S. C. Agrawal, J. - (1.) These appeals and special leave petitions filed by the Union of India and the Railway Administration involve the question regarding validity of the Notifications Nos. G.S.R. 1143(E) and G.S.R. 1144(E), dated December 5, 1988 issued in exercise of the power conferred on the President of India under the Proviso to Article 309 of the Constitution whereby Rule 2544 of the Indian Railway Establishment Code, Volume II (Fifth Reprint) has been amended with retrospective effect. By Notification No. G.S.R. 1143(E) the said rule was amended with effect from January 1, 1973 and by Notification No. G.S.R. 1144(E) the amendment was made with effect from April 1, 1979.
(2.) In Railways there are certain employees such as Drivers, Guards, Shunters, etc., who are connected with the movement of trains and are categorised as "running staff". In addition to the pay the running staff are entitled to payment of Running Allowance. Under the relevant rules computation of pension after retirement is made on the basis of average emoluments and a part of the Running Allowance is included in average emoluments. Provision in this regard is contained in clause (g) of Rule 2544 of the Indian Railway Establishment Code. Prior to its amendment by the impugned notifications Rule 2544 provided as follows:- "Rule 2544 (C.S.R. 486) - Emoluments and Average Emoluments:The term "Emoluments", used in these Rules, means the emoluments which the Officer was receiving immediately before the retirement and includes:- (a) pay other than that drawn in tenure post; (b) Personal allowance, which is granted (i) in lieu of loss of substantive pay in respect of a permanent post other than a tenure post, or (ii) with the specific sanction of the Government of India, for any other personal consideration. Note:Personal pay granted in lieu of loss of substantive pay in respect of a permanent post other than a tenure post shall be treated as personal allowance for the purpose of this article. Personal pay granted on any other personal considerations shall not be treated as personal allowance unless otherwise directed by the President; (c) fees or commission if they are the authorised emoluments of an appointment, and are in addition to pay. In this case "Emoluments" means the average earnings for the last six months of service; (d) acting allowance of an Officer without a substantive appointment if the acting service counts under Rule 2409 (c.s.r. 371), and allowances drawn by an Officer appointed provisionally substantively or appointed substantively pro tempore or in an officiating capacity to an office which is substantively vacant and on which no Officer has a lien or to an Office temporarily vacant in consequence of the absence of the permanent incumbent on leave without allowances or on transfer to foreign service; (e) deputation (duty) allowances; (f) duty allowances (special pay); and (g) (i) For the purpose of calculation of average emoluments:Actual amount of running allowances drawn by the Railway servant during the month limited to a maximum of 75% of the other emoluments reckoned in terms of (a) to (f) above. (ii) For the purpose of gratuity and/or death-cum-retirement gratuity:The monthly average of running allowance drawn during the three hundred and sixty five days of running duty immediately preceding the date of quitting service limited to 75% of the monthly average of the other emoluments reckoned in terms of items (a) to (f) above drawn during the same period. Note:In the case of an Officer with a substantive appointment who officiates in another appointment or holds a temporary appointment, "Emoluments" means: (a) the emoluments which would be taken into account under this Rule in respect of the appointment in which he officiates or of the temporary appointments, as the case may be, or (b) the emoluments which would have been taken into account under this Rule had he remained in this substantive appointment whichever are more favourable to him."
(3.) On the basis of the recommendations of the Third Pay Commission the pay scales of the staff in the Railways were revised by the Railway Services (Revised Pay) Rules, 1973 (hereinafter referred to as the 1973 Rules) notified vide notification dated December 7, 1973 which came into force on January 1, 1973. With regard to provisional payment of certain allowances in conjunction with pay fixed under the 1973 Rules, the Railway Board by their letter dated January 21, 1974 intimated that the question of revision of rules for regularisation of various allowances consequent upon the introduction of the revised pay-scales under the 1973 Rules was under the consideration of the Board and pending final decision thereon, the Board had decided as under:- "(i) Treatment of Running Allowance for various purposes in case of Running Staff. The existing quantum of Running Allowance based on the prevailing percentages laid down for various purposes with reference to the pay of the Running Staff in Authorised Scales of pay may be allowed to continue." ;