- (1.) Heard Sri Nirankar Singh, learned counsel for the petitioner and Dr. Udai Veer Singh, learned Addl. C.S.C. for the State-respondents.
(2.) At the very outset the learned counsel for the petitioner has drawn attention of this Court towards Annexure no. 11 which is a judgment and order dated 7.10.2015 in Service Bench No. 155/2013: Jai Mohan and 2 others vs. State of U.P. and others by submitting that the said writ petition was filed by the petitioner making prayer mainly to the effect that the opposite parties be directed to pay the salary to the petitioner on the basis of pay scale which was drawn by the petitioners on the date of retrenchment in the erstwhile department. This Court in the aforesaid writ petition has considered the facts and circumstances of the issue in detail. Learned counsel for the petitioner has further submitted that after hearing the learned counsel for the parties this Court has finally allowed the writ petition issuing a writ in the nature of mandamus commanding the opposite parties to pay the salary to the petitioner on the basis of pay-scale which was drawn by the petitioner on the basis of their retrenchment in the erstwhile department. For the brevity the order dated 7.10.2015 is being reproduced herein below: "Heard Mr. Sandeep Dixit, learned counsel for the petitioners as well as learned Additional Chief Standing Counsel. The petitioners being retrenched employees have been absorbed in the different departments of the State Government. They have claimed the benefit of pay scale as last drawn by them in their erstwhile department i.e. Uttar Pradesh State Mineral Development Corporation Limited under the Uttar Pradesh Absorption of Retrenched Employees of Government or Public corporations in Government Service Rules, 1991 but since the Rules have been rescinded by the Uttar Pradesh Absorption of Retrenched Employees of Government or Publication Corporation in Government Service (Recession of Rules) Act, 2009 (in short 'the (Recession of Rules) Act, 2009') w.e.f. its inception, they are not being paid salary as was drawn by them in their erstwhile department. The petitioners had been absorbed in service of the State Government in 2005 i.e. before issuance of the (Recession of Rules) Act, 2009, therefore, they have claimed that the provision of (Recession of Rules) Act, 2009 shall not apply upon them. The controversy has been decided by one of us (Justice Shri Narayan Shukla) sitting singly in writ petition no. 5495 (S/S) of 2003, K.C.Mishra and others v. State Of U.P . and 4 Ors in which the similarly situated persons have been made entitled to the benefit of pay protection as last drawn by them in the erstwhile department. The Hon'ble Supreme Court in Sunil Kumar Verma and others v. State of U.P. and others ; Civil Appeal Nos. 9165-9172 of 2009 has approved the benefit under Rules, 1991 even after the (Recession of Rules) Act, 2009 had come into force to the similarly situated persons. Section 3(2) of the (Recession of Rules) Act, 2009 is extracted below: "3.(2) Notwithstanding such rescission- (a) the benefit of absorption provided to the retrenched employees absorbed before April 8, 2003 under the provisions of the Absorption Rules, shall not be withdrawn. (b) the benefit of pay protection granted to the retrenched employees absorbed prior April 8, 2003 shall also be maintained; (c) retrenched employee covered by the Absorption rules, but who has not been absorbed till April 8, 2003 shall be entitled to get relaxation in upper age limit for direct recruitment to such Group 'C' and Group 'D' posts which are outside the purview of the Uttar Pradesh Public Service Commission to the extent he has rendered his continuous services in substantive capacity in the concerned Government Department or the Public Corporation in completed years."
(3.) Regard being had to the aforesaid discussions, we hereby issue a writ of mandamus to the respondents to pay salary to the petitioners on the basis of the pay scale, which was drawn by the petitioners on the day of their retrenchment in the erstwhile department. The writ petition is, accordingly, allowed." Since the petitioner has retired before the date of judgment and order dated 7.10.2015, therefore, an application to review of the order dated 7.10.2015 was filed seeking prayer that the petitioners are entitled for pension, therefore, the order may be modified to the effect that the petitioners be paid their pension on the basis of pay scale. The Division Bench disposed of the review application vide order dated 13.1.2017 which reads as under : ;