1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R (1) S.B.CIVIL WRIT PETITION NO.4600/2004 (2) S.B.CIVIL WRIT PETITION NO. 3806/2004 (3) S.B.CIVIL WRIT PETITION NO.249/2005 (4) S.B.CIVIL WRIT PETITION NO.250/2005 (5) S.B.CIVIL WRIT PETITION NO.6808/2006 Date of Order: 18th February, 2008. PRESENT HON'BLE MR.MUNISHWAR NATH BHANDARI ,J. Mr.N.R.Choudhary for the petitioner/s. Mr.Kuldeep Mathur] Mr.V.K.Agarwal ] for the respondent/s. Mr.V.K.Mathur ] These group of cases involves common question of law, thus were clubbed for hearing and disposal. 2 All the matters were heard finally and for convenience, counsel for the petitioner submitted that the case of Jagdish Lal may be taken for consideration of facts and as leading case accordingly, the facts of Jagdish Lal's case were taken into consideration for decision as otherwise issue in other cases are similar. This writ petition has been filed to challenge pension regulation of Air Force, more specifically regulation 122 of Pension Regulations for the Air Force, 1961 (Part-I) (hereinafter referred to as the Regulations of 1961)and with a further prayer that the order dated 09.02.01 Anx.10 be implemented and thereby the petitioner be given benefit of pension after calculating the same in the pay scale of 5770-8290 of the rank of Junior Warrant Officer. Learned counsel for the petitioner submit that the petitioner was given promotion on the rank of Junior Warrant Officer and at the time of retirement he was permanent on the aforesaid rank and drawing the pay scale of Rs.5770-8290/-. But for grant of pensionary benefit the respondents had taken the lower pay scale of Rs.5,200- 7450 and accordingly calculations were made. It is urged that by virtue of the aforesaid action of the respondents , the petitioner is demoted on the lower rank illegally and otherwise in view of the 3 order dated 09.02.01, petitioners were to be extended the benefit of pension of the pay scale of the post/rank last held, irrespective of the fact that the post was held for ten moths or not. The learned counsel for the petitioner urged that regulation of 122 Regulations of 1961, is not constitutionally valid, as it creates group within group and thereby violative of Art.14 and 16 of the Constitution of India and by virtue of the regulation 122 of 1961, the petitioner is given benefit of pension after fixing the same in the lower rank, despite of their promotion. Thus, the regulation has taken away the benefit of promotion . Thus the regulation is not sustainable being violative of the Art. 14 and 16 of the Constitution on this ground also. Learned counsel for the respondents, on the other hand, urged that regulation 122 of the Regulations of 1961 as it exist at the time of retirement of the petitioner, is not only constitutionally valid but is being applied to all who retired subsequent to the amendment in the regulation on 23.07.79. By virtue of the amendment, the employee who holds a rank for a period of ten months before his retirement has to be taken into consideration, for fixation of the pension, therefore, it does not create groups within 4 groups because it is applied to all concerned, without any discrimination. Further it is also submitted that mere fixation of pensionary benefit cannot mean that the employee is reverted to the lower rank. Hence, it is submitted that challenge to regulation 122 is not sustainable. More so, when last basic pay of the petitioner was taken into consideration for grant of pension. It is further submitted that so far as the order dated 09.02.01 is concerned it would not apply to the petitioner as the same was issued by the Armed Forces and it was applicable to only Commissioned rank, whereas the petitioner was not holding a Commissioned rank as his last promotion was as Jr.Warrant Officer. Hence, referring to Anx.10 of the writ petition it was submitted that the order dated 09.02.01 is of no assistance to the petitioner, more so in Para 2 it was made clear that the same is applicable to those who retired prior to 1996, whereas the petitioner has retired subsequent to 1996. Thus, in no case the order Anx. 10 can be applied to a candidate who retire after 1996. In view of the above, the learned counsel for the respondents submits that the petitioner cannot be , and is otherwise not entitled to any benefit, pursuant to Anx. 10. It is lastly submitted that in many 5 of the cases if the prayer of the petitioner is accepted then the pensionary benefit would be less than what has already been given to them. Hence, it is submitted that the prayer made by the petitioner would be detriment to them in some of the cases. It is thus prayed that the writ petition having no force, deserves to be rejected. I have considered the rival submissions of the learned counsel for the petitioners and also the learned counsel for the respondents and have gone through the record of this case. The perusal of the facts of the case of Jagdish Lal show that he was given promotion on the rank of Junior Warrant Officer w.e.f. 10.12.1998 and thereafter said petitioner retired on 10.03.1999. In view of the aforesaid facts it becomes clear that said petitioner worked on the higher rank for a period of three months or so and accordingly, drawing the higher pay scale during the period while fixing his pension, the respondents taken into consideration the last basic pay scale drawn by the said petitioner which was then at Rs.5,770/- however, so far as the rank is concerned, it was then considered to be the rank held by the petitioner for last 10 months. The last rank held by the petitioner for last 10 months was then running pay scale of Rs.5,200-7,450/-. From the aforesaid facts it 6 becomes clear that so far as last basic salary drawn by the petitioner is concerned, the same itself has been taken into consideration which then was in the pay scale of Rs.5,700-8290/-. Now the two issues remains for consideration first regarding the validity of Regulation 120 of Pension Regulation of 1961 and second regarding the applicability of order dated 09.02.01. Considering the first argument regarding the validity of Regulation 120 of Pension Regulation of 1961, the ground as has been raised is basically violation o Article 16 for grant of pensionary benefit because by virtue of the application of Regulation 122, the pensionary benefits for determination after considering the lower rank whereas according to the petitioner in other civil services, in view of the Rules 34 and 49 of the CCS Pension Rules amount of pension is calculated on the basis of average emoluments drawn by the govt. servant during the last 10 months of his service. Thus it was urged that even in the civil services two different groups have been created in violation of the Article 16 of the Constitution of India. The other ground or challenge to the Regulation 122 is that by virtue of considering of lower rank, an employer is demoted to a lower rank even after promotion. Both the issues was considered after going through record as well as the Regulations and after considering it, I 7 am of the opinion that Regulation 122 cannot be held to be ultra wires being different then CCS Pension Rules applicable to other govt. employees. Infact there can be different sets of Regulations governing different type of service and in the present case petitioner is a member of armed force thus he cannot seek comparison of his service condition with other civil service. Thus on the strength of comparison of two sets of Rules, Regulation 122 cannot be held to be ultra wires because it does not amount to creation of groups amongst one ground. So far as the second aspect pertaining to demotion of petitioner for the purpose of calculation of his pensionary benefit is concerned, though the argument is attractive but not acceptable because last drawn basic salary of the petitioner has been taken into consideration for calculation of pensionary benefit and otherwise merely for the reason that the lower rank on which an employee had worked for 10 months is considered for a calculation of pensionary benefit, it cannot be said to be a demotion. More so, when even if CCS Pension Rules are looked into then even therein the pension is fixed on the basic of average drawn by an employee for last 10 months of retirement. Thus therein also if an employee had worked on the higher post for few months like in this case for three months, substantially, average of the basic salary of the lower rank determines the pension of the employee but therein also because of such 8 determination, it is not held to be demotion. It is necessary to add here that by virtue of Rules 34 and 49 of CCS Pension Rules, even the basic last drawn gets altered in view of the application of drawing the average basic pay of last 10 months whereas in the present matter the basic last drawn by the petitioner has not been altered in view of the last pension payment certificate issued in favour of the petitioner and a copy of which is already on record to show the basic salary of the petitioner to be same as was last drawn and seems precisely for this reason that in view of the above, if CCS Pension Rules are applied, some of the petitioner may get last pension than made admissible which is than higher in side. In view of the above, the challenge to the Constitutional validity to the Regulation 122 cannot be accepted. So far as the second ground pertaining to the application of the order dated 09.02.2001 is concerned, perusal of the order reveals that not only it applies to those who retired prior to the Year 1996 but otherwise it is applicable to the command officers. It is neither the case where the petitioner retired prior to the Year 1996 nor the case where any of the petitioner held command rank. Thus irrespective of the fact that the order dated 09.02.20012 has not been applied by 9 the Air Force being an order issued by the armed force but otherwise also for the two reasons mentioned above, petitioner cannot seek benefit of the aforesaid letter/order. In view of the above, I do not find any substance in any of the arguments raised by the counsel for the petitioner. Hence all the writ petitions are dismissed accordingly, with no order as to costs. (MUNISHWAR NATH BHANDARI ), J. lg./scd