JUDGMENT : S.K. MISHRA, J. 1. The petitioner in this case being a retired Additional Chief Judicial Magistrate-cum-Sub. Judge has prayed for issuance of writ of mandamus directing the respondents to revise his pension in the light of the resolution issued by the Finance Department, Government of Jharkhand vide Memo No. 485/v dated 13.07.2011 on the scale of Rs.58930-70290 by granting the petitioner ACP in the revised scale i.e. the next high grade as mentioned above. He has also prayed for issuance of writ of mandamus directing the respondents to pay arrears of pension and revised scale from 01.01.2006 as per direction issued by the Finance Department in the aforesaid resolution. 2. Facts of the case are not in dispute. The petitioner was appointed as a Temporary Munsif in the Department of Personal of the erstwhile Government of Bihar vide Notification No. VII/AI-502/72Ka-5005 dated 18.03.1975 and vide Memo No. 3707-24 dated 26.03.1975. After completion of 10 years of service the petitioner was promoted to Junior Selection Grade vide Notification dated 22.05.1987 and the scale of the petitioner was fixed at Rs.1350-50-1700-75-2000 with effect from 01.04.1985. The benefit of the Assured Career Progression (hereinafter referred to as ‘ACP’ for brevity) was given to the petitioner and was placed in the cadre of A.D.J. Later on vide Memo No. 872-90/Apptt. dated 21.04.2001 the petitioner was transferred to Khunti on the post of A.C.J.M. and the petitioner was given compulsory retirement on the recommendations of the High Court on 17.07.2001 from Khunti. After that, pursuant to resolution dated 03.07.2011 the pension of the petitioner has been revised and the same has been fixed at Rs.19,765/-. The petitioner made representation. After that it was informed to the petitioner that his pension has been revised on the pay scale of Munsif i.e. Rs.39530-54010/-. The petitioner, therefore, prays that he may be granted pension in the scale applicable to the Additional District Judge cadre. 3. The Under Secretary, Law (Judicial) Department, State of Jharkhand, filed a counter affidavit in this case wherein it is stated that respondent No. 1 is a formal party and no relief has been claimed against him. 4. The petitioner, therefore, prays that he may be granted pension in the scale applicable to the Additional District Judge cadre. 3. The Under Secretary, Law (Judicial) Department, State of Jharkhand, filed a counter affidavit in this case wherein it is stated that respondent No. 1 is a formal party and no relief has been claimed against him. 4. A further counter affidavit has been filed by the Under Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, wherein as per Article 235 of the Constitution of India it is stated by the said respondent that the control of the District Judiciary is vested with the High Court and they have no say in this matter. In this case the High Court was not added as a party to the writ application but later on the Registrar General of the High Court of Jharkhand has been made a party as respondent No. 5. It has also filed an affidavit stating that the prayer of the petitioner for grant of ACP is not admissible. It is further stated that the petitioner was given compulsory retirement on 13.07.2011 by the High Court of Jharkhand, Ranchi with immediate effect under Rule 74(b)(ii) of the Bihar Service Code, 1952. 5. As far as the claim of ACP is concerned, it is submitted that on perusal of paragraph 6 of the resolution No. 1990/F dated 29.06.2010 issued by Department of Finance, Government of Jharkhand, it appears that the said scheme has been revised (ACP) and came into force w.e.f. 2006, whereas, the petitioner has retired from service in the year 2001 itself. So two questions arise in this case for determination. First is whether the petitioner is entitled to pension in the promoted cadre or he is entitled to pension in the cadre of the Munsif. The second question is whether the scheme floated on 29.06.2010 shall be applicable to the petitioner and his pension should be calculated after grant of ACP as per the said scheme. 6. As far as the employees who have been given compulsory retirement are concerned, their case is covered by Rule 46A of the Bihar Pension Rules, 1950 (as adopted by the State of Jharkhand), which reads as under: “46A. 6. As far as the employees who have been given compulsory retirement are concerned, their case is covered by Rule 46A of the Bihar Pension Rules, 1950 (as adopted by the State of Jharkhand), which reads as under: “46A. A Government Servant compulsorily retired from service as a penalty may be granted by the authority, competent to impose such penalty pension at rate not less than two-thirds and not more than full invalid pension and special additional pension, if any, admissible to him on the date of compulsory retirement. Provided that in the case of a Government servant mentioned in rule, who has completed, before such compulsory retirement, 25 years of qualifying service or more the pension shall be not less than two thirds of the invalid pension and not more than the full retiring pension and special additional pension, if any, to which he would have been entitled, if he retired on that date. Note 1: This rule applies also to those Government servants who are governed by the New Pension Rules, issued with the Finance Department Resolution No. PF-PAR-12/50-12548 F dated the 23rd August, 1950, as amended from time to time. Note 2: When a Government servant is compulsorily retired, but not as a measure of penalty, his case will be governed by rule 134 (b) of the Bihar Pension Rules read with rule 74 of the Bihar Service Code.” 7. As far as the quantum of pension is concerned, the provision of Clause (i) of sub-rule (4) of Rule 134 of the aforesaid Rules is applicable which provides that a Permanent Government servant on absorption in Public Under-taking will be eligible for a pro-rate pension and Death-cum-retirement Gratuity based on the length of his qualifying service under Government till the date of absorption. The pension will be calculated on the basis of average emoluments for one year preceding the date of absorption and the Death-cum-Retirement Gratuity based on the length of his qualifying service under Government till the date of absorption. The pension will be calculated on the basis of average emoluments for one year preceding the date of absorption and the Death-cum-Retirement Gratuity on the basis of the emoluments drawn immediately before absorption. It is further evident from Rule 145 that a Government servant is entitled to pension after service of not less than 10 years. The pension will be calculated on the basis of average emoluments for one year preceding the date of absorption and the Death-cum-Retirement Gratuity on the basis of the emoluments drawn immediately before absorption. It is further evident from Rule 145 that a Government servant is entitled to pension after service of not less than 10 years. It is also provided that pension shall be calculated at a rate applicable to a retired Government employee of the average emolument which he has received for the last one year. Admittedly, in this case the petitioner was receiving the scale of pay admissible to the promotional post for four months. Before that he was receiving selection grade play scale for Munsif Grade, therefore, the pension should be calculated as per average emolument he was receiving for the last 12 months or one year. In that view of the matter, the fixation of pension only on the basis of the last pay drawn without considering the pay scale admissible to superior post is illegal. Hence, this question is decided in favour of the petitioner in terms of the reasoning given above. 8. As far as ACP is concerned, the petitioner is not entitled to the same. ACP has been introduced in the year 2010 and it has retrospective effect from 2006 to the employees who are actually in service. It is not disputed in this case that the petitioner has been given compulsory retirement in the year 2001 and, therefore, ACP Scheme, 2010 will not be applicable to him. 9. In the result, this writ application is allowed in terms of the orders passed above. The respondents are directed to re-calculate the pension of the petitioner in terms of the observations made in the preceding paragraphs. 10. There shall be no order as to costs. 11. Urgent copies as per Rules.