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2022 Supreme(Bom) 800
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
MANGESH S. PATIL, SANDEEP V. MARNE, JJ.
Chandrakant Govardhan Berad - Petitioner
Versus
The State of Maharashtra, Through the Secretary, Law and Judiciary Department & Ors. - Respondents
Writ Petition No. 4507 of 2017
Decided On : 25-08-2022
For the Petitioner: Shri Ajay S. Deshpande.
For the Respondent:Smt. Vaishali N. Patil Jadhav, A.G.P., Shri Rajendra Deshmukh, Senior Advocate a/w Ms. Ashwini Sahastrabudhe, Advocate i/by Shri C.K. Shinde.
The determination of pensionable pay under the Maharashtra Civil Service (Pension) Rules, 1982 should ensure that the employee does not receive lesser pension than entitled, especially in cases of extension of service on a lower post after retirement.
Headnote:
Extension of Service - Pensionable Pay - Maharashtra Civil Service (Pension) Rules, 1982 - Rule 60, Rule 10
Fact of the Case:
The petitioner, a retired government servant, faced a unique conundrum where opting for an extension in service on a lower post resulted in a decrease in his pensionable pay, leading to lesser pension and other pensionary benefits.
Finding of the Court:
The court found that the petitioner's extension of service on a lower post should not have affected his pensionable pay, as his service after attaining the age of superannuation should not count for pension. The court held that the error in determining the pensionable pay deserved correction, and the petitioner's pension should be fixed based on his retirement from the higher post.
Issues: The main issue was the determination of the petitioner's pensionable pay in light of his extension of service on a lower post after retirement.
Ratio Decidendi: The court interpreted the Maharashtra Civil Service (Pension) Rules, 1982, particularly Rule 60 and Rule 10, to conclude that the petitioner's pensionable pay should be based on his last 10 months' average emoluments prior to his retirement from the higher post, and not affected by the extension of service on a lower post.
Final Decision: The writ petition was allowed, and the court made absolute in the terms that the petitioner's pension should be fixed based on his retirement from the higher post, with consequential benefits to be paid within a specified period.
JUDGMENT :
Sandeep V. Marne, J.
1. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.
2. The petitioner faces a unique conundrum. Extension in service opted by him on the post of Stenographer (Higher Grade) after retiring from service on the post of Personal Assistant has resulted in a anomalous situation where he is drawing lesser pension than what he would have drawn had he not opted for extension.
3. Some factual narration as a prologue to our judgment would be necessary. The petitioner joined the District Judicial Service on the post of Stenographer (Lower Grade) in June 1976 and came to be promoted on the post of Stenographer (Higher Grade) in June 1981. He was further promoted to the post of Personal Assistant to the Principal District and Sessions Judge, Ahmednagar on 07.12.1993 and retired on attaining age of superannuation on 31.01.2014. The post of Personal Assistant carried the Pay Band of Rs.9300 – 34800 with Grade Pay of Rs.5200. The last pay drawn by him at the time of retirement was Rs.31,790 + Grade Pay Rs.5200 = Rs.36,990.
4. Possibly on account of shortage of Stenographers, the Principal District and Sessions Judge, Ahmednagar offered to grant one year extension to the petitioner after his retirement and the petitioner opted for it. Ideally the extension in service ought to have been on the post of Personal Assistant on which he retired. However, for some unknown reasons the Principal District and Sessions Judge, Ahmednagar issued order dated 05.02.2014 granting extension of service to the petitioner for a period of one year with effect from 01.02.2014 on the lower post of Stenographer (Higher Grade). It was further directed that on the post of Stenographer (Higher Grade) he would draw salary in the pay which he was drawing at the time of his retirement. It was further directed that the petitioner would stand retired on superannuation on 31.01.2015.
5. The extension of service granted to the petitioner on the post of Stenographer (Higher Grade) resulted in a situation that he started drawing lesser pay than what he drew as Personal Assistant. This is because of the difference in Grade Pay admissible to the two posts. While post of Personal Assistant carried Grade Pay of Rs.5200, the Grade Pay admissible for the post of Stenographer (Higher Grade) was Rs.4,400/-. Therefore, even though he was granted pay protection at Rs.31,760 (pay drawn by him as Personal Assistant), even after his extension on the post of Stenographer (Higher Grade), there was difference of Rs.800 in the basic salary on account of difference in Grade Pay. Therefore as against total basic pay of Rs.36,990 which he drew as Personal Assistant on the date of his retirement, he was granted total basic pay of Rs.36,190 on the post of Stenographer (Higher Grade). He made representations on 24.02.2014 and 01.03.2014. However, no response was received. In the meantime he requested by letter dated 28.07.2014 for his retirement on 31.10.2014 and this is how his extension in service came to an end.
6. The petitioner filed Writ Petition No. 2764 of 2015 on account of non finalization of his retiral benefits, which was disposed of by order dated 29.08.2016 with liberty to file appeal before the Administrative Committee. Accordingly he filed Administrative Appeal dated 21.09.2016 and by communication dated 07.03.2017 his appeal was rejected.
7. On account of the fact that the petitioner drew total basic pay of Rs.36,190 on the post of Stenographer (Higher Grade) during preceding 10 months from 31.10.2014, his average emoluments for pension were considered at Rs.36,190/-. Had he not opted for extension, his average emoluments would have been Rs.36,990. This has led to receipt of lesser pension and other pensionary benefits. He has therefore prayed for determination of his pensionable pay by considering his date of retirement as 31.01.2014.
8. Appearing for the petitioner Mr. Ajay Deshpande, the learned advocate submits tha
