Bombay High Court
The Principal Secretary, Deptt Of ... vs Ashok S/O Jagannathrao Aknurwar on 22 June, 2017
Bench: V.A. Naik
2206WP1701.15-Judgment 1/16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1701 OF 2015
PETITIONERS :- 1) The Principal Secretary, Department of
Finance, Mantralaya, Mumbai-32.
2) The Director, Directorate of Accounts &
Treasuries, Mumbai-21.
3) The Assistant Director, Treasury (Prara),
Director of Accounts & Treasury, Mumbai.
...VERSUS...
RESPONDENT :- Ashok s/o Jagannathrao Aknurwar, R/o
D.R.D.A., Gadchiroli, Distt. Gadchiroli.
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Mr.K.L.Dharmadhikari, Asstt.Govt.Pleader for the petitioners.
Mr.S. Y. Deopujari, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 21-22.06.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this petition, the petitioners - State of Maharashtra and
others challenge the order of the Maharashtra Administrative Tribunal,
2206WP1701.15-Judgment 2/16
dated 11.4.2014 allowing the original application filed by the
respondent and directing the petitioners to calculate the pensionary
benefits payable to the respondent by taking into consideration that he
was lastly drawing the pay in the pay scale of Rs.15,600 - 39,100/-
when he retired from service.
2. Few facts giving rise to the petition are stated thus : -
The respondent was appointed in the department of
Accounts and Treasury in 1970. In the year 2006 he was transferred to
Gadchiroli as an Accounts Officer. The respondent retired from
Gadchiroli on 29.2.2012. Though the other Accounts Officers D.R.D.A.
were drawing the pay in the scale of Rs.9,300 - 34,800/-, the petitioner
was drawing the next higher pay scale of Rs.15,600- 39,100/- in
pursuance of the Government Resolution, dated 6.6.2002 that provided
incentives for the officers posted in the naxalite affected areas under the
Special Action Plan. On his retirement, according to the respondent, in
view of Rule 60 of the Maharashtra Civil Services (Pension) Rules,
1982, an employee is entitled to receive the pension as per the average
pay drawn by him during the last ten months of his service before
retirement and since the respondent was drawing the pay in the scale of
Rs.15,600 - 39,100/- with Grade Pay of Rs.5400/- the petitioner sought
the fixation of his pension in the said pay scale. The petitioners however
2206WP1701.15-Judgment 3/16
refused to do so. According to the petitioners, as per Rule 9 (36) of the
Pension Rules of 1982, the pay of a Government Servant would be the
amount drawn by a Government Servant every month as the pay
(including the special dearness pay) which had been sanctioned for a
post held by him (Emphasis Supplied) substantively or in an officiating
capacity or to which he is entitled by reason of his position in a cadre
and personal pay and special pay. According to the petitioners, the last
pay sanctioned for the post of Accounts Officer D.R.D.A. was Rs.9,300 -
34,800/- with Grade Pay of Rs.4,400/- and the respondent was entitled
to the fixation of the pension in that pay scale. Since the petitioners
fixed the pension of the respondent by considering his pay in the scale
of Rs.9,300-34,800/- with Grade Pay of Rs.4,400/- the respondent filed
the original application before the Maharashtra Administrative Tribunal
seeking a direction against the petitioners for fixation of his pension by
considering his last drawn pay in the scale of Rs.15,600-39,100/- with
Grade Pay of Rs.5,400/-. The original application filed by the
respondent was allowed by the Tribunal by the impugned order, dated
11.4.2014. The petitioners have challenged the order of the Tribunal in
this writ petition.
3. Shri Dharmadhikari, the learned Assistant Government
Pleader appearing for the petitioners submitted by referring to Rules 9
2206WP1701.15-Judgment 4/16
(36) and 60 (1) of the Maharashtra Civil Services (Pension) Rules, 1982
that the pension of a Government Servant could be fixed by considering
the average pay earned by a Government Servant during the last ten
months of his service and the pay would mean the pay which has been
sanctioned for a post held by him including the special dearness pay,
personal or special pay or any other emoluments which may be specially
classed as 'pay' by the Government. It is submitted that for computing
the pensionary benefits it would be necessary to consider the pay which
has been sanctioned for a post held by the Government Servant
substantively or in the officiating capacity including the personal or
special pay. It is submitted that the grant of higher pay scale to the
respondent for working in the naxalite affected area would not be a pay
or special pay, but would be an incentive for working in the naxalite
area. It is submitted that if the submission of the respondent is
accepted, the pensionary benefits for a Government Servant working in
the naxalite area during the last ten months of his service would be
drastically higher, and this cannot be the import of the provisions of
Rules 60 (1) and 9 (36) of the Rules of 1982. It is submitted that on a
reading of the Government Resolution dated 6.6.2002 that grants the
special benefits to the Government Servants working in the naxalite
area it is clear that additional benefits are not granted to the
government servants as a 'pay' but as special incentives for encouraging
2206WP1701.15-Judgment 5/16
them to work in the naxalate affected areas. It is submitted that on a
reading of the Government Resolution dated 6.6.2002 it would be clear
that as soon as the Government Servants that are working in the
naxalite areas are transferred to non-naxalite areas their pay is reduced
to the lower scale, as is applicable to the posts that they are holding. It
is submitted that the grant of higher pay scale to the Government
Servants working in the naxalite area is an incentive and cannot be
included within the definition of the term "pay" as is defined under Rule
9 (36) of the Rules of 1982. It is submitted that since there was a
confusion in the mind of the concerned officers dealing with the fixation
of pension and other benefits, the Government has issued a Resolution
on 17.12.2013, clarifying the position. It is submitted that it is clearly
mentioned in the Government Resolution dated 17.12.2013 that
pension would be computed on the basis of the pay admissible to a post
and not on the basis of the incentive granted to a Government Servant
for working in the naxalite and tribal areas. It is submitted that the
Tribunal wrongfully discarded the Government Resolution, dated
17.12.2013 by holding that the Rules cannot be amended by the said
Government Resolution. It is submitted that the Tribunal wrongly
relied on some internal communications, dated 19.1.2007 and
24.7.2008, exchanged between the State Government and certain
departments of the Government. It is submitted that it is apparent from
2206WP1701.15-Judgment 6/16
a reading of the Rules of 1982 and the Government Resolution dated
6.6.2002 that the respondent was receiving the pay in the higher pay
scale only because he was working in the naxalite area. It is submitted
that grave injustice would be caused to the Government Servants
working on the same posts, if they are granted considerably lower
pension merely because they retire from a place which is not located in
the naxalite or tribal affected areas during the last ten months of their
service.
4. Shri Deopujari, the learned counsel for the respondent,
supported the order of the tribunal and relied on rules 60 and 9(36) of
the Maharashtra Civil Services (Pension) Rules, 1982 to submit that the
respondent would be entitled to the pension by considering his last
drawn pay in the scale of Rs.15,600-39,100 with grade pay of
Rs.5,400/-. It is submitted that the higher pay granted to the
respondent would be a special pay and in view of the provisions of rule
9(36) of the Rules of 1982, the special pay would also be included in
the definition of term "pay". It is submitted that certain departments of
the government had sought clarification whether pension was liable to
be computed on the basis of the benefits of the government resolution
dated 06/08/2002 that provided certain incentives to the government
servants working in the naxalite affected areas or on the basis of the pay
2206WP1701.15-Judgment 7/16
that was drawn by the post held by them, the State Government vide
communications dated 19/01/2007 and 24/07/2008 had informed the
accounts officer and the chief executive officers of the zilla parishads
that pension should be fixed on the basis of the higher pay that was
received by the government servants working in the naxalite affected
areas or the tribal areas during the last ten months of their service. It is
submitted that the tribunal has rightly considered the circulars of the
government, dated 19/01/2007 and 24/07/2008 to hold that pension
needs to be computed by considering the higher pay scale drawn by the
employees in pursuance of the government resolution dated
06/08/2002 that provides special incentives to the government servants
working in the naxalite affected areas. It is submitted that the tribunal
has rightly considered the provisions of the Rules of 1982 and the
circulars dated 19/01/2007 and 24/07/2008 to grant relief in favour of
the respondent. It is submitted that the tribunal had rightly discarded
the government resolution dated 17/12/2013, as by the said resolution,
the government had, in effect sought to amend the provisions of rule 9
(36) of the Rules of 1982. The learned counsel relied on the judgment,
reported in 2002 (5) Mh.L.J. 265 (Narharrao v. State of Mah.) to
substantiate his submission that the special pay drawn by a government
servant should be considered while computing his pension under rule
60(1) of the Rules.
2206WP1701.15-Judgment 8/16
5. For answering the issue involved in this case, it would be
necessary to consider the relevant provisions of the Rules of 1982. It
would be necessary to refer to rule 9(36) of the Rules which defines
"pay". Rule 9 (36) reads thus :-
"9(36) "Pay" means the amount drawn monthly by a
Government servant as -
(i) the pay (including special dearness pay) which has
been sanctioned for a post held by him substantively
or in an officiating capacity, or to which he is
entitled by reason of his position in a cadre ; and
(ii) personal pay, and special pay ; and
(iii) any other emoluments which may be specially
classed as pay by Government."
The word "pensionable pay" is explained in rule 60(1) of
the Rules. Rule 60(1) of the Rules with which we are concerned reads
thus :-
"60. Pensionable pay. - (1) The "Pensionable pay"
means the average pay earned by a Government servant
during the last ten months' service."
On a reading of the aforesaid relevant rules, it is clear that
'pensionable pay' would mean the average pay earned by a government
servant during the last ten months' service. 'Pensionable pay' refers to
the 'pay' earned by a government servant. "Pay" is defined in rule 9(36)
of the Rules. As per rule 9(36) "pay" would mean the pay which has
been sanctioned for a post held by a government servant substantively
2206WP1701.15-Judgment 9/16
or in an officiating capacity and / or to which he is entitled, by reason
of his position in a cadre. Rule 9(36)(ii) includes "personal pay" and
"special pay" in the definition of the word "pay". It is apparent from a
reading of rule 9(36) of the Rules that "pay" would mean the pay which
has been sanctioned for a post held by a government servant by reason
of his position in a cadre. On a reading of the definition of the word
"pay", it is clear that 'pay' means the pay which is sanctioned for a post
and is drawn by an employee. Pay would include "personal pay" and
"special pay". The tribunal, however lost sight of the words "pay which
has been sanctioned for a post held by a government servant". The
respondent was holding the post of an accounts officer D.R.D.A. at the
time of his retirement. Admittedly, the pay sanctioned for the post of
accounts officer D.R.D.A. was in the pay scale of Rs.9,300-34,800 with
grade pay of Rs.4,400/-. The respondent was however drawing a higher
pay in the scale of Rs.15,600-39,100 with grade pay of Rs.5,400/- as an
incentive for working in the naxalite affected area. On a reading of the
government resolution dated 06/08/2002 under which a higher pay
scale was granted to the respondent, it appears that higher pay scale is
granted to a government servant posted in a naxalite affected area only
as an incentive to encourage him to work in the said area. It is
apparent from a reading of the government resolution, dated
06/08/2002 that the special incentive is granted to the employee with a
2206WP1701.15-Judgment 10/16
view to ensure that he is encouraged for working in the naxalite
affected area and hence, as soon as he stops working in the naxalite
affected area and is transferred to a non-naxalite affected area or a non-
tribal area, he would be brought on the scale that is sanctioned for the
post and not the higher pay scale which he was drawing as a result of
his being posted in the naxalite affected area. The pay sanctioned for
the post of an accounts officer was Rs.9,300-34,800 with grade pay of
Rs.4,400/-, but the respondent was drawing the pay in the scale of
Rs.15,600-39,100 with grade of Rs.5,400/- which was not sanctioned
for the post, but was only granted as an incentive for working in the
naxalite affected areas or the tribal areas. 'Pay' under rule 9(36) of the
Rules would only include the pay sanctioned for a post, personal pay
and special pay and any emolument classed as 'pay'. The pay received
by the respondent in the higher pay scale cannot be termed as a special
pay as it is only in the nature of an incentive, as could be gathered from
a reading of the government resolution dated 06/08/2002. On a
reading of the government resolution, it is clear that higher pay scale is
provided for a government servant, only for the period during which he
works in the naxalite affected areas. That is not a 'pay' sanctioned for
the post that he is holding. The government servant would be entitled
to the higher pay scale as an incentive in terms of the government
resolution dated 06/08/2002, only from the date of joining the posting
2206WP1701.15-Judgment 11/16
in the naxalite affected area and till the date he continues to work in
the naxalite affected area. The government servant working on a
particular post would stop drawing a higher pay scale as soon as he is
transferred out of the naxalite affected area or the tribal area. It is
apparent from a reading of the government resolution that the special
incentive is sought to be granted to the employees only for the period
during which they work in the naxalite affected areas or the tribal areas.
On a reading of rule 9(36) of the Rules, it cannot be said that the higher
pay scale drawn by the respondent during the last ten months of his
service would fall within the definition of the word "pay" and that the
higher pay scale is a special pay which was drawn by the respondent.
The tribunal did not consider the government resolution dated
06/08/2002 as also the provisions of rule 9(36) of the Rules of 1982 in
the right perspective before holding that the higher pay drawn by the
respondent was a special pay drawn by him and his pension was liable
to be computed on the basis of the last pay drawn by him in the scale of
Rs.15,600-39,100, with grade pay of Rs.5,400/-. While allowing the
original application filed by the respondent, the tribunal failed to notice
the provisions of rule 9(36)(i) of the Rules which makes a reference to
the pay which has been sanctioned for a post. The tribunal gave undue
weightage to the department's circulars dated 19/01/2007 and
24/07/2008 while deciding the issue in favour of the respondent,
2206WP1701.15-Judgment 12/16
without considering the import of the government resolution dated
06/08/2002 and the provisions of rule 9(36) of the Rules of 1982.
Since there was some confusion about the correct position of law in this
regard, it appears that the State Government, by resolution dated
17/12/2013, clarified the position. As per the government resolution, it
was not permissible to compute the pension on the basis of the higher
pay scale received by a government servant for working in the naxalite
affected areas or the tribal areas. We do not find that the government
resolution dated 17/12/2013 is in any way, violative of the provisions
of rule 9(36) or rule 60(1) of the Maharashtra Civil Services (Pension)
Rules as held by the tribunal. The government resolution dated
17/12/2013 is in consonance with the provisions of rule 9(36)(i) of the
Rules of 1982.
6. There is one more aspect of the matter which needs to be
considered. If we accept the submission made on behalf of the
respondent in regard to the computation of the pensionary benefits on
the basis of the pay drawn by him during the last ten months of his
service, grave injustice would be caused to the employees that were
holding the same post of accounts officer but were not posted in the
naxalite affected areas or the tribal areas during the last ten months of
their service. If the submission made on behalf of the respondent is
2206WP1701.15-Judgment 13/16
accepted, there would be a mad rush for seeking a transfer to a place
located in the naxalite affected areas or the tribal areas during the last
year of service of the employees. In a given case a person may have
worked for a period of nearly ten years in a naxalite affected area or a
tribal area till the penultimate year of his service and during the last
year if he is transferred in a non-naxalite affected area or a non-tribal
area, the pension drawn by such an employee would be computed on
the basis of the lesser pay drawn by him, whereas a person who may
have enjoyed his postings during his entire services in a non-naxalite
affected area or a non-tribal area would be entitled to a much higher
pension merely because he is posted in the naxalite affected area or the
tribal area during the last year of his service. There is a great
difference in the pay scale drawn by a government servant working in a
non-naxalite affected area and the naxalite affected area, for the same
post. For example, in the present case, an accounts officer working in a
non-naxalite affected area would receive pay in the scale of Rs.9,300-
34,800 with grade pay of Rs.4,400/-, whereas an accounts officer
working in a naxalite affected area would receive the pay in the scale of
Rs.15,600-39,100 with grade pay of Rs.5,400/-. There is a vast
difference between the pay drawn by an employee working in the
naxalite affected area and the non-naxalite affected area. On a reading
of the provisions of rules 60(1) and 9(36) of the Rules and the
2206WP1701.15-Judgment 14/16
government resolution dated 06/08/2002, it is clear that the intention
of the government was not to grant considerably higher pension to a
government servant, who has worked in the tribal area or the naxalite
affected area in the last year of his service, vis-a-vis a government
servant, who has worked in a non-naxalite affected area during the last
year of his service. There would be a great difference in the monthly
pension drawn by a government servant holding the same post in
non-naxalite affected area and the naxalite affected area during the last
year of his service. The State Government did not intend to do so. It
would also be necessary to consider that a government servant posted
at a distance of barely five or ten kilometers from a naxalite affected
area during most part of his service including the last year of his service
would draw a much lower pension as compared to the government
servant who is posted barely five or ten kilometers away from him in a
naxalite affected area, if the submission made on behalf of the
respondent is accepted. The tribunal did not consider these aspects of
the matter and also the import of the provisions of rule 9(36)(i) of the
Rules while granting the relief in favour of the respondent. While
holding so, we may note that the judgment reported in 2002 (5)
Mh.L.J. 265 and relied on by the counsel for the respondent cannot be
applied to the facts of this case. In the said case an amount of Rs.150/-
per month was granted to judicial officers showing their willingness for
2206WP1701.15-Judgment 15/16
working on ex-cadre posts of judge-labour court, member-school
tribunal. The special pay of Rs.150/- per month was granted with a
view to attract the judges from regular judiciary to the labour judiciary.
The amount of Rs.150/-, that was drawn by the judges of the labour
judiciary was considered as a 'special pay' drawn by them. In the case
in the reported judgment, the appointment letter clearly mentioned that
Rs.150/- per month was drawn by the petitioner therein as a "special
pay" which was subsequently raised to Rs.300/- per month. Since in the
reported judgment, the petitioner was admittedly drawing a 'special
pay' of Rs.300/- per month at the time of his retirement, this court had
held that the special pay drawn by the petitioner therein, could be
included within the definition of the term "pay" in rule 9(36) of the
Rules. Such is not the case here. In the instant case, the petitioners
have not granted a higher pay scale to the government servants as a
'special pay' but have granted it as an incentive only for the period
during which they work in the naxalite affected areas or the tribal areas.
The government resolution dated 17/12/2013 clearly provides that the
government servants retiring after the coming into force of the sixth pay
commission recommendations on 01/01/2006 would be entitled to
receive the pension by considering the last pay sanctioned for the post
and not on the basis of the higher pay scale drawn in pursuance of the
government resolution dated 06/08/2002.
2206WP1701.15-Judgment 16/16
7. Hence, for the reasons aforesaid, the writ petition is
allowed. The order of the tribunal is quashed and set aside. The
original application filed by the respondent stands dismissed. Rule is
made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
WADKAR / KHUNTE
