that the promotion to the post of Assistant Municipal Commissioner and the pay sale of Rs. 8500-14000/- granted to the petitioner were conditional and subject to approval of State Government and as the State Government has refused the proposal dated 22/10/1993 in the month of May 2000, the petitioner's grievance are unjustified. It is pertinent to note that in view of rejection of proposal of the Government of Gujarat through orders in the month of May 2000, the pay scale for which the proposal was sent are revised and reduced by the Municipal Commissioner through orders dated 04/11/2000 and a copy thereof is annexed herewith and marked as Annexure-J. Hence, the present Special Civil Application is without substance and therefore, no relief can be granted to the petitioner, therefore, this Hon'ble Court is humbly prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice." 5.1 Subsequently, the respondent corporation filed another affidavit dated 10.1.2012 wherein the respondent corporation averred and asserted that:- "2. It is most respectfully stated that implementation of the recommendations of 5th Pay Commission was subject to the approval of the State Govt. and as at the time of retirement of the petitioner same was not granted there was an objection in preparation of his pension papers on the basis of Rs. 8500-14000. It is submitted that in view of this the petitioner was paid his retiral benefits on the basis of pay scale of Rs. 8000-13500. 3. The respnt. submits that the State Govt.
8500-14000. It is submitted that in view of this the petitioner was paid his retiral benefits on the basis of pay scale of Rs. 8000-13500. 3. The respnt. submits that the State Govt. has turned down the proposal forwarded by Bhavnagar Municipal Corporation on 22.10.93 for modification of the pay scale of the officers of the Bhavnagar Municipal Corporation through an order in the month of May, 2000. It is pertinent to note that the State Govt. instructed to forward a proposal fixing the pay scale on scale to scale basis. Hence it is clear that the action of the respnt. corporation was just and legal and in consonance of the provisions of section 45[2] of the Bombay Provincial and Municipal Corporation Act, 1949. It is reiterated that as the State Govt. has turned down the proposal petitioner is entitled to his pension and other retiral benefits only on the basis of the pay scale of Rs. 8000-13500/-. 4. The respnt. craves leave to reiterate that the provisions of section 45[2], 45[3] and 45[4] of the Bombay Provincial and Municipal Corporation Act, 1949 are directly applicable in the present case and the approval and sanction of the State Govt. is mandatory on the issue of appointment as well as pay scale for the officers of the Corporation. As mentioned hereinabove the State Govt. has ordered to revise the pay scale on the basis of scale to scale and therefore needful is done and the pay scale of Rs. 2200-4000 [Revision of Pay Rule, 1987] is revised to Rs. 8000-13500 on scale to scale basis. The respnt. submits that however no recovery is ordered from the petitioner and the retiral benefits are fixed on the basis of the pay scale of Rs. 8000-13500/-. 5. The respnt. humbly submits that the post of Asstt. Municipal Commissioner is statutory post and approval of the State Govt. under the provisions of section 45[2], 45[3] of the Bombay Provincial and Municipal Corporation Act, 1949 are mandatory and pay scale determined by the State Govt. under the provisions of section 45[3] of the Bombay Provincial and Municipal Corporation Act, 1949 is to be made applicable. The respnt. submits that as mentioned hereinabove the State Govt. has earlier approved pay scale of Rs.2200-4000 for the post of Asstt. Municipal Commissioner as per the 4th Pay Commission recommendations.
under the provisions of section 45[3] of the Bombay Provincial and Municipal Corporation Act, 1949 is to be made applicable. The respnt. submits that as mentioned hereinabove the State Govt. has earlier approved pay scale of Rs.2200-4000 for the post of Asstt. Municipal Commissioner as per the 4th Pay Commission recommendations. It is stated that revision on the basis of scale to scale would be Rs.8000-13500 and that is why the Govt. has so directed and the retiral benefits are paid on that basis. 6. The respnt. most respectfully submits that the pay scale of the post of Asstt. Municipal Commissioner and other cadres of the officers of Bhavnagar Municipal Corporation are lower than similarly situated officers of other Municipal Corporation like Surat Municipal Corporation but it is to be noted that the State Govt. is the final authority and after considering various aspects the same are fixed by the State Govt. in spite of repeated proposals and reminders by the Corporation. It is submitted that I, it is a prerogative of State Govt. to take appropriate decision on these issues as per the provisions of section 45[2] and 45[3] of the Bombay Provincial and Municipal Corporation Act, 1949. 7. The respnt. submits that so far as two officers viz. Mr. Balkrishna Pandya and Mr. Jaydev Joshi referred to by the petitioner are concerned they were in the pay scale of Rs. 8500-14000 at the time of retirement and released the retiral benefits on that basis as the State Govt.'s decision on the issue of pay scale was not received. However, as soon as the State Govt. ordered to fix the pay scale on the basis of scale to scale the same is implemented in their cases also. It is stated that even it is decided to recover excess payment from the arrears payable to Mr. Pandya and Mr. Joshi on implementation of the recommendation of 6th Pay Commission. 9. At the post of repetition it is submitted that pension and retiral benefits payable to the petitioner are rightly fixed on the basis of Rs. 8000-13500 and the petitioner is not caused any unjustness. It is also stated that as mentioned in para-3 of Affidavit in Reply as such there is a mischief by the petitioner on the issue of pension papers on the basis of Rs. 8500-14000.
8000-13500 and the petitioner is not caused any unjustness. It is also stated that as mentioned in para-3 of Affidavit in Reply as such there is a mischief by the petitioner on the issue of pension papers on the basis of Rs. 8500-14000. It is stated that as such the pension papers were prepared on the basis of last drawn pay scale of Rs. 8500-14000 but the same was unnumbered and not issued by the office of Municipal Commissioner at that point of time. It is stated that the orders referred to and cited by the petitioner is without work-shet as well as date." 6. At the time of hearing of the petition, learned advocate for the petitioner relied on the decision dated 27.4.2017 rendered by Division Bench in Letters Patent Appeal No. 720 of 2017 and submitted that the facts of petitioner's case are identical to the facts involved in the said Letters Patent Appeal No. 720 of 2017. With the said submission, learned advocate for the petitioner urged that similar order may be followed and similar relief may be granted. 6.1 However, Mr. Munshaw, learned advocate for the respondent corporation, tried to distinguish the case of present petitioner from the facts of the case in Letters Patent Appeal No. 720 of 2017 on a singular ground that in case of person concerned in Letters Patent Appeal No. 720 of 2017, necessary and appropriate instructions with regard to fixation of salary/pay scale was received from the Government after the concerned person retired on superannuation whereas in present case, necessary instructions from the Government was received before the petitioner retired on superannuation. He further submitted that despite the order by the government, the corporation has not taken any action to recover the amount of pension already paid to the petitioner and the corporation has also not taken any action to recover the amount of salary paid to the petitioner which was more than the amount which he was entitled for in view of government's order and according to the pay scale accepted/approved by the government. He submitted that the corporation's action is justified in view of the fact that the Government's instructions were received before the petitioner retired. 6.2 In light of said submission by Mr. Munshaw, learned advocate for the respondent corporation, the Court inquired from Mr.
He submitted that the corporation's action is justified in view of the fact that the Government's instructions were received before the petitioner retired. 6.2 In light of said submission by Mr. Munshaw, learned advocate for the respondent corporation, the Court inquired from Mr. Munshaw, learned advocate, about the date of superannuation/retirement of the petitioner and date of government's order. In reply to the query by the Court, Mr. Munshaw, learned advocate for the respondent corporation, on the basis of the details mentioned in affidavit dated 3.3.2017, submitted that the petitioner retired from service on superannuation w.e.f. 31.5.2000. He also submitted that the corporation had received instructions with regard to applicable pay scale in case of the petitioner on 20.5.2000. The petitioner opposed said submission by Mr. Munshaw and he submitted that according to service record and the facts borne out from the record, the petitioner retired from service on superannuation w.e.f. 30.11.1999. In this context, it is pertinent that the order passed by the office of Chief Accountant (which is placed on record at Annexure-E (Page-20 of the petition) gives out that the petitioner retired on 30.11.1999. Likewise, the order dated 21.12.1999 passed by the corporation at Annexure-F (Page-21-23 of the petition) also supports the petitioner's claim that the petitioner retired from service on superannuation in November 1999. 7. Therefore, above mentioned submission by learned advocate for the respondent and the only ground on which the learned advocate for the respondent tried to distinguish present case from the facts involved in Letters Patent Appeal No. 720 of 2017, is lost. 7.1 In light of the said fact, the said point of distinction sought to be drawn by Mr. Munshaw, is not available to the respondent corporation. 7.2 Actually, on further verification of facts, more particularly the orders passed by the office of Chief Accountant as well as order passed by the corporation, Mr. Munshaw, learned advocate for the respondent corporation, conceded the fact that the petitioner retired in November 1999 i.e. before the date on which the corporation received the instructions from the Government on 20.5.2000.
7.2 Actually, on further verification of facts, more particularly the orders passed by the office of Chief Accountant as well as order passed by the corporation, Mr. Munshaw, learned advocate for the respondent corporation, conceded the fact that the petitioner retired in November 1999 i.e. before the date on which the corporation received the instructions from the Government on 20.5.2000. 7.3 Not only the only ground on which respondent opposed petitioner's request and tried to distinguish facts of present case and to oppose the submission that petitioner in present case is entitled for similar order as in Letters Patent Appeal No. 720 of 2017 falls to the ground in light of above mentioned details but it also becomes clear that (a) facts of present petitioner's case are similar to the facts involved in Letters Patent Appeal No. 720 of 2017 inasmuch as petitioner's case falls within purview of Rule 43; and (b) the respondent built up its defence and set-up the case on misconceived and incorrect facts; (c) for almost 2 years i.e. from 1997 to 1999 the petitioner was paid salary in the grade/pay scale of Assistant Commissioner and the post was sanctioned and promotions was approved. 8. At this stage, it is also relevant to note that the petitioner was promoted to the post of Assistant Commissioner in November 1997 whereas the corporation had not forwarded the proposal to the Government for almost 2 years and forwarded the proposal as late as in September 1999. Thereafter, the petitioner retired in November 1999 and the Government passed instruction/order in 2000 which the corporation received on 20.5.2000. In this view of the matter, the petitioner's case cannot be distinguished from the facts of case involved in Letters Patent Appeal No. 720 of 2017. 9. At this stage, it would be appropriate to take into account Rule 43 of GCS (Pension) Rules, 2002. The said provision reads thus:- "43. Pensionable Pay: (1) The 'Pensionable Pay' means the average pay earned by a Government employee during the last ten months' service. (2) For the purpose of sub-rule (1) 'pay' means pay as defined in rule-9(53) drawn by a Government employee in officiating or substantive capacity on permanent and/or temporary or tenure post.
The said provision reads thus:- "43. Pensionable Pay: (1) The 'Pensionable Pay' means the average pay earned by a Government employee during the last ten months' service. (2) For the purpose of sub-rule (1) 'pay' means pay as defined in rule-9(53) drawn by a Government employee in officiating or substantive capacity on permanent and/or temporary or tenure post. Explanation-1: If a Government employee immediately before his retirement or death while in service or having been absent from duty on leave for which leave salary is payable or having been suspended had been reinstated without forfeiture of service, the pay which he would have drawn had he not been absent from duty or suspended, shall be the pay for the purposes of this rule. Provided that any increase in pay (other than the increment referred to in Explanation-4 below) which is not actually drawn shall not form part of this pay. Explanation-2: If, during the last ten months of his service, a Government employee had been absent from duty on extraordinary leave, or had been under suspension, the period whereof does not count as service, the aforesaid period of leave or suspension shall be disregarded in the calculation of the pensionable pay and equal period before the ten months shall be included. Explanation-3: If a Government employee immediately before his retirement or death while in service had been absent from duty on extraordinary leave or had been under suspension, the period whereof does not count as service, the pay which he draw immediately before proceeding on such leave or being placed under suspension shall be the pay for the purpose of this rule. Explanation-4: If a Government employee immediately before his retirement or death while in service was on leave other than extraordinary leave and earned an increment which was not withheld during the first six months of the period of leave, such increment, though not actually drawn, shall form part of his pensionable pay. Explanation-5: However it will be open to any Government employee to exercise an option, which shall be final, within one month from the date of his retirement to have his pension revised-recalculated on the basis of thirty six months' or twenty months' average 'pay' as may be beneficial to him. Explanation-6: The pay drawn by a Government employee while on foreign service shall not count for pension.
Explanation-6: The pay drawn by a Government employee while on foreign service shall not count for pension. In such a case the pay which the Government employee would have drawn under the Government had he not been sent on foreign service, shall alone be taken into account while calculating pensionable pay. Explanation-7: Where a pensioner who is re-employed in Government service, elects in terms of clause (a) of sub-rule (1) of rule 28 to retain his pension for earlier service and whose pay on reemployment has been reduced by an amount not exceeding his pension, the element of pension by which his pay is reduced shall be treated pay for calculation of pensionable pay." In light of said provision the salary paid to the petitioner during last ten months' of service should be taken into account. It is not in dispute that present petitioner's pension was calculated after taking into account petitioner's salary for last 10 months and subsequently on misconceived ground and by disregarding the provision and on erroneous facts order revising-reducing pension came to be passed. Even otherwise said order is unsustainable in light of the fact that it is passed without granting opportunity of hearing. 9.1 Having regard to the said provision and facts of the case of the petitioner in Special Civil Application No. 3790 of 2012, Division Bench observed in decision dated 27.4.2017 in Letters Patent Appeal No. 720 of 2017 that:- "7. From the aforesaid Rule, it is clear that "pensionable pay" means the average pay earned by a government employee during the last ten months' service. In the present case, it is not in dispute that during last ten months service before the date of retirement of the petitioner, he was in the pay scale of Rs. 8500-14000/- and he was getting Rs. 10425/- per month. Thus, the respondent-Corporation ought to have fixed the pension of the petitioner on the basis of his average pay during last ten months service. However, after the retirement of the petitioner, his last monthly basic salary was fixed at Rs. 9925/- and his pension was fixed on the basis of the same. Thus, we are of the view that the respondent-Corporation has wrongly fixed the pension of the petitioner. Thus, the petitioner is entitled to get monthly pension @ Rs. 5213/- instead of Rs. 4963/- as fixed by the Corporation at the time of his retirement. 8.
9925/- and his pension was fixed on the basis of the same. Thus, we are of the view that the respondent-Corporation has wrongly fixed the pension of the petitioner. Thus, the petitioner is entitled to get monthly pension @ Rs. 5213/- instead of Rs. 4963/- as fixed by the Corporation at the time of his retirement. 8. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we are of the view that the learned Single Judge has not committed any error while allowing the petition and directing the respondent-Corporation to revise the pension of the petitioner considering his last ten months salary for calculation of pension which was Rs. 10425/- on the date of his retirement. Learned Single Judge has also not committed any error while directing the respondent-Corporation to pay interest @6% and to give other benefits and also revision of all other benefits. Accordingly, we see no reason to interfere with the order passed by the learned Single Judge. As the period of three months granted by the learned Single Judge while allowing the petition is already over, we direct the appellant to comply with the direction issued by the learned Single Judge within a period of two months from the date of receipt of this order. However, it is made clear that this order is passed in the facts of the present case." 10. As mentioned above, there is nothing on record to distinguish the case of the petitioner from the case of person concerned in Letters Patent Appeal No. 720 of 2017. Besides this, even otherwise, having regard to the fact that the petitioner was promoted to the post of Assistant Commissioner in 1997 and he worked on the said post for almost 2 years (i.e. until he reached the age of superannuation in November 1999) and during that period, he received salary of said post and case for almost 2 years. In this background and in light of the fact that the Government sanctioned said post in July 2000 and promotion of the petitioner was also regularized on 29.7.2000, there is no justification to accept the respondent's submission that the petitioner's case would not be covered by the provision under Rule 43 of GCS (Pension) Rules, 2002. 11. In this view of the matter, the petition deserves to be allowed and is allowed.
11. In this view of the matter, the petition deserves to be allowed and is allowed. 11.1 The order dated 7.4.2000 is set-aside and original/initial order fixing pension @ Rs. 5,790/- is restored. 11.2 If the respondent has actually withheld any amount or recovered any amount on the basis of order reducing pension, then, such difference/arrears should be paid within eight weeks from receipt of certified copy of this order. With aforesaid observations and direction, present petition is allowed. Rule is made absolute to the aforesaid extent.