FARMAN ALI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) BY means of this petition the petitioner has prayed for a writ of certiorari quashing certain orders passed by the Government of Uttar Pradesh and Accountant General U. P. Allahabad rejecting the petitioner's claim for fixing his pension at Rs. 101/- per month and death- cum- retirement, gratuity at Rs. 4575/- as well as for a writ of mandamus commanding the said' respondents to fix the petitioner's pension and the death- cum- retirement gratuity at the amount mentioned above.

(2.) THE relevant facts are that the petitioner was initially appointed on 11-3-1928 as a copyist in the Munsif's Court at Bijnor. On 1,-1-1970 he retired as Sadar Munsarim District Judges Court. After his retirement his pension was fixed at Rs. 86/- per month and the death cum retirement gratuity Rs. 3975/-. THE petitioner felt aggrieved by this and filed a representation dated 14-5-1970 addressed to the Government of Uttar Pradesh and the same was forwarded by the District Judge Bijnor. In this representation the petitioner claimed that as he was drawing a substantive pay of Rs. 265/- on the date of retirement and as the petitioner was getting Rs. 40/- as deraness allowance on 19-3-1962, the date on which the U. P, Retirement Benefit Rules,' 1961 came into force, the petitioners' emoluments for the purpose of determining his pension and death cum- retirement gratuity would 4egally by deemed to be Rs. 305/-. Consequently in accordance with the aforesaid Rules his pension worked out to Rs. 101/- per month taking the average of three years emoluments as defined by Rule.3 (2) of the aforesaid Rules. On the same ground his gratuity worked out to Rs. 4575/- in accordance with rule 5 of the aforesaid Rules. THE Government asked for the comments of the District Judge on this representation, who submitted the same through his letter dated 17-9-1970 in which the District Judge supported the claim of the petitioner. THEreafter the State Government asked the District Judge to take the opinion of the Accountant General U. P. in the matter. THE Accountant General by his letter dated 4-4-1974 replied that as the dearness allowance referred to in Rule 3 (2) (7) of the U. P. Retirement Benefit Rules had already been merged in the substantive pay of the petitioner w. e. f. 1-4-65, as a result of the petitioner's having opted for the new scale of pay, he was not entitled to the addition of dearness allowance payable on 29-3-1962 in the computation of pension and death- cum- retirement gratuity under the U. P. Retirement Benefit Rules 1961. THE District Judge did not agree with the reasoning of the Accountant General and accordingly referred the entire matter to the Government stating that the fact that the petitioner had opted for the new scale of pay introduced w. e. f. 1-4-1965 did not affect the right of the petitioner to have the dearness allowance added to his substantive pay for purpose of pension and gratuity in terms of the U. P. Retirement Benefit Rules and further that the Government Notification amending the U. P. Retirement Benefit Rules w. e. f. 1-4-70 was not applicable to the petitioner who had aleready retired from service on 1-1-70. THE Government, however, did not agree with the opinion of the District Judge and by an order dated 28th April, 1975 rejected the representation of the petitioner. By another order dated 17th July, 1976, the Government rejected a subsequent representation to the same effect submitted by the petitioner on 14-6-1976.

(3.) IT is thus apparent that emoluments for the purpose of determining pension and gratuity admissible to the petitioner would include not only the pay drawn by the petitioner at the time of his retirement but also dearness allowance as admissible on the date of Notification (which was 29-3-62) in view of the clear and unambiguous terms of Clause (vii) of sub-rule (2) of Rule 3. Under Rule 4, the amount of pension or gratuity has to be fixed at the appropriate amounts set out in the Annexure to the Rules which lay down the scales of gratuity or pension. Gratuity is calculated on the basis of the monthly emoluments drawn by the employee at the time of his retirement and the pension is determined on average emoluments.