Somnath Ayyar, J.
1. The petitioner before us who was an employee of the Government in the State Accounts Department was deputed to work as Financial Assistant to the City Improvement Trust Board established under the provisions of the Bangalore City Improvement Trust Board Act. When he was so deputed to the trust board, he was an officiating Assistant Controller. After he was so deputed by a notification made by the Controller of the State Accounts Department on 15 September 1956, a further notification was issued by the Government on 4 October 1957, according sanction for the payment to the petitioner of a special pay of Rs. 50 a month during the period he was holding the post of the Financial Assistant to the City Improvement Trust Board.
2. When he was working as the Financial Assistant in that board, the petitioner retired on 25 December 1959. When his pension was determined, the authority which determined the pension refused to take into account the special pay which was sanctioned to the petitioner as part of his emoluments for the purpose of rule 296 of the Mysore Civil Services Rules, 1958. In consequence, the pension payable to the petitioner has now become smaller than what it would have been if that special pay had not been excluded from consideration.
3. The petitioner accordingly asks us to issue a direction that there should be a proper determination of his pension after treating the special pay as part of his emoluments.
4. Rule 291 of the Mysore Civil Services Rules, 1958, is what regulates the computation of the pension of a civil servant like the petitioner and it will be seen from that rule that such computation is dependent on the emoluments drawn by a civil servant daring the relevant period. Rule 296 defines the term 'emoluments' to be taken into account for that purpose and the relevant part of that rule reads :
'296. The term 'emoluments' includes -
(a) pay :
* * * (e) Special pay, duty allowances or deputation (duty) allowances, and local allowances granted for the unhealthiness of a locality ...'
'Note 3. - Special pay, duty and deputation (duty) allowances shall count for purposes of pension as part of an officer's emoluments during leave if there is no doubt that he would have drawn the allowance had he remained on duty and the head of the department makes a declaration to that effect.
The provisions of this note shall apply also during leave granted under rule 110 (or corresponding rule of the old leave rules applicable to the Government servant).'
5. It is clear from the provisions of this rule that the special pay which a civil servant was receiving immediately before his retirement is also part of his emoluments for the purpose of the determination of the pension payable to him.
6. That, that is the only view possible is also clear from the definition of the expression 'pay' occurring in rule 8 (32) of the Mysore Civil Services Rules, 1958. That sub-rule defines pay as follows :
'8 (32) 'Pay' means the amount drawn monthly by a Government servant as - (i) * * * (ii) technical pay, special pay and personal pay * * *'
7. That special pay cannot be excluded from consideration in the determination of the pension is also clear from note 3 to Clause (e) of rule 296. According to that note, special pay must be regarded as forming part of a civil servant's emoluments oven in cases in which that Government servant did not draw special pay when he was on leave if there was no doubt that he would have drawn that special pay had he remained on duty and the head of the department makes a declaration to that effect. Although in the latter part of that note there is reference only to 'allowance,' it is clear that, that allowance also has reference to the special pay to which the earlier part of that note refers.
8. If therefore a civil servant was entitled to draw a special pay and If that special pay forms part of his emoluments for the purpose of rule 291 even in cases in which he had not drawn that special pay because he was on leave if there was no doubt that he would have drawn it if he had not been on leave, it would be very incongruous to hold that a civil servant who has indeed and in fact drawn that special pay cannot ask that special pay to be taken into consideration for the computation of his pension. There can thus be no doubt that the special pay which the petitioner in the case was receiving was Part of his emoluments and the authority which determined the pension payable to him could not have refused to treat that special pay as part of his emoluments.
9. In that view of the matter, as pointed out by this Court in Marulsiddiah v. Government of Mysore [Writ Petition No. 465 of 1961], it becomes immaterial whether that special pay was received by the petitioner immediately before his retirement from Government or whether it was the trust board that made the payment of that special pay. So long as that special pay was what was sanctioned by the Government as it indeed did by its order made on 4 October 1957, it becomes part of the emoluments of the petitioner within the meaning of that expression occurring in rule 296 of the Mysore Civil Rules, 1958.
10. In the view that we take, this writ petition succeeds. We accordingly issue a direction that the petitioner's pension and his death-cum-retirement-gratuity shall be determined after taking into account the special pay of Rs. 50 which was sanctioned to him by the Government order of 4 October 1957.
11. In the circumstances of the case, we make no order as to costs.