C.W.P.No. 4784 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on : 16-02-2009 1. C.W.P.No. 4784 of 2002 O.P. Gupta ....Petitioner VERSUS State of Haryana ....Respondent Present:- Mr. O.P.Gupta, petitioner in person. Mr. A.K. Gupta, Addl. A.G., Haryana. 2. C.W.P.No. 5031 of 2001 S.C.Jain ....Petitioner VERSUS State of Haryana & another ....Respondents Present:- Mr. A.C. Jain, Advocate for the petitioner. Mr. A.K. Gupta, Addl. A.G., Haryana. CORAM:-HON'BLE MR. JUSTICE AJAY TEWARI. 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? -.- AJAY TEWARI, J By this order, I will decide C.W.P. No. 4784 of 2002 as well as C.W.P. No.5031 of 2001. Both the petitioners were District & Sessions Judge in Haryana, when they were appointed as Presidents of District Consumer Fora. They challenged the action of the respondents in deducting their pension from the C.W.P.No. 4784 of 2002 -2- salary being given to them. But that challenge was declined by this Court as well as by the Hon'ble Supreme Court holding as follows:- "The appointment of a District Judge, after his superannuation as the President of the district Consumer Forum under the Consumer Protection Act, cannot but be held to be a case of re-employment of a pensioner in as much as the said District Judge is in receipt of a pension for the services rendered as a District Judge in accordance with the provision contained in the Punjab Civil Service Rules, Volume II. Since Section 2.1 of Chapter II of Volume II, unequivocally states that every pension shall be held to have been granted subject to the conditions contained in Chapter VII and Chapter VII contains Rule 7.18 as well as Note 3 (a)(i), which have been extracted before, the conclusion is irresistible that the appropriate authority will have to decide the pay and allowances. Which the retired District Judge is entitled to receive on being appointed as the President of the District Forum notwithstanding the fixation of such pay under the Rules framed under Consumer Protection Act and while fixing the same, the principle underlined in Note 3(a)(i) has to be followed. This being the position, we see no infirmity with the government Order dated 25th of January, 1996 and under the said notification the salary of re-employed District Judges as President of the district Consumer forum, have rightly been fixed, taking into account the pension, which they are in receipt of as retired District Judges." After the petitioners were appointed, some members of the Bar were also directed to be appointed as Presidents of the District Consumer C.W.P.No. 4784 of 2002 -3- Forum. Now, the grouse of the petitioners is that w.e.f. 1.11.1997, the pay of the directly recruited Presidents was revised to Rs.8750-22850. They claimed that with effect from that date they are also entitled to be placed in the same pay scale(minus pension) on the analogy of 'equal pay for equal work'. In addition to this, basic relief they also averred that by document Annexure P-6, respondent-State has increased the benefit of leave encashment from 240 days to 300 days to the following categories w.e.f. 1.7.1997:- i) Retirement on attaining the age of superannuation. ii) Case where the service of a Government servant has been extended in the interest of Public service, beyond the date of retirement on superannuation: iii) Voluntary/pre-mature retirement: iv) Where the services of a Government servant are terminated by notice or by payment of pay & allowances in lieu of notice, or otherwise in accordance with terms and conditions of his appointment: v) In the case of termination of re-employment after retirement: vi) In the case of death of a Government servant while in service, to the family of the deceased: vii) In the case of leave preparatory to retirement: viii) In the case transfer of a Government servant to an industrial establishment: ix) On absorption of a Government servant in the Central Public Sector Undertaking/autonomous body wholly or C.W.P.No. 4784 of 2002 -4- substantially owned or controlled by the Central/State Government. x) A Government servant who resigns or quits service shall be entitled to case equivalent in respect of earned leave at credit on the date of cessation of service, to the extent of half of such leave at this credit, subject to a maximum of 150 days." On this score, they also claimed that benefit of 300 days' leave encashment should be granted. In addition to this, 2 other prayers have been made in C.W.P. No.4784 supra. It is contended that since the Hon'ble Supreme Court held them liable for the deductions under Chapter VII of Punjab Civil Services Rules (for short 'PCSR'), in that case they will be entitled to the benefits of pension particularly, in terms of Rules 7.22 and 7.24 of PCSR, which are quoted hereinbelow:- 7.22. Except as provided in Section III, a Government employee who, having been discharged with a pension subsequently re-employed, may not count his new service for a separate pension. Pension (if any) is admissible only for the new service combined with the old, the whole being counted as one service. "7.24 (a) If a gratuity received for the earlier service has not been refunded, gratuity or pension (as the case may be) may be allowed for the subsequent service, on the condition that the amount of such gratuity or the present value of such pension plus the amount of the previous gratuity shall not exceed the amount of gratuity or the present C.W.P.No. 4784 of 2002 -5- value of the pension that would have been admissible had the gratuity received for the earlier service has been refunded. (b) If the amount of such gratuity or the present value of such pension, plus the amount of the previous gratuity, exceed the amount of gratuity or the present value of the pension that would have been admissible if the gratuity received for the earlier service had been refunded, the excess must be disallowed." The argument is that the service of the petitioners as Presidents should count towards pension and gratuity. On behalf of the respondents, it is contended that as per Rule 7.18 of PCSR, the pay of the petitioners has been rightly fixed. Rule 7.18 is quoted hereinbelow:- "7.18. The authority competent to fix the pay and allowances of the post in which the pensioner is re-employed shall determine whether his pension shall be held wholly or partly in abeyance. If the pension is drawn wholly or in part, such authority shall take the fact into account in fixing the pay to be allowed to him. Note 1. A Head of a Department when delegated powers under Rule 7.17, may not allow the pensioner to draw full pension in addition to the full pay of the post except when the re-employment or continued employment is for bona fide temporary duty lasting for not more than a year or the pension does not exceed Rs.10 a month, C.W.P.No. 4784 of 2002 -6- when the power is delegated to any other subordinate authority, such authority may not allow the pensioner to draw in full a pension of more than Rs.10 a month, in addition to the full pay of the post. Note 2. Where the employment is in service paid from a local fund the authority determining whether the pension shall be wholly or partly held in abeyance shall be either:- (i) the authority administering the local fund, if so empowered by the competent authority by special or general orders in this behalf; or (ii) In any other case such other authority as the competent authority may prescribe; (iii) the provisions of note 4 below apply mutatis mutandis to retired Government employees re-employed under Local Funds. Note 3. The restrictions in this rule do not apply to ex- policemen whose pension does not exceed Rs. 10 a month. Note 4. [(a) In determining the pay of a re-employed pensioner the following principles shall be observed; namely:- (i) the initial pay on re-employment shall be fixed at the minimum stage of the scale of pay prescribed for the post in which an individual is re-employed. (ii) in addition to (i) above, the Government employee may be permitted to draw separately any pension sanctioned C.W.P.No. 4784 of 2002 -7- to him and to retain any other form of retirement benefit e.g. gratuity commuted value of pension etc. provided the total amount of initial pay as at (i) plus gross amount of pension and/or the pension equivalent of other forms of retirement benefits does not exceed the pay he drew before his retirement (pre-retirement pay) or [Rs.7600/-], whichever is less. (iii) in all cases, where either of these limits is exceeded, the pension and other retirement benefits may be paid in full and necessary adjustment made in pay so as to ensure that the total of pay and pensionary benefits is within the prescribed limits. (iv) once the initial pay of a re-employed pensioner has been fixed in the manner indicated above he may be allowed to draw normal increments in the time scale of the post to which he is appointed, provided that the pay and gross pension/pension equivalent of other retirement benefits taken together do not at any time exceed [Rs.7600/-] per month. (v) in case where the minimum pay of the post in which the Government employee is re-employed is more than the last pay drawn, the Government employee concerned may be allowed the minimum of the prescribed scale of post, less pension and pension equivalent of other retirement benefits. (vi) Where after the pay is fixed at the minimum, it is C.W.P.No. 4784 of 2002 -8- reduced below minimum as a result of adjustment as at (iii) increase in pay may be allowed after each year of service at the rates of increment admissible, as the pay had been fixed at the minimum." The argument of learned D.A.G. is that the Hon'ble Supreme Court has held the petitioners to be re-employed pensioners, who have to be granted pay in the minimum of the scale(minus pension) and therefore, the petitioners have no claim either for the revised grade and that the petitioners belong to a separate class, as compared to directly appointed Presidents from the Bar and therefore, are not entitled to the revised pay-scale. With regard to the claim of counting the service as President in the District Forum for the purpose of pension and gratuity, it is contended that the said service was a totally separate service and was not in continuation of the earliest service so as to be countable towards retirement benefits. So far as the first contention, with regard to the entitlement of revised pay is concerned, I find that the same merits acceptance. Note 4 of Rule 7.18 lays down the principles which have to be be observed. This cannot be construed to be a complete code in itself. It does not mandate that, for instance, the pay of retired pensioner cannot be fixed at a stage higher than the minimum. This can be illustrated even by the appointment order Annexure P-1, wherein it was specifically noticed that the petitioners were already in the pay-scale of Rs.5500-6900 and that pay was protected even while the pay scale of directly appointed Presidents were fixed at Rs.5500. Further Note 4 also lays down that a re-employed pensioner would be entitled to normal increments. These arguments are illustrative of the basic principle behind Rule 7.18 viz. that on re-employment after the C.W.P.No. 4784 of 2002 -9- retirement, the condition of service of a retired Government servant, cannot in normal circumstances be less favourable than at the time of their retirement. As mentioned above claim of the petitioners rests on the principle of 'Equal pay for equal work'. It is not being disputed that all Presidents of all District Consumer Fora have identity of job. Their responsibilities are the same. Their powers are similar. In the circumstances, to give them different pay-scales only on the ground that some have been appointed after retirement while some have come from the Bar, is completely arbitrary. This discrimination can be made on reasonable criterion, but never on a facet which has no nexus with any legitimate object. The argument that the petitioners joined the service with open eyes and therefore, cannot claim anything further, is only to be noticed to be rejected. The Fundamental Right of claiming equality can never be waived. Support has also been sought from the judgment of the Hon'ble Supreme Court referred to above to contend that it was noticed in that judgment that the petitioners have joined the service with open eyes. To my mind that observation would not apply in the present context, since that was a case where the petitioners were coming up against an express condition of their appointment and it was against that background that the Hon'ble Supreme Court made an observation about the petitioners having joined the service with the open eyes. In the present case, the petitioners are claiming a pay-scale which was subsequently granted to their colleagues. The only difference is that the petitioners have been appointed after retirement, while their colleagues have been appointed directly from the Bar. Thus, in my opinion, the petitioners are entitled for the higher pay-scale mentioned above from 1.11.1997 till such time they C.W.P.No. 4784 of 2002 -10- remitted the office of Presidents District Consumer Forum. Second prayer made is that as per Annexure P-6, the Government had increased the entitlement of leave encashment from 240 days to 300 days w.e.f. 1.7.1997 and one of the categories held entitled to the same was re-employed pensioners like the petitioners. With regard to this prayer, it may be noticed that no specific denial has been made except to state that two services are different services. In fact, this defence has been raised with regard to the prayer for counting the entire service as President of District Forum together with the service as District Judge for the purpose of pension and gratuity. In my opinion the plea for counting the service as President for the benefit of granting pension and gratuity would not be permissible as this was completely a separate service, where the petitioners were appointed by way of fresh appointment. However, this plea would be of no avail to the respondents with regard to the right of the petitioners to be granted leave encashment of upto 300 days. It may however, be noticed that the petitioners would be entitled to count only that service, which they had rendered as District Judges for this purpose and would not be able to combine the unavailed leave of their subsequent service towards computing the period of 300 days, because even though the petitioners are re-employed pensioners, they have been given a fresh appointment to a totally different post. In the circumstances, these writ petitions are disposed of with the direction to the respondents to grant to the petitioners revised pay scale of Rs.8750-22850 w.e.f. 1.11.1997 and to give them the benefit of enhanced leave encashment during their service as District Judges. The arrears on this account are to be computed and paid to the petitioners within a period of C.W.P.No. 4784 of 2002 -11- two months from the date of receipt of certified copy of this order. In the event that the payment is not made within two months, the petitioners would be disbursed the same along with interest @ 8% per annum from the date of accrual till the date of actual disbursement. Disposed of accordingly. 16th February, 2009. (Ajay Tewari) Monika Judge