IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 2010 of 1994 DATE OF DECISION : 16.05.2011 Krishan Lal Dhingra .... PETITIONER Versus State of Haryana and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. K.L. Dhingra, Advocate, petitioner in person. Mr. D. Khanna, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J The petitioner was working as Stenographer in the Haryana Education Department (Ministerial cadre). In the month of October, 1991, he sought voluntary retirement by tendering three months' salary in lieu of notice period. His prayer was accepted and he was permitted to retire voluntarily with effect from 10.10.1991. After the voluntary retirement of the petitioner, while taking into consideration his last ten months average pay, his pension was calculated. As per his service record, if the petitioner would not have sought voluntary retirement, his next annual increment was due on 1.1.1992. It is the case of the petitioner that while calculating his pension, his would-be pay upto the month of January, 1992, when three months' CWP No. 2010 of 1994 -2- notice period was to complete, should have been taken into consideration. Therefore, while not adding the annual increment falling due in the next three months, his pension was not correctly calculated. Due to this illegality, he is getting less pension. The petitioner filed the instant petition for issuing direction to the respondents to revise his pensionary benefits, by adding next annual increment, falling within three months of the voluntary retirement sought by him, in his last pay. In the written statement, while referring to Rule 3.26 (d) Note-7 (IV) of Civil Service Rules Volume I Part I, it has been stated that since the Government employee stands retired immediately on payment of three months' pay and allowances in lieu of the notice period and thereafter, he shall not be deemed to be in service, therefore, the question of taking into consideration the increment arising subsequent to the date of his retirement does not arise. In this case, since the petitioner sought retirement on 10.10.1991, therefore, he was not entitled for any increment, which was to become due on 1.1.1992. I have heard learned counsel for the parties. Learned counsel for the petitioner argued that when the salary is paid for the notice period, the necessary legal consequence is that for the said period, the employee must be regarded as working and thus, he becomes entitled to receive pension at the expiry of the said period. Learned counsel argued that in the present case, notice period of the petitioner CWP No. 2010 of 1994 -3- should be taken three months after 10.10.1991 and during that period, if any increment became due to him, the same should have been taken into consideration, while calculating his pension. In support of his contention, learned counsel has placed reliance upon a Division Bench decision of the Mysore High Court in B.U. Venkataramaiah v. The State of Mysore by its Chief Secretary, Bangalore, 1971 (1) S.L.R. Vol. 5, page 72. I have considered the submissions made by learned counsel for the petitioner and do not find any force in the same. The case of the petitioner is of voluntary retirement and not of compulsory retirement. In case, an employee seeks voluntary retirement from a particular date, he is required to either give three months' notice prior to that date or to tender salary in lieu of that period. In case of compulsory retirement of an employee by the employer from a particular date, the employer is required to either give three months' notice or to pay salary in lieu thereof, i.e. three months subsequent to the date on which an employee is to retire compulsorily. The notice period in both the cases are different. In case of voluntary retirement from a particular date, three months' notice should be prior to that date and in case of compulsory retirement of an employee on a particular date, three months' notice must be subsequent to that date. The judgment in B.U. Venkataramaiah's case (supra) pertains to compulsory retirement by the employer. In view of this fact, it was ordered that while calculating the average salary of the employee, if during the said period, an increment becomes due, such increment should be taken into account, not CWP No. 2010 of 1994 -4- only for the purpose of salary to be paid to the employee in lieu of notice period, but also for determining his pension. But in the instant case, the petitioner himself sought voluntary retirement by tendering three months' salary in lieu of the notice period. Before seeking voluntary retirement, he was supposed to give three months' notice. Therefore, the notice period in the case of voluntary retirement is prior to the date of retirement. On the very day of tendering salary in lieu of notice period, the petitioner was ceased to be an employee and as per Rule 3.26 (d) Note 7 (IV) of CSR Volume I Part I, after retirement of a Government employee, the question of taking into consideration an increment becoming due after his retirement does not arise, at all. Therefore, the respondents have rightly calculated the pension of the petitioner, while taking into consideration his last ten months average pay and not taking into consideration the annual increment, which was to become due in the month of January, 1992, much after his retirement on 10.10.1991. Thus, I do not find any illegality in calculating the pension of the petitioner. Dismissed. May 16, 2011 ( SATISH KUMAR MITTAL ) ndj JUDGE