An employee cannot be penalized for the non-conduct of required examinations, and pension must be fixed based on the last drawn pay.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present appeal emanates from the order dated 19.06.2019, whereby the learned Single Judge has rejected the writ petition filed by the appellant seeking fixation of pension based on his last pay drawn as Deputy Chitnis along with pay difference of amount from 2010.

2. At the outset, learned senior advocate Mr.Joshi has submitted that the learned Single Judge fell in error in rejecting the writ petition on the ground of delay since denial of pension on the enhanced pay, as claimed by the appellant, would be recurring cause of action. He has submitted that the appellant was promoted by the order dated 03.04.2006 to the post of Deputy Chitnis with condition that he has to pass the departmental examination. It is submitted that the appellant appeared in the departmental examination, which was held in the year 2006 however, he could not clear the same and thereafter, he retired on the same post on 30.11.2010. While placing reliance on the rules governing the departmental examination to the post of Deputy Chitnis, he has pointed out the notification dated 20.08.2002 more particularly, Rules 3 and 5 thereof and has submitted that the appellant still had two chances to appear in the departmental examination however, since the same was not held, he retired on the post of Deputy Chitnis and he was never reverted from the said post on the ground that he did not clear the departmental examination.

3. Learned senior advocate Mr. Joshi has referred to the certificate issued on 28.03.2012 by the Deputy Secretary of the respondent-department and has submitted that it is admitted that from 08.06.2006 to July, 2011, no departmental examination was held for the post of Deputy Chitnis however, the said certificate refers to an issue of grant of second higher pay-scale. It is submitted that the claim of higher pay-scale has been introduced by the State Government in lieu of promotion and employee, who remained stagnated for particular years, subject to passing of the departmental examination, as envisaged in the notification dated 20.08.2002. Thus, it is submitted that the appellant cannot be denied fixation of pension on the pay, which he has received at the time of retirement on the post of Deputy Chitnis for the sole reason that he did not clear the departmental examination. He has submitted that the appellant cannot be made to suffer for inaction of the respondent authorities of not holding the departmental examinations, as per the rules. In support of his submissions, he has placed reliance on the judgment dated 19.03.2019 passed in the writ petition being Special Civil Application No. 12488 of 2015. Thus, it is urged that the order passed by the learned Single Judge and the action of the respondent authorities in denying the pension fixation on the basis of feeder post is required to be quashed and set aside.

4. Per contra leaned AGP, while vehemently opposing the present appeal has submitted that the impugned order passed by the learned Single Judge does not require any interference and the same is appropriately passed. He has submitted that the appellant had retired in the year 2010, whereas the writ petition has been filed in the year 2019 i.e. after 9 years, seeking fixation of pension and hence, the writ petition is required to be rejected on the ground of delay. He has submitted that the appellant was promoted to the post of Deputy Chitnis with a specific condition of clearing the departmental examination however, since he did not do so, his pension was fixed at the pay he received on the feeder post i.e. Senior Clerk. It is submitted that the prayers made by the petitioner-appellant are precisely rejected by the learned Single Judge as unquestionably the appellant did not clear the departmental examination, which is required under the Rules. He has further submitted that till retirement, the appellant worked as a Deputy Chitnis and as per the promotional order, since he did not clear the departmental exami