IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 4238 of 2000 Between: T.D Harishchandra s/o T.Devadas Compulsorily Retired (Railways ) R/O Plot No.51, Railway Colony, Indrapuri, West Maredpally, Secunderabad. 26 ..... PETITIONER AND 1 General Manager(personal) South Central Railway , Railway Nilayam , Secunderabad. 2 Divisional Signal & Telecom Engineer South Central Railway, Secunderabad. 3 Senior Divisional Signal & Talecom Engineer South Central Railway, Secunderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ order or direction more particularly one in nature of writ of cartoirari: a) to call for all the revelant and connected records relating to the judgement rendered on 13-7-99 on OA No.1449/97 on th file of the Hon'ble Central Aadministrative Tribunal ,Hyderabad Bench aand set aside the same holding it as unsustainable. b)declare the action of the respondents in not fixing the pay of the applicant in accordance with the revised pay scales as recommended by the 4th Central Pay commission as on the date of order of compulsory retirement of the petitioner as arbitrary , illegal, unjust and violative of Art.14 & 16 of the constitution, c) direct the respondents to refix the pension and release the arrears of the petitioner by duly taking into account the 4th and 5th cental pay commission scales on the basis of pay notionally fixed togethr with arrears upon such fixation. Counsel for the Petitioner:MR.ABHINAND KUMAR SHAVILI Counsel for the Respondent No.: MR.GOURI SHANKAR SANGHI The Court made the following : HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE C.V.RAMULU Writ Petition No.4238 of 2000 ORDER: (Per Hon’ble Sri Justice C.V.Ramulu) This writ petition is directed against an order made in O.A.No.1449 of 1997 dated 13-7-1999 on the file of the Central Administrative Tribunal, Hyderabad Bench. 2. It appears, the petitioner had joined in the service of Railways (South Central Railways) in the year 1959. After serving for more than 22 years, he absented from duty from 21-2-1982, for more than ten years. The reason for such absence seems to be mental illness. However, he had reported for duty on 09-11-1993 and on the very same day, he was placed under suspension. Thereafter, an enquiry was conducted and the petitioner was made to retire compulsorily with effect from 15-12-1993 (just 15 days before his actual date of retirement). While calculating the pension, it was stated that 10 months average pay prior to 21-12-1982 was taken into consideration, and not the date on which he was made to retire compulsorily i.e. 15-12-1993. 3 . It is very interesting to notice that sofar as the subsistence allowance was concerned, it was paid as per the revised pay scales recommended by Fourth Pay Commission. But, when it came to calculation of pension, it was stated that the last drawn salary was not available as he was all through under suspension, his 10 months average pay preceding 21-08-1982 was taken into account. This, in our considered opinion, is an atrocious approach made by the respondents. When the respondents have paid subsistence allowance as per the revised pay scales recommended by Fourth Pay Commission, till the date of his compulsory retirement on 15-12-1993, it must be deemed that the petitioner is entitled to the revised pay scales applicable to the post held by him, as recommended by the Fourth Pay Commission till the date of his retirement. Therefore, the respondents ought to have taken 10 months average pay in revised scales notionally, by taking into account the subsistence allowance paid to him till 15-12-1993. 4 . The Tribunal, after detailed examination, however, did not agree with the submissions made by the petitioner herein and it was held that the fixation of pension by respondent authorities taking into consideration the pay as in February, 1982, and 10 months preceding thereto, is quite in order and it is advantageous to him when compared to the request made by the applicant in O.A. We are of the considered opinion that the Tribunal has not taken into account the practicality of the situation and circumstances. Once the petitioner is paid the subsistence allowance till 15-12- 1993 as per the revised pay scales recommended by Fourth Pay Commission, it must be construed that he is entitled to the salary, as per revised pay scales, as if he had not been under suspension. Therefore, the pay scale applicable to the post held by the petitioner under the revised pay scales implemented pursuant to Fourth Pay Commission, shall have to be applied notionally and 10 months average must be taken into consideration and he must be paid pension thereon. 5 . In the result, the impugned order in O.A. as well as the order passed by the Tribunal are set aside. The writ petition is accordingly allowed. No order as to costs. ___________________________ GHULAM MOHAMMED, J. ___________________ C.V.RAMULU, J. 05-08-2008 bsc