JUDGMENT :

Special Civil Application No. 8114 of 2021

1. Heard learned advocate Ms. Harshal Pandya for the petitioner, Ms. Surbhi Bhati, learned AGP for respondents no. 1 and 2 and Ms. Princy Shah, learned advocate for Mr. Hemang Shah, learned advocate for respondent no. 3.

2. Rule returnable forthwith. Ms. Surbhi Bhati, learned AGP for respondents no. 1 and 2 and Ms. Princy Shah, learned advocate for respondent no. 3 waive service of notice of rule. With the consent of the learned advocates for the parties, the matter is taken up for final hearing today.

3. In this petition, under Article 226 of the Constitution of India, the petitioner who voluntarily retired as Principal Private Secretary on the establishment of the High Court of Gujarat on 22.12.2016 has come to this court praying for a writ of mandamus or any other writ to the respondent authorities and to direct the respondent authorities to fix her pension and other retirement dues on the basis of pay drawn by her in the pay-scale of Rs.67700-208700 at the time of her retirement i.e. 31.12.2016.

4. Facts in brief leading to the filing of the present petition are as under:

4.1 The petitioner joined the establishment of the High Court of Gujarat on her being selected and appointed as Private Secretary (Stenographer - Grade I) vide office order dated 25.02.2000. By an office order dated 12.09.2002, she was ordered to be continued to officiate on that post on a long term basis. Prior to her joining the High Court, the petitioner had served in various departments of the Central Government in different capacities which was treated as continuous service without interruption only for the purposes of pension and other retiral benefits. This office order was passed on 13.05.2003 by the respondent no. 3 i.e. the High Court of Gujarat (on its administrative side).

4.2 By a notification dated 12.08.2011, the petitioner was promoted as Principal Private Secretary and she was confirmed on the said post vide notification dated 01.10.2012. As a Private Secretary, she was drawing her pay in the scale of Rs.6500-10500 (Fifth Pay Commission) which was revised to Rs.9300-34,300, Grade Pay - Rs.4200 which was later on revised to Grade Pay Rs.4600 with effect from 01.01.2006 as per the Sixth Pay Commission. As Principal Private Secretary, she drew her pay in the scale of Rs.15600-39100 with a grade pay of Rs.6600/-. As per the 6th Pay commission, the petitioner's pay was revised as Rs.67,700- 2,08,700. She took voluntary retirement which was accepted and she retired from service which was accepted from 31.12.2016. At the time of retirement, the pay of the petitioner was in the scale of Rs.67,700- 2,08,700.

5. Ms. Harshal Pandya, learned counsel for the petitioner would draw the attention of the court to the pension payment order and submit that the petitioner's pension and other retirement benefits have been fixed considering her pay as per the 6th Pay Commission in the pay scale of Rs.15,600-39,100 (Grade Pay Rs.6600). Despite the fact that no inquiry was either pending or contemplated, her pension has been fixed in the scale as per the 6th Pay Commission rather than that of the 7 th Pay Commission. Ms. Pandya would draw the attention of the Court to the pay fixation order (page 104) and submit that as per the decision of the Division Bench in Letters Patent Appeal No. 652 of 2016, considering Rule 8 and Rule 13 of the Gujarat Civil Services (Revision of Pay) Rules, 2009, the pay of the petitioner was fixed.

5.1 Ms. Pandya would draw the attention of the court to the Gujarat Civil Services (Pension) Rules, 2002 particularly the definition of pensionable pay as per Rule 2(56) and submit that as per this definition 'Pensionable Pay' would mean the average pay earned by a government employee during the last ten months of service and inasmuch as the pay of the petitioner when she retired was as per the 7th Pay Commission, pension ought to have been fixed and paid in accordance therewith.

5.2 Ms. Pandya wo