IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T)No.3717 of 2008. Date of decision: 26.7.2010 Sh.Prahlad Singh Malhotra …. Petitioner Versus State of H.P & ors. .... Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? Yes For the petitioner: Mr.Ranjan Sharma, Advocate. For the respondents: S/Sh.Rajesh Mandhotra and Vikas Rathour, Dy.Advocate Generals for respondents No.1, 2, 4 and 5. Deepak Gupta, J.(Oral) The petitioner was working in the office of the Superintending Engineer, I&PH Circle, Dharamshala. He was working in the Design Wing and in terms of the notification of the Government dated 7.6.1979 the employees of the Design Wing were entitled for special design allowance. The petitioner at that time was working as Assistant Engineer and was granted this allowance. He was promoted as Executive Engineer on 7.8.1984 and continued to get the benefit of this allowance. After rendering services for many years, the 2 petitioner was superannuated from service on 30.4.1995. His struggle began after his retirement. 2. When the first pension payment order in favour of the petitioner was issued on 28.4.1995, it was added in it that the design allowance termed as special pay accounted for in pay fixation is contrary to the clarification issued vide H.P Government letter dated 15.11.1990. Hence the same was to be excluded. It was further directed that overpayment of pay and allowances should be recovered from the petitioner. Thereafter, on 14.7.1995 the aforesaid letter dated 15.11.1990 was withdrawn by the Finance Department of the State. There could not have been any recovery from the petitioner and this amount had to be taken into account while fixing the pension. In fact, the arrears of DCRG amounting to Rs.4950/- were worked out by the respondent No.3 as far back as on 5.12.1995 but according to the petitioner, even this amount has not been paid to him till date. 3. On 7.10.1997 the respondent No.3 also re- worked the gratuity on account of increase in special pay and found that an amount of Rs.58,723/- was payable to the petitioner. Even this amount was not fully paid but Rs.30,000/- were withheld due to court case. 3 4. The third aspect of the matter is that according to the respondents, the petitioner had wrongly been given the benefit of special pay in promotion and, therefore, the same could not be counted for considering his pensionary benefits. The stand of the respondents is based on the letter dated 5.5.1989 (Annexure R/4), relevant portion of which reads as follows:- “I am directed to invite a reference to this letter of even number dated the 23rd March, 1989 vide which the rate of Special Pay attached with the pre-revised scale of the post has been doubled with revised scale of pay w.e.f. 1.1.1986 and to say that some of the departments have enquired whether revised special pay is to be added to basic pay for fixation of pay on promotion after 1.1.1986. The question has been examined and it is clarified that revised special pays attached with posts in revised scales of pay are not in lieu of a separate higher pay scale. Therefore, revised special pay will not be taken into account for fixation of pay on promotion on or after 1.1.1986 on Govt. of India order (13) below FR.22-C will not be attracted in any case. This may please be brought to the notice of all concerned. Yours faithfully, Sd/- Deputy Secretary (Fin.Reg) to the Govt. of H.P” 5. As far as the first aspect of the case is concerned, this Court finds no reason why the amount of 4 Rs.4950/- was not paid to the petitioner when the same had been worked out by the respondents. 6. Secondly, when the arrears of the gratuity on account of increase in special pay were worked out, the respondents withheld Rs.30,000/- on account of court case. No recovery proceedings had ever been initiated against the petitioner. In fact, in 1995 itself, a decision had been taken not to recover any amount. This Court fails to understand why this amount of Rs.30,000/- was withheld. The case of the petitioner itself could not be used as an excuse to withhold pension payable to him. 7. As far as the last point is concerned, a perusal of the letters dated 23.10.1996 and 13.2.1997, which make reference to the letter dated 5.5.1989, clearly shows that the benefit of merging the special pay in the basic pay was only denied to those employees who were promoted after 1.1.1986. Admittedly, the petitioner was promoted in the year 1984 prior to 1.1.1986 and, therefore, he was entitled to have his special pay taken into account while calculating his pensionary benefits. 8. In view of the above discussion, the writ petition is allowed. The respondents are directed to pay the Death-cum-Retirement Gratuity to the petitioner as 5 calculated by them and to recalculate his pensionary benefits by taking into account the special pay payable to him. The entire arrears be positively paid on or before 30th November, 2010 alongwith interest @ 12% per annum from the date when the amount fell due till date of payment of the amount. In case the amount is not deposited on or before the said date, interest shall be paid @ 18% per annum. In this case, penal interest has been awarded since this Court finds that despite the calculation of the arrears by the respondents themselves, they failed to pay the same to the petitioner. A retiree employee should not be treated and harassed in such a manner. In case the State so desires, it can initiate action for recovery of the amount of interest from the erring officials. July 26, 2010 (m) ( Deepak Gupta ) Judge