Union Of India, vs M.A Veerabhadra Rao
2022 Latest Caselaw 290 Tel

     IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
                        TELANGANA
                           ********

WRIT PETITION NO.6003 OF 2019

Date: 28.01.2022

Between:

Union of India, Rep.by the Chairman, Ministry of Railways, Railway Board, Rail Bhavan, New Delhi and others.

..... Petitioners And

M.A.Veerabhadra Rao, s/o. M.V.Sastry, Aged about 62 years, Retd.Assistant Director (Vigilance), 2nd respondent New Delhi (while on deputation) with lien Hyderabad Division in South Central Railway as Traffic Inspector, R/o. H.No.1-5-3/2, F-301, Sai Heights, V.V.Nagar, Habshiguda, Street No.8, Hyderabad and another.

                                                      .... Respondents



DATE OF JUDGMENT PRONOUNCED                  :       28.01.2022



           THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                             &
           THE HON'BLE SMT JUSTICE P.SREE SUDHA


1.      Whether Reporters of Local Newspapers :      No
         may be allowed to see the Judgments ?


2.      Whether the copies of judgment may be :      Yes
        marked to Law Reporters/Journals


3.     Whether Their Lordship wish to            :   No
       see the fair copy of the Judgment ?
                                                               PNR,J & PSS,J
                                                          WP NO.6003 of 2019




           *THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                            &
           THE HON'BLE SMT JUSTICE P.SREE SUDHA


+ WRIT PETITION NO.6003 of 2019


% 28.01.2022


# Union of India,
Rep.by the Chairman,
Ministry of Railways, Railway Board,
Rail Bhavan, New Delhi and others.
                                                       ..... Petitioners

                    Vs.

$ M.A.Veerabhadra Rao,
s/o. M.V.Sastry, Aged about 62 years,
Retd.Assistant Director (Vigilance),

2nd respondent New Delhi (while on deputation) with lien Hyderabad Division in South Central Railway as Traffic Inspector, R/o. H.No.1-5-3/2, F-301, Sai Heights, V.V.Nagar, Habshiguda, Street No.8, Hyderabad and another.

.... Respondents

!Counsel for the petitioners : Smt Pushpinder Kaur

Counsel for the Respondents: Mr. K.R.K.V. Prasad for respondent no.2

<Gist :

>Head Note:

? Cases referred:

(1997) 8 SCC 372 (2013) 12 SCC 433 2007 LawSuit(Del) 2471 2014 SCC Online Mad 7708 2019 SCC Online Del 8630 (2015) 4 SCC 164 PNR,J & PSS,J WP NO.6003 of 2019

THE HON'BLE SRI JUSTICE P. NAVEEN RAO AND THE HON'BLE SMT JUSTICE P. SREE SUDHA

WRIT PETITION NO.6003 OF 2019

ORDER: (Per Hon'ble Sri Justice P.Naveen Rao)

Railways assail the decision of Hon'ble Central

Administrative Tribunal, Hyderabad Bench, Hyderabad dated

14.12.2018 in O.A.No.21/50/2015. By this decision, the Tribunal

allowed the O.A., and issued directions.

2. Shorn of details, facts to the extent relevant are as under:

When first respondent was working as Traffic Inspector, a

post in the scale of Rs.9,300-34,800/-, he was taken on

deputation by Union Public Service Commission (UPSC) as

Assistant Director (Vigilance), which is Group-A Gazetted Cadre

post in the pay band of Rs.15,600-39,100/-. The period of

deputation was for three years from 19.09.2007, but was extended

till 31.08.2011. On 30.08.2011, the UPSC notified repatriation of

respondent w.e.f., afternoon of 31.08.2011, which was his date of

retirement on attaining age of superannuation. On the last day of

his service while working in UPSC, the respondent was drawing

pay of Rs.26,490/-. A certificate to this extent was issued by

UPSC.

3. The Railways issued pension payment order on 30.09.2011

by treating the last pay drawn by respondent as Rs.25,830/-. Not

satisfied with the monthly pension determination in the above

manner, first respondent submitted representation to the

Divisional Railway Manager, Hyderabad, on 04.11.2011 to revise

the monthly pension based on the last pay drawn in UPSC. The PNR,J & PSS,J WP NO.6003 of 2019

decision of Railways rejecting the request of first respondent was

communicated vide Orders dated 27.11.2012. The escalation of

grievance was not fruitful and a reply to this extent was

communicated to the first respondent vide proceedings dated

23.07.2014.

4. Aggrieved thereby, first respondent filed the instant O.A.

Taking due note of definition of 'emoluments' in Rule 49 of Railway

Service (Pension) Rules, 1993 (the Rules), Para-1303 of IREL and

the clarification issued by the Chief Personnel Officer (4th petitioner

herein), the Tribunal found fault with the petitioners in not

treating the pay drawn in UPSC as last pay drawn while fixing first

respondent monthly pension and allowed the O.A. The Tribunal

issued consequential directions. Railways challenge the decision of

the Tribunal.

5. By relying on Rule 49(a)1 of the Rules, Rule 1303 (i)2 of

IREC on what is meant to be emoluments and pay, it is contended

by learned counsel for the petitioners that whatever may be the

pay drawn by the first respondent in UPSC, respondent's

emoluments to determine pension has to be based on the pay he

would have drawn in the Traffic Inspector cadre. She therefore

justified the decision of petitioners and contended that the

Rule 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:

Provided that the stagnation increment shall be treated as emolument for calculation of retirement benefits;

Rule 1303 (F.R.9) (21) (a)-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:

PNR,J & PSS,J WP NO.6003 of 2019

Tribunal grossly erred in directing the petitioners to take the last

pay drawn in UPSC.

6. Learned counsel for petitioners placed reliance on State of

Punjab and others vs. Inder Singh and others3 and Union of

India and others vs. Bhanwar Lal Mundan4 to contend that that

the post held or pay drawn while on deputation has no relevance in

parent service.

7. According to learned counsel for 2nd respondent, an

employee can be held as working in foreign service only if pay of a

Government Servant is drawn from any source other than

consolidated fund. Whereas, pay and allowances of employees

working in UPSC are chargeable to consolidated fund. Thus, his

tenure in UPSC cannot be called as 'foreign service'.

8. Learned counsel further submitted that though 4th petitioner

clarified and advised that as per Rule 33 of Central Civil Services

(Pension) Rules, 1972 as defined in FR 9 (21) (a) (i) pension of 1st

respondent be reviewed, illegally contrary decisions were taken by

the subordinate authorities.

9. The issue for consideration is whether first respondent is

entitled to seek determination of monthly pension based on the

last pay drawn by him while on deputation to UPSC ?

10. The issue for consideration revolves on what is meant by last

pay drawn. Thus, it is necessary to consider scope of words

'emoluments', as defined in Rule 49(a) of the Rules, 'pay', as defined

(1997) 8 SCC 372

(2013) 12 SCC 433 PNR,J & PSS,J WP NO.6003 of 2019

in para 1303 (i) of IREL and 'foreign service' as defined in FR 9 (21)

(a) of Fundamental Rules. Word 'foreign service' as defined in

clause-(1)(f) of Rule 502-A5 of Railways Services (Liberalized Leave)

Rules, 1949 and Note-66 of Rule 49 of the Rules, 1993.

11. 'Emoluments' drawn by an employee before retirement is the

basis to determine retirement and death benefits. According to

Rule 49(a) of the Rules, 'the emoluments' means the basic pay a

railway servant was receiving immediately before his retirement.

'Basic Pay' is arrived as defined in Para 1303 (i) of Indian Railway

Establishment Code (IREC). According to Rule 1303 (i) of IREC,

'pay' means amount drawn monthly by an employee in the cadre

other than special pay or pay granted in view of personal

qualifications. Note-6 appended to Rule 49 of the Rules holds that

irrespective of emoluments drawn by an employee while on

deputation, the last drawn emoluments have to be arrived to

determine pension based on pay a railway servant would have

drawn as if he was working in parent cadre on the date of

retirement.

12. Suffice to note at this stage that first respondent's date of

retirement was 31.08.2011. On the said date he commenced his

work in UPSC, was relieved in the afternoon and could not have

reported to Railways as he retired from service on the same day.

Rule 502-A. Definitions:

(1) (a) to (e) xxxx

(f) "Foreign service" means service in which a Railway servant receives his pay with the sanction of Government from any source other than the Consolidated Fund of India or the Consolidated Fund of any State [or the Consolidated Fund of a Union Territory];

Note-6 of Rule 49. : Pay drawn by a railway servant while on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the railway, had he not been on foreign service shall alone be treated as emoluments.

PNR,J & PSS,J WP NO.6003 of 2019

13. This very issue has come up for consideration before the

Division Bench of Delhi High Court in Darshan Kumar Sahni vs.

Union of India7. On true construction of Rule 49 of the Rules,

para 1303 of the IREC and what is meant by 'foreign service', the

Division Bench of Delhi High Court held as under:

"11. On a co-joint reading of para 1303 of the Railway Establishment Code(for short, the "Code") and Rule 49 of the Railway Services (Pension) Rules, 1993, (for short "Pension Rules"), it is clear that what is relevant is the amount of pay actually drawn by a Government Railway servant. The opening words of Pension Rule 1303 clearly sates that "pay means the amount drawn monthly by a Government servant." That amount can, obviously, be only be one figure. Various alternatives are provided for in the Pension Rules and the Code for the determination of the "pay" that has to be taken into account for arriving at the last drawn pay of a railway servant, which in turn is the basis for fixation of his pensionary and other terminal dues. These alternatives are provided to cover various situations that may arise, in which the employee may superannuate or seek voluntary retirement. Therefore, "pay" could mean, inter alia, (i) Pay which has been sanctioned for the post held by the railway servant substantively; (2) Pay which has been sanctioned for the post held by the railway servant in an officiating capacity: (3) Pay to which the railway servant is entitled by reason of his position in cadre. The pay that is to be taken into consideration for fixation of the pensionary and other settlement dues means the basic pay as defined in clause (i) of Rule 1303 of the Code, which the railway servant "was receiving immediately before his retirement or on the date of his death"(see Rule 49 of the Pension Rules). It is clear, inter alia, from the definition of Average Pay in the Code and notes 2, 6 & 8 to Rule 49 of the Pension Rules, that merely because the pay which has been sanctioned for the post held by the railway servant substantively is lower than the pay which he has in fact been drawing while serving in an officiating capacity, for purposes of fixation of his pensionary and other dues, it is not the lower of the two amounts which would be taken into account. The spirit behind the aforesaid rules is clearly to fix the pensionary and other settlement dues of the railway servant on the basis of the actual pay drawn by him. The only exception to this general rule appears to be where the railway servant is sent on "foreign service". In that case, the emoluments drawn by him while on "foreign service", shall not be treated as emoluments for the purpose of fixation of his pensionary and other dues (See the 1st Proviso to the Definition of "Average Pay" in the Code and Note 6 to Rule 49) of the Pension Rules. Therefore, the issue that needs determination is whether the service rendered by the petitioner on deputation with CRIS could be said to be "foreign service" for the purpose of the aforesaid Code and the Pension

2007 LawSuit(Del) 2471 PNR,J & PSS,J WP NO.6003 of 2019

Rules. If it amounts to a "foreign service", the stand of the respondent would stand vindicated. However, in case the service rendered on deputation with CRIS is not considered to be a "foreign service", the petitioner would be entitled to the calculation of his pensionary and other settlement dues on the basis of the last pay drawn while serving with CRIS on deputation at Rs. 2450/- per month."

14. In the said case, the employee was on deputation to Centre

for Railways Information System (CRIS), which is autonomous

body formed by the conversion of a Department of Railways.

Division Bench also looked into Note-8 appended to Rule 49 of the

Rules, and held that the service rendered by the employee in CRIS

cannot be treated as 'foreign service'.

15. The Division Bench further held as under:

"12. From Note 8 to Rule 49 of the Pension Rules, it appears that a

railway servant when transferred/deputed to a body which has been created as a consequence of the conversion of a department of railways, the emoluments drawn by the railway servant under the autonomous body are treated as emoluments for the purpose of Rule 49. This clearly shows that the "foreign service" talked about in Note 6 of Rule 49 does not envisage the transfer or deputation to an autonomous body which is formed by the conversion of a department of the railways. "Foreign Service", it appears would mean a service outside the railways or any of its extended arms. CRIS, undoubtedly is an organisation created from within the railways. In fact, the correspondence placed on record and referred to hereinabove shows that the mother organization of CRIS is none other than the Ministry of Railways. The letter head used by CRIS also described it as "An organisation of the Ministry of Railways, Government of India". From the first priviso to the definition of "Average Pay" also, it appears that "foreign service" is considered to be the service rendered out of India. Looked at from either point of view, the service rendered by the petitioner with CRIS on deputation cannot be said to be "foreign service". "

16. The Division Bench also overruled the contention of Railways

that as employee continued to hold a lien on the post in the parent

cadre, is disentitled to seek computation of his pensionary and

other settlements based on the last pay actually drawn by him as

erroneous. Paragraph-16 reads as under:

PNR,J & PSS,J WP NO.6003 of 2019

"16. We are also not impressed by the argument that merely because

the petitioner continued to hold a lien in his parent cadre, it disentitled him from seeking the computation of his pensionary and other settlement dues on the basis of the last pay actually drawn by him while on deputation with CRIS, immediately prior to his voluntary retirement from the Railways and absorption with CRIS. As aforesaid, there is no basis to support this submission in the Code or the Pension Rules, which, in fact emphasis the relevance of the last drawn pay, irrespective of it being on a substantive post or on an ad hoc post."

17. We are in respectful agreement with the view expressed by

the Delhi High Court. However, only distinction in the facts of the

case on hand is, while the employee before the Delhi High Court

was sent on deputation to an autonomous body carved out from

the Department of Railways, in the instant case the employee was

on deputation to UPSC. Therefore, in the case of this employee,

Note-6 appended to Rule 49 of the Rules is applicable. According

to Note-6, pay drawn by a railway servant on 'foreign service' should

not be treated as emoluments, but the pay which he would have

drawn under the Railways, had he not been sent to 'foreign service'

should alone be treated as emoluments.

18. On a plain reading of word 'foreign service' in Clause-(1)(f) of

Rule 502-A of the Railway Services (Liberalised Leave) Rules, 1949,

it is apparent that an employee is treated as working in foreign

service if he receives pay from any source other than the

consolidated fund of India or the consolidated fund of any State.

Thus, to attract Note-6 appended to Rule 49 of the Rules, an

employee on deputation ought not to have drawn his pay from the

consolidated fund of India. As asserted by the 1st respondent and

not denied by the petitioners, the pay and allowances of the

employees working in UPSC are drawn from the consolidated fund PNR,J & PSS,J WP NO.6003 of 2019

of India. That being so, the service rendered by the first respondent

while working in UPSC, cannot be treated as 'foreign service'.

19. Once this mist is cleared, the picture becomes obvious. As

elucidated by the Division Bench of Delhi High Court, for the

purpose of arriving at appropriate retirement benefits and to

determine monthly pension, what is required to be seen is the last

pay actually drawn by the employee when he retires, whether in

the parent unit or on deputation. The first respondent retired from

service while working on deputation in UPSC. On the date of

retirement, he was drawing higher pay in UPSC than he would

have drawn while in Railways.

20. An employee acquires right to draw retirement benefits and

monthly pension for the service rendered by him to the employer.

Ordinarily, the pension amount is determined by taking the last

pay drawn by the employee. As long as the last pay drawn was by

legal means and not by playing fraud or misrepresentation, the

said amount cannot be ignored/reduced to deprive little more

pension than what an employee would have earned. In the instant

case, the difference between the last pay drawn as determined by

the petitioners and claimed by the first respondent is

approximately Rs.670/-.

21. The Headquarters of Personnel Department, South Central

Railway, correctly understood when they communicated their

opinion in proceedings dated 31.03.2013. On a reference by the

Divisional Office, the Personnel Department opined that as UPSC

is a Government Department, the last pay drawn by the first

respondent in the UPSC before his retirement should be taken as PNR,J & PSS,J WP NO.6003 of 2019

emoluments for the purpose of calculating his settlement dues.

A contrary opinion is expressed latter by referring to definition of

basic pay in clause (i) of Rule 1303 of the Code, and would observe

that as substantive post of the first respondent was Traffic

Inspector and his position in UPSC is outside normal field of

deployment, such post cannot be treated as holding on substantive

basis. With respect, we are not in agreement with the subsequent

change of attitude and the understanding expressed in the reply

dated 23.07.2014 is contrary to the earlier opinion and contrary to

the view expressed by the Division Bench of Delhi High Court

dealing with the very same provisions.

22. In Union of India vs. M.Bhagyalakshmi8, somewhat similar

issue was considered by the Madras High Court. The employee

therein was working in Lower Selection Grade and was given

financial up-gradation under Biennial Cadre Review. While he was

working as Assistant Sub-Post Master, he was also directed to look

after the duties of Higher Selection Grade-I (HSG-I) Sub-

Postmaster during various spells. While working in the said

capacity, looking after the duties of HSG-I, the employee retired

from service on attaining the age of superannuation. He was

claiming to compute the pay drawn by her in HSG-I cadre at the

time of retirement. As the relief sought was not granted, she filed

O.A., before the Administrative Tribunal. The Administrative

allowed the claim and issued directions. The Division Bench of

Madras High Court concurred with the view expressed by the

Tribunal and dismissed the writ petition.

2014 SCC Online Mad 7708 PNR,J & PSS,J WP NO.6003 of 2019

23. In Union of India and another vs. R.K.Bhatnagar9, same

issue has come up for consideration before the Delhi High Court.

The employee therein was appointed as Clerk in the Railways. He

was deployed to construction organization. There he was promoted

as Senior Clerk and further promotion as Office Superintendent-II

on 31.03.2009, in which capacity he retired from service. While in

service, his pay was revised upwards taking due note of said

promotion. Holding that his pay was wrongly fixed with reference

to promotion to ex-cadre post, pay fixation was reviewed and fixed

at lower stage as applicable to cadre post. By following the earlier

decision in Darshan Kumar Sahni (supra), the Central

Administrative Tribunal allowed the O.A. On a challenge before the

Delhi High Court, following the decision in Darshan Kumar Sahni

(supra), Writ Petition was dismissed.

24. We have gone through the decisions relied by the learned

counsel for petitioners. There is no quarrel to the proposition that

if an employee is working in any other organization outside his

regular employment, such assignment is called as deputation.

There is no iota of doubt that first respondent was on deputation to

UPSC. The issue for consideration is not on the status of the first

respondent while working in UPSC, but whether employer was

right in ignoring the last pay drawn by the first respondent while

working in UPSC. Therefore, those two decisions do not come to

the aid of the petitioners.

25. Finally learned standing counsel sought to rely the decision

of the Hon'ble Supreme Court in Union of India and another vs.

2019 SCC Online Del 8630 PNR,J & PSS,J WP NO.6003 of 2019

S.N.Maity and another10 to contend that it is not open to the

employee to claim protection of status of higher post held in the

deputation organization after his repatriation to parent cadre.

Again there is no quarrel with the proposition. However, in the

instant case, the first respondent was not repatriated and joined in

the parent unit. On the day of his retirement he was sought to be

repatriated. By the time he was relieved his service came to an end

on account of attaining the age of superannuation. Therefore, there

was no occasion to report to the employer. The proposition relied

upon by the learned counsel would apply if the employee joined

back in his parent organization, and he was given suitable posting.

26. We are of the opinion that first respondent is entitled to

revision of his retirement benefits and monthly pension based on

the last pay drawn by the first respondent on the date of his

retirement as paid to him by UPSC.

27. The Writ Petition fails and is accordingly dismissed. Pending

miscellaneous petitions if any shall stand closed.

__________________________ JUSTICE P.NAVEEN RAO

__________________________ JUSTICE P.SREE SUDHA

Date: 28.01.2022 KKM

(2015) 4 SCC 164 PNR,J & PSS,J WP NO.6003 of 2019

THE HON'BLE SRI JUSTICE P.NAVEEN RAO & THE HON'BLE SMT JUSTICE P.SREE SUDHA

WRIT PETITION NO.6003 OF 2019

Date: 28.01.2022 KKM