E. Gopalakrishnan & Ors Vs. Union of India
[1995] INSC 594 (31 October 1995)
Ramaswamy, K. Ramaswamy, K. Kirpal B.N. (J)
CITATION: 1996 AIR 707 1995 SCC Supl. (4) 205 JT
1995 (8) 152 1995 SCALE (6)218
ACT:
HEAD NOTE:
O R D E R
The appellants, nine in number, admittedly had
retired prior to September 1, 1985 as either head clerks or chief clerks, the last being June 30, 1985. It appears that a
practice was in vogue at one point of time that for the discharge of special
duties, a sum of Rs. 35/- p.m. as special pay was granted to the upper division
clerks working in certain special posts. Decision was taken that on promotion
as head clerk or special clerk, they would not be entitled to carry with them
the special pay of Rs.35/- per month. Admittedly, the appellants had been
promoted as stated earlier, as head clerks of chief clerks and they were not
given the special pay of Rs.35/- per month from the date of their promotion
till the date of their retirement prior to September 1, 1985. It is also clear that
in the memo dated July 11, 1979, it was expressly stated that the special pay would not be
paid to the promoted head clerks or chief clerks. Subsequently, it appears that
there was an agitation and a reference to the Board of Arbitration was made
which had decided that with a view to remove the anomaly in the pay structure,
the special pay of Rs.35/- per month shall be paid to the promoted head
clerks/special clerks w.e.f. September 1, 1985 but without paying arrears.
Challenging the non-avallment thereof, some of
the employees had approached the CAT at Delhi which appears to have held that
the persons who had not been paid from July 11, 1979 till August 31, 1985 would
also be entitled to the special pay at Rs.35/- per month but they were not
entitled to the arrears of the of the salary. In other words, the result of the
decision of the Board of Arbitration and the CAT is that the persons, who
continued in service between July 11, 1979 and August 31, 1985 and thereafter, would
be entitled to the special pay of Rs.35/- per month though promoted as head
clerks/chief clerks but without arrears of salary. This was also the decision
taken by the respondents.
The question that emerges is whether the head
clerks/chief clerks who retired prior to September 1, 1985 are also entitled to
step up their pay by including Rs.35/- per month for the purpose of calculating
the pension. The Tribunal in this case held that they are not entitled.
Shri Sundarvaradan, the learned senior counsel
appearing for the appellants, contended that since the appellants had actually
worked as head clerks/chief clerks on par with other persons to whom the
benefit of the pay of Rs.35/- per month had been granted by the Board of
Arbitration and also the CAT, they have been unjustly discriminated violating
Article 14 of the Constitution and that, therefore, the Tribunal was not right
in denying the benefit of stepping up of the scale of pay for computation of
pension. Having considered the argument, we find that there is no justification
in the stand taken by the appellants. Admittedly, they have retired prior to September 1, 1985. The benefit that was
given by the Board as well as the order of the Tribunal and the respondents was
to remove the anomaly in the pay structure and bring uniformity applying
notional scale of pay of those promoted as head clerks/chief clerks between July 11, 1979 to August 31, 1985 but denied payment of
arrears. In other words, on salary with Rs.35/- as special pay was made to any
one. That benefit was given only to those who continued in service after September 1, 1985. The notional pay is
considered in that perspective only for the purpose of removin the anomaly. The
pension is required to be computed on calculation of average of 10 months pay
actually drawn by the employee. Since the appellants admittedly were not in
service as on September 1, 1985, the dated on which the notional pay was given
effect to, they had not actually drawn the pay including Rs.35/- per month.
Accordingly, the scale of pay including Rs.35/- per month cannot be stepped up
for computing the pension. The appeal is accordingly dismissed but, in the
circumstances, without costs.
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