P. Muraleedharan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY ,THE 28TH DAY OF MARCH 2019 / 7TH CHAITHRA, 1941** ## **WP(C).No. 36379 of 2017** ## **PETITIONER/S:** **P.MURALEEDHARAN AGED 66 YEARS, RETIRED DISTRICT JUDGE, S/O R.PADMANABHAN (LATE) SABARMATHI, BANK ROAD, ANAYARA P.O., THIRUVANANTHAPURAM - 695029 MOB.9447361326** **BY ADV. SRI.V.P.PRASAD** |**RESPONDENT/S**<br>**:**|**RESPONDENT/S**<br>**:**|| |---|---|---| |1||**STATE OF KERALA,**| |||**REPRESENTED BY ITS PRINCIPAL SECRETARY,**| |||**TO DEPARTMENT OF HOME**| |||**GOVERNMENT SECRETARIAT,**| |||**THIRUVANANTHAPURAM PIN 695001**| |**2**||**ACCOUNTANT GENERAL (A&E)**| |||**INDIAN AUDIT AND ACCOUNTS DEPARTMENT**| |||**OFFICE OF THE ACCOUNTANT GENERAL (A&E)**| |||**M.G.ROAD, PB NO.5607, THIRUVANANTHAPURAM**| |||**PIN 695001**| |**3**||**HIGH COURT OF KERALA**| |||**REPRESENTED BY ITS REGISTRAR (SUBORDINATE JUDICIARY)**| |||**HIGH COURT OF KERALA,**| |||**ERNAKULAM.**| |||**BY SENIOR GOVERNMENT PLEADER SUNILKUMAR KURIAKOSE**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 36379 of 2017 2** ## **JUDGMENT** ## This writ petition is filed seeking the following prayers:- _i. Declare that the Special Pay which the petitioner was receiving immediately before his retirement is also entitled to be counted as Pay for the purpose of calculation of his pension._ _ii. Quash Exhibit P10 G.O. and Exhibit P9 letter of the 2[nd] respondent to the petitioner._ _Iii. Issue a Writ in the nature of mandamus or any other writ, order or direction, commanding Respondents 1 to 3 to recalculate and re-fix the amount of petitioner's pension taking also his Special Pay which he was receiving immediately prior to his retirement and to effect payment of the balance arrear amount together with 12% interest from the date on which it became due, within a time limit that may be fixed by this Hon'ble Court._ 2. The petitioner, who had retired on superannuation from the Kerala State Higher Judicial Service on 30.06.2011 while working in the cadre of District and Sessions Judge and holding the post of University Appellate Tribunal/Additional District Judge III, Thiruvananthapuram, has approached this Court seeking directions to the respondents to count the special pay granted to him in terms of Ext.P6 Government Order as pay for the purpose of reckoning his pension. It is stated that the petitioner's pensionary benefits had been fixed taking note of his emoluments reckoning only his basic pay and without adding the component of special pay of Rs.2500/-. It is contended that the salary and allowances payable to Judicial Officers had been revised on the recommendations of the First National Judicial ## **WP(C).No. 36379 of 2017 3** Pay Commission and orders in implementation of the recommendations of the Commission had been effected by the respective State Governments. While approving the recommendations of the Justice Shetty Commission, the Apex Court had considered the specific recommendations and had approved the same with appropriate modifications. The Apex Court had held that subject to the modifications as suggested, the Rules in force in the respective States would govern the grant of pension and other terminal benefits to the Judicial Officers as well. It is stated that by the implementation of Ext.P3 Government Order, the petitioner is entitled to draw 50% of the last pay drawn as pension. 3. By Ext.P6 order dated 31.10.2006, the Government had ordered the sanction of special allowance for extra administrative work (Special Pay) which was fixed at Rs.1000/- in respect of University Appellate Tribunal/Additional District Judge. This amount was later revised as Rs.2500/- per month. The petitioner would contend that since the pay as defined in Rule 12(23) includes special pay and personal pay as well, the special pay granted to Judicial Officers in terms of Ext.P6 was liable to be reckoned for the purpose of fixation of pension as well. By Ext.P11 proceedings dated 23.03.2010, the short fall in implementation of the recommendations of the Shetty Commission report was taken up by the Government and it was ## **WP(C).No. 36379 of 2017 4** ordered that the special allowances allowed to Judicial Officers shall be treated as special pay for all purposes. Thereafter, by Ext.P12 proceedings dated 8.6.2010, the Additional Chief Secretary in reply to a query from the Accountant General had stated that the special allowances drawn by the Judicial Officers prior to issuance of Ext.P10 have been converted to special pay which shall be counted for all purposes i.e. fixation, pension benefits etc. 4. The petitioner had submitted repeated requests for revision of his pension taking note of the provisions of Rule 12(23) of Part I KSR and granting him pension at 50% of the pay last drawn by him inclusive of special pay as well. However, the petitioner was not granted the benefit. Meanwhile, by Ext.P10 Government Order, it was ordered that the special pay for extra administrative work sanctioned as per Ext.P6 and the Government Order dated 20.05.2009 will count for all purposes except for fixation of pay and for reckoning pensionary benefits. The reasons stated in Ext.P10 from an apparent departure from the Rules are that the Accountant General had, by his letter dated 19.6.2010, intimated that at the time of fixation of pay on cadre to cadre promotion and also on fixation of pay on granting assured career progression scales of pay, reckoning of special allowances as special pay might lead to many consequences i.e. junior senior anomaly. It is also stated in Ext.P10 that the Accountant General had ## **WP(C).No. 36379 of 2017 5** also pointed out that there will arise anomaly if it is reckoned for pensionary benefits, since the junior officer drawing special pay may get higher pensionary benefits than the senior officer who does not enjoy the benefit of special pay. 5. The learned counsel for the petitioner submits that Rule 12(23) of the Rules specifically provides that the pay for the purpose of the Rules includes special pay. Rule 12(31) which defines special pay is also brought to my notice, which reads as follows:- “ _(31) Special Pay- Means an addition of the nature of pay to the emolument of a post or of an officer granted in consideration of the following:-_ _(a) where a post would call for a higher scale of pay in view of the additional and/or higher responsibilities attached to it or_ _(b) where the nature of work is specially arduous or_ _(c) where an officer has to attend to work in addition to normal duties attached to his post.”_ 6. Relying on Rule 62 of Part III KSR, it is contended that the term emoluments includes pay as defined in 12(23) of Part I KSR. 7. It is stated that in the ruling under Rule 62 of Part III KSR, it is specifically stated that the special pay admissible to persons on deputation from the state service to another state Government or to the Central Government or from one Government Department to another shall be counted as emoluments for the purpose of pension. It is therefore contended that the exclusion of special pay which the petitioner was in receipt of for calculating the pay drawn by him for ## **WP(C).No. 36379 of 2017 6** arriving at pension payable is completely illegal and unsustainable. Relying on a decision of the Division Bench of this Court in _**Regi K.S. and Others v. State of Kerala and Others [2010 KHC 393],** t_ he petitioner would contend that Ext.P10, which is only an executive order, cannot have the effect of modifying the statutory Rules framed under Article 309 of the Constitution of India and that any provision in the Government Order which runs contrary to the Rules is only liable to be ignored. It is further contended by the learned counsel for the petitioner that the Rules for reckoning the pay for fixation of pension are the service rules applicable in the State. It is stated that the provisions of Rule12 (23) and 12 (31) of Part I KSR as well as Rule 62 of Part III KSR are squarely applicable to the petitioner and in view of the clear provisions of Rules, the special pay granted to the petitioner is liable to be counted as pay for the purpose of fixing his pension. 8. A counter affidavit has been placed on record by the 1[st] respondent as also by the Accountant General. In the counter affidavit of the 1[st] respondent, it is contended that the petitioner was received special pay of Rs.2500/- immediately before his retirement. It is stated that by Ext.P11 Government Order, the special allowance already granted to the Judicial Officers, which is renamed as special pay was directed to be treated as special pay for all purposes. It is stated that the Accountant General had brought to the notice of the ## **WP(C).No. 36379 of 2017 7** Government that while fixing salary for promotion, certain discrepancies and anomalies would arise and therefore the special pay which the petitioner is receiving as Appellate Tribunal for performing additional duties cannot be considered for refixing pension. It is stated that by Ext.P10, the Government has clearly stated that special pay will count for all purposes except fixation of pay and for reckoning pensionary benefits. Referring to Rule 62 of Part III, KSR, it is contended that only those emoluments, which are specifically stated in Rule 62 are to be reckoned as emoluments for the purpose of calculation of pension. It is stated in Paragraph 7 of the counter affidavit as follows:- _“7. The Special Pay is pay given to a particular post. As per recommendation of National Judicial Pay Commission (Shetty Commission) and as per the direction of Hon'ble Supreme Court, the pay of judicial officers has been revised vide G.O.(MS) No.157/2016/Home dated 30.08.2016 and as per the above order, 50% of the last pay and rates of pension of judicial officers shall be on the rates applicable to State Government Employees. In continuation to the above order, vide Exhibit P6 Government Order, granting of perks (Special pay)- Special allowances for extra administration work is specified as Special Pay. That is renamed as Special pay vide Exhibit P11 Government Order. The above pay is not under the purview of special pay specified under KSR Part I Rule 12(31).”_ 9. The 2[nd] respondent has also placed a counter affidavit on record. The contentions in the counter affidavit are almost identical to ## **WP(C).No. 36379 of 2017 8** the contentions raised in the counter affidavit of the 1[st] respondent. It is stated that as per the clarification issued by the Government in Ext.P10, the special pay granted to the petitioner cannot be reckoned for calculation of pension. ## 10. I have considered the contentions advanced. 11. The pay is defined as per Rule 12(23) of Part I, KSR as follows: “ _(23) Pay - Means the amount drawn monthly by an officer as-_ _(i) the pay, other than Special Pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre and_ _(ii) personal pay and special pay, and_ _(iii) any other emoluments which may be specifically classed as pay by the Government.”_ 12. 'Special Pay' is defined at Sub Rule (31) of Rule 12 of Part I, KSR. The petitioner admittedly is entitled to pension at 50% of the pay as last drawn by him. Going by the clear provisions of Rule 12(23), the last pay drawn by the petitioner is his basic pay + the special pay to which he is entitled as per Ext.P6. This is the clear import of Exts.P11 and P12 orders as well. It appears that the Accountant General had raised an objection to the effect that the reckoning of the special pay granted to the Judicial Officers towards fixation of benefits at the time of cadre promotions as also towards ## **WP(C).No. 36379 of 2017 9** pensionary benefits would give rise to senior junior anomalies in the matter of fixation of pay and pension. This, according to me, is an erroneous premise. The special pay granted to an officer on account of more arduous duties attached to a post held by him is not a ground for refixation of pay on account of senior junior anomaly according to the notes and the Rulings to Rule 28 of Part I, KSR. A conscious decision has been taken by the Government in Ext.P11 to treat the special allowance granted to the Judicial Officers as per Ext.P6 as special pay. Once the allowances treated as special pay, the employees concerned would be entitled to all the consequential benefits of treating the said allowance as special pay as are provided in the Rules. An executive order in the nature of Ext.P10 cannot, by any stretch of imagination, detract from the clear provisions of the Rules as contained in Part I and Part III, of the KSR. It is to be remembered that the Rules under Part I and Part III of KSR are the Rules framed in exercise of the powers under Article 309 of the Constitution of India and are binding in nature and the executive order cannot have the effect of nullifying or detracting from such orders. 13. The decision of the Apex Court in _**N.D.P. Namboodripad v. Union of India [2007 (2) KLT 248 (SC)]**_ specifically considered the aspect whether a special allowance would form part of pay. Considering the provisions of Part I and Part III of KSR, it was ## **WP(C).No. 36379 of 2017 10** specifically held by the Apex Court that it could only be those emoluments which come under the definition of pay under Rule 12(23) of Part I KSR that would be liable to be considered as pay for the purpose of fixation of pension. It was 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. However, it is clearly 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 of pension in terms of Rule 62 of Part III. 14. In the instant case, the petitioner had admittedly been granted special pay of Rs.2500/- pursuant to Ext.P6 and the revision of the amount of special pay pursuant thereto. He was drawing the said special pay at the time of his retirement. Going by the clear provisions of Rule 12(23), the petitioner is entitled to grant of pension at 50% of the pay that he was drawing at the time of his retirement, such pay includes special pay as well. The petitioner is therefore entitled to succeed in this writ petition. The writ petition is accordingly allowed. Ext.P10 order and Ext.P9 letter of the 2[nd] respondent are set aside. There will be a direction to the respondents to recalculate and refix the petitioner's pension taking his special pay of Rs.2,500/- which was being drawn by him immediately prior to his retirement as part of his pay and to **WP(C).No. 36379 of 2017 11** disburse the arrears due to the petitioner. The re-fixation and disbursement of arrears will be completed, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No. 36379 of 2017 12** ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBITP1:- TRUE COPY OF AUTHORIZATION NO.15/B/AJ M-9/1379 DATED 28.05.2014 OF 2ND RESPONDENT (SIGNED BY SENIOR ACCOUNTS OFFICER.** **EXHIBIT P2:- TRUE COPY OF THE REVISION COMMUTATION PAYMENT ORDER DATED 19.04.2012 ISSUED BY 2ND RESPONDENT IN RESPECT OF PETITIONER (SIGNED BY SENIOR ACCOUNTS OFFICER)** - **EXHIBITP3:- TRUE COPY OF GO(MS) NO.157/2006/HOME DATED 30.08.2006.** **EXHIBITP4:- TRUE COPY OF GO(MS) NO.106/2010/HOME DATED 07.05.2010.** **EXHIBITP5:- TRUE COPY OF GO (MS) NO.236/2010/HOME DATED 02.11.2010.** **EXHIBITP5(a):- TRUE COPY OF GO (MS) NO.55/2011/HOME DATED 24.02.2011.** **EXHIBIT P6:- TRUE COPY OF GO(MS) NO.181/2006/HOME DATED 31.10.2006.** - **EXHIBIT P7:- TRUE COPY OF THE PETITIONER'S LETTER DATED 30.09.2013 TO THE 2ND RESPONDENT** - **EXHIBIT P8:- TRUE COPY OF THE PETITIONER'S LETTER DATED 24.11.2016 TO THE 2ND RESPONDENT.** **EXHIBIT P9:- TRUE COPY OF REPLY LETTER BEARING NO.GE15/A/AJ M- 9/11929 DATED 30.12.2016 OF 2ND RESPONDENT TO THE PETITIONER (SIGNED BY SENIOR ACCOUNTS OFFICER)** **EXHIBIT P10:- TRUE COPY OF GO (MS) NO.262/2010/HOME DATED 29.11.2010.** **EXHIBIT P11:- TRUE COPY OF GO (MS) NO.76/2010/HOME DATED 23.03.2010.** **WP(C).No. 36379 of 2017 13** **EXHIBIT P12:- TRUE COPY OF LETTER NO.41046/C3/2008/HOME DATED 08.06.2010 OF 1ST RESPONDENT TO 2ND RESPONDENT.** ## **RESPONDENTS EXHIBITS** ## **NIL** **// TRUE COPY //** P.A TO JUDGE