Case: V.S. Murthy Vs. Union of India

2. The appellant was appointed as a Clerk, Grade-II, in the Office of the Financial Adviser and Chief Accounts Officer, Central Railways, 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 Hindustan 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 CAOs Office Memorandum, 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.3. In accordance with the relevant orders of the Government of India, a pensionary employee on permanent absorption in a public sector undertaking, 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 of 1/3rd of the pension to full (100%) communication of pension. In the case of appellant, on his request, 100% commutation of pension was allowed by 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 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 Administrative Tribunal, Principal Bench, Delhi.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 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 Rule 2544 A and B (CSR 486-A and 486-B) of 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 override the statutory rules contained in the IRE Code. The Tribunal then referred to various provisions of the IRE Code and held that deputation (duty) allowance, in case of deputation to bodies owned wholly or substantially controlled by the Government, would reckon for pension in terms of the provisions made in rule 2544-A and 2544-B (CSR 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 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 length 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.

Court's reasoning:
We are unable to accept the plea of the appellant that he could not 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 theaforesaid 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 is held in a substantive capacity. The deputation (duty) allowance, 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 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 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. 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 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 overlooked 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. 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 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 sent on deputation. It is for this reason that while the deputationist may receive the deputation (duty) allowance for the services rendered on foreign 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.8. Thus, for what we have said above, the allowance received by the 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 interference and the same is upheld though for reasons different than the one given by the Tribunal.