LPA No. 665 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. LPA No. 665 of 2009 (O&M) Date of Decision 16.03.2011 State of Punjab and others --Appellants Versus Sh. Ajaib Singh Kandhari ---Respondent 2. LPA No. 666 of 2009 (O&M) State of Punjab and others --Appellants Versus Sh. Amrit Singh Chopra ---Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Suvir Sehgal, Addl. A.G., Punjab for the appellants Mr. J.K. Goel, Advocate for the respondents. 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This order shall dispose of LPA Nos. 665 and 666 of 2009 filed by the State of Punjab and its officers under Clause X of the Letters Patent challenging the view taken by the learned Single Judge vide his judgment dated 07.01.2009. The basic dispute raised in these proceedings relates to the extent of revision of pension according to revised pay scale of the post of Examiner, Local Fund Accounts. 2. There is no dispute on facts that Mr. Ajaib Singh LPA No. 665 of 2009 (O&M) -2- Kandhari (petitioner-respondent in LPA No. 665 of 2009) retired on 31.10.1986 from the post of Examiner, Local Fund Accounts, whereas Mr. Amrit Singh Chopra (petitioner- respondent in LPA No. 666 of 2009), retired on 30.09.1985. It has also not been disputed that their pension was fixed at 50% of the basic pay in the pay scale of `. 3700-5000/- plus ` 400 as special pay w.e.f. 01.01.1985. The pay scale of Punjab Government Employees were revised on the recommendations of the 5th Pay Commission w.e.f. 1.1.1996 and for the post of Examiner Local Fund Accounts, the new pay scale were fixed at ` 13,500-16800/- with a further stipulation that initial start would at ` 14300/-. It is obvious that the element of special pay was abolished. The appellant-State fixed the pension without considering the element of initial start of ` 14300/- and calculated the pension @ 50% of the basic pay treating the same in the pay scale of ` 13500-16800/-. 3. For the aforesaid purpose, the appellant-State placed reliance on the instructions dated 25.05.2005 and argued that expression 'minimum pay' of the pay scale has to be regarded as in the pay scale of ` 13500-16800. The learned Single Judge rejecting the aforesaid submission has opined that 50% basic pay cannot be regarded as ` 13500- 16800 and the element of higher pay scale given at the initial start could not be ignored. The view of the learned LPA No. 665 of 2009 (O&M) -3- Single Judge is discernible from the following para: “The dispute in the present writ petition is that the petitioner’s revised pension has been fixed at 50 per cent of the basic pay of Rs.13500/-, whereas he is claiming 50 per cent of the basic pay of Rs.14300/-. This fact has not been disputed. It is also admitted position that even though the revised pay scale was of Rs.13500- 16800/-, but the initial start in the same pay scale was given at Rs.14300/-. Had the petitioner been in service as on the date aforesaid, he would have drawn salary at the basic pay of Rs.14300/- as the initial start. The Punjab Government vide letter dated 25.8.2005, Annexure R-1, issued instructions for payment of the pension/family pension to the Government employees, which reads as under: “In respect of Government employees retired from service between 1.1.1986 and 31.12.1995 the basic pension already consolidated w.e.f. 1.1.1996 in terms of Finance Department letter No.1/7/98-IFP III/8825, dated CWP No.6993 of 2008 – 3- the 21st 1998/ 18th August, 1998 shall not be less than 50% of the minimum of the pay LPA No. 665 of 2009 (O&M) -4- scale introduced w.e.f. 1.1.1996 for the post last held by the pensioner. However, the same may be reduced pro-rata where the pensioner has less than the maximum required service for full pension as per rules in force at the time of retirement and in no case it will be less than Rs.1310/- per month. The upper ceiling of pension consolidated under these orders will be 50% of the highest pay of Punjab as already clarified in above said communication.” Under the aforesaid instructions, retired employees were entitled to 50 per cent of the minimum pay of the scale introduced with effect from 01.01.1996 of the post last held by them. Therefore, the thrust seems to be on the post held by the petitioner. Had the petitioner been in service on the date aforesaid, he would have definitely drawn basic pay of Rs.14300/- as initial pay which is a minimum payable in the pay scale of Rs.13500-16800/- introduced with effect from 01.01.1996. In view of the above discussion, it is clear that the petitioner is entitled to 50 per cent pension of the initial basic pay of Rs.14300/- LPA No. 665 of 2009 (O&M) -5- instead of Rs.13500/-.” 4. Mr. Suvir Sehgal, learned State counsel has vehemently argued that the notification issued by the appellant-State alongwith Punjab Civil Services (Revised Pay), Rules 1998, (for brevity 'the 1998 Rules'), would show that the Examiner Local Fund Accounts were given the revised pay scale at ` 13500-16800 w.e.f. 01.01.1996 and in the colunm attributed to special remarks, it has been recorded that special pay stand abolished. According to learned counsel, there is no element of higher start in the appendix attached with the 1998 Rules. However, he has pointed out that subsequently vide notification dated 04.09.2000, the Rules were amended and the Examiner Local Fund Accounts was granted the pay scale of ` 13500- 16800/- with initial start of ` 14,300/- w.e.f. 1.1.1996. In the column attributed to remarks, again it has been observed that special pay is abolished. Learned State counsel has further submitted that instructions dated 27.12.2005 (R-2), clarifies that the minimum pay in the revised pay introduced w.e.f. 1.1.1996 of the post last held by the pensioner shall mean that pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the corresponding scale as on 1.1.1996 of the scale of pay held by the pensioners at the time of superannuation/ retirement. LPA No. 665 of 2009 (O&M) -6- 5. The submission seems to be that it is the minimum of the scale, which should be made the basis for calculating pension @ 50%, not any other scale like ` 14300/-. In order to support his submission, learned counsel has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of K.S. Krishnaswamy and others v. Union of India and another (2006) 13 SCC 215. According to learned counsel, Hon'ble the Supreme Court was seized of similar instructions issued by the Central Government on 11.05.2001, to which reference has been made in para 13. He has also drawn our attention to the notification appended with Punjab Civil Services (Revised Pay) Rules, 2009 (for brevity 'the 2009 Rules) and its entries at Serial Nos. 27 and 28. These notifications in fact show a general conversion table and according to learned counsel, if the pay scale of ` 13500-16800/- is given then it is virtually granting them the next higher pay scale of ` 14300-18150/-. Learned counsel has maintained that no such interpretation should be adopted, which would cause anomaly in the hierarchy of the pay scale as per conversion table. 6. The argument of the learned State counsel based on the conversion table has failed to impress us because conversion table would be applicable only in respect of those posts, which have been specifically mentioned in various schedules. The post of Examiner, Local Fund Accounts has LPA No. 665 of 2009 (O&M) -7- been specifically mentioned in the schedule and its pay scale have been revised accordingly. Therefore, the argument raised has to be rejected. 7. Mr. J.K. Goel, learned counsel for the writ petitioner-respondent(s) has however, submitted that the judgment of learned Single Judge does not suffer from any legal infirmity warranting interference of this Court because it is based on the legal presumption that had the writ petitioner-respondent(s) were manning the post of Examiner, Local Fund Accounts then they would have drawn the initial start of ` 14300, and therefore, the view taken by the learned Single Judge deserves to be upheld. According to Mr. Goel, the incumbents who were working on the post of Examiner, Local Fund Accounts were being paid salary in the pay scale of ` 14300-16800/- and, therefore, the writ petitioner-respondent(s) cannot be deprived of same pay scale for the purposes of calculation of their pension. 8. Having heard learned counsel for the parties at a considerable length, we are of the view that the judgment passed by the learned Single Judge does not suffer from any legal lacunae and the same deserves to be upheld. It would first be appropriate to extract the relevant part of the table, which have been appended to the 1998 Rules under the heading Local Fund Accounts. The following pay scale is shown by entries No. 8 to 12, which are reproduced LPA No. 665 of 2009 (O&M) -8- hereunder: Local Fund Accounts 8 Examiner Local Fund Accounts 3700-5000 plus spl. Pay of Rs. 400 p.m. 13500-16800 Special pay is abolished 9 Assistant Director (Local Audit) 2200-4000 7220-11660 10 Assistant Controller (Local Audit 2200-4000 7220-11660 11 Section Officer 2000-3500 plus spl. Pay of Rs. 100 p.m. 6400-10640 12 Junior Auditor 1800-3200 5800-9200 9. A perusal of the aforesaid table shows that when the 1998 Rules revised the pay scale of the post of Examiner, Local Fund Accounts to ` 13500-16800/-. It was categorically clarified that special pay was abolished. However, on 04.09.2000, the Rules were amended and the post of Examiner, Local Fund Accounts was given the initial start of ` 14300 in the pay scale of ` 13500-16800/-, as is evident from the following table: “.........(b) For serial Nos. 1, 5, 7, 8 and 11 and the entries relating thereto the following shall be substituted:- SN o Post Existing Scale Revised Scale Remarks 1 Examiner (State Accounts Audit) 3700-5000 plus spl. Pay of Rs. 400 p.m. 13500-16800 (with an initial start of Rs. 14300) Special Pay is abolished 5 Section Officer (SAS Pass) 2000-3500 plus spl. pay Rs. 100 p.m. 7000-8000 7 Treasury Officer 2000-3500 7000-10980 8 Examiner Local Fund Accounts 3700-5000 plus spl. pay of Rs. 400 p.m. 13500-16800 (with initial start of Rs. 14300) Special Pay is abolished. 11 Section Officer (SAS Pass) 2000-3500 plus spl. pay of Rs. 100/- p.m. 7000-10980 LPA No. 665 of 2009 (O&M) -9- 10. The question which arises for consideration is whether the minimum of basic pay scale has to be regarded as a sum of ` 13500 or ` 14300/- in the pay scale of ` 13500- 16800/-. To a query by this Court, Mr. Sehgal, has not been able to deny that the incumbents who were holding the post in 1996 were given the basic pay in the pay scale of ` 13500-16800/- with initial start of ` 14300/-. The instructions dated 27.12.2005 (R-2) do not help in any manner to support the argument that ` 14300/- is not the minimum of basic pay scale of ` 13500-16800/- The only emphasis by the instructions dated 27.12.2005 (R-2) is that the pension of all pensioners irrespective of their retirement should not to be less than 50% of the minimum pay of the scale introduced w.e.f. 1.1.1996 of the post last held by them. The aforementioned expression has been clarified that the pension irrespective of their date of retirement was not to be less than 50% of the minimum of the corresponding scale as on 1.1.1996 of the scale of pay held by the pensioners at the time of superannuation/ retirement. Therefore, to say that a sum of ` 14300/-, is in fact pay as against the pay scale would not be acceptable. Therefore, we are of the considered view that the writ petitioner- respondent(s) are entitled to fixation of their pension in the pay scale of ` 13500-16800 with initial start of ` 14300/- in similar terms as has been given to the incumbents of the LPA No. 665 of 2009 (O&M) -10- post of Examiner, Local Fund Accounts manning the posts. Accordingly, the view of the learned Single Judge is upheld. Let the pension be revised within a period of 3 months from the date of receipt of copy of this order. 11. As a sequel to the above discussion, these appeals fail and the same are dismissed. 12. A photocopy of this order be placed on the file of connected case. (M.M. KUMAR) JUDGE (T.P.S. MANN) March 16, 2011 JUDGE Atul