State of Kerala and Another v. Anie Lukose

Cause Title: State of Kerala and Another v. Anie Lukose

Case Number: Civil Appeal No. 835/2022 arising out of Special Leave petition (c) No. 29384/2018

Quorum: Justice Indira Banerjee and Justice J. K. Maheshwari

Judgment Date: 01/02/2022

Author: Pragash B, Advocate, Madurai Bench of Madras High Court

Background of the Case

The appeal arises out of the judgment dated 30.07.2018 passed in Writ Appeal No. 1513 of 2018 confirming the judgment dated 19.02.2018 passed by the learned Single Judge allowing the Writ Petition (C) No. 2573 of 2016.

The respondent had retired as Selection Grade Lecturer on availing Voluntary Retirement with effect from 31.07.2006. His basic pension was fixed in the pre-revised scale at Rs. 8907/- per month. Inadvertently, in the verification report, the basic pension was erroneously shown as Rs. 7138/- per month. Thereafter, on revision in the scale of pay, the basic pension was enhanced to Rs. 11,127 and the same was made effective from 01.01.2006.

The fixation of the basic pension was challenged in WP (C) No. 30847/2012 in which the Honourable Kerala High Court held that the fixation of pension at Rs. 7138/- was erroneous and his pension of Rs. 8907/- (pre-revised) ought to have been taken into account at the time of revision of the pay and pension with effect from 01.01.2006. The said judgment dated 28.02.2013 was not challenged and therefore became final. In view of the above case, the prayer was made in WP(C) No. 2573/2016 to fix the pension at Rs. 8907/- in pre-revised and Rs. 19333/- as per revision of pay and pension of the appellant.

The Learned Single Judge of the High Court has taken note that the last pay drawn by the appellant was Rs. 46,400/- and accordingly, his pension in the revised scale has rightly been fixed at Rs. 19,333/- on account of completing the qualifying service by her and held that the fixation made in the previous round of litigation is erroneous. As per the direction of the High Court, the fixation had been rightly proposed by the Accountant General on completion of the qualifying service by her.

The appellants filed a Writ Appeal and by the order impugned, the Division Bench of the High Court held that the Accountant General had correctly prepared the pension paper, fixing the pension at Rs. 19,334 in the revised scale. In consequence, the Division Bench declined to interfere with the order of the learned Single Judge.

Findings of the Honourable Court

On perusal of the fixation made by the office of the Accountant General, sent to the Principal Secretary (Finance), Finance (Pension B) Department, Thiruvananthapuram, it is clear that the pension of the respondent was fixed at Rs. 19,334/- with effect from 01.03.2010. The said fact has not been controverted in the counter-affidavit (Para 7).

It is clear that for computing 10 months emoluments for the purpose of average emoluments in respect of an employee, who retired from service on or after 01.01.2006 and who during part 10 months draws pay in the pre-revised scale, their pay in the pre-revised scale may be enhanced notionally to the initial pay drawn in the revised scale, which came into force with effect from 01.01.2006…. (Para 9)

…..Average emolument, as specified in the Kerala Service Rules, is required to be calculated as per Note 1 Clause 63 of Annexure P-18, from which it is clear that if during this period, an employee had been absent from duty, on leave with or without allowances, which qualified for pension or having been suspended, but re-instated in service, without forfeiture of service, his emoluments for the purpose of ascertain the average would be taken, at what they would have been, had he not been absent from duty or suspended provided that the benefit of pay in any officiating post would be admissible only if it is certified that he would have continued to hold that officiating post but for leave or suspension……(Para 9)

…..Therefore, it is clear that part of 10 months would not mean the past 10 months and if the employee had remained on leave without allowances, even their calculation as per the last pay drawn had rightly been made by the office of Accountant General as referred by the learned Single Judge as well as the Division Bench in the orders impugned. (Para 9)

In view of the foregoing discussion, we do not find any error in the order impugned, warranting interference in this appeal. Accordingly, this appeal is dismissed. No order as to costs.

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