1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant No.1 - Mulshankar Jivanlal Pathak now through his heirs and legal representatives - original plaintiff No.1 challenging the Judgement and Order passed by the learned District Judge, Rajkot dtd.30/8/2005 passed in Regular Civil Appeal No. 22 of 1998 by which the learned appellate court has allowed the said appeal preferred by the respondents herein - original defendants by quashing and setting aside the judgement and decree passed by the learned trial court in Regular Civil Suit 780 of 1991 dtd.31/1/1998.
2.00. That the original plaintiffs instituted Regular Civil Suit No.780 of 1991 against the respondents - original defendants in the court of learned Civil Judge (SD), Rajkot for a declaration that the plaintiffs are entitled to claim amount of temporary increase in the pension even on acceptance of the reemployment after retirement.
3.00. At the outset, it is required to be noted that as such the aforesaid suit was instituted by there plaintiffs out of which the plaintiff Nos.2 and 3 died during the pendency of the present appeal and as their heirs and legal representatives are not brought on record and therefore, their names have been deleted and therefore, present Second Appeal is required to be considered qua appellant No.1 herein - original plaintiff No.1 only. It was the case on behalf of the original plaintiff No.1 that he was Deputy Collector in revenue department in Junagadh and he retired due to superannuation on 31/3/1987 and at the time of retirement, he was getting total pay of Rs.3456/- and was getting pension of Rs.1600/- and Rs.688/- towards temporary increase. That thereafter he was reappointed as an appellate officer in Rajkot Municipal Corporation at the fixed pay of Rs.2000/- per month on 17/9/1990. It was the case on behalf of the plaintiff that after retirement they were getting pension amount and also getting amount of temporary increase as per 43% on the basis of the government resolution, which came to be subsequently withhold and therefore, the plaintiffs instituted the aforesaid suit.
3.01. The suit was resisted by the defendants by submitting that the period during which the plaintiffs were continued on reemployment, they were not entitled temporary increase and therefore, it was requested to dismiss the suit.
3.02. The learned trial court framed issues at Ex.25 and thereafter by the judgement and decree dtd.31/1/1998 passed in Regular Civil Suit 780 of 1991, the learned trial court decreed the suit and declared that the action of the defendants to withdraw / recover the amount of temporary increase from the plaintiffs during their respective service period in the Rajkot Municipal Corporation is illegal, unjust and inoperative. The learned trial court also directed that the amount if any already deducted or being deducted from the plaintiffs' pension should be repaid / paid within 60 days.
3.03. That Being aggrieved by and dissatisfied with the judgement and decree dtd.31/1/1998 passed by the learned 8th Joint Civil Judge (SD), Rajkot in Regular Civil Suit No.780 of 1991, respondents - original defendants preferred Regular Civil Appeal No.22 of 1998 before the District Court, Rajkot and the learned Principal District Judge, Rajkot by his impugned Judgement and Order dtd.30/8/2005 has allowed the said appeal by quashing and setting aside the judgement and decree passed by the learned trial court by holding that as per the Government Circular, reemployed pensioners are not entitled to temporary increase in pension.
3.04. Being aggrieved by and dissatisfied with the impugned Judgement and Order passed by the learned appellate court, the original plaintiff No.1 - appellant No.1 - Mulshankar Jivanlal Pathak has preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
4.00. Mr.A.R.
Thacker, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned appellate court has materially erred in allowing the appeal preferred by the respondents - original defendants and consequently dismissing the suit. It is submitted that cogent reasons were given by the learned trial court in decreeing the suit which was not required to be interfered with by the learned appellate court. It is submitted that the learned appellate court has materially erred in holding that the employees who is in reemployment is not entitled to temporary increase in the pension. Therefore, it is requested to allow the present Second Appeal.
5.00. Present appeal is opposed by Mr.Pranav Dave, learned Assistant Government Pleader appearing on behalf of the respondents - original defendants. It is submitted that as such the impugned Judgement and Order passed by the learned appellate court is on interpreting the Government Resolution, which is not required to be interfered with by this Court. It submitted that as such no substantial question of law arise in the present Second Appeal. Therefore, it is requested to dismiss the present Second Appeal.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
7.00. Short question which is posed for consideration is whether a Government employee in reemployment after retirement is entitled to "temporary increase" in the pension or not. Considering the Government Resolution dtd. 18/8/1962 Ex.94, a pensioner who is in reemployment for two years and above under any employment as defined in the Government Resolution of the Finance Department dtd.15/1/1958 on part time post, shall not be entitled to the temporary increase. Under the circumstances, as such no illegality has been committed by the learned appellate court in allowing the appeal by holding that the original plaintiff No.1 was not entitled to temporary increase during his reemployment with the Rajkot Municipal Corporation. It is required to be noted that the original plaintiff No.1 was receiving fixed salary of Rs.2000/- over and above pension and therefore, amount of remuneration which he was receiving was above Rs.750/- as stipulated in the Government Resolution dtd. 10/10/1988 and therefore also he was not admissible with the temporary increase during subsistence of such re-employment with Rajkot Municipal Corporation. Under the circumstances, the learned appellate court has rightly allowed the suit and rightly held that the plaintiff is not entitled to "temporary increase".
8.00. In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed. No costs.
[M.R.
SHAH, J.] rafik Top