High Court
Case Details
Court No. - 70 Reserved Case :- WRIT - A No. - 61928 of 2015 Petitioner :- Ramesh Shukla Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Hari Pratap Gupta,Ramesh Rai Counsel for Respondent :- C.S.C. Hon'ble J.J. Munir,J. 1. This writ petition is directed against an order of the Joint Director/Additional Director, Treasury and Pension, Kanpur Division, Kanpur dated August the 24th, 2015, rejecting the petitioner's claim to fixation, award and disbursement of pension, treating his last drawn pay as one in the pay-scale of Rs. 6500-200-10,500/- and the basic pay of Rs. 26,470/-. The petitioner has instead been held entitled to the pay-scale of Rs. 5500-175-9000/- w.e.f. 01.03.2000 and Grade Pay of Rs. 4800/- as against the earlier awarded Grade Pay of Rs. 5400/-. 2. It must be clarified here that the writ petitioner, Ramesh Shukla, who is the pensioner, instituting this petition for the award of pension according to his last pay drawn, has died pendente lite. His heir and legal repreentative, Anurag Shukla, has been substituted as petitioner no.1/1. Thus, reference to the petitioner would be one, now to Anurag Shukla, but in fact it is the rights of the deceased-petitioner, Ramesh Shukla, whose estate he represents, that are in issue. The reference would, therefore, be deemed to relate to Ramesh Shukla, the deceased-petitioner, whose rights and estate are represented by petitioner no.1/1. 3. The petitioner was appointed as a Smallpox Supervisor in the Department of Medical and Family Welfare, Government of
Facts
U.P., Lucknow on 31.08.1973. He was first posted in the Establishment of the Chief Medical Officer, Varanasi. It is 2 commonground between parties that the petitioner was confirmed in Government service. The post of Smallpox Supervisor was renamed as Health Supervisor. The petitioner, after serving the Government for 37 long years, retired from service on 31.10.2010, still a Health Supervisor. Whatever be the immobility in the cadre, to which the petitioner belonged, he admittedly never got a chance to be promoted. It is said that there was no promotional post. The petitioner's service-book, a xerox copy of which is annexed as Annexure No.1 to the writ petition, would show that at the time of his retirement, the petitioner was placed in the Pay Scale of Rs. 6,500-200- 10,500/- w.e.f. 01.02.2001 under an order of the Chief Medical Officer, Kanpur Nagar. The aforesaid Pay Scale was revised under the Pay Committee Report of 2008 in the Pay Band of Rs. 9,300-34,800/- with a Grade Pay of Rs. 5,400/-. The last pay drawn by the petitioner was Rs. 26,470/-. The petitioner says that he is entitled to the fixation of his pension on the last mentioned basic pay, in accordance with the pay-scale or pay- band that he was placed in at the time of his retirement. 4. The petitioner retired on 31.10.2010, while working as a Health Supervisor in the establishment of the Chief Medical Officer, Kanpur Nagar. His pension papers were forwarded by the Officer, under whom he was serving, for the purpose of sanctioning pension to the Joint Director/Additional Director, Treasury and Pension, Kanpur Division, Kanpur. The Joint Director through a letter dated 25.01.2011, addressed to the Chief Medical Officer, Kanpur Nagar, raised certain objections about the grade/pay-band, in which the petitioner was last
Legal Reasoning
placed and a fortiori the basic pay that he was last drawing. A perusal of the order dated 25.01.2011 passed by the Joint Director/Additional Director, Treasury and Pension, Kanpur 3 Division, Kanpur and addressed to the Chief Medical Officer, Kanpur Nagar would show that in the opinion of the Joint Director, the C.M.O. vide his order dated 21.06.2008, acting in terms of the Government Order dated 21.06.2007, had wrongly placed the petitioner in the Pay Scale of Rs. 6,500-10,500/- upon completion of 24 years service, instead of the Pay Scale of Rs. 5,500-9,000/-, to which the petitioner was entitled. 5. Elaborating on the objection, it was said by the Joint Director/Additional Director, Treasury and Pension, that the next promotional scale for the petitioner over the first promotion scale granted to him is Rs. 5500-9000/-, that had already been sanctioned to him w.e.f. 01.03.2000. Therefore, there was no warrant to grant the petitioner the Pay Scale of Rs. 6500- 10,500/-. There is also a remark by the Joint Director that in pension matters presented in the past also by the Chief Medical Officer, Kanpur Nagar, similar objections have been raised, but the C.M.O. had not taken cognizance of the same and rectified the pay scale in various matters, that are being forwarded one after the other. It was also remarked that in future, such fallacious determination of pay scale ought not to be made. 6. This order was challenged by the petitioner before this Court by means of Writ - A No.23937 of 2011. The Court, upon hearing the parties, found that the order dated 25.01.2011 passed by the Joint Director/Additional Director, Treasury and Pension, Kanpur Division, Kanpur directing the C.M.O., Kanpur Nagar to cancel the pay scale awarded to the petitioner vide C.M.O.'s order dated 21.06.2008 was a cryptic order, not assigning any reason. It was noticed that it was only mentioned that the higher pay scale awarded to the petitioner is erroneous. It was remarked by this Court that a perusal of the order dated 4 25.01.2011 shows that neither any reason for the conclusion has been assigned nor the impact of the Government Order dated 21.06.2007, whereunder the fixation appears to have been done, considered. In this view of the matter, the order passed by the Joint Director/Additional Director, Treasury and Pension, Kanpur Division, Kanpur was set aside, with a remit of the matter to the Joint Director/Additional Director to consider the issue afresh and pass appropriate orders, after giving opportunity to the petitioner, within a period of three months of the production of a certified copy of that order before the Joint Director. It is in consequence of the aforesaid orders of this Court that the Joint Director/Additional Director, Treasury and Pension, Kanpur Division, Kanpur has passed the order impugned, affirming his earlier stance. 7. Two counter affidavits have been filed, one on behalf of respondent no.2 and a joint counter affidavit on behalf of respondent nos.1, 3, 4 and 5. The petitioner has filed a rejoinder affidavit in reply to the counter affidavit filed on behalf of respondent nos.1, 3, 4 and 5. 8. Heard Mr. Ramesh Rai, learned Counsel for the petitioner and Mr. L.K. Tripathi, learned Additional Chief Standing Counsel appearing on behalf of the respondents. 9. A perusal of the impugned order shows that the salient facts are culled out under six points about events that have led to the wrong fixation. These are extracted below: “1. श्री र्रम्रे्रश्र श्र्ला कुकीुक वविभाा म्रेवि प्रथम्र वविया्ववित (ाो दाय ततिथ) वविदयांकुक 31.08.1973 कुको पदयाम्र सम्राा पाक् ््पर्रभाइजर्र भतरम्राय पदयाम्र सभाससा पारभे्रककुक (प्0) कुके्र पद पर्र भे्रतयम्राय र0 230-380 म्रेवि ह्ई। जज्कुका वविदयांकुक 01.07.1979 ्े्र प्यर्रीतकत भे्रतयम्राय र0 470-735 अय्म्रन्ा कुकर्रााा ाा जो ्ही है। 5 2. श्री श्र्ला कुको श्रा्यादे्रश्र ्ं.भे्र.अ.-2-1450/द्-85- ्ं.व्ा(्ा.)-82 वविदयांकुक: 06.11.1985 कुके्र ्ंागकुक-1 कुके्र कम्रांकुक 6 पर्र अंवविकुकत भे्रतयम्राय र0 470-735 कुके्र ्ापे्रक 10 भरर अथभा अतधकुक कुकीुक ्े्रभापूरर कुकर्रये्र पर्र प्रथम्र ्म्राम्राय भे्रतयम्राय कुके्र रप म्रेवि भे्रतयम्राय र 0-620- 820 वविदयांकुक 01.07.1985 ्े्र अय्म्रन्ा हो ा। 3. श्री श्र्ला कुको श्रा्यादे्रश्र वविदयांकुक: 03.06.1989 कुके्र कम्र म्रेवि ववियदे्रश्रकुक तचवविकुकि्ा सभाससा कुके्र सतर्र ्े्र जार्री ववियदरश्र पत ्ं .-22 फ/ई.पी.आई./ 93/1478–1541 वविदयांकुक 23.04.1993 कुके्र आधार्र पर्र 16 भरर कुकीुक ्े्रभा पर्र वविदयांकुक 31.08.1989 ्े्र अय्म्रन्ा कुकर्रााा ाा प्रथम्र प्रोरतत भे्रतयम्राय र0 1400-2300 त्वविटिपूरर है। श्री श्र्ला कुको श्रा्यादे्रश्र वविदयांकुक 06.11.1985 ्े्र आच्छावविदत होये्र कुके्र कुकार्रर वविदयांकुक 01.07.1985 ्े्र 6 भरर कुकीुक ्े्रभा कुक् ा 16 भरर कुकीुक ्े्रभा पूरर कुकर्रये्र पर्र प्रथम्र प्रोरतत भे्रतयम्राय र 0-1400-2400 वविदयांकुक 01.07.1991 ्े्र अय्म्रन्ा हो ा इ्कुके्र पूभर यही तदोपर्रान्त 19 भरर कुकीुक ्े्रभा पूरर कुकर्रये्र पर्र वविदयांकुक 01.03.1995 कुको वविदतीा ्म्राम्राय कुके्र रप म्रेवि भे्रतयम्राय र0 1400-2400 म्रेवि एकुक अततिर्रत भे्रतय भृवविद दे्रा हो ी। 4. ्े्रभा पूससतकुका कुके्र अय््ार्र श्री श्र्ला कुको वविदयांकुक 01.07.1986 ्े्र अय्म्रन्ा कुकर्रााा ाा भे्रतयम्राय र0-1600-2660 त्वविटिपूरर है। श्री श्र्ला कुको वविदयांकुक 01.07.1985 कुको अय्म्रन्ा भे्रतयम्राय र0 620-820 कुके्र ्ापे्रक वविदयांकुक 01.01.1986 ्े्र प्यर्रीतकत भे्रतयम्राय र01350-2200 अय्म्रन्ा हो ा। 5. श्री श्र्ला कुको अय्म्रन्ा प्रथम्र प्रोरतत भे्रतयम्राय र0 1400-2400 कुके्र ्ापे्रक वविदयांकुक 01.01.1996 ्े्र दे्रा प्यर्रीतक भे्रतयम्राय र0 4500-7250 कुके्र सथाय पर्र श्रा्यादे्रश्र ्ं्ाा-भे्र0 आ 0-2-1255 ए/द्-2005-45(एम्र) टिी.्ी. वविदयांकुक 20.01.2006 म्रेवि दी ई व्ाभसथा कुके्र अन्त रत भे्रतयम्राय र0 5000-8000 अय्म्रन्ा हो ा। 6. श्रा्यादे्रश्र ्ं्ाा:भे्र0 आ 0/2/627/द्-2007-44/2001- टिी.्ी. वविदयांकुक 21.06.2007 कुके्र अन्त रत वविदयांकुक 01.03.2000 ्े्र प्रथम्र प्रोरतत भे्रतयम्राय 5000-8000 ्े्र अ ाा भे्रतयम्राय 5500-9000 दे्रा हो ा।" 10. The stand in the order impugned as well as the return filed on behalf of the respondents proceed on the basis that the first promotion scale, to which the petitioner was entitled, that is to say, after revision as applicable from time to time, was the Pay Scale of Rs. 5,000-150-8,000/-. The next promotion scale is reckoned on the basis of the assumption that the petitioner was entitled to the post revised first promotion scale of Rs. 5,000-150-8,000/-. No doubt, the next higher scale to the Pay 6 Scale of Rs. 5,000-150-8,000/-, as indicated in Schedule ' ' to the Government Order dated 31.12.1997 and the Government Order dated 08.12.2007, is Rs. 5,500-175-9,000/- at Serial No. 11, followed at Serial No.12 by the Pay Sscale of Rs. 6,500- 200-10,500/-. The moot point is not only that how the petitioner was placed in the wrong pay-scale or the higher pay-scale of Rs. 6,500-200-10,500/- instead of Rs. 5,500-175-9,000/-, but also when was this error committed in point of time; and was it open to correction by the respondents after the petitioner’s retirement. 11. The stand of respondent nos. 1, 3, 4 and 5 in the counter affidavit is that the second promotion Pay Scale of Rs. 6,500- 10,500/- in terms of Paragraph No. 1(4) of the Government Order dated 21.06.2007, upon completion of 24 years of service, was provided to the petitioner inadvertently vide order dated 21.06.2008 and award of the said pay scale is the result of a mistake on the Chief Medical Officer's part, that the Joint Director now seeks to rectify. 12. This Court must notice that a rule of limitation has rightly been introduced under the Government Order dated 16.01.2007, in partial modification of the earlier Government Order dated 13.12.1977, restricting powers of the Pension Approving Authority to scrutinize the emoluments received by a retired Government servant, to a total period of 34 months ante- dating his retirement and no more. It further provides that the Pension Approving Authority shall not have the right to correct the pay fixation of a retired employee during the period of his service beyond 34 months of his retirement. Those errors, the Government Order under reference provides, ought to be rectified while the employee is in service, through general 7 scrutiny/audit done effectively. Paragraph No. 4 of the Government Order dated 16th January, 2007 reads : “4- श्रा्य कुके्र उपर्रोत आदे्रश्र अाी तकुक प्रााभी है पर्रन्त् ्ंदरात श्रा्यादे्रश्र वविदयांकुक 05 वविद्म्बर्र, 2001 म्रेवि वविदाे्र ाे्र ववियदरश्रो कुको दे्रखते्र ह्ाे्र पेविश्रय प्रातधकुकतार अतधकुकार्री वविदयांकुक 01 जयभर्री, 1986 ्े्र प्यर्रीतकत भे्रतयम्रायो म्रे्र भे्रतय ववियधारर्रर तकुक कुकीुक जाँच ाी कुकर्रये्र ा े्र है, जज््े्र पेविश्रय प्रातधकुकार्र-पत वविय रत कुकर्रये्र म्रेवि वविभाम्ब होता है। अत: इ् ्म्बन्ध म्रेवि ्माकुक वविभचार्रोपर्रान्त र्राज्ापाा म्रहोदा दार्रा ववियमयांवविकुकत आदे्रश्र प्रदाय वविकुकाे्र ाे्र है:- (1) उत ्ंदरात श्रा्यादे्रश्र , वविदयांकुक 13 वविद्म्बर्र, 1977 कुके्र उपर्रोत प्राभधाय कुके्र ही अय््ार्र पेविश्रय सभीकुकतार अतधकुकार्री दार्रा पेविश्रय सभीकुकृ तत हे्रत् ्े्रभाववियभृतत् कुकीुक तार्रीख ्े्र 10 म्राह पूभर कुकीुक पिर्रासबधााँ तथा उ्कुके्र 02 भरर पूभर अथारतथ कुक् ा 34 म्रहीये्र कुका िर्रकुकाार ही दे्रखा जााे्र ा। (2) पेविश्रय सभीकुकतार अतधकुकार्री कुका वविकुक्ी कुकम्ररचार्री कुके्र ्े्रभाकुकाा म्रेवि भे्रतय कुके्र ववियधारर्रर म्रेवि त्वविटि कुको ठीकुक कुकर्राये्र कुका दातािभ उपर्रोत (1) म्रेवि ववियधारिर्रत ्ीम्रा ्े्र अतधकुक यहं हो ा। भे्रतय -ववियधारर्रर कुकीुक त्वविटिाो कुको कुकम्ररचार्री कुके्र ्े्रभार्रत र्रहते्र ह्ए ही ्ाम्रान्ा जाँच/ आताटि कुके्र म्राधाम्र ्े्र दूर्र वविकुकाे्र जाये्र कुकीुक व्ाभसथा कुको प्रााभी ढं ्े्र ाा ू वविकुकाा जाा। 5- कुकृ पाा उपा् रताय््ार्र आभशाकुक कुकाारभाही ््ववियतशत कुकर्रये्र तथा कुकर्राये्र कुका कुका कुकष कुकर्रेवि, जज््े्र वविकुक ावविभषा म्रेवि पेविश्रय र्रभीकुकृ त वविकुकाे्र जाये्र म्रेवि वविभाम्ब य हो।"
Decision
13. A plea is taken in the writ petition, inter alia in paragraph No. 40 to the effect that the impugned order is one that reopens all fixation of salary made during the petitioner's service period much beyond two years of his retirement, which is beyond the competence of the Pension Approving Authority. A similar plea about competence of the Pension Approving Authority to reopen the fixation beyond two years is taken in Paragraph No. 12 of the writ petition. In Paragraph No.7 of the counter affidavit filed on behalf of the Joint Director/ Additional Director, Treasury and Pension, Kanpur Division, Kanpur, it is stated that the order placing the petitioner in the Pay Scale of Rs. 6500-10,500/- was passed on 21.06.2008 and he retired on 31.10.2010. Thus, the period of scrutiny of 34 months was available to the Pension Approving Authority to look into the petitioner's fixation. 8 14. In the opinion of this Court, the stand of the respondents would have had some force, if it was just one incorrect scale in which the petitioner was placed vide order dated 21.06.2008. But, the record shows that it is not so. In fact, the order impugned, on its own reasoning, does not show it to be an order that had confined scrutiny to 34 months of the date of the petitioner's retirement, about the emoluments fixed for him. A perusal of the scrutiny about scales that the petitioner has received, that were fixed for him from time to time, recorded in the order impugned and extracted hereinabove, shows that the Joint Director/Additional Director, Treasury and Pension, Kanpur Division, Kanpur has criticized the award of the first promotion scale at the end of 16 years of service w.e.f. 31.08.1989 in the pre-revised scale of Rs. 1,400-2,300/-. This promotion scale was awarded to the petitioner under the Government Order dated 03.06.1989. The Joint Director has said that the petitioner being governed by the Government Order dated 06.11.1985, would be entitled to the first promotion scale upon completion of six years of services w.e.f. 01.07.1985 or 16 years of total services w.e.f. 01.07.1991 in the pay-scale of Rs.1400-2400/-, and not before that date. He would then be entitled to an increment by way of second time scale upon completion of 19 years of services in the pay-scale of Rs. 1,400-2,400/- w.e.f. 01.03.1995. 15. It has also been remarked in the order impugned that the petitioner's service-book shows that he has been awarded the Pay Scale of Rs. 1,600-2,660/- w.e.f. 01.07.1986, which is fallacious. The correct fixation for the petitioner would be that with effect from 01.07.1985, he would be entitled to the equivalent of the pre-revised Pay Scale of Rs. 620-820/-, that is, Rs.1,350-2,200/-. It is then observed that for his first 9 promotion scale of Rs. 1,400-2,400/-, the petitioner would be entitled to the equivalent revised Pay Scale w.e.f. 01.01.1996 i.e. Rs. 4,500-7,275/- and to its further revised equivalent under the Government Order dated 20.01.2006, that is to say, the Pay Scale of Rs. 5,000-8,000/-. It is remarked that the revised pay scale under the subsequent Government Order dated 21.06.2007 w.e.f. 01.03.2000 is Rs. 5,000-8,000/- and the next promotion pay scale is Rs. 5,500-9,000/-, which alone would be payable (a second promotion pay-scale). 16. Thus, a consideration of the reasoning in the impugned order makes it explicit that it is just not a scrutiny done over a period of 34 months antecedent to the petitioner's retirement about the fixation of his pay. It is a wholesome scrutiny, that has been undertaken by the Joint Director/Additional Director, Treasury and Pension, criticizing the first promotion pay scale awarded to the petitioner w.e.f. 31.08.1989, which, according to the Joint Director, should have been awarded in a different scale w.e.f. 01.07.1991. The remarks in the order impugned show that it is a complete re-fixation and re-structuring of the pay scale done for the petitioner, to ultimately conclude that the petitioner is entitled to the Pay Scale of Rs. 5,500-9,000/- and not Rs. 6,500-10,500/-. 17. The scrutiny undertaken by the Pension Approving Authority, the Joint Director/Additional Director, Treasury and Pension, goes way beyond in time than 34 months permitted to him from the date of the petitioner's retirement under the Government Order dated 16.01.2007. The parties are ad idem that the Joint Director/Additional Director, Treasury and Pension, as the Pension Approving Authority, is not entitled to look into errors of pay fixation beyond a period of 34 months. 10 What this Court has noticed is that he has precisely done that. He has reopened the entire pay fixation of the petitioner's salary since the year 1989 at different stages to ultimately say that the petitioner was not entitled to the Pay Scale of Rs. 6,500- 10,500/-. In the considered opinion of this Court, to do so, was beyond the competence of the Joint Director/Additional Director, Treasury and Pension. The petitioner has died waiting for the fixation of his regular pension. The stand of the respondents appears to be both illegal and unreasonable. The order impugned is without jurisdiction, inasmuch as the earlier decisions to fix the petitioner's emoluments, done for him during his long period of service by the respondents, were never doubted or re-determined. 18. It must also be remarked that the petitioner has said that he is not, in any way, responsible for whatever fixation has been done for him from time to time and this fact the respondents do not dispute. Therefore, there is no impediment in law or in equity to the petitioner being granted relief, where the Authority passing the impugned order was forbidden in terms of the Government Order dated 16.01.2007 to scrutinize the pay fixation of the petitioner, beyond a period of 34 months, ante- dating his retirement. 19. For the same reasons, the order passed by the Finance Controller, Family Welfare, U.P., Lucknow is also bad. 20. In the result, this petition succeeds and is allowed. The impugned order dated 24.08.2015 passed by the Joint Director/ Additional Director, Treasury and Pension, Kanpur Division, Kanpur and the order dated 07.12.2012 passed by the Finance Controller, Family Welfare, U.P., Lucknow are hereby quashed. A mandamus is issued to the respondents to fix the pension 11 and other post-retiral benefits for the petitioner on the foot of his last basic pay drawn, being Rs. 26,470/-, and ensure immediate payment of all his post retirement benefits, together with arrears and interest at Bank Rate, after adjusting the sum of money paid towards provisional pension etc. to the petitioner. Since the original petitioner, that is to say, the pensioner has died, and his heir and son, petitioner no.1/1 alone is entitled to receive the benefit of whatever was due, petitioner no. 1/1 would be entitled to receive whatever is payable to him under Rules now, on the basis of the original petitioner's entitlement, as determined hereinabove. 21. This order shall be carried out by the Joint Director/Additional Director, Treasury and Pension, Kanpur Division, Kanpur, the Finance Controller, Family Welfare, U.P., Lucknow and the Chief Medical Officer, Kanpur Nagar within a month of receipt of a copy of this order. 22. The petitioner would be entitled to his costs. 23. Let a copy of this order be communicated to the Joint Director/Additional Director, Treasury and Pension, Kanpur Division, Kanpur, the Finance Controller, Family Welfare, U.P., Lucknow and the Chief Medical Officer, Kanpur Nagar by the Registrar (Compliance). Order Date :- 17.1.2022 Anoop (J.J. Munir, J.)