1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Smt. Parvati Devi v. State of Rajasthan & Ors. D.B.CIVIL SPECIAL APPEAL (WRIT) NO.949/2007 against the order dated 31.5.2007 passed by learned Single Judge in SBCivil Writ Petition No.1484/2007. Date of Judgment :: 7th August, 2009 P R E S E N T HON'BLE MR.JUSTICE N.P.GUPTA HON'BLE MR.JUSTICE GOVIND MATHUR Mr. SP Sharma, for the appellant. Mr. KK Bissa, for the respondents. .... BY THE COURT : (PER HON'BLE GOVIND MATHUR,J.) To question validity, correctness and propriety of judgment dated 31.5.2007 passed by learned Single Judge, this appeal is preferred. By the judgment aforesaid learned Single Judge accepted the petition for writ giving challenge to the judgment dated 25.7.2006, passed by Rajasthan Civil Services Appellate Tribunal in Appeal No.H26/2001 preferred by Late Shri Dhanna Ram, husband of the present appellant. 2 In brief, facts of the case are that Shri Dhanna Ram, husband of the present appellant stood retired from services of the State on 9.12.1973 while holding the post of Head Constable. At the time of retirement the emoluments received by Shri Dhanna Ram were as follows:- Basic Pay : Rs.360/- Special Pay : Rs. 30/- Dearness Allowance : Rs.146/- Adhoc Assistance : Rs. 42/- Additional Dearness Allowance : Rs. 20/- __________________ Total : Rs.598/- ================== Under the Pension Payment Order No.2830(R) (Com), pension of Shri Dhanna Ram was determined by treating Rs.500/- as his emoluments. The Government of Rajasthan vide its memorandum dated 11.6.1998 revised pension/family pension for all pre 1.9.1988 service pensioners/family pensioners. As per memorandum aforesaid “the pension of all the pre-1988 retirees may be updated by notional fixation of their pay as on 1.9.1988 by adopting the same formula as for the serving employees and thereafter for the purpose of consolidation of their pension/family pension as on 1.9.1996, they may be treated like those who have retired on or after 3 1.9.1988. In such cases pay shall be fixed on notional basis in the revised scales of pay introduced from time to time for the post held by the pensioner at the time of retirement or on the date of death of Government employee. Pay fixed on notional basis on the first occasion shall be treated as 'pay' for the purpose of emoluments for re-fixation of pay in the revised scale of pay on the second and subsequent occasions, if any, and other elements like DA/Adhoc DA/Additional DA, IR etc. based on this notional pay shall be taken into account, while fixing of pay on notional basis on each occasion. The pay fixation formulae approved by the Government and other relevant instructions on the subject in force at the relevant time shall be strictly followed. However, the benefit of any notional increments or advance increments based on length of service or selection grades admissible in terms of the rules and instructions applicable at the relevant time shall not be extended in any case of refixation of pay on notional basis. Special pay or any other allowance which was treated as part of emoluments for calculation of pension as per rules applicable at the time of retirement/death of the Government servant, shall be treated as part of notional emoluments alongwith notional pay determined as above. On the basis of notional emoluments as on 1.9.1988, pension shall be calculated as per the pension formula in force at that time”. 4 In pursuant to the office memorandum dated 11.6.1998 a revised pension payment order was issued on 23.8.1999 wherein pre fixation last pay of Shri Dhanna Ram was treated as Rs.390/-, hence, he preferred an appeal before Rajasthan Civil Services Appellate Tribunal. During pendency of appeal before the Tribunal Shri Dhanna Ram died and, therefore, his cause was prosecuted by his wife, the present appellant. Before the Tribunal, stand of the State Government was that while determining pension of Shri Dhanna Ram the dearness pay i.e. of Rs.110/- was included in his last basic pay, however, learned Tribunal on examination of relevant pension payment order found that the emoluments of Shri Dhanna Ram were treated as Rs.390/- by taking into consideration only the special pay of Rs.30/- with basic pay of Rs.360/- and the dearness pay of Rs.110/- was not taken into consideration. Accordingly, the appeal was allowed with a direction to issue a revised Pension Pay Order by including dearness pay in emoluments of Shri Dhanna Ram. To challenge the judgment passed by Tribunal the State Government preferred a petition for writ before this Court and that came to be accepted vide judgment impugned dated 31.5.2007. Learned Single Judge while relying upon a chart submitted by learned 5 Deputy Government Advocate reached at the conclusion that the dearness pay was included while determining pension of Late Shri Dhanna Ram. Shri SP Sharma, learned counsel for the appellant, while giving challenge to the order passed by learned Single Judge, has pointed out from the pension payment order dated 23.8.1999 (Anx.4) that pension of Late Shri Dhanna Ram was determined by treating his last pay as Rs.390/- without including dearness pay. From perusal of the pension payment order dated 23.8.1999 it is apparent that pre fixation last pay of Late Shri Dhanna Ram was treated as Rs.390/- and corresponding notional fixation on 1.9.1988 was made at Rs.1780/-. The pension payment order dated 23.8.1999 nowhere mentions regarding inclusion of dearness pay with pre fixation last pay. Shri KK Bissa, learned counsel for the respondents also failed to satisfy us about the inclusion of a sum of Rs.110/- (dearness pay) with the sum of Rs.390/-, on basis of which corresponding fixation was made at Rs.1780/- as on 1.9.1988. The stand of the respondents that the dearness pay was included in the pre fixation last pay, therefore, is factually wrong. The respondent State should have included a sum of Rs.110/- i.e. the dearness pay while settling pre fixation last pay of Late Shri Dhanna Ram. Learned Single Judge has relied 6 upon the chart said to be submitted by the respondents, however, in the pension payment order dated 23.8.1999 the dearness pay has not been included. As such the finding given by the learned Single Judge is contrary to the fact available on record. Hence, this appeal deserves acceptance and, therefore, the same is allowed. The judgment dated 31.5.2007, passed by learned Single Judge is hereby quashed and the writ petition preferred by the State Government giving challenge to the judgment dated 25.7.2006 passed by Rajasthan Civil Services Appellate Tribunal in Appeal No.H26/2001 is dismissed. The judgment passed by learned Rajasthan Civil Services Appellate Tribunal dated 25.7.2006 stands restored. Cost is made easy. ( GOVIND MATHUR ),J. ( N.P.GUPTA ),J. kkm/ps.