Madhya Pradesh High Court
The State Of Madhya Pradesh vs Radha Bhatnagar on 16 June, 2016
W.A. No.235/2016
16.06.2016
Shri Milind Phadke, learned GA for the appellants - State.
Shri M. M. Bohra, learned counsel for the respondent.
Heard on the question of admission as well as on I.A. No.3449/2016, which is an application for condontion of delay. The writ appeal is barred by 26 days.
For the reasons assigned in the application, we are of the considered view that the cause shown by the appellants is sufficient to condone the delay of 26 days. Accordingly, I.A. No.3449/2016 is allowed and stands closed. Delay in filing the appeal is hereby condoned.
The question involved in this writ appeal has been considered by this Court in W. A. No.718/2014 (State of M.P. & another vs. Dr. Surendra Narayan Gupta) decided on 15.10.2014. The order reads as under :-
Heard on IA as well as on writ appeal filed by the State.
1. It is submitted by learned Dy.Govt.Advocate that as per the recommendations of 5th Pay Commission based upon the implementation of Bramhaswaroop committee w.e.f.1.4.2007 the State Government accepted the recommendations of Bramhaswaroop committee to the extent that employees, who were retired prior to 1.1.1996 shall be entitled w.e.f.1.4.2007. She submitted that the order passed by Division Bench in the case of State of M.P. Vs. Kamla Jain and others, on the basis of concession given by the learned Govt.Advocate the learned Division Bench has given the benefit and directed that the petitioner therein would be entitled for the benefit of pension w.e.f. 1.1.1996 upto 1.4.2007 calculated on the basis of pay. She further submitted that the matter has been decided by the learned Single Judge on merits considering the grounds taken by the State in their return on 25.4.2013 passed in W.P.No.18535/2011(S) (N.P.Verma Vs. State of M.P.and three others) decided on 25.4.2013.
The learned Division Bench relying on the decision of Supreme Court in the matter of Subrata Sen & others Vs. Union of India, reported in (2001) 8 SCC 711, granted a relief in para 4 to 7, which reads as under.:-
"4 : Learned Govt. Advocate has fairly contended that in terms of the law laid down by the Apex Court, learned Single Judge has rightly decided the controversy of payment of arrears of pension to the respondent with effect from 1.1.1996. However, the quantum of amount as claimed by the respondent in the writ petition was not correct as according to the respondent she was claiming the amount of pension @ Rs.12,840/- per month, whereas, the respondent was to be paid the proportionate pension taking into account Rs.12,840/- per month as basic salary. It is contended that only this much is the error on account of which now the respondent is saying that the amount of arrears of pension has not been paid though the entire payment has been made to the respondent.
5. : Learned Power of Attorney holder, appearing for the respondent contends that the respondent would be entitled to the pension proportionate to the basic pay of rs.12,840/- per month with effect from 1.1.1996 and not the amount of pension itself as Rs.12,840/- per month. However, it is contended that proper amount of pension has not been paid by the appellants, therefore, still the amount of arrears of pension is required to be paid with interest @ 9% per annum.
6. : We have carefully gone through the order passed by the learned Single Judge and have also examined the relief claimed by the respondent in the writ petition. For the purposes of proper appreciation, it would be profitable to refer the relief claimed by the respondent in the writ petition, which reads as follows.:-
"(i) It is, therefore, prayed that a writ of mandamus may kindly be issued to the respondents, directing them to pay the entire arrears of Pension @ Rs.12,840/- per month with 9% interest per annum as directed by the Hon'ble High Court in W.P.No.1239/2010, decided on 26.11.2010, as the order passed by the Hon'ble High Court has attained finality since the respondents did not reconsider the matter within a period of 3 months as directed by the Hon'ble High Court. All other consequential benefits arising from the facts of the case may also be conferred on the petitioner.
(ii) Any other writ, order or direction, which this Hon'ble Court may deem fit & proper in the facts & circumstances of the case may also kindly be passed in the interest of justice."
7. : As has been admitted before us, the respondent would not be entitled to the pension @ Rs.12,840/- per month, but would be entitled to the pension which is to be calculated taking into account Rs.12,840/- per month as basic pay with effect from 1.1.1996. Since the learned Single Judge in the operative part of the order has directed payment of arrears of pension to the respondent with effect from 1.1.1996 upto 1.4.2007 "as claimed by the petitioner" (respondent herein) along with interest, we modify this part of the order passed by the learned Single Judge and direct that the respondent would be entitled to the arrears of pension with effect from 1.1.1996 upto 1.4.2007 calculated on the basis of pay at Rs.12,840/- per month. If the said amount of arrears of pension is already calculated and paid to the respondent, the appellants need not to pay any interest. However, if it is found that the amount of arrears of pension or part thereof has not yet been paid to the respondent, the appellants would pay the balance of arrears of pension to the respondent with interest @ 9% per annum within a period of one month from today."
2. In the present case, learned writ Court considering the judgment passed in case of Smt.Kamla Jain (supra) allowed the writ petition and directed the appellant/State to grant benefit w.e.f. 1.1.1996. The order of Division Bench was challenged by filing SLP before the Apex Court. The Apex Court by the order dated 2.8.2013 dismissed the SLP by observing that in the peculiar facts and circumstances of the case they declined to interfere in the matter. She submits that in the matter of Kamla Jain, concession has been given by learned Govt.Advocate and, therefore, SLP was dismissed on 2.8.2013. With the aforesaid, she prays for admission of the writ appeal.
3. Learned counsel for the respondent opposed the prayer and submitted that order passed in the case of Smt.Kamla Jain and V.D.Saxena still holds the field and the writ Court has not committed any error.
4. On due consideration of the arguments advanced by the parties and considering that the question involved has been decided in the case of Kamlal Jain and the same has been upheld by thje Apex Court, we are of the opinion that no case to interfere with the aforesaid order is made out, particularly when the matter is decided by the Division bench. Accordingly, the IA and the writ appeal; have no merits. The same are hereby dismissed.
For the reasons assigned therein, we dismiss this writ appeal.
(P. K. Jaiswal) (Vivek Rusia)
Judge Judge
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