N D BUCH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioner who was a member of the Indian Administrative Service (IAS for short) was holding the post of Additional Chief Secretary to the Government of Gujarat Home Department when he was due to superannuate from service with effect from 17/11/1972 He was however granted six months extension in service and retired with effect from 17/05/1973 He was reemployed as Commissioner for Tourism from 18/05/1973 and worked as such upto 2/01/1974 Thereafter he was re-employed as Member-Secretary of the Administrative Reforms Committee from 24/01/197 4/07/1975 While the petitioner was employed as Member-Secretary of the Administrative Reforms Committee he also held charge of the post of Vigilance Commissioner. From 28/07/1975 the petitioner was re-employed as full-time Vigilance Commissioner which post he held till 10/09/1980 It is the case of the petitioner that during the period of his re-employment his pay was determined in accordance with the formula of last pay drawn minus pension including pension equivalent of Death-Cum-Retirement Gratutity (DCRG for short) which was determined at Rs. 239 per month. In the different posts in which the petitioner was re-employed after his retirement from service his pay was fixed as follows: @@@ ---------------------------------------------------------- S. No. Post Period Salary Pension Net held of the & Pen Salary post sion paid held equi- (exc- alent luding of allow- DCRG ances) deduct- ed from the sal- ary pay- able as per Co.4 ---------------------------------------------------------- 1 2 3 4 5 6 ---------------------------------------------------------- Rs. Rs. Rs. 1 Commis- 18-5-73 3000/- 937/- 1824/- ioner of to & Tourism 2-1-74 239/- 2 Member- 21-4-74 3000/- 937 1824/- Secretary to & Administrative 27-7-75 239/- tive Reforms Committee 3 Vigilance 28-7-75 3500/- 937/- 2324/- Commissioner to & 19 239 ---------------------------------------------------------- @@@

(2.) The petitioner submits that in S. P. Sinha v. Union of India and Others A. I. R. 1986 SC 240 the Supreme Court hold that there was no justification for deduction of pension equiva- lent of gratuity from the salary of the petitioner before the Supreme Court who was a retired High Court Judge payable to him during his reemployment as Chairman of the Andhra Pradesh Administrative Tribunal at Hyderabad to which he was appointed after his retirement as High Court Judge. The Supreme Court held that deduction of pension equivalent of gratuity from his salary of the re-employed post was illegal and directed payment of the amount deducted for his salary. The petitioner submits that the said decision of the Supreme Court is applicable to his case and therefore as held by the Supreme Court the amount of Rs. 239.00 per month being the equivalent of DCRG could not have been deducted from his salary during the re-employ- ment period. According to the petitioner since deduction of Rs. 239.00 per month as pension equivalent of DCRG was without any foundation in law he was entitled to refund thereof He therefore made representation to the State Government for refixation of his pay during the period of his re-employment in the light of the aforesaid decision of the Supreme Court and to issue appropriate orders for refund of the pension equivalent of DCRG illegally deducted from his salary. The petitioner made further representations to the State Government as stated in the petition since the only reply which he had received from the State Government was that the matter was referred to the Government of India.

(3.) Petitioner has further pointed out that A. A. Dave J a retired High Court Judge who was re-employed after his retirement filed a petition being Special Civil Application No. 5712 of 1987 before this Court claiming that the pension equivalent of DCRG was illegally de- dueled from the salary payable to him for the period during which he was re-employed as Educational Tribunal with effect from 1/09/1974 The said petition was allowed and the amount of pension equivalent of DCRG illegally deducted from his salary was directed to be refunded to him with 12 per cent interest. The petitioner submits that his case is similar to the case of A A Dave J The petitioner further submits that the gratuity which is paid to him under Rules 18 and 19 of the Retirement Benefit Rules applicable to IAS Officers has not link with the pension and therefore pension equivalent of DCRG could not have been deducted from the salary of the post to which he was reemployed It is not disputed that the petitioner was entitled to last pay drawn before his retirement minus pension on his re-employment as aforesaid but the contention is that the term pension would not include pension equivalent of DCRG According to the petitioner it is wholly illegal artificial and arbitrary to deter- mine pension equivalent of DCRG and to include the same or treat the same as part of the pension for the purpose of calculating the amount of salary payable to a re-employed Government servant by deduction of not only the pension but also pension equivalent of DCRG.