Bombay High Court
Shri Prabhakar Ramchandra Kharbade vs The State Of Maharashtra, Through Its ... on 23 April, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:4160-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 8766 OF 2018
Shri Prabhakar Ramchandra Kharbade
age : 79 years, Occ : Retired
R/o. Plot No.51-A, Kalyaneshwar .. Petitioner
Nagar, Near Shiv Mandir,
Manewada-Besa Road, Nagpur - 27
Versus
1) The State of Maharashtra,
Through its Secretary,
Finance Department, Mantralaya,
Mumbai - 400 032
2) Superintendent of Police,
Railway, Ajni, Nagpur .. Respondents
3) Accountant General (A & E) - II,
Maharashtra, Civil Lines, Nagpur - 01
4) Senior Treasury Officer,
Office of the District Treasury,
Civil Lines, Nagpur - 440 001
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Mr. A.K. Waghmare, Advocate for the petitioner.
Mr. N.R. Patil, Assistant Government Pleader for the respondents.
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CORAM : AVINASH G. GHAROTE AND
ABHAY J. MANTRI, JJ.
DATED : APRIL 23, 2025
JUDGMENT (PER : ABHAY J. MANTRI, J.)
Heard. Rule. Heard finally with the consent of the learned
counsel appearing for the parties.
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(2) The petitioner challenges the judgments and orders
dated 21/03/2018 and 05/10/2018, passed by the learned Maharashtra
Administrative Tribunal, Nagpur, in Original Application No.117/2017
and Review Application No.05/2018, thereby dismissing the Original
Application and Review Application, for the claim of fixation of the basic
pay/pension as per Government Circulars dated 20/07/2004 and
05.05.2009.
(3) The petitioner, the original applicant, was appointed as a
Constable in the Railway Police on 19/09/1960 and retired on
30/06/1991. He was getting the pay in the 4 th Pay Commission, and his
last pay was drawn as @Rs.751/-. After implementing the 5 th Pay
Commission, he received a proper pension, and his last pay as of
31/07/2004 was @Rs.2356/-. Thereafter, vide GR dated 20/07/2004,
his basic pay scale was revised w.e.f. 01/08/2004. As per the said GR,
the Government of Maharashtra has granted additional benefit by way
of 50% Dearness Allowance (D.A.), considering the last pay drawn as
on 31/07/2024. Therefore, the basic pay was revised to a pension of
Rs. 3534/-, w.e.f. 01/08/2004 till the revision of 6 th Pay Commission
i.e. on 31/12/2005.
(4) On 05/05/2009, the Government of Maharashtra issued
another GR revising the pension of the pensioners based on the last
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pay drawn as of 31/12/2005 and demonstrating the same in clause (3)
of the said GR. Therefore, the petitioner applied to the authority for the
grant of revised pension as per the G.R. However, the authorities have
not considered his application. Consequently, he has filed O.A.
No.77/2016 before the learned Tribunal.
(5) The learned Tribunal by order dated 27/10/2016 disposed
of the O.A. and granted liberty to the applicant to file a comprehensive
representation before the authorities and directed them to consider the
same within three months from the date of receipt of the
representation. Pursuant to the said order, the petitioner has filed a
detailed representation before the authority. However, the respondent
No.4 vide communication dated 01/12/2016 refused to revise the
pension as claimed by the petitioner. Hence, being aggrieved by the
same, he had filed O.A. before the learned Tribunal. Considering the
facts of the case and GR, the learned Tribunal dismissed the application
on 21/03/2018. Thereafter, the petitioner filed the Review Application
bearing No.05/2018, which was also dismissed on 05/10/2018. Being
aggrieved by the same, he preferred this petition.
(6) Learned counsel Mr. Waghmare has vehemently
contended that the learned Tribunal has not considered the G.R. dated
20/07/2004 and 05/05/2009. He drew our attention to the language of
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those GR and submitted that the learned Tribunal has not considered
the same in its proper perspective and erred in dismissing the O.A. and
Review Application, and therefore, urged for allowing the petition.
(7) As against, Mr.N.R.Patil, learned Assistant Government
Pleader strongly opposed the petition contending that the respondent
authorities after considering both the GRs, have rightly calculated the
revised pension of the petitioner and after considering the same, the
learned Tribunal has rightly dismissed both the applications and
therefore, no interference is required. During the argument, he invited
our attention to the calculation sheet prepared by the Competent
Authorities on pages 215, 216, and 224, as well as the calculation
demonstrated in para 5 of the reply, along with GR. Thus, he submitted
that no interference is required in view of the same.
(8) In support of his contention, he has relied upon the
decision of the Hon'ble Apex Court in Union of India and others vs.
D.G.O.F. Employees Association and another [Civil Appeal No.1663 of
2016] and pointed out para 9 of the said judgment and canvassed that
the executives and expert bodies like the Pay Commission have
appropriate authorities to calculate the pay structure, and as per GR,
they have rightly calculated the same therefore, ordinarily the same
would not be disturbed by the Court. Similarly, the Court has no
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jurisdiction to examine the pay structure. Hence, the order passed by
the Tribunal is just and proper; therefore, it is submitted that no
interference is required.
(9) We have considered the rival submissions of the parties
and gone through the impugned orders, both GRs and the record.
(10) The short question that arises is 'whether the respondent
authorities have considered the GRs dated 20/07/2004 and 05/05/2009
while re-fixing the petitioner's pension in its proper perspective.'
(11) While dealing with the said controversy, it would be
appropriate to reproduce the relevant clauses of the GR dated
20/07/2004 as under:-
"Government is pleased to decide that, with effect from 1st
August 2004, Dearness Allowance equal to 50% of the basic pay shall
be merged with the basic pay and shown distinctly as Dearness Pay
(D.P.), which would be counted for the purpose of retirement benefits.
2. Government is further pleased to decide that in case of existing
pensioners, Dearness Relief equal to 50% of the present pension will,
with effect from 1st August 2004, be merged with the pension and
shown distinctly as Dearness Pension. Dearness Relief converted into
Dearness Pension would be deducted from the existing rate of Dearness
Relief (61%) i.e. Dearness Relief from 1 st August 2004 would be payable
at the rate of 11% on Basic Pension/family pension and Dearness
pension/Dearness family pension."
(12) Similarly, we would like to reproduce the relevant clauses
of the GR dated 05/05/2009 as under:-
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2. In these orders:-
(a) "Existing Pensioner" means a pensioner who was drawing/entitled
to pension on 31st December 2005.
(b) "Existing pension" means the basic pension, inclusive of
commuted portion, if any, due on 31st December 2005. It covers all
classes of pension (except wound/injury pension) under the Maharashtra
Civil Services (Pension) Rules, 1982 or any other pension rule under
which the Government servant was governed at the time of retirement.
(c) "Existing Dearness Relief" means the relief due to the pensioners
as on 1st January, 2006 for the following period:-
Sr. Period Monthly rates of D.A.
No.
st
2 From 1 July 2006 2%
3 From 1st January 2007 6%
4 From 1st July 2007 9%
5 From 1st January 2008 12%
st
6 From 1 July 2008 16%
3. On the lines of the recommendations of Central sixth pay
commission, the State Govt has decided to revise the pension of the
pensioners who retired before 1st January, 2006 by giving 40%
increase on the basic pension (basic pension which does not include
D.A. & D.P.) vide G.R. dated 27th Feb.2009. Accordingly, pension in
respect of the pensioners who retired before 1/1/2006 will be fixed as per
the example given below :-
A Basic pension as on 1st January, 2006 Rs. 10,000/-
B D.P. Rs. 5,000/-
C D.A. (24%) Rs. 3,600/-
D 40% increase on basic pension (A above) Rs. 4,000/-
E Pension as on 01/01/2006 (A+B+C+D) Rs. 22,600/-"
(13) Similarly, in the Union of India, the Hon'ble Apex Court has
held that "Though the equation of posts and the equation of pay structure
being complex matters, they are generally left to the executive and expert
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bodies like the Pay Commission etc. and carefully evolved pay structure
ought not to be ordinarily disturbed by the court as it may upset the
balance and cause avoidable ripples in other cadres as well,
nevertheless it will not to correct lay down as an absolute rule that
merely because determination and granting of pay scales is prerogative
of the executive, the court has no jurisdiction to examine any pay
structure and aggrieved employee cannot be left with no remedy if he
is unjustly treated by arbitrary state action or inaction, except to go on
knowing at the doors of the executive or legislature."
(14) As per the mandate in Union of India (supra), we are not
disturbing the pay structure fixed by executive and expert bodies like
the Pay Commission. However, while considering the claim, we are
interpreting the language of the GRs dated 20/07/2004 and
05/05/2009 to determine the basic pay by keeping in mind the purpose
and intent of the provision and the background in which it has been
used, whether it includes the Dearness Pay (for short--' D. P.') or not.
(15) According to the learned Assistant Government Pleader,
the D.P. is not a part of the basic pay and therefore, the petitioner is
not entitled to the relief as claimed. On careful perusal of the GR dated
20/07/2004, it is evident that the Government decided to merge D.A.
of 50% of the basic pay into the basic pay, but showed it distinctly as
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Dearness Pay (D.P.), counting for the purpose of retiral benefits. The
language of the said GR would clearly indicate that the D.A. equal to
50% is merged with the basic pay. That means, once merged, DP is
treated as part of the basic pay for all practical purposes, like
calculating HRA, pension, gratuity, and other benefits.
(16) The language of the G.R. thus makes it apparent that
basic pay is revised by merging the D.A. into it. However, it is shown
distinctly as D.P., which does not mean that the said D.P. is not part of
the basic pay; on the contrary, when Dearness Pay was officially
merged into Basic Pay, then indeed, it would be included in the basic
pay only.
(17) It is pertinent to note that Dearness Pay is neither
defined in The Maharashtra Civil Services (Pay) Rules 1981 nor The
Maharashtra Civil Services (Pension) Rules, 1982. It was introduced to
simplify pay structures and to make DA count towards other benefits
like HRA, pension, etc. Likewise, DA is a separate component from
basic pay. That means the regular Dearness Allowance is not part of
Basic Pay. But when DA crosses a certain threshold (like 50% of basic
pay), the government may decide to merge part or all of that DA into
the basic pay. Thus, D.P. is part of Basic Pay once it is so declared and
merged. That being so, 'D.P.' is to treat as part of the basic pay for all
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practical purposes, like calculating HRA, pension, gratuity, and other
benefits.
(18) It is to be noted that, by G.R. dated 20/07/2004, the
Govt. of Maharashtra, declared that from 01/08/2004, the D.A. equal
to 50% of the then existing pension was merged with the pension. It is
apparent from the extract of Dearness Relief/Dearness Allowance from
January 1986 to July 2019 as available on the official website of the
Principal Accountant General (A. & E) - II, Maharashtra, Nagpur, that in
June 2004, D.A. was admissible to 61%; however, from August 2004 it
was reduced to 11% from 61% as 50% D.A. was merged into then
existing Basic Pay. The said fact itself indicates that 50% of D.A. was
merged with the basic pay, which means that basic pay was revised
from 01/08/2004, and D.A. was shown as 11%.
(19) In addition, Pension is to be calculated based on the last
drawn Basic Pay + Dearness Allowance (DA) at the time of retirement.
In such a case, even assuming that D.A. of 61% was shown in a
bifurcating manner as {D.A. (11%) + D.P. (50%)} in such an
eventuality, also on the last drawn date i.e. 31.12.2004 the admissible
pension was Basic pay+ D.A. has to be taken into consideration while
applying the pay scale of 6th pay commission instead of excluding the
part of D.A. converting into D.P. Moreover, as per Rule 61 of the
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Pension Rules, 1982, the Portion of D.A. treated as D.P. will be counted
as "Pay" for the purpose of pension. Thus, DP would be treated as part
of Basic Pay for pension and retirement benefits. Therefore, we are not
inclined to accept the submissions of the learned AGP in that regard.
(20) Apart from this, the language embodied in para 3 of the
GR dated 05/05/2009, clearly indicates that while calculating 24%
D.A., the basic pay was considered as basic pay on the date of
01/01/2006, i.e. original basic pay + 50% D.A. It also reflects from the
chart of the D.A. rates produced by the respondents (page 224), at the
end of June 2004, the D.A. was shown as 61% and from August 2004,
50% D.A. had merged with the basic pay and the D.A. of August 2004
was shown as 11%, which merged with the basic pay. It could be
gathered from the language of the GR dated 20/07/2004. The said fact
itself shows that the authorities have reduced the D.A. from 61% to
11%. Had it been the fact that the D.A. would not have been reduced,
then the question of showing the same as D.P. distinctly does not arise.
Therefore, in our opinion, it would not be proper to show the said D.A.
distinctly as D.P. as mentioned in the GR dated 05/05/2009, while
revising the pensioner's pension, who retired before 01/01/2006.
(21) The learned Assistant Government Pleader also drew our
attention to the pension payment order calculation sheet on pages 213
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to 216. At page 216 and the calculation sheet also, it is mentioned
that on 01/10/2005, the pension of Rs.2356/- and D.P. of Rs.1178/-
i.e. total basic pay comes to Rs. 3534/-, therefore, in our view, the
language of the GR about the merger of the D.A. equal to 50% in the
basic pay would construed as the basic pay. Therefore, it cannot be
shown distinctly as basic pay and D.P., but it should only be shown as
basic pay.
(22) Perused the impugned order. However, it appears that the
learned Tribunal has not considered the language of the GR in its
proper perspective and erred in dismissing the applications. However,
as discussed above, in our view, the expression embodied in the GR
itself is clear. The merger of the D.A. into basic pay would be construed
as the basic pay only and not as adverted by the learned Assistant
Government Pleader. Similarly, we interpreted the expression embodied
in the GR. We did not disturb the calculations made by the authorities.
Therefore, the observations made in the Union of India (supra) hardly
support the respondents' contentions.
(23) Thus, considering the above discussion, in our view, the
impugned orders cannot be sustained in the eyes of the law and needs
to be quashed and set aside.
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(24) In the wake of the above, we partly allow the petition.
The impugned orders passed by the learned Tribunal are hereby
quashed and set aside. The Original Application no.117/2017 is partly
allowed to the extent that basic pay as indicated in the GR dated
20/07/2004, be construed as "original basic pay + D.P."
(2356+1178=3534) as on 31/12/2005, and calculate and determine
the petitioner's pension and arrears, if any, eligible in accordance with
the law. Rule is made partly absolute in the above terms. No order as
to costs.
[ ABHAY J. MANTRI, J. ] [ AVINASH G. GHAROTE, J. ]
After pronouncement of judgment Mr. Patil, learned Assistant
Government Pleader at this time makes a request for grant of
stay to the effect and operation of the judgment, however, no
time period has been granted to implement the judgment,
therefore, we decline the request.
[ ABHAY J. MANTRI, J. ] [ AVINASH G. GHAROTE, J. ]
Signed by: Mr. Ravikant Kolhe PAGE 12 OF 12
Designation: PA To Honourable Judge
Date: 23/04/2025 17:16:30
