1980 PLP (C (PLC(CS))

"Provided further that, where a civil servant is required to serve on a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve. . ." The appellant repeatedly stressed on the provisions of App. 11 Item IV of FR/SR Vol. I. The provision runs as follows :‑ "If by reason of his transfer to foreign service, a Government servant loses any privilege or concession of pecuniary value which he would have enjoyed in Government service or is constrained to incur extra expenditure due to the nature of his duties in foreign service or to the circumstances in which those duties are performed, he may be allowed a compensatory allowance or suitable concession with the prior concurrence of the competent authority." The appellant also made a reference to the definition of the term "emoluments" as contained in the Ministry of Finance Office Memorandum dated 18th August, 1966. The relevant portion runs as under:‑ ".. The term "emoluments" shall mean the emoluments which the Government servant was receiving immediately before his retirement and shall include‑ (a) pay as defined in FR 9(21) (a)(i); (b) special pay granted in terms of FR 9(25); (c) technical pay ; (d) personal pay; and (e) any other emoluments which may specifically be declared as emoluments reckoning for pension. The appellant tried to support his claim for inclusion of deputation allowance in the emoluments for calculation of pension on the basis of provisions of Article 486 of CSR. Under this Article, deputation (duty allow ance) is included in the remuneration counted for the purpose of the pension. Similarly, under note 6 below Article 38 of the CSR, deputation (duty allowance) forms a part of remuneration for the purpose of pension. At the end of the arguments, the appellant confined his pleadings only to the inclusion of special pay of Rs. 100 in his emoluments for the purpose of calculation of pension and gratuity. The other claim mentioned in his prayer regarding a subsidy at 30 per cent of pay for the house rent to be paid by the BIM and his claim for the salary from 4th to 17th December, 1974, the period for which he was retained in service beyond his age of superannuation, were not pressed further. The learned State Counsel confined his arguments to the basic provi sions of the rule that the appellant was entitled to pay and allowances on foreign service limited to the maximum ceiling which he would have received had he been promoted to the next higher grade falling in his ordinary line of promotion. The appellant belonged to the Central Secretariat Service and was serving as Section Officer in Grade 18 when lie was transferred on foreign service to B. I. M. In the circumstances, his next promotion in the ordinary line was to the post of Deputy Secretary where he would have drawn pay in Grade 18 plus Rs. 440, as special pay. Thus he would have drawn Rs. 2,190 as Deputy Secretary. The same amount has been included in the revised sanction on the basis of which final payment for pension and gratuity has been calculated According to the learned State counsel, this was correct entitlement of the appellant on the basis of the applicable rules and directives on the subject. As regards the element of special pay, which the appellant was receiving immediately before his transfer on foreign service, the learned State counsel argued that since this special pay was attached only to the post of Second Secretary, CBR, this could not be treated as a part of the pay. The officer under terms of his service was transferable to any other post of Section Officer, Grade 18, anywhere in the Federal Government on a post to which was no special pay attached. The element of special pay in the case of transfer to any other post from the CBR would not have been admissible to him and would not have been drawn. This special pay therefore, could not form a part of the pay for the purpose of pensions. This special pay was being paid incorrectly by the B. I. M. and was later on discontinued as being inadmissible. As regards the fixation of upper limit of Rs. 2,300, the same was a typographical mistake and was corrected on 26th May 1976. He further argued that the appellant did not hold a lien on the post of Second Secretary, CDR, and as such he could be transferred anywhere outside that post. After hearing both the parties, the discussion is confined mainly to only one point; as to whether or not Rs. 103 special pay was a legitimate entitlement of the officer which he would have drawn up to retirement had he not been sent on foreign service to BIM. It is an admitted position that the appellant was transferable through Pakistan on any other post outside the CBR. It is, therefore, not correct to argue that he would have held that the post of Second Secretary upto retirement thus would have drawn Rs. 1,000 special pay up to superannuation. The certificate furnished by the CBR cannot be accepted; firstly because CBR is not an appointing authority or transferring authority in respect of the CSS officers; secondly because CBR also is not a deciding organisation for entitlement of special pay because residual powers in respect of this subject rest with the Ministry of Finance. We, therefore, hold that the officer would have lost special pay any time during his service on transfer to a post outside the CBR. This cannot, therefore, be treated as a legitimate permanent element of his pay to be reckoned for the purpose of pension and gratuity. A reference to Appendix 11, Item IV of FR/SR quoted by the appellant himself makes. the position further clear. These words are significant:‑ "If by reason of his transfer to foreign service, a Government servant loses any privilege or concession of pecuniary value which he would have enjoyed in Government service, he may be allowed compensatory allowance or suitable concession. . . " The words . . "in Government service" clearly mean that any entitlement which is available to the officer in Government service on all the posts where he is transferable is his basic entitlement, and not the pay or special pay which he draws on one of the posts and loses when he is transferred from that post. Since the element of special pay would have been lost by him on transfer from CBR, this special pay cannot be treated as his entitlement in Government service. Therefore, on the basis of the provision of the instructions quoted by the appellant himself, his entitlement to special pay is trot established. As regards the payment of special pay made by B. I. M. of some time, we agree with the learned State counsel that the same was due to an incorrect interpretation of the rules and was unauthorised payment which was discontinued. In these circumstances, this cannot form the basis for this element being included for calculation of pension. The argument of the appellant based on definitions contained in section 2(d) of the Civil Servants Act do not also help the appellant because special pay was an item which was not legitimately drawn by the appellant during the period of his foreign service with the BIM. As regards the admissibility of deputation allowance, the arguments of the appellant are not well based. Provisions of CSR 486 and note below Article 38 of the CSR include deputation (duty allowance) and not a deputation allowance of foreign service. These two elements are distinct and well defined. The clarification is available under Article 81 of the CSR. The deputation (duty allowance) is an additional element of pay which is allowed to an officer appointed on special duty which involve additional increase of work or responsibility in comparison to the duties of his regular appointment. This distinction was pointed out to the appellant who ultimately accepted the position and did not press further for the inclusion of deputation allowance in the emoluments for calculating the amount of pension. In the above circumstances, the appeal is rejected as being not sustainable. No order as to costs. Parties be informed accordingly.