IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 WP(C).No. 7519 of 2008(T) ------------------------- PETITIONER(S): ----------------------- C.A.PRABHAKARAN RETIRED JUDICIAL IST CLASS MAGISTRATE RESIDING AT CHEMPANKULAM HOUSE R.P.COLONY P.O.,MUNDAKKAYAM. BY ADV. SRI.N.SUKUMARAN SRI.N.K.KARNIS SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO HOME DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL ( A&E) KERALA THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2011 ALONG WITH WPC NO. 18705 OF 2008 & WPC NO. 24572 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 7519 of 2008 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the relevant pages of the petitioners Pension payment order issued by the 2nd respondent. Ext.P2 :- Copy of the order of the 1st respondent bearing No.GO(MS) No.231/2001/Home dt.12.12.2001. Ext.P3 :- Copy of the order of the 1st respondent bearing No.GO(MS) No.157/2006/Home dt.30.8.2006. Ext.P4 :- Copy of the application submitted by the petitioner before the 2nd respondent dated 30.4.2007. Ext.P5 :- Copy of the authorisation issued by the 2nd respondent to the petitioner dated 28.9.2007. Ext.P6 :- Copy of the representation submitted by the petitioner before the 2nd respondent dt.18.10.2007. Ext.P7 :- Copy of the revised authorisation issued by the 2nd respondent to the petitioner dt.29.10.2007. Ext.P8 :- Copy of the detailed representation submitted by the petitioner before the 2nd respondent dated 15.11.2007. Ext.P8(a) :- Copy of the revised application submitted alongwith Ext.P8 before the 2nd respondent dt.15.11.2007. Ext.P9 :- Copy of the order of the Hon'ble Supreme Court in I.A.No.157/2005 dt.2.1.2007. Ext.P10 :- Copy of the order of the Andhra Pradesh Government bearing No.GO (MS) No.4 dt.5.1.2008. Ext.P11 :- Copy of the order of the Supreme Court dt.5.2.2008 in W.P.(C) No.1022/89. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).Nos.7519, 18705 & 24572 of 2008 ================== Dated this the 9th day of March, 2011 J U D G M E N T In these three writ petitions, the petitioners are retired judicial officers. They seek the following reliefs; W.P.(C).No. 7519/2008: “A. Call for the records relating to Ext.P7 from the 2nd Respondent and quash Ext.P7 by the issue of a Writ of certiorari or other appropriate writ direction or order; B. Issue a writ of mandamus commanding the 2nd Respondent to re-fix the basic pension of the petitioner at Rs.6425/- with effect from 1.1.1996 and at Rs. 9368/- w.e.f. 1.4.2004 and issue necessary authorisation to the petitioner and the pension disbursing authority concerned for drawal of the arrears and future pension accordingly with benefit of Dearness Reliefs at the Central Rates;” W.P.(C).No. 18705/2008: “A. Call for the records relating to Exts.P4 and P6 from the 2nd Respondent and quash Exts.P4 and P6 by the issue of a Writ of certiorari or other appropriate writ direction or order; B. Issue a writ of mandamus commanding the 2nd Respondent to re-fix the basic pension of the petitioner at Rs.6425/- with effect from 1.1.1996 and at Rs. 9368/- w.e.f. 1.4.2004 and issue necessary authorisation to the petitioner and the pension disbursing authority concerned for drawal of the arrears and future pension accordingly with benefit of Dearness Reliefs at the Central Rates;” W.P.(C).No. 24572/2008: “i) call for records relating to Exhibits P1 to P6; ii) issue a writ of certiorari or other appropriate writ or order or direction quashing Exhibit P3; iii) issue a writ of mandamus or other appropriate writ or order or direction directing the respondents, with special reference to respondent No.2, to provide the benefits to the petitioner as shown in/sought for Exhibits P4 and P6 forthwith; w.p.c.7519/08 etc. 2 iv) issue a writ of mandamus or other appropriate writ or order or direction directing the respondent No.2 to dispose of Exhibit P4 and P6 in a time limit to be fixed by this Hon'ble Court and after affording an opportunity of being heard to the petitioner and in effect directing the said respondent to allow the said Exhibits as prayed for.” 2. According to the petitioners, the issue regarding fixation of their qualifying service for retirement benefits is squarely covered in favour of the petitioners by the judgment of this Court in W.P.(C). No.1746/2009. Therefore, the petitioners seek the same benefits as in the said judgment. In respect of their other grievances, the petitioners submit that the said grievances may be left open to be agitated before the appropriate authorities separately. 3. The learned Government Pleader does not dispute the fact that the issue involved is covered by the judgment of this Court in W.P.(C). No.1746/2009. The said judgment reads thus: 'W.P(C)No.7386 of 2009 was heard and judgment was reserved on 2/7/2010. Thereafter, it was brought to my notice that WP(C) No.1746 of 2009 also involves similar questions. Therefore, both these Writ Petitions were heard together today. 2. W.P(C)No.1746 of 2009 is filed by the Kerala Retired Judges Association and two retired District Judges. The State of Kerala and the Accountant General (A&E), Kerala, were the respondents originally in the Writ petition. Subsequently, a retired District Judge got himself impleaded as additional 3rd respondent. The first petitioner is a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Act. Second and third petitioners retired from service as Selection Grade District Judges on 30/4/1989 and 31/3/1992 respectively. 3. Pursuant to the directions issued by the Supreme Court in All India Judges Association v. Union of India, the Government of India constituted the First National Judicial Pay Commission under the Chairmanship of Hon'ble Justice K.J. Shetty. Justice Shetty Commission submitted its report on 11/11/1999. The Supreme Court in Paragraph w.p.c.7519/08 etc. 3 (37) of the judgment in All India Judges Association and Others Vs. Union of India and others [2002(4) SCC 247] held thus: “Subject to the various modifications in this judgment, all other recommendations of the Shetty Commission are accepted.” In Paragraph 40 of the judgment, the Supreme Court held thus: “Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court. The proceedings, if any, for implementation of the directions given in this judgment shall be filed only in this Court and no other court shall entertain them.” 4. Chapter 22 of Justice Shetty Commission Report deals with the recommendation regarding retirement benefits, while Chapter 23 deals with the Pension Structure for Past Pensioners. In Paragraph 23.18, it was recommended thus; “The Revised Pension of the Retired Judicial Officers should be 50% of the minimum pay of the post held at the time of retirement, as revised from time to time.” That recommendation was accepted by the Supreme Court without any modification. 5. In the light of the directions contained in the judgment of Supreme Court, the Government of Kerala issued G.O(Ms.) No.231/2001/Home dated 12/12/2001 (Ext. P2 in W.P.(C) No.1746 of 2009) fixing the revised pay scales for Judicial Officers. According to the petitioners, when the Supreme Court proposed to initiate Contempt of Court proceedings against the first respondent (State of Kerala) for not implementing the directions for payment of the revised pension and other benefits to Retired Judicial Officers, the first respondent issued G.O.(MS)No.157/2006/Home dated 30/8/2006 (Exhibit P3 in W.P.(C) No.1746 of 2009). Paragraph (13) of Exhibit P3 deals with revision of pension with effect from 1/1/1996, which reads as follows: “The following revision of pension is sanctioned w.e.f. 1-1-1996. (a) Post 1.1.1996 Pensioners i) 10 years service shall be the minimum qualifying service for pension. ii) 50% of the last pay drawn pay shall be the pension. There will be no ceiling on the maximum pension. iii) Commutation of the pension to the extent of 50% will be allowed. Restoration of commuted pension will be done only after 15 years. This will apply to all those who get the benefit of 50% commutation. (b) Pre 1.1.1996 Pensioners w.p.c.7519/08 etc. 4 (i) Pension of the retired judicial officers shall be 50% of the minimum pay of the post held at the time of retirement and as revised from time to time. (ii) There shall not be any ceiling limit on the maximum pension payable. This order is issued in modification of G.Os read as 2nd and 3rd paper above relating to DA, Perks and Pension.” Exhibit P3 does not provide that the full qualifying service of 30 years should be insisted for the grant of full pension for the Judicial Officers, who retired from service prior to 1/1/1996. Petitioners 2 and 3 submitted applications before the second respondent in the prescribed format for revision of their pension. The second respondent issued an authorisation to petitioners 2 and 3 for sanctioning drawal of revised pension and the arrears from 1/1/1996. The case of the petitioners is that pension was so fixed not on the basis of G.O(Ms) No.157/2006/Home, but taking into account the actual qualifying service, which was less than 30 years. Representations were submitted by the petitioners, but no relief was granted to the petitioners. Exhibit P6(b) reply dated 17/1/2008 was given to the third petitioner by the Senior Accountant Officer, in which it was stated that G.O.(Ms) No. 157/2006/Home dated 30/8/2006 (Exhibit P3) applies only to Judicial Officers who were in service on or after 1/1/1996 only. This is patently wrong on a perusal of Exhibit P3, Government Order which is quoted above, which deals with pre 1996 pensioners as well. 6. It is submitted that a similar question arose before the Supreme Court in the case of the Retired Judicial Officers of Andhra Pradesh. The Government of Andhra Pradesh issued a Government Order dated 17/7/2004 providing that in respect of Judicial Officers who had put in less than the full qualifying service, there shall be proportionate reduction in the pension benefits. I.A. No.157 was filed by the Andhra Pradesh Retired Judicial Officers Association before the Supreme Court, which was disposed of along with several other interlocutory applications, as per Exhibit P7 order dated 21/11/2006. The relevant portion of the order passed by the Supreme Court reads as follows: “I.A. No. 157: This application has been filed by the Andra Pradesh Retired Judicial Officers' Association for setting aside G.O.Ms. No.79, Law Dep., dated 17th July, 2004, to the extent of the direction that who have put in full qualifying service at the time of retirement, and in respect of Judicial Officers who have put in less than the full qualifying service, there shall be proportionate reduction. Further prayer is that the Government of Andhra Pradesh be directed to revise the pension uniformly to all past pensioners irrespective of length of qualifying service, at 50% of minimum pay in the revised pay scale of the post from which the past pensioner retired. Chapter -23 of the Shetty Commission Report deals with pension structure for past pensioners. Chapter 22 deals with retirement benefits. w.p.c.7519/08 etc. 5 For considering the pension structure for past pensioners, Chapter -22 has not relevance. The first recommendation of para 23.18 contained in Chapter -23 reads as under: “The Revised Pension of the Retired Judicial Officers should be 50% of the minimum pay of the post held at the time of retirement, as revised from time to time.” Paragraph 22.33 in Chapter 22 recommends that the qualifying years of service should be 33 years for earning full pension except in the States of Tamil Nadu and Kerala. This clause has no relevance for working out the benefit of pension under clause (1) of recommendation in para 23.18 above- noted. No other material has been shown to us which may justify the stipulation in para 8 of the order of the Andhra Pradesh Government, dated 17th July, 2004, about the requirement of full qualifying service at the time of retirement and proportionate reduction in respect of Judicial Officers who have put in less than full qualifying service. The aforesaid recommendation has been accepted by this Court in its judgment reported in [2002(4) SCC 247]. Under these circumstances, the direction in respect of full qualifying service in the Government order dated 17th July, 2004, is set aside, as prayed in the application. The Government of Andhra Pradesh is directed to work out the benefit strictly in terms of the first recommendation contained in para 23.18 of the Shetty Commission, as quoted above. The interlocutory Application is disposed of accordingly.” 7. A contention was raised before the Supreme Court by the State of Andhra Pradesh that Chapter 22 of the Shetty Commission Report should be made applicable for the pension structure for past pensioners. That contention was negatived by the Supreme Court holding that Chapter 22 of the Shetty Commission Report has no relevance in considering the pension structure for past pensioners. Based on Paragraph 23.18 of Shetty Commission Report, the Supreme Court held that the direction in respect of full qualifying service in the Government Order dated 17/7/2004 was liable to be set aside. 8. It is pointed out by the petitioners that in Exhibit P9 order dated 5/2/2008 the Supreme Court directed the petition filed by a retired District Judge of Utter Pradesh to be sent to the High Court of Allahabad to be treated as a writ petition under Article 226 of the Constitution of India. The relevant portion of Exhibit P9 order reads as follows: “I.A. 197: Petitioner was a District Judge in Utter Pradesh, who retired on w.p.c.7519/08 etc. 6 30.4.1985. The petitioner seeks re-fixation of his pension at 50% of the minimum of supertime pay-scale, as recommended by the High Court. As the petitioner has retired as Judicial Officer from the State of U.P., this I.A. is directed to be sent to the High Court of Allahabad to be treated as a writ petition under Article 226 of the Constitution of India. Petitioner shall be informed of the fact that the I.A. is sent to the High Court for treating it as Writ Petition. The High Court, on receipt of the application, register it as a writ petition and shall send a notice to the petitioner. The State be impleaded as respondent and notice be also issued to the State Government. Appropriate corrections may also be made in the cause title and additional pleadings may be permitted. I.A. is disposed of accordingly.“ 9. The petitioners contend that since the law has been laid down by the Supreme Court clearly in Exhibit P7, it is not necessary for the petitioners to file a petition before the Supreme Court by way of a clarification petition and that the Writ Petition is maintainable to challenge the Government Orders, which go against the law laid down by the Supreme Court in Exhibit P7 order. 10. In the Counter affidavit filed by the first respondent, it is stated that as per the letter No.57314/C3/2005/Home dated 15/3/2007 [Exhibit R1(a)], the Government have clarified that the linkage between qualifying service and pension is to be applied in cases where the qualifying service is less than the maximum. The maximum qualifying service for computation of pension is 30 years. The second and third petitioners were having a qualifying service of 24 years and 27 years respectively. The pension was worked out in the case of petitioners 2 and 3 on the basis of the letter dated 15/3/2007. 11. The respondents also rely on G.O.(Ms). No. 149/2009/Home dated 15/9/2009 [Exhibit R1(b)]. Paragraphs 8 and 9 of Exhibit R1(b) are extracted below for easy reference: 8. 10 years service shall be the minimum qualifying service for pension in respect of post 01.01.96 pensioners. Maximum may be specified as 30 years as in State Rules. It is also confirmed that the linkage between qualifying service and pension is to be applied in cases where the qualifying service is less than the maximum. 9. At present Family Pension is sanctioned @ 30% of pay last drawn. Revision of Family Pension may be made to both pre 1996 and post 1996 retirees @ 30% of pay last drawn duly revised w.e.f. the date of implementation of pay revision.” 12. A reply affidavit is filed on behalf of the petitioners. It is stated that clause 13 (b) of Exhibit P3, which provides for pension at 50% of the minimum pay to the Retired Judicial Officers who retired before 1/1/1996 was as per Paragraph 23.18 of Shetty Commission Report. The Supreme Court, in Exhibit P7 order, clarified the position in w.p.c.7519/08 etc. 7 respect of the Judicial Officers of Andhra Pradesh. The first respondent is a party to the proceedings in which Exhibit P7 order was passed. It is contended that Exhibit R1(b) Government Order dated 15/9/2009 was passed during the pendency of the Writ Petition and therefore, it is liable to be ignored. 13. In W.P(C)No.7386/2009, the State of Kerala challenges the order dated 6/8/2008 (Exhibit P6) passed by the Kerala Lok Ayukta directing payment of pension to a Retired Judicial Magistrate of the First Class at the rate of Rs.4,500/- per month. The Lok Ayukta held that the letter dated 15/3/2007 was beyond the power of the Government. By the issue of that letter, the Government interfered with Sub-clause (b) of Clause 13 of G.O.(Ms) No. 157 dated 30/08/2006 and that it is a clear violation of the directions issued by the Supreme Court. It was also held that G.O.(MS) No.157/2006 could be varied only with the permission of the Supreme Court. 14. The State of Kerala contends that Lok Ayukta has no jurisdiction to pass Exhibit P6 order and that it could only make recommendation to the Government in terms of Section 12 of the Kerala Lok Ayukta Act, 1999. The learned Government Pleader relied on the judgments in State of Kerala Vs. Bernard [2002(3) K.L.T. 254], George A.T. and Others Vs. Saralakumari. P and another [ILR 2007(4) Kerala 442] and State of Kerala and others Vs. Sheela S. and others [ILR 2009(2) Kerala 660]. 15. The learned counsel appearing for the respondent in W.P (C) No.7386 of 2009 submitted that the order passed by the Lok Ayukta is legal and valid and that there is no lack of jurisdiction as alleged by the State. He relied on the decision of the Supreme Court in All India Judges Association and others Vs. Union of India and others [2002 (4) SCC 247] with particular reference to paragraphs 37 and 40. It was contended that had the Government wanted to make any change, they should have got clarification from the Supreme Court. The counsel also relied on the decision in [2006(2) KLT 112] Commissioner of Police v. Abida Beevi in support of the contention that even assuming that the Lok Ayukta had no jurisdiction to pass an order like Ext.P6, if the order renders justice, the High Court need not always interfere with the order, under Article 226 of the Constitution of India. It was held that if the complainant had approached the High Court an order would have been passed in his favour, in such situations, the High Court need not to be too astute to interfere with such orders. 16. In view of the fact that the Supreme Court has laid down the law in Exhibit P7 order that Chapter 22 of the Shetty Commission Report is not applicable to the past pensioners, who retired before 1/1/96, and that their case is covered by Paragraph 23.18 of the Shetty Commission Report, it is not necessary for petitioners in W.P. (C) No. 1746 of 2009 to approach the Supreme Court for any clarification. I am inclined to accept their contention that they can seek the relief by filing a writ petition under Article 226 of the Constitution of India, as was directed to be done by the Supreme Court in Exhibit P9 order. Therefore, I reject the contention of the learned Government w.p.c.7519/08 etc. 8 Pleader that the Writ Petition is not maintainable and the remedy of the petitioners is to approach the Supreme Court for clarification. Equally unsustainable is the contention raised by the State that Chapter 22 of the Shetty Commission Report would be applicable to the retired Judicial Officers who retired prior to 1/1/96 and that qualifying service could be linked with the pension payable to them, in view of the law laid down by the Supreme Court in Exhibit P7 order. The learned Government Pleader contented that paragraph 22.42 of the Shetty Commission Report recommend that State Rules for the time being in force for calculation of pension may apply to Judicial Officers in respect of the States/UTs and therefore, the G.O.(MS). No.149/2009 dated 15/9/2009 and the letter dated 15/3/2007 issued by the Principal Secretary to the Government to the Accountant General would hold good. A similar contention raised on behalf of the State of Andhra Pradesh was rejected by the Supreme Court in Exhibit P7 order and it was held by the Supreme Court that paragraph 22.33 has no relevance for working out the benefit of pension under clause (1) of the recommendation in paragraph 23.18 of the Shetty Commission Report. 17. Now the question would arise whether it is necessary to quash Exhibit R1(b), G.O.(MS) No.149/2009 dated 15/9/2009 and Exhibit R1(a) letter dated 15/3/2007 in order to grant relief to the petitioners in W.P.(C) No.1746 of 2009. I am of the view that it is not necessary in the the following circumstances. Paragraph (8) of Exhibit R1(b) quoted above would apply to post 1/1/96 pensioners. Therefore, the direction therein for linkage between the qualifying service and pension would apply only to post 1/1/96 pensioners. That the Government was conscious of pre 1996 and post 1996 pensioners is clear from paragraph 9 of Exhibit R1(b), which provides for family pension for both pre 1996 and post 1996 retirees. This makes the position clear that linkage with the qualifying service was intended and provided by the Government only in respect of the post 1/1/96 pensioners. Therefore, no clarification of the order of the Supreme Court is required in the case and that it is not necessary to quash Exhibit R1(b) to the extent to which it is misinterpreted to be applicable to the petitioners and similarly situated persons. It is sufficient to declare and clarify that Clause (8) in Exhibit R1(b) (G.O. (MS) No. 149/2009 dated 15/9/2009) does not apply to pre 1/1/96 pensioners. If so, the denial of the benefits of pension at the rate of 50% as provided in G.O. (MS) No. 157/2006 and as provided in paragraph 23.1 of Shetty Commission Report could not be denied to the petitioners. Therefore, I hold that the petitioners in W.P(C) No.1746 of 2009 are entitled to the benefit of clause (b) of Paragraph 13 of G.O.(M.S.) No. 157/2006 dated 30/8/2006 and their pensionary claims should be worked out by the respondents accordingly. The second respondent shall re-fix the basic pension of petitioners 2 and 3 and similarly situated persons in accordance with the above interpretation and the benefits shall be disbursed without delay. W.P (C) No.1746 of 2009 is allowed as above. In view of the decision rendered by me in W.P(C)No.1746 of 2009, I am of the view that the judgment in 2006 (2) K.L.T. 112 w.p.c.7519/08 etc. 9 squarely applies to the case of the petitioner in W.P(C) No. 7386 of 2009. Therefore, I am of the view that, though strictly speaking, the order passed by the Lok Ayukta is without jurisdiction and that Lok Ayukta could only make recommendation to the Government under Section 12 of the Lok Ayukta Act, no interference need be made in the order passed by the Lok Ayukta in view of the interpretation made by me in respect of G.O.(Ms). No. 149/2009 dated 15/9/2009 and the letter dated 15/3/2007 issued by the Principal Secretary to the Government to the Accountant General, Kerala. Accordingly, W.P(C) No.7386 of 2009 is dismissed. The order passed by the Lok Ayukta can be treated as a report under Section 12 of the Lok Ayukta Act and the parties to W.P(C) No.7386 of 2009 shall act accordingly. The