Central Administrative Tribunal - Delhi
B L Jain S/O Shri H C Jain vs Union Of India Through Secretary on 13 January, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1439/2009 Thursday, this the 13th day of January 2010 Honble Dr. K.B. Suresh, Member (J) B L Jain s/o Shri H C Jain r/o B-314, Ashok Nagar, Delhi-93 ..Applicant (By Advocate: Shri Anil Singal) Versus 1. Union of India through Secretary Dept. of Agriculture Research & Education Govt. of India cum Director General ICAR, Krishi Bhawan, New Delhi-1 2. The Director ICAR, Pusa, New Delhi 3. Chief Administrative Officer (Pension) IARI, PUSA, New Delhi 4. Chief Finance & Accounts Officer IARI, PUSA, New Delhi ..Respondents (By Advocate: Ms. Jasmine Ahmed) O R D E R (ORAL)
The applicant seeks the calculation of his pension on the basis of the average emoluments he had drawn during the last 10 months while he was in service. It appears that he was on deputation following Annexure R-1 to another organization, which, the applicant would describe, is under the same Ministry and formulated under the policy of the Government of India and its legislature and drawing its funds from the Consolidated Fund of India. Thus, the applicant would say that because of the parity of funding pattern of these two organizations and the fact that he was deputed to serve the second organization, which is also an instrumentality of the Government under Article 12 of the Constitution of India, his services in that organization have also to be taken into account.
2. The respondents would contend that under Note 7 of Rule 33 of the Pension Rules, the emoluments, are to be calculated differently and, therefore, they can only view his service as foreign service on the basis of the Office Memorandum issued by the Govt. of India No.2/29/91-Estt (Pay II) dated 5.1.1994. The applicant has also filed a rejoinder in which the Government of Indias order has been annexed, as is reported in Swamys Compilation on Fundamental Rule wherein the foreign service is defined as a service in which a government servant receives his pay with the sanction of the Government from any source other than the Consolidated Fund of India or the Consolidated Fund of State or the Consolidated Fund of Union Territory. Therefore, the applicant would contend that his service is a purely on deputation basis and not foreign service. Therefore, Rule 33 of the Pension Rules has no application to him.
3. Following the judgment of Honble Apex Court, which has held that if by fortuitous chance a person was in employment in any other similar situated Government functionality, the benefit thus accrued to him cannot be taken away by the Government on the ground that he had returned to his parent department and while so had retired. Therefore, there is merit in the contentions raised by the applicant.
4. In the light of discussions made above, the impugned order is hereby quashed. It is declared that the applicant is entitled to receive his pension, on the basis of average of last 10 months pay whether he had served, in the parent department or the borrowing department, as the parent department had willingly released his services to the borrowing department and if at all he could obtain additional benefits while on deputation, it cannot be taken away on his re-joining the parent department, as it had already accrued to him. His re-fixing in the same grade will not bring down the effect of his earlier scale of pay, which also has to be taken into account as he had returned with only two months to spare
5. OA is allowed accordingly. However, to set the matter at rest and in full, it is further directed that if in the interregnum any arrears so payable have accrued, a due and drawn statement shall also be prepared and on that basis, it may be made available to the applicant. This shall be done within a period of six months next from the date of receipt of a copy of this order. No costs.
( Dr. K.B. Suresh ) Member (J) /sunil/