Rajasthan High Court - Jaipur
Mahesh Chand Sharma vs State Of Raj And Ors on 8 December, 2009
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
**
Civil Writ Petition No.4718/2009
Mahesh Chand Sharma Versus State & Ors.
Date of Order ::: 08/12/09
Hon'ble Mr. Justice Ajay Rastogi
Mr. Ashok Gaur, for petitioner
Mr. Jinesh Jain, Govt. Counsel, for respondents.
Instant petition has been filed by petitioner with the grievance that after having applied for voluntary retirement from service w.e.f. 01/09/2008 duly accepted vide order dt.01/09/2008 while holding post of Secretary Gram Panchayat, his retiral dues have not been paid to him so far.
As alleged in the petition, petitioner initially joined service as Mistri (Civil Work) in Irrigation Sub Division No.1, Bharatpur on 11/05/1968 and fixed in pay scale of Rs.100-180/- w.e.f. 01/09/68. He was made permanent w.e.f. 01/04/82 vide order dt.24/12/82 (Ann.2).
However, work-charged employees in Irrigation Department were declared surplus alongwith petitioner who were absorbed in the department of Panchayatiraj on the post of Gram Sewak Cum Secretary, Panchayat Samiti vide order dt.02/12/1989 (Ann.3) wherein name of petitioner finds place at S.No.9 and while holding the post of Gram Sewak, was granted benefit of selection scale vide order dt.02/08/2001 (Ann.6) and finally while holding post of Gram Sewak, he took voluntary retirement which was accepted vide order dt.01/09/08 (Ann.8) with immediate effect. While his retiral dues were not being paid despite requests made, it constrained him to approach this Court by way of instant petition.
After the notices were served, respondents have filed reply to the writ petition, wherein it has been inter-alia averred that an error was committed while granting him selection scales and in terms of Govt. Circular dt.06/09/2002 (Ann.R/1), petitioner since having initially joined the service as work-charged employee, was entitled for grant of selection scale w.e.f. 01/01/1998 and till error (supra) was first to be rectified, his pension papers and retiral dues could not have been finalised. Only grievance raised herein is that his retiral dues have been withheld by respondents to which he is entitled for under law and the delay in no manner can be attributed to him; as such he is further entitled to interest over the delay in payment of retiral dues in terms of R.89 of Rajasthan Civil Services (Pension) Rules, 1996.
It has not been disputed by respondents that before or after retirement any judicial or departmental proceedings have ever been initiated/pending against petitioner. Only impediment having been pointed out is in regard to an error being committed while passing order dt.02/08/2001 (Ann.6) for grant of selection scales in pursuance of Govt. Circular dt.25/01/92 in the absence of it being revised as having been objected by Director of Pension Department, his pension could not have been finalised.
In the opinion of this Court, the so-called impediment having been taken note of while revising selection scale is wholly without merit for the reason that after having joined service as work-charged employee, petitioner was made permanent w.e.f. 01/04/82 vide order dt.24/12/1982 (Ann.2), and once he was declared surplus from the department of irrigation in December, 1989 and was consequently absorbed in Department of Panchayatiraj on the post of Gram Sewak cum Secretary as is evident from order dt.02/12/89 (Ann.3), as a legal corollary thereto, he became member of Rajasthan Panchayatiraj Rules, 1959 on being absorbed, he was entitled for grant of selection scales on completion of 9/18/27 years service in pursuance of Govt. Circular dt.25/01/92 and that apart, after being permanently absorbed in Panchayatiraj Department, certainly his previous service rendered in department of irrigation was also required to be computed for purpose of selection scales on completion of 9/18/27 years. Thus, indisputably, petitioner completed nine years' service for purposes of selection scale, to which he was entitled for.
As regards other Circular dt.06/09/02 (Ann.R/1) referred to by respondents, it is in fact a clarification of its earlier Circular dt. 30/09/98 relating to work-charged employees having been absorbed in other departments. However, as regards present petitioner, he was absorbed from irrigation department on 02/12/89 while he was holding permanent post w.e.f. 01/04/82 in terms of order dt.24/12/82 (Ann.2), much before Circular dt.30/09/98 or 06/09/2002 (Ann.R/1) was issued pursuant to which, respondents were not justified in taking decision revising selection scale; and grant of selection scale in terms of Govt. Circular dt.25/01/92 sanctioned vide order dt.02/08/2001 (Ann.6) cannot be considered to be arbitrary which may require any modification.
That apart, petitioner took voluntary retirement vide order dt.01/09/2008 (Ann.8) and atleast after more than six years of passing of the order dt.02/08/2001 granting him selection scale even otherwise it could not have been revised for one reason or the other, as having been pointed out by respondents in terms of Circular dt.06/09/2002 (Ann.R/1). Once petitioner has retired from service on 01/09/2008 (Ann.8), he became entitled for retiral dues admissible under law on the basis of last pay drawn while holding the post of Gram Sewak, on the date of retirement. U/r 7 of Rajasthan Civil Services (Pension) Rules, 1996 (Pension Rules, 1996), retiral dues could be withheld only if any judicial or departmental proceedings are pending. In case of present petitioner, indisputably, there was no judicial or departmental proceedings ever initiated/ pending at the time of his retirement on 01/09/2008 in absence whereof, there was no justification available for respondents to withhold his retiral dues to which he is entitled for under law.
As regards delay in release of pension in favour of petitioner, suffice it to say that as per scheme of Pension Rules, 1996, retiral dues are to be paid to incumbent within sixty days from the date of retirement and if payment is made after sixty days from the date of it having become due, and it is established that failure was not on the part of Government servant, he will be entitled to grant of interest @9% per annum as admissible U/r 89 of Rules, 1996.
Consequently, writ petition succeeds and is hereby allowed and it is held that vide order dt.02/08/2001(Ann.6) petitioner was rightly granted benefit of selection scale in pursuance of Government Circular dt.25/01/92 and respondents are directed to compute retiral dues of petitioner on the basis of last pay drawn of the post of Gram Sewak cum Secretary as admissible under law and be paid alongwith interest over delayed payment of retiral dues @9% (nine) per annum from the date of his retirement till its actual payment. All exercise to comply with aforesaid order be made within three months from the submission of certified copy of this order in the office of respondents. No costs.
(Ajay Rastogi), J.
K.Khatri/p.6/ 4718CW09Dec8 SlScl-Pens-Int.do