AT JAIPUR BENCH, JAIPUR JUDGMENT (1) D.B. Civil Special Appeal (Writ) No.1045/2013 State of Rajasthan & Ors. vs. Chandu Ram Kukkar (2) D.B. Civil Special Appeal (Writ) No.1055/2013 State of Rajasthan & Ors. vs. Ramavtar Joshi (3) D.B. Civil Special Appeal (Writ) No.1056/2013 State of Rajasthan & Ors. vs. K.L. Yadav (4) D.B. Civil Special Appeal (Writ) No.1057/2013 State of Rajasthan & Ors. vs. Dr.Suchendra Mohan (5) D.B. Civil Special Appeal (Writ) No.1058/2013 State of Rajasthan & Ors. vs. Dr.Suresh Chand Sharma (6) D.B. Civil Special Appeal (Writ) No.1059/2013 State of Rajasthan & Ors. vs. Mahendra Nath Sharma (7) D.B. Civil Special Appeal (Writ) No.1060/2013 State of Rajasthan & Ors. vs. Dr. Harbir Singh (8) D.B. Civil Special Appeal (Writ) No.1061/2013 State of Rajasthan & Ors. vs. Dr. Ram Kumar Garwa (9) D.B. Civil Special Appeal (Writ) No.1062/2013 State of Rajasthan & Ors. vs. D.K.Gupta (10) D.B. Civil Special Appeal (Writ) No.1063/2013 State of Rajasthan & Ors. vs. Mrs. Sajjan Sidhu (11) D.B. Civil Special Appeal (Writ) No.1069/2013 State of Rajasthan & Ors. vs. Roshan Lal Talwar (12) D.B. Civil Special Appeal (Writ) No.1124/2013 State of Rajasthan & Ors. vs. Dr. Ravindra Rao Bidwalkar (13) D.B. Civil Special Appeal (Writ) No.1125/2013 State of Rajasthan & Ors. vs. Dr.Bhagwati Lal Chawat & Anr. (14) D.B. Civil Special Appeal (Writ) No.1126/2013 State of Rajasthan & Ors. vs. Suresh Pal (15) D.B. Civil Special Appeal (Writ) No.1127/2013 State of Rajasthan & Ors. vs. Mrs. Jamila Khatoon Mirza
(16) D.B. Civil Special Appeal (Writ) No.1128/2013 State of Rajasthan & Ors. vs. R.C.Khandelwal 2 (17) D.B. Civil Special Appeal (Writ) No.1129/2013 State of Rajasthan & Ors. vs. Dr. K.C.Gupta (18) D.B. Civil Special Appeal (Writ) No.1130/2013 State of Rajasthan & Ors. vs. P.N. Bhardwaj (19) D.B. Civil Special Appeal (Writ) No.1143/2013 State of Rajasthan & Ors. vs. S.K.Acharya & Ors. (20) D.B. Civil Special Appeal (Writ) No.1145/2013 State of Rajasthan & Ors. vs. Param Dev Sharma (21) D.B. Civil Special Appeal (Writ) No.1146/2013 State of Rajasthan & Ors. vs. Mohan Shrotriya (22) D.B. Civil Special Appeal (Writ) No.1147/2013 State of Rajasthan & Ors. vs. Dr. Rajendra Prasad Sharma (23) D.B. Civil Special Appeal (Writ) No.1150/2013 State of Rajasthan & Ors. vs. S.P. Soni (24) D.B. Civil Special Appeal (Writ) No.1152/2013 State of Rajasthan & Ors. vs. Krishna Govind Singh & Ors. (25) D.B. Civil Special Appeal (Writ) No.1153/2013 State of Rajasthan & Ors. vs. Dr. S.K.Hawa & Ors. (26) D.B. Civil Special Appeal (Writ) No.1154/2013 State of Rajasthan & Ors. vs. Jagdish Singh Khinchi (27) D.B. Civil Special Appeal (Writ) No.1157/2013 State of Rajasthan & Ors. vs. Nemi Chand Shrimal (28) D.B. Civil Special Appeal (Writ) No.1158/2013 State of Rajasthan & Ors. vs. S.C.Thukral & Ors. (29) D.B. Civil Special Appeal (Writ) No.1159/2013 State of Rajasthan & Ors. vs. T.C.Gupta (30) D.B. Civil Special Appeal (Writ) No.1160/2013 State of Rajasthan & Ors. vs. Dr.Bal Krishna Gupta (31) D.B. Civil Special Appeal (Writ) No.1161/2013 State of Rajasthan & Ors. vs. Mahaveer Prasad Sharma (32) D.B. Civil Special Appeal (Writ) No.1162/2013 State of Rajasthan & Ors. vs. Salig Ram (33) D.B. Civil Special Appeal (Writ) No.1163/2013 State of Rajasthan & Ors. vs. Dr. S.P.Jalan 3 (34) D.B. Civil Special Appeal (Writ) No.1164/2013 State of Rajasthan & Ors. vs. Dr. Ravindra Kulshrestha (35) D.B. Civil Special Appeal (Writ) No.1165/2013 State of Rajasthan & Ors. vs. Smt. Bhagwati Swami (36) D.B. Civil Special Appeal (Writ) No.1166/2013 State of Rajasthan & Ors. vs. Jai Pal Singh & Ors. (37) D.B. Civil Special Appeal (Writ) No.1167/2013 State of Rajasthan & Ors. vs. Janardan Kandpal (38) D.B. Civil Special Appeal (Writ) No.1168/2013 State of Rajasthan & Ors. vs. Hukum Chand Jain (39) D.B. Civil Special Appeal (Writ) No.1169/2013 State of Rajasthan & Ors. vs. Dr. Mahavir Mal (40) D.B. Civil Special Appeal (Writ) No.1170/2013 State of Rajasthan & Ors. vs. Keshav Audichya & Ors. (41) D.B. Civil Special Appeal (Writ) No.1171/2013 State of Rajasthan & Ors. vs. Himmat Singh Gehlot (42) D.B. Civil Special Appeal (Writ) No.1172/2013 State of Rajasthan & Ors. vs. Dr. Mohan Lal Kasat (43) D.B. Civil Special Appeal (Writ) No.1173/2013 State of Rajasthan & Ors. vs. Dr. (Smt.) Pushpa Gupta (44) D.B. Civil Special Appeal (Writ) No.1174/2013 State of Rajasthan & Ors. vs. Durga Lal Panwar (45) D.B. Civil Special Appeal (Writ) No.1175/2013 State of Rajasthan & Ors. vs. Dharam Veer Sahani (46) D.B. Civil Special Appeal (Writ) No.1176/2013 State of Rajasthan & Ors. vs. Ramlal Verma (47) D.B. Civil Special Appeal (Writ) No.1177/2013 State of Rajasthan & Ors. vs. Smt. Sudha Vats Date of Judgment : 19.08.2014 HON'BLE THE ACTING CHIEF JUSTICE MR.SUNIL AMBWANI HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Mr. Om Prakash Meena, OIC, Joint Director, Pension & Pensioners Welfare Department. Mr. D.K.Mitra, OIC, Director, Higher Education, for appellants- State. 4 Dr. Bal Krishan Gupta, Dr. S.C.Sharma, Dr. Kailash Gupta, Dr. Saligram, Dr. Nemi Chand Srimal, Mr. Param Dev, respondents in person. The delay in filing the special appeals has been sufficiently explained. The delay is accordingly condoned and the applications for condonation of delay are allowed. All these Division Bench appeals are directed against the order dated 08.04.2013 passed by the learned Single Judge in a batch of writ petitions, by which, he had allowed the writ petitions and directed the respondents to consider the case of all the petitioners as per Memorandum dated 12.09.2008 for revision of the pension after taking note of the pay scale so notified vide Notifications dated 12.10.2009 at Annexure-4 and 13.05.2010 at Annexure-5. The learned Single Judge further issued directions that if the petitioners had competed 3 years service in the selection scale prior to their retirement, then the pay scale in the pay band of Rs.37400-67000 would be taken into consideration for them and pension be revised accordingly. The directions were to be complied with within a period of three months. The hearing of the batch of these special appeals was adjourned on many dates. Learned Advocate General was requested to appear and assist the Court. He was not present on 13.08.2014 when the matter was taken up. The appellants-State was instead represented by the Officer Incharge/Joint Director, Pension & Pensioners Welfare Department. 5 On 13.8.2014, while adjourning the matter with a request of the learned Advocate General to appear and assist the Court, we had made it clear that if no one appears to press the appeal on the next date i.e. 19.08.2014, the Court may consider to dismiss all the appeals both for want of prosecution as well as on the ground that the similar questions have been decided by the High Court of Punjab and Haryana at Chandigarh in State of Haryana and another vs. Satyapal Yadav and another [LPA No.1955 of 2012, decided on 14.01.2013], against which, the Special Leave to Appeal (C) No(s).26907/2013 filed by the State of Haryana, was dismissed by the Apex Court on 10.07.2014. Today once again, the Advocate General is absent. We are aware that the lawyers in the High Court are abstaining from work. The resolutions, passed by the Bar Associations, however, may not compel the Advocate General, who is the first law officer of the State, holding a constitutional post to abstain from appearing in the Court. He cannot be a party to such resolutions, which are apparently illegal in view of the law laid down by Hon'ble Supreme Court in Common Cause, A Registered Society vs.Union of India [(1994)5 SCC 557]; Sanjiv Datta, Dy.Secretary, Ministry of Information and Broadcasting [(1995)3 SCC 619]; K.John Koshy vs. Dr.Tarakeshwar Prasad Shaw [(1998)8 SCC 624]; Mahabir Prasad Singh vs. Jacks Aviation (P) Ltd. [(1999)1 SCC 37] and Ex.-Captain Harish Uppal vs. Union of India & Anr.[(2003)2 SCC 45]. We are pained to observe that for several weeks, the Advocate 6 General, the Additional Advocate Generals and the other State Counsels are not appearing in the Court. The Advocate General and the Additional Advocate Generals, and other State Law Officers are duty bound to assist the Court in deciding the cases. Their absence is wholly unjustified and is deprecated. The respondents are pensioners. They have waited for a long period for decisions on their writ petitions and thereafter, these special appeal. In the circumstances, we requested Mr.Om Prakash Meena, Officer Incharge/Joint Director, appearing for the Pension & Pensioners Welfare Department, to present the case of the department. He has agreed to make submissions on behalf of the appellants and has also placed on record written submissions, which have been prepared by him and have been filed by Mr.Vishal Sharma/Mr.Sheetanshu Sharma, junior to Advocate General, settled by Mr.N.M.Lodha, learned Advocate General, Rajasthan. All the respondents were awarded Selection Scale as per the then existing guidelines of the University Grants Commission (hereinafter referred to as 'the UGC') and have retired prior to 01.01.2006. All of them had faced the screening test, in which their academic achievements, such as refresher and orientation courses, as well as service records were considered by the Selection Committee in accordance with the then existing guidelines, prior to 01.01.2006, when the recommendations of the Sixth
Pay Commission, had not come into force, after its acceptance by the Central Government as well as the 7 Government of Rajasthan. There were three pay scales, applicable to the respondents, namely, Rs.8000-275-13500; 12000-420-15300 and 12000-420-18300. The Sixth
Pay Commission recommended to revise these pay scales to Rs.15600-39100 with Academic Grade Pay (hereinafter referred to as 'AGP') of Rs.6,000/- to the first existing pay scale, Rs.7,000/- as AGP as Selection Scale, to the second existing pay scale, and Rs.8,000/- as Selection Scale AGP to the the third pay scale. It also recommended for bifurcation of pay scales of Lecturer (selection scale) into two namely, Rs.15600-39100 with AGP of Rs.8000/- for those lecturers (selection scale), who have not completed 3 years of service in the existing pay scale as on 01.01.2006, and the pay scale of Rs.37400-67000 with AGP of Rs.9000/- for all those, who had completed 3 years service in the existing pay scale as on 01.01.2006 and onwards, subject to the guidelines issued in this regard. There is no dispute that the respondents, as pensioners, were entitled, as per para 5 of the Memorandum dated 12.09.2008, for fixation of their pension at the minimum of 50% in the running pay band plus grade pay of the post, introduced vide Notification dated 12.10.2009. Their pensions were also revised as per the Notification dated 12.10.2009, but out of the two pay bands for Lecturer (selection scale), the lower pay band of Rs.15600-39100 was taken into consideration for fixation of pension on the ground that the respondents had not completed 3 years of service in the Selection Scale prior to their retirement. 8 Learned Single Judge held that with the policy decision, taken in pursuance to the aforesaid Memorandum, the consolidated pension as on 01.09.2006 should not be lower than 50% of the minimum pay of the post in the running pay band plus grade pay introduced with effect from 01.09.2006. Since the pay scales were revised with effect from 01.09.2006, it was clear that such revised pay scales were to be taken note of in the revision of the pension. The pay scale was revised pursuant to the Notification dated 12.10.2009, with effect from 01.01.2006 instead of 01.09.2006. In view of the above, it was clear that revision of pay scale would be at the minimum of 50% of the sum of the pay in running pay band plus grade pay so introduced from the year 2006. He held that the University Grants Commission Regulations of 2010 notified on 30.06.2010, with special reference to para Nos.1.3, 6.3, 6.3.9, 6.4.0 to 6.4.8, were applicable to the Teachers, who were in active service. These Regulations did not have any retrospective effect. Notwithstanding anything contained in the Regulations of 2010, if any candidate was eligible for promotion under Career Advancement Scheme (hereinafter referred to as 'CAS') prior to 31.12.2008, the promotion under CAS would be as per Regulations of 2000, as amended from time to time, read with the Notification and guidelines issued by the UGC from time to time. In the circumstances, the promotion in the selection scale could not be nullified, even if it was given prior to the Notification of 2000. If any Teacher/Librarian/PTI was given Selection Scale 9 prior to the enforcement of the Regulations of 2010, it was not necessary for him to be considered for again giving the Selection Scale in accordance with the Scheme of the Regulations of 2010. The Regulations did not take away the Selection Scale awarded under the earlier provisions. For example, if a teacher was awarded Selection Scale in the year 2002 or prior to it under the old Regulations and is continuing, then the benefit of Revised Pay Scale Rules, could not be denied to him. A similar question had come up in the High Court of Punjab and Haryana at Chandigarh in the case of State of Haryana and another vs. Satyapal Yadav and another (supra). A Division Bench of the Court presided by Hon'ble Mr. Justice A.K.Sikri, the then Chief Justice of Punjab and Haryana High Court, upheld the order of the learned Single Judge for following reasons: Rule 6 of the Revised Pension Rules provides that the pensioner/family pensioner shall not be entitled to pension lower than 50% of the minimum pay in the pay band plus grade pay in the corresponding revised scale in terms of the Haryana Civil Services/Revised Pay Rules, 2008. This was clarified vide office memorandum dated 10.07.2009 wherein it was mentioned that the entitlement of pension would have no correlation with the subsequent upward revision of pay, if any , from the post from which the employee retired and it would be relatable only to the pay drawn in the admissible scale of corresponding pay at the time when the employee retired and pension was sanctioned. When this clarification is read along with the substantive rule and the scheme of pay revision, since the petitioners had completed more than 3 years of service in the selection grade prior to 1.1.2006, they were to be fixed in the Pay Band of Rs.37400-67000/- as they were drawing selection grade of Rs.12000-18300/- prior to their retirement. The clarification issued by the Higher Education Commissioner, Haryana vide memorandum dated 7.9.2010 is, thus, against the decision taken by the Government of Haryana and in violation of the Pension Rules, 2009. 10 The Special Leave to Appeal(C) No(s).26907/2013 [State of Haryana vs. Satya Pal Yadav] filed against the judgment dated 14.01.2013, was dismissed by the Apex Court on 10.07.2014 with the following order: Heard Mr.Neeraj Jain, learned senior counsel for the petitioners and Mr. Bharat Sangal, learned counsel for the respondents. We are convinced that there is no substance in these special leave petitions and they are accordingly dismissed without any order as to costs. In the written arguments, presented by the Joint Director, Pension & Pensioners Welfare Department, Government of Rajasthan and signed by the Advocate General, the order of learned Single Judge has been assailed on the following grounds: 2. That the present appeals are related with the pensioners. As per provisions contained in para 5 of FD Memorandum No.F.12(3)FD/Rules/2008 dated 12.09.2008 for pre 01.01.2006 pensioners it has been provided that consolidated pension as on 01.01.2006 of pre 01.01.2006 pensioners, shall not be lower than 50 percent of the sum of the minimum pay of the post in the RPB (Revised Pay Band) plus Grade Pay introduced w.e.f. 01.01.2006 corresponding to the pre revised pay scale of the post from which pensioner has retired. The corresponding pay scale of Lecturer (selection scale) is 12000-420-18300. In the pre revised pay scale there was no bifurcation and as such the corresponding pay scale of the pre revised pay scale is 15600-39100 plus AGP Rs.8000/-. The RPB of 37400-67000 plus 9000/- is admissible to those lecturer (selection scale) who are in service on 01.01.2006 and have completed three years or more after 01.01.2006 so also after looking of record etc. and as per guide-lines. It is a newly created class/Grade came into existence only w.e.f. 1.1.2006. Para 5 of the memorandum also makes it clear that retirees will be given fixation as per minimum of the post. In the present case, post is Lecturer (Selection Scale), hence minimum pay band for the said post is 15600-39100, hence it is clear that fixation of pension on the basis of said pay band is just and proper. Copy of the memorandum dated 12.09.2008 was submitted with additional affidavit as Annexure A. 3. That the notification dated 12.10.2009 has been 11 issued promulgating revised pay scale rules of 2009 and it has a Schedule as Schedule 1 (given under Rules 5 of the Rules). It is related with fixation of pay of existing staff and not for pension. It is noteworthy that the said schedule at item No.3 date 1.1.2006 has been given. It is submitted that for giving interpretation of the said item, given date i.e.1.1.2006 is having significance and carries relevance in present appeals as it distinguishes persons of two different classes; (i) persons who have not completed 3 years in the existing pay scale as on 1.1.2006; and (ii) persons who have completed 3 years in the existing pay scale as on 1.1.2006 and onwards. It is worthwhile to mention that the date 1.1.2006 is the effective date which makes the existing incumbent, who are in service on 01.01.2006 and who have completed three years or more in the existing pay scale on 1.1.2006 and onwards are eligible for fixation in the pay band of 37400-67000. 4. That it is most respectfully submitted that in Schedule 1 annexed with the rules, at item no.3 date 1.1.2006 has been given. It is submitted that these rules have been made applicable w.e.f.1.1.2006 is having significance. Item No.3 of the Schedule relates with lecturers (selection scale) and it has two parts namely: (i) persons who have not completed 3 years in existing pay scale as on 1.1.2006. (ii) persons who have completed three years in the existing pay scale as on 1.1.2006 and onwards. It is noteworthy that date 1.1.2006 is effective date which makes the existing incumbent who are in service on 1.1.2006 and who have completed three years on 1.1.2006 in existing pay scale are eligible for pay fixation in the scale 37400-67000. It is most respectfully submitted that the 'existing Pay Scale' and 'Existing Government College Teachers' have been defined in Rule 4(1) and (2) of Rajasthan Civil Services (Revised Pay for Government College Teachers including Librarians & PTIs), Rules 2009 as under: 4. (1) Existing Pay Scale means scale of pay applicable to a teacher including Librarian and PTI of a Government College, but for the coming into effect of these rules, in respect of a post held by him immediately before 1 st January, 2006. (2) Existing Government College Teacher means a Teacher including Librarian and PTI who is in service on 1 st January, 2006 and drawing pay in an existing pay scale. 5. That it is most respectfully submitted that the petitioners may have completed three years in the existing pay scale prior to their retirement but they were not in service on 1.1.2006 as they retired prior to 12 1.1.2006, hence, they are not eligible for pay band 37400-67000. 6. That the State Government has introduced the cut off date 1.1.2006 looking to various consideration including the financial constraints/burden. Moreover, if the proposition given by the learned Single Judge that those incumbents also who have completed three years or more in the existing pay scale prior to 1.1.2006 are entitled for fixation of pension in pay band of 37400- 67000, is accepted, the very purpose of fixing cut off date as 1.1.2006 gets frustrated. So also in respectful submissions of the respondents such cut off date is permissible in law. 7. That the Government never intended to include those incumbents who have completed three years or more in the existing pay scale prior to 1.1.2006 and also retired prior to 1.1.2006 otherwise there will be discrimination between the retirees of same pay scale. In this respect communication addressed by the Director, Pension & Pensioner Welfare Department dated 15.12.2009 & communication dated 22.1.2010 have already been submitted as Annexures C&D respectively with the additional submissions/affidavit made by appellants. 8. It is further submitted that pay band of Rs. 37400- 67000 is not automatic, person has to be in service as on the date of revision. When person already retired, there was no such further selection scale. Para 6.3.9 of UGC Regulations is as under: 6.3.9: Incumbent teacher must be on role and active service of University/colleges on the date of consideration. A bare perusal of judgment would show that virtually the Hon'ble Court proceeded with assumption that grant of selection scale (3.2) is virtually automatic but in respectful submission of the appellants it is not correct because for grant of selection scale- 3.2 is based on further consideration. As given in guidelines. The writ petitioner (respondent) admittedly retired long before and no such consideration could have been made in their case. In such case pension could not have been fixed on the basis of pay band of Rs.37400-67000. It is also pertinent to submit here that even in item 3(ii) it has been said that incumbent should have completed three years of service in the existing pay scale as on 1.1.2006 and on wards subject to guidelines issued in this regard. It is further fortified that grant of pay band in 37400-67000 was not automatic. The decision dated 22.1.2010 taken by the Finance Department upholding the view was never challenged and the same has been placed before the court, so also same has been reproduced in judgment rendered by 13 D.B. and was required to be considered by learned Single Judge but there is no finding in this respect. 9. That before the learned Division Bench the petitioner sought liberty to amend the writ petition for challenging the provisions of the Rules and Guidelines but no amendment was made. Rule 165 of the Pension Rules contained in Chapter XI makes it clear that where any doubt arises as to interpretation of these rules, it shall be referred to Finance Department for decision. It is submitted that the matter was considered by the Finance Department and vide communication dated 22.1.2010 it has been made clear by the Finance Department also that all retired persons will get running pay band of Rs.12400- 18300 with grade pay of Rs.8000/-. This decision was never challenged by the petitioner and as such it will prevail. 10. While deciding Special Appeal the Hon'ble Court specifically pointed out (1) Guidelines pertaining to para 6.3.9 provides for newly created pay scale of Rs.34000- 67000 which depends upon selection to be made on consideration of service record by the Selection Committee. In para 6.3.9 of Guide-lines it has been very specifically said that person should be on the roll and in active service on the date of consideration by the Selection Committee for pay band of Rs.37400-67000. Meaning thereby it is clear that consideration was required and it is only for the persons who are in service as on 1.1.2006 and onwards. The learned Single Judge considered this aspect and observed that second proviso to Rule 1.3 (as quoted at page No.17 of the impugned judgment) has not taken into consideration. Second proviso to para 1.3 says that in the event of any candidate becomes eligible for promotion under Advancement Career Scheme, promotion of such candidate shall be governed by the University Grants Commission Minimum qualification required for appointment under Career Advancement Scheme, the University and colleges/institutions affiliated to it did not apply in the present case because these Regulations are of 2000 and the case in hand is related to the year 2006. In such circumstances second proviso to para 1.3 is not applicable and as such finding given by the learned Single Judge that due to second proviso of para 1.3, para 6.3.9 is not applicable for the persons who retired prior to 1.1.2006 is erroneous and deserves to be set aside. 11. That the analogy sought to have made as comparison with Circular issued by Government of India, Ministry of Human Resources Development dated 15.12.2009. Memorandum dated 12.9.2008 issued by the 14 Government of Rajasthan makes it clear that the pension shall not be lower than 50% of the sum of minimum pay of the post in running pay band plus Grade Pay introduced w.e.f. 1.1.2006 corresponding to pre revised pay scale of the post. It is pertinent to submit here that the name of the post is lecturer (selection scale) and minimum of post in pay band of 15600-39100, whereas in Central Government in Memorandum dated 15.12.2009 it has been said that incumbent who had completed three years service in the pay scale of Rs.12000-18300 as on 1.1.2006 will be placed in pay band of Rs.37400-67000 with academic grade pay of Rs.9000 meaning thereby in the Circular itself it has been said that a person who had completed three years of service in the pay scale of 12000-420- 18300 will get pay scale of 37400-67000 whereas in the matter relating to State of Rajasthan it has been said minimum of pay scale of lecturer in selection scale of the post and existing pay scale was 12000-420-18300 and now w.e.f. 1.1.2006 two category of said post have been created namely who were in service as on 1.1.2006 and had not completed three years will be given 15600-39100 and others who have completed three years as on 1.1.2006 and onwards will be given 37400-67000. In the present case it was made clear that minimum of the post as lecturer selection scale, pay band for the said post is 15600-39100. Hence the persons who had retired before 1.1.2006 though he had completed more than three years in the existing pay scale, he will be fixed in the minimum pay band for the post i.e.15600-39100 with AGP 8000. 12. That the Division Bench while deciding the appeal specifically pointed out that impact of clarification issued by the Finance Department vide communication dated 22.1.2010 is required to be examined. This argument was made before the learned Single Judge and has been recorded at page 10 of the impugned judgment the aforesaid was thus clarified.....Revision of pension with the aid of pay band of Rs.37400-67000 is not tenable. The clarification issued by the Finance Department was placed before the learned Single Judge and so also it has been reproduced at page 7 of the judgment rendered by the Division Bench. Rule 165 of the Pension Rules makes it clear that where any doubt arises as to what interpretation, it shall be referred to Finance Department and Finance Department vide communication dated 22.1.2010 has made it clear that all retired persons will get running Pay Band of 15600- 39100. This decision was never challenged. A bare perusal of judgment would show that this aspect of the matter has not at all been taken into consideration though the learned Division Bench made specific 15 direction. In such circumstances impugned judgment/order rendered by the learned Single Judge deserves to be quashed. 13. The provisions of Circular of GOI (MHRD)F. No.15- 1/2009-IFD/U.II dated 15.12.2009 is not applicable to State Government Pensioners. It is only applicable for Central Government Universities/institutions deemed to be Universities fully funded by the Central Government. It is further submitted that Circular is quite distinguishable because in the Memorandum dated 12.9.2008 issued by the Government of Rajasthan, it has been made clear that minimum of the pay of post in the pay band of 15600-39100, will be the basic consideration for fixing pension in the Revised Pay Scale Rules. In the present case lecturers (selection scale) is the post and minimum pay band of the said post is 15600-39100 where as in the Central Government there is no such rider relating to post and as such said circular issued by Central Government has no relevance in the present case. 14. The above referred questions were neither considered by the Apex Court in the case of Haryana Pension Rules nor such arguments were raised. It is pertinent to submit here that in the case of Haryana a clarification was issued by the Haryana Education Commissioner vide memorandum dated 7.9.2010 but that was against the decision taken by the Government of Haryana and so also in violation of Pension Rules 2009 applicable in Haryana. But in the present case there is no inconsistency between the decision taken by the Government of Rajasthan and the fixation made by the Pension Department. More so, as per pension rules, Rules 165 makes it clear that interpretation made by Finance Department will be final. In such circumstances it is clear that clarification issued by the Education Commissioner Haryana was against the decision taken by the Government of Haryana. Hence the case of Haryana is not applicable in the present case.
The respondents-pensioners, appearing in person, submit that all of them were considered for the revised pay scale in accordance with the then prevailing guidelines of the UGC. All of them were given the pay scale of Lecturer (Selection Scale) after the screening carried out by the competent authority in accordance with the UGC guidelines, in which their academic 16 achievements, including the refresher and orientation courses and research materials at the time of screening was considered. They were found suitable and were awarded the pay scale of Lecturer (selection scale). They were all entitled to the revision of their pensions in accordance with the recommendations of the Sixth Pay Commission, on the same post which they held on the date of their retirement. It is submitted by them that if they were in service on 01.01.2006, the new pay scale of Rs.37400-67000 with AGP of Rs.9000/- would have been applicable to them without the necessity to serve for three years and further, without reference to any further screening or selection process. They are, therefore, entitled to the revision of pension, as if they were in the pay scale corresponding to the pay scale of Rs.37400-67000, with AGP of Rs.9000/-. It is submitted by them that the entire argument put up by the State-appellant, based on the creation of a new pay scale, is misconceived, inasmuch as, it was not necessary for the incumbents, who were already in the selection scale to serve for a fresh period of 3 years in service and screening, for grant of pay scale of Rs.37400-67000 with AGP of Rs.9000/-. It is stated that none of the incumbents, who were drawing the Selection Scale, were subjected to any fresh period of service of 3 years and screening before being placed in the pay scale of Rs.37400-67000 with AGP of Rs.9000/-. The State- appellants have arbitrarily created discrimination between the old pay scale and the new pay scale. 17 The appellants have also relied on a Memorandum, by which, the Special Secretary to the Government Finance (Budget), Finance Department, Government of Rajasthan, had decided the issue in terms of para 5 of the Memorandum dated 12.09.2008, which provided that if there is any doubt regarding fixation of the pension in the new pay scales, the matter would be referred to the Finance Department. In the Memorandum, the reason given for holding that the respondents are not entitled to revision of pension in the corresponding pay scale of Rs.37400- 67000 with AGP of Rs.9000/-, is given as below: The matter has been considered and it is clarified that consolidated pension (treated as final basic pension) shall not be lower than 50% of the sum of the minimum pay of the post of Lecturer (selection scale)/ Head of Department in the RPB 15600-39100 plus GP Rs.8000/- w.e.f. 01.04.2008, subject to the condition that the existing provisions in the rules governing qualifying service for grant of pension and minimum pension shall continue to be operative. The Lecturer (selection scale)/Head of the Department in the RPB 37400-67000 with AGP of Rs.9000/- is further financial upgradation of the post of Lecturer (selection scale)/ Head of Department and it is not a new post. Hence, the minimum pay of the post of Lecturer (selection scale) Head of Department shall be 15600+8000 = 23600/-. The emoluments for the purpose of calculation of minimum 50% pension of the pay scale of the post in the case of Lecturer (selection scale)/Head of Department shall be 23600/- RPB 37400-67000 and AGP Rs.9000/- shall not be taken into account for the purpose of calculation of minimum pension of the post Lecturer (selection scale)/Head of Department. We find that this question has already been answered by the Hon'ble Supreme Court in State of Haryana & another vs. Satya Pal Yadav (supra), whereby the Apex Court upheld the judgment passed by the Division Bench of the Punjab and 18 Haryana High Court at Chandigarh and decided the same issue on merits. In any case, in order to consider the submissions made in the written arguments filed today, we have examined the matter and do not find any good reason to take a different view. It is admitted that all the respondents were serving as Lecturers in the Selection Scale on the date of their retirement, which is prior to 01.01.2006 when the recommendations of the Sixth
Pay Commission were enforced. It is also admitted that all the respondents were considered for grant of Selection Scale pay in accordance with the then prevailing UGC guidelines, under which they were, after completing 3 years of service subjected to screening including consideration of their refresher and orientation courses and research material. They were drawing their pay in Senior Scale prior to their retirement and thus they were entitled for revision of their pay scale in accordance with the corresponding pay scale applicable to their post. The Sixth Pay Commission recommended for two pay scales of Lecturers (Selection Scale). The first was applicable to those, who had not completed 3 years of service in the existing pay scale as on 01.01.2006, and the second category was of those, who have completed 3 years of service in the existing pay scale as on 01.01.2006 and onwards, subject to the guidelines issued in this regard. The University Grants Commission Regulations of 2010 could not be given retrospective effect and further these guidelines were not applicable to those, who were already placed in the Selection Scale. The respondents, therefore, after the 19 award of the pay scales applicable of Lecturer (Selection Scale), could not be treated in the lower pay scale as they had completed 3 years of service prior to 01.01.2006. They could not be artificially placed back into the Selection Scale which was applicable, to those who had not completed 3 years service in the existing pay in the Selection Scale as on 01.01.2006. In view of the aforesaid reasons, we do not find any error in the judgment of the learned Single Judge. All special appeals are, consequently, dismissed. A copy of this order be placed in all connected files. (VEERENDR SINGH SIRADHANA),J. (SUNIL AMBWANI),ACTING C.J. Mohit S/1 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Mohit Tak, P.A.