RAMESH CHANDRA Vs. STATE OF U P

JUDGEMENT

(1.) The present writ petition has been filed challenging the order, dated 11.9.2002 (Annexure-12 to the writ petition) passed by Respondent No. 3 and the order, dated 31.1.2003 (Annexure 13 to the writ petition) passed by Respondent No. 2, whereby Rs. 98,125.00 have been deducted from the gratuity and commutation amount in the order of revision of pay of the petitioner. The fact arising out of the present writ petition is that the petitioner was appointed as Overseer on 5.12.1960 in U.P. Lok Nirman Vibhag and later on the petitioner was made permanent as Junior Engineer subsequently to the post. The petitioner retired on the aforesaid post on 31.10.1997. At the time of retirement of the petitioner, the petitioner was drawing salary of Rs. 11,300.00 per month since 1.1.1997. The method of fixation of pension is an average of last month of salary drawn multiplied by number of years of service (subject to maximum 33 years) divided by 66. In the case of petitioner, the amount of pension as per calculation came to Rs. 5,650.00. The petitioner was accordingly being given the calculated amount as provisional pension plus D.A. per month by the respondents up to 31.1.2003. Thereafter, on 27.7.1998, the Respondent No. 2 pointed out certain irregularities in the pay scale of the petitioner as on 1.12.1979 and accordingly issued a letter to the Respondent No. 3, dated 22.7.1998, to refix the pay scale in accordance with the G.O. No. VA-2191/Dus-39 (M)-98, dated 20.11.1981. In the said letter, the Respondent No. 2 directed the Respondent No. 3 to refix the pay scale on the basis of the Option-I exercised by the petitioner while opting for the new selection grade. It has been submitted that the Respondent No. 3 replied the letter, dated 22.7.1998, vide letter, dated 26.8.1998, stating therein that there has been no irregularity in calculating the pay scale and the pension of the petitioner and the same has been done in accordance with law. It has also been stated in the said letter that the petitioner has opted for Option-II while opting under the notification, dated 20.11.1981, for new selection grade, which is clear from the service book of the petitioner. A copy of the said letter has been annexed by the petitioner as Annexure-2 to the writ petition. Subsequently again on 23.6.1999, the Respondent No. 2 wrote a letter to the Respondent No. 3 directing him to recalculate the pay scale of the petitioner on the basis of the Option-II exercised by the petitioner and in accordance with G.O., dated 4.2.1983 and has been directed to make necessary recovery of the salary from the petitioner. Again, the Respondent No. 3 replied back on 9.7.1999 that in view of the Option-II exercised by the petitioner and in view of the Notification, dated 4.2.1983, the petitioner's basic pay scale as on 1.12.1979 has been rightly fixed at Rs. 690.00. Accordingly, Rs. 930.00 is correct in accordance with the pay scale and has been rightly fixed in accordance with the G.O. dated 4.2.1983. It was also pointed out that Respondent No. 2 has also applied the same ratio in the case of Sri Giri Prasad Sharma vide its Letter No. 1560 Lekha, dated 19.5.1994, and therefore, the service book is being returned for the follow up action in accordance with law. Again the Respondent No. 2 on 28.12.1999 has issued a letter to Respondent No. 3 asking him to refix the pay of the petitioner in accordance with the G.O. dated 20.11.1981. The Respondent No. 3 again reiterating the same reply that the fixation of the pay of the petitioner is in accordance with letter, dated 19.5.1994, and the same is according to law and has stated that the pension of the petitioner has been fixed as per rules. Again by the similar type of letter, dated 1.7.2000, the Respondent No. 2 issued a letter making some queries from the Respondent No. 3 in respect of the Option exercised by the petitioner in the Notification, dated 20.11.1981. The Respondent No. 3 again replied the said letter and has clearly stated the fact that the pay of the petitioner as on 1.12.1979 has been rightly fixed on the basis of the Option-II exercised by the petitioner. It was also pointed out that in the cases of Sri Jagdish Prasad Agarwal and Sri R.P. Gupta, both junior engineers, who have exercised Option-II have been given the pay scale which is being given to the petitioner and no objection to that effect has been raised and as such there is no illegality in the calculation of the petitioner's pay scale and thus the pension of the petitioner may be fixed as early as possible.

(2.) That inspite of the aforesaid fact, the petitioner submits that vide its Order No. 1524/PF, dated 27.7.2001, the concerned respondent has refixed the pay of the petitioner as on 1.12.1979 with a basic pay of Rs. 780.00 (Instead of Rs. 930.00) and, accordingly, after the subsequent calculation the average of last ten months pay drawn on 1.1.1997 came to Rs. 9,650.00. The petitioner submits that no notice of hearing was given or opportunity was given before passing the order dated 20.7.2001.

(3.) In view of the aforesaid fact, the petitioner requested the Respondent No. 2 to make the necessary rectification and immediately release to the petitioner the amended pension, gratuity and commutation amount, so that the matter is closed. Petitioner submits that inspite of the aforesaid fact, vide letter, dated 26.4.2002, the Respondent No. 2 reduced the pay scale of the petitioner as on 1.12.1979 from Rs. 515.00 to Rs. 495.00 and has directed the Respondent No. 3 to refix the pay scale in accordance with the reduced pay scale and to make the necessary recovery of the excess amount paid to the petitioner. It has been submitted that the Respondent No. 2 has neither considered the various letters and nor even considered the last calculation chart issued by the Respondent No. 3 and has arbitrarily fixed the basic pay of the petitioner as on 1.12.1979 at Rs. 495.00 and in view of the aforesaid fact, the Respondent No. 3 vide its letter dated 11.9.2002 and the recalculated pay fixation chart at the reduced basic pay of Rs. 495.00 on 1.12.1979 and fixed the last pay drawn as on 1.1.1997 to be Rs. 9,925.00. Petitioner further submits that before passing the aforesaid order, dated 11.9.2002, the petitioner has not been issued any notice or opportunity of hearing while it was necessary for the respondents to give an opportunity of hearing to the petitioner.