Sarath Chandran K.S. v. State of Kerala & Ors. (Cont.Case (C) No.2178 of 2022 & WP(C) No.41097 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944** **CON.CASE(C) NO.2178 OF 2022** **AGAINST THE JUDGMENT DATED 04.02.2021 IN WA 1925/2019** **OF HIGH COURT OF KERALA** ## **PETITIONER/AGGRIEVED PARTY:** **SARATH CHANDRAN K.S. AGED 60 YEARS S/O KARUNAKARAN NAIR, KESAVAMANGALAM, MUTTACAUD.P.O. THIRUVANANTHAPURAM - 695523** **BY ADV.PRIYA SHANAVAS** ## **RESPONDENTS/APPELLANTS 1 & 2 IN W.A. & RESPONDENT NO.3 HEREIN:** **1 DR.V. VENU AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, THE PRINCIPAL SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001** **2 G.SUDHARMINI** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, THE ACCOUNTANT GENERAL (A&E), INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANT GENERAL (A&E), M.G.ROAD, PB NO.5607, THIRUVANANTHAPURAM - 695033** ## **3 BISHWANATH SINHA** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, THE ADDITIONAL CHIEF SECRETARY (FINANCE) FINANCE (PENSION-B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001** ## **BY SRI.ANTONY MUKKATH, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2023, ALONG WITH WP(C).41097/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MRS. JUSTICE C.S.SUDHA** **TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944** ## **WP(C) NO.41097 OF 2022** ## **PETITIONER:** **SARATHCHANDRAN K.S. AGED 60 YEARS, S/O KARUNAKARAN NAIR KESAVAMANGALAM, MUTTACAUD.P.O. THIRUVANANTHAPURAM, PIN - 695523** ## **BY ADV.PRIYA SHANAVAS** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001** - **2 THE ACCOUNTANT GENERAL (A&E), INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANTGENERAL(A&E), M.G.ROAD, PB NO.5607, THIRUVANANTHAPURAM - 695001** - **3 THE ADDITIONAL CHIEF SECRETARY (FINANCE) FINANCE (PENSION-B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001** - **4 THE ADDITIONAL CHIEF SECRETARY, HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001** **5 THE HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR (DISTRICT JUDICIARY),** Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 3 ## **HIGH COURT OF KERALA, ERNAKULAM - 682031** **BY ADVS. BY SRI.ANTONY MUKKATH, SR.GOVERNMENT PLEADER ELVIN PETER P.J., STANDING COUNSEL FOR R-5 ADVOCATE GENERAL OFFICE KERALA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2023, ALONG WITH Con.Case(C).2178/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 1 # **ALEXANDER THOMAS & C.S.SUDHA, JJ. =================================** # **Cont.Case (C) No.2178 of 2022** [ _arising out of the impugned judgment dated 04.02.2021 in W.A No.1925 of 2019_ ] ## **&** ## **W.P(C)No.41097 of 2022** **=================================** Dated this the 28[th] day of February, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** These cases have been taken up together for consideration and disposal, as the issues are connected and inter-related. W.P(C) No.41097 of 2022 is taken up as the lead case. ## **W.P(C) No.41097 of 2022** The prayers in the instant Writ Petition (Civil) are as follows : - _“i. Issue a Writ of Mandamus or any other appropriate Order or Direction to the respondents to re calculate and re fix pension payable to the petitioner after reckoning special pay admissible at the time of retirement within a time limit to be fixed by this Hon'ble Court._ - _ii. Issue such other Writ, Order or Direction to the respondents to disburse the monetary benefits including arrears with interest arising out of Relief No.1 to the petitioner, within a time limit to be fixed by this Hon'ble Court._ - _iii. Issue such other Writ, Order or Direction to the respondents to take appropriate decision on Ext.P6 Request dated 07.10.2022 sent by the petitioner through registered post and e-mail to R1 and R2, in the light of Exts.P3 and P4 Judgements of this Hon'ble Court._ - _iv.Issue such other Writ, Order or Direction to the respondents calling for the records leading to the issuance of Ext.P12 G.O. and set aside the same._ - _v. Issue such other Writ, Order or Direction to the respondents directing them to pay exemplary cost to the petitioner._ Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 2 - _vi. Issue such other Writ, Order or Direction to the respondents as this Hon'ble Court may deem fit in the facts and circumstances of the case in the interest of justice.”_ 2. Heard Smt.Priya Shanavas, learned counsel appearing for the petitioner, Sri.Antony Mukkath, learned Senior Government Pleader appearing for official respondents 1 to 4 and Sri.P.J.Elvin Peter, learned Standing Counsel appearing for R-5. 3. The main matter in issue is covered fully in favour of the petitioner, as per the judgment dated 04.02.2021 in W.A No.1925/2019 [arising out of the impugned judgment dated 28.03.2019 in W.P(C) No.36379/2017]. The abovesaid writ appellate judgment in W.A No.1925/2019 has been produced as Ext.P-4 in this case and the same has also been reported [2021 (3) KLT 159 (DB)]. Therein, after exhaustively considering the various rival pleas in the matter, a Division Bench of this Court has held, in para 15 thereof, as follows : “ _15. The upshot of the above discussion is that the learned Single Judge is fully right in taking the view, as per the impugned judgment dated 28.03.2019, that rejection of the claim of the petitioner, as per Ext.P9 on the basis of the legally flawed understanding discernible from Ext.P10, is a grave illegality, which would deserve interdiction in the judicial review proceedings. Hence, the learned Single Judge is right in setting aside the impugned orders and issuing the mandatory directions to the respondents in the W.P(C)/appellants herein to grant the benefits by reckoning the special pay given to the writ petitioner while holding the post of University Appellate Tribunal, as part of his pay for the purpose of computing his pension and pensionary benefits. We hope and trust that the appellants would put a quietus to this issue, so that, objections of this nature are not unnecessarily raised as against the judicial officers concerned.”_ Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 3 4. It is common ground that the benefit of the directions in Ext.P-4 judgment has already been complied with by the official respondents (State authorities) and the benefit has been granted to the writ petitioner therein, as can be seen from Ext.P-10 G.O.(Rt.) No.3250/2021/HOME dated 23.11.2021. However, later, the competent authority of the State Government in the Home Department has issued Ext.P-12 G.O.(Ms.)No.48/2022/HOME dated 14.03.2022, which reads as follows : ## _“ GOVERNMENT OF KERALA_ ## _Abstract_ _Home Department – Judiciary – Special pay sanctioned to Judicial Officers renamed as Special Allowances-Amendment-order issued_ _Home (C) DEPARTMENT_ _G.O(Ms)No.48/2022/HOME Dated, Thiruvananthapuram, 14.03.2022_ _Read: 1 G.O(Ms)No.181/2006/Home Dated 31.10.2006_ _2 G.O(Ms)No.76/2010/Home Dated 23.03.2010 3 G.O(Ms)No.262/2010/Home Dated 29.11.2010 4 G.O(Ms)No.175/2011/Home Dated 08.08.2011_ ## _ORDER_ _Government as per order read as first paper above have accorded sanction for Special allowance for extra administrative work for various categories of Judicial Officers, later as per Government Order read as second paper above, the name of this perk has been changed as Special pay and counted for all purposes. This benefit has been extended to Judicial Officers who are working on deputation._ _2. As per the Government Order read as third paper have ordered that the Special Pay for extra administrative work will count for all purposes except for fixation of pay and for reckoning pensionary benefits. The G.O was issued_ Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 4 _based on the findings of the Accountant General, ie. if special pay is reckoned for fixation, it would lead to various anomalies, namely junior – senior and anomaly in pensionary benefits. As per Rule 12(31) Part I KSRs_ _Special Pay – means an addition of the nature of pay to the emoluments 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._ _The Special allowance for extra administrative work sanctioned as per G.O(Ms)No.181/2006/Home Dated 31.10.2006 which later renamed as special pay will not come under the preview of special pay defined in Rule 12(31) Part I KSRs_ _Government have examined the matter in detail and are pleased to amend Government orders read as second and fourth paper above by renaming the Special Pay sanctioned to judicial officer as Special Allowance. If the Judicial Officer is the head of office to which he is attached, then only he will be eligible for Special Pay subject to other conditions in Government Order dated 31.10.2006._ _(By order of the Governor)_ _T.K.JOSE ADDITIONAL CHIEF SECRETARY”_ 5. The learned counsel for the petitioner would submit that the afore G.O.(Ms.)No.48/2022/HOME dated 14.03.2022 (Ext.P-12 herein), has already been quashed by the learned Single Judge of this Court, as per common judgment dated 18.01.2023 in W.P (C) No.694/2022 and connected matters, wherein in para 16 thereof, this Court has set aside the orders and letters impugned therein, including the aforesaid G.O.(Ms.)No.48/2022/HOME dated 14.03.2022 (Ext.P-12 herein). The learned counsel for the petitioner would point out that one of the prayers Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 5 in the lead case therein, W.P(C) No.694/2022, was for quashment of G.O. (Ms.)No.48/2022/HOME dated 14.03.2022 (Ext.P-11 therein) and the said prayer has been explicitly allowed by the learned Single Judge in the abovesaid common judgment. The said judgment dated 18.01.2023 by the learned Single Judge in W.P(C) No.694/2022 & connected cases, has been reported [2023(1)KHC 335 = 2023 KLT Online 1074]. 6. Though there is a prayer in the present case before us for quashment of the abovesaid G.O dated 14.03.2022, there may not be any necessity for us to quash the same, in view of the stand now taken before us by the official respondents. This is so, mainly because the last clause in the last paragraph of Ext.P12 G.O dated 14.03.2022 specifically stipulates that, if the judicial officer is the head of the office to which he is attached, then, only he will be eligible for Special Pay, subject to other conditions in the G.O dated 31.10.2006. In other words, where the judicial officer concerned is the head of the office concerned, then the abovesaid beneficial pay concerned, has to be treated as the special pay, as understood in Rule 12 (31) of Part-I KSR and not as special allowance, as conceived in Ext.P-12 G.O. Further, the learned counsel for the petitioner had accordingly urged that the petitioner herein was the Labour Court Judge, for the posting concerned and that, therefore, he Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 6 was the head of the office and hence, he will be able to get the benefit of the exception carved out in the last clause in the last paragraph of Ext.P-12 G.O dated 14.03.2022, inasmuch as, since he is the head of the office, the abovesaid beneficial component of the pay has to be treated as special pay and not as special allowance. Hence, we specifically directed the competent authority of the State Government in the Home Department to furnish precise instructions to the learned Senior Government Pleader, as to the abovesaid plea of the petitioner and also as to whether the petitioner could be granted the benefit of special pay, in terms of Ext.P-4 judgment and also in the light of the last clause in the last paragraph of Ext.P-12 G.O, as above. 7. Today, when the matter has been taken up for consideration, Sri.Antony Mukkath, learned Senior Government Pleader would submit, on the basis of written instructions of the official respondents, more particularly, R-1 (Government in the Home Department), that, if the petition herein, is the head of the office, then he naturally deserves the special pay, as per G.O.(Ms.)No.48/2022/HOME dated 14.03.2022. There is no serious factual dispute that the petitioner herein, while substantively holding the post of District Judge, had retired from the Kerala State Higher Judicial Service, as Presiding Officer, Labour Court, Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 7 Ernakulam on 31.07.2022, as evident from Ext.P-1. In other words, even without quashment of Ext.P-12 G.O, the petitioner is entitled to get the benefit, inasmuch as he will come within the exception carved out in the last clause in the last paragraph of Ext.P-12 G.O supra, as he was the head of the office, while holding the post of Labour Court Judge. The said position is declared. Hence, the impugned action on the part of the official respondents, in refusing to grant the abovesaid benefit of reckoning the special pay granted to the petitioner as Labour Court Judge, for computing the pensionary benefits, etc., is illegal and _ultra vires_ and hence, the impugned action in that regard, as reflected in Exts.P-7 & P-7(a) series, is held to be illegal and _ultra vires_ and the said impugned action in Exts.P-7 & P-7(a), to the extent it rejects the abovesaid benefit to the petitioner, will stand interdicted and quashed. Hence, it is declared that the special pay granted to the petitioner, while he was discharging duty as Presiding Officer, Labour Court Judge, Ernakulam, is part of his pay and the same is to be reckoned for the purpose of calculation of pension. The official respondents, more particularly, respondents 1 to 4, will ensure that appropriate steps are taken to ensure that the pensionary benefits of the petitioner herein is recomputed and re-fixed, accordingly and the arrears of the pensionary Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 8 benefits should be disclosed to the petitioner, within six weeks from the date of production of a certified copy of this judgment. 8. We make it clear that we have not entered into the issue as to whether Ext.P-12 G.O is to be quashed or not, in view of the peculiar facts and circumstances of this case. For the purpose of clarity and easy reference, it is ordered that the Registry will place on record a copy of Ext.P-4 judgment dated 04.02.2021 in W.A No.1925/2019, as an Annexure to this judgment. With these observations and directions, the above Writ Petition (Civil), will stand disposed of. ## **Cont.Case (C) No.2178 of 2022** In view of the abovesaid judgment rendered by us in W.P(C) No.41097/2022, there is no necessity for us to keep this contempt of court case pending, inasmuch as the contempt was filed alleging the non-compliance of the directions in the above judgment dated 04.02.2021 in W.A No.1925/2019, even though the petitioner herein was not a party therein, on the premise that the general law declared therein, should be made applicable by the State to all similarly situated claimants, including the petitioner, etc., and that therefore, the impugned action of rejection, on the part of the respondent officers, would amount to Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 9 contempt of court, etc. Now that we have separately passed a judgment in the individual case of the petitioner, there is no necessity for us to examine, as to whether the said contempt petition is to be entertained, etc. In that view of the matter, the above contempt of court case is closed. However, it is directed that the respondent officers will ensure strict compliance of the directions issued by us today in W.P(C) No.41097/2022, within the outer time limit of six weeks, as mentioned supra. No other orders and directions are called for. With these observations and directions, the above contempt of court case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** **Sd/-** **C.S.SUDHA, JUDGE** vgd Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 10 ## **APPENDIX OF CON.CASE(C) 2178/2022** ## **PETITIONER'S ANNEXURES** **ANNEXURE A1 TRUE COPY OF THE SALARY SLIP OF THE PETITIONER FOR THE MONTH OF JULY 2022 ANNEXURE A2 TRUE COPY OF 1. GO(MS) NO. 262/2010/HOME, DATED 29.11.2010 ANNEXURE A3 TRUE COPY OF THE JUDGEMENT DATED 28.03.2019 IN W.P.(C.) NO.36379/2017 OF THIS COURT ANNEXURE A4 CERTIFIED COPY OF THE JUDGEMENT IN W.A. NO. 1925/2019 DATED 04.02.2021 ANNEXURE A5 TRUE COPY OF LETTER NO.PEN-B3/1/2022-FIN (E-1987575) DATED 08.02.2022 FROM THE ADDITIONAL CHIEF SECRETARY (FINANCE), FINANCE (PENSION-B) DEPARTMENT, THIRUVANANTHAPURAM UNDER THE STATE OF KERALA (R3 HEREIN), TO THE PRINCIPAL ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM (R2 HEREIN) ANNEXURE A6 TRUE COPY OF THE REQUEST DATED 07.10.2022 SENT BY THE PETITIONER THROUGH REGISTERED POST AND E-MAIL TO THE 2ND RESPONDENT HEREIN ANNEXURE A7 TRUE COPY OF THE INTIMATION SLIP OF PENSIONARY BENEFITS---NO. P-07/21022201486/5/P/22/10/70601697/524, DATED 12.10.2022---ISSUED BY THE 2ND RESPONDENT HEREIN TO THE PETITIONER ANNEXURE A7(A) TRUE COPY OF THE COMMUTATION PAYMENT ORDER ANNEXURE A8 TRUE COPY OF THE LETTER EXPRESSING THE PROTEST, WHICH WAS SENT BY THE PETITIONER, THE AGGRIEVED PARTY, THROUGH EMAIL TO THE** Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 11 **2ND RESPONDENT HEREIN ON 18.10.2022 ANNEXURE A9 THE TRUE COPY OF G.O.(MS.) 181/2006/HOME, DATED 31.10.2006 ANNEXURE A10 TRUE COPY OF G.O.(RT)NO.3250/2021/HOME, DATED 23.11.2021 ANNEXURE A11 TRUE COPY OF THE ACKNOWLEDGEMENT EVIDENCING COPY OF ANNEXURE A6 REQUEST IS SENT TO R1** Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 12 ## **APPENDIX OF WP(C) 41097/2022** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE SALARY SLIP OF THE PETITIONER FOR THE MONTH OF JULY 2022 EXHIBIT P2 TRUE COPY OF GO(MS)NO.262/2010/HOME, DATED 29.11.2010 EXHIBIT P3 TRUE COPY OF THE JUDGEMENT DATED 28.03.2019 IN W.P.(C.) NO. 36379/2017 EXHIBIT P4 CERTIFIED COPY OF THE JUDGEMENT IN W.A.NO.1925/2019 DATED 04.02.2021 EXHIBIT P5 TRUE COPY OF LETTER NO.PEN-B3/1/2022-FIN (E-1987575), DATED 08.02.2022 FROM THE ADDITIONAL CHIEF SECRETARY (FINANCE), FINANCE (PENSION-B) DEPARTMENT, THIRUVANANTHAPURAM UNDER THE STATE OF KERALA (R3), TO THE PRINCIPAL ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM (R2) EXHIBIT P6 TRUE COPY OF THE REQUEST DATED 07.10.2022 SENT BY THE PETITIONER THROUGH REGISTERED POST AND E-MAIL TO THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE INTIMATION SLIP OF PENSIONARY BENEFITS, DATED 12.10.2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P7(A) TRUE COPY OF THE COMMUTATION PAYMENT ORDER EXHIBIT P8 TRUE COPY OF THE LETTER EXPRESSING THE PROTEST, WHICH WAS SENT BY THE PETITIONER, THE AGGRIEVED PARTY, THROUGH EMAIL TO THE 2ND RESPONDENT** Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 13 **EXHIBIT P9** **TRUE COPY G.O.(MS.) 181/2006/HOME, DATED 31.10.2006** **EXHIBIT P10 TRUE COPY OF G.O.(RT)NO.3250/2021/H0ME, DATED 23/11/2021** **EXHIBIT P11 TRUE COPY OF THE ACKNOWLEDGEMENT DUE CARD SENT TO THE 1ST RESPONDENT** **EXHIBIT P12 TRUE COPY OF G.O.(MS)NO.48/2022/HOME, DATED 14.03.2022 ISSUED BY R4** - **EXHIBIT P13 TRUE COPY OF THE LETTER DATED 01.12.2022 SENT BY R4, TO THE PETITIONER IN RESPONSE TO EXT.P6 REQUEST** - **EXHIBIT P 14 THE TRUE COPY OF G.O.(MS)NO.231/2001/HOME, DATED 12.12.2001** - **EXHIBIT P 15 THE TRUE COPY OF THE RELEVANT PORTION OF G.O. (P) NO.3000/98/FIN., DATED 25.11.1998** - **EXHIBIT P 16 THE TRUE COPY OF G.O.(RT.) 1416/2009/HOME, DATED 20.05.2009** - **EXHIBIT P 17 THE TRUE COPY OF G.O.(MS)NO.76/2010/HOME, DATED 23.03.2010** - **EXHIBIT P 18 THE TRUE COPY OF G.O.(MS)106/2010/HOME, DATED 07.05.2010** - **EXHIBIT P 19 THE TRUE COPY OF G.O. (MS)NO.179/2010/HOME, DATED 05.08.2010** Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 14 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942** ## **WA.No.1925 OF 2019** **AGAINST THE JUDGMENT DATED 28.03.2019 IN WP(C) 36379/2017(R) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 2 IN WP(C):** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE ACCOUNTANT GENERAL (A & E) INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANT GENERAL (A & E), M.G.ROAD, PB NO.5607, THIRUVANANTHAPURAM-695 001.** **BY GOVERNMENT PLEADER** ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT IN WP(C):** - **1 P.MURALEEDHARAN RETIRED DISTRICT JUDGE, S/O. R.PADMANABHAN (LATE), SABARMATHI, BANK ROAD, ANAYARA P.O., THIRUVANANTHAPURAM-695 029.** - **2 HIGH COURT OF KERALA** - **REPRESENTED BY ITS REGISTRAR (SUBORDINATE JUDICIARY) HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY ADV. SRI.V.P.PRASAD R1 BY ADV. SRI.K.JAJU BABU (SR.) R1 BY ADV. SMT.M.U.VIJAYALAKSHMI** 15 Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 **R1 BY ADV. SRI.BRIJESH MOHAN R2 BY ADV. SRI.ELVIN PETER P.J.** **ANTONY MUKKATH, GOVT.PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 16 ## **(CR)** # **ALEXANDER THOMAS & T.R.RAVI, JJ.** **==================================** ## **W.A No.1925 of 2019** _[arising out of the impugned judgment dated 28.03.2019 in W.P(C) No.36379/2017_ ] **==================================** Dated this the 04[th] day of February, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The State of Kerala and the Accountant General, who were arrayed as respondent Nos.1 & 2 in the instant writ petition (civil), W.P (C) No.36379/2017 have come before us by instituting this intra-court appeal under Sec.5(i) of the Kerala High Court Act, to impugn the judgment dated 28.03.2019 rendered by the learned Single Judge in the said W.P(C) filed by the 1[st] respondent herein. 2. Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the appellants in the writ appeal/respondent Nos.1 & 2 in the W.P(C), Sri.K.Jaju Babu, learned Senior counsel instructed by Smt.M.U.Vijayalekshmi, learned counsel appearing for the 1[st] respondent in the W.A/writ petitioner and Sri.P.J.Elvin Peter, learned counsel appearing for the 2[nd] respondent in the W.A/3[rd] respondent in the Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 17 ## W.P(C). 3. The 1[st] respondent in this appeal (writ petitioner) had instituted the abovesaid W.P(C) No.36379/2017 essentially for seeking directions from this Court to the respondents to reckon and count the special pay granted to him, in terms of Ext.P6 Government Order, as pay for the purpose of reckoning his pension. The learned Single Judge, as per the impugned judgment rendered on 28.03.2019 in the above W.P(C) has granted the said relief. Being aggrieved thereby, the State of Kerala and the Accountant General have filed the instant writ appeal as above. 4. A brief resume of the essential and relevant facts would be necessary. The writ petitioner was a judicial officer, who was later appointed by way of transfer to the post of Additional District & Sessions Judge and while holding the said post, he was posted as the University Appellate Tribunal and later he had retired from service (Kerala State Higher Judicial Service) on 30.06.2011, after attainment of the superannuation age. By Ext.P3 G.O (Ms.) No.157/2006/Home dated 30.08.2006, the competent authority of the State Government in the Home Department had _inter alia_ ordered, as per paragraph No.13(a) that from 1.1.1996 the pensioner concerned will be entitled for 50% of the last pay drawn as the pension and that there will be no ceiling on the Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 18 maximum pension, etc. (see page No.45 of the paper book of this W.A). But later, the competent authority of the State Government in the Home Department has issued Ext.P6 G.O (Ms.)181/2006/Home dated 31.10.2006, wherein it has been _inter alia_ ordered that one of the recommendations of the first National Judicial Pay Commission (Shetty Commission) is to grant ‘special pay’ to the serving judicial officers and that therefore, special pay at the rate of Rs.1000/- per month is payable to the categories of Judicial Officers mentioned therein and the Additional District Judge holding the post of University Appellate Tribunal is also thus brought within the entitlement zone for special pay (see page Nos.51 & 52 of the paper of this W.A). Later, the said special pay has been enhanced to Rs.2,500/- per month. 5. By Ext.P11 G.O (Ms.)No.76/2010/Home dated 23.03.2010, the Government in the Home Department has _inter alia_ ordered therein that the special allowances allowed to the Judicial Officers has to be renamed as special pay (see page No.60 of the paper book of this W.A). Further, in Ext.P12 government letter No.41046/C3/2008/Home dated 08.06.2010, it has been clarified that the special allowance drawn by the judicial officers prior to the issuance of Ext.P11 G.O (Ms.) No.76/2010/Home dated 23.03.2010, has been converted to special pay, Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 19 which is to be counted for all purposes, that is fixation, pension benefits, etc. It may be profitable to refer the contents of Ext.P12 government letter No.41046/C3/2008/Home dated 08.06.2010 (see page No.62 of the paper book of this W.A), which reads as follows: “ _Attention is invited to the reference cited. The rule position stated in your letter cited relates to State Rule and as such it has no applicability to Judicial Officers coming under the purview of Shetty Commission recommendations. Hence its is clarified that the Special Allowances being drawn by the Judicial Officers prior to the issuance of the G.O.(Ms.) No.76/2010/Home dated 23.03.2010 has been converted to Special Pay which will be counted for all purposes, i.e., fixation, pension benefits etc. It is also clarified that the Special Pay can be paid during regular leave/transit.”_ Later, Ext.P10 G.O(Ms) No.262/2010/Home dated 29.11.2010 indicate that the above referred Ext.P6 G.O (Ms.) No.181/2006/Home dated 31.10.2006 and Ext.P-11 G.O (Ms.) No.76/2010/Home dated 23.03.2010 have been referred to therein as the first and third papers respectively. In Ext.P10 G.O (Ms.) No.262/2010/Home dated 29.11.2010, the competent authority of the State Government in the Home Department, after referring to the third paper therein (G.O (Rt.) No.1416/2009/Home dated 20.05.2009 as well as the fourth paper therein (letter dated 19.06.2010) of the Accountant General (Audit & Entitlement), Thiruvananthapuram, Kerala has noted that the Government have already issued order renaming the special allowances already granted to the judicial officers for extra administrative work as special pay for all Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 20 purposes but that the Accountant General as per the abovesaid letter dated 19.06.2010 has intimated the Government 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 the special allowance as special pay may lead to many consequences, namely, junior senior anomaly and that there will arise anomalies, if it is reckoned for pensionary benefits since a junior officer drawing special pay, may get higher pensionary benefits than the senior, who does not enjoy the benefit of special pay. Accordingly, the Government has ordered in Ext.P10 Government Order dated 29.11.2010 that the special pay for administrative work sanctioned as per Ext.P6 Government Order dated 31.10.2006 and as later clarified in G.O (Rt.) dated 20.05.2009 (second paper in Ext.P10), will count for all purposes except for fixation of pay and for reckoning pensionary benefits. Based on Ext.P10, Government Order dated 29.11.2010, the Accountant General (Audit & Entitlement), Thiruvananthapuram, Kerala has issued the impugned Ext.P9 letter dated 30.12.2016 communicating to the petitioner that the request contained in his petition dated 24.11.2016, cannot be granted, since as per Ext.P10 G.O dated 29.11.2010, special pay granted for extra administrative work cannot be reckoned for calculation of pension, etc. It Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 21 is these proceedings at Ext.P10 & Ext.P9, that are essentially under challenge in this writ proceedings. 6. Now it may be pertinent to refer to some of the relevant provisions of the applicable Rules, Rule 12 (23) of Part-I Kerala Service Rules (KSR) defines pay as follows : “ _**Rule 12** . Unless there be something repugnant in the subject or context, the terms defined in this Chapter are used in the rules in the sense here explained:-_ _(1) XXX XXX XXX XXX XXX XXX_ _**(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 specially classed as pay by the Government.”_ ## 7. Rule 12 (31) of Part-I Kerala Service Rules (KSR) defines the ## special pay as follows : “ _**Rule 12** . XXX XXX XXX (1) XXX XXX XXX XXX XXX XXX_ _**(31) Special Pay** .- Means an addition of the nature of pay to the emoluments of a post or of an officer granted in consideration of the following:-_ Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 22 _(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.”_ 8. Rule 62 including the Notes thereto upto Note 6 of Part-III KSR gives the definition of emoluments for the purpose of computation of pension and the same reads as follows: “ _**Rule 62** . The term 'emoluments' when used in this Part means the emoluments which the employee was receiving immediately before his retirement and comprises only the following:-_ _(a) Pay as defined in Rule 12(23) in Part I of these rules and/or pay of the appointment under Rule 9 or 31 of the Kerala State and Subordinate Services Rules._ _(b) Dearness Pay the employee was actually in receipt of._ _(c) Deleted_ _**Note 1.** Deleted_ _**Note 2** . In the case of an employee, who has submitted medical certificate of incapacity for further service while on leave other than earned leave, the period of leave up to the date of its termination when that is later than the date of the medical certificate should be taken into account for the purpose of calculations of average emoluments._ _**Note 3** . Deleted_ _**Note 4** . In the case of notional promotions, emoluments will be calculated based on the pay, the officers concerned are eligible for as a result of the notional fixation of Pay, even though they may not have actually drawn the same._ _**Note 5** . Notional Pay consequent on change in scale of pay_ Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 23 _due to General Pay Revision or otherwise shall be reckoned for calculation of Death-cum-Retirement Gratuity._ _**Note 6** . The term “emoluments”, for the purpose of calculation of Gratuity will include basic pay and dearness allowance on the date of retirement.”_ 9. Rule 12 (23)(i) of Part-I KSR would clearly indicate that pay means the pay, other than the special pay or pay granted in view of his personal qualifications, etc. However, clause (ii) of Rule 12 (23) would make it clear like the day light that the pay would also be inclusive of personal pay and special pay. Clause (iii) of Rule 12 (23) would further indicate that any other emoluments, which may be specifically classed as pay by the Government would also come within the breadth of the definition of pay. Hence, it can be seen from a mere reading of the Rule that the special pay or pay in question, as the one which is granted in view of the personal qualification of the incumbent concerned, then the same will stand excluded in view of the provisions contained in clause (i) of Rule 12 (23). However, a combined reading of clauses (i) & (ii) of Rule 12 (23) would make it clear that a special pay other than the special pay granted solely in view of the personal qualification of the incumbent, would certainly be inclusive of pay, as understood in Rule 12 (23). Rule 12 (31) of Part-I KSR would make it clear that clause (a) thereof would hold that where a post would call for a higher scale of pay in view of Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 24 additional and/or higher responsibilities attached to it and the same would also be special pay and any additional emoluments of a post granted, where the nature of work is arduous, would also be inclusive of special pay, going by clause (b) of Rule 12 (31). So also, clause (c) of Rule 12 (31) would make it clear that where the emoluments to the post are granted to an officer, who has to attend his work in addition to the normal duties, then, the same would also be inclusive of special pay, as understood in Rule 12 (31). Therefore, the word 'special pay' as occurring in clause (ii) of Rule 12 (23) would be understood in the light of Rule 12(31) of Part-III KSR and the special pay concerned, which is other than special pay given to the incumbent in view of his personal qualification, would certainly be included within the inclusive definition of pay and special pay, as understood in Rule 12 (23) and Rule 12 (31) respectively. Part III of the KSR deals with matters in relation to grant of pensionary benefits. Rule 62 of Part-III KSR deals with the definition of emoluments, as used in Part-III of the KSR. It is broadly defined in the said Rule 62 that the term 'emoluments' used in Part-III of the KSR deals with the emoluments which the employee was receiving immediately before his retirement and comprises of the components mentioned in that Rule which has been extracted earlier hereinabove. Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 25 Pay as defined in Rule 12 (23) in Part-I of the KSR and the other aspects are in the second limb of clause (a), which with we are not concerned in this case. Hence, it can be seen that so long as the present definitions of pay as understood in Rule 12 (23) of Part-I KSR and that of special pay, as understood in Rule 12(31) of Part-III KSR and that the emoluments, as conceived in Rule 62 of Part-III KSR, are in the statute book, it will lead to inexorable and inevitable result that special pay, as conceived in Exts.P-6, P-11 & P-12, would also be inclusive of pay and so long as, the incumbent, who is in the cadre of Additional District Judge has retired by holding the post of University Appellate Tribunal or any of the post, for which the special pay is permitted and ordered in the abovesaid orders, then the judicial officer is certainly entitled to treat the component of special pay also as part of the pay, for reckoning pension at the rate of 50% of such pay. 10. The Apex Court in the judgment in the case Justice _**N.D.P Namboodripad v. Union of India & Ors.**_ {(2007) 4 SCC 502}, which arose out of the earlier judgment in the said case, that was recalled as per the decision reported in {(2004) 5 SCC 259}, has considered the provision contained in Rule 62 of Part-III KSR and has held that Dearness Allowance and special allowance will not come within the ambit Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 26 of pay, as understood in Rule 62 of Part-III KSR. The Apex Court therein has also considered the definition of ‘pay’ as defined in Rule 12(23) of Part-I KSR (see para Nos.16 & 17 thereof) and has held that the Dearness Allowance and special allowance were not specifically classed as pay by the State Government under Rule 12 (23) of Part-I KSR and that therefore, Dearness Allowances and special allowances, do not form part of pay, as understood in Rule 62 of Part-III KSR read with Rule 12(23) of Part-I KSR. It has also been noted therein that the word “emolument”, no doubt is a wider term than basic pay and it will generally refer to salary of profits from employer and their office. Hence, it has to be borne in mind that so long as the monetary component would satisfy the word ‘pay’ as defined in Rule 12 (23) of Part-I KSR, the said component is ‘pay’, as understood in the first limb of clause(a) of Rule 62 of Part-III KSR. The applicability of the second limb of clause (a) as well as the provision contained in clause (b) of Rule 62 of Part-III KSR does not arise for consideration in the facts and circumstance of this case. 11. Hence, in view of the abovesaid aspects, it can be seen that as per Exts.P3 & P5, 50% of the last pay drawn, shall be pension of the judicial officers concerned, who have retired after 01.01.1996 (refer page Nos.45 & 48 of this paper book). It can be seen from a reading of para Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 27 No.9 of Ext.P-3 (see page No.44 of this paper book) that the Apex Court had earlier directed the State Government to take a decision on the payment of special pay based on the proposal of the High Court. 12. The appellants have no case that the statutory provisions contained in Rule 12 (23) & Rule 12 (31) of Part-I of the KSR and that as per Rule 62 of Part-III KSR have been amended or altered, in the manner known to law. So also, the appellants have no case that the specific benefits granted by the competent authority of the State Government in Exts.P6, P11 & P12 have been withdrawn or altered in any manner. The whole problem has arisen on account of the subjective understanding of the Accountant General, that the grant of special pay in such cases, may lead to senior-junior anomaly and that therefore, to avoid senior-junior anomaly in the grant of pensionary benefits, the same benefit may be withdrawn and solely on the basis of the said subjective view of the Accountant General that the competent authority of the State Government has accepted the said view in the issuance of the impugned Ext.P10 dated 09.11.2020, which ultimately led to the rejection of the claim of the petitioner, in terms of Ext.P9 dated 30.12.2016. These aspects of the matter are so crystal clear like the blue sky and this Court is not in a position to appreciate, as to why the petitioners have again Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 28 chosen to approach this Court after the learned Single Judge has rendered a well-considered judgment in the matter, taking into consideration of the rival contentions on both sides and then having determined the issue, strictly in accordance with the statutory provisions and the relevant Government Orders that govern the field. 13. So, from the above narration it can be seen that, as per Exts.P-3 & P-5, 50% of the last drawn pay shall be the pension of judicial officers, retired after 1.1.1996 _(See pages 45 & 48 of this paper book)_ . Further, the Apex Court had directed the State Government to take decision on the payment of special pay based on the proposal of the High Court _(See para 9 of Ext.P-3 on page 44 of this paper book)_ . Further, pursuant to the recommendations of the Shetty Commission to grant special pay to the serving judicial officers, the Government had sanctioned special allowance for extra administrative work (special pay) as can be seen from Ext.P-6 ( _See page 51 of this paper book_ ). Again, based on the directions of the Apex Court for strict compliance of the recommendations of the Shetty Commission, the special allowance to judicial officers as per Ext.P-6 was re-nomenclatured as special pay for all purposes as per Ext.P-11 _(See pages 60 & 61 of this paper book)_ . It may not be out of place to refer to some of the pertinent aspects in the Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 29 decisions of the Apex Court in the cases as in _**All India Judges' Association v. UOI & Otrs [(1992) 1 SCC 119, para 51], All India Judges' Association & Otrs. v. UOI and Others [(1993) 4 SCC 288, para 9], All India Judges' Association & Otrs. v. UOI and Others along with connected matters [(2006) 12 SCC 178, para 19]**_ . In _**All India Judges' Association's**_ case supra _**[(1992) 1 SCC 119]**_ it has been observed in para 51 thereof as follows: _“51. Even in the existing system there are some posts which carry special pay that is on account of the fact that there is more of basic equipment demanded and the nature of work is different and judicial service satisfies both and, therefore, government can always prescribe a higher pay scale for Judicial Officers.”_ The Apex Court has further pointed out the necessity for parity between the judiciary and political executive, and not between the judiciary and administrative executive, as can be seen from in _**All India Judges' Association and Otrs**_ case supra _**[(1993) 4 SCC 288]**_ where it has been held in para 9 thereof as follows: _“9. ......................_ _**As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on a par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the**_ Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 30 ## _**service conditions of the latter.**_ ( _emphasis supplied_ ) _”_ 14. It has to be borne in mind that the Apex Court has ordered that the recommendations of the Shetty Commission have to be complied with by the governmental authorities concerned in its letter and spirit with regard to the pay scale, arrears, pension etc without regarding to the financial constraints etc without regarding the stand taken by any of the States. In that regard it will be pertinent to refer to _**All India Judges' Association**_ **&** _**Otrs**_ case supra _**[(2006) 12 SCC 178]**_ wherein it has been held in para 19 thereof as follows: _“19. Before parting, we make it clear that the recommendations made by the Shetty Commission have to be complied with in letter and spirit in regard to pay scales, arrears, pension including past pension without regard to the financial constraints and without regard to stand taken by any of the States or UTs in their affidavits or applications separately filed. Such compliance after taking necessary decisions at the level of the respective State Governments and UTs must be report to this Court within the timeframe, as stated hereinabove.”_ 15. The upshot of the above discussion is that the learned Single Judge is fully right in taking the view, as per the impugned judgment dated 28.03.2019, that rejection of the claim of the petitioner, as per Ext.P9 on the basis of the legally flawed understanding discernible from Ext.P10, is a grave illegality, which would deserve interdiction in the judicial review proceedings. Hence, the learned Single Judge is right in setting aside the impugned orders and issuing the mandatory directions Cont.Case (C) No.2178 of 2022 & W.P(C)No.41097 of 2022 31 to the respondents in the W.P(C)/appellants herein to grant the benefits by reckoning the special pay given to the writ petitioner while holding the post of University Appellate Tribunal, as part of his pay for the purpose of computing his pension and pensionary benefits. We hope and trust that the appellants would put a quietus to this issue, so that, objections of this nature are not unnecessarily raised as against the judicial officers concerned. With these observations and directions, the above Writ Appeal will stand dismissed. **Sd/ALEXANDER THOMAS, JUDGE** **Sd/T.R.RAVI, JUDGE** vgd