Pension is to be calculated based on the average emoluments drawn by the employee during the last ten months before retirement, and Fundamental Rule 35 is not applicable for fixation of pension.

G.S. SISTANI, J.

1. Present writ petition has been filed by the petitioner under Article 226 of the Constitution of India seeking to challenge the order dated 19.2.2016 passed by Central Administrative Tribunal (hereinafter referred to as ‘the Tribunal’) in RA No. 325/2015 in the O.A No. 1644/2012 whereby the R.A. filed by the petitioner was dismissed by the learned Tribunal.

2. The necessary facts to be noticed for disposal of the present petition are that the respondent was employed with the petitioner No. 1 and was working in substantive post of Youth Coordinator. The petitioner No. 1 has the hierarchy of promotional post starting from the post of Youth Coordinator as under:-      

3. On 04/09/1996, the respondent was promoted to the highest post as a director on ad-hoc basis vide order No. NYKS/Admn/96/322. The said post was not the immediate higher post, but to the third higher post, in the promotional order it was indicated that the pay of the respondent would be regulated in terms of FR-35 and FR-49 till the time the regular pay scale to the post of director is granted. Fundamental Rule 35 reads as under :

“F.R. 35 The Central Government may fix the pay of an officiating government servant at an amount less than that admissible under these rules”

FR 49 deals with “combination of Appointments” and its relevant part read as under:

“F.R. 49 The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under that Government. In such cases, his pay is regulated as follows:-

(i) Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinarily duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of lower post”

4. The petitioner vide office order No. NYKS/PERS:Pay/2143/99 dated 28/04/1999 fixed the pay of the respondent at Rs. 14300/- as on 14/10/1996 in the pay scale of 14300-275-18300. The respondent had drawn the said pay scale without break till the date of his retirement i.e. 30/04/2001 and at the time of retirement, the respondents basic pay was Rs. 15,900/-. The petitioner instead of releasing respondents pension as per the average emoluments drawn by him during the last ten months of service, the petitioner released the pension on the basic of Rs. 13,950/-. Being aggrieved by the action of the petitioner herein, the respondent approached the Tribunal by filing O.A., which was allowed by the learned Tribunal. Being aggrieved by the order passed by the Tribunal, the petitioner filed a writ petition being W.P(C) No. 9562/2015 before this court, vide order dated 29/11/2015 this Court permitted the petitioner to file a Review Application before the Tribunal. The petitioner filed a review application before the learned Tribunal, which stands dismissed.

5. Mr. Ramachandran, learned counsel for the petitioner, submits that the learned Tribunal has erred in holding that the review applicant has not pointed out any error apparent on the face of the record but questioned the view held by the Tribunal. If the review applicant was aggrieved by the same, then he should have approached higher judicial forum through appropriate judicial proceedings. This is not an error, which can be corrected in a review.

6. Mr. Ramachandran