TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) BRIEF facts of the case are that the petitioner was working as Senior Assistant in the United Indian Insurance Company Limited (respondent No. 1) at its Jodhpur Branch till he took voluntary retirement on 19. 11. 1997 after completion of more than 20 years of service. The petitioner's service conditions are governed by the General Insurance (Rationalisation and Revenue of Pay Scales and other conditions of Service of Supervisory, clerical and subordinate Staff) Scheme, 1974 as amended time to time. The principal scheme was published by Notification No. S. O. 326 (E) dated 27. 5. 1974. For these conditions, approval was accordance by the Central Government. It is relevant to mention here that the said scheme was amended about 30 times from 1974 to 1999 which is clear from the explanatory memorandum, copy of which is placed in this file at page No. 50. By amendment dated 27. 8. 1998 benefit of Special Allowance was granted to Class III and Class IV employees of the General Insurance Corporation of India and its subsidiary companies with effect from 1. 7. 1976. The employees drawing basic salary of Rs. 5500/- and above were entitled for special allowance of Rs. 170/- per month but with a condition that in case the employees will opt for the Special Allowance, then his conveyance allowance will stand reduced from Rs. 100/- to Rs. 50/- only. Though the petitioner took voluntary retirement with effect from 19. 11. 1997 and the Notification mentioned above was issued on 27. 8. 1998 still the petitioner was admitted for benefit of special allowance with effect from 1. 7. 1996 after deduction of and recovery of conveyance allowance at the rate of Rs. 50/- per month and the petitioner was paid the arrears calculated on the basis of Special Allowance. The petitioner was also paid arrears of difference amount accrued on account of grant of special pay against the head "leave encashment," "pension," "gratuity" etc. While computing revision, this Special Allowance was also taken into consideration. Petitioner placed on record the salary certificate and payment order sheets of revised gratuity and pension. By Notification dated 27. 6. 2000 (Annex. 5), the Government of India revised the pay scales of the employees of the General Insurance Corporation of India and its subsidiary companies by exercising power given under Section 17-A of the Act of 1972. It is mentioned in the Notification Annexure-5 that no employee of the Corporation or its subsidiary companies will be adversely affected by retrospective effect of the Notification. According to the petitioner, there is no clause of abolition of special pay in the Notification dated 22. 6. 2000, however, the conveyance allowance was increased from Rs. 50/- per month to Rs. 75/- per month with effect from 1. 7. 2000. After this Notification, the petitioner's pay scale was also revised and he was paid the arrears. But doing so, the respondent No. 1 deducted the amount which was granted to the petitioner under the head of "special allowance". Said deduction was affected in compliance to the administrative instruction dated 3. 7. 2000 which says that with coming into effect of the Amendment Scheme of 2000 from 1. 8. 1997, the said Special Allowance shall cease to be payable from 1. 8. 1997 or the date of fixation of the employee in the revised pay scale, if it be latter. The copy of the administrative instruction is Annexure-7. It is also submitted by the petitioner that the petitioner was getting fixed personal allowance at the rate of Rs. 230/- per month which has been raised to Rs. 360/- per month under the revised pay scale. In para X of the 7th schedule, it is provided that increment component along with D. A. thereon as on 1. 11. 1993 shall rank for gratuity and encashment of earned leave. According to the petitioner the respondents have not sent proposal for grant of arrears of gratuity on account of above increase in fixed personal pay which is contrary to item No. X of the 7th schedule of the Government Notification dated 22. 6. 2000. In these circumstances, the petitioner submitted a representation to the respondents on 17. 7. 2000. The respondents submitted reply to the writ petition and contested the claim of the petitioner on the grounds that the petitioner has concealed material facts from this Court that the petitioner has accepted the arrears on 14. 7. 2000 under Amendment Scheme 2000 without any protest and the petitioner failed to show any infringement of his legal right to maintain the present writ petition. It is also submitted that Amendment Scheme of 2000 does not provide for grant of Special Allowance and if the petitioner would have chosen not to opt for fixation under the Amendment Scheme 2000, earlier fixation could have been continued but since the petitioner accepted the arrears as per the Amendment Scheme 2000 which provides for revised pay scale and allowances excluding Special Allowance, therefore, after accepting benefit, the petitioner cannot challenge the scheme. According to the respondent, since the schedule 6th which was in force earlier giving benefit of the Special Allowance has been replaced by 7th schedule of Amendment Scheme 2000 and since 7th schedule contains no provision for Special Allowance, therefore, the petitioner is not entitled for Special Allowance. For the purpose of pension and gratuity and encashment of earned leave etc. it is submitted that in all such cases where the allowances have been revised, only the pre-revised portion of the allowance will rank for pension, gratuity and encashment of earned leave etc. For administrative instructions issued on 3. 7. 2000, it is stated that administrative instructions run in consonance with the Amendment Scheme 2000. The petitioner submitted detailed rejoinder to the reply of the respondent in which the petitioner denied the allegation of suppression of facts and plea of acquiescence raised by the respondent and reiterated what the petitioner has said in the writ petition and supplemented further grounds in support of his pleas taken in the writ petition. I considered the rival submissions of the learned counsel for the parties and perused the record. The principal disputes between the petitioner and the respondents are that, what is the effect of amendment dated 22. 6. 2000 with reference to certain benefits which are claimed by the petitioner and denied by the respondents. Whether the 7th schedule inserted in the Scheme of 1974 by amendment dated 22. 6. 2000 replaced the 6th schedule of the Scheme of 1974 which was in existence prior to coming into force of 7th schedule. Whether the benefits which were available to the employees like Special Allowance has been taken away by introduction of the amendment of 22. 6. 2000 and whether the administrative instructions dated 3. 7. 2000 runs contrary to the amendment of 22. 6. 2000 and cannot be given effect to.
(3.) ACCORDING to the learned counsel for the petitioner, right accrued to the petitioner by virtue of coming into force of provision for grant of Special Allowance by Notification dated 27. 8. 1998. The Notification dated 22. 6. 2000 nowhere withdraws the benefit of Special Allowance which was granted by the Notification dated 27. 8. 1998. It is also submitted that a bare reading of Notification dated 22. 6. 2000, it is clear that by this Notification the 6th schedule has not been replaced but has been modified only. Learned counsel for the petitioner referred various clauses contained in the Notification dated 22. 6. 2000 whereas the learned counsel for the respondents submits that by scheme dated 22. 6. 2000 amendments have been made and the pay scales have been revised and this revision has been done after taking into account the various allowances which stand merged in the revised pay scale and the allowances which are given in the 7th schedule only remained applicable to the employees which is clear from the reading of 7th schedule. In 7th schedule, various allowances like functional allowance, other functional allowance, dearness allowance, allowance for technical qualification, graduation allowance, house rent allowance, city compensatory allowance with fixed personal allowance and many other allowances have been kept. The amount of the cycle allowance has been raised but the Special Allowance which was available in schedule 6th has not been kept in 7th schedule, therefore, the petitioner has no right to claim the personal allowance or the benefit on the basis of his claim of enhanced gratuity. Objection with respect to the conduct of the petitioner on the ground that he has accepted the benefit of revised pay scale under the amendment of 22. 6. 2000 and the Union of India has not been impleaded as party in the writ petition appears to have been raised on assumption that the petitioner is challenging the Amendment Scheme 2000 where as petitioner has not challenged the Amendment Scheme 2000 and in fact he is asserting that he is entitled for the benefit under the Amendment Scheme 2000 in addition to the benefit of Special Allowance under the schedule 6th has not been replaced by the schedule 7th by Amendment Scheme 2000. The petitioner has not suppressed any material fact in the writ petition nor acceptance of the benefit, which accrued to the petitioner by the amendment dated 22. 6. 2000, deprives the petitioner from saying that he is entitled to the both benefits. The contention of the learned counsel for the respondents that 6th schedule has been replaced by 7th schedule appears to be not correct in view of the sub-clause (ix) of clause (3) of the Notification dated 22. 6. 2000 which is as under :- " (ix) after the Sixth Schedule, the following Seventh Schedule shall be inserted, namely :-" ;