JUDGMENT
Ranjan Gogoi, J.
1. Heard Mr. S. Shyam, learned Counsel for the petitioners and Mr. I. Choudhury, learned Standing Counsel, P.W.D. Also heard Mr. H.K. Mahanta, learned Government Advocate, Assam.
2. The petitioners, who are 9 in number, are retired employees of the Public Works Department of the State of Assam. They had retired on different dates in the year 2000, 2001 and 2002 while holding either the post of Senior Grade junior Engineer or Assistant Engineer. The non-finalization of the entitlement of the petitioners to pension and the consequential non-payment of the pensionary dues is what has led to the initiation of the present writ application.
3. The facts are long and an attempt must be made to recite only what is essential. Pursuant to the recommendations of the Pay Commission, the Government of Assam, way back in the year 1989, took the decision to introduce a senior grade pay scale to eligible Junior Engineers of different departments with effect from 1.1.1989. The aforesaid decision was taken to remove stagnation in service. The petitioners being qualified and eligible in terms of the eligibility prescribed were given the benefit of senior grade pay scale in the post of Junior Engineer. When the question of fixation of their pay arose, a dispute/difference arose as to whether such pay should be regulated under F.R.22(1)(a)(1) or F.R.22(1)(a)(2). The Government took the decision that Junior Engineers who were granted the senior grade pay scale not having been promoted to a higher post, the fixation of pay is to be made by adhering to the provisions of F.R.22(1)(a)(2). However, any excess drawal by an incumbent is not to be recovered. The aforesaid decision was reflected in two Office Memorandums dated 25.9.1995 and 2.5.1998. The two decisions of the Government as reflected in the Office Memorandums in question were called into question by the Association representing the Diploma Holder Junior Engineers of the State before this Court. The point at issue before the Court need not be recited in the present order inasmuch as by a subsequent Notification dated 27.10.2003, the Government appears to have revised its earlier decision by holding that the fixation of pay of Junior Engineers is required to be made by following the provisions F.R.22(1)(a)(1). On the basis of the aforesaid Notification dated 27.10.2003 the writ petition filed by the diploma holder Junior Engineers Association was closed by this Court by order 13.2.2004 which, however, has been sought to be reopened by the filing of a Writ Appeal, i.e., W.A. No. 261 of 2004 before this Court at the instance of the Chief Secretary to the Government of Assam, and the Commissioner and Secretary to the Government of Assam, P.W.D. The aforesaid Writ Appeal No. 261/2004 is presently pending before this Court. As the fixation of pay by following either of the provisions of F.R. 22(1) would result in two different situation which in turn could effect the pensionary entitlement of the incumbents, such entitlement of the petitioners have been withheld to await the verdict of this Court in Writ Appeal No. 261/2004. It may also be noticed at this stage that provisional pension paid to the petitioners by fixing their pay scale as per F.R.22(1)(a)(1) has also been discontinued.
4. The petitioners are retired Government employees in whose favour provisional pension orders have been passed by fixing their pay by application of the provisions of F.R.22(1)(a)(1). The Government Notification, i.e., the Notification dated 27.10.2003 is presently holding the field in terms of which the pay of the petitioners is required to be fixed by following the provision of F.R.22(1)(a)(1). Though the question has been agitated in Writ Appeal No. 261/2004 there is no interim order from this Court. In such a situation there can be little doubt that the withholding of the finalisation of the entitlement of the petitioners to pension merely on the ground of pendency of Writ Appeal No. 261/2004 will not be justified. The petitioners are entitled to receive pension which must be paid to them by the State. The only question is on what basis such pensionary entitlement of the petitioners is to be fixed in a situation where the question of applicability of either of the two parts of F.R.22 is presently pending before this Court.
5. Pension being a benefit earned by an incumbent in Government service after years of dedicated service rendered, the inclination of the Courts would be to ensure that such benefits are allowed to the concerned incumbents without any curtailment. The petitioners have been paid provisional pension by application of F.R.22(1)(a)(1). The Government Notification in force entitles them to have the benefit of pay fixation by application of the provisions of F.R.22(1)(a)(1). Though Writ Appeal No. 261/2004 is pending, there is no interim direction or restraint from this Court. In such circumstances, this Court is of the considered view that the pensionay entitlement of the petitioners must be finalized by the State by fixing their pay in the senior grade pay scale of Junior Engineers by adhering/following the provisions of F.R.22(1)(a)(1), subject to such adjustment as may be required to be made following such decision as may be rendered by this Court in Writ Appeal 261/2004, a course of action to which learned Counsel for the petitioners has agreed to abide by. The concerned authority in the State Government including the competent authority in the Finance Department shall do all that is needful to ensure that the direction of this Court as above is carried out to enable the petitioners to receive their pensionary entitlement including arrears in terms of the present direction within a period of three months from the date of receipt of a certified copy of this order.
6. Writ application is allowed as indicated above.