IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.978/2000 and CWPs No.110 and 109 of 2001 Reserved on.3.3.2008 Decided on.26.3.2008 (CWP No. 978/2000) Swaran Singh Chahal. …Petitioner. Versus Union of India and others. …Respondents CWP No. 110/2001 Harbans Kaur and others. …Petitioners. Versus Union of India and others. …Respondents. CWP No. 109/2001 S.C. Gaur …Petitioner. Versus Union of India and others. … Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting ?1.yes. For the petitioners : Mr. Ajay Mohan Goel, Advocate. For the respondents Mr. Y.P. S. Dhaulta, Central Government Counsel for respondent No.1. Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals for respondent No. 2 and 3. Rajiv Sharma, J. A challenge has been laid to the order dated 17.10.2000 passed by the Central Administrative Tribunal, Chandigarh Bench in OA No. 144/CH/2000. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Since common questions of law and facts are involved, these writ petitions are being disposed of by a common judgment. The petitioner Swaran Singh assailed the order of the Tribunal along with Sh. Bachhan Singh and Sh. S.C. Gaur by way of CWP No. 978/2000. A statement was made by the learned counsel appearing on behalf of the petitioners that the present petition may be treated to be filed by petitioner No.2 i.e. Swaran Singh, IFS alone. The counsel for the petitioners was permitted to file separate petitions on behalf of Bachhan Singh and S.C. Gaur without insisting to file all the Annexures. The writ petition filed by Sh. Bachhan Singh was registered separately and assigned CWP No. 110/2001. The petition filed by Sh. S.C. Gaur was registered as CWP No. 109/2001. The brief facts necessary for the adjudication of these petitions are that the petitioner in CWP No. 978/2000 initially joined the Punjab Forest Services Class-I and on the constitution of the Indian Forest Services, he was appointed to the Indian Forest Services (Punjab Cadre) on 1.10.1966. He was allotted to the State of Himachal Pradesh after the re-organization. He was promoted to the post of Chief Conservator of Forests with effect from 20.7.1979. He retired on 30.4.1980. The petitioner Bachan Singh in CWP No. 110/2001 had joined the Punjab Forest Services on 3.4.1944 and was subsequently appointed to the Indian Forest Services (Punjab Cadre) on 1.10.1966. He was subsequently promoted to the post of Chief Conservator of Forest on 1.10.1968 and he stood retired on 30.4.1978. The petitioner S.C. Gaur in CWP No. 109 of 2001 was promoted to the post of Chief Conservator of Forests on 1.1.1981 and he retired on 31.8.1982. A notification was issued by the Central Government on 6th April, 1988 whereby for the word “Chief Conservator of Forests” word “Principal 3 Chief Conservator of Forests” was inserted in the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966. In sequel to notification dated 6th April, 1988, the State of H.P. also issued a notification dated 17th August, 1994 to the effect that the word “Principal Chief Conservator of Forests” was to be read in place of “Chief Conservator of Forests” wherever appearing under the various provisions of the H.P.F.R. Volume- I. A memorandum was issued on 10th February, 1998 under the subject ‘implementation of Government decision on the recommendations of the 5th Central Pay Commission-revision of pension.’ The Controller (Financial and Accounts), Department of Personnel, Government of Himachal Pradesh sent a communication to the Senior Deputy Accountant General (A&E), Himachal Pradesh on 1.3.1999. The text of the letter dated 1.3.1999 reads thus: “In continuation to this Department letter of even number dated 20.8.98 and 31.8.98 on the subject cited above, I am directed to furnish herewith details of scales and pensions etc. for revision of pension/family pension w.e.f. 1.1.96 in respect of Sh. S.S. Chahal, IFS (Retd.) in terms of the Department of Personnel & Training’s Notification No. 14021/5/98-AIS-II dated 14.1.99 as under: a) Existing Scale Rs. 5900-6700 b) Existing pension/family pension Rs. 7750- &3573 c) Revised scale introduced w.e.f. 1.1.96 of the last post held by the Pensioner/deceased Govt. servant. Rs. 18400-500-22400 2. It is requested that the pension/family pension may be consolidated as on 1.1.96. Such consolidated full pension shall not however be less than 50 percent of the minimum of the revised scale of pay as on 1.1.96 for the post last held by the above pensioner. The revised authority may kindly be issued accordingly on the basis of above details and also keeping in view the above instructions of the Govt. of India and the relevant details of pension available in your office.” 4 The petitioners and other similarly situate persons made a representation to the Central Government which was turned down on 9.8.1999. The text of letter dated 9.8.1999 reads thus: “I am directed to refer to the correspondence resting with the Society’s letter dated the 2nd June, 1999 on the subject maintained above and to say that the matter has been examined in consultation with the Department of Personnel and Training. 2. It is clarified that the pension of a retired I.F.S. Officer has to be fixed with reference to the post held by him at the time of his retirement and the pay scale attached to that post. The post of Chief Conservator of Forests cannot be upgraded to that of the level of PCCF from back date. It is, therefore, regretted that the request to fixing the pension of the Chief Conservators of Forests who retired prior to 1986, in the revised scale of pay of Pr. Chief Conservator of Forests, cannot be acceded to.” The petitioners had approached the Central Administrative Tribunal by way of original application bearing No.144/CH/2000 inter alia praying therein for quashing of letter dated 9.3.1999 and 9.8.1999. The learned Central Administrative Tribunal dismissed the original application on 17.10.2000. The original application was primarily dismissed on two grounds i.e. (i) the post of Principal Chief Conservator of Forests has come into existence after the notification dated 6.4.1988 and according to the learned Tribunal, the petitioners had approached it after a period of 12 years and (ii) no rule or notification could be given retrospective effect. Sh. Bachhan Singh died during the pendency of the CWP No. 110/2001 and following legal heirs were brought on record during the pendency of the writ petition. i. Harbans Kaur wife of Sardar Bachhan Singh, resident of House No. 1618, 18 Chadigarh 5 ii. Gurmeet Singh son of Sardar Bachhan Singh resident of House No. 1618, 18 Chadigarh. The legal representatives of late Sh. Bachhan Singh were to be brought on record in CWP No. 110/2001, but it appears that inadvertently the Registry has substituted the legal representatives of late Sh. Bachhan Singh in CWP No. 978/2001. To avoid delay the Court directs that the substitution of legal representatives of late Sh. Bachhan Singh as carried out in CWP No. 978/2000 on 26.6.2006 be deemed to have been carried out in CWP No.110/2001 and the Registry is directed to carry out the necessary amendments in the memo of parties accordingly. Mr. Ajay Mohan Goel, Advocate had strenuously argued that the order passed by the learned Tribunal is inconsistent since according to him the Tribunal in the initial portion of the order had come to a conclusion that there was a change of designation of the post of Chief Conservator of Forests to that of Principal Chief Conservator of Forests only, but in a latter portion the Tribunal had come to the conclusion that the petitioners were not entitled to get the benefit of re-designation of the post as per notification dated 6.4.1988 for calculating the pensionary benefits after the implementation of the recommendations of the 5th Central Pay Commission. Mr. Y.P. S, Dhaulta, Central Government Counsel and Mr. R.M. Bisht, Deputy Advocate General have supported the order dated 17.10.2000. We have heard the learned counsel for the parties and have perused the record carefully. Since the facts of these petitions are identical, the Court for convenience will only refer to the facts of CWP No. 978/2000. The findings recorded in CWP No. 978/200 will be applicable to CWP Nos. 110/2001 and 109/2001. 6 The petitioner Swaran Singh retired on 30.4.1980. He was discharging the duties of Chief Conservator of Forests since 20th April, 1979. It is evident from the notification dated 6th April, 1988 that the designation of the post of Chief Conservator of Forests has been changed to Principal Chief Conservator of Forests. The case of the petitioner was forwarded for the revision of pension/family pension on the basis of the existing pay scale of the post of Conservator of Forests i.e. 4900-6700 (pre-revised) and Rs. 18,4000-22400 revised with effect from 1.1.1996 as is evident from the contents of Annexure P-7 dated 1st March, 1999. The representations made by the petitioners and similarly situate persons have been rejected primarily on the ground that the post of Chief Conservator of Forests could not be upgraded to the level of Principal Chief Conservator of Forests from back date. We have closely scrutinized the notification dated 6th April, 1988. A bare perusal of the notification dated 6th April, 1988 is suggestive of the fact that the entry, “Chief Conservator of Forests” was substituted by “Principal Chief Conservator of Forests” in the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966. This change of nomenclature does not indicate that there was up-gradation of the post of Chief Conservator of Forests to the post of Principal Chief Conservator of Forests. What has changed in fact is the nomenclature of the post. The pay scale of the post of Chief Conservator of Forests was revised from 4900-6700 to 18400-22400 with effect from 1.1.1996. The pay scale of the post of Principal Chief Conservator of Forests is Rs. 7300-7600 which was revised with effect from 1.1.1996 to 24500-26000. The respondents were bound to consider that if the petitioners had continued to work as a Chief Conservator of Forests, they were bound to be re-designated as Principal Chief Conservator of Forests on the basis of 7 notification dated 6.4.1988. This was to be done on the basis of legal fiction since as a retiree, his pension benefits are to be calculated by assuming that he had retired in fact as Principal Chief Conservator of Forests and not Chief Conservator of Forests. Their Lordships of the Hon’ble Supreme Court have held in Parayankandiyal Eravath Kanapravan Kalliani Amma and others versus K. Devi and others, (1996) 4 SCC 76 when an act of Parliament or a State legislature provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired or in existence but for the enactment, the court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. Their Lordships have held as under: “In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents. Obviously, appellant 2 to 6 were born prior to the date on which amendments were introduced in Section 16 (1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislative prohibition on the second marriage, be treated as legitimate, and would, therefore, inherit the properties of their father, Raman Nair, under Section 16 (3) of the Act. In the result, all the three appeals are allowed. Respondents' Suit No. 38 of 1976 for exclusive possession of certain items of property is dismissed. The other suit, namely, O. S. No. 39 of 1976 for partition of half share in the tenancy land, filed by the respondents against appellant No. 1 alone, is 8 also dismissed. It will, however, be open to them to seek such relief as may be available to them under law. O. S. NO. 99 of 1977 filed by the appellants is decreed with the finding that the appellant No. 1 being widow and appellant Nos. 2 to 6 being sons of Raman Nair, are entitled to their share in the properties left by him. It is on this basis that the trial Court shall now proceed to complete the proceedings in this Suit for partition. Appellants shall be entitled to their costs.” Mr. Ajay Mohan Goel, Advocate had drawn the attention of this Court to sub-para (2) of para 26 of the petition whereby earlier notification dated 10.2.1998 was revised vide memorandum dated 17.12.1998. Mr. Goel had placed on record the copy of memorandum dated 17th December, 1998 which we permitted to be taken on record during the course of hearing for the effective adjudication of the writ petition. The text of the memorandum dated 17th December, 1998 reads thus: “The undersigned is directed to say that in the wake of a large number of representations received by the Government from the Pensioners’ Associations as well as individuals, the Government has reconsidered its decision on the recommendations of the Vth Central Pay Commission regarding revision of pension/family pension as contained in paras 137.14 and 134.30 of the report. The President is now pleased to decide that .w.e.f. 1.1.1996, pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post last held by the pensioner. However, the existing provisions in the rules governing qualifying service and minimum pension shall continue to be operated.” What has been stated in principle in the above quoted memorandum dated 17.12.1998 is that with effect from 1.1.1996, the pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay 9 introduced w.e.f. 1.1.1996 of the post last held by the pensioner. In the present case the post last held by the petitioners at the time of their retirement though was the Chief Conservator of Forests but by legal fiction contained in notification dated 17.12.1998, the petitioners will be deemed to have retired as a Principal Chief Conservator of Forests. The petitioners’ pension was to be calculated by holding that they had retired as Principal Chief Conservator of Forests in the pay scale of Rs.24500- 26000 with effect from 1.1.1996. The petitioners at the time of their retirement were the head of the department designated as Chief Conservator of Forests and subsequently the nomenclature of this post has been re-designated as Principal Chief Conservator of Forests. In fact, the learned Tribunal has also held that there was only re-designation of the nomenclature of the post of Chief Conservator of Forests to Principal Chief Conservator of Forests, but in the ultimate analysis the learned Tribunal had not granted the reliefs as prayed for by the petitioners. The explanation given in communication dated 9.8.1999 by the Central Government while rejecting the case of the petitioners and similarly situate persons that the post of Chief Conservator of Forests cannot be upgraded to the level of Principal Chief Conservator of Forests from back date is erroneous. There was no question of up- gradation of the post as discussed hereinabove. What in fact was to be seen was that once the post of Chief Conservator of Forests has been re- designated as Principal Chief Conservator of Forests, the necessary consequences were to flow from the same. It is reiterated that there was no up-gradation of the post of the Chief Conservator of Forests to Principal Chief Conservator of Forests, but it was only the change in the nomenclature of the post i.e. re-designation. 10 The learned Tribunal has also erred in law and had come to conclusion that the original application preferred by the petitioners was barred by limitation. The petitioners had continuous cause of action for receiving the pension after their superannuation. The designation though has been changed from the post of Chief Conservator of Forests to the post of Principal Chief Conservator of Forests on 6th April, 1988 but the petitioners in fact were aggrieved when they were not given due pension as is evident from communication dated 1.3.1999. The petitioners’ salary for the purpose of pension was to be calculated in the pay scale of Rs. 24500-26000. The representations of the petitioner and similarly situate persons were rejected on 9.8.1999. The original application was preferred by the petitioners for quashing the communication dated 1.3.1999 read with communication dated 9.8.1999 on 8.2.2000. In view of this factual situation there was no delay in filing the original application and it was within limitation. We would also like to add here that to get pension is a recurring cause of action. Consequently, the writ petitions are allowed. Order of the Tribunal dated 17.10.2000 is quashed and set aside. The petitioners are held entitled to get pension at the rate of 50% of the minimum scale of pay attached to the post of Principal Chief Conservator of Forests. Consequential steps be taken by the respondents within a period of 8 weeks. There shall be no order as to costs. ( Rajiv Sharma), Judge. (Deepak Gupta), Judge. 26.3.2008 *Awasthi*