Usha Ravi v. Bank of Baroda & Ors.

13. It is undisputed that the pension regulations made applicable to these Petitioners by their Parent Banks, are almost identical. For the sake of clarity, we are reproducing the relevant clauses of the Bank of Baroda (Employees) Pension Regulations, 1995, as under:- “2(d) “Average Emoluments” means the average of the pay drawn by an employee during the last then months of his service on the Bank; 2(e) “Bank” means BANK OF BARODA mentioned under column 2 of THE FIRST

25. Period of deputation to an organization in India. Period of deputation of an employee to another organization in India will count as qualifying service: Provided the organization to which he is deputed or the employee pays the pensionary contributions at the rates specified in sub-regulation (a) of Regulation 7 of these regulations or at the rates specified by the Bank at the time of deputation, whichever is higher to the Bank. 35(2) In the case of an employee retiring in accordance with the provision of the Service Regulations or Settlement after completing a qualifying SUNNY THOTE 11 of 27 service of not less than thirty-three years the amount of basic pension shall be calculated at fifty per cent of the average emoluments.”

14. The identical grievance of each of these Petitioners is voiced in their individual Petitions. Each of them is aggrieved that the 15% deputation allowance has not been taken into account while computing their last drawn salary, for the purpose of fixing their pension amount. They made representations to their parent banks which were turned down. Hence, these Petitions.

15. Similar grievances of several similarly situated employees, were noticed much earlier by the Ministry of Finance, Department of Economic Affairs (Banking Division), Government of India. Therefore, a clarificatory letter was issued as early as on 27th November, 1998, by the Deputy Secretary to the Government of India, addressed to the Deputy Personnel Adviser, Indian Banks’ Association, Mumbai. Following are the contents of the communication. “Sub: Bank (Employee’) Pension Regulations, 1995 – Emoluments to be reckoned for the purpose of pensionary benefits in the case of an employee who is on deputation. ….. SUNNY THOTE 12 of 27 Sir, I am directed to refer to your letter no.PB/GSN/85/G(ii)/349 dated 4th July 1998 on the subject cited above and to say that in the light of the provisions contained in rules 33 (note 7) of the CCS Pension Rules, it has been decided that the substantive pay that an officer would have drawn in the parent bank, but for his deputation, be taken as the pay of calculating average emoluments for the purpose of Pensionary benefits and not the pay actually drawn by the officer in the higher scale in the loanee organization.”

16. The Petitioners started approaching their Parent Banks for revising their pension fixation on the ground that they were deprived of higher pension by the Parent Bank by misreading the documents/orders posting these Petitioners on deputation. The Senior Advocate, Shri. Pakale has vehemently canvassed that since the P.F. contributions were deducted even on the 15% additional pay scale on account of the posting of the Petitioners on deputation and since a portion of such deductions were deposited under the Pension Scheme, it indicates the desire of the Parent Bank to treat the Petitioners as being eligible for the higher pay scale (by the addition of 15% deputation allowance). Therefore, the pension should be calculated at such rate, is the contention.

17. The learned Advocates for the Respondent parent SUNNY THOTE 13 of 27 Banks, as well as, the Loanee Banks, have vehemently opposed these Petitions. Contentions are that the services of these Petitioners were loaned to the Loanee Banks in view of the advertisement published by the Central Government. The Petitioners were aware that their services have been temporarily loaned on deputation. They would be getting 15% extra salary only on account of their deputation. Once they return to the parent Bank, the payment of the deputation allowance would be stopped. They have entered their written notes of submissions, in addition to their oral arguments.

18. Despite the strenuous efforts made by the learned Senior Advocate, Shri. Pakale and the other learned Advocates on behalf of the Petitioners, we do not find that their submissions are well placed. It is unassuming that an Employee on deputation who superannuated while on deputation, could be held eligible for pension calculated on the addition of the deputation allowance @ 15%. The order of deputation issued to each of the Petitioners clearly mentions under Clause No.2(ii) that, the deputationist will have the option to draw his pay from the Parent Bank, along with 15% allowance, or to receive it from the Loanee Bank along with the perquisites that would be admissible in the borrowing SUNNY THOTE 14 of 27 organization.

19. We do not find that merely because the provident fund deductions were carried out even on the 15% deputation allowance, could change the law for enabling the Petitioners to claim pension on the basis of the last drawn salary inclusive of the deputation allowance. If a mistake is committed by the Loanee Bank, the same would not create a vested right in the Petitioners. In EPFO V/s. Vivekananda Vidyamandir (2020) 17 SCC 643, the Hon’ble Supreme Court held that where an emolument is universally, necessarily and ordinarily paid to all across the Board, such emolument will be a part of the basic pay. In light thereof, since the Loanee Banks were universally, necessarily and ordinarily paying the deputation allowance to each of the deputationists, the Loanee Banks may have thought it appropriate to pay EPF subscription even on the 15% deputation allowance, to avoid future complications. Nevertheless, though this issue is not a subject matter of these Petitions, such subscription towards provident fund would not create a right to be asserted by these Petitioners.

20. Clause No.2(i) clearly mandates that the Petitioner SUNNY THOTE 15 of 27 would be on deputation for a period of three years or till he attains the age of superannuation ‘in his Parent Bank’, whichever is earlier. His extension or reduction of the tenure, was subject to the prior concurrence of the Department of Financial Services and Central Vigilance Commission. It is also clarified that during the period of deputation, the contribution towards Leave Salary and Contributory Provident Fund will be borne by the borrowing organization.

21. If the submissions of the Petitioners are to be accepted, it will have to be concluded that a deputation with 15% deputation allowance and additional perquisites, would amount to being promoted on a higher pay scale only because the Employee superannuated under fortuitous circumstances while on deputation. Then, if a deputationist is to be recalled to his Parent Organization, would it be construed as a demotion or reduction in rank? Deputation allowance which is calculated on the basis of the basic pay and the dearness allowance, which is paid on month to month basis along with the regular pay at regular pay intervals, may amount to a wage component and, therefore, provident fund deduction may be justified.

SUNNY THOTE 16 of 27

22. No doubt, the gratuity and pensionary benefits are calculated on the average of the last drawn wages. However, we find from the definition of ‘average emoluments’ under Regulation 2(d), to mean, ‘the average of the pay drawn by an Employee during the last ten months of his service in the Bank’. Under Regulation 2(e), ‘Bank’ is defined to mean the Parent Bank. It also cannot be lost sight of the fact that 15% deputation allowance is calculated on the pay structure of the deputationist on the basis of the salary drawn by him with the Parent Bank and such deputation allowance is payable until the deputation lasts. Normally, in any organization, the deputationist has to return to the Parent Organization prior to his superannuation. Merely because a deputationist attains the age of superannuation while on deputation, would not entitle him to treat such a higher pay scale as a foundation for calculating the pension fixation. Moreover, some of the Petitioners had sought extensions so as to superannuate while being on deputation.

23. In Bhagwan Dass and Others V/s. State of Punjab and Another, 2016 SCC OnLine P&H 5892, the learned Single Judge of the High Court of Punjab and Haryana ruled thus:- SUNNY THOTE 17 of 27 “2. The petitioners retired from service on attaining the age of superannuation while performing the duties of the higher post of Principal/Headmaster in Group-A school cadre in the Punjab Education Department while holding the current duty charge of the higher post for different periods ranging from about 1 to 7 years. Their claim is to fix pension and other pensionary benefits on the basis of the last salary drawn by the petitioners in the higher pay scale while performing duties holding the current duty charge of the superior post. They were also given the additional charge of Drawing and Disbursing Officers in their respective schools.

3. The petitioners place reliance on Rules 2.44, 2.47, 2.52, 6.19 and 6.24 including 4.4(a)(i) of the Punjab Civil Service Rules to fortify their cases for obtaining relief through appropriate orders, writs and directions. It is their case that they were called upon to officiate on the higher post in accordance with rule of seniority vide letter dated June 19, 1992 issued by the department in the lead case. The petitioners may have a right to arrears of difference of pay of the post substantively held and the post on which they have performed duties and responsibilities of the higher post but all the same they have acquired no right to the higher pay scale, unless they were duly promoted to the higher posts while in service. But this does not mean that they have a right to the pay scale of the higher post on the date of retirement for claiming pension admissible to the higher post. In none of these cases has a prayer been made that the petitioners should be promoted to the higher post of Principal/Headmaster in accordance with seniority and then to re-fix pension accordingly. In absence of such a prayer and a declaration by the department that petitioners stood validly promoted as per their turn in the seniority list, the relief prayed for in the petition cannot be granted merely because on the date of superannuation they continued to perform the duties of the higher post holding the current duty charge irrespective of length SUNNY THOTE 18 of 27 of such service. It may also be true that a condition in the order giving them the officiating current duty charge of the higher post in their own pay scale may be an argument in their favour on principles of workload but to enhance last pay drawn is another matter which cannot be legally countenanced for absence of substantive promotion. But this does not mean that they would not be entitled to the higher pay on the principle of equal-work-for-equal-pay on the well recognised doctrine of quantum meruit. However, rate of pension cannot be made dependent on such current duty charge or officiation on the posts of Principal or Headmaster. I would, therefore, not intercede in these cases and on the other hand dismiss the petitions as devoid of merit. There is a difference between the two concepts of pay at par with the higher posts for working on them and right to difference of pay between the two posts for discharging full duties and responsibilities of the promotional post.

4. The court rulings relied upon by Mr. Vikas Chatrath in Pritam Singh Dhaliwal v. State of Punjab, 2004 (6) SLR 758 2004 (4) SCT 403 [para.4]; Gurmej Singh v. State of Punjab, 1995 (3) RSJ 491, 1995 (3) S.C.T. 279 (paras.[1] to 3] are occasioned by misreading them into the facts of the instant case. The decision of the learned Single Judge in Sohan Singh, Sub Inspector v. The State of Haryana, 1992 (2) SCT 74 [paras.10 and 11] and of the Supreme Court in State of Punjab v. Nirmal Singh, 2002 (2) S.C.T. 723 [para.2] and BCPP Mazdoor Sangh v. NTPC, 2007 (4) S.C.T. 724 (paras.26, 29 and 30) are not directly on the point and of no help. It will be useful to read rule 2.44 of the PCS Rules which defines "pay to mean in the scale of the post held by the Government employee, or to which he is entitled by reason of its position in a cadre and Rule 6.19-C which defines the term "emoluments" when used for the purpose of emoluments reckoning from pension would mean "pay" as defined in Rule 2.44 of the PCS Rules, Vol. 1, Part 1 including dearness pay as determined by the orders of the Government issued SUNNY THOTE 19 of 27 from time to time, which the employee is receiving immediately before his retirement or the date of his death. Rule 6.24(1) defines "average emoluments" to mean the average calculated up to the last ten months of qualifying service which is applicable to employees retiring after February 29, 1976. These provisions do not contemplate current duty charge and would not hold Mr. Chatrath in good stead to bring relief for his clients and the petitioners in the connected cases.

5. On the other hand, Mr. Nikhil K. Chopra, learned Addi. AG, Punjab appearing for the respondents relies on the ruling in Bidhi Singh v. State of Punjab, 1992 (2) RS) 19: 1992 (1) SCT 590 could demolish the case of the petitioners. This is a case of a Government servant sent on deputation to higher post in another department of Government which brought him higher pay/emoluments. The petitioner therein retired while on deputation and was not promoted in his parent Government department before he retired from service. Therefore, the Court held that pensionary benefits have to be determined on the basis of emoluments which the Government employee would have drawn had he not been sent on deputation. The Single Judge in this case has dealt with the provisions of Rules 6.19-C, 2.44 and

6.24 of the PCS Rules which have been held to have no relevance to the case.

6. In U.K. Walia v. Punjab National Bank, 2013 (2) RS) 385, which is also a case of deputation, Court ruled that benefit of higher grade on deputation will not bring with it a right to enhanced pension on the last pay drawn which has to be calculated in terms of the salary the petitioner would have drawn in the parent Bank on the date of superannuation.

7. Lastly, he relies on an order that I passed in C.W.P. No. 13125 of 2015, Shital Ram v. State of Punjab decided on March 03, 2016 in a case claiming enhancement of pension for discharging duties of Drawing & Disbursing Officer, where it was observed SUNNY THOTE 20 of 27 thus:- "The petitioner's claim is for his enhancing pension on the ground that he discharged duties of Drawing & Disbursing Officer [DDO] in the substantive rank of Head Master while serving in a Government School. The State has explained that the petitioner has been compensated for extra work performed as DDO by payment of an allowance. In such a situation, the extra pay for discharging duties and responsibilities of a DDO does not form part of pay scale prescribed for the post of Head Master. Assigning such duties does not amount to a promotion as it is well settled that the responsibilities of DDO can be given to any Officer to facilitate payment of salaries and other service benefits to the staff on a regular basis. These are in the nature of extra financial duties to facilitate payments of money. The extra payment would not translate in increasing salary in the last pay drawn certificate. Therefore, the prayer for enhancing pension by adding extra payment for extra work towards pension is wholly misconceived.”

24. In the cases before us, it is an admitted position that none of these Petitioners were promoted. It was pursuant to the advertisement published by the Government of India calling for Applications from Employees who would volunteer to discharge functions as CVO with a different bank, that the Petitioners were sent on deputation. The Petitioners before us are some such candidates who volunteered to accept the deputation assignment to SUNNY THOTE 21 of 27 work as CVO with different banks. They had the option of drawing 15% extra wages from the Parent Bank or draw the said amount with perquisites from the Loanee Bank. Each of them was aware that he could continue as CVO on deputation for a period of three years or till his superannuation, whichever would occur earlier. In some cases, after the period of three years was over, the Petitioners sought extension and with the concurrence of the Central Government, the extension was granted on request.

25. Regulation 35 of the 1995 Regulations (amended up to

2024) defines amount of pension to mean the amount of basic pension calculated at 50% of the average emoluments. Average emoluments is defined under Regulation 2(d), meaning the average of the pay drawn by an Employee during the last 10 months of his service in the bank. Regulation 2(e) defines bank to mean the Parent Bank.

26. The communication dated 27th November, 1998 (portion reproduced above in Paragraph No.15) indicates that Rule 33(note 7) of the CCS Pension Rules prescribes that the substantive pay that an officer would have drawn in the Parent Bank, but for his SUNNY THOTE 22 of 27 deputation, be taken as the pay for calculating average emoluments for the purpose of pensionary benefits and not the pay actually drawn by the officer in the higher scale in the Loanee Organization.

27. In Ratilal B. Soni and Others V/s. State of Gujarat and Others, AIR 1990 SC 1132, a Circle Inspector in the State Service was sent on deputation and was later reverted back to his parent cadre in the Panchayat Service. He challenged the action of bringing him back from deputation to his parent cadre. It was held that the Appellant being on deputation, could be reverted to the parent cadre and he did not get any right to be absorbed on the deputation post.

28. In Puranjit Singh V/s. Union Territory of Chandigarh and Others, 1994 Supp (3) SCC 471, it was held that when a deputationist was repatriated, he could not claim promotion in the parent department on the basis of officiating on a higher post in the borrowing organization.

29. In Umapati Choudhary V/s. State of Bihar and Others, AIR 1999 SC 1948, the Hon’ble Supreme Court dealt with the aspect of what would deputation amount to and concluded in Paragraph SUNNY THOTE 23 of 27 No.9, as under:- “9. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled. The University, the parent department or lending authority, the Board, the borrowing authority and the appellant the deputationist, had all given their consent for deputation of the appellant and for his permanent absorption in the establishment of the borrowing authority. There is no material to show that the deputation of the appellant was not in public interest or it was vitiated by favouritism or mala fide. The learned single Judge in the previous writ petition had neither quashed the deputation order nor issued any direction for its termination. Indeed the learned single Judge had dismissed the writ petition. No material has been placed before us to show that between November 1987 when the Judgment of the single Judge was rendered and December 1991 when the Division Bench disposed of the writ petition filed by the appellant the petitioners of the previous case had raised any grievance or made any complaint regarding noncompliance of the directions made in the judgment of the learned single Judge. In these circumstances the Division Bench was clearly in error in declining to grant relief to the appellant. Further, the appellant has, in the meantime, retired from service, and therefore, the decision in the case is relevant only for the purpose SUNNY THOTE 24 of 27 of calculating his retiral benefits.”

30. In U.K. Walia V/s. Punjab National Bank and others, (2012) SCC OnLine P&H 14501, the Punjab and Haryana High Court dealt with a claim of a Chief Manager from the Punjab National Bank praying for re-fixation of pension on the ground that he was sent on deputation as General Manager with the Punjab Gramin Bank. He desired that the deputation allowance of the next higher grade, being paid to him during his deputation, would mean that his salary was re-fixed. He relied on the same regulations, Clauses 2(d), 2(e), 35 and 38 of the Punjab National Bank (Employees’) Pension Regulations, 1995 and prayed that the average emoluments for a period of 10 months preceding his retirement would include the deputation allowance.

31. The said claim was negated with the following conclusions:- “From a perusal of the communication, Annexure P-1, which provides for incentives for postings in Regional Rural Banks it is evident that payment of salary in a grade higher than the entitlement of an employee while serving in the bank was temporary. It was limited to the period of deputation, specifically providing therein that it will not confer any right on him. Further clause 2(d) of the Pension Regulations provides that average SUNNY THOTE 25 of 27 emoluments are the average of the pay drawn by an employee during the last ten months in the bank. The bank has been defined to be Punjab National Bank. In nine out of last ten months of his service before retirement, the petitioner was not serving in the Punjab National Bank. He had been sent on deputation to Punjab Gramin Bank where as an incentive he was paid higher pay. As the regulations were not clear on the issue regarding determination of pension in a case where an employee was getting higher pay while on deputation, issue was clarified vide circular dated 11.1.1999. It is specifically mentioned in the aforesaid circular that the average emoluments in such circumstances would mean the pay which an employee of the bank would have drawn in the parent bank but for his deputation. It has further been mentioned in the aforesaid circular that the same has been issued in terms of the advise of the Government of India, Ministry of Finance (Banking Division). In these circumstances, it cannot be said that the circular runs contrary to the provisions of the Pension Regulations rather it is supplemental. It only clarifies a point which has not been dealt with in the Pension Regulations. It is not in dispute in the present case that the pension of the petitioner has been calculated in terms of the salary, the petitioner would have drawn in the parent bank namely Punjab National Bank. The petitioner cannot be given any benefit of the higher grade given to him as incentive while on deputation with Punjab Gramin Bank. For the reasons mentioned above, I do not find any merit in the present writ petition. Accordingly, the same is dismissed.”

32. In view of the above, we do not find any error SUNNY THOTE 26 of 27 committed by the Respondent/Parent Banks in calculating the monthly pension. These Writ Petitions are, therefore, disposed off. Rule is discharged.

33. The learned Advocates for the Parent Banks had made a submission that all the provident fund accumulations, inclusive of the subscription on the 15% deputation allowance, if not paid, would be paid to the Petitioners. They also stated that the portions of contributions on the 15% deputation allowance, which were deposited in their pension accounts, would be returned to the Petitioners. We direct that all these amounts be returned to the Petitioners, with statutory interest payable from the dates of their retirement, within a period of 60 days from today. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.) SUNNY THOTE 27 of 27