High Court of KeralaSingle Judge2023-02-01Writ petition allowed; relief granted directing...

W.P.(C) No.21047/2022 – E. Baiju v. State of Kerala and others

Case / Petition Number:WP(C) No.21047/2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2023-02-01
Court Decision / Holding: Writ petition allowed; Special Pay is to be treated as part of pay for pension calculation; pension to be revised and arrears disbursed within three months of receipt of copy of this judgment.
Final Disposition: Writ petition allowed; relief granted directing pension revision and arrears within three months.

Parties to the Case

Appellants / Petitioners

E. Baiju

Respondents

State of Kerala represented by Additional Chief Secretary to Government, Home Department, Government Secretariat, Thiruvananthapuram-695001
State of Kerala represented by its Deputy Secretary to Department of Home, Secretariat, Thiruvananthapuram-695001
The Accountant General (A & E), Indian Audit and Accounts Department, Office of the Accountant General (A & E), MG Road, PB NO. 5607, Thiruvananthapuram-695001
High Court of Kerala represented by its Registrar (District Judiciary), High Court of Kerala, Ernakulam-682031

Legal Representation & Advocates

Counsels for Petitioners

• M.S. Kiran
• Lisha William

Counsels for Respondents

• Elvin Peter P.J.
• K.G. Sarojini

Case Synopsis & Summary

Petitioner E. Baiju, a retired District and Sessions Judge who was holding the post of Registrar, Kerala Administrative Tribunal on deputation at retirement, filed this writ petition seeking to revise his pension and pensionary benefits by reckoning the Special Pay of ₹3,750 drawn as Registrar for the purpose of pension. He retired on 31.07.2021 from the Kerala State Higher Judicial Service and his pension was fixed by reckoning only his basic pay, excluding the Special Pay. He submitted representations to the State Government directing the Accountant General (A&E) to revise the pension; the government issued, in 2022, GO renaming Special Pay as Special Allowance, but he contends that renaming does not alter the essential character of the pay element to be counted for pension. The counsel relied on All India Judges Association v Union of India (2002) 4 SCC 247, and on this Court’s decisions in W.P.(C) No.36379/2019 and W.A. No.1925/2019, which held that Special Pay must be counted for pension calculation. The Government argued otherwise, contending that the matter was settled on prior understandings and that the GO changes the nomenclature. The Division Bench’s and Single Judge’s prior judgments and a subsequent ruling in W.P.(C) No.13336/2022 were considered. The court ultimately holds that Special Pay is part of pay for pension calculation and directs pension revision and arrears disbursement within three months from the copy of this judgment.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Special Pay of ₹3,750 drawn as Registrar forms part of his pay for pension calculation and must be reckoned along with basic pay. He relies on the Supreme Court decision in All India Judges Association v. Union of India (2002) 4 SCC 247 and this Court’s earlier decisions (W.P.(C) No.36379/2019 and W.A. No.1925/2019) which held Special Pay should be counted for pension, despite the government’s renaming as Special Allowance in GO dated 14.03.2022. The petition emphasizes erroneous reliance on a nomenclatural change and seeks immediate revision plus arrears.

Contentions of Respondents

Respondents challenge the petition on the basis that pension fixation has historically followed established rules and that the GO renaming does not suffice to alter pension computation. They rely on the Government’s orders and the need to maintain consistency with prior practice, arguing that reliance on past judicial pronouncements must be balanced with administrative considerations. They contend that the declaration of law in related cases should not automatically bind pension revision without a formal review process.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
All India Judges Association and others v. Union of India and others	(2002) 4 SCC 247	Positive	Apex Court decision relied upon to support including Special Pay in pension calculation.
W.P.(C) No.36379/2019	W.P.(C) No.36379/2019	Positive	This Court's Single Bench held Special Pay should be counted for pension calculation.
W.A. No.1925/2019	W.A. No.1925/2019	Positive	Division Bench affirmed the view that Special Pay must be reckoned for pension.
W.P.(C) No.13336/2022	W.P.(C) No.13336/2022	Positive	Judgment declaring Special Pay part of pay for pension, considering GO 14/03/2022.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023/12TH MAGHA, 1944** **WP(C) NO. 21047 OF 2022** **PETITIONER:** **E.BAIJU AGED 60 YEARS S/O E. EBANEZER, RETIRED DISTRICT JUDGE, BAIJU BHAVAN, T.C.8/722, THIRUMALA, THIRUVANANTHAPURAM-695006.** **BY ADVS. M.S.KIRAN LISHA WILLIAM** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** - **2 STATE OF KERALA REPRESENTED BY ITS DEPUTY SECRETARY TO DEPARTMENT OF HOME, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** - **3 THE ACCOUNTANT GENERAL (A & E) INDIAN AUDIT AND ACCOUNTS DEPARTMENT OFFICE OF THE ACCOUNTANT GENERAL (A & E) MG ROAD, PB NO. 5607, THIRUVANANTHAPURAM-695 001.** - **4 HIGH COURT OF KERALA REPRESENTED BY ITS REGISTRAR (DISTRICT JUDICIARY) HIGH COURT OF KERALA, ERNAKULAM-682031.** W.P.(C) No.21047/2022 : 2 : **BY ADV ELVIN PETER P.J. FOR R4 SMT. K.G.SAROJINI, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21047/2022 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.21047 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 1[st] day of February, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is a retired District and Sessions Judge, has filed this writ petition seeking to direct the respondents to revise the pension and pensionary benefits reckoning the Special Pay of the petitioner as granted to him vide Ext.P1 at the earliest within the period fixed by this Court. 2. The petitioner retired on superannuation from the Kerala State Higher Judicial Service on 31.07.2021, while working as District and Sessions Judge (Super Time Scale). At the time of retirement, the petitioner was holding the post of Registrar in the Kerala Administrative Tribunal, on deputation. The petitioner was paid an amount of ₹3,750/- W.P.(C) No.21047/2022 : 4 : as Special Pay from the date of joining as Registrar, Kerala Administrative Tribunal. 3. On retirement, the petitioner noted that his pensionary benefits were fixed by the 4[th] respondent reckoning only his basic pay and without adding the component of Special Pay of ₹3,750/-. Though the petitioner submitted representations before the 1[st] respondent-State of Kerala requesting to issue directions to the 3[rd] respondentAccountant General (A&E) to revise the pension and pensionary benefits reckoning the Special Pay drawn by the petitioner, the request was not allowed. The petitioner understands that the Government has issued an order dated 14.03.2022 amending earlier Government Orders by renaming the Special Pay once again as Special Allowance. 4. The counsel for the petitioner argued that the refusal of the respondents to reckon the Special Pay for the purpose of computing pension is against the judgment of the Apex Court in _**All India Judges Association and others v. Union of India and others** [(2002) 4 SCC 247]_ . The W.P.(C) No.21047/2022 : 5 : counsel further pointed out that a Single Bench of this Court considered the issue in W.P.(C) No.36379 of 2019 and held that Special Pay is liable to be considered for fixing the pensionary benefits. Ext.P17 is vitiated by total nonapplication of mind, contended the counsel for the petitioner. 5. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 3 and the learned Standing Counsel for the 4[th] respondent. 6. A Division Bench of this Court considered the issue in W.A. No.1925 of 2019. The whole problem has arisen on account of the subjective understanding of the Accountant General that the grant of Special Pay will lead to senior-junior anomaly in the grant of pensionary benefits. After considering the contentions, it was held by the Division Bench 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 W.P.(C) No.21047/2022 : 6 : 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. ## 7. A learned Single Judge considered the issue in W.P.(C) No.13336 of 2022. The learned Single Judge considered Ext.P17 GO dated 14.03.2022 also and held as follows: The impugned orders passed by the Government, without considering the declaration of law by this Court, are completely unsustainable. The contention of the respondents that special pay cannot be reckoned for the purpose of fixation of pension is without any merit whatsoever. The said contentions are repelled. The orders and letters impugned in these writ petitions are, therefore, set aside. It is declared that the special pay granted to judicial officers is a part of their pay and that it is to be reckoned for the purpose of calculation of pension. The respondents shall take appropriate steps to see that the pension of the judicial officers who drew special pay at the time of their retirement is revised and the arrears are disbursed to them forthwith, at any rate, within three months from the date of receipt of a copy of this judgment. W.P.(C) No.21047/2022 : 7 : The judgment in W.P.(C) No.13336 of 2022 was delivered after taking note of the GO dated 14.03.2022 and therefore the issue stands squarely covered in favour of the petitioner. In the afore circumstances, the writ petition is allowed. It is declared that the Special Pay granted to the petitioner is liable to be treated as part of his Pay and the same should be reckoned for the purpose of calculation of pension. The respondents are directed to take appropriate steps to ensure that the pension of the petitioner, who drew Special Pay at the time of his retirement, is revised and the arrears are disbursed to him forthwith, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **N. NAGARESH, JUDGE** aks/20.03.2023 W.P.(C) No.21047/2022 : 8 : ## **APPENDIX OF WP(C) 21047/2022** ## **PETITIONER'S EXHIBITS** |**Exhibit P1**|**THE TRUE COPY OF THE G.O. NO.**| |---|---| ||**153/2020/P&ARD DATED 12.06.2020 ISSUED**| ||**BY THE 2ND RESPONDENT TO THE**| ||**PETITIONER.**| |**Exhibit P2**|**THE TRUE COPY OF THE REPRESENTATION**| ||**DATED 20.07.2021 SUBMITTED BY THE**| ||**PETITIONER TO THE 1ST RESPONDENT.**| |**Exhibit P3**|**THE TRUE COPY OF THE SALARY SLIP OF**| ||**THE PETITIONER FOR THE MONTH OF JUNE,**| ||**2021.**| |**Exhibit P4**|**THE TRUE COPY OF THE PARTICULARS OF**| ||**SERVICE OF PENSIONER (PETITIONER).**| |**Exhibit P5**|**THE TRUE COPY OF THE GOVERNMENT ORDER**| ||**G.O. (MS). NO. 157/2006/HOME DATED**| ||**30.08.2006.**| |**Exhibit P6**|**THE TRUE COPY OF THE GOVERNMENT ORDER**| ||**G.O.(MS.) NO. 181/2006/HOME DATED**| ||**31.10.2006.**| |**Exhibit P7**|**THE TRUE COPY OF THE ORDER DATED**| ||**05.02.2008 PASSED BY HON'BLE SUPREME**| ||**COURT.**| |**Exhibit P8**|**THE TRUE COPY OF THE GOVERNMENT ORDER**| ||**NO. GO (RT). NO.1416/2009/HOME DATED**| ||**20.05.2009.**| |**Exhibit P9**|**THE TRUE COPY OF THE GOVERNMENT ORDER**| ||**GO (M.S.) NO. 76/2010/HOME DATED**| ||**23.03.2010.**| |**Exhibit P10**|**THE TRUE COPY OF THE LETTER NO.**| ||**41046/C3/2008/HOME DATED 08.06.2010**| ||**ALONG WITH TAPED COPY**| |**Exhibit P11**|**THE TRUE COPY OF THE GOVERNMENT ORDER**| ||**NO. GO (MS) 262/2010/HOME DATED**| ||**29.11.2010.**| |**Exhibit P12**|**THE TRUE COPY OF THE GOVERNMENT ORDER**| ||**NO. G.O.(MS). 175/2011/HOME DATED**| ||**08.08.2011 ALONG WITH TAPED COPY.**| W.P.(C) No.21047/2022 : 9 : |**Exhibit P13**|**THE TRUE COPY OF THE GOVERNMENT ORDER**| |---|---| ||**NO. G.O.(MS) 286/2012/HOME DATED**| ||**14.11.2012.**| |**Exhibit P14**|**THE TRUE COPY OF THE COUNTER AFFIDAVIT**| ||**IN W.P. (C) NO. 36379/2017 DATED**| ||**22.03.2019.**| |**Exhibit P15**|**THE TRUE COPY OF THE JUDGMENT DATED**| ||**28.03.2019 IN W.P.(C) NO. 36379/2017**| ||**OF THIS HON'BLE HIGH COURT OF KERALA.**| |**Exhibit P16**|**THE TRUE COPY OF THE JUDGMENT IN W.A.**| ||**NO. 1925/2019 DATED 04.02.2021 OF THIS**| ||**HON'BLE HIGH COURT OF KERALA.**| |**Exhibit P17**|**THE TRUE COPY OF THE GOVERNMENT ORDER**| ||**NO.**<br>**G.O(MS)**<br>**48/2022/HOME**<br>**DATED**| ||**14.03.2022.**| |**Exhibit P18**|**THE TRUE COPY OF THE INTERIM ORDER**| ||**DATED 08.04.2022 IN W.P. (C) NO.**| ||**13336/2022 OF THIS HON'BLE HIGH COURT**| ||**OF KERALA.**|