STATE OF MADHYA PRADESH Vs. KAILASH CHANDRA AGRAWAL

JUDGEMENT

(1.) THIS petition is filed challenging the order passed by the M. P. State Administrative Tribunal whereby the Tribunal has held that special pay paid to the employee shall be counted for calculating the average pay to determine the pension.

(2.) COUNSEL for the petitioners submitted that while delivering the judgment, Tribunal has lost sight of the explanation appended to Rule 30 of the Madhya Pradesh Civil Service (Pension) Rules, 1976 (hereinafter, referred to as the "pension Rules" ). He submitted that this amendment dated 6-11-1995 has been brought into force with retrospective effect from 1-1-1986. Counsel for the petitioners submitted that the word "emoluments" occurring in Rule 30 of the Pension Rules is defined in Rule 9 (21) (a) (i) of the Fundamental Rules. He submitted that after the amendment under the provisions of F. R. 9 (21) (a) (i), special pay is not included in the definition of "pay" for the purpose of calculating the pension. In support of his contention, Counsel for the petitioners has referred to the judgment in the case of Government of Andhra Pradesh v. Syed Yousuddin Ahmed, reported in AIR 1997 SC 3439, where similar explanation under Rule 31 of Andhra Pradesh Pension Rules and F. R. 9 (21) (a) (i) has been considered by the Apex Court.

(3.) COUNSEL for the respondent submitted that it is not open for the petitioners to challenge the judgment of the Tribunal. Application filed by the respondent before the M. P. State Administrative Tribunal was not opposed by the State. State has not filed any return before the Administrative Tribunal. By their conduct, petitioners have impliedly admitted the claim of the respondent. They have not denied the claim of the respondent. In the said facts of the case, this petition is not maintainable and is liable to be dismissed. Counsel for the respondent further contended that since similar benefit has been extended to other employees, respondent can not be discriminated. Counsel for the respondent prayed that the petition be dismissed.