K.M. Rathod vs State of Gujarat and Others

Rajesh Balia, J.—Rule. Mr. Bhambhania, learned AGP appears and waives service of Rule on behalf of Respondents.

The brief facts leading to the present petition are that the petitioner who was serving as Superintendent of Section, was promoted as Administrative Officer on ad hoc basis by the Office Order dated 17.7.1978. By the order dated 20.6.1981, the petitioner was reverted back to his parent post of Supdt. The said order was challenged in Spl. C. A. No. 2268/81 in which initially interim order was passed in favour of the petitioner staying his reversion and during pendency of Spl. Civil Application, he continued to function as Administrative Officer. On the said petition being rejected, the petitioner filed L. P. A. No. 320/81. The same was also admitted and the petitioner was granted interim relief and was allowed to continue on the post of Administrative Officer. During the pendency of that LPA, on 31.1.1987, the petitioner retired from service while discharging functions as Administrative Officer and drawing emoluments thereof, albeit, under the orders of this Court. On his retirement in January 1987, the pensionary benefits of the petitioner were fixed in accordance with the pay which he was drawing as on the date of retirement in respect of the post which he was holding on that date. These facts are not disputed.

After LPA No. 320/81 was disposed of by this Court, by the impugned order dated 23.2.1994, respondents have sought to reduce petitioner''s pay and directed that since the petitioner has lost in LPA he should be deemed to have been reverted to Class III post of Supdt, from the date of order i.e., 20.6.1918 and has directed recovery of excess salary paid and also reversion of pensionary benefits on the basis of notional pay in the post of Superintendent.

Learned Counsel for the petitioner contends that as the petitioner has actually functioned and discharged duties of Administrative Officer and drawn salary of that post duties of which he has discharged, the same cannot be withdrawn merely because his petitions ultimately failed.

Learned counsel for the respondent urged that as ultimately the order of reversion has been found to be correct, the petitioner is not entitled to any benefit to account of interim orders passed in his favour in the matter of pay and pension.

Having carefully considered rival contentions of the parties, I am of the opinion that the petition merits acceptance.

Under the pension rules contained in Government Resolution, the pay for the purpose of drawing retirement/death benefits means "basic pay" as defined in Rule 9(39) (a) (i) of the B. C. S. R. which the government employee was receiving immediately before his retirement or on the date of his death. The "pay" for the purpose of pension has been directly related to the actual salary received at the time of retirement or death as the case may be and is not referable to any deemed salary which he ought to have received in absence of any orders in this regard.

The law is well-settled that an employee is entitled to pay for the functions discharged by him. Even in the case where a person has been appointed on a lower post, but if he is asked to discharge functions of higher post, he is entitled to draw emoluments of higher post for the period for which he has actually discharged functions of the higher post, except of course in a case where he had merely been holding charge in the absence of regular incumbent of the higher post. Once it is undisputed that the petitioner has infact continued to discharge functions of Administrative Officer, beginning from the date of initial promotion on ad hoc basis until the date of his retirement and he has been paid salaries for the post, duties of which only were discharged by him, there is no ground whatsoever on the basis of which emoluments paid to the petitioner for discharging functions of Administrative Officer can be recovered from him on the premise of his being deemed to have continued only as Superintendent. Secondly, it is also pertinent to note that the petitioner was in fact promoted though on ad hoc basis in July 1978. During the pendency of litigation before this Court he was allowed to continue on the post and he retired from the post on 31.1.1987. That is to say after 31.1.1987, there was nothing left to be granted to the petitioner by way of further relief and LPA, in fact, had become infructuous. It is not the case of the respondents that while deciding the LPA, the Court had directed to relegate the petitioner to the position of Supdt. retrospectively. Therefore, there is no room for the argument that the petitioner is not entitled to retain pay and emoluments drawn by him for the post of Administrative Officer for the period for which he has discharged his duties. Similarly, there is no dispute that immediately before his retirement on 31.1.1987, the petitioner was receiving salary payable to Administrative Officer. That being so, his emoluments and retirement benefits which have been computed on that basis, cannot be altered on the premise of continuance only on the post of Superintendent as if the order of Court did not exist and petitioner did not discharge functions of Administrative Officer.

The petition, therefore, succeeds. The impugned order Annex. A dated 28.2.1994 is quashed and set aside. Rule made absolute. No order as to costs.

Rule made absolute.