Delhi High Court
Shri Darshan Kumar Sahni vs Union Of India (Uoi) on 14 December, 2007
Author: Vipin Sanghi
Bench: A.K. Sikri, Vipin Sanghi
JUDGMENT Vipin Sanghi, J.
1. This writ petition, under Article 226 of the Constitution of India had earlier been disposed off by this Court on 19th of January 2001, whereby this Court had allowed the writ petition by directing that for the purpose of calculating his pensionary and other settlement dues, the last drawn pay of the petitioner be taken as Rs 2450, which was the pay he was actually drawing while on deputation with CRIS (Centre for Railways Information System), and wherefrom he took voluntary retirement from the Railways on 30.11.1993 and got permanently absorbed in CRIS on 1.12.1993. The Court had further observed that the relief was being granted in the facts and circumstances of the present case and that it would not constitute a precedent. The respondent, Union of India challenged the aforesaid decision before the Supreme Court of India. Civil Appeal No. 7201 of 2002 preferred by the Union of India was allowed by the Supreme Court by the following order:
The appellant is before us in appeal against the judgment and order dated 19th July, 2001 passed by the division Bench of the Delhi High Court in CWP No. 2057 of 1999. The question which arose for consideration before the High Court was as to whether the respondent, on his submission of application for voluntary retirement was entitled to retirement benefits on the basis of his last pay drawn at Rs. 2450/- on 30.11.93 or not. The contention of the appellant was that the retirement benefits of the respondent herein should have been reckoned on the basis of the last pay which he would have drawn had he remained in his parent cadre. The contention of the appellant herein found favor with the Tribunal. The High Court in the writ petition filed by the respondent herein, without going into the merits of the matter granted relief to him only on the premise that the same should not be treated to be a precedent. The High Court has not assigned any reason in support of its decision. The contention of the appellant which had found favor with the Tribunal had not been met in the High Court. We are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly.
This appeal is allowed and the matter is remitted to the High Court for consideration of the matter afresh. We request the High Court to lean out and dispose of the matter as expeditiously as possible, preferable within a period of two months from the communication of this order.
No order as to costs.
2. In view of the aforesaid the matter stands remitted back to this Court for reconsideration afresh.
3. While serving as Enquiry and Reservation Clerk [E&RC/Delhi (R)] in the pay scale of Rs. 425-640 the petitioner was transferred in the same capacity and grade to the office of chief projects manager(CPM)/OIS in connection with the computerization of seat/berths reservation vide notice dated 10th of October 1985. Vide order dated 28th of November 1985 the petitioner, who was working as senior console operator in the grade Rs 455 -- 700 was promoted to officiate as senior console operator in the grade Rs. 550 -- 750. This order was issued by the office of CPM/OIS, Northern Railway. Vide notice dated 12th of December 1985 the CPM /OIS, Northern Railway fixed the pay of the petitioner- senior console operator at Rs. 550 with effect from the 28th November 1985 in the grade of Rs. 550 -- 750. The petitioner was promoted from the grade of Rs. 550 -- 750 to the grade of Rs. 650 -- 960 while working as senior console operator with effect from the 1 September 1986 by the order dated the 1 September 1986, also issued by the CPM/PRS, Northern Railway.
4. On 13th February 1989, the Centre for Railways information system (CRIS) requested The Systems Manager, Chief Commercial Officer (Computers Reservation) to depute console operators to CRIS since the development and simulation centre of CRIS was being inaugurated on 29th of March 1989. The terms on which the deputation was offered were also communicated by CRIS. On 16th February 1989, while retaining his lien on his substantive post, the petitioner came over to CRIS on deputation. The petitioner continued to work on deputation in CRIS. Eventually, he sought voluntary retirement from Northern Railway with effect from the 30th November 1993 and permanent absorption with CRIS. This request of the petitioner was earlier declined, but finally acceded to by Northern Railway vide a communication dated 20th of January 1995. The respondent Northern Railway communicated the decision of the Railway Board contained in their letter dated 22 September 1994 whereby the Board accorded approval to the extension of the deputation term of the petitioner for the period up to 30th November 1993. It was further stated that the competent authority has accepted the request of the petitioner, now working with CRIS on deputation, for acceptance of his resignation from railway service with effect from 30th November 1993. Consequent upon the aforesaid development CRIS issued an office order on 17 April 1995 permanently absorbing the petitioner in CRIS with effect from 1 December 1993 in the grade of Rs. 2000-3500 as a console operator.
5. The petitioner requested the respondent for settlement of his pensionary and other dues on the basis of his last drawn pay of Rs. 2450 in the scale of Rs. 2000 - 3200 while on deputation. The respondent however took the view that the pensionary and other dues of the petitioner were liable to be calculated on the basis of the last pay that the petitioner would have been entitled to draw, had he continued to serve in his parent Carder in Northern Railways in the scale of Rs. 1600 -- 2660 at the time of his seeking voluntary retirement, that is, on 30th November 1993. Accordingly to the respondent, the petitioner would have been entitled to draw Rs. 1950/- per month in the scale of Rs. 1600-2660, and on that basis the petitioners pensionary and other settlement dues ought to have been calculated.
6. Being dissatisfied by the rejection of his request for settlement of his pensionary dues on the basis of his last drawn pay of Rs. 2450, the petitioner preferred Original Application bearing No. 2109 of 1997 before the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal). By the impugned order dated 24th of December 1998 the tribunal dismissed the original application filed by the petitioner. It is this order of the Tribunal which has been impugned before us in the present writ petition by the petitioner.
7. The Tribunal relied on the definition of "pay" as contained in Rule 1303(1) IREC Vol II, which is, inter alia, defined as "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." The Tribunal emphasized the last part of this definition i.e. "by reason of his position in a cadre", and held that since the petitioner substantively was an Enquiry-cum-Reservation Supervisor in the scale of Rs. 1600-2660 in his parent Cadre, where he continued to hold his lien, and his basic pay as Enquiry-cum-Reservation Supervisor in the grade of Rs. 1600-2660 had been fixed at Rs. 1950/- p.m., therefore, he was entitled to calculation and settlement of his pensionary and other dues on the basis of the notional last drawn pay of Rs. 1950/- and not Rs. 2450/-. The Tribunal also distinguished the case of Ajmer Singh v. UOI & Railway Board, in O.A. No. 1868/1995 decided by it on 14.11.1996, and relied upon by the petitioner, on the ground that in Ajmer Singh (supra) he had received promotion and had thereafter retired on superannuation from the post to which he had been transferred on ad hoc basis, while in the present case, the petitioner, who was on deputation with CRIS went on to be absorbed in CRIS, after seeking voluntary retirement from the Railways. On the same basis, the case of Shri R.L. Arora, ex-officiating AEN/MTP, New Delhi, also relied upon by the petitioner was also distinguished.
8. Para 1303 of the Railway Establishment Code defines 'Pay' and "Average Pay" as:
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.
9. Rule 49 of the Railway Services (Pension) Rules, 1993 defines Emoluments as "(a) emolument:, of 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 emoluments for calculation of retirement benefits;
10. Notes 2, 6 and 8 to Rule 49 is also relevant and read as follows:
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.
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 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.
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".
13. We may also refer to the communication dated 3.1.1985 issued by the Chief Project Manager/OIS, addressed to the Senior Electronic Data Processing Manager of the Indian Railways inviting experienced staff for repairing the computers as well as for maintaining the software to achieve the project of computerization of passenger seats/berth reservations in Delhi area. The communication stated that Console Operators, Senior Console Operators, Assistant Programmers and Assistant Operation Managers would be accommodated. Reference may also be made to the communication dated 19.6.1985 issued by Chief Project Manage(OIS) to the Area Superintendent, Delhi, Northern Railways requesting the later that the petitioner and one, Uday Shankar Ghosh may be asked to work in the office of the Chief Project Manager(OIS) to give experience and knowledge of working on the application software of the reservation project. The Chief Project Manager(OIS) requested the transfer of the petitioner on administrative grounds from Delhi Main to New Delhi Reservation Office. This communication further stated that "in due course of time we will be able to find some suitable posts for these persons to absorb them in this organization".
14. From the aforesaid, it is seen that CRIS started of as a project of the Railways for computerization of passenger seats/berth reservations and eventually the same was carved out as an autonomous organization of the Railways. The transfer of the petitioner to the office of the Chief Project Manager(OIS) was also on administrative grounds.
15. In our view, therefore, the service rendered by the petitioner with CRIS on deputation cannot be considered to be foreign service for the purpose of the pension rules.
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 also find force in the submission of the petitioner that the stand of the respondents in this case is contrary to the decision taken by the respondent itself in the case of Sh. R. L. Arora. It appears that Sh. R.L.Arora, officiated in the construction wing of the MTP where he was drawing a higher pay than the pay to which he was entitled in his substantive post. The Railway Board vide communication dated 1.8.1986 and 18.9.1986 consistently took the view that there is no indication available in the Rules to debar the reckoning of the pay drawn by the employee against a work charged post before retirement for pensionary benefits. The Board also took the view that the pay drawn in an officiating capacity, even on ad hoc basis has to be taken into account for counting retirement benefits. The Board, in its letter dated 18.9.1986, reiterated its decision regarding counting of the last pay drawn by Shri Arora in the construction wing of the MTP, as conveyed in its letter dated 1.8.1986. Similar is the case of the petitioner. He cannot be treated discriminately.
18. The distinction sought to be drawn by the Tribunal between the petitioner's case and that of Ajmer Singh, decided by the Tribunal in OA No. 1868/95 on 14.11.1996 also appears to be misplaced. In Ajmer Singh(supra), the Tribunal observed as follows:
The respondents have not been able to show any provision which lays down that the pension will be determined with the reference to pay in substantive post and not the actual pay drawn by the retiring official. The pension is determined on the basis of "emoluments" which means basic pay which a government servant was receiving immediately before his retirement or on the date of his death. Admittedly, the applicant was receiving the pay of Rs. 2525/- as Superintendent at the time of his retirement. Rule 2000(21) R-II also defines the pay as the amount which the employee draws monthly in substantive or officiating capacity. It is an admitted fact that the applicant was working as a Superintendent and his pay was therefore fixed at Rs. 2525/-. Therefore, it was this pay which had to be taken into account for fixing his pension and other terminal benefits.
19. The reasoning adopted by the Tribunal squarely applies in the facts of the present case, as disclosed hereinabove. Merely because the petitioner sought voluntary retirement from the Railways and immediately got absorbed with CRIS where he was earlier serving on deputation, does not create any meaningful distinction between the case of the petitioner and that decided by the Tribunal in Ajmer Singh(supra).
20. For the reasons aforesaid, we are of the view that the decision of the Tribunal is laconic and liable to be set aside and the petitioner is entitled to the relief as prayed for by him in the Original Application. Accordingly, we set aside and quash the decision of the Tribunal in OA No. 2109/97 dated 24.12.1998 and direct the respondent to recalculate the retirement and other settlement dues of the petitioner on the basis of his basic salary of Rs. 2,450/- in the scale of Rs. 2000-3200 on the date of his voluntary retirement i.e.30.11.1993. The computation of the arrears of pension and other settlement dues to which the petitioner is entitled be made within three months and the arrears be paid to him within one month thereafter. In case, the arrears are not calculated and paid as aforesaid the petitioner shall be entitled to interest at the rate of 6% per annum from the date of filing of the Original Application before the Tribunal till realization. The respondents are further directed to start paying the petitioner his pension dues in future on the basis of his last drawn basic pay of Rs. 2,450/- and to pay to him his pension and other dues calculated on that basis henceforth. The petitioner shall be entitled to costs quantified at Rs. 10,000/-.