The prayer in the writ petition is for a writ of Certiorarified Mandamus to call for the records of the first respondent in Na.Ka.3409/06/pa2 dated 19.10.2007 and quash the same and direct the respondents to pay the pension taking into account petitioner's last drawn salary at the time of retirement.
2. The petitioner was working as a Sanitary Inspector at the first respondent Department and retired on superannuation on 28.02.2007, as Sanitary Officer. According to the petitioner, at that time of retirement, his last drawn salary was Rs.8900/-. However, by Pension Payment Order dated 07.06.2007, issued by the 2nd respondent against the column of last pay drawn, it has been mentioned as Rs.8,100/-. According to him, his last drawn salary, since was Rs.8,900/-, the 2nd respondent, as has been stated in the said order as Rs.8,100/-, the pension was not properly calculated based on the last drawn salary and it was calculated on the lesser salary of Rs.8,100/- and also the respondent has not taken into account the 5% personal pay received by the petitioner. Therefore, the petitioner had submitted a representation to rectify the anomaly and recalculate the pension, based on his last drawn salary. In response to the same, the first respondent has passed an order dated 19.10.2007, whereby, he has given a statement that the last drawn salary of the petitioner as on 01.10.2006 increment was Rs.8,500/-. The first respondent has also stated in the said order that the petitioner was not entitled to get the 5% personal pay, which was allowed to him wrongly from 01.09.1998. Therefore, the said order proceeded to say that the said personal pay given to the petitioner from 01.09.1998, as per the directive issued by the 2nd respondent, has been cancelled. Challenging the same, the petitioner has approached this Court with the present writ petition with the aforesaid prayer.
3. The learned counsel for the petitioner would submit that even though the petitioner had received the last drawn salary of Rs.8,900/- and also a personal pay of Rs.385/- per month that was not taken into account for the purpose of pension. Since in the Pension Payment Order dated 07.06.2007, the 2nd respondent had stated that the last drawn salary of the petitioner as 8,100/-, the petitioner had requested the respondents to rectify the anomaly. Now, the impugned order dated 19.10.2007 has been passed, wherein, they themselves accepted that the last drawn salary of the petitioner was fixed as Rs.8,500/-, whereas they have cancelled the 5% personal pay paid to the petitioner from 01.09.1998. Even though, the last drawn salary was shown as Rs.8,500/-, the actual pension, now being paid to the petitioner, was not on the basis of that amount of Rs.8,500/-, which is according to the learned counsel for the petitioner, it is only based on Rs.8,100/- per month. Therefore, he had given a further representation on 14.01.2010 to the respondents. But the said representation has not evoked any response from the respondents. Therefore, the very order, which is impugned dated 19.10.2007 was put under challenge, as the petitioner had no option except to approach this Court.
4. The learned counsel for the petitioner would also submit that in view of the decision taken by the respondents that the petitioner was not entitled to get 5% personal pay, which was paid to him from 01.09.1998, they have already ordered recovery of the amount, which has already been paid by way of personal pay. As against which, the petitioner has already approached this Court by filing a writ petition in W.P.(MD) No.1436/2010, wherein, an order of recovery dated 31.03.2008 made against the petitioner was challenged and this Court, having quashed the said order of recovery of Rs.1,39,238/- allegedly had been paid to the petitioner as excess amount, allowed the said writ petition. Since the very recovery of the alleged excess amount paid to the petitioner on the basis of personal pay from 01.09.1998, has been quashed, now, the question of cancelling the said 5% personal pay does not arise at this juncture. Be that as it may, the learned counsel for the petitioner would submit that the petitioner would give up the said claim of 5% personal pay of the petitioner. The only grievance now for the petitioner is, according to the learned counsel for the petitioner, that even though the last drawn salary, as has been mentioned in the impugned order was Rs.8,500/- , the actual pension, now being paid to the petitioner, is not on the basis of the said amount, which is according to the learned counsel for the petitioner was fixed only at the rate of last drawn salary of Rs.8,100/-. Therefore, if the pension payable to the petitioner is calculated on the basis of actual last drawn pay, as admitted by the respondents through the impugned order and accordingly, the amount is paid, the petitioner would be satisfied.
5. Per contra, the learned counsel for the 2nd respondent would submit that the 5% personal pay was given only to rectify the anomaly pursuant to the 5th pay commission report, whereby certain category of employees were not been paid salary properly and therefore, in order to rectify those anomalies, only a few selected categories of employees were paid 5% personal pay. Since there is no such grievance attached with the post held by the petitioner at any point of time, the said 5% personal pay, being a gesture to meet out the anomaly created pursuant to 5th pay commission, would not be entitled for the petitioner. Nevertheless, since the said personal pay of 5% was paid wrongly to the petitioner from 01.09.1998, the same was directed to be rectified and pursuant to the directive issued by the 2nd respondent, the first respondent, through the impugned order stated that the petitioner would not be entitled to get 5% personal pay and therefore, the same was cancelled. Though the excess amount paid already based on the personal pay wrongly paid to the petitioner was sought to be recovered, as referred to above, the petitioner already approached this Court and the said order of recovery was challenged and therefore, the said amount was not recovered from the petitioner.
6. The learned counsel for the 2nd respondent, also the learned Additional Government Pleader for the respondents 1 and 3 would submit that the petitioner is not entitled for the 5% personal pay and in view of the admissions now made by the learned counsel for the petitioner that the petitioner's entitlement to get the 5% personal pay was given up, the order passed by the first respondent, which is made herein, is fully justifiable and sustainable. Therefore, no interference is required in the impugned order.
7. This Court had considered the said rival submissions made by the learned respective counsel, insofar as the petitioner's entitlement to get 5% personal pay.
8. As has been rightly pointed out by the learned counsel for the respondents, the petitioner's entitlement of getting 5% personal pay, since has been given up by the learned counsel for the petitioner that question need not be gone into at this stage. Now, the only grievance appears to be for the petitioner is that whether the petitioner's pension is being calculated and paid based on his last drawn salary of Rs.8,500/- as has been admitted in the impugned order as well as through the counter affidavit filed by the 2nd respondent. According to the learned counsel for the petitioner, it is not being paid on the basis of calculation made taking into account the last drawn salary of the petitioner as Rs.8,500/-. According to him, this was calculated only on the basis of Rs.8,100/- as a last drawn salary of the petitioner. However, the learned counsel for the respondents would submit that since the petitioner received the last drawn salary of Rs.8,500/-, his pension has been calculated accordingly and being paid.
9. Since the said calculation and amount being paid to the petitioner is disputed vehemently by the learned counsel for the petitioner, this Court is of the view that without interfering with the impugned order, as the same is fully justifiable and sustainable, in view of the own admissions made on behalf of the petitioner, directing the respondents, especially, the 2nd respondent to recalculate the pension of the petitioner based on his last drawn salary of Rs.8,500/-, as has been admitted by the respondents, through the impugned order as well as in the counter filed by the 2nd respondent and accordingly, pension payable to the petitioner can be paid.
10. The aforesaid directions shall be complied with by the 2nd respondent within a period of eight weeks from the date of receipt of a copy of this order and after having calculated the same as directed above, any arrears, if any, to be paid to the petitioner, the same shall also be paid within the said period. The necessary pension papers including the Service Register of the petitioner shall be forwarded by the first respondent to the office of the 2nd respondent, if such documents are required from the office of the 2nd respondent.
11. With the above directions, the writ petition is disposed of. No costs.
To
1.The Assistant Director of Town Panchayat, Tirunelveli Zone, Tirunelveli.
2.The Accountant General (A&E) Tamilnadu, Chennai.
3.The Director of Panchayat, Government of Tamilnadu Chennai.
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