The main legal point established in the judgment is that pension calculation should consider the pay scale admissible to the superior post and not solely the last pay drawn. Additionally, the ACP scheme introduced in 2010 with retrospective effect from 2006 would not be applicable to employees who had been given compulsory retirement before 2006.

JUDGMENT :

S.K. MISHRA, J.

1. The petitioner in this case being a retired Additional Chief Judicial Magistrate-cum-Sub. Judge has prayed for issuance of writ of mandamus directing the respondents to revise his pension in the light of the resolution issued by the Finance Department, Government of Jharkhand vide Memo No. 485/v dated 13.07.2011 on the scale of Rs.58930-70290 by granting the petitioner ACP in the revised scale i.e. the next high grade as mentioned above. He has also prayed for issuance of writ of mandamus directing the respondents to pay arrears of pension and revised scale from 01.01.2006 as per direction issued by the Finance Department in the aforesaid resolution.

2. Facts of the case are not in dispute.

The petitioner was appointed as a Temporary Munsif in the Department of Personal of the erstwhile Government of Bihar vide Notification No. VII/AI-502/72Ka-5005 dated 18.03.1975 and vide Memo No. 3707-24 dated 26.03.1975. After completion of 10 years of service the petitioner was promoted to Junior Selection Grade vide Notification dated 22.05.1987 and the scale of the petitioner was fixed at Rs.1350-50-1700-75-2000 with effect from 01.04.1985. The benefit of the Assured Career Progression (hereinafter referred to as ‘ACP’ for brevity) was given to the petitioner and was placed in the cadre of A.D.J. Later on vide Memo No. 872-90/Apptt. dated 21.04.2001 the petitioner was transferred to Khunti on the post of A.C.J.M. and the petitioner was given compulsory retirement on the recommendations of the High Court on 17.07.2001 from Khunti. After that, pursuant to resolution dated 03.07.2011 the pension of the petitioner has been revised and the same has been fixed at Rs.19,765/-. The petitioner made representation. After that it was informed to the petitioner that his pension has been revised on the pay scale of Munsif i.e. Rs.39530-54010/-. The petitioner, therefore, prays that he may be granted pension in the scale applicable to the Additional District Judge cadre.

3. The Under Secretary, Law (Judicial) Department, State of Jharkhand, filed a counter affidavit in this case wherein it is stated that respondent No. 1 is a formal party and no relief has been claimed against him.

4. A further counter affidavit has been filed by the Under Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, wherein as per Article 235 of the Constitution of India it is stated by the said respondent that the control of the District Judiciary is vested with the High Court and they have no say in this matter. In this case the High Court was not added as a party to the writ application but later on the Registrar General of the High Court of Jharkhand has been made a party as respondent No. 5. It has also filed an affidavit stating that the prayer of the petitioner for grant of ACP is not admissible. It is further stated that the petitioner was given compulsory retirement on 13.07.2011 by the High Court of Jharkhand, Ranchi with immediate effect under Rule 74(b)(ii) of the Bihar Service Code, 1952.

5. As far as the claim of ACP is concerned, it is submitted that on perusal of paragraph 6 of the resolution No. 1990/F dated 29.06.2010 issued by Department of Finance, Government of Jharkhand, it appears that the said scheme has been revised (ACP) and came into force w.e.f. 2006, whereas, the petitioner has retired from service in the year 2001 itself. So two questions arise in this case for determination. First is whether the petitioner is entitled to pension in the promoted cadre or he is entitled to pension in the cadre of the Munsif. The second question is whether the scheme floated on 29.06.2010 shall be applicable to the petitioner and his pension should be calculated after grant of ACP as per the said scheme.

6. As far as the employees who have been given compulsory retirement are concerned, their case is covered by Rule 46A of the Bihar Pension Rules, 1950 (as adopted by the State of Jharkhand), which re