Delhi High Court
Union Of India vs S. L. Saxena on 18 March, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No. 1774/2010
% Date of Decision: 18.03.2010
UNION OF INDIA .... PETITIONER
Through Mr. Chandan Kumar, Advocate
Versus
S.L. SAXENA ....RESPONDENT
Through Mr. R.K. Sarkar, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be Yes
allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in No
the Digest?
MOOL CHAND GARG, J.
*
CM No. 3521/2010
Allowed subject to just exceptions.
W.P. (C.) No. 1774/2010 & CM No. 3520/2010
1. The short point involved in this matter is as to whether while
computing pension of the respondent after the Pay Commission the
petitioners were justified in having not taken into consideration the
special pay of Rs. 300/- which was made admissible to the respondent
while he was officiating as Joint Director, Railway Board at the time of
the retirement on 31.01.1981 in the pay scale of 1100-1600 when he
was getting special pay of Rs. 300 in lieu of the higher pay scale of Joint
Director. It is not in dispute that at the time of his retirement and even
later when the pay was fixed for the purpose of computing the pension
of the respondent, the said pay was included in his basic pay for the
purpose of fixing the pension but it was only on 05.01.1999 when
revised pension was calculated, the special pay of Rs. 300/- drawn by
the respondent while working as Joint Director Railway Board, was not
taken into consideration.
2. It is this order which was assailed by the respondent by filing a
representation protesting against the action of the petitioners which
was rejected by the petitioners vide their letters dated 14.12.1992 and
31.08.1992. It is thereafter the respondent filed the Original
Application bearing No. 1681/2006 which was disposed of by the
Tribunal based upon the judgment delivered by the Tribunal as
aforesaid and the matter also came up for consideration before this
Court in W.P.(C) No. 96/2003 which was decided on 22.01.2004 when
the following orders was passed.
"3. In the result, for the foregoing reasons, OA stands
partly allowed. Impugned order is set aside. Matter
is remitted back to the respondents to consider
revision of pension by extending the benefit of
decision in B.R. Agnihotri's case (supra) by a detailed
and speaking order within a period of three months
from the date of receipt of a copy of this order. When
such a relief is granted, consequences in law would
ensue. It is also directed that any consequent order
in compliance thereof, if agreed to by the
respondents, would also entail consideration of
second increment in accordance with law. No costs."
3. Despite that, representation made by the respondent was rejected
by the petitioners. Thus, once again the petitioner filed the Original
Application bearing No. 2629/2008 which has been decided by the
Tribunal in favour of the respondent vide order dated 04.11.2009. It is
this order which has been impugned by the petitioners before us.
4. To appreciate the controversy involved in the matter and the
reasoning which have weighed in the mind of the Tribunal, it would be
appropriate to reproduce some of the paragraphs of the impugned
judgment which are as under:
4. It is not in dispute that the Applicant was holding
the post of Joint Director in the Railway Board at the
time of his retirement on superannuation. The
classified List of Accounts Department of Northern
Railway, placed at Annex. A-12, shows the name of
the Applicant in the list of Junior Accounts Officer
and it has been mentioned against his name that he
is "Wkg. As Jt. Dir., Rly. Board." It was so notified in
the Gazette of India, Part I, Section-II dated
14.03.1981 (Annex A-13) that "Shri S.L. Saxena,
Offg. Joint Director, Railway Board, retired from
service w.e.f. the afternoon of 31.1.1981." There can
be no doubt that the Applicant, who was in the pay
scale of Rs. 1100-1600, was given the special pay of
Rs. 300/- in lieu of higher scale of Joint Director.
There can be no conceivable other explanation for
this.
5. We have no doubt whatsoever that the instant
case is squarely covered by the principles laid down
in B.R. Agnihotri's case (supra) which, as already
stated, has been upheld by the Honourable Delhi
High Court also. The respondent has, in fact, raised
the same objections in this case, which were raised
in B.R. Agnihotri case (supra) and which were
disposed of in the order dated 28.02.2002. The
learned counsel for the Respondent also could not
advance any argument as to how the facts of the
instant case are different from B.R. Agnihotri (supra).
The argument that the Applicant was getting special
pay of Rs. 100/- per month as Deputy Director,
which was increased to Rs. 300/- per month, when
he was promoted as Joint Director on ad hoc basis
on the basis of the instructions contained in the
Memorandum dated 8.02.1978 (R-II), is not
acceptable as it is specifically for the post of
Additional Director. Even if it is applicable to Joint
Director level, it would support the Applicant's case
that the special pay is in lieu of higher scale. His
special pay was counted towards pension in 1986, as
in the case of B.R. Agnihotri (supra). Facts of the
cases being identical, the ratio in B.R. Agnihotri
would apply to the instant case also for counting the
special pay of Rs. 300/- towards pension in the
revision undertaken following the recommendations
of V CPC.
6. The OA is allowed in the light of the above
discussion. The Respondents are directed to re-fix
the pension of the Applicant with effect from
01.01.1996 taking into consideration the special pay
of Rs. 300/- that the Applicant was drawing up to
his retirement on superannuation. The Respondents
will work out the arrears and pay the same with
simple interest of 8 per cent per month within two
months of the receipt of a copy of this order. No
costs.
5. During the course of hearing, it has not been disputed by the
petitioner that at the time of the retirement the petitioner was officiating
as Joint Director Railway Board and at the time of his retirement he
was also getting a special pay of Rs. 300/- which admittedly has been
taken into consideration for the fixation of his pay till the fifth Pay
Commission came into force. The order is sought to be assailed on the
basis of a subsequent judgment delivered by this Court in the case of
Ramashankar Prasad Vs. Union of India in W.P.(C) No. 7117/2007
decided on 14.05.2009. However, the facts in this case have no
application on the facts and issues. Moreover, the special pay
admittedly has been taken as part of the salary on account of the higher
post at which the respondent was working till his retirement.
6. At this juncture, it may also be observed that B.R. Agnihotri's
case which covers the case of petitioners squarely has not been assailed
by the petitioners before any higher forum. Another judgment which
has been relied upon by the petitioner is the judgment delivered by the
Hon'ble Supreme Court in the case of Union of India Vs. S.R.Dhingra &
Ors. (2008) 2 SCC 229. A perusal of the said judgment goes to show
that certain clerical error was sought to be rectified which had occured
while refusing the notional pay of respondent in that case which is not
the issue before us.
7. Accordingly, we do not find any infirmity which calls for any
interference by this Court while exercising its jurisdiction under Article
226 of the Constitution of India. The writ petition is therefore,
dismissed with no order as to costs
8. All the pending applications are also disposed of.
MOOL CHAND GARG, J.
MARCH 18, 2010 ANIL KUMAR, J.
'ag'
