D. K. Kapur, J. (Oral.)

( 1 ) A show cause notice was issued to the respondents to which a reply was field. On 4th November, 1981, we directed that the pleadings should be completed and the counsel also agreed that the petition should be decided, if possible) at the adjourned hearing, particularly as it was a pension case. This is how we come to hear this petition.

( 2 ). We issue rule D. B. , and proceed now to decide the petition under Article 226 of the Constitution.

( 3 ) THE petitioner joined the Customs and Central Excise Service as an Inspector and later became a Superintendent. He was transferred as Excise Officer on deputation to M/s. Heavy Electricals (India) Ltd. , Bhopal, now known as M/s. Bharat Heavy Electricals Ltd. While serving at Bhopal on deputation, the petitioner was drawing his salary and a Deputation (Duty) Allowance calculated at 20% of his basic pay. After three years of service at Bhopal, he was permanently transferred to M/s Bharat Heavy Electricals Ltd. , and was deemed to have retired from Government service on 6th July, 1976. At that stage, the petitioner became entitled to pro-rata pension and death-cum-retirement gratuity as payable under the Central Civil Services (Pension) Rules, 1972.

( 4 ) THE pension was initially calculated at Rs. 396. 00 per month, but the petitioner claimed that the computation was defective in as much as the emoluments he was drawing consisted of his basic pay and his special pay, being the Deputation (Duty) Allowance he was drawing. This representation was made on 9th March) 1979. The petitioner s claim was accepted and a Revised Pension Payment Order was received by him which sanctioned a pension of Rs. 475. 00 per month. The order also stated that Rs. 320. 00 per month would be the family pension payable to Shrimati Shanti Devi in caswÆ’e the Government servant concerned died within a specified period, and later it would Rs. 160. 00 per month till her death or re-marriage.

( 5 ) THE petitioner w apparenty aggrieved on account of certain deductions made from the actual payment received by him amounting to Rs. 2,304. 00 made towards certain payments allegedly due from him. These representation resulted in the restoration of the deduction, but the pension wau® reduced to Rs. 396. 00 per month. The petitioner being aggrieved by this order refiling his pension at Rs. 396. 00 per month in place of the revised pension of Rs. 475. 00 instituted this petition.

( 6 ) IN the counter-affidavit filed on behall of the respondents, it was claimed that there had been a mistake in the fixation of pension at Rs. 475. 00 which was detected and accordingly the pension was refixed at Rs. 396. 00.

( 7 ) WE are concerned in this petition with the correctness of the rival contentions.

( 8 ) LEARNED counsel for the petitioner urges- (a) that the pension should be Rs. 475. 00 and not Rs. 396. 00 monthly, and also urges that even if the pension has been wrongly fixed at Rs. 475. 00 it cannot be revised to the disadvantage of the petitioner.

( 9 ) AS both these points arc of some importance to pensioners generally, we think that some analysis of the same is necessary.

( 10 ) THE first point is what is the correct pension of the petitioner in the circumstances of this case. It was urged that the pay being received by the petitioner at the time he was absorbed in M/s. Bharat Heavey Electricals Ltd. , has to be determined with reference to Fundamental Rule 9 (21) which defines pav to mean the pay plus special pay, personal pay and any other emoluments which may be classsfied pay by the President. Then reference was invited to Fundamrntal Rule 9 (25) which defines special pay as an addition in the nature of pay in the emoluments of a Government servant granted in consideration of the specially arduous nature of the duties or some specific work of responsibility and includes non-practising allowances payable to doctors in lieu of private practice. It was urged that deputation (duty) allowance

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