S. Parameswara Prasad v. State of Kerala and Others (W.P.(C).Nos. 10532 & 14374 of 2015)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939** **WP(C).No. 10532 of 2015** **-----------------------** ## **PETITIONER** ## **----------** **S.PARAMESWARA PRASAD,AGED 55 YEARS, S/O.P.SUKUMARAN NAIR, RETIRED TEMPORARY JUDICIAL FIRST CLASS MAGISTRATE-II, KOCHI, RESIDING AT KOCHUMADOM, MUNDANCAVU, CHENGANNUR, ALAPPUZHA DISTRICT, PIN - 689 121.** **BY ADVS.SRI.S.JAYAKRISHNAN SRI.S.SUBHASH CHAND** ## **RESPONDENT(S):** - **-------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **2. THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM, PIN - 695 035.** ## **3. THE REGISTRAR,** **SUBORDINATE JUDICIARY, HIGH COURT OF KERALA, ERNAKULAM,PIN - 682 031.** **4. THE DISTRICT JUDGE, DISTRICT COURT, ALAPPUZHA, PIN - 688 001.** **5. SRI.PRASUN MOHAN, MUNSIFF, MAVELIKARA, PIN - 690 101.** **R1,R2 BY GOVERNMENT PLEADER SRI RON BASTIAN R3 TO R5 BY ADV. SRI.ELVIN PETER P.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **WP(C).No. 10532 of 2015 (R) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **EXT.P1: TRUE COPY OF ORDER NO. B1-57/2012 DATED 12/10/2012 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P2: TRUE COPY OF APPLICATION DATED 19/02/2014 FOR VOLUNTARY RETIREMENT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT THROUGH THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM.** - **EXT.P3: TRUE COPY OF ORDER NO. B1-1940/2009 DATED 31/09/2009 THE 3RD RESPONDENT.** - **EXT.P4: TRUE COPY OF OFFICIAL MEMORANDUM NO. B1-1446/2014 (1) DATED 18/03/2014 ISSUED BY THIS HONOURABLE COURT.** - **EXT.P5: TRUE COPY OF ORDER NO. C-1826/2014/S1 DATED 26/03/2014 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXT.P6: TRUE COPY OF ORDER NO. 1446/2014 DATED 29/03/2014 THE 3RD RESPONDENT.** - **EXT.P7: TRUE COPY OF JUDGMENT IN WPC NO. 21382 OF 2009 DATED 11/04/2011 OF THIS HON'BLE COURT.** - **EXT.P8: TRUE COPY OF ORDER NO. M/DIS 687/2014 DATED 21/07/2014 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** - **EXT.P9: TRUE COPY OF ORDER NO. C-6778/2014 DATED 07/08/2014 ISSUED BY THE 4TH RESPONDENT.** - **EXT.P10: TRUE COPY OF THE PENSION SANCTION ORDERS ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXT.P11: TRUE COPY OF ORDER NO. 216/2015 DATED 10/03/2015 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** - **EXT P13: A TRUE PHOTOCOPY OF THE OFFICIAL MEMORANDUM DATED 31.1.2009 OF HIGH COURT OFKERALA.** - **EXT P14: A TRUE PHOTOCOPY OF THE JUDGMENT IN WPC 36930/2016 OF THIS HON'BLE COURT DATED 14.12.2016.** ## **RESPONDENTS EXHIBITS:** ## **---------------------** - **R3(A) TRUE COPY OF ORDER NO 1826/2014 DATED 26.3.2011 OF THE DISTRICT COURT, ALAPPUZHA.** - **R3(B) NO.P.R.511422569/P-3/4 DATED 2.5.2014 OF THE ACCOUNTANT GENERAL (A&E) KERALA.** - **R3(C) TRUE COPY OF ORDER NO C-6778/2014 DATED 7.8.2014 OF THE DISTRICT COURT, ALAPPUZHA.** - **R3(D) TRUE COPY OF VERIFICATION REPORT DATED 18.9.2015 OF THE ACCOUNT GENERAL(A&E) KERALA.** **WP(C).No. 10532 of 2015 (R)** **---------------------------** **R3(E) TRUE COPY OF VERIFICATION REPORT NO P.R.2101421287/P/3/4/1515244421 DATED 29.1.2015 OF THE ACCOUNT GENERAL.** **R3(F) TRUE COPY OF LETTER NO C.1072/2015 DATED 12.3.2015 OF THE DISTRICT COURT, ALAPPUZHA.** **/TRUE COPY/** **K.V. P.S.TO JUDGE** **5.03.2018** ## **P.V.ASHA J.** **-----------------------------------W.P.(C).Nos. 10532 & 14374 of 2015 -------------------------------------** Dated this the 12[th] day of February, 2018 ## **JUDGMENT** ## W.P.(C).No.14374 of 2015 The petitioner, who retired from service on 31.03.2014, has filed this writ petition challenging Ext.P5 order to the extent it directed his repatriation as Junior Superintendent and thereby denied him permission for voluntary retirement from the post of Temporary Judicial First Class Magistrate. He is also claiming his pensionary benefits on the basis of the last pay drawn in the post of Temporary Munsiff- Magistrate. 2. The petitioner joined the Civil Judicial Department as Lower Division Clerk on 04.11.1986. While he was working as a Junior Superintendent in the Additional District Court, Mavelikkara, he was W.P.(C).Nos. 10532 & 14374 of 2015 2 selected as Temporary Munsiff-Magistrate as per Ext.P1 order dated 12.10.2012 along with 31 others on being successful in the process of selection. Petitioner accordingly joined as Judicial Magistrate of First Class-II, Kochi w.e.f. 29.10.2012. While so, he submitted Ext.P2 application for voluntary retirement on 19.02.2014. Petitioner submits that he had submitted the said application seeing that one Mr.N.K.Prakasan, who was also appointed as Temporary Judicial Magistrate of First Class, Kasaragod in similar circumstances while he was working as Lower Division Clerk in Sub Court, Cherthala, was allowed to retire from service voluntarily w.e.f. 31.01.2009 as per Ext.P3 order. As per Ext.P4 order issued on 18.03.2014 the High Court allowed the application of petitioner allowing voluntary retirement of petitioner with effect from 31.03.2014. In Ext.P4 order, it was stated that clarification in the matter of fixation of pension or any other connected matter can be obtained 3 W.P.(C).Nos. 10532 & 14374 of 2015 from Accountant General. 3. On the basis of Ext.P4 order the District Judge, Alappuzha granted permission to petitioner to retire on 31.03.2014. Thereafter the Registrar (Subordinate Judiciary)-the 3[rd] respondent issued Ext.P5 order dated 29.03.2014 repatriating the petitioner to his parent cadre of Junior Superintendent in the Kerala Judicial Ministerial Subordinate Service in the Civil wing of Alappuzha District. Petitioner thereupon joined as Junior Superintendent and retired from service on 31.03.2014 as Junior Superintendent. 4. The District Judge had thereafter addressed the Accountant General seeking clarification as to the fixation of pension in the case of petitioner, as petitioner had worked as Munsiff-Magistrate for the last 9 months and 29 days and the last one day he worked as Junior Superintendent, which were in different pay scales. The Accountant General W.P.(C).Nos. 10532 & 14374 of 2015 4 thereafter as per Ext.P11 proceedings dated 10.03.2015, admitted his pensionary benefits reckoning his pay for 9 months 29 days in the scale of pay in the post of Munsiff-Magistrate and one day in scale of pay in the post of Junior Superintendent. However, as per Ext.P11(a) order issued on 29.01.2015, Accountant General revised the pensionary benefits fixing the pension at Rs.13,412/- reckoning the pay drawn by him as Junior Superintendent and disregarding his pay as Munsiff-Magistrate. Thereafter, as per Ext.P12 order dated 23.04.2015 (In W.P.(C).No.14374/2015), the Accountant General issued a revised orders fixing the pensionary benefits at the rate of Rs.10,670/- from 01.04.2014, reckoning his pay as Junior Superintendent. This writ petition was filed in the above circumstances. 5. Respondents have filed counter affidavit stating that petitioner who retired from service after repatriation to his parent cadre, while working as W.P.(C).Nos. 10532 & 14374 of 2015 5 Junior Superintendent, cannot claim benefits on par with those who retired while working as Munsiff Magistrates, without repatriation and that judgments of this Court relied on by him are not applicable in his case, as the petitioners in those cases retired while working as temporary Munsiff-Magistrates/ Judicial First Class Magistrates, though they were also appointed temporarily on deputation basis; in Ext.P3 also, Sri.Prakashan was not repatriated to the parent department at the time of his retirement. Therefore, it was stated that the orders fixing his pension are in accordance with law. 6. In the counter affidavit of the first respondent, it is stated that petitioner's pay was fixed at Rs.27,700/- on his appointment as Judicial First Class Magistrate II, Kochi and as on 01.10.2013, it was fixed at Rs.28,470/-. The pensionary benefits were initially admitted on the basis of pay of Munsiff Magistrate erroneously. It was corrected thereafter W.P.(C).Nos. 10532 & 14374 of 2015 6 reckoning his pay as Junior Superintendent and Accountant General issued revised pension order on 23.04.2015, when it was realised that the petitioner retired from the post of Junior Superintendent, with direction to recover the excess drawn. The petitioner has challenged Ext.P5 order, also by which he was reposted as Junior Superintendent in his parent department/section, while allowing his application for voluntary retirement. 7. Heard the learned Counsel on either side. 8. Though petitioner amended the writ petition challenging Ext.P5 order to the extent it directed his repatriation while permitting voluntary retirement, the pleadings on record of the respondents are silent on this issue. No provision of law is pointed out by any of the respondents, which insists repatriation to parent department for voluntary retirement. Petitioner has stated that he submitted the application for voluntary retirement since the very W.P.(C).Nos. 10532 & 14374 of 2015 7 same respondents had, by Ext P3 order allowed one Sri.Prakashan to retire from the post of Judicial first class Magistrate, on similar temporary appointment, on his deputation from the post of Lower Division Clerk. On this contention also, there is no answer for the respondents. Moreover, there is no provision in the rules which provides that voluntary retirement can be allowed only after repatriation. Therefore, when the petitioner requested for voluntary retirement, the respondents ought to have allowed him to retire him from the post which he was holding at the relevant time. There is no reason to adopt a different yardstick in the case of petitioner than that adopted in Ext.P3. Hence, the order Ext.P5 to the extent it directed the petitioner to join the post of Junior Superintendent is illegal. Petitioner should have been allowed to retire from service from the post of First Class Judicial Magistrate on 31.03.2014. W.P.(C).Nos. 10532 & 14374 of 2015 8 9. The only reason for denying the terminal benefits reckoning the pay drawn by petitioner as Magistrate is the fact that petitioner retired from service after repatriation to the post of Junior Superintendent. His pensionary benefits were calculated on the basis of the pay drawn by him as Junior Superintendent - the post from which petitioner retired from service. Now, it is found that the repatriation of petitioner to the post of Junior Superintendent is illegal, petitioner should be deemed to have retired from service while working as First Class Judicial Magistrate. The normal consequence of such a declaration would be to fix the terminal benefits of the petitioner based on the pay drawn by him as First Class Judicial Magistrate. 10. The only reason stated by the respondents to distinguish the case of petitioner from the petitioners in the Writ petitions leading to Exts.P6 and P7 judgments are that they retired without W.P.(C).Nos. 10532 & 14374 of 2015 9 repatriation. In this context it is also relevant to note that the respondents had in certain casses raised objections to fix the pensionary benefits of persons like petitioners in the judgments of this Court in W.P.(C) No.21382/2009, W.P.(C) No.32274/2009 (Exts.P6 and P7) and in W.P.(C) No.24248/2009, on the ground that they are entitled to get their pensionary benefits fixed only with reference to the pay drawn by them in the respective posts which they were holding in their parent department, as their appointment as Munsiff-Magistrates were temporary. This court has in the judgment in **State of Kerala v. Suresh Bose: 2017(3)KHC 999** held that they are entitled to get their pensionary benefits fixed on the basis of the pay drawn by them on such temporary appointments in the post of Munsiff-Magistrates, etc. 11. In view of the circumstances, Ext.P5 order which directs repatriation of petitioner is set aside. Petitioner shall be deemed to have retired from W.P.(C).Nos. 10532 & 14374 of 2015 10 service from the post of Judicial First Class Magistrate and he shall be entitled to all pensionary benefits reckoning the pay drawn by him in that post. Accordingly, there shall be a direction to the respondents to re-fix the pensionary benefits due to the petitioner by reckoning his pay in the post of Judicial First Class Magistrate and to grant all consequential benefits within a period of 'three months'. It is pointed out that, on the basis of interim order passed by this Court, petitioner has been paid the admitted pensionary benefits and leave surrender. On the basis of re-fixation of pension as directed above, the arrears due to the petitioner shall be disbursed within a period of 'three months' from the date of receipt of the copy of this judgment. Ext.P12 shall be revised accordingly. W.P.(C) No.10532 of 2015 The grievance of petitioner in this writ petition is regarding payment of benefits towards 11 W.P.(C).Nos. 10532 & 14374 of 2015 terminal surrender of earned leave. It is submitted by both sides that the admitted benefits are already paid. In case the petitioner is eligible for any further benefits, based on the directions in the judgment in W.P.(C) No.14374 of 2015, the arrears due to him shall be disbursed within a period of 'three months' as already directed. Therefore, this Writ petition is allowed. Sd/- **P.V.ASHA, JUDGE.** ww