State of Kerala & Accountant General (A&E) v. P. Muraleedharan & Registrar (Subordinate Judiciary), High Court of Kerala

# **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 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:** W.A No.1925 of 2019 2 # **(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 W.P(C). W.A No.1925 of 2019 3 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 maximum pension, etc. (see page No.45 of the paper W.A No.1925 of 2019 4 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, which is to be counted for all purposes, that is fixation, pension W.A No.1925 of 2019 5 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 purposes but that the Accountant General as per the W.A No.1925 of 2019 6 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 is these proceedings at Ext.P10 & Ext.P9, that are essentially under challenge in W.A No.1925 of 2019 7 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:-_ _(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_ W.A No.1925 of 2019 8 _(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 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_ W.A No.1925 of 2019 9 _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 additional and/or higher responsibilities attached to it and the same would also be special pay and any additional emoluments of a W.A No.1925 of 2019 10 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. 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 W.A No.1925 of 2019 11 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 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 W.A No.1925 of 2019 12 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 PartIII 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 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. W.A No.1925 of 2019 13 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 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 W.A No.1925 of 2019 14 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 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'**_ W.A No.1925 of 2019 15 ## _**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 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 W.A No.1925 of 2019 16 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 time-frame, 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 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 W.A No.1925 of 2019 17 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