Bombay High Court
Sudamrao Keshawrao Aher vs The State Of Maharashtra on 21 November, 2013
Author: A.I.S. Cheema
Bench: R.M. Borde, A.I.S. Cheema
wp10283.12& 888.13
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10283 OF 2012
1) Sudamrao Keshawrao Aher,
Age-63 years, Occu:Retired,
R/o-Sai Colony, Savedi Road,
Ahmednagar, Dist-Ahmednagar,
2) Sahebrao Sukhdeorao Rindhe,
Age-63 years, Occu:Retired,
R/o-Sai Colony, Savedi Road,
Ahmednagar, Dist-Ahmednagar,
3) Ashok Sahebrao Jadhav,
Age-63 years, Occu:Retired,
R/o-'Tanmay' 55, Samata Nagar,
Near T.V. Centre, Ahmednagar,
Dist-Ahmednagar.
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Through it's Principal Secretary,
Higher & Technical Education
Department, Mantralaya Annex,
Mumbai - 431 032,
2) The Director of Higher Education,
Maharashtra State, Central Building,
Pune, Dist-Pune,
3) The Joint Director of Higher Education,
Department of Higher Education,
17, Dr. Ambedkar Road, Pune,
Dist-Pune.
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4) The University of Pune,
Ganesh Khind, Pune,
Through its Registrar,
5) New Arts, Commerce & Science College,
Ahmednagar, Dist-Ahmednagar.
...RESPONDENTS
WITH
WRIT PETITION NO.888 OF 2013
1) Tukaram s/o Manikrao Varat,
Age-59 years, Occu:Service,
R/o-Aikya Nagar, Pipe Line Road,
Savedi, Ahmednagar, Dist-Ahmednagar,
2) Sandhya w/o Ashok Jadhav,
Age-56 years, Occu:Service,
R/o-'Tanmay' 55, Samata Nagar,
Near T.V. Centre, Savedi,
Ahmednagar, Dist-Ahmednagar.
3) Shridhar s/o Shankar Jadhav,
Age-55 years, Occu:Service,
R/o-284, 'Gangai', Vidhya Colony,
Nagar Kalyan Road, Ahmednagar,
Dist-Ahmednagar,
4) Shankarrao s/o Balaji Thube,
Age-60 years, Occu:Service,
R/o-Jagruti Colony, Gulmohar Road,
Savedi, Ahmednagar, Dist-Ahmednagar,
5) Bapusaheb s/o Appasaheb Patil,
Age-53 years, Occu:Service,
R/o-Yashashri Apartments,
Rasane Nagar, Near Dizainers Colony,
Savedi, Ahmednagar, Dist-Ahmednagar,
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6) Suresh s/o Janardhan Babar,
Age-56 years, Occu:Service,
R/o-'Yashodeep', Madhuban Colony,
Kapileswar Nagar, Behind Market Yard,
Ahmednagar, Dist-Ahmednagar,
7) Machhindra s/o Vishwanath Gite,
Age-53 years, Occu:Service,
R/o-42, Sambhaji Nagar, Pipe Line Road,
Savedi, Ahmednagar, Dist-Ahmednagar,
8) Bhaskar s/o Hari Zaware,
Age-54 years, Occu:Service,
R/o-'Niranjan', Jagruti Colony,
Gulmohar Road, Savedi, Ahmednagar,
Dist-Ahmednagar,
9) Madhukar s/o Rakhamaji Karale,
Age-52 years, Occu:Service,
R/o-Vidhya Colony, Pipe Line Road,
Savedi, Ahmednagar, Dist-Ahmednagar,
10) Vijay s/o Savleram Kale,
Age-51 years, Occu:Service,
R/o-'Sidhakala', 5-B, Navnath Nagar,
Near Kohinoor Mangal Karyalaya,
Gulmohar Road, Savedi, Ahmednagar,
Dist-Ahmednagar,
11) Sudhakar s/o Murlidhar Kurhade,
Age-52 years, Occu:Service,
R/o-'Riddhi-Siddhi', Vidhya Colony,
Pipe Line Road, Savedi, Ahmednagar,
Dist-Ahmednagar,
12) Lalita w/o Uttam Kunjir,
Age-50 years, Occu:Service,
R/o-Plot No.45, 'Rudhraksh',
Near Z.P. Colony, Agarkar Mala,
Station Road, Ahmednagar,
Dist-Ahmednagar,
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13) Arun s/o Kashinath Pandharkar,
Age-52 years, Occu:Service,
R/o-01, 'Pranav Residency',
Rasane Nagar, Savedi, Ahmednagar,
Dist-Ahmednagar,
14) Dilip s/o Keru Mote,
Age-51 years, Occu:Service,
R/o-'Atharv' Madhuban Colony,
Kapileswar Nagar, Behind Market Yard,
Ahmednagar, Dist-Ahmednagar,
15) Suresh s/o Tukaram Kharat,
Age-58 years, Occu:Service,
R/o-54/A, Modern Colony,
Near Gulmohar Road Police Station,
Ahmednagar, Dist-Ahmednagar,
16) Mohan s/o Vishvasrao Deshmukh,
Age-60 years, Occu:Service,
R/o-'Antariksha' Kedgaon Devi Road,
Amitnagar, Ahmednagar,
Dist-Ahmednagar.
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Through it's Principal Secretary,
Higher & Technical Education
Department, Mantralaya Annex,
Mumbai - 431 032,
2) The Director of Higher Education,
Maharashtra State, Central Building,
Pune, Dist-Pune,
3) The Joint Director of Higher Education,
Department of Higher Education,
17, Dr. Ambedkar Road, Pune,
Dist-Pune.
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4) The University of Pune,
Ganesh Khind, Pune,
Through its Registrar,
5) New Arts, Commerce & Science College,
Ahmednagar, Dist-Ahmednagar.
...RESPONDENTS
...
Shri. P.R. Patil Advocate for Petitioners
in both Writ Petitions.
Shri. S.S. Tope, A.G.P. for Respondent Nos.
1 to 3.
None present for Respondent No.4 though
served.
Shri. V.D. Hon Advocate for Respondent No.5.
...
CORAM: R.M.BORDE AND
A.I.S. CHEEMA, JJ.
DATE : 21ST NOVEMBER, 2013 JUDGMENT [PER A.I.S. CHEEMA, J.] :
1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
2. These Writ Petitions relate to step up of pay of the Petitioners to the level of employees junior in service as employees junior are drawing ::: Downloaded on - 23/12/2013 20:27:36 ::: wp10283.12& 888.13 6 higher pay.
3. Learned counsel for both sides agree that both the Petitions raise similar dispute. As such for details, we are referring to the facts and material as brought before us in Writ Petition No.10283 of 2012, although both Petitions are heard and are being disposed together.
4. The Petitioners were working as Associate Professors in the Respondent No.5 College. Now Petitioners (as in Writ Petition No.10283 of 2012) have retired. Petitioners had obtained their Ph.D. Degrees in respective faculties. There are other Associate Professors who are juniors to the Petitioners and obtained their Ph.D. Degrees subsequent to the Petitioners. In the implementation of the 6th Pay Commission, they are getting higher salaries. Their names are:-
1) Mr.V.B. Gadkar,
2) Mr.S.S. Nighut,
3) Mr.M.S. Nimse, ::: Downloaded on - 23/12/2013 20:27:36 ::: wp10283.12& 888.13 7
4) Mr.S.C. Karle,
5) Mr.B.D. Todkar,
6) Mr.H.D. Jagtap.
. The appointment orders of these persons are subsequent to the Petitioners. The Petitioners have filed copies of various appointment orders and pay fixation. Chart Exhibit F has been filed to show how Petitioners although senior and were earlier getting higher pay-scale, now juniors are getting higher pay-scale than them. The chart is as under:-
PAY FIXATION OF THE TEACHERS Sr. Name Date of Length Ph.D. IVth Pay Vth Pay VIth Basic No. Appoint- of awar- Basic Basic Pay Salary as ment ser- ded 01.01. 01.01. Basic on 1.6.
vice 1986 1996 01.01. 2012
(Yrs) 2006
1. S.K. 01.07. 35 Jan. 12420 43390 51750
Aher 1995 2005 Retd. on
Sept.
2010
2. S.S. 01.07. 33 Oct. 3000 14940 43390 Retd.
Rindhe 1977 1983 on
July
2010
3. A.S. 07.08. 32 May 2900 12420 43390 51730
Jadhav 1978 2003 Retd. on
July
2010
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To be Compared With
Sr. Name Date of Length Ph.D. IVth Vth Pay VIth Basic
No. Appoint- of awar- Pay Basic Pay Salary
ment servi- ded Basic 01.06. Basic as on
ce 01.06. 1996 01.06. 1.6.
(Yrs.) 1986 2006 2012
1. V.B. 20.07 35 June 3000 12420 43390 59220
Gadkar 1977 2008
2. S.S. 02.07 33 Sept. 2900 12000 42120 59220
Nighut 1979 2008
3. M.S. 09.07
ig 31 March 2650 10975 39690 54400
Nimse 1981 2011
4. S.C. 11.09 26 June 2200 10000 38530 52890
Karle 1986 2009
5. Petitioners have referred to Note 6 of Government Resolution dated 12th August 2009 filed with the Petition, to claim that where a senior teacher promoted before 1st day of January 2006 is drawing less pay in the revised pay structure than his junior who is promoted to higher post on or after 1st day of January 2006, the pay in the pay band of such senior teacher is required to be stepped up to an amount equal to the amount in the pay band as fixed of the junior teacher in that ::: Downloaded on - 23/12/2013 20:27:36 ::: wp10283.12& 888.13 9 higher post. Relying on the Note 6, the Petitioners claim that anomaly is required to be corrected as the same violates Article 14, 19(1)
(g) and 21 of the Constitution of India.
Petitioners want their pay to be stepped up to be equivalent to the junior Associate Professors with effect from the date of promotion of junior Associate Professors till respective date of retirement of the Petitioners and the difference to be paid with interest. They also want pensionary benefit to be re-fixed accordingly.
6. Respondent Nos. 1 to 3 have filed affidavit in reply. It is the defence that Government of Maharashtra has implemented the revision of pay-scales of teachers and equivalent cadres in higher education as per the U.G.C. Scheme under 6th Pay Commission of Universities, Affiliated Colleges, Government Colleges/ Institutes of Science etc. The Joint Director, Higher Education, Pune has determined and fixed ::: Downloaded on - 23/12/2013 20:27:36 ::: wp10283.12& 888.13 10 the pay of the Petitioners as per Government Resolutions passed from time to time. Monetary benefits as laid down in 4th, 5th and 6th Pay Commission have been given to the lecturers who acquired Ph.D. Degree before 1st January 1986 and thereafter. Referring to the Note No.6 of Government Resolution ("G.R." for short) dated 12th August 2009, it is claimed that the same relates to promotion and not about incentives of the Ph.D. qualification and so the said Note does not apply to the Petitioners. Ph.D. benefit is an incentive. In the 5th Pay Commission at entry level, four increments were provided if person already had Ph.D. Degree and two increments were provided if the Ph.D. Degree was acquired while in service. Under the 6th Pay Commission, increments for Ph.D. at entry level were five and three increments if Ph.D. is acquired while in service.
It is claimed that the difference in salary is because of this. There is no provision of stepping up of pay in respect of incentives granted for ::: Downloaded on - 23/12/2013 20:27:36 ::: wp10283.12& 888.13 11 acquiring of Ph.D. It is claimed that the anomaly of juniors drawing more pay than that of seniors is because they have acquired Ph.D. Degrees on different dates and its incentives in terms of increments, as per different Pay Commissions.
7. The Petitioners have responded to the above defence of Respondents by way of affidavit by way of rejoinder. Petitioners are relying on Note No.5 of the G.R. dated 12th August 2009 also and have given details as to how the implementation of the 6th Pay Commission has caused inequality.
8. On behalf of the Respondents additional affidavit has been filed and referring to Note No.5 of the G.R. dated 12th August 2009, a comparative chart has been brought on record to show as to how and why the disparity arises. The comparison has been made between Petitioner No.1 S.K. Aher with one Shri. S.S. Nighut. The chart is ::: Downloaded on - 23/12/2013 20:27:36 ::: wp10283.12& 888.13 12 as under:
Sr Name Aher S.K. Nighut S.S. Remarks .
No .
01 Date of 01.07.1975 02.07.1979 Appointment 02 Qualification M.Sc. M.A. at the time of joining 03 Ph.D. Awarded January 2005 Sept. 2008 date 04 5th pay basic 12,420 12000 01.01.1996 05 t5th Pay Basic 18300 17460 as on 31.12.2005 07 6th pay basic 43,390 + 42,120 + 01.01.2006 9000 9000 08 01.07.2006 44970 + 43,660+9000 9000 09 01.07.2007 46590+9000 45240+ 9000 10 01.07.2008 48260+9000 46870+5030+ 55870X3%= 9000 1680.10X3 =5028.30 i.e. 5030 (3 Ph.D Advance increment 11 01.07.2009 49980+9000 53730+9000 12 01.07.2010 51750+9000 55620+9000 (Retired on Sept. 2010) 13 01.07.2011 57560+9000 14 01.07.2012 59560+9000 ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 13 . According to the Respondents, Petitioner Aher was drawing more pay in the 5th Pay Commission and even on 1st January 2006 when the 6th Pay Commission was implemented. The disparity arose when S.S. Nighut acquired Ph.D. subsequent to 1st January 2006 and got increments as provided in the 6th Pay Commission Report. Thus, these Respondents claim that there is no question of stepping up even as per Note No.5 of the G.R. referred to above.
9. We have heard learned counsel for both sides on the above lines. Learned counsel for Respondent Nos. 1 to 3 referred to Government of Maharashtra Resolution No.NGC2009/(243/09)-UNI-1 dated 12th August 2009, with reference to the Revision of pay-scales of teachers and equivalent cadres in Higher Education as per UGC Scheme ( 6th Pay Commission). Reference was made to Para 7 which has title - "Incentives for Ph.D./M.Phil.
And Other Higher Qualifications." Sub Para (i) and ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 14
(v) are referred at the time of arguments and the same need to be reproduced:-
"(i) Five non-compounded advance increments shall be admissible at the entry level of recruitment as Assistant Professor to persons possessing the degree of Ph.D. awarded in the relevant discipline by the University following the process of admission, registration, course work and external evaluation as prescribed by the UGC in its Regulation.
......... ............ ..............
(v) However, teachers in service who have been awarded Ph.D. at the time of coming into force of this Scheme or having been enrolled for Ph.D. have already undergone course-work, if any, as well as evaluation, and only notification in regard to the award of Ph.D. is awaited, shall also be entitled to the award of three non-compounded increments even if the university awarding such Ph.D. has not yet been notified by the UGC as having complied with the process prescribed by the Commission."
. Based on this, it is claimed that under ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 15 the 6th Pay Commission, at entry level five increments have been provided for teachers having Ph.D. and three increments are provided for teachers who acquire Ph.D. while in service.
10. In this regard Note Nos.5 and 6 of Appendix-I to the Government Resolution which have been referred in the pleadings, need to be reproduced for convenience, which read as under:
"Note 5 - Where in the fixation of pay under sub rule 2(A) the pay of a teacher, who, in the existing scale was drawing immediately before the 1st January, 2006 more pay than the other teacher junior to him in the same cadre, gets fixed in the revised pay band at a stage lower than that of such junior, his pay shall be stepped up to the same stage in the revised pay band as that of the junior.
Note 6 - In case where a senior teacher promoted to a higher post before the 1st day of January, 2006 draws less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 1st day of January, 2006, the pay in ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 16 the pay band of such senior teacher should be stepped up to an amount equal to the pay in pay band as fixed for his junior in that highest post. The stepping up should be done with effect from the date of promotion of the junior teacher subject to the fulfillment of the following conditions:
(i) both the junior and the senior teacher should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre.
(ii) the pre-revised scale of pay and revised Pay Band and Academic Grade Pay of the lower and higher posts in which they are entitled to draw pay should be identical,
(iii) the senior teacher at the time of promotion should have been drawing equal or more pay than the junior,
(iv) the anomaly should be directly as a result of the application of the provision of these rules or any other rules or order regulating pay fixation on such promotion in the revised pay structure."
11. Relying on above Para 7 of the Government Resolution, it has been argued by learned counsel ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 17 for Respondent Nos. 1 to 3 by referring to the comparative chart of Petitioner S.K. Aher and S.S. Nighut (reproduced above), that on 1st January 2006 when 6th Pay Commission was implemented, Petitioner had higher salary but the salary of S.S. Nighut increased as he acquired Ph.D. Degree in September 2008 which was subsequent to coming into force of 6th Pay Commission. Thus, according to the counsel the difference is not because of pay fixation but because the increments have been given to the junior.
12. No dispute has been raised regarding the claim of the Petitioners that they were seniors to the persons mentioned in the Petition, who, according to the Petitioners are getting more salaries than them. If the comparative chart of Petitioner Aher and S.S. Nighut is perused and details compared, it can be very well appreciated that date of appointment of Petitioner is earlier to S.S. Nighut. Both of them were Post Graduates.
::: Downloaded on - 23/12/2013 20:27:37 :::wp10283.12& 888.13 18 Petitioner Aher acquired Ph.D. Degree in January 2005 while S.S. Nighut acquired the same only subsequently in September 2008. At the beginning and end period of 5th Pay Commission, Petitioner Aher was getting more salary. Even on 1st January 2006 when 6th Pay Commission basic was applied, basic of Petitioner Aher was more. The position changed after 1st July 2008 as it appears that in September 2008 S.S. Nighut acquired Ph.D. and was granted three advance increments.
. Question before us is, whether this is appropriate or the position is required to be corrected by stepping up the pay of the Petitioners so as to be equivalent to the junior.
The Petitioners have pointed out in Para 7 of the Petition that the anomaly exists because teachers junior to Petitioners who have been awarded Ph.D. Degrees after 1st January 2006 are entitled to three non compoundable increments. When Petitioners completed their Ph.D. Degrees before ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 19 1st January 2006, they were entitled to get only two increments of Rs.420/- each, totalling to Rs.840/-, while teachers who got their Ph.D. Degrees subsequently, got their salary increased by almost Rs.9000/- per month, inclusive of three additional increments and other allowances.
13. Comparative chart of Petitioner S.K. Aher and S.S. Nighut makes it clear that while everything was equal between the senior and junior to the extent that both of them had acquired Ph.D. Degrees, due to the only difference that the junior had acquired Ph.D. Degree recently, he has been given incentive under implementation of 6th Pay Commission in such a manner that he marches over the senior to get much more in salary by what has been stated to be an incentive for acquiring Ph.D. Degree. No doubt incentives are required to be given but all things given to be the same, if while implementing the incentive to the junior disparity arises in the pay, it would be necessary ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 20 to step up the pay of the senior so as to be at par with junior. If this is not accepted, it would create serious disparities as is appearing from the present record. After all giving of the incentive under the Pay Commission is also part of the implementation of Pay Commission and there is no reason why disparity arising due to implementation should not be corrected and pay of the senior should not be stepped up.
14. Learned counsel for the Petitioners relied on the case of Gurcharan Singh Grewal and another vs. Punjab State Electricity Board and others, reported in (2009) 3 Supreme Court Cases
94. That was also the matter where anomaly arose due to difference of incremental benefits. The learned counsel for Respondents, Mr. Chhabra, in that matter, tried to justify the disparity before the Hon'ble Supreme Court by claiming that the disparity between the pay of Shri. Shori (in that matter) and Appellant 1 before the Hon'ble Supreme ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 21 Court was because the Appellant 1 had been granted promotional scale with effect from 1st January 1996, where the benefits of increments in the scale were lower and on the other hand Shri. Shori who joined the services of the Board in 1974 was granted promotional scale on 17th May 2006 with effect from 1st September 2011 when the increments in the pay-scale were higher. The Hon'ble Supreme Court observed in Para 17 and 18 of the Judgment as under:-
"17. Something may be said with regard to Mr Chhabra's submissions about the difference in increment in the scales in which Appellant 1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to Appellant 1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of Appellant 1 was also stepped up to that of Shri Shori, as ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 22 appears to have been done in the case of Appellant 2.
18. We are unable to accept the reasoning of the High Court in this regard or the submissions made in support thereof by Mr. Chhabra, since the very object to be achieved is to bring the pay scale of Appellant 1 on a par with that of his junior. We are clearly of the opinion that the reasoning of the High Court was erroneous and Appellant 1 was also entitled to the same benefits of pay parity with Shri Shori as has been granted to Appellant
2."
. Thus, the Hon'ble Supreme Court rectified the situation when incremental benefits given at different times were different so that the settled principle of law that "senior cannot be paid a lesser salary than his junior" is maintained.
15. In present matter, according to us, the incentives while implementing 6th Pay Commission for Ph.D. cannot be so given so as to give a junior teacher more pay than the senior who is ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 23 otherwise equally qualified. Rather he has more experience and is senior even in the acquisition of the Ph.D. Degree. All things given to be the same at a given point of time, junior teacher could not be getting more salary than the senior only because the junior has just acquired the Ph.D. Degree. The Constitution has goal under Article 39(d) that there should be equal pay for equal work. If the arguments as raised on behalf of the Respondents are accepted, the same would amount to discriminating to teachers only on the basis of junior teacher having acquired Ph.D. Degree recently under new Pay Commission. This would be violative of the principles as enunciated in Article 16 of the Constitution and such position cannot be allowed to be maintained. It is different when one person is having higher qualifications. However, it would be discriminatory when both are having similar qualifications and a person not only senior in service but also equally qualified is so ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 24 discriminated so as to be put in disadvantageous position as if it was a fault to have acquired Ph.D. Degree earlier. It is not a case of keeping the incentive separate and not part of pay. If pay fixation of Petitioner No.1 (as at Page 60-61 in Paper Book) is seen, on 1st July 2008, his basic pay is shown as Rs.57260/- while that of Shri.S.S. Nighut (See Page 107) was Rs.55870/-. Then in the proforma of Pay Fixation, entry on 22nd September 2008 for Shri. S.S. Nighut shows his basic pay as "55870+5030=60900". Thus the increments were merged in the basic. This would be discriminative between Senior Teacher and Junior Teacher. Note 5 below Appendix I of the G.R. needs to be so applied that such discrimination is removed.
16. For the above reasons both the Petitions need to be allowed with directions that Respondents shall take necessary action to step up the pay of the Petitioners in both the Petitions so as to be at par with juniors where all the ::: Downloaded on - 23/12/2013 20:27:37 ::: wp10283.12& 888.13 25 things given are same and shall not discriminate only because the junior teacher has acquired Ph.D. Degree in the course of 6th Pay Commission. The salaries of the Petitioners in both the Petitions may be re-fixed and arrears be paid within a period of THREE MONTHS. For Petitioners who have already retired, the pension shall be re-fixed accordingly.
17. Both the Writ Petitions are allowed as above.
18. Rule made absolute accordingly. No order as to costs.
[A.I.S. CHEEMA,J.] [R.M. BORDE,J.] asb/NOV13 ::: Downloaded on - 23/12/2013 20:27:37 :::