Gujarat High Court
Abhayanand Sachhidanand Saxena vs General Manager Western Railway & on 19 January, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/13924/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13924 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ABHAYANAND SACHHIDANAND SAXENA....Petitioner(s)
Versus
GENERAL MANAGER WESTERN RAILWAY & 1....Respondent(s)
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Appearance:
MS REENA KAMANI FOR MR PH PATHAK, ADVOCATE for the Petitioner(s)
No. 1.
MS REETA CHANDARANA, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL
KURESHI
Page 1 of 10
C/SCA/13924/2005 JUDGMENT
and
HONOURABLE MS JUSTICE SONIA
GOKANI
Date : 19/01/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner, an erstwhile employee of the Railways, having died, this petition is pursued by his legal heirs. In the petition, the petitioner has challenged the judgment dated January 03, 2005 passed by the Central Administrative Tribunal, Ahmedabad (hereinafter referred to as 'the Tribunal'), in O.A. No.23/2003 and further order dated May 03, 2005, by which the Review Application came to be dismissed by the Tribunal.
2. Since the records are old and the pleadings somewhat unclear, with considerable difficulty, we have been able to gather full facts from both the sides.
3. Brief history of the case is that the petitioner was at the relevant time working as Chief Loco Page 2 of 10 C/SCA/13924/2005 JUDGMENT Inspector with the Railways. Some of his juniors were receiving higher payscale than him and some other similarly situated employees. The Railway Administration passed an order dated May 24/27, 1988 stepping up the pay of the petitioner and others to the level of their juniors with effect from February 22, 1988. In the case of the petitioner, his pay was stepped up from the basic of Rs.2875/ to Rs.3200/ with effect from the said date. However, the Railway Administration realised that the juniors were receiving such pay on account of their adhoc promotion and that the rule of stepping up would not apply in such a case. Without giving effect to such pay fixation order, therefore, on May 28, 1990, the Railway Administration passed a fresh order cancelling its earlier order dated May 24/27, 1988. Resultantly, the benefit of stepping up of pay in favour of the petitioner was withdrawn. 3.1 It, however, appears that subsequently at the time of promotion of the petitioner, the Railway Administration granted two increments Page 3 of 10 C/SCA/13924/2005 JUDGMENT of Rs.75/ each to the petitioner with effect from February 01, 1992, over and above his basic salary of Rs.3200/. This was further revised to Rs.3500/ presumably upon release of his regular increment with effect from September 25, 1993. He retired on superannuation with effect from June 30, 1994. 3.2 The case of the petitioner is that though he received salary as per such pay fixations, while calculating his pension, the Railway Administration ignored the two advance increments of Rs.75/ each. He took up this issue before the Tribunal by filing O.A. No.23/2003. The case of the petitioner is that in the meantime, he had represented to the Railway Administration and it had also passed an order dated March 19, 2001, under which the pay of the petitioner was refixed by considering the said two increments of Rs.75/ each as on February 01, 1992, over and above his basic pay of Rs.3220/ as on that date. Since despite this order, the petitioner did Page 4 of 10 C/SCA/13924/2005 JUDGMENT not receive consequential difference in pension, he approached the Tribunal. In such petition, he requested for implementation of the said order dated March 19, 2001. Such O.A. came to be dismissed by the Tribunal by the impugned judgment. The Tribunal recorded that the benefit of stepping up of the pay was never granted. Such order was subsequently cancelled vide order dated May 28, 1990. Such order was never challenged by the petitioner. The petitioner was, therefore, not entitled to any stagnation increment since he would not have stagnated at the maximum of the scale. The Tribunal also recorded that ".. .. The applicant has not produced his PPO to show as to what pay was being drawn by him prior to retirement. .. ..".
3.3 It is this judgment that the petitioner has challenged in this petition.
4. Having heard the learned counsel for the parties and having perused the documents on record, as Page 5 of 10 C/SCA/13924/2005 JUDGMENT recorded in our interim order dated August 13, 2014, short question to be considered is whether the petitioner was correctly granted two advance increments of Rs.75/ each and whether on the basis of such pay fixation previously ordered, the salary was actually paid to the petitioner during his active service. During the course of this petition, we also noticed that an order dated October 07, 2003 was brought on record by the Railway Administration, under which the order dated March 19, 2001 came to be withdrawn. The case of the Railway Administration is that the advance increments were wrongly granted and, therefore, were subsequently withdrawn by order dated October 07, 2003. We had in our order dated August 13, 2014 recorded that such later order of October 07, 2003, was never produced before the Tribunal though the petition was disposed of in the year 2005.
4.1 Insofar as the stand of the Railway Administration for withdrawal of the order of stepping up of pay is concerned, we have no Page 6 of 10 C/SCA/13924/2005 JUDGMENT quarrel whatsoever. The stepping up was granted when it was not due to the petitioner and other employees since the very basis of the higher pay of the juniors was their adhoc promotion. Even the petitioner had not questioned the subsequent order of the Railway Administration dated May 28, 1990, withdrawing the benefit of stepping up of pay. The real question before the Tribunal and consequentially before us is, can the Department calculate the pension of the petitioner ignoring two advance increments granted to him during the course of his active service. Whatever be the genesis of the two advance increments released in favour of the petitioner, it appears indisputably that such advance increments were granted to him. It was because of this that his basic salary was fixed at Rs.3220/ + Rs.75/ + Rs.75/ as on February 01, 1992. It was thereafter increased to Rs.3500/ with additional increment due and released in his favour with effect from September 25, 1993. He retired with effect from June 30, 1994. Though the Tribunal recorded Page 7 of 10 C/SCA/13924/2005 JUDGMENT that it is not clear as to whether the petitioner actually received such salary, we have verified the original service book of the employee presented by the Railways, which also carries the entries of pay fixation noted above. There is nothing on record that despite such fixation, his salary was not released on such basis. We, therefore, proceeded on the premise that the petitioner received salary on the basic payscale of Rs.3350/ on February 01, 1992 and Rs.3500/ with effect from September 25, 1993. The pension of a retired Government servant is to be fixed in terms of his last drawn salary considering his total length of pensionable service. Throughout the active service, the petitioner received salary on certain pay fixations. The Railway Administration could not have drawn his pension on some other basis at a lower level without legally revising his pay fixed. This was never done. In fact, a further order was passed on March 19, 2001, nearly after seven years after his retirement, giving legitimacy to the pay Page 8 of 10 C/SCA/13924/2005 JUDGMENT fixed as on February 01, 1992 and September 25, 1993, as noted above. Strangely the Railway Administration once again backtracked its step and recalled its order dated March 19, 2001 vide order dated October 07, 2003. This order cannot be relied upon for withholding the correct pension of the petitioner for several reasons. Firstly, this would run against the actual pay fixed and salary drawn by the employee. Secondly, this order was passed many years after the Government servant retired. Thirdly, it was passed behind the back of the petitioner without any notice. Fourthly, this order was never communicated to the petitioner or even to the Tribunal, which was offspring of the petitioner's grievance about not paying correct pension to the petitioner.
5. Under the circumstances, the impugned judgment of the Tribunal is reversed. The respondents are directed to refix the pension of the petitioner taking into account his last drawn salary on the basis of pay fixation carried out in his service Page 9 of 10 C/SCA/13924/2005 JUDGMENT book noted above. Since the petitioner himself had taken considerable time in moving the legal machinery for such purpose, there shall be no burden of interest till filing of the Original Application. Post the date of filing, the respondent shall pay statutory interest on such unpaid pension. Such benefit shall be released in favour of the legal heirs of the deceased employee.
These directions, including releasing of residue of the pension, shall be carried out latest by March 31, 2015.
The petition is disposed of accordingly. Rule is made absolute. There shall be, however, no order as to costs.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) Aakar Page 10 of 10