Law Web: Kerala HC: Special Pay of Judicial Officer is Part Of Pay, Should Be Reckoned To Calculate Pension

The learned counsel appearing for the petitioners

contends that the action of the respondents in issuing

Government Orders which are completely at variance with the

directions contained in the judgment of this Court amounts to

an open challenge to the orders and authority of this Court and

that the said directions are completely illegal and violative of

the directions of this Court. {Para 14}

15. I have considered the contentions advanced. This

Court in the earlier round of litigation had specifically

considered the nature of the special pay granted to judicial

officers pursuant to the directions of the Shetty Commission.

It was found that special pay would come within the definition

of pay under Rule 12(23). Special Pay is a benefit which is

granted to officers posted in specific posts having

administrative responsibilities for the extra work which is done

by them. The argument that grant of special pay to some

officers will lead to a junior-senior anomaly had been agitated

in the earlier litigation also but did not find favour with this

Court. The argument cannot be sustained for a moment in

view of the fact that the principles on which a difference in pay

between a senior and junior is to be considered to be an

anomaly are provided in the very same Rule itself. Grant of

special pay for administrative duties would not, by any stretch

of imagination, result in any junior-senior anomaly since it is a

special emolument given for extra work done.

16. 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.”

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.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO.694 OF 2022

CHERIAN VARGHESE Vs STATE OF KERALA,

PRESENT

MRS. JUSTICE ANU SIVARAMAN

Dated: 18TH DAY OF JANUARY 2023

The petitioners in these writ petitions are judicial officers

who are either working or have retired from service as District

and Sessions Judges. The 1st petitioner in W.P.(C)

No.13336/2022 is the Kerala Judicial Officers Association. The

substantial prayers in these writ petitions is with regard to

refixation of pension payable to the petitioners and members of

the Association by reckoning special pay which is paid to them

as part of their emoluments. The documents are being

referred to in this judgment as in W.P.(C) No.694/2022 for

convenience, unless otherwise specifically mentioned.

2. Heard Sri.Jaju Babu, the learned Senior Counsel

appearing for the petitioners in W.P.(C) No.13336/2022,

Sri.Jacob P. Alex, the learned counsel appearing for the

petitioners in W.P.(C) No.694/2022, Sri.Mathew Skaria, the

learned counsel appearing for the petitioners in W.P.(C)

No.6098/2022, Sri.Hariraj Madhav Rajendran, the learned

counsel appearing for the petitioner in W.P.(C) No.12888/2022

WP(C) NO.694/2022 and connected cases

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and Sri.Enoch David Simon Joel, the learned counsel appearing

for the petitioner in W.P.(C) No.17016/2022, Sri.K.R.Ranjith,

the learned Government Pleader and Sri.B.G.Harindranath

and Sri.Elvin Peter P. J., the learned counsel appearing for the

High Court of Kerala.

3. The learned Senior Counsel appearing for the

petitioners in W.P.(C) No.13336/2022 submits that all the

individual petitioners in these batch of writ petitions except the

2nd petitioner in W.P.(C) No.13336/2022 are retired judicial

officers who were receiving special pay at the time of their

retirement. The dispute is with regard to counting of the said

special pay as well as the Dearness Allowance receivable

thereon while calculating the pension and pensionary benefits

due. The learned Senior Counsel would contend that the

orders passed by the Government treating special pay as a

special allowance and that it need not be reckoned for the

purpose of fixation of pensionary benefits is per se against the

directions issued of the Apex Court in the decision reported in

All India Judges Association and ors. v. Union of India and ors.

[(2002) 4 SCC 247]. It is submitted that the said action is

violative of Exts.P6 and P7 judgments of this Court where the

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refusal to reckon the special pay for pensionary benefits by

Ext.P5 order had been set aside by this Court which had been

affirmed in appeal. It is submitted that after declaration of law

by this Court in Exts.P6 and P7 judgments, it was not open to

the Government to pass an order granting the benefits to the

petitioner in the writ petition alone as a special case and to

deny the benefit to identically situated persons.

4. It is submitted that in compliance with the judgment

in All India Judges Association case [(2002) 4 SCC 247], the 1st

respondent implemented many of the recommendations of the

Shetty Commission by issuing GO (MS) No.231/2001/Home

dated 12-12-2001. However, the implementation was not

complete and the Supreme Court, by its order dated 20.7.2006,

pointed out the shortcomings in the orders issued by the State

Governments and directed the Chief Secretaries to rectify

them. Thereafter, by Ext.P1 Government Order dated 30-08-

2006 additional benefits in accordance with the

recommendations of the Pay Commission were granted to

members of the District Judiciary. In Ext.P1, it was specifically

stated as follows :-

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“Special Pay

9. Decision on payment of special pay will be taken

urgently on the Hon'ble High Court of Kerala's proposal on

evolving the principle in the matter (as directed by the Hon'ble

Supreme Court of India), received only on 28/8/06 vide

reference cited sixth above.”

It was further provided in Ext.P1 that 50% of the last pay

drawn shall be the pension.

5. It is submitted that on 28.3.2009, the Hon'ble

Supreme Court vide separate order appointed Justice E.

Padmanabhan as One Man Commission to determine the Pay,

Allowances and Pension of serving and retired Judicial Officers.

With regard to quantum of pension and calculation, the

Commission, in paragraph 34(b) recommended to follow the

recommendation of Shetty Commission. It is stated that as per

order dated 4-5-2010, the Hon'ble Supreme Court directed all

the State Governments to implement the recommendations of

the Justice E.Padmanabhan Commission Report with effect

from 1.1.2006. In compliance with the said direction, the 1st

respondent issued Ext.P2 Government Order dated 7.5.2010

and thereafter, Ext.P3 Government Order dated 2.11.2010

determining the pension and allowances. It is submitted that

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in Ext.P3 also, it is stated that the quantum of pension will be

50% of the last pay drawn.

6. It is submitted that a Government Order had been

issued on 31.10.2006 on the proposal forwarded by the High

Court sanctioning 'special allowance' for extra administrative

work (special pay) with effect from 1.9.2006. The rates of

special pay were provided in the Government Order. All the

petitioners were receiving special pay at the time of their

retirement on the basis of the said order. A Government Order

was issued on 29.11.2010 which is produced as Ext.P5 along

with W.P.(C) No.694/2022 ordering that the special pay for

extra administrative work sanctioned as per Government

Orders dated 31.10.2006 and 20.5.2009 will count for all

purposes except for fixation of pay and for reckoning

pensionary benefits.

7. This was challenged by a judicial officer before this

Court by filing W.P.(C) No.36379/2017. The petitioner had

prayed that the special pay received by him should be counted

as pay for the purpose of calculation of his pension. This Court

considered the contentions and found that Rule 12(23) of Part I

KSR defines 'pay' which includes 'personal pay' and 'special

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pay'. Rule 12(31) of Part I KSR specifically defines 'special

pay'. Rule 62 of Part III KSR defines 'emoluments' comprising

pay as defined in Rule 12(23) of Part I KSR as well and

dearness pay. Considering the contentions raised on either

side, this Court found that Ext.P10 order dated 29.11.2010 and

Ext.P9 letter of the Senior Accounts Officer are untenable and

that the petitioner is entitled to reckon special pay received

prior to retirement as part of his pay and for calculation of

pension accordingly.

8. The said judgment was taken in appeal and

confirmed by Ext.P7 where the Division Bench specifically

considered all the contentions raised and held that financial

constraints are not a justifiable reason that can be raised for

not granting the due benefits to judicial officers who are

carrying out the essential judicial functions of the republic. It

was held that special pay being a part of pay should be

considered for calculation of pension as well. It is submitted

that thereafter, Ext.P9 order was passed referring to the

judgments, but according sanction to recalculate the

pensionary benefit in respect of the petitioner alone as a

special case for the “limited purpose of complying with the

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judgment of the Hon'ble High Court and it shall not be a

precedent for admitting such claims in future”.

9. The learned Senior Counsel for the petitioners

submits that in the light of the declaration of law by this Court

in the judgments, the act of the Government in limiting the

benefit to the petitioner in that case alone is an affront to the

orders and authority of this Court. It is contended that the

specific order which directed the treating of the special pay as

special allowance having been set aside by this Court, the

Government had absolutely no justification in not treating the

special pay drawn by all judicial officers, who were entitled to

the same as part of pay for the purpose of pension and that the

refusal to do so is completely unsustainable.

10. The learned Senior Counsel also placed reliance on a

judgment of this Court in Abraham Mathew K and others v.

State of Kerala and others [2012 (1) KLT 280]. This Court held

that the National Judicial Commission did not decide the issue

with regard to payment of special pay to judicial officers for

the reason that the Commission was having no sufficient

data/materials in this regard. The task of evolving a

policy/principle for paying special pay to eligible judicial

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officers who had considerable administrative work outside

court hours was left for the High Court to decide. Therefore,

once the High Court had decided that special pay is to be

granted to judicial officers who perform additional

administrative work, the Government could not deny the

benefits to such officers found eligible by the respective High

Courts.

11. Adv. Jacob P. Alex, the learned counsel appearing for

the petitioners in W.P.(C) No.694/2022 would also rely on the

decision of the Apex Court in State of Uttar Pradesh and others

v. Arvind Kumar Srivastava and others [(2015) 1 SCC 347] to

contend that when a particular set of employees is given relief

by the court all other identically situated persons need to be

treated alike by extending the same benefit and not going so

would amount to discrimination and would be violative of

Article 14 of the Constitution of India. The decision of a

learned Single Judge of this Court in Amrut Distilleries Ltd.

(M/s.), Palakkad v. State of Kerala and others [2015 (3) KHC

154] is also relied on by the learned counsel to contend that

though a particular judgment is not in rem, the principle

decided therein squarely applies to similarly placed persons

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under all situations and that they could not be compelled to

approach the court inviting the self-same order once again,

which is nothing but duplication of judicial work.

12. Detailed counter affidavits have been placed on

record by respondents 2 and 3 in W.P.(C) No.694/2022. It is

stated at paragraphs 4, 5, 6 and 7 of the counter affidavit filed

by the 3rd respondent as follows :-

“4. As per the recommendations of Shetty

Commission, special pay is sanctioned to “Such of those

judicial officers who have considerable administrative work

outside court hours”. The High Court, after considering the

nature of duties attached to each category of officers in the

state Judiciary, had identified that the presiding officers of

Principal Courts and independent courts with filing owners

are attending administrative work after the office hours and

are therefore eligible for special Pay. The Government, vide

G.O.(MS) No.181/2006/Home dated 31.10.2006 had

sanctioned Special Allowance for extra administrative work to

Judicial Officers, as proposed by the High Court. True copy of

the G.O.(MS) No. 181/2006/Home dated 31.10.2006 is

produced herewith and marked as Exhibit-R3(a). Later, the

Government as per G.O. (MS) No. 76/2010/Home dated

23.03.2010, renamed the “Special Allowance for extra

administrative work” as Special Pay and ordered that the

same shall be treated as Special Pay for all purposes. True

copy of the G.O.(MS) No. 76/2010/Home dated 23.03.2010 is

produced herewith and marked as Exhibit R3(b).

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5. Subsequently, the Government, based on the

intimation received from the Accountant General that at the

time of fixation of pay on cadre to cadre promotion and also

on fixation of pay on granting Assured Career Progression

scales of pay, reckoning of special Allowance as Special Pay

might lead to junior-senior anomaly and other such issues,

ordered that Special Pay for extra administrative work will

count for all purposes, except for fixation of pay and for

reckoning pensionary benefits. True copy of the G.O.(MS)

No.262/2010/Home dated 29.11.2010 is produced herewith

and marked as Exhibit-R3(c).

6. It may be noted that, as per Government order

dated 31.10.2006, only certain posts of Judicial Officers in the

Subordinate Judiciary are sanctioned Special Pay. Thus, all

officers in the cadre of District and Sessions Judge and Chief

Judicial Magistrates/Sub Judges do not enjoy the benefit of

Special Pay. Moreover, seniority is not a criterion for posting

officers to such posts.

7. Hence, if Special Pay is reckoned for pensionary

benefits, a junior officer enjoying the benefit of Special Pay

might get higher pensionary benefits than a senior who does

not enjoy the benefit of Special Pay, for the sole reason that

he was not holding the post of Presiding Officer of a Principal

Court/Independent Court with filing powers, at the time of his

retirement. Moreover, all Officers may opt to retire from such

posts which may lead to administrative inconvenience and

unhealthy competition among Officers.”

13. The 1st respondent has also placed a counter affidavit

on record, wherein the same contentions as had been taken in

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the earlier round of litigation are reiterated. It is stated at

paragraph 8 of the counter affidavit as follows :-

“8. It is submitted that Government as per G.O.(MS)

No.181/2006/Home dated 31.10.2006 have accorded sanction for

special allowance for extra administrative work for various

categories of judicial officers. Later as G.O.(MS) No.76/2010/

Home dated 23.03.2010, the name of this perk has been changed

as special pay and counted for all purposes. This benefits has

been extended to judicial officers who are working on

deputation. As per G.O.(MS) No.262/2010/Home dated

29.11.2010 Government have ordered that the special pay for

extra administrative work will count for all purpose if special pay

is reckoned for fixation, it would lead to various anomalies,

namely junior-senior and anomaly in pensionary benefits. The

special allowance for extra administrative work sanctioned as

per G.O.(MS) No.181/2006/Home dated 31.10.2006 which later

renamed as special pay will not come under the purview of

special pay defined in Rule 12(31) Part I KSRs. Hence vide G.O.

(MS) No.48/2022/Home dated 14.03.2022 renaming the Special

pay as Special Allowance by amending the orders issued in G.O.

(MS) No.181/2006/Home dated 31.10.2006 and G.O.(MS)

No.175/2011/Home dated 08.08.2011. If the judicial officer is

the head of office to which he is attached, then only eligible for

Special Pay subjected to conditions in G.O. dated 31.10.2006. If

the petitioners in the Writ Petitions are the head of office to

which he is attached, then only eligible for Special Pay subject to

the conditions in G.O. dated 31.10.2006.”

The petitioners have also produced Government Order dated

23.3.2010, a communication dated 8.6.2010 as well as a later

Government Order dated 14.3.2022 stating that the special pay

sanctioned to judicial officers is to be treated as special

allowance.

14. The learned counsel appearing for the petitioners

contends that the action of the respondents in issuing

Government Orders which are completely at variance with the

directions contained in the judgment of this Court amounts to

an open challenge to the orders and authority of this Court and

that the said directions are completely illegal and violative of

the directions of this Court.

15. I have considered the contentions advanced. This

Court in the earlier round of litigation had specifically

considered the nature of the special pay granted to judicial

officers pursuant to the directions of the Shetty Commission.

It was found that special pay would come within the definition

of pay under Rule 12(23). Special Pay is a benefit which is

granted to officers posted in specific posts having

administrative responsibilities for the extra work which is done

by them. The argument that grant of special pay to some

officers will lead to a junior-senior anomaly had been agitated

in the earlier litigation also but did not find favour with this

Court. The argument cannot be sustained for a moment in

view of the fact that the principles on which a difference in pay

between a senior and junior is to be considered to be an

anomaly are provided in the very same Rule itself. Grant of

special pay for administrative duties would not, by any stretch

of imagination, result in any junior-senior anomaly since it is a

special emolument given for extra work done.

16. The Division Bench in Ext.P7 judgment specifically

held that 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 all 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 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.”