Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 835 OF 2022
( ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 29384 OF 2018 )
STATE OF KERALA & ANOTHER ….APPELLANT(S)
VERSUS
ANIE LUKOSE . …. RESPONDENT(S)
J U D G E M E N T
J.K. MAHESHWARI, J.
Leave granted.
2. This appeal arises out of the judgment dated 30.7.2018
passed in Writ Appeal No. 1513 of 2018 confirming the
judgment dated 19.2.2018 passed by the learned Single Judge
allowing the Writ Petition (C) No. 2573 of 2016.
3. The facts giving rise to the present appeal are that the
respondent had retired as selection grade Lecturer on availing
Signature Not Verified
voluntary retirement w.e.f. 31.7.2006. His basic pension was
Digitally signed by
Rachna
Date: 2022.02.01
16:40:13 IST
Reason:
fixed in the prerevised scale at Rs. 8907/ p.m.. Inadvertently,
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in the verification report, the basic pension was erroneously
shown as Rs. 7138/ p.m. (prerevised). Thereafter, on revision
in the scale of pay, it was enhanced to Rs. 11,127/ and made
effective from 1.1.2006. The fixation of the said basic pension
was challenged in the earlier round of litigation in W.P. (C) No.
30847 of 2012. The High Court vide judgment dated 28.02.2013
held that the fixation of pension at Rs. 7138/ was erroneous
and his pension of Rs. 8907/ (prerevised) ought to have been
taken into account at the time of revision of the pay and
pension w.e.f. 1.1.2006. The said judgment has not been
challenged and therefore became final. In view of the said fact,
prayer was made in WP(C) No. 2573 of 2016 to fix the pension @
Rs. 8907/ in prerevised and Rs. 19333/ as per revision of
pay and pension of the appellant.
4. Learned Single Judge of the High Court has taken note of
the fact that the last pay drawn by the appellant was
Rs. 46,400/ and according to the same, his pension in the
revised scale has rightly been fixed at Rs. 19,333/ on account
of completing the qualifying service by her. In the previous
round of litigation, the fixation made @ Rs. 7138/ in pre
revised scale and Rs. 11,127/ in revised scale was found
erroneous by the High Court. However, as per the direction
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made by the High Court, fixation had rightly been proposed by
the office of 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. The Division Bench declined to interfere with the
order of the learned Single Judge.
5. Learned counsel for the appellant would contend that as
per the Circular being G.O.(P) No. 230/2012/Fin. dated
19.04.2012, it is clarified that for computing the 10 months’
emoluments for the purpose of average emoluments in respect of
employees who retired from service on or after 1.1.2006, the
average emoluments are required to be counted. The average
emoluments have been clarified in Clause 63 of Annexure P18
regarding Kerala Service Rules. It is contended that the
respondent had retired after one month of rejoining from the
leave for about two years without allowances, therefore, the
order impugned, confirming the order of the learned Single
Judge, is wholly unjustified.
6. On the other hand, learned counsel for the respondent
has argued with vehemence and contended that the Accountant
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General has rightly made the fixation of the pension in the pre
revised and revised scales of pay, relying upon the circulars and
the order of the High Court passed earlier. Therefore, the order
impugned has rightly been passed by the High Court, which
does not warrant interference.
7. After having heard learned counsel for the parties at
length and 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.
19334/ w.e.f. 1.3.2010. The said fact has not been
controverted in the counteraffidavit, as apparent from the order
of the learned Single Judge. For reverting the arguments of the
appellants with reference to the revised Circular dated
19.4.2012, it is necessary to refer to the original Circular G.O.
(P) No. 211/2011/Fin dated 7.5.2011, specially Clause 2(2)
relevant to the facts of the present case, which is reproduced as
thus:
“For computing 10 months’ emolument for the
purpose of average emoluments, in respect of
employees who retired from service on or after
1.1.2006 and who , during part of the said period
of 10 months, drawn pay in the prerevised scale,
their pay in the prerevised scale may be
enhanced notionally by adding DA at 74%”.
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8. The said clause has been modified vide Circular G.O.(P)
No. 230/2012/Fin dated 19.4.2012 , which is reproduced as
thus:
“For computing 10 months’ emoluments for the
purpose of average emoluments in respect of
employees who retired from service on or after
1.1.2006 and who, during the part of 10 months,
drew pay in the prerevised scale, their pay in the
prerevised scale may be enhanced notionally to
the initial pay drawn in the revised scale which
came into force with effect from 1.2.2006. Para
2.2 of GO read above and modified to this extent.
Para 2.1 of the GO read above shall not be
applicable to the above category.”
9. On perusal of the aforesaid, 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
1.1.2006 and who during part 10 months draws pay in the pre
revised scale, their pay in the prerevised scale may be
enhanced notionally to the initial pay drawn in the revised scale,
which came into force w.e.f. 1.1.2006. Average emolument, as
specified in the Rules, is required to be calculated as per Note 1
Clause 63 of Annexure P18, from which it is clear that if during
this period, an employee had been absent from duty, on leave
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with or without allowances, which qualified for pension or
having been suspended, but reinstated in service, without
forfeiture of service, his emoluments for the purpose of
ascertaining 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. 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 learned Single Judge as well as the Division Bench in
the orders impugned.
10. 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.
………………………….J.
[ INDIRA BANERJEE ]
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……………………………J.
[ J.K. MAHESHWARI ]
NEW DELHI;
FEBRUARY 1, 2022.
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