1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1202 OF 2006 Shriram Bhika Nanore R/o 14/110, Anand Nagar, Near Vakola Police Station, Santacruz, Mumbai-400 055 ..Petitioner versus 1. The State of Maharashtra Through the Additional Chief Secretary, Home Department, Mantralaya, Mumbai-400 032 2 Accountant General, Having Office at Maharshi Karve Marg, Mumbai 400 20 ..Respondents Mr. D.K. Ghaisas with Mr. Sanjay Chaisas for Petitioner. Mrs. Uma Palsule Desai, AGP for Respondents. CORAM : F.I. REBELLO & A. A. SAYED , JJ. DATED : 25TH MARCH, 2010. ORAL JUDGMENT ( PER FERDINO I. REBELLO, J.) 1 The petitioner has taken out a notice of motion that the petitioner was aged 72 years and in these circumstances though the matter was of the year 2006, we should expedite the hearing of the petition.Considering that the matter involved pensionary benefit, we have taken up the petition for final 2 hearing. The petitioner had retired from the service of respondent No.1-State on 13-7-1979. At the time of voluntary retirement, the petitioner was drawing basic pay of Rs. 640/- in the pay scale of Rs. 365-760. For the purpose of fixing the pension, G.R. of 19th September, 1979 has to be considered, which applied to the State Government employees, who retired on 30-9-1977 or thereafter. In respect of such employees a part of D.A. was to be considered as Dearness Pay for the purpose of pensionary benefits. As the petitioner was drawing a basic pay of Rs.640/-, the amount of Dearness allowance to be treated as Dearness Pay was 27% of the pay and it was to be minimum of Rs. 108 and maximum of Rs. 243. The petitioners pension was accordingly fixed and the petitioner was being paid pension by including 27% of the Dearness Allowances as a component of pay. 2 The Government thereafter issued another G.R. On 15th November, 1999. By this G.R. it was provided that the pension/family pension of all pre 1986 pensioners and family pensioners who were in receipt of pension set out thereunder as on 1st January, 1996 under Revised Pension Rules 1950 and Maharashtra Civil Services (pension) Rules), 1982 as amended from time to time would be revised with effect from 1st January, 1996 in the manner indicated in the said G.R. That includes retiring pension. The petitioner who had sought voluntarily retirement would fall under the head retiring pension. 3 3 To the G.R. were annexed annexure 1 and 2. In the instant case we are concerned with the annexure 1 to which there are 2 examples, example 1 and example 2. In the present case, we are concerned with example 1. Under example 1, pension was to be fixed under three different heads A B and C. It is further set out that the revised pension admissible as on 1st January, 1996 will be the higher pension. In other words, the pension computed under A B and C, whichever was higher was to be given to the pensioner. The petitioner’s pension was accordingly worked out and the petitioner was paid pension as on 1st January, 1996 in a sum of Rs. 2599/-. 4 The petitioner in the present petition has disputed the correct re- fixation of his pension. It is firstly contended that while considering his pay under B of example 1 the respondents have not taken into consideration the 27% Dearness Allowances which was to be treated as basic pay and as such, the pension has been wrongly calculated. This submission is such fixation therefore is arbitrary and contrary to the Government G.R. 5 It is then submitted that the petitioner’s pension is fixed on total service as 29 years 7 months and as such pension is been paid on the basis that the petitioner worked for 29 years 6 months. Reference is made to Rule 110 of Maharashtra Civil Services (Pension) Rules, 1982. It is submitted that on consideration of Rule 110(3) the petitioner's pension ought to have 4 been fixed on the basis of 30 years of service. On this count also, it is submitted that the action of the respondents is arbitrary. Lastly it is submitted that the petitioner took voluntarily retirement from the Government service on 13-7-1979. The date of getting his increment would be 1-4-1979. That has not been properly calculated and consequently the petitioner would be entitled to re-fixation of pension based on the said additional increment. A reply has been filed on behalf of the respondents by Prakash Tatyasaheb Goud, Jt. Secretary, Home Department, Mantralaya. Dealing with the contention of the petitioner that 27% of the Dearness Allowances which was to be treated as basic pay ought to have been calculated for the purpose of fixing his pay, it is set out that on the perusal of the Government Resolution, it is clear that was only for the purpose of pensionary benefits. The respondents were right in not calculating it as pay for the purpose of calculating petitioner's pension as on 1-1-1986. By Government Resolution of 19-9-1979, a part of Dearness Allowances was ordered to be considered as Dearness Pay for granting pensionary benefit only and not for pay fixation. It is set out that the notional fixation of pay as on 1-11-1986 was done as per the provisions of Government Resolution 15-11-1999 and not as per G.R. of Finance Department dated 19-9-1979. The Tribunal therefore, 5 was right in appreciating the stand taken by the respondents in rejecting the claim of the petitioner. 6 Dealing with Rule 110(3) it is pointed out that the petitioner took the qualifying services of the petitioner as 24 years and 7 months to which was added 5 years weightage, thus making it 29 years and 7 months in terms of the aforesaid rules. A fraction of a year of six months and above shall be treated as completed one half year recognized as qualifying service. The period below six months was to be ignored. In so far as the issue of not granting of increments and fixation of pension as on 1-4-1976 it is set out that the petitioner's pay as on 1-4-1976 was fixed at Rs. 580/- in the scale of Rs. 365-760 under Maharashtra Civil services Rule. His next increment was due on 1-1-1977 which raised his pay to Rs. 600/- and his pay at the time of voluntarily retirement was Rs. 640/- only which has been verified by pay verification unit. It is is therefore, submitted that there is no merit in the said contention and the learned Tribunal was right in rejecting the petitioner's case. 7 The petitioner in the matter of fixation of the pay had approached Maharashtra Administrative Tribunal by Original Application No.3 of 2004. The learned Tribunal by its order dated 20-6-2005 after considering various 6 contentions urged by the petitioner was pleased to hold that the application was devoid of merit and deserves to be rejected and accordingly rejected the same. The question before us is whether the order of the learned Tribunal suffers from any error of law apparent on the face of the record warranting interference by this Court in the exercise of its extra ordinary writ jurisdiction 8 We may first deal with the contention urged on behalf of the petitioner by his learned Counsel that part of Dearness Allowances which had be be treated as basic pay ought to have been included while calculating his pay for pension. For that purpose G.R. dated 15-11-1999 has to be considered. For the purpose of fixing pension at the time of retirement, the petitioner was governed by G.R. of 19-9-1979. In terms of the said G.R. the Government has taken a decision that in respect of those employees who had retired on or after 30-9-1977 or thereafter 27% of the Dearness Allowances would be considered as Dearness Pay for the purpose of fixing pensionary benefit. In other words though, Dearness Allowances does not form a part of pay but for the purpose of pensionary benefits a part of the Dearness Allowance was considered as Dearness Pay for the limited purpose of granting pensionary benefits. The petitioner was accordingly granted the same. The Government thereafter by a G.R. dated 15-11-1999 was further pleased to revise the pension as on 10-10-1996 in the manner 7 indicated in the G.R. In other words the G.R. provided a new formula for fixation of the pensionary benefits which has nothing todo with the G.R. of 19th September, 1979 which had followed a different yard stick for the purpose of granting pension. In fact, the following sentence of the G.R. would make it clear. "It is now been decided that the pension of all the pre 1986 retirees may be updated by notional fixation of their pay as on 1st January,1986 by adopting the same formula as for the serving employees and thereafter for the purpose of consolidation for their pension/family pension as on 1st January, 1986. They may be treated alike those who have retired on or after 1st January, 1986." Therefore, in terms of said G.R. pension and family pension of those who were retired on or before 1st January, 1986 was to be fixed on notional basis in terms of the G.R. As earlier set out and noted the petitioners case would be governed under annexure 1 example 1 that provide 3 different heads of calculating pension which are AB and C. It provides that after so calculating under A,B and C the petitioner would get the highest, amongst A,B and C. The petitioner's pension under head B of B was the highest and therefore he was accordingly paid that pension. In the annexure and the G.R. there is no provision for treating a part of the Dearness Allowances as Dearness Pay. A different formula altogether had been provided for fixing the pension under the G.R. of 1979. The Tribunal therefore in our opinion was right in rejecting the contentions as urged on behalf of the petitioner. On this Count, the 8 contention as urged has to be rejected. 9 The second contention basically follows the first contention and/or are the same. The submission is since in terms of G.R. of 1979 even the part of the Dearness Allowances which were treated as pay was not included in the pay for the purpose of pensionary fixation nonetheless considered that substantive pay under the G.R. 1979 could not have been excluded while fixing the petitioner's pay and/or pension. As pointed out before the Government took decision as a matter of policy of revision of pensionary benefits of his employee, who were retired before 1-1-1986 while so doing it did not consider the G.R. of 1979 but adopted a totally different formula as set out earlier. This formula totally excludes consideration of 27% of Dearness Allowances as Dearness pay with the consultation of the Finance Department while making out a pension. Second contention in our opinion also has to be rejected. 10 Dealing with the next contention, a perusal of Rule 110 (3) of the Maharashtra Civil Services (Pension) Rules, 1982 would be relevant. The said Rule is reproduced as under:- "In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as completed one-half year and reckoned as qualifying service." 9 The petitioner's qualifying service including the weightage on 5 years added and comes to 29 years and 7 months. The contention of the petitioner is that should be a calculated as 30 years by to rounding up. In the face of express provision of Rule 110(3) which Rule itself is clear, that any service of more than 3 months will be treated as completed one half year. Anything less than 3 months would be excluded. The respondents have treated 7 months as one half year and accordingly paid the pension based on computation of 29 years and 6 months. We therefore, do not find any error of law committed by the Tribunal in rejecting the contention as urged on behalf of the petitioner. 11 In so far as, the last submission is concerned, and the petitioner retired on 13-7-1979. The petitioner filed Original Application in the Tribunal in the year 2004. In other words, after 25 years of service. On this count itself the petitioner's case even it was meritorious has to be rejected. Apart from that we have considered the affidavit field on behalf of the State Government which has dealt with the issue in paragraph 8 of the affidavit. In the light of that in our opinion there is no substance even on merits in the said contention. 12 For the aforesaid reasons, we find no merit in this petition. Rule 10 accordingly discharged. In the circumstance, there shall be no order as to costs. Sd/- (F.I. REBELLO J.) Sd/- ( A. A. SAYED, J.)