IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 7381/2008 Reserved on: 5.1.2011 Decided on:21.2. 2011 _____________________________________________ Mahender Kumar Sharma. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents: Mr. P.M. Negi, Dy. Advocate General with Mr. R.P. Singh, Asstt. for respondents No. 1 &2. Ms. Anita Dogra, Central Government Counsel for respondent No.3. ____________________________________________________ Justice Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioner was transferred from the office of Chief Engineer (Central Zone), Mandi to the office of the Engineer-in-Chief, Irrigation and Public Health Department, Shimla, vide notification dated 26.6.2001. He was also ordered to look after the charge of the post of Registrar, vide Annexure PC. Petitioner assumed the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 additional charge of Registrar, Irrigation and Public Health Department in the office of Engineer-in-Chief on 1.9.2001, vide Annexure PD. The pay of the petitioner, vide office order dated 23.1.2003, was fixed at Rs. 11,320/-, as on 1.9.2002. The corrigendum was issued on 9.2.2003 whereby in the first line in second paragraph of office order dated 23.1.2003, “1.9.2001” was to be read instead of “1.9.2002”. He retired on 31.12.2002. 2. Mr. Dilip Sharma has strenuously argued that the pension of his client was to be fixed at Rs. 5,558/- instead of Rs. 5,320/-. According to him, the salary of his client was revised to Rs. 11,320/- at the time of his retirement on 31.12.2002. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that the petitioner was being paid officiating allowance and the same could not be termed his pay. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. It is evident from the material placed on record that the petitioner, in addition to his own duties, was directed to look after the charge of the post of Registrar. His basic pay was fixed initially at Rs. 10,980/-, which was 3 subsequently revised to Rs. 11,320/-. His pension was to be determined with reference to average emoluments drawn by him during the last ten months of his service. 6. It will be apt at this stage to take note of relevant provisions of law in order to effectively adjudicate upon this petition. F.R. 49 (1) provides that where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay under rule 35 of the F.R. No additional pay shall, however, be allowed for performing the duties of a lower post. F.R. 35 provides that the Central Government may fix the pay of an officiating Government servant at an amount less than that admissible under these rules. 7. F.R. 9 (21) (a) defines the pay to mean, the amount drawn monthly by a Government servant as – (i) "the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and (ii) overseas pay, special pay and personal pay; and 4 (iii) any other emoluments which may be specially classed as pay by the President.” 8. It will also be apt at this stage to take note of few provisions of Central Civil Services (Pension) Rules, 1972. The expression "emoluments” means emoluments as defined in rule 33. Rule 33 defines ‘emoluments’ to mean basic pay as defined in F.R. 9 (21) (a) (i) of the Fundamental Rules, which a Government servant was receiving immediately before his retirement or on the date of his death and will also include non-practicing allowance granted to Medical Officer in lieu of private practice. Rule 34 provides that average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his service. Rule 49 (2) (a) provides that in case of a Government servant retiring in accordance with the provisions of the rules after completing qualifying service of not less than thirty three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensum. 9. Petitioner had been given the charge of higher post of Registrar, as per order dated 26.6.2001. He assumed his duties on 1.9.2001. He has rightly been given the benefit of F.R. 49 (i) of F.R.. He was discharging the 5 duties of higher post in the same office and in the same cadre/line of promotion. In view of the Annexures, placed on record by the petitioner, the expression ‘pay’ has been used and not ‘allowances’. The pay of the petitioner has been fixed at Rs. 11,320/- and he has retired from service on 31.12.2002. His basic pay from 1.9.2001 to 31.12.2002 was Rs. 11,320/-. His pension was to be calculated at Rs. 11,116/- and he was entitled to pension at Rs. 5,558/- instead of Rs. 5,320/- per month. 10. According to Government of India’s order No.1, issued under F.R. 35, no restriction are to be imposed in officiating pay in cases of regular cadre promotion. Similarly, according to Government of India’s order No.2, there are restrictions of officiating pay issued under F.R. 35 in cases of cadre promotions not on regular basis. This is the only restriction, which can be put while regulating pay under F.R. 49 (1). The expression ‘emoluments’ has been explained under rule 33 of Central Civil Services (Pension) Rules, 1972 and it means basic pay, as defined under rule 9 (21) (a) of the F.R., which the Government servant was receiving at the time of his retirement or on the date of his death. According to rule 34 of the Central Civil Services (Pension) Rules, 1972 average emoluments are to be determined with reference to 6 emoluments drawn by him during the last ten months of his service. In the instant case, a sum of Rs. 600/- was to be merged in petitioner’s basic salary and thereafter it was to be treated as emoluments within the expression of rule 33, 34 and 49 (2) (a) of the Central Civil Services (Pension) Rules, 1972. The action of the respondents to calculate retiral benefits of the petitioner on the salary of Superintendent Grade-I was erroneous. Petitioner, in fact, was to be given his retiral/pensionary benefits on the basic pay to which the petitioner was entitled, i.e. with effect from 1.9.2001 to 31.12.2002. 11. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondents are directed to calculate the pensionary/retiral benefits of the petitioner at a sum of Rs. 11,116/- within a period of two months from the date of production of certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge 21.2. 2011 *awasthi*