A. N. Varma, J. - (1.) THE petitioner is aggrieved by the action of the respondents in refusing to fix his pension on the basis of the pay of Rs. 560/- per month which he was drawing at the time of his retirement, i.e. on June 30, 1976.
(2.) THE relevant facts are that the petitioner was appointed as a guard in the respondent railways in Grade 'C on September 28, 1943. One Som Nath and B. P. Chaturvedi were also appointed guards in grade 'C but subsequently in the year 1945. On September 5, 1959, the petitioner was promoted to the post o: guard in grade 'B' and ultimately on November 18, 1972 the petitioner was promoted to the next higher grade, namely, grade 'A'. Som Nath and B. P. Chaturvedi, on the other hand, were promoted to grade 'B' on December 27, 1964 and grade 'A' on January 2, 1975. Under a Railway Board's circular dated I March 19, 1966, a provision was made for stepping up the pay of senior employees to the pay which persons junior to them became entitled to draw upon their promotion to the higher post. This was done in order to remove the anamoly which had arisen on account of the fact that at the time of the promotion of junior employees to the higher posts their pay scales had gone up. With a view to removing this anamoly, the Railway Board issued the aforesaid circular which provided as follows :- "In order to remove this anomaly the President is pleased to decide that in such cases the pay of the senior employee in the higher post should be stepped up to a figure equal to the pay as fixed for the junior employee in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior employee and will be subject to the following conditions". It is not necessary to lay down the conditions mentioned therein as it is not the case of the respondents that the petitioner became disentitled to the aforesaid benefit on account of any exception provided under the conditions laid down therein. It is not disputed that upon the promotion of Som Nath and B.P. Chaturvedi to the higher grades on the dates mentioned above both these persons became entitled to receive higher pay than the petitioner in virtue of the revision in the pay scales which became applicable by the time their promotions were made. Applying the Railway Board's circular the petitioner's pay was stepped up on December 27, 1964 in grade 'B' to the level of pay of Som Nath and B. P. Chaturvedi and again on the promotion of these two persons to grade 'A' the petitioner's pay was again stepped up and was fixed at Rs. 560/-.
(3.) WHEN the petitioner applied for fixation of his pension upon his retirement, the respondents fixed the pay of the petitioner for the purpose of determination of his pension at the time of his retirement at Rs. 530/- on the premise that the petitioner was not entitled to the benefit of the aforesaid Railway Board's circular. The contention of the petitioner is that the respondents have misinterpreted and misunderstood the scope of the aforesaid circular and that on a true and proper construction of the same the petitioner's pension ought to have been fixed treating the salary of the petitioner on the date of retirement at Rs. 560/-. In the counter affidavit which has been filed in this case on behalf of the respondents, the stand taken is that Som Nath and B. P. Chaturvedi both were drawing higher pay in grade 'C' than the petitioner on April 1, 1961, the date with effect from which the aforesaid Railway Board's circular became applicable and consequently the petitioner could not be allowed the benefit of the same. Having heard learned counsel for the parties, we are clearly of the opinion that the contention of the petitioner is well founded. In the counter affidavit filed on behalf of the respondents it has been shown in the chart given in paragraph 5 that on April 1, 1961 whereas the petitioner was getting Rs. 166/- B. P. Chaturvedi and Som Nath were drawing on that date Rs. 170/-per month. It is on this basis that the respondents have refused the relief to the petitioner.;