IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 9164 of 2008. Decided on: 19.5.2011. ___________________________________________________________ Hari Chand Kalia. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Ajay Kumar Dhiman, Advocate. For respondents No. 1 to 3 : Mr. Anil Jaswal, Dy. A.G. For respondent No.4 : Mr. Sandeep Sharma, ASGI. ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). The petition has been filed on the following prayers vide para 7 (i), (ii) & (iii):- “7 (i). That the respondents be directed to release the pension on the basis of revised scale of notional promotion. (ii). That the respondents be directed to pay the arrear of pension from the date of grant of notional promotion. (iii). That the respondents be directed to pay interest at the rate of 12% for the arrear from the date of notional benefits, till its realization.” 2. In reply, respondents No. 1 to 3 have taken the following stand vide para 3:- “3. That it is respectfully submitted that the applicant retired from the service on 31.3.1986 after attaining the age of superannuation. Prior 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 to his appointment/posting in the cadre of Trained Graduate Teacher, the applicant was unadjusted as trained graduate teacher. In the year 1998, Govt. tool a policy decision and all unadjusted TGTs in the department were brought at par with the Trained Graduate Teachers and assigned seniority in the main stream of TGTs cadre from their respective date of appointment. Accordingly, the applicant was assigned seniority No. 793 in the list of Trained Graduate Teachers. With the assigning of seniority from the date of appointment as unadjusted TGTs, applicant by virtue of his being senior was promoted to the post of Headmaster on notional basis and his pay in the higher pay scale of Rs. 700- 1580/2000-3500 was fixed accordingly. Copy of the order dated 30.3.2000 is already on record as Annexure A/1. Be it submitted that the applicant neither worked as Headmaster physically nor drew revised pay. However, pay fixed under FR 22-(I) (a) (I) in the higher pay scale was presumptive. Thus, applicant is not entitled to the relief(s) prayed for in the present original application. In view of this position, respondent No.4 has followed the provision contained in Rule 34 of the CCS (Pension) Rules, 1972 and disallowed the claim of the applicant for revision of pension on the basis of notional promotion.” 3. Similarly, the following averments have been set up on behalf of respondent No.4 in para 6 of the reply:- “6. In reply to this para it is respectfully submitted that pension case of the applicant for revision of pensionery benefits on account of promotion 3 of applicant as Head Master was forwarded by respondent Department vide letter dated 1/7/2000. On scrutiny of service book it was noticed that the pay of the applicant was fixed notionally and no arrear was paid accordingly. Thus, revised pay was not actually drawn which was otherwise required for revision of pensionary benefits in terms of Rule 34 (Note- I) of CCS (Pension) Rules, 1972. Accordingly, case was returned vide letter dated 20/12/2000 (Annexure A-3). Thereafter respondent- Department vide letter dated 7/4/2001 again sent the case for revision of pensionary benefits on same lines. As such the case was again returned vide letter dated 22/6/2001 (copy enclosed as Annexure R-1) reiterating the same contents as stated earlier in letter dated 20/12/2000 (Annexure A-3). As such the replying respondent has rightly not admitted the case of the applicant for revision of pensionary benefits in terms of Rule 34 (Note- I) of CCS (Pension) Rules, 1972. Rest of the averments need no submission.” 4. Admittedly the petitioner had retired from the service of the respondent-Department as Head Master on 31.3.1986. Prior to his appointment/posting in the cadre of Trained Graduate Teacher (TGT), the petitioner was an ‘unadjusted TGT’. In the year 1998, the Government took a policy decision pursuant to which all unadjusted TGTs in the department were brought at par with TGTs and assigned seniority in the main stream of TGT cadre from their respective dates of appointment. Accordingly, the applicant was assigned seniority No. 793 in the list of TGTs. On the basis of 4 seniority, the petitioner was promoted to the post of Head Master on notional basis and his pay was notionally fixed in the higher pay scale at Rs. 700-1580/2000-2500 vide order dated 30.3.2000, Annexure A-1. However, since he had already retired as TGT and was promoted as Head Master notionally, no actual pecuniary benefit accrued to him. 5. The petitioner is seeking revised pension from the date of his notional promotion in the year 1984. However, the fact remains that he had retired only thereafter on 31.3.1986 and as such the claim for revised pension from a date prior to his retirement is not legally tenable. However, his prayer for grant of revised pension as Head Master has been turned down by the respondents on the ground that the petitioner had not actually drawn the revised pay which is a pre-requisite for revision of pension in terms of Rule 34 of CCS (Pension) Rules, 1972, which is as under:- “34. Average Emoluments: Average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his service.” 6. True it is that average emoluments for the purpose of pension are to be reckoned with reference to the emoluments drawn by a Government servant during the last ten months of his service. In the present case, the petitioner at the time of his retirement was not Head Master and instead was TGT and as such was drawing the emoluments admissible to TGT and not Head Master. However, the fact remains that he had been notionally promoted as Head Master in the pay scale of Rs. 700-15/2000- 5 3500 on and w.e.f. 31.12.1984 vide office order dated 30.3.2000, Annexure A-1. He had actually retired only thereafter on 31.3.1986. Thus, for all intent and purposes, he would be deemed to have been promoted as Head Master on and w.e.f. 31.12.1984 and thus, would also be deemed to have been drawing the pay of Head Master on and w.e.f. 31.12.1984 up till the date of his retirement on attaining the age of superannuation on 31.3.1986. The intent and purport of notional benefit is that actual pecuniary benefit is to accrue only from a prospective date and the incumbent is not entitled for any pecuniary benefit retrospectively prior to the date of actual accrual of the benefit. 7. In the present case, the petitioner cannot be denied the benefit of revised pension only on the ground that during the last ten months prior to his retirement as Head Master, he was not drawing the emoluments of Head Master in the pay scale of Rs. 700-1580/2000-3500 for the sole reason that as a legal friction, he would be deemed to have been drawing the pay of Head Master in the pay scale of Rs. 700-1580/2000-3500 right from the day of his promotion as such vide office order dated 30.3.2000, Annexure A- 1, till the date of his retirement on 31.3.1986. 8. In view of the above, the petition is allowed with a direction to the respondents to reckon the pension of the petitioner as Head Master in the pay scale of Rs. 700-1580/2000-3500 (unrevised) as revised from time to time, with effect from the date of his retirement as Head Master on attaining the age of superannuation on and w.e.f. 31.3.1986 along with consequential benefits, if any, within three months from the date of production of 6 copy of this judgment by the petitioner, failing which interest at the rate of 6% per annum shall also be payable. 9. The petition stands disposed of in the above terms, so also pending application(s), if any. (V.K. Sharma) Judge. May 19, 2011. (cr)