High Court of KeralaSingle Judge2023-02-07Writ petition disposed of. Exts.P8 and P10 set ...

C. Suresh Kumar v. State of Kerala and Others

Case / Petition Number:W.P.(C) No.34559 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2023-02-07
Court Decision / Holding: Exts.P8 and P10 set aside. Recompute petitioner’s pension, counting Special Pay as part of Pay, and issue revised pension order within two months. The petition is disposed of with the increment claim left open.
Final Disposition: Writ petition disposed of. Exts.P8 and P10 set aside; pension recomputation to include Special Pay as Pay, with revised order due within two months; increment claim left open.

Parties to the Case

Appellants / Petitioners

C. Suresh Kumar

Respondents

State of Kerala represented by the Additional Secretary, Home Department, State Secretariat, Thiruvananthapuram
The Accountant General (A&E), Thiruvananthapuram
The Registrar (District Judiciary), High Court of Kerala, Ernakulam, Kochi-682 031
The Secretary to the Government, Department of Consumer Affairs, State Secretariat, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• T. Govindaswamy Kala
• T. Gopi Renuka
• M. R. Nishitha Balachandran

Counsels for Respondents

• K. G. Sarojini – Government Pleader
• Elvin Peter P.J.

Case Synopsis & Summary

This writ petition by C. Suresh Kumar, a retired officer who served as Bar before his appointment as Munsiff–Magistrate and later as District Judge, seeks to have certain emoluments counted for pension. He contends that his Bar service (1985–1992) should be reckoned as qualifying service for pension and that his Special Pay drawn as District Judge should be included as part of the emoluments for pension fixation. He relies on Rule 25 of KSR Part III for service reckoning and on the principle that Special Pay forms part of Pay under Rule 12(23) of Part I KSR. Ext.P8 and Ext.P10 rejected his claim; he points to this Court’s earlier decision in W.P.(C) No.36379/2017, and the Division Bench’s affirmation in W.A.No.1925/2019, which had held that Special Pay may be treated as Pay for pension purposes in a particular setting. The Government contended that the prior decision was a special case and not a general rule, and that there was no general order to reckon Special Pay for all cases. The Court examined the issue, noting the judgments Ext.P3 and Ext.P4, and ultimately held that the petitioner’s pension should be recomputed incorporating Special Pay as Pay, overruling Ext.P8 and Ext.P10 and directing a fresh pension computation within two months, while leaving the increment claim open.

Provisions of Law Cited

Rule 25, Kerala Service Rules (KSR) Part IIIRule 12(23), Part I, KSRRule 62, Part III, KSR

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that his bar service (1985–1992) should be reckoned as qualifying service for pension and that his Special Pay drawn as District Judge should be included as part of the emoluments for pension fixation, under Rule 12(23) of Part I KSR. He relies on W.P.(C) No.36379/2017 and the Division Bench decision in W.A.No.1925/2019 to support recalculation and inclusion of Special Pay. He seeks recomputation of pension and inclusion of Special Pay, with the increment claim left open.

Contentions of Respondents

Respondents submit that Ext.P3 judgment (and the related W.A.) reflect a special-case paradigm, not a general rule. They argue there is no general order to reckon Special Pay for pension; Ext.P10 advertises that such treatment is exceptional. They argue that the legal issue has been settled by Exts.P3 and P4 judgments and that any general recalculation requires a government-specific order. The matter is argued as a question of whether Special Pay can be treated as Pay in pension computation and whether Ext.P8/Ext.P10 were wrongly issued.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Regi K.S and others v. State of Kerala and others	2010 KHC 393	Positive	Cited as authority that Special Pay can be treated as Pay under Rule 12(23) of Part I KSR for pension fixation.
N.D.P.Namboodripad v. Union of India	2007 (2) KLT 248 (SC)	Positive	Cited to support the proposition that Special Pay forms part of Pay for pension computation.
W.P.(C) No.36379/2017	W.P.(C) No.36379/2017	Positive	Court previously held that Special Pay is Pay for pension, influencing current decision.
W.A.No.1925/2019	W.A.No.1925/2019	Positive	Division Bench concurred with the single judge’s view in Ext P3, aiding the present challenge.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 WP(C) NO. 34559 OF 2022** ## **PETITIONER:** **C.SURESH KUMAR AGED 63 YEARS S/O P.KUMARA MENON(LATE), PRESIDENT, CONSUMER DISPUTES REDRESSAL COMMISSION, PAINAVU P.O., IDUKKI - 685 603, PERMANENT ADDRESS: A-O, 'B' BLOCK, PENTARK APARTMENTS, POOTHOLE ROAD, THRISSUR - 680 004.** **BY ADVS. T.C.GOVINDASWAMY KALA T.GOPI RENUKA M.R. NISHITHA BALACHANDRAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL SECRETARY, HOME DEPARTMENT, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE ACCOUNTANT GENERAL (A&E), THIRUVANANTHAPURAM - 695 001.** - **3 THE REGISTRAR (DISTRICT JUDICIARY), HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682 031.** - **4 THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF CONSUMER AFFAIRS, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **BY ADVS. K.G.SAROJINI – GP. ELVIN PETER P.J.** 2 ## **W.P.(C) No.34559 of 2022** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 ## **W.P.(C) No.34559 of 2022** ## **J U D G M E N T** Dated this the 7[th] day of February, 2023 The petitioner states that Bar service rendered by the petitioner for the period between 14.12.1985 and 30.06.1992 before appointment as Munsiff-Magistrate with effect from 01.07.1992, is to be reckoned as qualifying service for pension and other service benefits, as per Rule 25 of the KSR Part-III. Similarly, the Special Pay drawn by the petitioner as District Judge is to be reckoned as part of the emoluments for calculating pension. Though the petitioner submitted an application to reckon the Special Pay as part of the pay for the purpose of calculating pension, the petitioner's claim stands rejected as per Ext.P8 communication of the Senior Accounts Officer, office of the Accountant General (A & D), Kerala and as per Ext.P10 4 ## **W.P.(C) No.34559 of 2022** communication order dated 12.10.2022 of the Additional Chief Secretary to Government. 2. The petitioner states that the claim of the petitioner as regards treating the Special Pay as part of the pay for the purpose of calculating pension, has been considered by this Court in W.P. (C) No.36379/2017. This Court held that the pension of the petitioner therein should be recalculated taking his Special Pay as part of the pay. Though Ext.P3 judgment was challenged in W.A.No. 1925/2019, a Division Bench of this Court has upheld the judgment of the Single Judge. Following Exts.P3 and P5, the petitioner's pensionary benefits are to be revised, taking into consideration of the Special Pay, contended the petitioner. 3. The Government Pleader entered appearance on behalf of respondents 1 and 2 and resisted the writ petition. The Government Pleader submitted that the pensionary benefits in respect of the petitioner in W.P.(C) No.36379/2017 was revised by 5 ## **W.P.(C) No.34559 of 2022** reckoning Special Pay as a special case for the limited purpose of complying with the judgment of the High Court. The Accountant General has decided that it shall not be treated as a precedent for admitting such claim in future. Consequently, the Government has also issued Ext.P10 communication to the respondents pointing out that the case dealt with by the High Court in Ext.P3 judgment should be treated as an exception and as a special case. On the basis of Ext.P3, the petitioner cannot make any claim. The Government Pleader urged that as per Government Order dated 23.11.2021, Government has accorded sanction to recalculate the pensionary benefits of Sri.P.Muraleedharan, the petitioner in Ext.P3 judgment as a special case and no general order from the Government has been so far issued for reckoning Special Pay for calculating the pensionary benefits. 4. The Standing Counsel representing the 3rd respondent submitted that the issue of consideration of Special Pay as part of 6 ## **W.P.(C) No.34559 of 2022** pay for the purpose of pensionary benefits has been considered by this Court in Exts.P3 and P4 judgments and the legal issue stands covered. 5. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1, 2 and 4 and the learned Standing Counsel representing the 3rd respondent. 6. The petitioner seeks to count his Special Pay as Pay for the purpose of calculation of pensionary benefits. This Court has considered the issue in W.P.(C) No.36379/2017. After referring to the judgment in **Regi K.S and others v. State of Kerala and others** [2010 KHC 393] and in **N.D.P.Namboodripad v. Union of India** [2007 (2) KLT 248 (SC)], this Court has held that Special Pay would come under the definition of Pay under Rule 12(23) of Part-I KSR and Special Pay is liable to be considered as Pay for the purpose of fixation of pension. It was 7 ## **W.P.(C) No.34559 of 2022** held that Rule 62 of Part III does not enable the addition of Dearness Allowance and Special Allowance to pay for the purpose of pension. 7. However, it is seen that this Court has held that the emoluments which form part of Pay as defined under Rule 12(23) would be liable to be taken note of in full, for fixing pension in terms of Rule 62 of Part III. Ext.P3 judgment of the learned Single Judge in W.P.(C) No.36379/2017 was subjected to a writ appeal, W.A. No.1925/2019. The Division Bench of this Court concurred with the judgment of the learned Single Judge. 9. Perusing Exts.P3 and P4 judgments of this Court, it cannot be held that those judgments are delivered, taking into consideration the petitioner in that writ petition as a special case. This Court has laid down the law in the judgment in W.A.No.1925/2019. The law so laid down by this Court is liable to be applied to the petitioner's case also. 8 ## **W.P.(C) No.34559 of 2022** 10. In view of the above, Exts.P8 and P10 orders are set aside. The respondents are directed to recompute the pension of the petitioner, taking into consideration the Special Pay also as part of Pay and pass revised order of pension in respect of the petitioner, within a period of two months. The claim raised by the petitioner for increment at the rate of 3% is left open. **==> picture [36 x 70] intentionally omitted <==** The writ petition is disposed of as above. Sd/- **N. NAGARESH JUDGE** ams 9 ## **W.P.(C) No.34559 of 2022** ## **APPENDIX OF WP(C) 34559/2022** **PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE KERALA JUDICIAL SERVICE RULES, 1991 AS PUBLISHED UNDER G.O.(P).NO.190/91/HOME DATED 31.12.1991, ISSUED BY THE GOVERNMENT OF KERALA. Exhibit P2 A TRUE COPY OF THE ORDER BEARING NO.B1(B)-5093/2020 DATED 30.10.2020 ISSUED BY THE THIRD RESPONDENT. Exhibit P3 A TRUE COPY OF THE SAID JUDGMENT W.P.(C) NO.36379/2017 DATED 28.03.2019, RENDERED BY THIS HON'BLE COURT Exhibit P4 A TRUE COPY OF THE JUDGEMENT IN WRIT APPEAL NO. 1925/2019 DATED 04.02.2021. Exhibit P5 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 05.11.2021 ADDRESSED TO THE 2ND AND 4TH RESPONDENTS. Exhibit P6 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 16.11.2021 ADDRESSED TO THE 4TH RESPONDENT. Exhibit P7 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 17.05.2022 ADDRESSED TO THE 1ST AND 2ND RESPONDENTS. Exhibit P8 A TRUE COPY OF THE ORDER BEARING NO.GE15/A/RE-EMPLOYMENT/252 DATED 28.07.2022, ISSUED BY THE 2ND RESPONDENT. Exhibit P9 A TRUE COPY OF THE REPRESENTATION DATED 04.08.2022 ADDRESSED TO THE 2ND RESPONDENT.** 10 ## **W.P.(C) No.34559 of 2022** **Exhibit P10** **A TRUE COPY OF THE ORDER BEARING NO.C3/185/2022/HOME DATED 12.10.2022, ISSUED ON BEHALF OF THE 1ST RESPONDENT.**