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PETITIONER: E. GOPALAKRISHNAN & ORS.

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT31/10/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KIRPAL B.N. (J)

CITATION:  1996 AIR  707            1995 SCC  Supl.  (4) 205  JT 1995 (8)   152        1995 SCALE  (6)218

ACT:

HEADNOTE:

JUDGMENT:                           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.

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    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.