AI Structured Summary
Not yet generated for this judgment
Judgment
The 1st petitioner is stated to be an association of retired judges in the District Judiciary in the State of Kerala and petitioners 2 to 4 are its members. The petitioners have instituted the captioned writ petition, seeking to quash Ext.P8 Government Order to the extent the “commutation factor” has been fixed at 8.194 and the “restoration period” has been fixed at 15 years under clause (g) thereto.
Heard Sri.Jacob P.Alex, the learned counsel for the petitioners, Smt.Resmi G.Nair, the learned Special Government Pleader for respondents 1 to 4 and 6, as well as Sri.Sohail Mohammed Ansary, the learned counsel for the 5th respondent High Court of Kerala.
The dispute as noticed above in this writ petition is with respect to the stipulation contained in Ext.P8 Government Order as above.
According to the petitioners, they are entitled for the benefits pursuant to the First National Judicial Pay Commission as well as the judgment of the Apex Court in All India Judges’ Association and Others v. Union of India and Others [(1993) 4 SCC 288], providing for uniform pay package for the judicial officers. The learned counsel for the petitioners, Sri.Jacob, would contend that the question as regards the commutation factor was the subject matter of consideration in an earlier round of litigation and pursuant to the judgment of this Court in Cherian Varghese v. State of Kerala and Others [2015 (4) KLT 895], it has been found by a learned Single Judge of this Court that it is the commutation factor, as applicable to the State Government employees (9.81) that would apply. He would also point out that the appeal filed against the afore judgment has been dismissed pursuant to the judgment dated 05.08.2016 in W.A.No.1014 of 2016 and connected case.
Per contra, Smt.Resmi, the learned Special Government Pleader, would contend that the judgments referred to by Sri.Jacob, were with reference to the First National Judicial Pay Commission and the Government Order at Ext.P8 has been issued with specific reference to the report at Ext.P7. Therefore, according to her, reliance cannot be placed on the judgments as above. In reply, Sri.Jacob, would contend that, the fact that the judges are entitled for the benefits available to the State Government employees, if they are more beneficial in nature, has already been considered and decided by the Apex Court on more than one occasion.
I have considered the rival contentions as well as the connected records.
Ext.P8, admittedly, has been issued on the basis of the judgment of the Apex Court dated 19.05.2023 in Writ Petition(s) (Civil) No(s).643 of 2015. The judgment of the Apex Court has also been placed on record by the learned counsel for the petitioners. For ease of reference, clause (g) of Ext.P8 Government Order is extracted as under;
“(g)The existing rate of 50% of the basic pension for commutation of pension will continue. The entitlement to commute pension admissible on revised pay is applicable in the case of retirement on or after 01.01.2016. Considering the recommendation of SNJPC, the Commutation Factor shall be fixed as 8.194 from 01.01.2016 and the existing restoration period of 15 years will be continued.” A reading of the afore clause would show that the commutation factor has been fixed as 8.194 from 01.01.2016 and the restoration period is stated to be at 15 years as earlier stipulated, which is stated to continue.
In the case at hand, this Court notices that a learned Single Judge of this Court in Cherian Varghese (supra) has considered the very same issue, holding that the commutation factor ought to be 9.81, as applicable to the State Government employees. In the appeal filed, the Division Bench of this Court has found that, if a better bargain is available to the State Government employees, there is no basis for denying the same to the retired judicial officers.
In this regard, this Court takes note of the contention raised by Smt.Resmi, that Ext.P8 Government Order has been issued with reference to the report at Ext.P7. The report at Ext.P7 has been perused by this Court. True, there is a discussion as regards the commutation factor, as well as the period for restoration. As regards the period for restoration, the report at Ext.P7 concludes that the same requires to be examined de novo after issuing notice to the Government of India, (Department of Pension and Pensioners’ Welfare) and also upon consideration of materials placed before the Hon’ble Court.
With reference to the afore position, this Court further proceeds to consider the submissions made with reference to the provisions of the Kerala Service Rules (KSR). Under Rule 6A Part A to Appendix-X of Part III KSR, it has been categorically laid down as under;
“6A (1) The commuted portion of pension shall be restored from the first of the month following the month in which a period of twelve years elapses from the date of commutation, i.e., the date of reduction in pension after commutation in cases where commutation is done at retirement at the age of 55, and in other cases the term for restoration shall be determined with reference to the commutation factor (rounded) in each case.” Thus, as per Rule 6A, it is specifically provided that the restoration period shall be determined with reference to the commutation factor (rounded) in each case. Hence, ultimately, what should be the restoration factor requires to be noticed as prescribed above. The petitioners have specifically contended that, as regards the State Government employees, the restoration factor is 9.81 under the Kerala Pension (Commutation) Rules, forming part of Appendix-X of Part III KSR. There is no dispute about the afore factor, also with reference to the counter affidavit filed by the State. In fact, in the counter affidavit filed by the High Court of Kerala, the fact that the judicial officers are entitled for the same treatment as are available to the State Government employees have also been specifically averred. Therefore, the commutation factor as regards the petitioners herein should also be 9.81. With respect to the afore commutation factor, this Court also holds that, under the provisions of Rule 6A referred to above, the period for restoration also requires to be determined by rounding the commutation factor at 10 (ten years).
With respect to the afore findings, this Court takes note of the principles laid down by the Apex Court in All India Judges Association and Others v. Union of India and Others, [(2010) 14 SCC 720], wherein at paragraph No.7, the Apex Court has laid down as under;
“7.We reiterate that if in any State the 6th Pay Commission recommendations are more beneficial to the judicial officers, they will continue to be benefited to that extent. The State of Andhra Pradesh has already issued a notification accepting the recommendations of the Padmanabhan Committee Report. We make the A.P. Government’s Orders dated 1-5-2010, as a part of this order (marked as Annexure A) so that the same could be followed by other States also.”
Thus, it has been laid down by the Apex Court that, if recommendations of the State Pay Commission are more beneficial to the judicial officers, that should be extended to the judicial officers. Similarly, in the judgment passed by the Apex Court on 19.05.2023 in Writ Petition (Civil) No.643 of 2015 also, at paragraph No.102, it is laid down as under;
“102.Given that many of the States granted this benefit from the age of 70 and the Commission recommended the grant of additional quantum of pension from the age of 75. This reasoning of the Commission merits acceptance. If States have been granting more beneficial pension rates, it cannot be denied to the judicial officers. Judicial Officers cannot be left worse off than officers of the State. Therefore, this Court accepts this recommendation.”
Thus, the fact that, if States are granting more beneficial pension rates, that also requires to be extended to the judicial officers is beyond any dispute.
As already found, as regards the State Government employees, the fact that they are entitled for the commutation factor of 9.81 and restoration period of ten years is clear.
Therefore, I am of the opinion that the petitioners herein are also entitled for the afore treatment.
In this regard, this Court also takes note of the submission made by Smt.Resmi that the Government Order at Ext.P8 has already been placed on record before the Apex Court and the Apex Court is in seisin of the matter. She also sought to rely on the order of the Apex Court dated 23.11.2023 passed in the afore case.
True, in the afore order passed by the Apex Court, reference is made to the Government Order at Ext.P8, challenged in this writ petition.
However, this Court notices that the afore order has been rendered by the Apex Court, only with reference to the report of the Second National Judicial Pay Commission at Ext.P7 and with respect to the question as regards the implementation of the directions contained therein.
In the case at hand, the challenge has been raised against clause (g) of Ext.P8 Government Order, specifically relying on the judgments holding the issue in favour of the petitioners as well as with reference to the provisions of the KSR, and also contending that the State Government employees are being extended a better bargain.
In such circumstances, I am of the opinion that the petitioners are entitled to succeed. Hence, this writ petition would stand allowed, setting aside Ext.P8 Government Order, to the extent of fixation of the commutation factor at 8.194 and the restoration period at 15 years. It is held that the commutation factor requires to be reckoned at “9.81” as extended to the State Government employees, and the restoration period also requires to be reckoned accordingly at “10 years”, with reference to the relevant provisions of the KSR referred to above.
| Sd/- | |
| HARISANKAR V. MENON | |
| JUDGE | |
| anm |
APPENDIX OF WP(C) NO. 37318 OF 2023
PETITIONERS’ EXHIBITS
Exhibit P1 TRUE COPY OF THE COMMUTATION TABLE – ANNEXURE III PRESCRIBED UNDER RULE 6 OF THE PENSION COMMUTATION RULES OF KSR.
Exhibit P2 TRUE COPY OF THE COMMUTATION TABLE PRESCRIBED UNDER THE CCSR.
Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 18-09-2015 IN WPC 28111 OF 2012 - CHERIAN VARGHESE V. STATE OF KERALA 2015 KHC 5366.
Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 05-08-2016 IN WA NO. 1014 OF 2016 OF THIS HON’BLE COURT.
Exhibit P5 TRUE COPY OF THE GO(RT) NO. 2087/2017/ HOME DATED 05-08-2017.
Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF THE ORDER DATED 27-07-2022 IN WPC 643 OF 2015 OF THE HON’BLE SUPREME COURT OF INDIA.
Exhibit P6(a) TRUE COPY OF THE RELEVANT PAGES OF THE ORDER DATED 18-01-2023 IN WPC 643 OF 2015 OF THE HON’BLE SUPREME COURT OF INDIA.
Exhibit P7 TRUE COPY OF THE RELEVANT PAGES OF PART III (SUPPLEMENTAL REPORT) OF THE SECOND NATIONAL JUDICIAL PAY COMMISSION.
Exhibit P8 TRUE COPY OF GO (MS) NO. 109/2023/FIN DATED 16-07-2023.
Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 26-07-2023 SUBMITTED BY THE PRESIDENT OF 1ST PETITIONER BEFORE THE CHIEF SECRETARY, GOVERNMENT OF KERALA.
Exhibit P10 TRUE COPY OF THE LETTER BEARING NO. TRY/834/2023-P2 DATED 09-10-2023 ISSUED BY THE 3RD RESPONDENT.
Exhibit P11 TRUE COPY OF THE COMMUTATION PAYMENT ORDER DATED 05-03-2004 OF THE 3RD PETITIONER.
Exhibit P12 TRUE COPY OF THE NOTICE BEARING NO. G/187/2023-24 DATED 21-10-2023.
Exhibit P13 TRUE COPY OF THE RELEVANT PAGES OF PENSION PAYMENT ORDER DATED 24-09-2020 OF THE 4TH PETITIONER.