The State Of Kerala vs Anie Lukose on 1 February, 2022

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Supreme Court of India
The State Of Kerala vs Anie Lukose on 1 February, 2022Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, J.K. Maheshwari

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)

JUDGEMENT

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

Digitally signed by
Rachna
Date: 2022.02.01
voluntary retirement w.e.f. 31.7.2006. His basic pension was
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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