SBCWP No.7238/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.7238/2002. Om Prakash Dangayach Vs. Managing Director RSRTC & Anr. Date of order : November 6, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajnikant Sharma for the petitioner. Shri O.P. Sharma for the respondents. **** BY THE COURT :- Heard learned counsel for the parties. 2) This writ petition seeks to challenge the order dated 24/7/2002 whereby the respondents revised the earlier order dated 10/4/2002 and excluded the period between 20/3/1983 to 20/4/1995 for the purpose of grant of retiral benefits such as provisional pension, gratuity etc. 3) Learned counsel for the petitioner has argued that originally when the order dated 10/4/2002 was passed, the total period of service i.e. from 20/3/1983 till the petitioner was compulsorily retired on 23/1/2002 was taken into consideration for calculating his retiral dues but subsquently the respondents revised the said order vide impugned- order dated 24/7/2002 excluding the earlier period SBCWP No.7238/02. 2 i.e. 20/3/1983 to 20/4/1995. It was argued that neither any notice nor opportunity of hearing was provided to the petitioner prior to passing of the impugned-order. Learned counsel referring to the compromise which was arrived at between him and the respondents at Annexure-2 in the court of Additional Civil Judge argued that petitioner was earlier dismissed from service vide order dated 20/3/1983 but in the court, it was agreed upon between the parties that though petitioner would forgo his past claim/salary but he would be entitled to notional fixation from the date of dismissal till the date of his rejoining of duties. The aforesaid period therefore could not be excluded for the purpose of grant of retiral benefits. 4) Shri O.P. Sharma, learned counsel for the respondent-Corporation however submitted that petitioner had in the aforesaid compromise forgone of his claim with regard to his past service. The order dated 10/4/2002 was passed under ignorance of this aspect of the matter and therefore the order Annexure-4 dated 24/7/2002 was passed only with a view to rectifying the mistake. It was contended that petitioner himself in the representation Annexure-5 dated 1/8/2002 had stated that if any excess amount has been paid, same may be deducted from the final pension. It was submitted that amount of gratuity has already been paid to the petitioner, therefore such deduction could not be made. Petitioner having actually not served has right to receive any benefit SBCWP No.7238/02. 3 for the earlier period of service. He cannot be allowed to blow hot and cold at the same time as he had already forgone the claim excluding that part of the service. 5) I have given my anxious consideration to the rival submissions of the parties and perused the material on record, especially the terms of compromise. 6) It would be evident from clause 3 of the terms of compromise that petitioner had voluntarily forgone his past claim with regard to salary till date of rejoining service and undertaken not to claim any such dues. In clause 5 of the terms of compromise, it was further agreed between the petitioner and the respondent-Corporation that petitioner shall only be entitled to the notional pay fixation from the date of removal but he would not claim any salary for the intervening period between the date of removal till he rejoins the duties. 7) From the spirit and tenure of the compromise, it cannot be said that petitioner would not be entitled to the benefit for the intervening period w.e.f. 20/3/1983 to 20/4/1985 towards payment of retiral benefits. On the contrary, very significance of the notional pay fixation implies that pay of the petitioner shall have to be fixed upon his rejoining in continuity with earlier pay which he was lastly drawing when he was removed from service. Action of the respondents cannot therefore be justified. Even otherwise, respondents passed the SBCWP No.7238/02. 4 order Annexure-4 24/7/2002 substantially modifying the earlier order Annexure-3 dated 10/4/2002 but that order has been passed without any notice or opportunity of hearing to the petitioner. This had adverse financial effect on the petitioner. Therefore, order impugned deserves to be quashed. In the result, the writ petition is allowed. The impugned-order dated 24/7/2002 (Annexure-4) is quashed and set-aside. Petitioner would be entitled to receive consequential benefits together with interest @6% p.a. within a period of three months from the date, copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. anil