THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO W.P.No.6946 of 2011 ORDER (Per Sri Justice Ghulam Mohammed) This writ petition is filed assailing the legality and validity of the order dated 23.11.2010, passed in O.A.No.146 of 2006 by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short ‘the Tribunal’). 2. The brief facts are that the first respondent joined in the Department of Posts as Sorter on 01.12.1964 in RMS, A.G.Division, Guntakal. Subsequently, he was promoted to Higher Selection Grade-II (Postal Assistant) in the pay scale of Rs.5000- 150-8000 and posted at A.P.M.Accounts, Srikalahasti H.O. under the control of Superintendent of Post Offices, Tirupathi Division. It is stated that pursuant to the decision dated 30.03.2001, of the President of India and upon the directions of the Chief Postmaster General, A.P.Circle, Hyderabad, the first respondent was promoted and posted in HSG-I post i.e, Postmaster, Madanapally H.O in Chittoor Division and worked from 31.12.2002 to 29.01.2003 and again he was continued as HSG-I Postmaster, Madanapally from 01.03.2003 up to 30.04.2004, on which date, he retired from service on attaining the age of superannuation. It is stated that the actual pay drawn by the first respondent was at Rs.7,900/- in the scale of Rs.6500-200-10500 as per the last pay certificate issued by the Postmaster, Madanapallem. The first respondent states that the petitioners have wrongly fixed his pension only at Rs.2233/- instead of Rs.5820/- for arriving at average emoluments. On representation made by the first respondent, the second petitioner vide letter dated 27.12.2005, informed him that the Directorate has clarified that HSG-I posts are required to be filled from HSG-II officials only who have put in the required length of regular service in HSG-II for promotion to HSG-I and the irregular appointments even on ad hoc basis from BCR officials to HSG-I are not possible to be regularized or relaxation granted. Hence, the first respondent filed the above said O.A. seeking to direct the petitioners to re-fix the pension and the retirement gratuity by taking into account the last pay drawn for 10 months prior to the date of his retirement and to draw the arrears on such re-fixation, by setting aside the said letter dated 27.12.2005. Through order dated 23.11.2010, the Tribunal allowed the said O.A. setting aside the said letter, and directed the petitioners to fix the pension and other pensionary benefits of the first respondent including retirement gratuity taking account his last pay drawn for 10 months prior to the date of his retirement and permit him to draw the arrears on such refixation with all consequential benefits, within a period of three months from the date of receipt of a copy of the said order, failing which, the petitioners shall pay interest at the rate as admissible on GPF deposits on the amount to be paid to the first respondent from the date of the said order till the date of actual payment. Aggrieved by the same, the petitioners filed the present writ petition. 3. Learned Assistant Solicitor General appearing for the petitioners contended that the Tribunal ought not to have allowed the O.A., since the first respondent worked in the cadre of HSG-I purely on ad hoc basis and that ad hoc period was not taken into account for calculating the pension and pensionary benefits and therefore, he is not entitled to re-fixation of pay and pensionary benefits. 4. Learned counsel for respondent No.1 contended that though the promotion of the first respondent to the post of HSG-I Postmaster was on ad hoc basis, he worked in the said post more than one year and was allowed to draw HSG-I pay scale. He further contended that as per Rule 34 of CCS (Pension Rules), the average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his service and therefore, the Tribunal has rightly allowed the O.A, which need not be interfered with by this Court. 5. Admittedly, the first respondent officiated in HSG-I Postmaster, Madanapally HO on ad hoc basis from 01.01.2003 till the date of his retirement on 30.04.2004. He worked in his promotional post of HSG-I Postmaster for more than one year before his date of retirement and he was allowed to draw HSG-I pay in terms of DGs Letter, dated 11.09.2003. The petitioners never raised any objection with regard to the said pay at the time of his working as HSG-I Postmaster. The 5th petitioner prepared pension papers of the first respondent taking account the last pay drawn by him in HSG-I post i.e., Rs.7900/-. But the third petitioner raised an objection based on the clarification letter dated 28.07.2005, issued by the Department of Posts that the regularization or relaxation of the appointments on ad hoc basis from BCR officials to HSG-I cannot be granted. The said clarification was issued after the date of retirement of the first respondent i.e., 30.04.2004 and as such, the Tribunal held that the said Directorate letter has no effect on the first respondent and allowed the said O.A. 6. Rule 34 of CCS (Pension) Rules, 1972 clearly state that ‘average emoluments’ shall be determined with reference to the emoluments drawn by the Government servant during the last 10 months of his service. Since the first respondent drawn the pay granted to him in HSG-I grade for a period of one year before his retirement and the same has never been objected by the petitioners, he cannot be denied for fixation of pension and other pensionary benefits as per the last pay drawn by him. Further, the clarification issued by the second petitioner has no effect on the first respondent as it was issued after his retirement, as rightly held by the Tribunal. Therefore, we do not find any infirmity in the order impugned. 7. The writ petition fails and is accordingly dismissed. No costs. ______________________ GHULAM MOHAMMED, J ________________________ N.R.L.NAGESWARA RAO, J Date:13.06.2011. sj