IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 6472 of 2008 Judgment reserved on: 24.11.2010 Date of decision: 25.11.2010 Dharam Chand ….. Petitioner Vs. State of H.P.and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Onkar Jairath, Advocate. For the Respondents : Mr. J.S. Rana, Assistant Advocate General, for respondents No.1 to 3. Mr. Ajeet Saklani, vice Mr. Sandeep Sharma, Assistant Solicitor General of India, for respondent No.4. Kuldip Singh, J The petitioner has prayed that respondents No.1 to 3 may be directed to treat the promotion of petitioner as Centre Head Teacher on regular basis instead of notional basis and grant him the arrears of pay resulting therefrom from the date due till the actual date of payment thereof alongwith interest at the rate of 12% per annum. The respondents may further be directed to revise the pensionary benefits of the petitioner on the basis of the higher emoluments as Centre Head Teacher and to pay the arrears of pension, DCRG, leave salary as well as commuted value of pension to the petitioner thereof alongwith interest Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… at the rate of 15% per annum. It may further be directed to complete the whole exercise within a period of three months. 2. The further case of the petitioner is that petitioner joined service as a JBT teacher on 15.4.1954 and he retired from Government Primary School, Kuwant, Tehsil Nadaun on 31.1.1990, on attaining the age of superannuation as head teacher. 3. The matter regarding assigning proper place to petitioner in the seniority as JBT teacher and thereafter as head teacher had been under consideration of respondents No.1 to 3 which could not be finalised due to one reason or the other. On assigning correct seniority to petitioner, he became eligible for promotion as Centre Head Teacher much prior to his retirement from service. The petitioner was promoted as Centre Head Teacher vide office order dated 16.11.1994 of respondent No.3 w.e.f. 25.3.1987 on notional basis as the petitioner had already retired from service. 4. The petitioner should have been promoted on regular basis as Centre Head Teacher and not on notional basis. The Block Primary Education Officer, Nadaun had forwarded the case of the petitioner to the Senior Deputy Accountant General ( A & E) for revision of pension and DCRG amount of the petitioner on the basis of the higher emoluments fixed as Centre Head Teacher, vide letter dated 4.2.1999. The Accounts Officer of the office of Senior Deputy Accountant General ( A & E) returned the papers to the Block Primary Education Officer, Nadaun vide letter dated 28.6.1999 with the remarks that as the official had not been paid arrears on account of revised pay w.e.f. 13.3.1987 to 31.1.1990, the …3… revision of pensionary benefits was not due under Rule 34 of the CCS Pension Rules, 1972. 5. The petitioner had been made to suffer initially because of the inordinate delay caused in assigning proper seniority to petitioner by respondents No.1 to 3. The respondents had promoted the petitioner as Centre Head Teacher from retrospective date from which he was entitled to be promoted. The respondents had erred in ordering notional promotion to the petitioner, he should have been regularly promoted as Centre Head Teacher. The Senior Deputy Accountant General ( A & E) had taken a wrong stand by even denying revision of pension and DCRG to petitioner on the basis of higher emoluments fixed as a result of his notional promotion. 6. The petition has been contested by respondents No.1 to 3 by filing joint reply. They have pleaded that petition is not maintainable in view of Rule 34 of CCS Pension Rules, 1972. The petitioner stands retired on 31.1.1990. The promotion on notional basis was made on 16.11.1994 w.e.f. 25.3.1987. The promotion was notional, as such the official will not be entitled for financial benefits. The stand has been taken that in view of these facts for the purpose of determining the pension etc. of the petitioner, the pay of the petitioner, which he was actually drawing during the last 10 months of service prior to his retirement, was to be considered. Insofar entitlement for granting the benefit of pension and DCRG on the basis of increased pay is concerned, it has been submitted that respondent No.3 has wrongly written in that regard as the same is contrary to the Rule 34 of the CCS Pension Rules 1972. It has been stated that respondent No.4 has rightly declined to …4… revise the pay arrears and other benefits to the petitioner. The Block Primary Education Officer, Nadaun had wrongly sent the case to respondent No.4 for the arrears of revised pay on promotion of the petitioner. 7. The respondent No.4 has also filed the reply and has stated that pension case of the petitioner for revision of pensionary benefits on account of promotion of the petitioner as Centre Head Teacher was forwarded by respondent department vide letter dated 7.10.1998. On scrutiny of the Service Book of the petitioner, it was noticed that entry regarding promotion of the petitioner as Central Head Teacher was not recorded in the Service Book. It was also not known whether the arrears on account of revised pay fixation w.e.f. 25.3.1987 to 31.1.1990 had been paid or not to the petitioner. Accordingly, the case of the petitioner alongwith Service Book was returned vide letter dated 15.12.1998. 8. The respondent department after attending the observations raised in the letter dated 15.12.1998 had resubmitted the case of the petitioner vide letter dated 4.2.1999 wherein it was stated that arrears w.e.f. 25.3.1987 to 31.1.1990 had not been paid to the petitioner. The pension case of the petitioner was again returned on 28.6.1999 stating therein that the petitioner was not entitled for revision of pensionary benefits in terms of Rule 34 of CCS Pension Rules, 1972. 9. I have heard the learned counsel for the parties and have also gone through the records. The office order dated 16.11.1994 provides that in pursuance of the Secretary ( Shiksha) H.P. Govt. dated 6.6.1990 received from the Director of Primary Education, H.P. Shimla, the petitioner was allowed benefit of promotion as Centre Head Teacher …5… on notional basis from the date mentioned against his name i.e. 25.3.1987 in the pay scale of `1500-2640. It has also been stated that in the office order dated 16.11.1994 that since the promotion is notional promotion, as such official will not be entitled for any financial benefit. Retired/deceased teacher will be entitled for benefit of pension and DCRG on the basis of increased pay due to notional promotion and the pension case be got revised accordingly. The Rule 34 of the CCS Pension rules, 1972 provides as follows:- “Average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his service. NOTE.1- If during the last ten months of his service a Government servant had been absent from duty on leave for which leave salary is payable or having been suspended had been reinstated without forfeiture of service, the emoluments which he would have drawn had he not been absent from duty or suspended shall be taken into account for determining the average emoluments: Provided that any increase in pay (other than the increment referred to in Note 3) which is not actually drawn shall not form part of his emoluments. NOTE.2- If, during the last ten months of his service, a Government servant had been absent from duty on extraordinary leave, or had been under suspension the period whereof does not count as service, the aforesaid period of leave or suspension shall be disregarded in the calculation of the average emoluments and equal period before the ten months shall be included. NOTE 3.- In the case of a Government servant who was on earned leave during the last ten months of his service and earned an increment, which was not withheld, such increment though not actually drawn shall be included in the average emoluments: Provided that the increment was earned during the currency of the earned leave not exceeding one hundred and twenty days or during the first one hundred and twenty …6… days of earned leave where such leave was for more than one hundred and twenty days.” 10. It has been submitted on behalf of the petitioner that the seniority of the petitioner as JBT teacher and Head Teacher was not finalised by respondents No.1 to 3 without any fault of the petitioner. The seniority of the petitioner as JBT and Head Teacher was later on finalised by respondents No.1 to 3 and consequently the petitioner was promoted as Centre Head Teacher on 16.11.1994 w.e.f. 25.3.1987 in the pay scale of `1500-2640. The petitioner had since retired on superannuation on 31.1.1990 as Head Teacher. If no benefit either of salary or of pension or retiral benefit was to be given to the petitioner even after on the basis of office order dated 16.11.1994 then it is not understandable for what purpose office order dated 16.11.1994 was issued. In absence of benefit of salary as Centre Head Teacher w.e.f. 25.3.1987 to 31.1.1990 and thereafter denial of retiral benefits the office order dated 16.11.1994 is nothing but joke. As far as the petitioner is concerned it is not understandable when no benefit was to be given to the petitioner on the basis of office order dated 16.11.1994 then why the office order dated 16.11.1994 was issued. 11. The respondents No.1 to 3 have not placed any material on record why the petitioner was promoted as Centre Head Teacher on notional basis and not on actual and regular basis. No reason has been assigned for promoting petitioner as Centre Head Teacher on notional basis in office order dated 16.11.1994 nor in the reply respondents No.1 to 3 have stated any reason why the petitioner was promoted as Centre Head Teacher on notional basis. …7… 12. The notes 1 to 3 to Rule 34 of CCS( Pension) Rules, 1972 are in the form of exceptions to Rule 34. The question involved in the present case is when respondents No.1 to 3 found the petitioner fit for promotion as Centre Head Teacher then under what circumstances they promoted him notionally. The respondents No.1 to 4 from the material on record have failed to support the decision to promote petitioner as Centre Head Teacher on notional basis instead of actual and regular basis. Therefore, the promotion of petitioner as Centre Head Teacher on notional basis is not sustainable and is liable to set aside and the petitioner is entitled to actual salary as Centre Head Teacher w.e.f. 25.3.1987 to 31.1.1990. Once the petitioner is held entitled to salary as Centre Head Teacher from 25.3.1987 to 31.1.1990, then consequences of payment of salary as Centre Head Teacher to petitioner from 25.3.1987 to 31.1.1990 will automatically flow for the purpose of retiral benefits of petitioner. 13. No other point was urged. 14. The result of above discussion, the petition is allowed. It is held that petitioner on promotion to the post of Centre Head Teacher is entitled to actual salary of Centre Head Teacher w.e.f. 25.3.1987 to 31.1.1990 the date of his superannuation and thereafter retiral benefits in accordance with law keeping in view actual salary of Centre Head Teacher. The respondents are directed to release the actual salary to petitioner as Centre Head Teacher from 25.3.198 to 31.1.1990 and accordingly refix the retiral benefits of petitioner and pay the same to the petitioner within a period of three months from the date supply of copy of this judgment by the petitioner to the competent authority, failing which …8… the petitioner shall be entitled to 9% interest on such arrears till payment. No costs. November 25, 2010 (Kuldip Singh), (sks) Judge.