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PETITIONER: 92V.S. MURTHY

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT07/05/1992

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) AHMADI, A.M. (J)

CITATION:  1992 AIR 1746            1992 SCR  (3)  92  1992 SCC  Supl.  (3) 115 JT 1992 (4)   355  1992 SCALE  (1)1174

ACT:      Indian Railway Establishment Code:      Rules  2003 FR 9(8) and 2003 FR 9(9)- Railway  employee on deputation with a Public Sector  Undertaking-‘Deputation- Whether  foreign service-Whether pay received in the  Public Sector Undertaking was from the general revenue of the State.      Rules 2544-A (CSR 486-A), 2544-B (CSR 486-B) and 2544-C (CSR  486-C)(-) Railway employee deputed to a Public  Sector Undertaking  -Permanently absorbed  subsequently-‘Deputation (duty)  allowance’  drawn during deputation- Whether  to  be included  in  emoluments  for  purpose  of   calculation  of pension  on permanent absorption. ‘  Deputation  allowance’- When can be deemed to be special pay.      Manual of Railway Pension Rules, 1950:      Paras 501 (4) and 506-Provisions meant for guidance  of Railway  staff-Cannot override statutory rules contained  in Indian Railway Establishment Code.

HEADNOTE:      The Appellant  was initially appointed in the Railways. Subsequently, he proceeded on deputation to a Public  Sector Undertaking,  and was permanently absorbed there.  While  on deputation, he was receiving his pay as admissible from time to  time  in the parent department, plus  deputation  (duty) allowance.    On  absorption,  the  appellant  claimed   his pensionary  benefits from the Railways, and on his  request, 100%  commutation  of  pension was  allowed.   However,  the calculation of pension was made without taking into  account the  deputation (duty) allowance which he was drawing  while on deputation.      Having  failed  to persuade  the  authorities,  through various  representations, to include the  deputation  (duty) allowance for the purpose of calculation of his pension, the appellant approached the Central Administrative Tribunal.                                                      93 The  claim  was contested by the respondents on  the  ground that since the service rendered by him on deputation to  the Public   Sector  Undertaking  was  ‘foreign   service’   the deputation  (duty)  allowance received by him could  not  be included  in the expression "emoluments" for the purpose  of calculation of pension.

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    The Tribunal held that deputation (duty) allowance,  in case  of deputation to bodies owned wholly or  substantially controlled  by the Government, would reckon for  pension  in terms of the provisions made in Rules 2544-A and 2544-B (CSR 486-A  and 486-B) of the Indian Railway Establishment  Code, subject, however, to the fulfillment of the conditions  laid down  therein, notwithstanding the provisions of MRP  Rules, but the benefit of counting the deputation (duty)  allowance received by the appellant for calculation of his pension was not available to him, since he did not fulfill the condition of  length of service during which he should have drawn  the special  pay  as envisaged by Rules 2544-A (CSR  486-A)  and 2544-B (CSR 486-B) of Indian Railway Establishment Code.      In   the  appeal  before  this  Court,  the   appellant contended that the deputation (duty) allowance was  required to  be included for calculation of pension since it  was  in the nature of "special pay", which under the Indian  Railway Establishment  Code  read with F.R.  had to  be  taken  into account for calculation of pension, and that he could not be treated  to be on ‘foreign service’ while serving  with  the Public Sector Undertaking, since the Undertaking in question was  a  Government of India Undertaking and  was  under  the control of the Central Government and, its revenues would be included in the general revenues of the State.      On  behalf  of the respondent, it  was  contended  that though  the  order   of  the  Tribunal  in  rejecting    the appellant’s claim was correct and required no  interference, the reasoning of the Tribunal which had failed to take  note of Rules 2003 (FR.9) and 2544-C (CSR 486-C) was fallacious.      Dismissing the appeal, by Special leave, this Court,      HELD  : 1. The allowance received by the  appellant  as deputation   (duty)   allowance  from  the   Public   Sector Undertaking  was  rightly excluded  from  being  taken  into account  for reckoning as "emoluments" for the   purpose  of calculation  of  pension of the appellant by  the  railways. The order of the Tribunal does not require any  interference though for reasons                                                      94 different than the one given by the Tribunal. [105 A]      2.1  The provision of Manual of Railway Pension   Rules are meant for the guidance of the staff and by themselves do not   have  any  statutory force.  However,  the  MRP  rules supplement the statutory rules and can be harmoniously  read with  the  statutory  provisions  contained  in  the  Indian Railway Establishment Code. [99 D]      2.2  The guidelines contained in Paras 501  (4)(1)  and 506 of MRP Rules provide that if a railway servant has  been on  foreign service immediately before quitting the  railway service,  then his emoluments should be taken at  what  they would  have  been  had he not been on  foreign  service  and deputation (duty) allowance drawn on foreign service was not to  be  taken into account for  determining  his  emoluments for calculation of pensionary benefits. [100 G-H]      2.3 According to Note (1) to CSR 486-C Rule (2544-C) if a  railway  servant  immediately before  his  retirement  or death  etc.   has  been absent from duty or  on  leave  with allowances (including leave preparatory to retirement) or on foreign  service  or having been  suspended  but  reinstated without  forfeiture of qualifying service, his  ‘emoluments’ should be taken at what they would have been had he not been on  such leave or foreign service or suspension as the  case may be for commutation of his pensionary benefits. [102 A]      2.4 The provisions of Rule 2544-C (CSR 486-C) read with Note  (1) thereto, therefore, give the statutory backing  to the guidelines contained in paras 501 (4)(1) and 506 of  MRP

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Rules  and both can be harmoniously read together.  The  MRP Rules only provide what is statutorily provided in CSR 486-C of Indian Railway Establishment Code.  Thus, both under  the CSR  486-C  and the MRP Rules, deputation  (duty)  allowance received by an employee while on foreign service has not  to be  reckoned  as  "emoluments"  for  calculating  pensionary benefits. [102-C]      3.1 Rule 2544-A (CSR 486-A) provides that in respect of officers retiring from service on or after the 1st November, 1959,  the term "emoluments" means the emoluments which  the officer was receiving immediately before his retirement  and includes  "special  pay"  attached to a post  other  than  a tenure  post,  when the "special pay"  has  been  sanctioned permanently and the post is held in a substantive  capacity. The deputation (duty)                                                         95 allowance  is deemed to be "special pay" and subject to  any exception  would  form the emoluments.  For the  purpose  of reckoning  "special  pay" as emoluments  for  pension,  Rule 2544-B  (CSR  486-B) provides that if an officer  holding  a permanent  post  in a substantive capacity is  confirmed  in such  higher permanent post any time during the  last  three years  of his service after having officiated in  that  post continuously  for  three years or more, his  emoluments  for pension  in respect of the higher post in any period  beyond three  years  of continuous service in that  post  shall  be determined  under Rule 2544-A (CSR 486-A) as if he  held  in substantive   capacity  a  permanent post  on  a  time-scale identical with  that of higher  post. [103 G-H, 104 A-B]      3.2 In the instant case, the appellant was not  drawing "special  pay"  as  envisaged by CSR  486-A  and  486-B  but "deputation  duty allowance" while on ‘foreign service’  and that  ‘special pay’  while on foreign service was   required to be excluded for purposes of calculation of pension.   The deputation  (duty)  allowance  is  not  to  be  reckoned  as "emoluments"  for calculating pension where  the  deputation (duty)  allowance has been received by the  railway  servant while on deputation to foreign service as in such cases, the deputaion  (duty) allowance is not attached to the post  but is personal to the incumbent on foreign service. [104 C-D]      3.3  The Tribunal relied upon CSR 486-A and  486-B  but over-looked  the provisions of CSR 486-C, which are  in  the nature  of  an exception and exclude the  deputation  (duty) allowance  to  be  reckoned as  emoluments  for  calculating pension,  where the same have been received by  the  railway servant while on deputation to foreign service. [104 E]      3.4   The  Tribunal  was,  therefore,  not  correct  in holding  that  the  ‘special  pay’  of  the   appellant  was required  to  be  taken into  account  for  calculating  his pension  subject to his fulfilling the conditions laid  down in Rule 2544-B (CSR 486-B). [103 F-G]      4.4  A  plain reading  of the definitions  of  ‘foreign service’  and ‘general revenues’ under Rules  2003  (FR9)(8) and  2003 (FR9)(9) of the Indian Railway Establishment  Code shows   that  "foreign  service" means service  in  which  a railway  servant receives  his pay and allowances, while  on deputation,  from  any  source other  than  from  a  company working  as  State Railway or from general  revenue  of  the State  and  the  expression  ‘general  revenue’  means   the revenues  of the President and includes the revenues   of  a State                                                        96 and the Railway Fund, if established. [102 G]      4.2  In  the  instant  case,  the  appellant  was   not reviving his pay while on deputation with the Public  Sector

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Undertaking  from the general revenue of the State  or  from any  company working as State Railway.  Even if  the  Public Sector  Undertaking  in question is a  Government  of  India enterprise,  it can only be treated to be a  Government   of India  undertaking  but  its  revenues  cannot  be  said  to constitute  the   general revenue of the  State  within  the meaning  of  Rule  2003  (FR.9).  Therefore,  the  pay   and allowances  received by the appellant while on deputaion  to the Public Sector Undertaking were not being drawn from  the general revenue of the  State.  His service with the  Public Sector  Undertaking was unmistakably foreign service and  in the matter of calculation of his emoluments for  computation of  terminal benefits on his quitting the  railway  service, the  provisions  related    to foreign service  were  to  be applied to his case.                                        [103 A-C]      5.  There  is  sound  logic  behind  the  exclusion  of deputation  (duty) allowance received by a  railway  servant while  on  foreign  service  from  being  included  in   the emoluments  to  calculate  pension.   The  deputation  of  a Railway   servant  to  foreign  service  is   a   fortuitous assignment  and  since,  there  is  no  settled  method   of selection   of  the  railway  servant  for  being  sent   on deputation  to  foreign service, the life long   benefit  of having   the   deputation  duty   allowance   included   for calculation of pension may result in hardship and  injustice to those railway servants who were not so sent on deputation even though senior or more qualified than the person sent on deputation.    It  is  for  this  reason  that   while   the deputationists  may receive the deputation (duty)  allowance for  the  services rendered on foreign  service  during  the period  they remain on deputation, that  deputation   (duty) allowance  has been excluded from being taken  into  account for purpose of calculation of pension. [104 F-H]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 127  of 1991.      From  the  Judgment and  Order dated 18.4.1990  of  the Central  Administrative Tribunal, New Delhi in O.A. No.  542 of 1987.      Appellant-in person.      Dr. Anand Prakash, Ms. Sarla Chandra, B. Krishna Prasad (NP) and                                                       97 V.K. Verma for the Respondents.      The Judgment of the Court was delivered by      DR.  A.S.  ANAND,  J.  The  short  and  only   question requiring  consideration  of this Court in this  appeal,  by Special Leave, from the order of the Central  Administrative Tribunal, Principal Bench, New Delhi, made in OA No.  542/87 on  18th  of  April, 1990 is "whether  for  calculating  the pension,  the  amount  paid  by  way  of  deputation  (duty) allowance  by Hindustan Organic Chemicals Limited,  Rasayani to the appellant, while on deputation from the Railways,  is to  be included ?" The necessary and relevant facts  are  as follows :      2. The appellant was appointed as a Clerk, Grade-II, in the  Office  of  the Financial Adviser  and  Chief  Accounts officer,  Central Railways, Bombay V.T., on  25.1.1950.   In 1953, he was promoted as Stock Verifier in the pay-scale  of Rs. 80-220.  While the appellant was so working, in 1979, he proceeded  on deputation to join as a Vigilance Inspector in

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the   Hindustan  Organic  Chemicals   Limited   [hereinafter referred  to as ‘HOCL’] initially for a period of one  year, which  period  was extended from time to  time till  he  was permanently  absorbed in HOCL on 8.12.1982. At the  time  of proceeding on deputation, the pay-scale of the appellant  in the  Central Railways was Rs.490-30-640-35-815-40- 1055.  On deputation, the pay of the appellant was regulated in  terms of the FA and CAO’s Office Memorandum, dated 12.12.1979, and the  appellant received his pay, as admissible from time  to time,  plus the deputation (duty) allowance.  The  appellant was  permanently  absorbed  in the  HOCL  with  effect  from 8.12.1982  following   his  resignation  from  the   Central Railways.   The  appellant claimed his  pensionary  benefits from the Central Railways.      3.  In  accordance  with the  relevant  orders  of  the Government  of  India, a pensionary employee,  on  permanent absorption  in a public sector undertaking, is  entitled  to the  grant  of pension on the basis of qualifying  years  of service  etc.   The Government of India,  however,  makes  a departure   in   such  cases,  from  the  normal   rule   of commutation  of  pension  to the extent   of  1/3rd  of  the pension to full (100%) commutation of  pension.  In the case of  appellant, on his request, 100% commutation  of  pension was allowed by the Government of India.  The calculation  of pension  was, however, made without taking into account  the amount of deputation (duty) allowance of Rs. 150 per  month, which the appellant was drawing, while  on deputation                                                        98  from the Central Railways, to the HOCL. It is pertinent  to notice  here that the appellant had opted  for  contributory provident  fund  and  had received the  benefit  in  respect thereof  form  the HOCL for the period for which he  was  on deputation.   Having  failed to  persuade  the  authorities, through  various representations, to include the  deputation (duty)  allowance  for  the purpose of  calculation  of  his pension,    the    appellant   approached    the     Central Administrative Tribunal, Principal Bench, Delhi.      4.  The  claim of the appellant was  contested  by  the respondents before the Tribunal on various grounds.  It  was urged  that  the  service  rendered  by  the  appellant   on deputation  to the HOCL was foreign service and,  therefore, the deputation (duty) allowance received by him could not be included  in the expression "emoluments" for the purpose  of calculation   of  pension.   Reliance  was  placed  by   the respondents  on para 506(i) and 501 (4)(1) of the Manual  of Railway Pension Rules, 1950, (hereinafter referred to as MRP Rules), and Rules 2544 and B(CSRs 486 A and 486 B) of Indian Railway Establishment Code, Vol.II (hereinafter referred  to as  IRE  Code).  The Tribunal found that the  provisions  of Manual  of  Railway Pension Rules were meant  only  for  the guidance  of  the railway staff and those  provisions  could not over-ride the statutory rules contained in the IRE Code. The Tribunal then referred to various provisions of the  IRE Code  and held that deputation (duty) allowance, in case  of deputation   to   bodies  owned  wholly   or   substantially controlled  by the Government, would reckon for  pension  in terms  of  the provisions made in Rules 2544 -A  and  2544-B [CSRs 486-A and 486-B] of the IRE Code, subject, however, to the  fulfillment  of  the  conditions  laid  down   therein, notwithstanding the provisions of MRP Rules.  The  Tribunal, however,  found that the benefit of counting the  deputation (duty)  allowance  received by the appellant from  HOCL  for calculation  of  his  pension  was  not  available  to   the appellant as  he did not fulfill the condition of length  of service during which he should have drawn the special pay as

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envisaged by Rules 2544-A [CSR 486 -A]and 2544-B [CSR 486-B] of IRE Code.      5.  The appellant, appearing in  person, has  taken  us through  the provisions of the MRP Rules as well as the  IRE Code.   He  canvassed  that the Tribunal fell  in  error  in holding that the appellant had not satisfied the  conditions necessary  for having the deputation allowance included  for calculation of his pension and asserted that the  deputation (duty) allowance was required to be included for calculation of pension, since it                                                        99 was  in the nature of "special pay" and ‘special pay’  under the IRE Code read with F.R. had to be taken into account for calculation of pension.      Dr.  Anand Prakash, learned Senior Advocate,  appearing for  the respondent, in his reply submitted that  since  the Tribunal  had  failed  to  take  note  of  certain  relevant provisions of IRE Code, its reasoning was fallacious, though the impugned order was correct and required no interference. He argued that the appellant was receiving his pay while  on deputation to HOCL from a source other than from the general revenue  of  the State, which criterion under  Rule  No.2003 (F.R.9)  of  the  IRE  Code  rendered  the  service  of  the appellant  in  HOCL as foreign service  and  the  deputation (duty)  allowance  received by an employee of  the  railways while  on  foreign  service could not be  included  for  the purposes  of calculation of the  emoluments in view of  para 2544  [CSR 486-C] of the IRE Code. Learned counsel  for  the respondent, therefore, argued that the order of the Tribunal did not call for any interference.      We  have  given our thoughtful  considerations  to  the submissions  made  at the bar.  We agree with  the  Tribunal that  the provisions of Manual of Railway Pension Rules  are meant for the guidance of the staff and by themselves do not have any statutory force.  In our opinion, however, the  MRP rules  supplement the statutory rules and for what  follows, can  be  harmoniously  read with  the  statutory  provisions contained in the IRE Code.      Paras 501(4)(1) and 506 of MRP Rules read as follows :      501(4)(1) :          (1)  If immediately before quitting the  service  a          Railway servant has been absent from duty on  leave          with  allowances  (including leave  preparatory  to          retirement)  or on foreign service or  having  been          suspended  but  reinstated  without  forfeiture  of          qualifying service his  emoluments should be  taken          at  what  they would have been had he not  been  on          such leave or foreign service or suspension."          506 :          "The  following  do not count as  ‘emoluments’  for          pensionary  benefits  and will not  be  taken  into          account for reckoning as                                                          100      ‘emoluments’ :-          (i) Local Allowances such as bad climate allowance,          when  sanctioned  as  compensatory  allowance   and          deputation  (Local) allowance or deputation  (duty)          allowance  drawn  on deputation  to  non-Government          departments or bodies;          (ii) Messing allowance;          (iii)  House Rent allowance, or estimated value  of          rent-free quarters;          (iv) Travelling Allowance;          (v) Conveyance allowance;          (vi) City Compensatory allowance;

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        (vii) Uniform allowance;          (viii) Washing allowance;          (ix) Any other part of Railway servant’s emoluments          which is specially intended to provide for expenses          incidental to his duty;          (x) Bonus;          (xi) Honorarium;          (xii) Fees and          (xiii) Overtime."                                     [Emphasis Supplied]      The guidelines contained in Paras (4)(1) and 506 of MRP Rules  thus  provide that if a railway servant has  been  on foreign  service  immediately before  quitting  the  railway service,  then his emoluments should be taken at  what  they would  have  been  had he not been on  foreign  service  and deputation (duty) allowance drawn on foreign service was not to be taken into account for determining his emoluments  for calculation of pensionary benefits.                                                    101      The  relevant  provision of the IRE Code  dealing  with this  aspect  is Rule 2544-C [CSR 486-C].  That  rule  reads thus:          "Rule  2544-C  [CSR 486-C]: In respect  of  railway          servants  quitting  service  on or after  the  15th          June,  1968, "emoluments" shall mean the  "pay"  as          defined  in  Rule  2003  (21),  which  the  railway          servant  was receiving immediately before  quitting          service.  Provided  that  the  benefit  of   higher          officiating pay for (ordinary)  Gratuity/Death-cum-          Retirement Gratuity will be given only if such  pay          was/would have been drawn continuously for a period          of  not  less than 22  days.  "Average  emoluments"          shall mean the average of the emoluments as defined          above  calculated  upon  the last  three  years  of          service.             In  the  case of running  staff  emoluments  for          (ordinary)   Gratuity   (1)    Death-cum-retirement          Gratuity  will also include the monthly average  of          running  allowance  drawn during the  365  days  of          running  duty  immediately preceding  the  date  of          quitting  service  limited to 75 per  cent  of  the          emoluments  as  defined above. For the  purpose  of          calculation of average emoluments the actual amount          of  the  running allowance drawn during  the  month          limited  to  a  maximum of 75  per  cent  of  other          emoluments  as  defined above shall also  be  taken          into account.           NOTE  :-(1)  If  a  railway  servant,  immediately          before  his  retirement  or death,  etc.  has  been          absent  from  duty  or  on  leave  with  allowances          (including  leave preparatory to retirement) or  on          foreign  service  or  having  been  suspended   but          reinstated   without   forfeiture   of   qualifying          service,  his  emoluments should be taken  at  what          they would have been had he not been on such  leave          or foreign service or suspension:           Provided  that emoluments shall not be  increased          on  account of increase in pay, not actually  drawn          and that benefit of higher officiating or temporary          pay is given only if it is certified that he  would          have  continued to hold the higher  officiating  or          temporary  appointment  but for his  proceeding  on          leave.           (2)  Pay drawn in tenure appointments  will  count          for persons governed by the Railway Pension  Rules,

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        1950."                                    [Emphasis supplied)                                                  102      It  would  be seen from Note  (1) to  CSR  486-C(supra) that if a railway servant immediately before his  retirement or  death  etc. has been absent from duty or on  leave  with allowances [including leave preparatory to retirement] or on foreign  service  or having been  suspended  but  reinstated without  forfeiture of qualifying  service,his  ‘emoluments’ should be taken at what they would have been had he not been on  such leave or foreign service or suspension as the  case may  be  for commutation of his pensionary   benefits.   The provision  of  Rule  2544-C [CSR 486-C]  read  with  Note(1) thereto,  therefore,  give  the  statutory  backing  to  the guidelines contained in para 501(4)(1) and 506 of MRP  Rules (supra) and both can be harmoniously read together.  The MRP Rules only provide what is statutorily provided in CSR 486-C of IRE Code.  Thus, both under the CSR 486-C [supra] and the MRP  Rules,  deputation  (duty)  allowance  received  by  an employee while on foreign service has not to be reckoned  as "emoluments" for calculating pensionary benefit.       We are unable to accept the plea of the appellant that he  could  not  be treated to be on  foreign  service  while serving  with  the  HOCL  on  the  ground  that  HOCL  is  a Government  of India Undertaking and is under the control of the  Central Government and therefore its revenues would  be general revenues  of the State.      Rules 2003  (F.R.9) (8) and 2003 (F.R.9) (9) of the IRE Code  define  foreign service and general revenues  and  lay down as follows :          "Rule  2003  (F.R.9) (8) :  Foreign  Service  means          service  in  which a railway servant  receives  his          substantive pay with the sanction of Government (a)          from any source other than the general revenues  or          (b) from a company working as State Railway."          "Rule 2003 (F.R.9) (9) : General Revenues mean  the          revenues of the President and includes the revenues          of   a   State   and   the   Railway   Fund   (when          established)."      A  plain reading of the above definition shows  that  " foreign  service" means service in which a  railway  servant receives  his pay and allowances, while on deputation,  from any  source  other  than from a  company  working  as  State Railway  or  from  general  revenue of  the  State  and  the expression  ‘general  revenue’  means the  revenues  of  the President  and includes the revenues of a State and  Railway Fund, if established.                                                       103      6.  The  appellant was not receiving his pay  while  on deputation  with  the HOCL from the general revenue  of  the State  or from any company working  as State Railway.   Even if HOCL is a Government of India enterprise, it can only  be treated  to be a  Government of India undertaking   but  its revenues cannot be said to constituted the general  revenue of the State within the meaning of Rule 2003  (F.R.9)(supra) and, therefore, it is erroneous for the appellant to contend that  the  pay  and  allowances received  by  him  while  on deputation to HOCL were being drawn from the general revenue of  the  State.   His service with  HOCL  was,  unmistakably foreign  service  and in the matter of  calculation  of  his emoluments  for  computation  of terminal  benefits  on  his quitting  the railway service, the provisions  relatable  to foreign service were to be applied to his case.      7. The Tribunal relied on Paragraph 2003 (F.R.9) 89 (A) IRE Code, which defines ‘pay’ as including ‘special pay’ and

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‘personal pay’ and after referring to Rule 2544-A [CSR  486- A] which provides:          "2544-A [CSR 486-A]: Save as otherwise provided  in          Rule  2544-B (CSR 486-B).  In respect  of  officers          retiring from service on or after the 1st November,          1959,  the term "emoluments" means  the  emoluments          which the officer was receiving immediately  before          his retirement and includes:          (a) ........          (b) ........          (c)  Special  pay attached to a post other  than  a          tenure   post,  when  the  special  pay  has   been          sanctioned  permanently and the post is held  in  a          substantive capacity."      held  that  the  ’special pay’  of  the  appellant  was required  to  be  taken into  account  for  calculating  his pension  subject to his fulfilling the conditions laid  down in Rule 2544 B (CSR 486 B).  This approach of the  tribunal, in the facts of this case, was erroneous.      The aforesaid rule provides that in respect of officers retiring  from service on or after the 1st  November,  1959, the term "emoluments" means the emoluments which the officer was receiving immediately before his retirement and includes "special  pay" attached to a post other than a tenure  post, when  the "special pay" has been sanctioned permanently  and the post                                                        104 is  held in a substantive capacity.  The  deputation  (duty) allowance, is deemed to be "special pay" and subject to  any exception  would  from the emoluments.  the  conditions  for reckoning  "special  pay"  as  emoluments  for  pension  are contained  in  Rule  2544-B [CSR  486-B]  which  inter  alia provides  that if an officer holding a permanent post  in  a substantive  capacity is confirmed in such higher  permanent post  any  time during the last three years of  his  service after having officiated in that post continuously for  three years or more, his emoluments for pension in respect of  the higher  post in any period beyond three years of  continuous service  in that post shall be determined under Rule  2544-A [CSR  486-A] as if held in substantive capacity a  permanent post on a time-scale identical with that of higher post. The appellant  was,  in the instant case, not  drawing  "special pay"  as envisaged by CSR 486-A and  486-B  but  "deputation duty allowance" while on ’foreign service’ and that "special pay" while on ’foreign service’ was required to be  excluded for  purposes  of calculation of  pension.   The  deputation (duty) allowance is not to be reckoned as " emoluments"  for calculating  pension where the deputation  (duty)  allowance has been received by the railway servant while on deputation to  foreign service as in such cases the  deputation  (duty) allowance is not attached to the post but is personal to the incumbent on foreign service.  The Tribunal relied upon  CSR 486-A and 486-B but over-looked the provisions of CSR 486-C, which  are  in the nature of an exception  and  exclude  the deputation (duty) allowance to be reckoned as emoluments for calculating  pension, where the same have been  received  by the railway servant while on deputation to foreign  service. There  appears  to be sound logic behind  the  exclusion  of deputation  (duty) allowance received by a  railway  servant while  on  foreign  service  from  being  included  in   the emoluments  to  calculate  pension.   The  deputation  of  a railway   servant  to  foreign  service  is   a   fortuitous assignment  and  since,  there  is  no  settled  method   of selection   of  the  railway  servant  for  being  sent   on deputation  to  foreign service, the life  long  benefit  of

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having   the   deputation  duty   allowance   included   for calculation of pension may result in hardship and  injustice to those railway servants who were not so sent on deputation even though senior or more qualified than the person sent on deputation.    It  is  for  this  reason  that   while   the deputationist  may receive the deputation  (duty)  allowance for  the  services rendered on foreign  service  during  the period  they  remain on deputation  that  deputation  (duty) allowance  has been excluded from being taken  into  account for purpose of calculation of pension.                                                        105      8.  Thus,  for what we have said above,  the  allowance received  by  the appellant as deputation  (duty)  allowance from HOCL was rightly excluded from being taken into account for reckoning as "emoluments" for the purpose of calculation of  pension of the appellant by the railways.  The  impugned order  of  the  Tribunal does not,  therefore,  require  any interference  and  the  same is upheld  though  for  reasons different than the one given by the Tribunal.      9.  The appeal is, consequently, dismissed but we  make no order as to costs.      Before  parting  with the judgment, we  would  like  to point  out that as an interim measure we had directed,  vide order dated 10.1.1991, that the appellant’s pension shall be computed   by  taking  into  account  the  deputation   duty allowance as a part of emoluments and that in the event  the contention  of  the  appellant, not being  accepted  by  the Court,  appropriate adjustment shall be made.  In  case  the pension  has been worked out in accordance with our  interim directions, the respondent shall be entitled and at  liberty to  make  proper adjustments from  his  pensionary  benefits hereafter; but the same should be done in such a manner that its  rigour is diluted and the adjustments  are  distributed over a span of time N.P.V.                             Appeal dismissed.                                                        106