M.P. Thakkar, J.
1. Believe it or not, it is seriously contended that additional payment by way of special pay made to a Govt. Servant for the burden of additional work imposed on him by the State Government will not qualify for computation of his pension merely because the Government secures reimbursement from a statutory Corporation for such additional payment. And that is why a question pertaining to fixation of the pension payable to a Judge of the Labour Court who retired on July 30, 1969 remained unresolved during his lifetime (he died on June 15, 1975) and is being now resolved in the course of the present petition under Article 226 of the Constitution of India instituted by the heirs and the legal representatives of the said Official.
2. The question is whether in making computation of the pension payable to the official concerned, special pay paid to him at the rate of Rs. 100/- per month from June 1, 1967 till March 31, 1970 in connection with the functions entrusted to him as a Judge of the Employees' State Insurance Court constituted under the Employees' State Insurance Act of 1948 should be included. The respondents contend that it should be included. The respondents resist the claim on the ground that the Accounts Officer of the Officer of the Accountant General of the Gujarat at Ahmedabad has expressed the opinion that it cannot be so included for reasons mentioned in Annexure 'A' dated October 24, 1972. The communication in question in so far as material reads as under:
With reference to your office endorsement No. GA4/21AJ/0.7(1) 13402 dated 13-7-72 on the subject cited above, 1 am to state that Shri Nagarshna has been sanctioned special pay of Rs. 100/- w.e.f. 1-6-67 to 31-3-70 under Govt. G.R. No. SLA-1068-28822(72)-M dated 30-7-72 and he has requested to revise his pension/DCRG. It is seen from the G.R. ibid that special pay is paid initially by Govt, and reimbursable by Employees State Insurance Corporation. Subsequently thus the liability for special pay is not that of Government. It, therefore appears that pension/DCRG would not require any revision on account of grant of special pay for his additional duty of corporate body. No action is, therefore, being taken by us now.
some facts are not in dispute. The official concerned was a Judge of the Labour Court at the material time from June 1, 1967 to March 31, 1970. It is also not in dispute that as per Govt Resolution dated June 30, 1972 adverted to in Annexure 'A' he was paid a monthly sum of Rs. 100/- by the State Government in connection with his appointment as a Judge of the Employees' State Insurance Court. It is also not in dispute that in respect of the payment made to the Official concerned the State Government was reimbursed by Employees' State Insurance Corporation. The question is whether in view of these facts and circumstances the Official concerned was entitled to have the special pay paid to him included for the purpose of computation of his pension in the context of the relevant rules. The rule governing the case of the Official concerned is rule 46-A of the revised Pension Rules of 1950. The said rule which is printed at page 430 of the Bombay Civil Services Rules, Volume I, as adopted by the Government of Gujarat in its First Edition (Second Reprint) may be quoted in so far as material:
46-A. In respect of a Government servant who having elected to be governed by these rules and retires on or after 1st April, 1966. 'Pensionable Pay' means the average pay earned by Government servant during the last thirty six months immediately preceding the date of relinquishment of office. For the purpose of this definition 'Pay means the amount drawn monthly by a Government servant as:
x x x x x(ii) special pay including non-practising allowance. x x x x x
The expression 'special pay' has not been defined in the Pension Rules. Since the payment in question is made by the State Government, the Bombay Civil Services Rules will have to be consulted in order to find out the meaning and content of the expression 'special pay'. The dictionary contained in rule 9 forming a part of Chapter II entitled 'definitions' reveals that the expression in question is defined as under:
9(49) Special pay means an addition, of the nature of pay, to the emoluments of a post or of a Government servant granted in consideration of-
(a) the specially arduous nature of the duties; or
(b) a specific addition to the work or responsibility; or
For the present purposes spotlight requires to be focussed on Clause (b). A payment would squarely fall within the ambit of this clause if it is established that:
(1) An additional amount partaking of the nature of pay was granted to a Government servant over and above his emoluments.
(2) Such payment was made by the State Government who made him to regular payment referable to his post.
(3) It was paid in connection with some specific addition to the burden of work or responsibility imposed by the State.
The real test from the standpoint of the controversy presently raised emerges if the following questions are posed and answered:
(1) It is an additional burden imposed over and above the normal duties attached to the post held by the Govt, servant concerned?
(2) Who has directed the Govt, servant concerned to discharge the said additional burden?
(3) Has the initial payment of the additional remuneration been made by the State Government?
3. In the case giving rise to the present petition the official concerned was required by the State to discharge the function as a Judge of the Employees' State Insurance Court as per the relevant Government Resolution and the payment to him of special pay was made in connection therewith. The specific addition to the work or responsibility of the official concerned was made in pursuance to the order passed by the State Government. Till now he was discharging his functions as a Judge of the Labour Court only. Discharging functions as a Judge of the Employees' State Insurance court was no part of his duties. The additional work or additional responsibility in connection with the discharge of functions as an Employees' State Insurance Court was imposed on him on account of the order passed by the State Government as per the aforesaid resolution. There was a specific addition to the work or responsibility discharged by the Official concerned. That work or responsibility was entrusted to the Official concerned by the State Government. And in consideration of the addition to his work or responsibility the State Government directed payment of an additional sum of Rs. 100/- per month by way of additional emoluments by the State Government. Under the circumstances, all the ingredients of special pay as defined by Rule 9(49) are satisfied. Surely the Employees' State Insurance Corporation could not have compelled a judge of the Labour Court to discharge functions of a Judge of the Employees' State Insurance Court. The Official concerned was only bound to discharge functions as a Judge of the Labour Court. The additional work and responsibility was entrusted to him by the state Government who had employed the official concerned. The additional burden could not have been imposed by the Corporation. The Official concerned was obliged to discharge duties as a Judge of the Employees' State Insurance Court as the additional work or responsibility in that behalf was entrusted to him by the State Government. And it was in this connection that an additional payment was made to him by way of special pay at the rate of Rs. 100/- per month. It is, therefore, futile to contend that the payment made to the Official concerned does not fall within the definition of 'special pay' as defined by Rule 9(49). On behalf of the respondents it has been argued that the resolution concerned shows that the State had sought reimbursement from the Corporation. Whether or not the State Government sought reimbursement from the Corporation is altogether immaterial. That is a matter of internal financial arrangement between the State on one hand and the Corporation on the other. So far as the official who discharged the additional functions as a Judge of the Employees' State Insurance Court was concerned, admittedly the payment was made to him by the State Government. It would not cease to be a payment by the State Government to the Official concerned for additional work entrusted to him in connection with the additional duties if the State Government sought reimbursement from the Corporation. There is, therefore, no substance in the objection raised by the Accounts Officer as per Annexure 'A'.
4. The petition must, therefore, succeed. The respondents are directed to make computation of the pension payable to the Official concerned, namely, Shri M. N. Nagrashna on the date of his retirement by including the monthly sum of Rs. 100/- which was being paid to him by way of special pay. Computation on this basis shall be made latest by March 31, 1980 and the payment of the amount due to the petitioners by way of arrears of pension as also gratuity shall be made to the petitioners within thirty days thereof. Rule is made absolute to the aforesaid extent with costs.