S F REGO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner was serving in the Judicial Services of the State of Maharashtra. He was appointed as a Judge of the City Civil and sessions Court on 5-12-1977 and superannuated on 4-12-1987. By order dated 26-11-1987 petitioner was re-appointed for the period of 5-12-1987 to 13-4-1988. By subsequent order dated 8-4-1988, he was once again reappointed for the period from 1-5-1988 to 31-10-1988/ The petitioner being reappointed his pay or re-appointment was fixed in terms of Rule 157 of the Maharashtra Civil Services (Pension) Rules, 1982. Rule 2 (a) of rule 157 reads as under :

(2.) THE petitioner thereafter was drawing salary and receiving pension as set out in the averments. It is the case of the petitioner that he was surprised to receive a letter dated 8-3-1990 from the Accounts Officer, City Civil and sessions Court, Greater Bombay enclosing zerox copy of the letter from 4th respondent setting out therein that during the petitioner's re-employment from 5-12-1987 to 31-8-1989 an over payment of Rs. 9762/- had been made to the petitioner. From the enclosure to the said letter, viz. Pay/salary Slip, it appears that the said claim has been made on the basis that pension plus pension equivalent to D. C. R. G. amounting to Rs. 767/- per month should have been deducted from the salary paid to the petitioner for the period 5-12-1987 to 31-8-1989 amounting to Rs. 9,762/ -. Thereupon the petitioner addressed a letter dated 21-3-1990 to the 4th respondent herein pointing out that the said amount was not deductable and relied upon the judgment of the supreme Court in (Shiveshwar Prasad Sinha v. Union of India and others), a. I. R. 1986 S. C. 240 and that the said judgment has been followed thereafter by the Gujarat High Court in the case of (Anuradha A. Dave v. State of Gujarat and another], A. I. R. 1988 Gujarat 257. The petitioner therefore, requested 4th respondent to direct Accounts Officer of the Bombay City Civil and Sessions Court not to take any steps for recovery of the said amount. The petitioner received one more letter dated 25-4-1990 from the Registrar, City Civil and Sessions Court, Mumbai which was further to the said letter dated 8-3-1990 from the Accounts Officer stating that the pay for the period of re-employment has been calculated at Rs. 6,240/- per month on the basis of the pay slip issued by the 4th respondent herein, that the amount of deductions of relief on pension and pension equivalent of gratuity made from the arrears for the period 5-12-1987 to 31-8-1989 comes to Rs. 22,653/- and hence a sum of Rs. 16. 413/- is to be recovered from the petitioner's pay and the petitioner was called upon to pay the said amount. The petitioner thereupon addressed a notice dated 26-6-1990 to the respondent setting out the facts as recorded herein and pointing out that the demand for Rs. 16,413/- based on deduction of pension equivalent of gratuity is illegal, without authority of law and is manifestly unjust. The petitioner protested against the same. Inspite of his protest, the demand was reiterated, the petitioner filed the present petition for the reliefs as set out therein. Various grounds have been raised in the petition which will be adverted to the extent necessary.

(3.) AT the time of hearing on behalf of the petitioners on account of subsequent events which have come on record namely Resolution of 16-3-1990, the petitioners have amended their petition to include Para 22 (a ). What is averred is that by the said resolution dated 16-3-1990, the respondents have decided that the pension equivalent of death cum retirement gratuity or gratuity in lieu of pension is not to be deducted from the pay of re-employed pensioner. Retrospective effect has been given to this order which is made effective from 1-1-1990. It is contended that the date 1-1-1990 is fixed arbitrarily. There is no rationale in fixing this date. Hence, the petitioner is entitled to the benefit of this order without reference to the date.