1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4915/2007 R.N. Bhatnagar Vs. State & Anr. Date of order : 26/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rakesh Kumar Sharma for the petitioner. None present for the respondents. ****** This petition has been filed by the petitioner with the prayer that the respondents be directed to finalise his pension case and grant him final pension including the benefit of earned increments and pay protection in respect of period of working on ad hoc temporary basis on the post of Executive Engineer from 17.9.1979 till he was regularly promoted on such post on 26.9.1986. Factual matrix of the case is that petitioner was appointed with the respondents on 30.3.1973. He was promoted on the post of Executive Engineer in his own pay scale on 17.9.1979 and thereafter he was promoted on the post of Executive Engineer on urgent temporary basis by order dated 19.9.1981. At the time of this, latter his pay was fixed in the pay scale applicable to the post of Executive Engineer wherein his pay of the earlier period from 17.9.1979 till urgent temporary promotion on the post of Executive Engineer on 19.9.1981 was protected. Subsequently, petitioner was 2 promoted on recommendation on the DPC on the post of Executive Engineer on 26.9.1986. The respondents later on treated the petitioner to have been promoted on the post of Executive Engineer in view of Rule 28 of Rajasthan Agriculture Service Rules, 1960 (for short-Rule of 1960)with effect from 17.9.1979 and accordingly is fixed in accordance with Rule 26(1) and Rule 31 of the Rajasthan Service Rules. Petitioner was thereafter promoted on the post of Joint Director and ultimately retired from such post on attaining the age of superannuation on 28.2.2004. The last pay certificate of the petitioner is on record at Annexure-5, according to which the basic pay drawn by the petitioner at the time of retirement is indicated to be Rs.15,000/-. Contention of learned counsel for the petitioner is that respondents have not finalise the pension case of the petitioner and not paid to him other retiral dues including gratuity, commutation, leave encashment etc., however, he has been merely granted provisional pension. This was done because according to respondents, the pay of the petitioner could not have been fixed on the post of Executive Engineer with effect from 17.9.1979 by recourse to Rule 28 of the Rules of 1960 read with Rule 26 and 31 of the Rajasthan Service Rules. Shri Rakesh Kumar Sharma, learned counsel for the petitioner has invited 3 attention of the Court towards the order dated 4.8.2005 passed by the Government in the case of one similarly situated Executive Engineer Shri Shyam Lal Mathur. In his case, when the similar action was sought to be taken, he represented the Government and Government held that the benefit of pay scale of the Executive Engineer to Shyam Lal Mathur granted on the basis of his urgent temporary basis does not need change and his retiral benefits computed on the basis of the pay that he was drawing at the time of retirement having regard to his pay fixation as Executive Engineer on 19.9.1981. Learned counsel invited attention of the Court towards order dated 28.12.1990 (Annexure-2) which order was passed by the Deputy Commissioner-cum-Additional Collector in concurrence with the Department of Personnel. There is reference of the Government of Rajasthan dated 2.5.1988 to say that the petitioner has been treated as Executive Engineer in view of Rule 28 of the Rajasthan Agriculture Service Rules, 1960 with effect from 17.9.1979. Learned counsel submitted that similar view has been taken by the government in respect of another similarly situated person namely Shyam Lal Mathur, therefore, the petitioner cannot be discriminated. In this case, despite service of notice on the respondents long ago in August, 2007, neither any reply to the writ petition has 4 been filed, nor anyone has appeared to contest the matter. On consideration of the submissions made by the learned counsel for the petitioner and on perusal of the documents especially Annexure-2 dated 28.12.1990 and Annexure-7 dated 4.8.2005, I find that the case of the petitioner is exactly similar to that of one Shyam Lal Mathur who too had retired as Joint Director like the petitioner. In his case too, he was promoted on urgent temporary basis with effect from 19.9.1981, the date on which the petitioner also was promoted on urgent temporary basis. The only difference is that petitioner was treated as promoted Executive Engineer in view of Rule 28 of the Rules of 1960 with effect from 17.9.1979, but that was done under the approval of the government in its Department of Agriculture and with the concurrence of the Department of Personnel as is evident from the order dated 28.12.1990. Petitioner having availed the benefit of that order and continuously worked for a long period of 14 years till he retired on 28.2.2004, there was no justification for the respondents to reverse that position at the time of his retirement. I find no justification for not finalising the pension case of the petitioner. In the result, this writ petition is allowed. The respondents are directed to act according to order Annexure-2 dated 28.12.1990 and Annexure-7 dated 4.8.2005 in 5 the case of petitioner as well and finalise his pension case on the basis of pay last drawn by him on the post of Joint Director as indicated in last pay certificate Annexure-5 and compute all his retiral benefits including gratuity, commutation, leave encashment etc. and pay the arrears thereof together with interest @ 9% per annum as per Rule 89 of the Rajasthan Civil Service (Pension) Rules, 1996 for the delay in making such payment, excluding the initial period of 60 days as envisaged in that Rule. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/-