D.B. SPECIAL APPEAL UNDER RULE 134 OF THE RAJASTHAN HIGH COURT RULES AGAINST ORDER DATED 13TH SEPT, 2012 PASSED BY HON’BLE JUSTICE SHRI M.N. BHANDARI IN S.B. CIVIL WRIT PETITION NO. 1454/2009 PARTLY ALLOWING THE WRIT PETITION, THE PETITIONER HAS BEEN NOW DECLARED ENTITLED FOR REVISED PAY SCALE AS PER NOTIFICATION DATED 18-07-1996 WITH CONSEQUENTIAL BENEFITS. Click on 'Read more' below to read the full text of Division Bench Judgment.
IN THE HIGH COURT OF JUDICATIURE FOR RAJASTHAN
BENCH AT JAIPUR
ORDER
IN
D.B. Special Appeal (Writ) No. 1492/2012
with
Stay Application No. 15341/2012
Life Insurance Corporation of Indian Vs.
Mahesh Chand Jain
Date of order ::: 17-12-2012
Present
Hon’ble Mr. Justice Mohammad Rafiq
Hon’ble Dr. Justice Mrs. Meena V. Gomber
Shri O.P. Gandhi for
Shri Rajendra Arora, Counsel for appellant
By the Court :-
This appeal has been preferred by Life Insurance Corporation of India (for short, ‘the LIC’) against judgment of learned Single Judge dated 13-092012 in Writ Petition No. 1454/2009 filed by Mahesh Chandra Jain (respondent herein). In the Writ Petition, he firstly prayed for issuance of writ of mandamus to give benefit of Rule 27 of the L.I.C. of India (Employees) Pension Rules, 1995 (for short, ‘the Rules of 1995’) to the extent it falls short of 33 years of qualifying service and determine the pension on full basic pay as come to be fixed under the revised pay scales; secondly, he prayed that respondents be directed to fix his basic pay in revised pay scale of Zonal Manager at Rs. 11,750/- as effective from 01.08.1992 and after giving benefit of Rule 27 of the Rules of 1995, pay pension at 50% of Rs. 11,750/- with commensurate dearness relief as payable on such amount from time to time. While first prayer of Mahesh Chand Jain was rejected by learned Single Judge, his second prayer was allowed and thus the writ petition was partly allowed. It is against that direction that present special appeal has been preferred by the LIC.
Learned counsel for appellant has argued that respondent was not entitled to benefit of revised pay scale in term of proviso to Rule 2 of the Life Insurance Corporation of India Class I officers (Revision of Terms and Conditions of Service) Amendment Rules, 1996, (hereinafter shall be referred to ‘the Rules of 1996’). No direction can be issued for payment of arrears to him for the period from 01.08.1992 to 31.03.1993 because the respondent already stood retired from service on 31.03.1993 and therefore he could not be held entitled to arrears of pay revision prior to that date Learned counsel referred to notification dated 18.07.1996 issued by the Chairman of the LIC of India. The Chairman issued such direction on 19.07.1996 providing for the method of fixation of scale of pay and other matters connected therewith or incidental thereto. He argued that effective dates for revision of different components of wage were fixed as per aforementioned notification of Government of India. It was contended that since Mahesh Chand Jain retired prior to issuance of notification dated 18.07.1996, he could not be granted benefit of pay revision particularly the basic pay and dearness allowance with was given with effect from 01-04-1993, whereas the respondent retired on 31.01.1993. Since he was not granted benefit of revision of pay, there does no arise any question for fixing him in revised pay scale as pension has to be calculated on the basis of actually drawn pay during least ten months of service. Learned counsel argued that the Chairman has power under Rule 51 of the LIC of India (Staff) Regulations, 1960 to issue instructions with regard to adoption of method of fixation of scale of pay in new scale of pay, according to which his components of basic pay and dearness allowance was to be taken with effect from 01.04.1993, whereas HRA, CCA and Hill Allowance with effect from 01.08.1993, Gratuity, Conveyance Allowance with effect from 01.08.1994 and Computer Increment with effect from 01.11.1993. In terms of Rule 3 of the said Rules, the employees, who were in service of the corporation on or after 01.01.1986 but had retired before 01.11.1993, after exercise of an option in writing, were allowed pension with effect from 01.11.1993 subject to refund of corporation’s contribution to Provident Fund with accrued interest with a further simple interest, In terms of Rule 35 of the Rules of 1995, basic pension shall be calculated at 50% of the average emoluments of last ten months. Pension was therefore to be calculated on actually drawn pay and not on notional pay.
We have given our anxious consideration to submissions made by learned counsel for appellant and perused impugned judgment.
In so far as first prayer in writ petition is concerned, learned Single Judge in impugned judgment has referred to and reproduced clause 2 of said notification dated 18.07.1996, which extended benefit of revised pay scale to employees with effect from 01.08.1992. We reproduce that part of Clause 2 of the Notification, which reads as under :-
“Save as otherwise provided hereinafter the provisions of these rules shall be deemed to have come into force on the 01st day of August, 1992:
Provided that where any Class I officer gives a notice in writing to the corporation, within thirty days of the publication of these rules in the official Gazette, expressing his option to be governed by the provisions of any of these rules from a date not earlier than the date on which the said rule comes into force, then the Corporation may by order/permit such officer to be governed by the said rule with effect from the said date:
Provided further that no such option may be exercised by a Class I officer in respect of rule 9A of these rules:
Provided also that no arrears for the period prior to the date so chosen shall be payable to such officer.”
Aforesaid clause of notification dated 18-07-1996 clearly indicates that the provisions of said Rules came into effect from 01.08.1992, the date on which respondent Mahesh Chand Jain was very much in service. However, an option given to Class I officers to give a notice in writing within thirty days of the publication of the said Rules expressing there willingness to be governed by the provisions of any clause of these rules from the date not earlier than the date on which the said rule comes into force. This means that a given officer could opt to be governed by the benefit of pay scales from the date later than 01st August, 1992. If what the appellant is contending is accepted, this would mean that even a Class I officer, who could not otherwise exercise the option because he stood retired when the said notification was issued, then he would not get benefit of revision of pay with effect from 01.08.1992 on which date the revised pay scale rules came into force, even though he was physically in service on that day. There is no exception made in the Rules that such benefit would not be admissible to those Class I officers who were actually in service in service between the date the aforesaid Rules came into force i.e. 01.08.1992 and the date of issuance of notification dated 18.07.1996. Their retirement in between was a fortuitous circumstance. Non-grant of such similar benefit to him, would be wholly discriminatory because his co-employees who have yet not retired and continued in service, shall be granted benefit of revision of pay even for the period such retired employees like the respondent, were actually working with them.
Contention that pension has to be computed as per Rule 35 of the Rules of 1995 on the basis of last pay actually drawn during the period of ten months preceding the date of retirement and not on the basis of notional pay, is noted to be rejected only because once adoption of revision of pay scale rules is made with effect from 01.08.1992, the respondent became entitled to benefit of revised pay scale. It would then be taken to be his actual pay and not the notional pay because he was actually working during the period and all his co-employees were also paid the enhanced revised pay. Action of the appellant LIC in refusing such benefit to the respondent only because he has retired between the aforesaid two dates, indeed was holly arbitrary and discriminatory. Rule 35 of the Rules of 1995 does not create any bar for treating the revised pay pursuant to enforcement of revision of pay scale rules from anterior date if the date on which such rules are made effective, the employee was actually in service. The Supreme Court in Union of India and Another Vs. SPS Vains (Retd.) and Others – (2008) 9 SCC 125, in identical circumstances held the action of the Union of India in treating such officers who retired as Major General Prior to 01.01.1996 and those who retired after 01.01.1996 dissimilarly by making them payment of different amount of pension arbitrary, unreasonable and discriminatory, and held that it would otherwise cause violence to the provisions of Article 14 of the Constitution of India. IN our considered view, if what is contended by the appellant is upheld, that would amount to treating equals unequally and would be discriminatory being violative of Article 14 of the Constitution. We do not therefore find any infirmity in the judgment of learned Single Judge.
The appeal being devoid of merit is hereby dismissed. Consequent upon dismissal of special appeal, stay application, filed therewith, does not survive and same is also dismissed.
(Dr. Meena V. Gomber)J. (Mohammad Rajiq) J.