Supreme Court of India
V.S.MURTHYversusUNION OF INDIA AND ORS.
- Citation
- 1992 INSC 152
- Decided
- 7 May 1992
- Disposal
- Dismissed
- Bench
- A M AHMADI
Holding
The deputation (duty) allowance received by the appellant on foreign service is excluded from "emoluments" and therefore cannot be counted for pension calculation.
Summary
V.S. Murthy, a former railway clerk, was deputed to Hindustan Organic Chemicals Limited, a public sector undertaking, and later absorbed permanently. While on deputation he received his regular railway pay plus a deputation (duty) allowance. Upon retirement he claimed that the allowance should be counted as "emoluments" for calculating his railway pension, seeking 100% commutation. The Central Administrative Tribunal rejected his claim, holding the allowance was not "special pay" and that his service on deputation constituted "foreign service". The Supreme Court upheld the Tribunal's order, ruling that under the Indian Railway Establishment Code (rules 2003(FR.9) and 2544‑C) deputation allowance received during foreign service is excluded from emoluments for pension purposes, and that the Manual of Railway Pension Rules cannot override the statutory code. The appeal was dismissed.
Issues considered
- Whether deputation (duty) allowance received during deputation to a public sector undertaking is to be included in "emoluments" for the purpose of calculating railway pension.
- Whether service on deputation to such an undertaking qualifies as "foreign service" under Rule 2003(FR.9) of the Indian Railway Establishment Code.
- Whether the Manual of Railway Pension Rules, 1950 can override the statutory provisions of the Indian Railway Establishment Code.
- Whether the deputation allowance can be treated as "special pay" under Rules 2544‑A and 2544‑B.
Legislation cited
- Indian Railway Establishment Codes. 2003(FR.9)(8), s. 2003(FR.9)(9), s. 2544-A, s. 2544-B, s. 2544-C
- Manual of Railway Pension Rules, 1950s. 501(4)(1), s. 506
Subjects
pensiondeputation allowanceforeign servicerailway employeeIndian Railway Establishment CodeManual of Railway Pension Rulesspecial payemoluments
Judgment
A V.S.MURTHY
v.
UNION OF INDIA AND ORS.
MAY 7, 1992
B [A.M. AHMADI AND DR. A.S. ANAND, JJ.)
Indian Railway Establishment Code:
Rules 2003 FR 9(8) and 2003 FR 9(9}-Railway employee on deputa-
tion with a Public Sector Undertaking-'Deputation '-Whether foreign ser-
c vice-Whether pay received in the Public Sector Undertaking was from the
general revenue of the State.
Rules 2544-A (CSR 486-A), 2544-B (CSR 486-B) and 2544-C (CSR
486-C)(-) Railway employee deputed to a Public Sector Undertaking-Per-
D manently absorbed subsequently-'Deputation (duty) allowance' drawn
during deputation-Whether to be included in emoluments for purpose of
calculation of pension on permanent absorption. 'Deputation
al/owance'-When can be deemed to be special pay.
Manual of Railway Pension Rules, 1950:
E
Paras 501 (4) and 506--Provisions meant for guidance of Railway
staff- Cannot override statutory rules contained in Indian Railway Estab-
lishment Code.
The appellant was initially appointed in the Railways. Subsequently,
F he proceeded on deputation to a Public Sector Undertaking, and was
permanentaly absorbed there. While on deputation, he was receiving his
pay as admissible from time to time in the parent department, plus
deputation (duty) allowance. On absorption, the appellant claimed his
pensionary benefits from the Railways, and on his request, 100% commuta-
G tion of pension was allowed. However, the calclltation of pension was made
without taking into accout the deputation (duty) allowance which he was
drawing while on deputation.
--~
Having failed to persuade the authorities, through various repre-
sentations, to include the deputation (duty) allowance for the purpose of
i
H calculation of his pension, the appellant approached the Central Ad-
92
V.S. MURTHYv. U.0.1. 93
>-- ministrative Tribunal. The claim was contested by the respondents on the A _
ground that since the service rendered by him on deputation to the Public
Sector Undertaking was 'foreign service' the deputation (duty) allowance
received by him could not be included in the expression "emoluments" for
the purpose of calculation of pension.
The Tribunal held that deputation (duty) allowance, in case of B
deputation to bodies owned wholly or substantially controlled by the
Government, would reckon for pension in terms of the provisions made in
Rules 2544-A and 2544-B (CSR 486-A and 486-B) of the Indian Railway
Establishment Code, subject, however, to the fulfilment of the conditions
laid down therein, notwithstanding the provisions of MRP Rules, but the C
benefit of counting the deputation (duty) allowance received by the appel-
lant for calculation of bis pension was not available to him, since be did
not fulfil the condition of length of service during which be should have
drawn the special pay as envisaged by Rules 2544-A (CSR 486-A) and
2544-B (CSR 486-B) of Indian Railway Establishment Code.
D
In the appeal before this Court, the appellant contended that the
deputation (duty) allowance was required to be included for calculation of
pension since it was in the nature of "special pay", which under the Indian
Railway Establishment Code read with F.R. had to be taken into account
for calculation of pension, and that he could not be treated to be on 'foreign E
service' while serving with the Public Sector Undertaking, since the Under-
taking in question was a Government of India Undertaking and was under
the control of the Central Government and, its revenues would be included
in the general revenues of the State.
On behalf of the respondent, it was contended that though the order F
of the Tribunal in rejecting the appellant's claim was correct and required
no interference, the reasoning of the Tribunal which had failed to take note
of Rules 2003 (FR.9) and 2544-C (CSR 486-C) was fallacious.
Dismissing the appeal, by Special leave, this Court,
G
HELD : 1. The allowance received by the appellant as deputation
~ . (duty) allowance from th~ Public Sector Undertaking was rightly excluded
from being taken into account for reckoning as "emoluments" for the
purpose of calculation of pension of the appellant by the railways. The
order of the Tribunal does not require any interference though for reasons H
94 SUPREME COURT REPORTS [1992) 3 S.C.R.
A different than the one given by the Tribunal. [105 A]
2.1 The provisions of Manual of Railway Pension Rules are meant
for the guidance of the staff and by themselves do not have any statutory
force. However, the MRP rules supplement the statutory rules and can be
harmoniously read with the statutory provisions contained in the Indian
B Railway Establishment Code. [99 DJ
2.2. The guidelines contained in Paras 501(4)(1) and 506 of MRP
Rules provide that if a railway servant has been on foreign service imme-
diately before quitting the railway service, then his emoluments should be
taken at what they would have been had he not been on foreign service and
c deputation (duty) allowance drawn on foreign service was not to be taken
into account for determining his emoluments for calculation of pensionary
benefits. [100 G-H]
i.3 According to Note (1) to CSR 486-C Rule (2544-C) if a railway
D servant immediately before his retirement or death etc. has been absent
from duty or on leave with allowances (including leave preparatory to
retirement) or on foreign service or having been suspended but reinstated
without forfeit1:1re of qualifying service, his 'emoluements' should be taken
at what they would have been had he not been on such leave or foreign
E service or suspension as the case may be for commutation of his pension-
ary benefits. [102 A]
2.4 The provisions of Rule 2544-C (CSR 486-C) read with Note (1)
thereto, therefore, give the statutory backing to the guidelines contained
in paras 501 (4)(1) and 506 of MRP Rules and both can be harmoniously
F read together. The MRP Rules only provide what is statutorily provided
in CSR 486-C of Indian Railway Establishment Code. Thus, both under
the CSR 486-C and the MRP Rules, deputation (duty) allowance received
by an employee while on foreign service has not to be reckoned as "emolu-
ments" for calculating pensionary benefits. [102-C]
G 3.1 Rule 2544-A (CSR 486-A) provides that in respect of officers
retiring from service on or after the 1st November, 1959, the term "emolu-
ments" means the emoluments which the officer was receiving immediately
before his retirement and includes "special pay" attached to a post other
than a tenure post, when the "special pay" has been sanctioned permanent-
H ly and the post is held in a substantive capacity. The deputation (duty)
-
V.S. MURTHY v. U.O.I. 95
allowance is deemed to be "special pay" and subject to any exception would A
form the emoluments. For the purpose of reckoning "special pay" as
emoluments for pension,Rule 2544-B (CSR 486-B) provides that if an
officer holding a permanent post in a substantive capacity is confirmed in
such higher permanent post any time during the last three years of his
service after having officiated in that post continuously for three years or
more, his emoluments for pension in respect of the higher post in any
B
period beyond three years of continuous service in that post shall be
determined under Rule 2544-A (CSR 486-A) as if he held in substantive
capacity a permanent post on a time-scale identical with that of higher
post. (103 G-H, 104 A-BJ
c
3.2 In the instant case, the appellant was not drawing "special pay"
as envisaged by CSR 486-A and 486-B but "deputation duty allowance"
while on 'foreign service' and that 'special pay' while on foreign service was
required to be excluded for purposes of calculation of pension. The deputa-
tion (duty) allowance is not to be reckoned as "emoluments" for calculating
pension where the deputation (duty) allowance has been received by the D
railway servant while on deputation to foreign service as in such cases, the
deputation (duty) allowance is not attached to the post but is personal to
the incumbent on foreign service. [104 C-D]
3.3 The Tribunal relied upon CSR 486-A and 486-B but over-looked E
the provisions of CSR 486-C, which are in the nature of an exception and
exclude the deputation (duty) allowance to be reckoned as emoluments for
calculating pension, where the same have been received by the railway
servant while on deputation to foreign service. [104 E]
3.4 The Tribunal was, therefore, not correct in holding that the F
'special pay' of the appellant was required to be taken into account for
calculating his pension subject to his fulfilling the conditions laid down in
Rule 2544-B (CSR 486-8). (103 F-G]
4.1 A plain reading of the definitions of 'foreign service' and 'general
revenues' under Rules 2003 (FR9)(8) and 2003 (FR9)(9) of the Indian G
Railway Establishment Code shows that "foreign service" means service in
which a raiJway servant receives his pay and allowances, while on deputa-
tion, from any source other than from a company working as State Railway
or from general revenue of the State and the expression 'general revenue'
means the revenues of the President and includes the revepues of a State H
96 SUPREME COURT REPORTS [1992] 3 S.C.R.
A and the Railway Fund, if established. (102 G]
4.2 In the instant case, the appellant was not receiving his pay while
on deputation with the Public Sector Undertaking from the general
revenue of the State or from any company working as State Railway. Even
if the Public Sector Undertaking in question is a Government of India
B enterprise, it can only be treated to be a Government of India undertaking,
but its revenues cannot be said to constitute the general revenue of the""
State within the meaning of Rule 2003 (FR.9). Therefore, the pay and
allowances received by the appellant while on deputation to the Public
Sector Undertaking were not being drawn from the general revenue of the
c State. His service with the Public Sector Undertaking was unmistakably
foreign service and in the matter of calculation' of his emoluments for
Computation Of terminal benefits OD his quitting the railway Service, the
provisions relatable to foreign service were to be applied to his case.
(103 A-Cl
D 5. There is sound logic behilid the exclusion of deputation (duty)
allowance received by a railway servant while on foreign service from being
included in the emoluments to calculate pension. The deputation or a
Railway servant to foreign service is a fortuitous assignment and since,
there is no settled method of selection of the railway servant for being seot
E on deputation to foreign service, the life long benefit of having the deputa-
tion duty allowance included for calculation of pension may result in
hardship and injustice to those railway servants who were not so sent on
deputation even though senior or more qualified than the perso~ ·sent on
deputation. It is for this reason that while the deputationists may receive
the deputation (duty) allowance for the services rendered on foreign
F service during the period they remain on deputation, that deputation
· (duty) allowance has been excluded from being taken into account for
purpose of calculation of pension. (104 F-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 127 of 1991.
G
From the Judgment and Order dated· 18.4.1990 of the Central Ad-
ministrative Tribunal, New Delhi in OA. No. 542 of 1987.
Appellant-in-person.
H Dr. ~and Prakash, Ms. Sarla Chandra, B. Krishna Prasad (NP) and
V.S. MURTHY v. U.0.1. [ANAND, J.] 97
V.K. Verma for the Respondents. A
,>..__
The Judgment of the Court was delivered by
DR. A.S. ANAND, J. The short and only question requiring con-
sideration of this Court in this appeal, by Special Leave, from the order of
the Central Administrative Tribunal, Principal Bench, New Delhi, made in B
OA No. 542/87 on 18th of April, 1990, is "whether for calculating the
pension, the amount paid by way of deputation (duty) allowance by Hin-
dustan Organic Chemicals Limited, Rasayani to the appellant, while on
~
deputation from the Railways, is to be included ?" The necessary and
relevant facts are as follows :
c
2. The appellant was appointed as a Clerk, Garde-II, in the Office
of the Financial Adviser and Chief Accounts Officer, Central Raiiways,
Bombay V.T., on 25.1.1950. In 1953, he was promoted as Stock Verifier in
the pay-scale of Rs. 80-220. While the appellant was so working, in 1979,
-.,)_
he proceeded on deputation to join as a Vigilance Inspector in the Hin- D
dustan Organic Chemicals Limited [hereinafter referred to as 'HOCL']
initially for a period of one year, which period was extended from time to
time till he was permanently absorbed in HOCL on 8.12.1982. At the time
of proceeding on deputation, the pay-scale of the appellant in the Central
Railways was Rs.490-30-640-35-815-40- 1055. On deputation, the pay of the
appellant was regulated in terms of the FA and CAO's Office Memoran-
E
dum, dated 12.12.1979, and the appellant received his pay, as admissible
from time to time, plus the deputation (duty) allowance. The appellant was
permanently absorbed in the HOCL with effect from 8.12.1982 following
his resignation from the Central Railways. The appellant claimed his
pensionary benefits from the Central Railways. F
___J._ 3. In accordance with the relevant orders of the Government of India,
a pensionary employee, on permanent absorption in a public sector under-
taking, is entitled to the grant of pension on the basis of qualifying years
of service etc. The Government of India, however, makes a departure in
such cases, from the normal rule of commutation of pension to the extent G
of 1/3rd of the pension to full (100%) commutation of pension. In the case
of appellant, on his request, 100% commutation of pension was allowed by
_A-- - the Government of India. The calculation of pension was, however, made
without taking into account the amount of deputation (duty) allowance of
Rs. 150 per month, which the appellant was drawing, while on deputation H
98 SUPREME COURT REPORTS [1992] 3 S.C.R.
A from the Central Railways, to the HOCL. It is pertinent to notice here that
the appellant had opted for contributory provident fund and had received
the benefit in respect thereof from the HOCL for the period for which he
was on deputation. Having failed to persuade the authorities, through
various representations, to include the deputation (duty) allowance for the
purpose of calculation of his pension, the appellant approached the Central
B Administrative Tribunal, Principal Bench, Delhi:
4. The claim of the appellant was contested by the respondents
before the Tribunal on various grounds. It was urged that the service
rendered by the appellant on deputation to the HOCL was foreign service
C and, therefore, the deputation (duty) allowance received by him could not
be included in the expression "emoluments" for the purpose of calculation
of pension. Reliance was placed by the respondents on Para 506(i) and 501
(4)(1) of the Manual of Railway Pension Rules, 1950, (hereinafter referred
to as MRP Rules), and Rules 2544 A and B (CSRs 486 A and 486 B) of
D Indian Railway Establishment Code, Vol.II (hereinafter referred to as IRE
Code). The Tribunal found that the provisions of Manual of Railway
Pension Rules were meant only for the guidance of the railway staff and
those provisions could not over-ride the statutory rules contained in the
IRE Code. The Tribunal then referred to various provisions of the IRE
Code arid held that deputation (duty) allowance, in case of deputation to
E bodies owned wholly or substantially controlled by the Government, would
reckon for pension in terms of the provisions made in Rules 2544-A and
2544-B [CSRs 486-A and 486-B) of the_ IRE Code, subject, however, to the
fulfilment of the conditions laid down therein, notwithstanding the
provisions of MRP Rules. The Tribunal, however, found that the benefit
F of counting the deputation (duty) allowance received by the appellant from
HOCL for calculation of his pension was not available to the appellant as
he did not fulfil the condition of le1:1gth of service during which he should
have drawn the special pay as envisaged by Rules 2544-A (CSR 486-A) and
2544-B [CSR 486-B) of IRE Code.
G 5. The appellant, appearing in person, has taken us through the
provisions of the MRP Rules as well as the IRE Code. He canvassed that
the Tribunal fell in error in holding that the appellant had not satisfied the
conditions necessary for having the deput~tion allowance included for
calculation of his pension and asserted that the deputation (duty) al-
H lowance was required to be included for calculation of pension, since it
' V.S. MURTHY v. U.0.1. (ANAND, J.] 99
was in the nature of "special pay" and 'special pay' under the IRE Code A
.>-- read with F.R. had to be taken into account for calculation of pension.
Dr. Anand Prakash, learned Senior Advocate, appearing for the
respondent, in his reply submitted that since the Tribunal had failed to take
note of certain relevant provisions of IRE Code, its reasoning was falla-
cious, though the impugned order was correct and required no inter- B
ference. He argued that the appellant was receiving his pay while on
deputation to HOCL from a source other than from the general revenue
J of the State, which criterion under Rule No. 2003 (F.R.9) of the IRE Code
rendered the service of the appellant in HOCL as foreign service and the
deputation (duty) allowance received by an employee of the railways while c
on f oreig11 service could not be included for the purposes of calculation of ••
the emoluments in view of Para 2544 [CSR 486-C] of the IRE Code.
Learned counsel for the respondent, therefore, argued that the order of
the Tribunal did not call for any interference.
--L
We have given our thoughtful considerations to the submissions D
made at the bar. We agree with the Tribunal that the provisions of Manual
of Railway Pension Rules are meant for the guidance of the staff and by
themselves do not have any statutory force. In our opinion, however, the
MRP rules supplement the stututory rules and for what follows, can be
harmoniously read ·with the statutory provisions contained in the IRE
~ E
Code.
Paras 501(4)(1) and 506 of MRP Rules read as follows:
,.
- 501(4)( 1):
F
(1) If immediately before quitting the service a Railway servant
___i has been absent from duty on leave with allowances (including
leave preparatory to retirement) or 011 foreign service or having
been suspended but reinstated without forfeiture of qualifying
service his emoluments should be taken at what they would have
been had he not been 011 such leave or foreign service or suspen- G
sion."
_A-<
506:
"The following do not count as 'emoluments' for pensionary
benefits and will not be taken into account for reckoning as H
-~
100 SUPREME COURT REPORTS [1992) 3 S.C.R.
A 'emoluments' :-
(i) Local Allowances such as bad climate allowance, when
sanctioned as compensatory allowance and deputation
(Local) allowance or deputation (duty) allowance drawn
on deputation to non-Government depanments or bodies;
B
(ii) Messing allowance;
(iii) House Rent allowance, or estimated value of rent free
quarters;
c (iv) Travelling Allowance;
(v) Conveyance allowance;
(vi) City Compensatory allowance;
·D (vii) Uniform· allowance;
(viii) Washing allowance;
(ix) Any other part of Railway servant's emoluments which
is specially intended to provide for expenses incidental
E to his duty;
(x) Bonus;
(xi) Honorarium;
F (xii) Fees and --
(xiii) Overtime."
[Emphasis Supplied)
The guidelines contained in Paras 501 (4) (1) and 506 of MRP Rules
G thus provide that if a railway servant has been on foreign service immedi-
ately before quitting the railway service, then his emoluments should be
taken at what they would have been had he not been on foreign seniice and
deputation (duty) allowance drawn on foreign service was not to be taken
into account for determining his emoluments for calculation of pensionary
H benefits.
V.S. MURTHY v. U.0.1. [ANAND, J.] 101
The relevant provision of the IRE Code dealing with this aspect is A
Rule 2544-C (CSR 486-C). That rule reads thus:
"Rule 2544-C [CSR 486-C]: In respect of railway servants quit-
ting service on or after the 15th June, 1968, "emoluments" shall
mean the "pay" as defined in Rule 2003(21), which the railway
servant was receiving immediately before quitting service.
Provided that the benefit of higher officiating pay for (ordinary) B
Gratuity/Death-cum-Retirement Gratuity will be given only if
such pay was/would have been drawn continuously for a period
of not less than 22 days. "Average emoluments" shall meail the
average of the emoluments as defined above calculated upon
the last three years of service. c
--- In the case of running staff emoluments for (ordinary)
Gratuity (1) Death-cum-retirement Gratuity will also include
the monthly average of running allowance drawn during the 365
days of running duty immediately preceding the date of quitting
--J. service limited to 75 per cent of the emoluments as defined
above. For the purpose of calculation of average emoluments D
the actual amount of the running allowance drawn during the
month limited to a maximum of 75 per cent of other emolu-
ments as defined above shall also. be taken into account.
NOTE :- (1) If a railway servant, immediately before his retire- E
ment or death, etc. has been absent .from duty or on leave with
allowances (including leave preparatory to retirement) or on
foreign service or having been suspended but reinstated without
forfeiture of qualifying service, his emoiumenls should be taken
at what they would have been had he not been on such leave
or foreign service or suspension: F
Provided that the emoluments shall not bC; increased on
account of increase in pay, not actually drawn and that benefit
of higher officiating or temporary pay is given only if it is
certified that he would have continued to hold the higher G
officiating or temporary appointment but for his proceeding on
leave.
(2) Pay drawn in tenure appointments will count for persons
governed by the Railway Pension Rules, 1950."
(Emphasis supplied) H
102 SUPREME COURT REPQRTS [1992) 3 S.C.R.
A It would be seen from Note (1) to CSR 486-C(supra) that if a railway
servant immediately before his retirement or death etc. has been absent
from duty or on leave with allowances [including leave preparatory to
retirement) or on foreign service or having been susended but reinstated
without forfeiture of qualifying service, his 'emoluments' should be taken
at what they would have been had he not been on such leave or foreign
B service or suspension as the case may be for commutation of his pensionary
benefits. The provisions of Rule 2544-C [CSR 486-C) read with Note(l}
thereto, therefore, give the statutory backing to the guidelines contained in
paras 501(4)(1) and 506 of MRP Rules (supra) _and both can be har-
moniously read together. The MRP Rules only provide what is statutorily
C provided in CSR 486-C of IRE Code. Thus, both under the CSR 486-C
[supra] and the MRP Rules, deputation (duty) allowance received by an
employee while on foreign service has not to be reckoned as "emoluments"
for calculating pensionary !Jenefit.
\- '
We are unable to accept the plea of the appellant that he could not
D be treated to be on foreign service while serving with the HOCL on the
ground that HOCL is a Government of India Undertaking and is under
the control of the Central Government and therefore its revenues would
be general revenues of the State.
E Rules 2003 (F.R.9} (8) and 2003 (F.R.9) (9) of the IRE Code define
foreign service and general revenues and lay down as follows :
"Rule 2003 (F.R.9)(8) : Foreign Service means service in which
a railway servant receives his substantive pay with the sanction
of Government (a) from any source other than the general
F revenues or (b) from a company working as State Railway."
"Rule 2003 (F.R.9) (9) : General Revenues mean the revenues
of the President and includes the revenues of a State and the
Railway Fund (when established)."
G A plain reading of the above definition shows that "foreign service"
means service in which a railway servant receives his pay and allowances,
while on deputation, from any source other than from a company working
as State Railway or from general revenue of the State and the expression
'general revenue' means the revenues of the President and includes the
H revenues of a State and the Railway Fund, if established.
V.S. MURTHY v. U.0.1. [ANAND, J.] 103
6. The appellant was not receiving his pay while on deputation with A
the HOCL from the general revenue of the State or from any company
>-
working as State Railway. Even if HOCL is a Government of India
enterprise, it can only be treated to be a Government of India undertaking
but its revenues cannot be said to constituted the general revenue of the
State within the meaning of Rule 2003 (F.R. 9) (supra) and, therefore, it
-
B
is erroneous for the appellant to contend that the pay and allowances
received by him while on deputation to HOCL were being drawn from the
general revenue of the State. His service with HOCL was, 1'nmistakably
foreign service and in the matter of calculation of his emoluments for
" computatioµ of terminal benefits on his quitting the railway service, the
provisions relatable to foreign service were to be applied to his case. c
7. The Tribunal relied on Paragraph 2003 (F.R.9) 21(A) IRE Code,
which. defines 'pay' as including 'special pay' and 'personal pay' and after
referring to Rule 2544-A [CSR 486-A] which provides:
-)
"2544-A [CSR 486-A]: Save as otherwise provided in Rule D
2544-B (CSR 486-B). In respect of officers retiring from service
on or after the 1st November, 1959, the term "emoluments"
.means the emoluments which the officer was receiving imme-
diately before his retirement and includes:
(a) .......... E
.l-.
(b) ··········
(c) Special pay attached to a post other than a tenure post,
when the special pay has been sanctioned permanently and
the post' is held in a substantive capacity." F
held that the 'special pay' of the appellant was required to be taken
into account for calculating his pension subject to his fulfilling the· condi-
tions laid down in Rule 2544 B (CSR 486 B). This approach of the tribuna~
in the facts of this case, was erroneous. G
The aforesaid rule provides that in respect of officers retiring from
service on or after the 1st November, 1959, the term "emoluments" means
the emoluments which the officer was receiving immediately before his
retirement and includes "special pay" attached to a post other than a tenure
post, when the "special pay" has been sanctioned permanently and the post H
104 SUPREME COURT REPORTS [1992] 3 S.C.R.
A is held in a sttbstantive capacity. The deputation (duty) .allowanceL is
deemed to be "special pay'' and subject to any exception would form the
emoluments. The conditions for reckoning "special pay" as emoluments for
pension are contained in Rule 2544-B (CSR 486-B] which inter alia
provides that if an officer holding a permanent post in a, substantive
capacity is confirmed in such higher permanent post any time during the
B last three years of his service after having officiated in that post continuous-
ly for three years or more, his emoluments for pension in respect of the
higher post in any period beyond three years of continuous service in that
post shall be determined under Rule 2544-A [CSR 486-A] as if he held in
substantive capacity a permanent post on a time-scale identical with that
c of higher post. The appellant was, in the instant case, not drawing "special
pay" as envisaged by CSR 486-A and 486-B but "deputation duty allowance"
while on 'foreign service' and that "special pay" while on 'foreign service'
was required to be excluded for purposes of calculation of pension. The
deputation (duty} allowance is not to be reckoned as "emoluments" for
D calculating pension where the deputation (duty) allowance has been
received by the railway servant while on deputation to foreign service as in
such cases the deputation (duty) allowance is not attached to the post but
is personal to the incumbent on foreign service. The Tribunal relied upon
CSR 486-A and 486-B but over-looked the provisions of CSR 486-C, which
are in the nature of an exception and exclude the deputation (duty}
E allowance to be reckored as emoluments ·for calculating pension, where
the same have been received by the reilway servant while on deputation to
foreign service. There appears to be sound logic behind the exclusion of
deputation (duty} allowance received by a railway servant while on foreign
service from being included in the emoluments to calculate pension. The
F deputation of a railway servant to foreign service is a fortuitous assignment
and since, there is no settled method of selection of the railway servant for
being sent on deputation to foreign service, the life long benefit of having
the deputation duty allowance included for calculation of pension may
result in hardship and injustice. to those railway servants who were not so
sent on deputation even though senior or more qualified than the person
G sent on deputation. It is for this reason that while the deputationist may
receive the deputation (duty} allowance for the services renderd onforeign
service during the period they remain on deputation that deputation (duty)
allowance has been excluded from being taken into account for purpose of
calculation of pension.
H
"
V.S. MURTHY v. U.0.1. [ANAND, J.] 105
'
8. Thus, for what we have said above, the allowance received by the A
appellant as deputation (duty) allowance from HOCL was rightly excluded
from being taken into account for reckoning as "emoluments" for the
purpose of calculation of pension of the appellant by the railways. The
impugned order of the Tribunal does not, therefore, require any inter-
ference and the same is upheld though for reasons different than the one B
given by the Tribunal.
9. The appeal is, consequently, dismissed but we make no order as
to costs.
Before parting with the judgment, we would like to point out that as
an interim measure we had directed, vide order dated 10.1.1991, that the C
appellant's pension shall be computed by taking into account the deputa-
tion duty allowance as a part of emoluments and that in the event the
contention of the appellant, not being accepted by this Court, appropriate
adjustment shall be made. In case the pension has been worked out in
accordance with our interim directions, the respondent shall be entitled D
and at liberty to make proper adjustments from his pensionary benefits
hereafter; but the same should be done in such a manner that its rigour is
diluted and the adjustments are distributed over a span of time.
N.P.V . Appeal dismissed.
•
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "pension"Sign in to search