Garib Dass Sama vs State of Himachal Pradesh

Deepak Gupta, J.—The short issue involved in this case is that whether while calculating the pension to be granted to an employee, the emoluments, which he was not actually getting, but which were awarded to him on notional basis, are to be taken into consideration or not. The learned single Judge relying upon Rules 33 and 34 of the CCS (Pension) Rules, 1972 held that the pay fixed, on notional basis, cannot be considered for the purposes of fixing pension and other benefits to the employees.

Mr. Onkar Jairath, Advocate, has drawn our attention to the judgment of a Division Bench of this Court in LPA No. 148 of 2010, titled Het Ram vs. Himachal Pradesh Road Transport Corporation and ors., dated 21 s t March, 2012, wherein an identical question was involved and the Division Bench held as follows:"

Pension is fixed on the basis of emoluments received by an incumbent immediately before his retirement. In other words, the last drawn pay. According to the Accountant General, the last drawn pay should be the actual pay drawn by an incumbent while in service and only on the basis of pay thus drawn, the pension can be refixed. We find it difficult to digest the contention. Once the pay of an incumbent, in service, has been refixed, it is irrelevant and immaterial as to whether actual benefit flowing from the fixation has been received or not. In other words, pension is to be calculated not on the basis of the amount actually received by an incumbent in the last month of his service, but on the basis of the pay, as fixed for the last month of the service. That alone is the interpretation, purposive, proper and reasonable, in the matter of fixation of pension.

Since the Division Bench of this Court has taken this view, without going into any detailed discussion, we follow the observations and hold that even if the pay has been notionally fixed, that has to be taken into consideration for the grant of pension and other benefits. Accordingly, the impugned order of the learned single Judge is set aside. The Letters Patent Appeal is allowed and orders, Annexures A2 and A5 in the writ petition, are quashed and set aside. There will be a direction to the respondents to refix the pension of the appellantwrit petitioner on the basis of the pay fixed for the last month in service. Arrears on account of refixation, as above, shall be disbursed to the appellantwrit petitioner within a period of three months.