Gujarat High Court
J R Paneliya & 33 vs State Of Gujarat Thro Secretary & on 22 September, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/705/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 705 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
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J R PANELIYA & 33....Petitioner(s)
Versus
STATE OF GUJARAT THRO SECRETARY & 1....Respondent(s)
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Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 34
MR GUNVANT B SHAH, ADVOCATE for the Petitioner(s) No. 1 - 34
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1
MR MITUL K SHELAT, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/09/2015
CAV JUDGMENT
Page 1 of 37
HC-NIC Page 1 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT 1 By this writ petition under Article 226 of the Constitution of India, the petitioners - retired Associate Professors and Assistant Professors respectively have prayed for the following reliefs:
"6(a) Your Lordships may be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate, writ, order or direction, quashing and setting aside the action of the respondents including subsequent Resolution dt. 26022014 of respondent State Government Finance Department at AnnexureR1 in reducing the amount of basic pension of the petitioners from Rs.23,200/ to 19,730/ and family pension from Rs. 19,300/ to 14,430/ w.e.f. 1.1.2006 and be further pleased to quash and set aside the recovery of the difference of amount paid to the petitioners between 1.1.2006 and 1.6.2012; and further be pleased to direct the respondents to continue to pay the amounts of pension and family pension with appropriate revisions as and when take place and further be pleased to refund the amount of recoveries made from the petitioners' pension with an appropriate rate of interest that may appear expedient to this Honourable Court;
(b) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice;
(C) During the admission, pendency and final disposal of this petition, be pleased to restrain the respondents, their officers, servants and agents or any office and agency working under the respondents from effecting any recovery from the amount of pension payable to the petitioners;
(d) During the pendency of the petition Your Lordship be pleased to direct the respondents to continue to pay to the petitioners, the amount of pension to the tune of Rs.23,200/ and family pension of Rs. 19,300/.
2 The case of the petitioners may be summarized as under:
2.1 The petitioners were serving with the Anand Agricultural University as the Associate Professor and their equivalent position as well as Assistant Professors getting selection grade and holding equivalent position thereto. They all retired prior to 2006 and are Page 2 of 37 HC-NIC Page 2 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT drawing pension individually or as legal heirs of the late pensioners.
2.2 The State of Gujarat in its Agriculture and Cooperation Department issued a Government resolution dated 01.04.2010, whereby, it was decided to confer the benefit of recommendations of the Sixth Pay Commission to the teaching cadres of all the four Agricultural Universities of the State of Gujarat with effect from 01.01.2006.
2.3 The State Government in its Finance Department issued a resolution dated 13.04.2009 extending the benefit of the recommendations of the Sixth Pay Commission to the existing pre 01.01.2006 pensioners / family pensioners.
2.4 The Clause 7 of the said resolution made it clear that all the pension disbursing authorities handling the disbursement of pension to the State Government Pensioners were not required to take any further authorization from the concerned authorities which had authorized pension / family pension originally. The Clause 9.2 of the said resolution made clear the issue regarding payment of the revised pension to the Teachers.
2.5 The Government of India in its Ministry of Human Resources Development addressed a letter to the University Grants Commission dated 15.12.2009 communicating that the Government had decided that Page 3 of 37 HC-NIC Page 3 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT in the case of Teachers and equivalent cadres, the pre01.01.2006 pensioners mentioned at the categories "A" and "B" of the letter and having completed three years of service on 01.01.2006 in the prerevised pay scale of Rs.12,000 - Rs.420 - Rs. 18,300/ (and/or the corresponding pay scales applicable prior to 01.01.1996) shall be placed at the minimum of the pay band of Rs.37,400 - Rs.67,000/ with the AGP of Rs.9,000/ for revision of their pension / family pension with effect from 01.01.2006.
2.6 The Government of India also issued further clarification to the University Grants Commission dated 01.07.2010 fixing the pension of various teaching staff who had retired prior to 01.01.2006 from the Central Universities and Colleges.
2.7 It is the case of the petitioners that they fall in the category of Lecturer (selection grade) / Reader (with three years or more of service), entitled to receive the minimum pension on the basis of the approved revised pay band mentioned in column 4 to be Rs.37,400 -
Rs.67,000/ with grade pay of Rs.9,000/ making them entitled to receive Rs.23,200/ as the minimum pension and Rs.13,900/ as family pension.
2.8 It is the case of the petitioners that the Universities experienced difficulty in revising the pension of the pensioners who had retired Page 4 of 37 HC-NIC Page 4 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT before 01.01.2006 in the cadre of Associate Professor / Associate Research Scientist / Associate Extension Educationist / Rider/ Assistant Professor (Selection Grade) and its equivalent whose prerevised pension was fixed on the basis of the pay scale of Rs.12,000 - Rs.18,300/. 2.9 In such circumstances, referred to above, the University constituted a Committee comprising of the Registrar, Comptrollercum Accounts Officer, Professor and Head of Department of Agricultural Statistics and one retired Research Scientist. The Committee, after taking into consideration all the relevant aspects of the matter, opined that the Teachers of the cadres mentioned above, who had retired prior to 01.01.2006, would be entitled to the revision of pension in the grade of Rs.37,400/ plus Rs.9,000/ (pay band) of minimum 50% of the basic pay, thereby, making the minimum basic pension for the regular pensioners at Rs.23,200/ and the family pensioners at Rs.13,920/. 2.10 The Registrars of the respective Universities addressed a communication to the Accounts OfficercumComptroller of the respondent University dated 31.08.2010/ 01.09.2010 informing that the minutes of the meeting were approved by the Vice Chancellor. 2.11 Accordingly, the pension / family pension of all the pensioners was revised and they started receiving pension to the tune of Page 5 of 37 HC-NIC Page 5 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT Rs.23,200/ and family pension to the tune of Rs.13,920/, as approved by the Board of Management in its decision dated 17.04.2010. 2.12 It is the case of the petitioners that all of a sudden, they started receiving reduced amount of pension to the tune of Rs.19,730/ from 01.01.2012. Therefore, they made a representation dated 24.08.2012 to the University complaining about the reduction in the amount of pension. One of the pensioners received a reply dated 25.08.2012 informing him that the reduction of pension was as a result that an objection raised by the Auditor at the Junagadh Krushi University, and accordingly, the pension was reduced with no recovery. 2.13 The respondent University took up the issue with the State Government by addressing a communication dated 27.08.2012 and sought guidance in the matter.
2.14 It is the case of the petitioner that the Government did not respond to the communication, referred to above. However, the respondent University, addressed a communication dated 21.12.2012 to all the pensioners seeking to recover the amount of difference from their pensions. One of the petitioners received a communication wherein he was informed that an amount of Rs.4,70,146/ was recoverable from him.
Page 6 of 37 HC-NIC Page 6 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT 2.15 It is the case of the petitioners that the State Government raised an objection that in the absence of any previous approval, the pension could not have been revised. The University had, time and again, sought approval / guidance by various communications addressed to the State Government with the last one dated 27.08.2012, but the State Government very conveniently ignored the same.
2.16 The respondent - University informed to the association of the petitioners vide communication dated 31.08.2012 that the audit objection was raised in spite of the explanation offered by the University, and that a proposal was made to the State to incorporate the pay scales of the Agricultural Universities in Anneuxre: "III" to the resolution dated 13.04.2009. Since there was no response from the State Government and the petitioners were visited with sharp reduction in the amount of pension and also recovery with retrospective effect i.e. from the January, 2006, they were left with no other option, but to file the present writ petition.
3 Mr. Gautam Joshi, the learned counsel appearing for the petitioners vehemently submitted that the action of the respondents in reducing the amount of basic pension from Rs.23,200/ to Rs.19,730/ and seeking recovery of the said amount of difference from 01.01.2006 could be termed as illegal, arbitrary, irrational and violative of the Page 7 of 37 HC-NIC Page 7 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT Articles 14, 16 and 21 of the Constitution of India.
4 Mr. Joshi submitted that his clients are legally entitled to receive the pension payable on the basis of the pay band of Rs.37,400 - Rs.67,000/ on the basis of the policy decision taken over a period of time in respect of the retired teaching staff of Universities and there is no rational to treat the retired teaching staff of the Agricultural Universities differently.
5 Mr. Joshi submitted that the decision to revise the pension of the petitioners was taken after taking into consideration all the relevant aspects by the specially constituted Committee. He submitted that the objection raised at the end of the Audit Department is quite in conflict with the objection raised by the State Government. The only objection raised by the State Government is that the decision to revise the pension could not have been taken without the previous approval of the Government. Mr. Joshi submitted that the objection raised at the end of the State Government is baseless, because the policy decision itself made it clear that the revision of pension would not require any administrative approval, if the prerevised pension had already been approved. He submitted that the State Government, at any cost, wants to shirk from their liability.
6 He submitted that the Agricultural University adopted the pay Page 8 of 37 HC-NIC Page 8 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT scales and other patterns of fixing the pay and pay bands from the University Grants Commission. The equivalent and other issues were taken care of by the Universities. He pointed out that the University Grants Commission and the Ministry of Human Resources and Development, Union of India had taken a conscious decision to revise the pension of the teaching staff of the Central Universities by giving them the benefit of revision of pension computable in the pay band of Rs.37,400 - Rs.67,000/. Mr. Joshi submitted that there was no reason for the State Government to discriminate between other pensioners and the pensioners who retired from the service of the Agricultural Universities.
7 Mr. Joshi further submitted that the State Government had decided to confer the benefit of recommendations of the Sixth Pay Commission to the teaching cadres of the respondent University and the State Government also passed a resolution in that regard dated 01.04.2010. The said policy decision of the State Government regarding application of the Sixth Pay Commission to all the Teachers of the respondent University was on the basis of the recommendations of the University Grants Commission and also confirmation from the Government of India and Indian Council of Agriculture Research. 8 He submitted that the State Government took a policy decision Page 9 of 37 HC-NIC Page 9 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT regarding application of the Sixth Pay Commission pay scales to all the Teachers of the respondent - University, and accordingly, the revised pension of Rs.23,300/ as the minimum pension and Rs.13,920/ as the family pension was fixed from 01.01.2006 on the basis of the revised pay band of Rs.37,000 - Rs.67,000/ with the Grade Pay of Rs.9,000/. 9 He submitted that all his clients started receiving pension to the tune of Rs.23,200/ and family pension to the tune of Rs.13,920/ per month with effect from 01.01.2006.
10 He submitted that the reduction of the pension as well as the decision to recover the difference deserves to be quashed and set aside. 11 Mr. Joshi pointed out that during the pendency of this petition, the State Government issued a resolution dated 26.02.2014, wherein the senior scale, selection scale or higher pay scale has not been considered although it was considered and granted in application of the policy decision of the Sixth Pay Commission pay scales. He submitted that the said resolution dated 26.02.2014 also deserves to be quashed. 12 On the other hand, this writ petition has been vehemently opposed by Ms. Shruti Pathak, the learned Assistant Government Pleader appearing for the respondent - State of Gujarat. Ms. Pathak submitted that the Anand Agricultural University is a State Agricultural University. Page 10 of 37 HC-NIC Page 10 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT She submitted that according to the provisions of Section 20(3) of the Gujarat Agricultural University Act, 2004, the exercise of powers by the Board insofar as they relate to the laying down and regulating the salary, etc, would be subject to the approval of the State Government. She submitted that in the present case, no such approval was sought for from the State Government by the University before revising the pension. 13 She pointed out that the Government resolution dated 13.04.2009 regarding the Sixth Central Pay Commission / revision of pension of the pre2006 pensioners / family pensioners would not be applicable to the Universities of the State. She submitted that since the employees of the Universities are not Government employees, they are not entitled to the benefits of the Sixth Pay Commission. She submitted that the benefits of the Sixth Pay Commission were given according to the recommendations of the U.G.C. / D.A.R.E. / I.C.A.R. vide resolution dated 01.04.2010 of the Agricultural Department, but the pension benefits prior to 01.01.2006 were not given by the State.
14 Ms. Pathak submitted that the other Universities at Junagadh, Navsari and Dantiwada have followed the instructions issued by the Government dated 05.09.2012 and the Junagadh Agricultural University has also completed the exercise of recovery.
15 Ms. Pathak has placed reliance on the following averments made Page 11 of 37 HC-NIC Page 11 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT in the affidavitinreply filed on behalf of the respondent - State:
"12. It is submitted that the as per the resolution of Finance Department dated 13.04.2009, the orders have been made regarding pay fixation for the pensioners retired before 01.01.2006. Resolution of Finance Department dated 13.04.2009 was pertaining to scale of Government employee and hence, pay scale as per UGC/DARE is not included in the schedule, because the said pay scales comes into force by resolution dated 01.04.2010 issued by agriculture cooperation department and therefore the resolution dated 13.04.2009 does not include the pay scales mentioned in the resolution dated 01.04.2010. It is humbly submitted that therefore, the inclusion of the remaining scale is under consideration with Finance Department and Finance department has again requested to inquire as the decision is pending and as the said issue involves many departments.
13. It is submitted that the according to Gujarat Agricultural University Act2004, Section - 20(3), university has not power to approve the salary scale and allowances without prior permission of government. The action taken to approve the scale to pensioner is not in the purview of the University.
14. It is submitted that the decision taken into the board of management of AAU is not as per rule. It is submitted that even the board has not taken the permission of the State Government as mentioned in the resolution. It is clear as per act that government's permission shall be required before any monetary benefits given to the University employees.
15. It is submitted that the decision and action taken by the board of Management is not as per rules and board of management has not taken approval of the State Government.
16. It is submitted that the matter of revision of sixth pay scale for teaching cadre of pensioner, who retired before 01.01.2006 is under consideration of Finance Department. The UGC/DARE/ICAR pay scale given to teaching cadre of university employees is as per resolution dated 01.04.2010. The above pay scale were not included in the Finance Department's resolution dated 13.04.2009 and it is under consideration of Finance Department. According to Finance department the matter is not related to only agriculture department but it is also related to education department, health department etc., so it is required to take common decision by higher authority and that may take about at least three months.
17. It is submitted that the matter was submitted to the Finance Department for consideration and finance department has informed the agriculture and cooperation department to put up the proposal again.Page 12 of 37
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18. Thus, looking to the facts and circumstances of the present case the petition filed by the petitioners is required to be dismissed as the Anand Agricultural University without any powers granted monetary benefits to his employees without prior sanctioned of the Government and therefore the action of the respondent No.1 authority is legal, proper and valid. It is submitted that the State Government had not committed any error but it is a respondent No.2 university who has acted arbitrary and without power and state government had to issue the instruction to cancel the orders."
16 Ms. Pathak pointed out that during the pendency of this petition, the Government issued a resolution dated 26.02.2014 and in that regard, an additional affidavitinreply was filed on behalf of the State Government wherein the following averments have been made:
"1. I say and submit that, I am filing this present additional affidavit to bring on record the necessary facts before this Hon'ble Court and in compliance of orders dated 20.01.2014 and 29.01.2014. It is submitted that as per the directions and in compliance with the said orders the Finance Department has taken decision and passed a resolution dated 26.02.2014. The copy of the resolution dated 26.02.2014. The copy of the resolution is annexed herewith and marked as AnnexureRI.
2. It is submitted that by way of this present resolution, the Finance Department has amended the resolution dated 13.04.2009. I humbly say and submit that as per the resolution dated 26.02.2014, the pension is to be fixed on the last post held. It is further submitted that as per para;(3) of resolution dated 01.11.2000 and as per clause no.9.2 of Resolution dated 13.04.2009, while fixing the pension higher payscale / selection grade / senior grade cannot be considered. The copy of the resolution dated 01.11.2000 and 13.04.2009 are annexed herewith and marked as AnnexureRII. I humbly submit that now considering the said resolution issued by the Finance Department, the Anand Agricultural University has to take necessary action of preparing pension papers and comply with the necessary procedure.
3. It is submitted that in the above circumstances the present petition would not survive as the University has to undertake the procedure for pension and scrutiny the individual case and submit pension papers before the competent authority. Therefore, the present petition is required to be dismissed and the present application is also required to be rejected with cost."Page 13 of 37
HC-NIC Page 13 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT 17 She submitted that there being no merit in this writ petition, the same be rejected.
18 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the State Government committed any error in reducing the pension and further effecting recovery of the amount said to have been paid in excess.
19 I should first look into the report of the Committee which took the decision that the petitioners herein were entitled for the benefit of the revision of the pension in the grade of Rs.37,400/ plus Rs.9,000/ (pay band of the minimum 50% of the basic pay). The report dated 20.08.2010 reads as under:
"The Committee comprising of (1) Dr. P.R. Vaishnav, Registrar, AAU, Anand (2) Shri P.S. Vyas, ComptrollerCumAccount Officer, AAU, Anand (3) Dr. S.K. Dixit, Prof. & Head, Dept. of Ag.Stat. BACA, Anand (4) Dr. B.K. Patel, Retd. Research Scientist, GAU, Anand.
was constituted by the Hon'ble Vice Chancellor during the meeting with representatives of retired teachers association, AAU, on 23.07.2010 to look into the revision of Pension of Pensioners who had retired before 01.01.2006 in the cadre of Ass. Professor/ Ass. Res. Scientist / Asso. Exten. Educationist / Reader / Asstt. Professor (Selection Grade) and its equivalent whose prerevised pension was fixed on the basis of the Pay Scale of Rs. 12,00018,300. The committee met on 20.08.2008 at 11.00 hrs. in the Office of Comptroller to discuss and thrust out the issue raised by retired teachers association.
Page 14 of 37 HC-NIC Page 14 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT As per the Gujarat Government Resolution for Sixth Pay Commission revision of Pension Pre2006 No.PGR10094 Pay cell (M), dated 13.04.2009 and subsequent GR No.14200911284K2, dated 01.04.2010 for the existing incumbent, the corresponding pay in 6th Pay Commission of the above referred above cadre was that for such cadre pre revised pay scale the corresponding pay scale should be considered as Pay Band Rs.37,00067,00 + Rs.9,000 Grade Pay. As the matter was ambiguous the clarification of the HRD, dated 01.07.2010 (No.15 1/2009IFD/UII, GOI, HRD, Dept. of Higher Education) states that the teachers in the above category with three years experience in the scale/cadre of Asso. Professor/ Asstt. Professor (SG) prior to date of retirement will get the benefit of the revised pension accordingly. The teachers who had retired prior to date 01.01.1996, whose Pay Scale was either Rs. 7001250, Rs. 12001900 or Rs.37005700 are also eligible as clarified by GR F.No.1512009/UJI, Government of Indian, Ministry of HRD, Dept. of Higher Education, dated 15.12.2009.
Based on the above clarification, the committee feels that the above cadre pensioners should be also considered for revision of the pension in the grade of Rs.37,400 + 9,000 (Pay Band) on minimum 50% of the basic pay. Thereby making minimum pension for regulation pensioners as Rs.23,200/ and family pensioners as Rs.13,920/.
It was further resolved that the relevant and authentic data of such cases may be verified by the committee."
20 The Government of Gujarat in its Finance Ministry issued a resolution dated 13.04.2009 as regards the Sixth Central Pay Commission Revision of Pension of Pre2006 Pensioners / family pensioners. Clause 6 of the said resolution reads as under:
"6. The cases of State Government employees who have been permanently absorbed in Public Sector Undertakings / autonomous bodies will be regulated as follows:
(a) Pension:
(i) Where the government servants on permanent absorption in Public Sector Undertakings/Autonomous bodies continue to draw pension separately from the government, the pension of such absorbees will be updated in terms of these orders.Page 15 of 37
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(ii) In cases where the government servants have drawn one time lump sum terminal benefits equal to 100 % of their pensions and have become entitled to the restoration of one third commuted portion of pension as per Supreme Court Judgment dated 15/12/1995, their cases will not be covered by these orders.
(b) Family Pension:
In case where, on permanent absorption in Public Undertakings/ autonomous bodies, the terms of absorption permit grant of Family Pension under the Gujarat Civil Services (Pension) Rules, 2002, the family pension being drawn by family pensioners will be updated in accordance with these orders."
20.1 Clause 9.2 reads as under:
"The revision of pension will be subject to the revised pension, in no case shall be lower than 50 % of the minimum of the pay in the pay band plus the grade pay corresponding to the prerevised pay scale from which the pensioner had retired.
The pension calculated at 50% of the minimum of pay in the pay band plus grade pay would be calculated (i) at the minimum of the pay in the pay band (irrespective of the prerevised scale of pay) plus grade pay corresponding to the prerevised pay scale. For example, if a pensioner had retired in the prerevised scale of pay of Rs. 1840022400, the corresponding pay band being Rs.3740067000 and the corresponding grade pay being Rs. 10,000/ p.m., his minimum guaranteed pension would be 50% of 37400 + Rs.10,000/ (i.e. 23,700). The revision of family pension will be sum of the minimum of the pay in the pay band plus the grade pay thereon corresponding to the prerevised pay scale in which the pensioner/deceased government servant had last worked. The procedure to be adopted by the disbursing authorities shall be on the line Finance Department Government Resolution No. PPF/1099/GOG1(2)P, dated 1112000. A statement indicating the minimum pension/family pension corresponding to each of the pre2006 scales of pay is enclosed at AnnexureIII."
21 Based on the above referred resolution dated 13.04.2010, the Government of Gujarat in its Agriculture and Cooperation Department issued a resolution dated 01.04.2010 as regards the revision of pay Page 16 of 37 HC-NIC Page 16 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT scales of the education cadres of the State Agriculture University based on the recommendations of the Sixth Pay Commission. According to the said resolution dated 01.04.2010, the revision was as under:
Sr. Designation Present Scale Revised Pay Scale No. (Rs.) New Pay Band Academic Grade Pay (AGP) Rs.
6 Associate Professor 12000 - 18300 (1) 15600 - 8000
and its equivalent 39100
posts
Incumbents, Associate Professor
& its equivalent, who had not
completed three years in the pay
scale of Rs.1200018300/ (Pre
revised) on 1.1.2006.
(2) Rs.37400 - 9000
67000
Incumbents, Associate Professor
& its equivalent, who had
completed three years in the pay
scale of Rs.1200018300/ (Pre
revised) on 1.1.2006.
7 Assistant Professor 1200018300 (1) 15600 8000
(Selection Grade) and 39100
its equivalent
Incumbents, Assistant Professor
(selection Grade) and its
equivalent, who had not
completed three years in the pay
scale of Rs.1200018300/ (Pre
revised) on 1.1.2006.
(2) Rs.37400 9000
67000
Incumbents, Assistant Professor
(selection Grade) and its
equivalent, who had completed
three years in the pay scale of
Rs.1200018300/ (Prerevised)
on 1.1.2006 shall be placed at the
appropriate stage and accordingly
redesignated as Associate
Professor and its equivalent.
(3) Till the Assistant Professor
(Selection Grade) and its
equivalent, not reached at the
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pay scale Rs.8740067000, they
shall be designated Assistant
Professor (selection Grade) and
equivalent.
22 The Government of India in its Ministry of the Human Resources
Development, Department of Higher Education, New Delhi vide its communication dated 15.12.2009 addressed to the Secretary, University Grants Commission, New Delhi clarified as under:
"I am directed to refer to the Government' decision regarding pension/family pension of all the pre2006 pensioner/family pensioners issued vide Department of Pension and Pensioners' Welfare O.M. No.38/37/08P&PW(A) dated 1.9.2008. In this connection a question has arisen about the Pay Band applicable to pre2007 pensioners in Central Universities/Colleges, who had retied from the posts in the prerevised scale of pay Rs.1200042018300 (or the corresponding pay scales applicable prior to 1.1.1996) mentioned below to determine their pension/family pension in terms of para 42 of Ministry of Personnel, Public Grievances and Pensions (Department of Pension and Pensioner's Welfare) O.M. No.38/37/08P&PW(A) dated 1.9.2008.
Category (A) Readers/Lectures (selection Grade) Category (B)
(i) Deputy Librarian/ Assistant (Selection Grade)/College Librarian (Selection Grade)
(ii) Deputy Director of Physical Education/Assistant Director of Physical Education (selection Grade), College Director of Physical Education (selection Grade).
Category (C)
(i) Deputy Registrar
(ii) Deputy Finance Officer,
(iii) Deputy Controller of Examinations
2. According to the revised pay scales applicable to Teachers/Equivalent Cadres in Central Universities/Colleges as notified vide Ministry's letter No.I32/2006U.IIAJ.I(i) dated 31.12.2008, incumbents of the posts mentioned at categories (A) and (B) above who Page 18 of 37 HC-NIC Page 18 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT had completed 3 years of service in the pay scale of Rs.1200042018399 on 1.1.2006 have been placed in Pay Band of Rs.3740067000 with Academic Grade Pay (AGP) of Rs.9000.
Similarly, in terms of this Ministry's letter No.132/2006U.II/U.I(ii) dated 31.12.2008, incumbents of the posts of Deputy Registrar/Deputy Finance Officers/Deputy Controllers of Examinations who had completed 5 years in prerevised pay scale of Rs.1200018300 on 1.1.2006 were placed in the Pay Ban of Rs.3740067000 with Grade Pay (GP) of Rs.8700.
3. Accordingly, the Government has decided that in the case of teachers and equivalent cadres, the pre2006 pensioners mentioned at categories (A) and (B) above had completed 3 years or service in the pre revised pay scale of Rs.1200042018300 (and/or the corresponding pay scale(s) applicable prior to 1.1.1996) shall be placed at the minimum of the Pay band of Rs.3740067000 with AGP of Rs.9000 for revision of their pension/family pension with effect from 1.1.2006. Similarly, in the case of nonteaching posts/cadres, the pre1.1.2006 pensioners mentioned at category (C) above who had completed 5 years of service in the prerevised pay scale of Rs.1200042018300 (and the corresponding pay scale(s) applicable prior to 1.1.1996) shall be placed at the minimum of the Pay Band of Rs.3740067000 with GP of Rs.8700 for revision of their pension/family pension with effect from 1.1.2006. the pension/family pension of these pre2006 pensioners may be revised accordingly." 23 One of the orders of the revised pension issued by the Navsari Agricultural University is on record. I deem it necessary to look into the same as it would give a fair idea as to how the amount of the revised pension was calculated.
1 The date of retirement 30.11.2002 2 Pension as on 01.01.2006 Rs.6525/ 3 Pay scale according to the Fifth Pay Rs.12,000420 -
Commission at the time of retirement Rs.18,000/ 4 Pay scale according to the Sixth Pay Rs.37,400 -
Commission recommendations Rs.67,000 (Grade
Pay Rs.9,000/)
5 The minimum salary according to the Rs.37,400/
Sixth Pay Commission
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6 Grade Pay according to the Sixth Pay Rs.9,000/
Commission
23.1 Keeping the above in mind, the calculation was as under:
Details of Calculation of pension/family pension Sr. Particulars Pensioner Family Pension Family Pension No. First Rate Second Rate 1 Pension receiving as 6525 6525 3978 on 1.1.2006 2 50% D.P. 3263 3263 1989 3 Gross Pension (1+2) 9788 9788 5967 4 24% of Gross Pension 2350 2350 1433 5 40% of Basic Pension 2610 2610 1592 6 Revised New Pension 14748 14748 8992 (3+4+5) 7 Minus Commuted 2611 Value of Pension 8 Reduced amount of 12137 14748 8992 Pension 9 50% of the minimum 23200 13920 of pay of the Pensioner retired before 1.1.2010 according to Sixth Pay Commission recommendation
24 I shall now look into the Government resolution dated 26.02.2014 regarding the Sixth Central Pay Commission / Revision of Pension Pre 2006 pensioners / family pensioners, etc. The same reads as under:
"In pursuance of the Government of India decision on the recommendation of the Sixth Central Pay Commission and orders issued vide Ministry of Personnel, Public Grievances and Pension, Office Memorandum No.F.No.38/37/08P&PW(A) dated 102008 and clarification issued vide Office Memorandum No. F. No.38/37/08 P&PW(A) PartI dated 3102008 and Office Memorandum of even No. Page 20 of 37 HC-NIC Page 20 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT dated 14102008 the State Government had issued orders vide Finance Department Government Resolution No. PGR10094Pay Cell dated 13 42009 regarding revision of Pension/family pension of pre2006 pensioners.
Under the para 9.2 of the said resolution dated 1342009, it was decided that the revision of pension will be subject to the provision that the revised pension and family pension, in no case, shall be lower than 50% and 30% respectively of the minimum of the pay in pay band plus grade corresponding to the prerevised pay scale. A statement indicating the minimum pension / family pension corresponding to each of the pre revised scale was attached as AnnexureIII with the Government resolution dated 1342009. It was also decided that the procedure to be adopted by the disbursing authority shall be in the line of Finance Department Government resolution N.PPF/1099/GOG1(2)P, dated 1112000.
After the issuance of the said GR dated 1342009, Ministry of Human Resource Development Department of Higher Education authenticated Fitment Tables vide their letter No.F.3/2009U.1 dated : 4 th June, 2009. In pursuance to the said orders dated 4th June 2009, the pay scales of the teachers of the various Universities, Colleges and Agricultural Universities as well as Technical Colleges had been revised in the line of UGC/ICAR/AICTE recommendations. As these pay scales weer not included in the AnnexureIII of the GR dated 1342009, the State Government has received representations from various departments for inclusion of these scales in the AnnexureIII of the Government Resolution dated 1342009 as the pre2006 pensioners are facing hardship due to noninclusion of these scale in AnnexureIII of the said resolution.
Resolution:
After careful consideration, the state Government is pleased to include UGC/ICAR/AICTE pay scales as mentioned in the AnnexureIV enclosed herewith, with the conditions mentioned in Para 9.2. of the Finance Department, Government Resolution dated 1342009, with effect from 01012006.
As mentioned in the para 9.2 of the Government Resolution dated 1342009, the provisions of para 3 of the Government Resolution dated 1112009 i.e. pay scale of the post last held and corresponding pay scale shall only to be taken consideration, Senior Scale, Selection Scale or Higher Pay Scale shall not be considered. The other conditions of the said Government Resolution dated 1342009, shall remain unchanged.
These order shall be implemented from 01012006.
By order and in the name of the Governor of Gujarat.Page 21 of 37
HC-NIC Page 21 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT Sd/ (Dr. R.G. Joshi) Joint Secretary to the Government Finance Department"
"AnnexureIV REVISED PENSION BASED ON REVISED PAY BANDS AND GRADE PAY FOR POSTS CARRYING PRESENT PAY SCALES AS PER SIXTH PAY COMMISSION.
(UGC/ICAR/AICTE Pay Scales - with reference to Para9.2 of the Finance Department Government Resolution dated 1342009) (Enclosure to the Finance Department, Government resolution no.PSN10 201461446P dated 26 February, 2014) th Sr. 6th CPC Name of Corresponding Correspon Pension = Family No. Pay Scale Pay Band/ 6th CPC Pay ding 50% of Pension = Scale Bands / Scales Academic sum of 30% of Grade Pay Min. of sum of PB+AGP/ Min. of Scale PB+AGP/ Scale 1 2 3 4 5 6 7 1 8000 PB3 1560039100 6000 10800 6480 13500 2 10000 PB3 1560039100 7000 11300 6780 15200 3 12000 PB3 1560039100 8000 11800 7080 18300 4 16400 PB4 3740067000 10000 23700 14200 22400 Sd/ (Dr. R.G. Joshi) Joint Secretary to the Government Finance Department."
25 Thus, the Government resolution dated 26.02.2014 aforenoted makes it clear that the Government took a decision to include the UGC / Page 22 of 37 HC-NIC Page 22 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT ICAR / AICTE pay scales as mentioned in the Annexure : "IV", but decided that the pay scale of the post last held and corresponding pay scale shall only be taken into consideration, whereas the Senior Scale, Selection Scale or Higher Pay Scale would not be considered.
26. Mr. Rohan Yagnik, the learned Assistant Government Pleader submitted that the validity of the Government resolution dated 26.02.2014, referred to above, including the resolution dated 13.04.2009 which prescribes the mode of calculation of the revised pension has been considered at length by a learned Single Judge of this Court in the case of Shri Prabhudas C. Barot and others vs. State of Gujarat and others (Special Civil Application No.13590 of 2013 and allied matters dated 26/27.08.2014). The learned Single Judge considered the issue whether the Government servants, who retired before 01.01.2006 with the higher grade pay scale, could be paid a revised pension in terms of the Sixth Pay Commission, on the basis of the post they held, though the recommendations made by the Sixth Pay Commission as accepted by the State recommended the revised pay scales on scale to scale to basis.
27. The learned Single Judge allowed the writ petition partly by making the following observations :
"13.14 Thus, in the instant case, after investing a substantive right in the pensioners to receive the revised pension at the minimum of defined Page 23 of 37 HC-NIC Page 23 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT percentum of the pay in the pay band plus the grade pay corresponding to the prerevised payscales from which the pensioners had retired, the procedure to realize such right, as contemplated in the resolution dated 01.11.2000, is required to be resorted to and thus the last sentence in Paragraph9.2 of the resolution does not invest any substantive authority in the Disbursing Officer to ignore the substantive right contained in the resolution dated 13.04.2009 altogether.
13.15 However, another resolution dated 26.02.2014 purportedly introducing the payscales of the teachers of the various universities, colleges and agricultural universities as well as technical colleges in AnnexureIII of the resolution dated 13.04.2009 added a rider as under:
As mentioned in the Para 9.2 of the Government Resolution dated 134 2009, the provisions of Para 3 of the Government Resolution dated 111 2000 i.e. pay scale of the post last held and corresponding pay scale shall only to be taken into consideration, the Senior Scale, Selection Scale or Higher Pay Scale shall not be considered. The other conditions of the said Government Resolution dated 1342009, shall remain unchanged.
13.16 As indicated above, the resolution dated 13.04.2009 suggests the formula of revising the pension, as discussed in greater detail.
Under the guise of addition of certain categories of the payscales in AnnexureIII to the resolution of 2009, a clause directly in conflict with the scheme contained in the resolution dated 13.04.2009 is introduced in resolution dated 26.02.2014. As indicated above, while the resolution dated 13.04.2009 emphasizes on prerevised payscales for fixing the aforestated cap, this resolution emphasizes on the last post held. Such a clause violates the right to revised pension in terms of the resolution dated 13.04.2009. It is also arbitrary as it ignores the policy contained in the resolution dated 13.04.2009. The resolution dated 26.02.2014 whittles down the intent of resolution dated 13.04.2009 position by providing that the senior scale, selection grade or higher payscales shall not be considered. Thus, the objectionable text in the resolution dated 26.02.2014 cannot coexist with text emphasizing on the prescribed cap of defined percentum of minimum of pay in the pay band plus the grade pay corresponding to the prerevised payscales from which the pensioners have retired. In the opinion of this Court, therefore, objectionable part in the resolution dated 26.02.2014 intending to deprive the benefits as are made available to the pensioners by in the resolution dated 13.04.2009 is required to be quashed and set aside.
13.17 This leads to the question as to the scale of pay on the basis of which the pension, in the present petition, is to be revised. It is not in dispute that the petitioners had retired around 1995 in the selection grade which was revised to Rs.12,00042018,300 by the 5th Pay Commission. The 6th Pay Commission recommended two payscales against the post of Page 24 of 37 HC-NIC Page 24 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT Lecturer (selection grade) (including Reader) being Rs.15,60039100 with grade of Rs.8,000/ and Rs.37,40067,000 with the grade pay of Rs.9,000/ and henceforth the holder of such payscales were to be designated as Assistant Professor and Associate Professor respectively. While the payscales of Rs.15,60039100 with the grade pay of Rs.8,000/ is made available to the presently working incumbents as Readers and Lecturers who were in the prerevised selection grade but did not complete three years in the said scales as on 01.01.2006, other payscales are made available to the presently working Readers and Lecturers, who where in the prerevised selection grade but did not complete three years of service in the prerevised scales. The aforesaid aspects are clear from ScheduleA to the resolution dated 04.12.2009. The resolution dated 26.02.2014 inserted the payscales of various cadres by way of AnnexureIV which are meant for consideration in pursuant to the resolution dated 13.04.2009. For beneficially appreciation, table containing the payscales, which were inserted as above, is quoted hereunder:
Sr. 5th CPC Name of Correspondin Correspondin Pension= Family No. Pay Pay/Ba g 6th COC Pay g Academic 50% of Pension=3 Scale nd/Scal Bands/Scales Grade Pay sum of 0% of sum e min. of of Min. of PB+AGO/ PB+AGP/ Scale Scale 1 2 3 4 5 6 7 1 8000 PB3 1560039100 6000 10800 6480 13500 2 10000 PB3 1560039100 7000 11300 6780 15200 3 12000 PB3 1560039100 8000 11800 7080 18300 4 16400 PB4 3740067000 10000 23700 14200 22400 13.18 A bare perusal of the above cited table indicates that the pay band3 of Rs.15,60039100 with grade pay of Rs.8,000/ is made available to the Lecturers holding prerevised selection grade of Rs.12,000 18,300 as also Readers and the pension/family pension, they would be entitled as per the formula contemplated in report of the 5th Pay Page 25 of 37 HC-NIC Page 25 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT Commission is Rs.11,800/, Rs.7,080/ as the case may be. It may be recalled that the 6th Pay Commission recommended and the State accepted the two payscales against prerevised payscales of Rs.12,00042018,300.
Both these payscales are meant for the Lecturers in the selection grade employed as on 31.12.2005. In the affidavitinreply, it is made clear by the respondents that the payscales of Rs.15,60039100 with grade pay of Rs.6,000/ was taken into consideration for revising the pension of the petitioners. This Court may revert back to the question as to whether a minimum of Rs.6,000/ as grade pay could have been taken into consideration in light of the discussion in detail in this judgment at a later point of time.
13.19 What is required to be seen at this stage is as to whether the appropriate payscale, as recommended by the 6th Pay Commission, was taken into consideration for fixation of the revised pension of the petitioners. It cannot be disputed that the petitioners having retired somewhere in the year 1995 were not in service as on 01.01.2006 i.e. the date from which the aforementioned payscales are applicable to the employee working as on the said date. Pertinently, the selection grade held by the petitioners earlier is now split into two selection grades; one will apply to existing employees who have not completed three years of service in the prerevised scales of Rs.12,00042018,300 as on 01.01.2006; and the other will apply to those who have completed the said service. The fact remains that each of the payscales are applicable to the employees who were in the selection grade as on 31.12.2005. Since the petitioners were not in service on 01.01.2006, their completion or noncompletion of three years of service in the revised payscales does not arise. The petitioners appear to be insisting for payscales of Rs.37,40067,000 with grade of Rs.9,000/ on the misconceived premise or presumption that they are still in service. Undisputedly, the petitioners were given all the benefits in pursuant to the Pension Rules of 2002 on their superannuation including the pension calculated on their selection grade they held then. Merely because such selection grade is split into two scales as indicated above to the advantage of the existing Readers and Lecturers in such selection grade, it is unreasonable for the petitioners to stake the claim on the basis aforesaid. No question of treating unequals as equals arises under such circumstances inasmuch as those in service as on date of implementation of the recommendation of the 5th Pay Commission form a different class than the pensioners. The conditions of service of inservice employees can always be revised differently than the pensioners. Therefore, merely because the service conditions for existing incumbent is altered to their benefits, the pensioners cannot harp upon the same. 13.20 There is no dispute as to applicability of Clause 3.1 of the resolution dated 13.04.2009. Thus, the revised pension, as contemplated in the said clause, has properly been consolidated and the question is only that of applicability of the minimum cap, as provided in Clause 9.2 of the Page 26 of 37 HC-NIC Page 26 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT resolution dated 13.04.2009. As discussed in greater detail, a fixed percentum of the minimum of pay in the pay band plus the grade pay corresponding to the prerevised payscales from which the pensioners retired, irrespective of the prerevised payscales of the pay, is the criteria which governs the field for revision of the pension by the resolution dated 13.04.2009. In the instant case, though the payscales of Rs.15,600 39,100 corresponding to the prerevised payscales of Rs.12,37516500 has been taken into consideration, the grade pay of Rs.6,000/ is not correctly applied. The grade pay applicable, in such cases, as indicated in ScheduleA of the resolution dated 04.12.2009, is Rs.8,000/ and not Rs.6,000/. Therefore, to that extent, the petitioners are entitled to succeed and suitable directions are required to be given to the respondents to revise the pension of the petitioners, accordingly.
14. Under the circumstances, the petitions partly succeed. The words as mentioned in the Para 9.2 of the Government Resolution dated 134 2009, the provisions of Para 3 of the Government Resolution dated 111 2000 i.e. pay scale of the post last held and corresponding pay scale shall only to be taken into consideration, the Senior Scale, Selection Scale or Higher Pay Scale shall not be considered, as contained in the resolution dated 26.02.2014 are struck off and it is held that for revision of pension of the pensioners, only procedure contemplated in Clause 1 and 2 of the resolution dated 01.11.2000 will apply and Clause 3 will not apply.
15. The respondents are directed to reconsider the case of the petitioners by taking into consideration the Clause 9.2 of the resolution dated 13.04.2009 along with the procedure contemplated in the resolution dated 01.11.2000 except Clause 3 thereof. Rule is made absolute to the aforesaid extent.
16. Considering the advanced stage of the petitioners, the respondents are directed to carry out the exercise in terms of the judgment within a period of four months from the date of receipt of writ of this Court. Direct Service is permitted."
28. The learned Single Judge took the view that the petitioners having retired somewhere in the year 1995 were not in service as on 01.01.2006 i.e. the date from which the requisite pay scales were made applicable to the employees working as on the said date. According to the learned Single Judge, the selection grade held by the petitioners Page 27 of 37 HC-NIC Page 27 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT earlier was placed into two selection grades; one would apply to the existing employees who had not completed three years of service in the revised pay scales of Rs.12,000 420 - Rs.18,300/ as on 01.01.2006; and the other would apply to those who had completed the said service. The Court took the view that each of the pay scales were applicable to the employees who were in the selection grade as on 31.12.2005. Since the petitioners of that case were not in service on 01.01.2006, their completion or noncompletion of three years of service in the revised pay scale would not arise. The learned Single Judge with such line of reasoning took the view that the insistence of the petitioners for the pay scale of Rs.37,400 Rs.67,000/ with grade of Rs.9,000/ was on the misconceived terms or presumption that they were still in service.
29. Mr. Joshi, the learned counsel appearing for the petitioners pointed out that the decision referred to above and relied upon by the State Government is now a subject matter of challenge in the Letters Patent Appeal No.1175 of 2014 and other allied Appeals. He pointed out that a Division Bench of this Court vide order dated 30.03.2015 passed the following order:
"ORDER IN APPEALS All appeals are admitted. Office to place all these appeals for final hearing on 8th June, 2015.
ORDER IN CIVIL APPLICATIONS Page 28 of 37 HC-NIC Page 28 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT The impugned judgment and order passed by the learned Single Judge is hereby stayed. The respondents will not change the service conditions of the applicants. Status quo as on today will be maintained by both the sides.
All the Civil Applications stand disposed of accordingly."
30. Mr. Joshi, thereafter, invited my attention to a very recent pronouncement of the Supreme Court in the case of the State of Rajasthan and others vs. Mahendra Nath Sharma in the Civil Appeal No.1123 of 2015 arising out the Special Leave to Petition (Civil) No.321 of 2015 decided on 01.07.2015. Relying on this decision of the Supreme Court, Mr. Joshi submitted that the issue in hand is now no longer res integra, and the present petition deserves to be allowed on the strength of the Supreme Court's judgment.
31. In the case before the Supreme Court, the respondents were working on different posts of the Lecturers, Librarians and P.T.Is., who retired prior to 01.01.2006. All of those were appointed in different years between 1950 and 1976, and all of those retired between 1991 and 2004. All of those had been granted the Lecturers (Selection Grade) on or before 01.01.1986. They had completed three years of service in the said pay scale prior to 01.01.2006. After the pay revision took place, on the basis of the recommendations of the Fourth Pay Commission, the respondents / similarly situated employees got the benefit of revision of the pay scales w.e.f. 01.01.1986 vide Notification dated 03.06.1988. Page 29 of 37 HC-NIC Page 29 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT According to the Rajasthan Civil Services (Revised Pay Scales for Government College Teachers) Rules, 1988, the schedule indicated the pay scales the then existing of the revised U.G.C. pay scales. A chart in that regard indicates as follows:
S.No. Name of posts Existing Pay Scale Revised U.G.C. Pay Scale 1 2 3 4 1 Principal of Post Graduate Rs.15002500 Rs.4300505700 College 2007300 2 Principal of Degree College Rs.12001900 37001254950 / Vice Principal of Post 1505700 Graduate College/Degree College 3 Lecturer (Ordinary Scale) 7001600 2200752800100 4000 4 Lecturer (Senior Scale) - 30001003500 1255000 5 Lecturer (Selection Scale) - 37001254950 1505700
32. The Supreme Court took notice of the fact that in the year 1986, the post of Lecturer (Selection Grade) was introduced for the purpose of revision of pay scale and the respondents since then had been drawing the pay scale of the post of Lecturer (Selection Grade).
33. The Government of Rajasthan, vide Rules, 1999, revised the pay scales of the Government College Teachers / Librarians w.e.f. 01.01.1996. The schedule appended to the said rules mentioned for the post of Lecturer (Ordinary Scale), Lecturer (Senior Scale) and Lecturer (Selection Scale) showing the existing revised pay scale as against the Page 30 of 37 HC-NIC Page 30 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT said posts, as a result of which, the respondents who had retired prior to the year 1996 or in the year 1999 were granted the revised pension on the basis of the revised pay scale w.e.f. 01.01.1996 meant for the grade of Lecturer (selection scale).
34. In the year 2008, the Government of Rajasthan issued a Circular / Memorandum dated 12.09.2008, which envisaged for the pension / family pension of all the pre01.09.2006 State pensioners / family pensioners to be revised w.e.f. 01.09.2006 according to provisions made therein. A learned Single Judge of the Rajasthan High Court considered the regulations of 2010, and other Notifications including the letter dated 15.12.2009 issued by the Government of India, Ministry of Human Resources Development, wherein it was clarified that pay band of Rs.37,000 400 Rs.67,000/ was to be given to all those who had already completed three years of service in the Selection Grade prior to 01.01.2006 and, more specifically, the pensioners, and on that analysis allowed the writ petitions.
35. The State of Rajasthan being dissatisfied with the decision of the learned Single Judge preferred the IntraCourt appeals before the Division Bench. The Division Bench noticed that the learned Single Judge had awarded the benefit according to the then existing guidelines of the U.G.C. to the respondents who had retired prior to 01.01.2006. Page 31 of 37 HC-NIC Page 31 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT The Division Bench also took note of certain other factors, namely, that there were three pay scales applicable to the respondents, and that the Sixth Pay Commission had recommended to revise those pay scales to Rs.15,600 Rs.39,100/ with the Academic Grade Pay of Rs.6,000/ to the first existing pay scale, Rs.7,000/ as AGP as Senior Scale, to the second existing pay scale, and Rs.8,000/ as AGP as Selection Scale to the third pay scale; and that it had also recommended for bifurcation of pay scales of the Lecturers (Selection Scale) into two, namely, Rs.15,600 Rs.39,100/ with AGP of Rs.8,000/ for those Lecturers (Selection Scale), who had completed three years of service in the pay the then existing as on 01.01.2006 and the pay scale of Rs.37,400 Rs.67,000/ with the AGP of Rs.9,000/ for those, who had completed three years of service in the pay scale the then existing as on 01.01.2006 and onwards.
36. The Division Bench opined that the respondents were entitled according to the paragraph 5 of the Memorandum dated 12.09.2008 for fixation of their pension at the minimum of 50% in the running pay band plus grade pay of the post introduced vide Notification dated 12.10.2009. The Division Bench, ultimately, clarified by way of an example that if a teacher was awarded selection scale in the year 2002 or prior to it under the old Regulations and was continuing, then the benefit of Revised Pay Scale Rules, could not have been denied to such teacher.
Page 32 of 37 HC-NIC Page 32 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT
37. The matter was considered by the Supreme Court in the above referred factual background. It was argued by the learned Solicitor General appearing for the State of Rajasthan that there is a difference between the revision of pay and revision of pension, and the Notification dated 12.10.2009 relating to revision of pay was also applicable to the employees the then existing and not to those who had retired prior to 01.01.2006. To appreciate the controversy, the Supreme Court compared in juxtaposition Rule 6(1) of the Haryana Civil Services (Revised Pension) Part I Rules, 2009 and paragraph 5 (i) of the Memorandum dated 12.09.2008 reproduced herein below:
Haryana Civil Services (Revised Circular / Memorandum Pension) PartI Rules, 2009 Rule 6(1) Paragraph 5 (i) (1) The fixation of revised The consolidated pension (treated entitlement of pension shall be as final 'basic pension') as on subject to the provision that the 1.9.2006 of pre01.9.2006, revised entitlement of pension so pensioner shall not be lower than worked out shall, in no case, be 50% of sum of the minimum pay of lower than fifty per cent of the the post in the running pay band minimum of the pay in the pay plus grade pay introduced w.e.f.
band + grade pay in the 1.9.2006 corresponding to the pre corresponding revised scale in revised pay scale of the post from terms of Haryana Civil Services which pensioner had retired. (Revised Pay) Rules, 2008, or as Subject to the condition that the the case, may be, Haryana Civil existing provisions in the rules Services (Assured Career governing qualifying service for Progression) Rules, 2008, to the grant of pension and minimum prerevised pay scale from which pension shall continue to be the pensioner had retired. operative.
38. The Supreme Court, thereafter, made the following observations Page 33 of 37 HC-NIC Page 33 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT while dismissing the Appeals filed by the State of Rajasthan:
"18. We are absolutely conscious that we had already reproduced paragraph 5(i) earlier but we have quoted it hereinabove to appreciate the impact and import of the same in juxtaposition of the Haryana Rules. There is no shadow of doubt that the language employed in 2009 Rules of Haryana and the Circular/Memorandum dated 12.9.2008 are slightly different but the import and impact is the same. It is appropriate to note here that placing reliance on the same, the State of Haryana, vide memorandum dated 10.7.2009 had denied the benefit of pension to the retired employees. The High Court had quashed the same which has been affirmed by this Court. Similarly, in the present case, the benefit is deprived vide order dated 22.1.2010. There is no cavil over the fact that the respondents have been fitted into a pay band and extended the benefit of pension under the revision of pay from 2006 as the respondents had completed three years of service. Paragraph 5 clearly lays the postulate that the consolidated pension (treated as final basic pension) as on 1.9.2006, all pre1.9.2006 pensioner shall not be lower than 50% of sum of the minimum pay of the post in the running pay band plus grade pay introduced w.e.f. 1.9.2006 corresponding to the prerevised pay scale of the post from which pensioner had retired. The only rider is the minimum qualifying service and all the respondents have the experience of three years by 1.9.2006. As the factual score would depict, the respondents were paid pension on a lower band after the revision of the pay scale despite the fact that the persons who were already in service with the similar qualification have been kept in the higher pay band plus grade pay.
19. Paragraph 5 requires to be scrutinised and on such a scrutiny it becomes graphically clear that pension of a pre1.9.2006 pensioner shall not be lower than 50% of sum of the minimum of post in the running pay band plus grade pay introduced w.e.f. 1.9.2006 corresponding to the prerevised scale of the post. If the pay scale is taken into consideration, the corresponding pay revision would be Rs.3740067000 with Rs.9000 AGP. The only qualifier is three years service in that scale. There is no scintilla of doubt that all the respondents meet that criteria. It is a well known principle that pension is not a bounty. The benefit is conferred upon an employee for his unblemished career. In D.S. Nakara v. Union of India[2], D.A. Desai, J. speaking for the Bench opined that: "18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee Page 34 of 37 HC-NIC Page 34 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT even after the contract of employment has come to an end and the employee has ceased to render service?
19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
20. The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar [3] wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh[4]."
20. We may hasten to add that though the said decision has been explained and diluted on certain other aspects, but the paragraphs which we have reproduced as a concept holds the filed as it is a fundamental concept in service jurisprudence. It will be appropriate and apposite on the part of the employers to remember the same and ingeminate it time and again so that unnecessary litigation do not travel to the Court and the employers show a definite and correct attitude towards employees. We are compelled to say so as we find that the intention of the State Government from paragraph 5 of the circular/memorandum has been litigated at various stages to deny the benefits to the respondents. It is the duty of the State Government to avoid unwarranted litigations and not to encourage any litigation for the sake of litigation. The respondents were entitled to get the benefit of pension and the High Court has placed reliance on the decision of another High Court which has already been approved by this Court. True it is, there is slight difference in the use of language in the Haryana Pension Rules 2009 and the circular/ memorandum issued by the State of Rajasthan, but a critical analysis would show that the Page 35 of 37 HC-NIC Page 35 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT final consequence is not affected.
21. It is urged before us that it will put a heavy financial burden on the State. The said submission has been seriously resisted by the learned counsel for the respondents by urging that hardly 200250 retired lecturers in the selection scale are alive in praesenti and the State cannot take a plea of financial burden to deny the legitimate dues of the respondents.
22. In view of the aforesaid analysis, we do not perceive any merit in this batch of appeals and accordingly, the same stands dismissed. The benefit shall be extended to the respondents within a span of three months from today failing which the accrued sum shall carry interest @ 9% per annum till realisation. There shall be no order as to costs."
39. In my view, the above referred decision of the Supreme Court takes care of the issue which has been raised in the present petition.
40. The Clause 9.2. of the resolution dated 13.04.2009 provides that the revised pension, in no case, shall be lower than 50% of the minimum of the pay in the pay band plus the grade pay corresponding to the pre revised pay scale from which the petitioners have retired. If the pay scale is taken into consideration, the corresponding pay revision shall be Rs.37,400 Rs.67,000/ with Rs.9,000/ AGP. The only requirement is three years in that scale. It is not in dispute that all the petitioners fulfill that criteria.
41. For all the foregoing reasons, this petition succeeds and is hereby allowed. The decision of the respondents to reduce the amount of basic pension of the petitioners from Rs.23,200 to Rs.19,730/ and the family pension from Rs.19,300/ to Rs.14,430/ w.e.f. 01.01.2006 is hereby Page 36 of 37 HC-NIC Page 36 of 37 Created On Wed Sep 23 02:38:49 IST 2015 C/SCA/705/2013 CAV JUDGMENT ordered to be quashed. The further decision of the Government to effect recovery of the difference of the amount paid to the petitioners from 01.01.2006 and 01.06.2012 is also ordered to be quashed. The Government resolution dated 26.02.2014 wherein the Senior Scale, Selection Scale or the Higher Pay Scale has not been considered is also ordered to be quashed and set aside.
42. The respondents are directed that they shall continue to pay the amount of pension and family pension with the appropriate revision effective from time to time. The respondents are also directed to refund the amount deducted from the pension amount of the petitioners and make good the payment within a period of three months from the date of the receipt of the writ of this order.
43. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) chandresh Page 37 of 37 HC-NIC Page 37 of 37 Created On Wed Sep 23 02:38:49 IST 2015