J.P. BARISAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The prayer of the petitioner in the instant writ petition is to issue direction to the respondents to sanction to the petitioner pension @ Rs. 15,000.00 per month with other hcu fit;, such as commutation. gratuity P.L. encashment, family pension etc.

(2.) The facts leading to the institution of the writ petition are that the petitioner joined Rajasthan Judicial Service on Jan. 30, 1972 and was promoted to the Rajasthan Higher Judicial Service in the month of April 1974. While the petitioner was still in the Rajasthan Higher Judicial Service as Law Secretary, the State of Rajasthan took the decision to appoint the petitioner as Judicial Member of the Rajasthan Taxation Tribunal (for short R.T.T.) and sought petitioner's consent vide letter dated Sept. 6, 1995. It was interalia stated in the said letter that the Judicial Member shall receive such salary, allowances and other facilities as were admissible to a High Court Judge of Rajasthan. The petitioner accorded his consent and was appointed as Judicial member of R.T.T. vide Notification dated Sept. 16, 1995 under Sec. 3(2) (a) of the Rajasthan Taxation Tribunal Act, 1995 (for short R.T.T. Act) for a period of five years or until he attained the age of 62 years whichever was later. The petitioner joined R.T.T. as Judicial member on Sept. 18, 1995. While the petitioner was serving as Judicial Member of R.T.T. the High Court retired him on July 31. 1997 as R.H.J.S. officer. The petitioner was appointed as Acting Chairman of R.T.T. on Dec. 27, 1997 and remained as such till Feb. 28, 199 when R.T.T. stood abolished vide Rajasthan Taxation Tribunal (Repeal) Act, 1999 but the right to got pension was saved by section 4 of the said Act. While working as Acting Chairman the petitioner was entitled to receive such salary and allowances as are admissible to the Chief Justice of Rajasthan. The petitioner was drawing monthly pay in the sung of Rs. 26000.00 as Judicial Member and Rs. 30000.00 as Acting Chairman with D.A. and other allowances. The grievance of petitioner is that although he was in continuous service of the State for 37 years without break and was entitled to receive pension @ Rs. 15000.00 per month, yet was only allowed pension in the sum of Rs. 9450.00 per month vide Annexure-8 and further pension in the sum of Rs. 1300.00 per month as per order dated June 19, 1999 (Annexure 17). The petitioner averred that as per the formula 1,80,000X9.15/2 he is entitled to Rs. 8,23,500.00 towards commutation, Rs. 3,50,000.00 towards gratuity and PL for 300 days @ Rs. 30000.00 plus D.A. per month.

(3.) The respondents submitted return to the writ petition and averred that the petitioner retired from R.H.J.S. on July 31, 1997 on completion of 60 years of age. He was granted all the retiral benefits such as opinion, gratuity and commutation. All these benefits were consciously accepted by the petitioner without any protest. The petitioner was also given,the benefit of revision of pay scales up-n the acceptance of the recommendations of Fifth Pay Commission and revised Pension orders, revised commutation order and revised Gratuity Payment order were issued on May 1, 1998. The respondents pleaded that the claim of the petitioner for grant of pension on the salary of a Judge of High Court was not considered by the High Court presumably for the reason that the High Court could grant pension on the highest salary of R.H.J.S. The respondents denied that the petitioner was continuously in service of the State. The petitioner on attaining the age of superannuation was retired from R.H.J.S. and paid all the retiral benefit and the petitioner received all the retiral benefits without any murmur. The respondents denied that effective date of retirement of the petitioner would be Sept. 17, 2000 when he completed his service in the Tribunal. The petitioner's pension as Member to Taxation Tribunal has rightly been fixed in accordance with the specific rules being framed in case of the Judges of the High Court. Earlier the High Court Judge was entitled to have his pension calculated @. Rs. 1600.00 for each completed year of service and this has now been revised and raised to Rs. 5200.00 for each completed years and a maximum of consolidated pension in case of a Judge of High Court to Rs. 1,56,000.00 and Rs. 1,80,000.00 per annum in case of Chief Justice of High Court. Accordingly the petitioner has been allowed the benefit of additional pension of Rs. 1300.00 per month for the period of three years completed by him while working as Member and later Acting Chairman of the Tribunal. The respondents further averred that the petitioner has been granted the benefit of revised pay following the acceptance of the recommendations of Fifth Pay Commission w.e.f. Sept. 1. 1996, which accordingly reflected in his pension, commutation of pension and gratuity etc. Rule 256-D (b) of the R.S.R. is not at all relevant for the purpose of calculating his pension of the Member of the Tribunal. While calculating the pension of the petitioner as Member of the Taxation Tribunal para 2(a) of part III of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954 is relevant and same was applied in his case. There is absolutely no justification for the petitioner's assumption that his monthly pension should have been fixed at Rs. 15000.00 per month. Perhaps the petitioner calculated his pension as if he is retired as Judge of the High Court elevated to the bench from the subordinate judiciary. The Taxation Tribunal was a statutory body created pursuant to Art. 323B of the Constitution which is not akin to High Court. The respondents further averred that Rs. 3,50,000.00 is the revised gratuity even for R.H.J.S. after implementation of the report of the Fifth Pay Commission and the petitioner has also been paid gratuity amounting to Rs. 3,50,000.00 as per Gratuity Revised Payment Order (Annexure R/3). The petitioner has been paid PL encashment. The respondents denied that H.P.L. is added to PL. The representation dated Aug. 7, 2000 submitted by the petitioner was duly considered and rejected by a speaking order.