Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondent nos. 1 to 4.
The petitioner being aggrieved with the order dated 06.09.2019, a copy of which is Annexure-1 to the writ petition, is before this Court. A further prayer is for a mandamus commanding the respondents to pay the pension to the petitioner on the basis of average emoluments drawn during the last ten months i.e. Rs.41,800/- per month with arrears.
This Court vide order dated 18.10.2019 had required learned counsel for the petitioner to bring a case law or rules to the effect that even the last salary drawn on officiating basis would fall within the ambit of 'emolument' so as to entitle an employee for calculation of his pension on the basis of last pay drawn on officiating basis.
With regard to the aforesaid query, learned counsel for the petitioner has placed reliance on certain judgments which would be considered below.
The petitioner claims that while working as senior-most teacher in the institution in question he had been given officiating charge of the Principal vide order dated 01.07.2016. He continued to work as officiating Principal and thereafter retired on attaining the age of superannuation on 30.06.2019. However, the pensionary benefits that had been given to the petitioner have been given without calculating the salary which the petitioner had drawn while officiating as Principal.
From perusal of the impugned order dated 06.09.2019 it comes out that the petitioner had been given the officiating charge of Principal on 01.06.2016 and thereafter his pay had also been fixed in the pay scale of Rs.15,600-39,100/- with grade pay of Rs.7600. However, the said pay has not been considered while paying the retiral dues to the petitioner.
Learned counsel for the petitioner contends that once the petitioner was officiating as Principal and had drawn last salary in the aforesaid pay scale of Rs.15,600-39,100/- with grade pay of Rs.7600/- consequently there cannot be any occasion for the respondents to not pay the pensionary benefits on the basis of last pay drawn by the petitioner.
As already indicated above, this Court had required learned counsel for the petitioner to indicate any rule or law to the effect that the last pay drawn on officiating basis would also fall within the ambit of 'emoluments' so as to entitle an employee for calculation of his pension on the basis of last pay drawn on officiating basis.
Today, learned counsel for the petitioner has placed reliance on the Full Bench judgment of this Court in the case of Dr. Jai Prakash Narayan Singh vs. State of U.P. and others - (2014) 4 UPLBEC 2642. Placing reliance on paragraphs 41 to 43, learned counsel for the petitioner contends that the Full Bench has held that the last pay drawn on officiating basis has also to be considered towards calculation of pensionary benefits. Likewise, reliance has also been placed on a Division Bench judgment of this Court in the case of Narbdeshwar Misra vs. The District Inspector of Schools, Deoria and others - 1982 UPLBEC 171. Placing reliance on paragraphs 6 to 9, it is contended that the Division Bench has also held what the Full Bench in the case of Dr. Jai Prakash Narayan Singh (supra) has subsequently held. Reliance has also been placed on the Apex Court judgment in the case of Lajpat Rai Mehta vs. Secretary to the Government of Punjab, Department of Irrigation and Power, Chandigarh - (2009) 3 SCC 260. Reliance is placed on paragraph 13 of the judgment to contend that the pensionary benefits should be drawn on the basis of last pay drawn by an employee concerned.
In the case in hand, it is not disputed by learned counsel for the petitioner that the retiral dues have been paid to the petitioner on the basis of last pay drawn by the petitioner on the post held on substantive basis. The dispute revolves around the payment of retiral dues on the basis of pay drawn on officiating basis as Principal. Hence, the requirement of this Court to put specific query to learned counsel for the petitioner as indicated in the order dated 18.10.2019.
So far as the judgment of Full Bench in the case of Dr. Jai Prakash Narayan Singh (supra) is concerned, the Full Bench has held that when a person has performed duty of Principal, he cannot be denied the salary for the respective post. Likewise, the Division Bench in the case of Narbdeshwar Misra (supra) has also held that when a teacher is officiating on the post of Principal, he is entitled to receive salary for the Principal's grade as provided in the relevant Government Orders. There is no quarrel to the aforesaid proposition of law as enunciated by the Full Bench as well as the Division Bench. However, the case in hand pertains to the calculation of the pension and retiral dues on the basis of pay which has been drawn on officiating basis by the employee concerned. Both the aforesaid judgments do not address the query of the Court neither has learned counsel for the petitioner brought to the notice of the Court any rule which provides for payment of retiral dues on the basis of pay drawn on officiating basis.
As regards the judgment of Apex Court in the case of Lajpat Rai Mehta (supra), no doubt the Apex Court has held that last pay drawn should be considered for the purpose of payment of retiral dues but then again the said case pertained to an employee having drawn the last pay on the basis of substantive appointment. Here in the present case, as already indicated above, the petitioner was officiating at Principal and thus has drawn the said pay on officiating basis and not on substantive basis. Accordingly, all the aforesaid cases do not come to the rescue of the petitioner. In absence of any rule asserting to the contrary the petitioner is not entitled for any relief.
Taking into consideration the aforesaid discussion, no case for interference is made out. The writ petition being misconceived is hereby dismissed.
Order Date :- 17.12.2019 A. Katiyar