Delhi High Court
Union Of India & Ors. vs Kiran Lal on 10 July, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: July 10, 2013.
+ WP(C) 8786/2011
UNION OF INDIA & ORS. .....Petitioners
Represented by: Mr.V.S.R.Krishna, Advocate with
Mr.Kumar Rajesh Singh, Advocate.
versus
KIRAN LAL ..... Respondent
Represented by: Mr.Kishore Kumar Patel, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO
PRADEEP NANDRAJOG, J. (Oral)
1. Deciding WP(C) 2057/1999 Darshan Kumar Sahni vs.UOI
on December 14, 2007 a Division Bench of this Court noted para 1303 of
the Railway Establishment Code which defined „Pay‟ as under:-
"Pay- Pay means 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
(iii)Any other emoluments which he may be specifically
as pay by the president.
Average Pay - Average pay means the average monthly
pay earned during the 12 complete months immediately
proceeding the month in which the event occurs which
necessitates the calculation of average pay:
Provided that in respect of any period spent on foreign
service out of India the pay which the railway servant
would have drawn if on duty in India but for foreign
service out of India shall be substituted for the pay
actually drawn:
Provided further that in the case of railway servant
entitled to running allowance, average pay for the
purpose of leave salary shall include a fixed component
representing pay element in the running allowances as
notified by government through administrative
instructions from time to time." (emphasis added).
2. The Division Bench also noted Rule 49 of the Railway
Services (Pension) Rules, 1963 which reads as under:-
"49.Emoluments:-The expression-(a)"emoluments", for
the purpose of calculating various retirement and death
benefits, means the basic pay as defined in clause (i) of
rule 1303 of the Code which a railway servant was
receiving immediately before his retirement or on the
date of his death."
3. The Division Bench also noted Note 2, 6 and 8 under Rule
49 of the Pension Rules which read as under:-
"Note 2: where a railway servant immediately before his
retirement or death while in service had proceeded on
leave for which leave salary is payable after having held
a higher appointment, whether in an officiating or
temporary capacity, the benefit of emoluments drawn in
such higher appointment shall be given only if it is
certified that the railway servant would continued to hold
the higher appointment but for his proceedings on
leave."
"Note 6: Pay drawn by a railway servant on foreign
service shall not be treated as emoluments, but the pay
which he would have drawn under the railways, had he
not been on foreign service shall alone be treated as
emoluments.
Note 8: Where a railway servant has been transferred to
an autonomous body consequent on the conversion of
Department of railways into such a body and the railway
servant so transferred opts to retain the pensionary
benefits under the rules of the railways, the emoluments
drawn under the autonomous body shall be treated as
emoluments for the purpose of this rule."
4. The Division Bench held that a co-joint reading of para 1303
of Railway Establishment Code and Rule 49 of the Railway Services
(Pension) Rules, 1993 made it clear that for purposes of pension it is the
pay actually drawn by a Government Railway servant which is to be kept
in mind. The Division Bench highlighted the opening sentence of para
1303 of the Railway Establishment Code which, while defining pay, laid
emphasis on 'the amount drawn monthly by a Government servant'.
With reference to Note 6 appended to Rule 49 of Pension Rules the
Division Bench opined that the only exception to the spirit behind the
Rules, which was to fix pension with reference to the pay drawn by a
Government Railway servant when he superannuated, would be if the
Government Railway servant was in „Foreign Service‟. The Division
Bench noted that Note 6 did not envisage a case of transfer or deputation
to an autonomous body which is formed by the conversion of a
department of the Railways. Thus, Darshan Kumar Sahni, a Government
Railway servant sent on transfer/deputation to Centre for Railway
Information System (CRIS) an organization created from within the
Railways was held entitled to pension being fixed with reference to last
emoluments received by him when he superannuated which would
necessarily include such amount which was paid to him while on
deputation with CRIS.
5. The said view taken by the Division Bench would clearly
apply to all cases where a Government Railway servant is deputed to
work in an office/organization, be it autonomous or otherwise,
created/formed by the Indian Railways.
6. The respondent, an employee of the Indian Railways, was
sent on deputation in a construction organization (name not disclosed by
either party) of the Indian Railways and was receiving a monthly
allowance as a part of his emoluments when he superannuated and
therefore we agree with the view taken by the Tribunal which follows the
law declared by a Division Bench of this Court in Darshan Kumar
Sahni's case that while fixing pension the total monthly emoluments
being received by the respondent when he superannuated would be the
basis whereon his pension would be determined.
7. The writ petition is accordingly dismissed in limine but
without any order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
JULY 10, 2013
skb
