1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7320 OF 2005 Vinayakrao S/o Devidasrao Deshmukh, Age : 74 Years, Occu. : Retired Head Master, R/o Adarsh Nagar, Beed, Taluka and District Beed. .. .. PETITIONER Versus 1. The State of Maharashtra. 2. Chief Executive Officer, Zilla Parishad, Beed. 3. Deputy Director of Education, Aurangabad Division, Aurangabad. 4. The Education Officer, (Primary), Zilla Parishad, Beed. 5. Chief Accountant and Finance Officer, Zilla Parishad, Beed. 6. Accountant General, (A & E) - II, Maharashtra Nagpur. 7. Block Development Officer, Panchayat Samiti, Patoda, Tq. Patoda, Dist. Beed. .. .. RESPONDENTS Shri V. M. Kendre, Advocate for the Petitioner. Shri S. K. Kadam, A.G.P. for the Respondent Nos. 1 and 5. Shri H. K. Mundhe, Advocate for the Respondent Nos. 2 to 4. 2 Petition dismissed against the Respondent No. 3 and 7 vide order dated 06.03.2006. CORAM : B. R. GAVAI, AND N. D. DESHPANDE, JJ. DATE : 15TH SEPTEMBER, 2009. ORAL JUDGMENT [Per B. R. Gavai, J. ] : 01. The petitioner has filed this petition for writ of mandamus directing the respondents to finalize the pension of the petitioner on the basis of pay fixed on 21st September, 1989. The petitioner has also prayed for quashing and setting aside revised fixation of pay made by the respondent No. 2 and 4 on 23th March, 1993. 02. The facts in brief giving rise to the present petition are as under : The petitioner was initially appointed as primary teacher in the State of Hyderabad on 16th July, 1949. On the reorganization of the State, the services of the petitioner came to be transfered to the establishment of State of Maharashtra. The services of the petitioner were allotted to the Zilla Parishad, Beed, in the year 1962. The petitioner retired from his services on 30.09.1989. It appears that, in accordance with the Rule 121 of the Maharashtra Civil Services (Pension) Rules 1982, hereinafter referred as the said "Rules" the pay fixation was done by the respondent No. 4 on 21st September, 1989. However, it appears that, subsequently by communication dated 23rd March, 1993, the pay fixation of the petitioner has been revised 3 and that the petitioner was brought on lower pay scale. Being aggrieved thereby the petitioner has approached to this Court. This Court vide order dated 19th January, 2006 granted Rule in the matter. 03. Shri Kendre learned counsel appearing on behalf of petitioner submits that, in view of the provisions of Section 121(1)(b)(iii) once a calculation of pensionable pay was done on the basis of correctness of the pay for the period of 24 months preceding the date of retirement, it was not permissible for the respondent authority to have again revised the pay for the purposes of grant of pension. The learned counsel for the petitioner relies on the judgment of Division Bench of this Court in the case of A. S. Bakshi (Sq. Ldr.) (Retd.) vs. Chief Controller Defence Accounts (Pension) reported in 2009(2) Mh. L. J. 943 and the judgment of the Division Bench of this Court in the case of Union of India and others Vs. Jangam Anant Amrutling reported in 2006(5) Mh. L. J. 463. 03. Shri Mundhe, the learned counsel appearing on behalf of respondent No. 2 Zilla Parishad on the contrary submits that, the earlier pay fixation was done erroneously, wherein the pay fixed was at the higher rate than one to which the petitioner was entitled. He submits that revised pay fixation has been done in accordance with the directions issued by the Accountant General. 04. Shri Mundhe learned counsel appearing on behalf of respondent Nos. 2 to 4 further submits that in any event the present 4 petition is hit by the principles of res-judicata, in view of the fact that similar claim was made by the petitioner in the earlier round of litigation in Writ Petition No. 3250/1991 and same has been rejected by this Court. He submits that, the petitioner cannot be permitted to reopen the issue which is foreclosed in the earlier proceeding. 05. The Rule 121 of the said 'Rules' reads thus : 121. Stages for the completion of pension papers.- (1) The head of Office shall divide the period of preparatory work of two years referred to in Rule 120 in the following three stages :- (a) First Stage --Verification of service.--(i) The head of Office shall go through the service book of the Government servant and satisfy himself as to the whether the certifies of verification for the entire service are recorded therein. (ii) In respect of the unverified portion or portions of service, he shall arrange to verify the portion or portions of such service, as the case may be, with reference to pay bills, acquittance rolls or other relevant records and record the necessary certificates in the service-book. (iii) If the service for any period is not capable of being verified in the manner specified in sub-clause (i) and sub-clause (ii) that period of service having been rendered by the Government servant in another Office or Department, a reference shall be made to the Head of Office, in which the Government is shown to have served during that period for the purpose of verification. (iv) If any portion of service rendered by a 5 Government servant is not capable of being verified in the manner specified in sub-clause (i), or sub-clause (ii), or sub-clause (iii), the Government servant shall be asked to file a written statement on plain paper stating that he had in fact rendered that period of service and shall, at the foot of the statement, make and subscribe to a declaration as to the truth of that statement, and shall, in support of such declaration, produce all documentary evidence and furnish all information which is in his power to produce or furnish. (v) The Head of Office shall, after taking into consideration the facts in the written statement and the evidence produce and the information furnished by that Government servant in support of the said period of service, admit that portion of service as having been rendered for the purpose of calculating the pension of that Government servant. (b) Second Stage--Making good omission in the service-book--(i) The head of Office while scrutinizing the certificates of verification of service, shall also identify if there are any other omissions, imperfections or deficiencies which have a direct bearing on the determination of "pensionable pay' and the service qualifying for pension. (ii) Every effort shall be made to complete the verification of service, as in clause (a) and to make good omissions, imperfections or deficiencies referred to in sub-clause (i) of this clause. Any omissions, imperfections or deficiencies including the portion of service shown as unverified in the service-book which it has not been possible to verify in accordance with the procedure laid down in clause (a) shall be ignored and service qualifying for pension shall be determined on the basis of the entries in the service-book. (iii) Calculation of Pensionable Pay.--For the purpose of calculation of pensionable pay, the Head of 6 Office shall verify from the service-book the correctness of the pay drawn or to be drawn during the last ten months of service. In order to ensure that the pay during the last ten months of service. In order to ensure, that the pay during the last ten months or service has been correctly shown in the service-book, the Head of Office may verify the correctness of pay for the period of twenty-four months only preceding the date of retirement of a Government servant, and not for any period prior to that date. (c) Third Stage--Obtaining Form 5 by the Head of Office.--Eight months prior to the date of retirement of the Government servant, the Head of Office shall obtain Form 5, from the Government servant, duly completed. (2) Action under clauses (a), (b) and (c) of sub-rule (1), shall be completed eight months prior to the date of retirement of the Government servant. It could thus be seen that, complete procedure is prescribed under the said 'Rules' while fixing the pay scale for calculating pensionable pay of a employee prior to his retirement. Sub Rule 3 of Rule 121 of the said 'Rules' would reveal that, the said procedure has to be completed prior to period of six months before the date of retirement of Government servant. We may note that, there is no dispute between the parties regarding applicability of said 'Rules' to the case of present petitioner. It can be seen from the Rule 121 Sub Rule (1) (a)(i) requires the Head of Office to go through the service book of Government servant to satisfy itself, as to whether certifies of verification for the entire service is recorded therein. It can further be seen from Sub Rule (1)(a)(iv) that, in case there is difficulty in verifying the question of service rendered by the Government 7 servant, a written statement is required to be sought from the concerned Government servant along with the documentary evidence and submitting information in support of such claim. Said Sub Rule 1(a)(v) of Rule 121 of the said 'Rules' requires that Head of Office after taking into consideration the facts in the written statement and the evidence produced and the information furnished by the Government servant in support of the said period of service, admit that portion of service as having been rendered for the purpose of calculating the pension. Sub Rule (1)(b)(i) of Rule 121 of the said 'Rules' requires the Head of Office to scrutinize the certificate of verification of service as identifying if there are any other omissions, imperfections or deficiencies which have a direct bearing on the determination of "pensionable pay" and the service qualifying for pension. Sub Rule (1)(b)(ii) of Rule 121 of the said 'Rules' requires that, every effort shall be made to complete the verification of service and to make good omissions, imperfections or deficiencies referred to in sub-clause (i). It further provides any omissions, imperfections or deficiencies which could not be verified in accordance with the procedure laid down in Clause (a) shall be ignored and the service qualifying for pension shall be determined on the basis of the entires in the service book. Clause (iii) of sub clause (b) of Sub Rule (1) requires, the calculation of pensionable pay to be done by the Head of Office after verifying his service book, the correctness of the pay drawn or to be drawn, during the last 10 months of service. It is further provided that, in order to ensure that the pay during the last 10 months of service has been correctly shown in the service book to the Head of Office, by verifying the 8 correctness of pay for the period of 24 months only preceding date of retirement of Government servant and not for any period prior to that date. 06. It can be thus seen that, Rule 121 provides a complete code for determining the pensionable pay of a Government employee. It is not in dispute that, the pay fixation which was done by the respondent No. 4 was done in accordance with the procedure prescribed under the said 'Rules'. As discussed hereinabove, the duty is enjoined upon the Head of Office to verify the correctness of the entry in the service book. Duty is also cast upon Head of Office to verify omissions, imperfections or deficiencies. It can thus be seen that, the pensionable pay which is required to be fixed as per Rule 121 of the said 'Rules' is fixed after great deal of scrutiny. It can further be seen that, while determining the pensionable pay and while examining the correctness of the pay drawn in last 10 months, authorities are only empowered to take into consideration the pay for the period of 24 months preceding the date of retirement. 07. The ground raised by the respondent/Zilla Parishad that, the subsequent pay fixation is done in accordance with the directions of the Accountant General is also without substance. The respondent/Zilla Parishad failed to place on record any material to show that, the subsequent pay fixation is done as per the directions of the respondent No. 6/Accountant General. It is to be noted that, though the respondent No. 6 is duly served with notice of rule, no written say is filed on behalf of said respondent. 9 08. In so far as the contention of the respondents that, the petitioner has approached this Court for same relief which was denied to him in the earlier round of litigation i. e. Writ Petition No. 3250/1991 is concerned, same is also without substance. In the said petition, the petitioner had challenged a letter issued by the State Government dated 04th May, 1991, vide which the petitioner had sought for higher pay scale. It appears from the record that, after the pay fixation was done, the petitioner had made a representation that, since he was qualified physical instructor, he was entitled to a pay scale of Rs. 81-130 with effect from 01st November, 1959. The claim of the petitioner was on the basis of similar pay scale given to one Shri D. L. Joshi. The claim of the petitioner in the said petition was resisted by the respondent/Zilla Parishad by filing an affidavit. It was specifically stated in the said affidavit that, the petitioner though, was qualified as physical instructor, has never worked as physical instruction, as such he was not entitled for higher pay scale of a physical instructor. Taking into consideration this aspect of the matter, the Division Bench of this Court vide order dated 09th August, 2002 in Writ Petition No. 3250/1991 found that, though the petitioner had acquired the qualification of physical instructor, he was not at any time appointed as physical instructor. He all along continued as assistant teacher till the date of retirement, though he acquired the qualification of B. A. B. P. Ed. It has further been observed that, when the petitioner did not work as physical instructor and was not given such a post by competent authority on his application or there being vacancy available to such a post, his claim cannot be entertained. In that view of the matter, said petition 10 No. 3250/1991 came to be rejected. It is thus clear that, the claim in the said petition was only restricted to grant of higher pay scale, since the petitioner had acquired necessary qualification to work as physical instructor. The claim was negatived on the ground that, the petitioner had never applied for the same post and had never worked as such a physical instructor. It is to be noted that, the challenge in the said petition by the petitioner was to the letter addressed by the State Government dated 04th May, 1991, thereby rejecting the representation of the petitioner for grant of pay scale to him of Rs. 81-130. It is pertinent to note that, if the petitioner had accepted the said post of physical instructor, he would not have been entitled for his further promotion. In that view of the matter, this Court refused to entertain the petition challenging the Government letter dated 04th May, 1991. 09. It can thus clearly be seen that, the issue regarding revision of the pay scale as done by the respondent No. 4 vide order dated 23rd March, 1993 was never a issue before this Court in Writ Petition No. 3250/1991. It is to be noted that, the said petition was filed in the year 1991. The replies were filed to the said petition in the month of February 1992 by the respondents therein, whereas, the impugned order is passed on 23rd March, 1993. It can thus clearly seen that, order passed on 23rd March, 1993 can never have been subject matter of the petition which was filed in the year 1991. In that view of the matter, we are not inclined to accept the contention of the learned counsel appearing on behalf of the respondent/Zilla Parishad that, the issue which is raised in the present petition has already 11 been adjudicated in the earlier petition. 10. It can thus clearly be seen that, pay fixation which was done on 21st September, 1989 was done in accordance with the procedure prescribed under Rule 121 of the said 'Rules'. It can clearly be seen from the said provisions that, said provisions are complete code in itself. If any omission, imperfection or deficiencies are found in the case of employee, a verification is required to be done by the Head of Office while calculating pensionable pay and explanation is also required to be sought from the employee concerned before determination. It can further be seen from the record itself that, the petitioner was granted higher pay scale by the order of Chief Executive Officer, Zilla Parishad, Beed dated 26th October, 1994 with effect from 01st January, 1986. In these circumstances, it can safely be presumed that, the pensionable pay as was determined vide order dated 21st September, 1989 was determined after following the procedure prescribed under Rule 121 of the said 'Rules'. 11. As we have already pointed out hereinabove, nothing has been placed on record to show that subsequent pay scale was revised in accordance with the directions of the respondent No. 6/Accountant General. In any event, it can be seen that, there is nothing on record to show that, the earlier pay fixation was done on the basis of some fraud played by the petitioner. On the contrary, it is the requirement under Rule that, the pay fixation has to be done upon complete verification by the Head of Office. 12 12. We find that, action of the respondent No. 4 would also suffer on account of violation of principles of natural justice. If the pay which was already fixed was to be reduced, it could not have been done without following principles of natural justice. Admittedly, prior to fixation of the revised pay scale neither the petitioner was given any notice nor an opportunity of being heard. In any event, it can be seen that, as already discussed hereinabove, the Chief Executive Officer of the Zilla Parishad, Beed vide order dated 26th October, 1994, had granted higher pay scale to the petitioner in the scale of Rs. 1640-2920 with effect from 01.01.1986. We are, therefore, of the considered view that, the act on the part of the respondent No. 4 in revising the pay scale of the petitioner is illegal. At the cost of repetition, we may point out that, the respondents are not in a position to point out anything to show that, the earlier fixation was done vide order dated 21st September, 1989, was done on account of some fraud played by the petitioner himself. 13. In that view of the matter, the impugned fixation as done by the order dated 23rd March, 1993 is not sustainable in law. 14. Rule is, therefore, made absolute in terms of prayer clause "B" and "C", with no order as to costs. [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/Sept. 09