STATE OF KERALA & ANOTHER versus ANIE LUKOSE on 1 February 2022

1. Leave granted.

2. This appeal arises out of the judgment dated 30.7.2018 passedin Writ Appeal No. 1513 of 2018 confirming the judgment dated 19.2.2018passed by the learned Single Judge allowing the Writ Petition (C) No.D2573 of 2016.

3. The facts giving rise to the present appeal are that the respondenthad retired as selection grade Lecturer on availing voluntary retirementw.e.f. 31.7.2006. His basic pension was fixed in the pre-revised scale atRs. 8907/- p.m.. Inadvertently, in the verification report, the basic pensionEwas erroneously shown as Rs. 7138/- p.m. (pre-revised). Thereafter, onrevision in the scale of pay, it was enhanced to Rs. 11,127/- and madeeffective from 1.1.2006. The fixation of the said basic pension waschallenged in the earlier round of litigation in W.P. (C) No. 30847 of2012. The High Court vide judgment dated 28.02.2013 held that theFfixation of pension at Rs. 7138/- was erroneous and his pension of Rs.8907/- (pre-revised) ought to have been taken into account at the timeof revision of the pay and pension w.e.f. 1.1.2006. The said judgmenthas not been challenged and therefore became final. In view of the saidfact, prayer was made in WP(C) No. 2573 of 2016 to fix the pension @Rs. 8907/- in pre-revised and Rs. 19333/- as per revision of pay andGpension of the appellant.

4. Learned Single Judge of the High Court has taken note of thefact that the last pay drawn by the appellant was Rs. 46,400/- andaccording to the same, his pension in the revised scale has rightly beenfixed at Rs. 19,333/- on account of completing the qualifying service by H

her. In the previous round of litigation, the fixation made @ Rs. 7138/- inpre- revised scale and Rs. 11,127/- in revised scale was found erroneousby the High Court. However, as per the direction made by the HighCourt, fixation had rightly been proposed by the office of the AccountantGeneral on completion of the qualifying service by her. The appellantsfiled a Writ Appeal and by the order impugned, the Division Bench ofthe High Court held that the Accountant General had correctly preparedthe pension paper, fixing the pension at Rs. 19,334/- in the revised scale.The Division Bench declined to interfere with the order of the learnedSingle Judge.

5. Learned counsel for the appellant would contend that as perthe Circular being G.O.(P) No. 230/2012/Fin. dated 19.04.2012, it isclarified that for computing the 10 months’ emoluments for the purposeof average emoluments in respect of employees who retired from serviceon or after 1.1.2006, the average emoluments are required to be counted.The average emoluments have been clarified in Clause 63 of AnnexureP-18 regarding Kerala Service Rules. It is contended that the respondenthad retired after one month of re-joining from the leave for about twoyears without allowances, therefore, the order impugned, confirming theorder of the learned Single Judge, is wholly unjustified.

6. On the other hand, learned counsel for the respondent hasargued with vehemence and contended that the Accountant Generalhas rightly made the fixation of the pension in the pre-revised and revisedscales of pay, relying upon the circulars and the order of the High Courtpassed earlier. Therefore, the order impugned has rightly been passedby the High Court, which does not warrant interference.

7. After having heard learned counsel for the parties at length andon 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 therespondent was fixed at @ Rs. 19334/- w.e.f. 1.3.2010. The said facthas not been controverted in the counter-affidavit, as apparent from theorder of the learned Single Judge. For reverting the arguments of theappellants with reference to the revised Circular dated 19.4.2012, it isnecessary to refer to the original Circular G.O. (P) No. 211/2011/Findated 7.5.2011, specially Clause 2(2) relevant to the facts of the presentcase, which is reproduced as thus:

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A“For computing 10 months’ emolument for the purpose of averageemoluments, in respect of employees who retired from service onor after 1.1.2006 and who , during part of the said period of 10months, drawn pay in the pre-revised scale, their pay in thepre-revised scale may be enhanced notionally by adding DA at74%”.B

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 averageemoluments in respect of employees who retired from service onCor after 1.1.2006 and who, during the part of 10 months, drew payin the pre-revised scale, their pay in the pre-revised scale may beenhanced notionally to the initial pay drawn in the revised scalewhich came into force with effect from 1.2.2006. Para 2.2 of GOread above and modified to this extent. Para 2.1 of the GO readDabove shall not be applicable to the above category.”

9. On perusal of the aforesaid, it is clear that for computing 10months emoluments for the purpose of average emoluments in respectof an employee, who retired from service on or after 1.1.2006 and whoduring part 10 months draws pay in the pre-revised scale, their pay inEthe pre-revised scale may be enhanced notionally to the initial paydrawn 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 calculatedas per Note 1 Clause 63 of Annexure P-18, from which it is clear that ifduring this period, an employee had been absent from duty, on leavewith or without allowances, which qualified for pension or having beenFsuspended, but re-instated in service, without forfeiture of service, hisemoluments for the purpose of ascertaining the average would be taken,at what they would have been, had he not been absent from duty orsuspended provided that the benefit of pay in any officiating post wouldbe admissible only if it is certified that he would have continued to holdGthat officiating post but for leave or suspension. Therefore, it is clearthat part of 10 months would not mean the past 10 months and if theemployee had remained on leave without allowances, even theircalculation as per the last pay drawn had rightly been made by the officeof Accountant General as referred by learned Single Judge as well asthe Division Bench in the orders impugned.H

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

Divya Pandey(Assisted by : Deepak Panwar, LCRA)

Appeal dismissed.

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