SC dismisses appeal filed regarding fixation of basic pension

 

The Division Bench of the Supreme Court consisting of Justices J.K. Maheshwari and Indira Banerjee opined that average emolument, as specified in the Rules,  is required to be calculated as per Note 1 Clause 63, 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 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.

Facts

The respondent had retired as selection grade Lecturer on availing voluntary retirement w.e.f. 31.7.2006.  His basic pension was fixed in the pre­revised scale at Rs. 8907/­ p.m. Inadvertently, 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 an earlier round of litigation.

Procedural History

The High Court 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. The   said   judgment   has   not   been challenged and therefore became final.  In view of the said fact, prayer was made to fix the pension @ Rs. 8907/­ in pre­revised and Rs. 19333/­ as   per revision of pay and pension of the appellant. 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   prerevised   scale   and   Rs.   11,127/­   in   revised   scale     was   found erroneous by the High Court.   However, as per the direction 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.

Contentions made

Appellant- As per   the   Circular, 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 respondent had retired after one month of re-joining from the leave   for   about   two   years   without   allowances,   therefore,   the order   impugned,   confirming   the   order   of   the   learned   Single Judge, is wholly unjustified.

Respondent- The Accountant 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.

Observations of the Court

The Bench observed 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, 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   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, 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.”

Judgment

The appeal was dismissed.

Case Name: State of Kerala & Anr vs Anie Lukose

Citation: CIVIL APPEAL NO.  835 OF 2022

Bench: Justice J.K. Maheshwari, Justice Indira Banerjee 

Decided on: 1^st February 2022 

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