IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WP(C).No. 17677 of 2007(D) ---------------------------------- PETITIONER : ---------------- ARIKKAT VIJAYAN MENON, RETD. CHAIRMAN OF KERALA AGRICULTURAL INCOME TAX & SALES TAX APPELLATE TRIBUNAL, RESIDING AT 44/809 E, MADHAV, ACHUTHAM LAY OUT, PERANDOOR ROAD, KOCHI-17. BY ADV. SMT.P.V.ASHA RESPONDENTS : ------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. ACCOUNTANT GENERAL (A & E), KERALA, P.B.NO.5607, M.G.ROAD, THIRUVANANTHAPURAM-695 039. 3. DISTRICT TREASURY OFFICER, ERNAKULAM. 4. STATE BANK OF TRAVANCORE, REPRESENTED BY ITS MANAGER, M.G.ROAD, ERNAKULAM. 5. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.M.PATHROSE MATTHAI (SR.) - R4 SRI.SAJI VARGHESE - R4 GOVERNMENT PLEADER SRI.P.NANDAKUMAR - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17677 of 2007(D) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: TRUE COPY OF THE COMMON JUDGMENT DATED 14.11.1986 IN O.P.7488/1983 AND 3157/1984 EXT.P2: TRUE COPY OF G.O.(RT) NO.42/87/TD DATED 20.01.1987 OF THE 1ST RESPONDENT EXT.P3: TRUE COPY OF THE JUDGMENT DATED 05.07.1991 IN W.A.359/1989 AND 361/1989 EXT.P4: TRUE COPY OF THE INTERIM ORDER IN W.P.(C) 16287/04 EXT.P5: TRUE COPY OF THE ORDER DATED 17.08.2004 G.O.(P) 569/2003(14)/ FIN DATED 27.10.2003 EXT.P6: TRUE COPY OF THE G.O.(MS) NO.157/2006/HOME DATED 30.08.2006 EXT.P7: TRUE COPY OF REPRESENTATION DATED 14.09.2006 SUBMITTED BEFORE THE RESPONDENTS 1 AND 2 EXT.P8: TRUE COPY OF JUDGMENT DATED 21.12.2006 IN W.P.(C) 16287/2004 EXT.P9: TRUE COPY OF LETTER NO.1224/D3/07/TD DATED 07.05.2007 EXT.P10: TRUE COPY OF STATEMENT OF ACCOUNTS FURNISHED BY STATE BANK OF INDIA -TRUE COPY- P.A. TO JUDGE pac P.N.RAVINDRAN,J. ------------------------- W.P ( C) No. 17677 of 2007 -------------------------- Dated this the 22nd August, 2008 J U D G M E N T The petitioner was formerly the Chairman of the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal. He retired from service on 31.5.1984 on attaining the age of superannuation. The petitioner has in this writ petition challenged Exhibit P9 letter dated 7.5.2007 sent by the Secretary to Government, Taxes Department informing him that he is not entitled to the benefit of revision of pension and certain other benefits granted to Judicial Officers in the Subordinate Judiciary by Exhibits P5 and P6. The petitioner has this writ petition prayed for the following reliefs. “(i) Call for the records leading to Ext.P9 by issuing a writ of certiorari or other appropriate writ, order or direction' (ii) Declare that rejection of petitioner's request by Ext.P9 is illegal and contrary to the finding in Ext.P1 judgment and that petitioner is entitled to get all the benefits admissible to a retired Selection Grade District Judge, as sanctioned in Ext.P4, P6 or any other orders W.P ( C) No. 17677 of 2007 2 issued or to be issued by Government from time to time as applicable to a Selection Grade District Judge who retired in 1984 after rendering a pensionable service as equal to that of petitioner. (iii) issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents 1 and 4 to issue orders according sanction for disbursement of all the benefits admissible to the Selection Grade District Judges retired before 1986 as ordered from time to time and to direct the respondents to disburse all such benefits to the petitioner based on the orders issued from time to time in the case of Selection Grade District Judges including arrears of pension and all other allowances on par with the retired Selection Grade District Judges” 2. While the petitioner was in service, he was appointed as Chairman of the Kerala Agricultural Income Tax & Sales Tax Appellate Tribunal on 13.12.1972. He was directly recruited to that post from the Bar. Pursuant to the recommendations of the Pay Commission in 1974, the Chairman of the Kerala Agricultural Income Tax & Sales Tax Appellate Tribunal was given the scale of pay of District Judge. In the year 1978 the Pay Revision Commission sanctioned the scale of pay of Selection Grade District Judge to the petitioner. Later, that was modified. The petitioner challenged the same in O.P No.7488 of 1983 and O.P No.3157 of 1984. By Exhibit P1 judgment delivered on W.P ( C) No. 17677 of 2007 3 14.11.1986, a learned Single Judge of this Court held as follows: “5. By G.O (MS) 41/79/TD dated 7.3.1979, the Government ordered that the scale of pay of Chairman, Kerala Agricultural Income Tax and Sales tax Appellate Tribunal be raised to the scale of pay of Selection Grade District Judges. By this order, the petitioner was put on a par with the Selection Grade District Judges. When the scale of pay of Selection Grade District Judge was revised, the benefit of that revision must enure to the petitioner as well. In this view, when the Government revised the scale of pay of Selection Grade District Judges to Rs.2500-125/2-2750, the scale of pay of the Chairman, Kerala Agricultural Income tax and Sales tax Appellate Tribunal should also be deemed to have been enhanced to that scale. The argument advanced by the learned Government Pleader appearing in the case is that the petitioner was given a personal benefit of the higher scale by G.O (MS) 41/79/TD dated 7.3.1979 and that he will not be entitled to the benefit of the further revision of scales of pay of the Selection Grade District Judges. This argument cannot be accepted because the abovementioned Government order did not place the petitioner in the scale of pay of Rs.2000-125/2-2250 but placed him under the said scale “which is the present scale of pay of the Selection Grade District Judges”. This shows that the Chairman, Kerala Agricultural Income tax and Sales tax Appellate Tribunal was placed on a par with a Selection Grade District Judge. When he was so placed, the revision of scale of pay of the Selection Grade District Judge must also enure to the Chairman of the Tribunal. In this view, when the scale of pay of Selection Grade District Judges was revised to Rs.2500-125/2-2750 it must enure to the benefit of the Chairman of the Tribunal as well. As in the W.P ( C) No. 17677 of 2007 4 case of Selection Grade District Judges, the petitioner is also entitled to the arrears of salary in the revised scale from 1.7.1978 till the new revision was ordered by the Government.” 3. The Government implemented the decision of this Court in Exhibit P1 by issuing Exhibit P2 Government Order. The State Government also carried the matter in appeal by filing W.A Nos.357 and 361 of 1989. By Exhibit P3 judgment delivered on 5.7.1991, the Writ Appeals were dismissed. It is not in dispute that Exhibit P1 judgment has thus attained finality. The dispute involved in this writ petition is whether the petitioner is entitled to the benefits flowing from Exhibits P5 and P6 and other Government Orders applicable to retired Judicial Officers in the Subordinate Judiciary. By Exhibit P5, the pensionary benefits of Judicial Officers in the Subordinate Judiciary were revised with effect from 1.1.1996. By Exhibit P6, serving/retired Judicial Officers were also given certain other benefits. The benefits granted to retired Judicial Officers of the Subordinate Judiciary in Exhibit-P6 are as follows: “10. Domestic help allowance to retired judicial officers: Domestic help allowance of Rs.1250 p.m. is sanctioned to the retired Judicial Officers w.e.f. W.P ( C) No. 17677 of 2007 5 1.11.1999 on production of a certificate to this effect. 11. Medical allowance to retired judicial officers Medical allowance of Rs.100 p.m is sanctioned to the retired Judicial Officers w.e.f. 1.11.1999 on condition that only the difference between medical allowance payable and what has actually been paid will be reimbursement. 12. Medical facilities: All the Medical facilities that are being given to serving Judicial Officers with regard to treatment and reimbursement of expenditure, are made applicable to retired judicial officers also. 13(b) The following revision of pension is sanctioned with effect from 1.1.1996: Pre.1.1.1996 Pensioners: (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.” 4. The petitioner claimed the benefit of Exhibits P5 and P6 Government Orders by filing Exhibit P7 representation. He thereafter filed WP (C ) No.16287 of 2004 in this Court. By Exhibit P8 judgment delivered on 21.12.2006, this Court directed the respondents to consider Exhibit P7 (that was produced and marked as Exhibit P10 W.P ( C) No. 17677 of 2007 6 therein) and pass orders thereon. As directed in Exhibit P8 judgment, the Government considered the petitioner’s representation and informed him by Exhibit-P9 that his request cannot be granted as the Chairman of the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal is not a member of the Subordinate Judiciary. Hence this writ petition. 5. I have heard Smt.P.V. Asha, the learned counsel appearing for the petitioner and Sri. P.Nandakumar, the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner contended that in view of Exhibit P1 judgment of this Court which has become final, the respondents cannot take the plea that the petitioner is not entitled to service/pensionary benefits at par with those available to Selection Grade District Judges. The learned counsel for the petitioner also contended that the stand taken by the Government in Exhibit P9 is arbitrary and is in contempt of this Court. Per contra, the learned Government Pleader appearing for the respondents relying on the counter affidavit filed on behalf of the first respondent contended that as the petitioner was not a member of the Subordinate W.P ( C) No. 17677 of 2007 7 Judiciary of the State, he is not entitled to the benefits flowing from Exhibits P5 and P6. 6. I have considered the submissions made at the Bar by the learned counsel on either side. In the light of the judgment of this Court, evidenced by Exhibit P1, which has been upheld by Exhibit P3 and has become final, the official respondents cannot take the plea that the petitioner is not entitled to service/pensionary benefits at par with Selection Grade District Judges. The stand taken in Exhibit P9 is therefore plainly untenable. By Exhibit P5, retired Judicial Officers of the Subordinate Judiciary including Selection Grade District Judges were given revised pensionary benefits. By Exhibit P6, they were given certain other additional benefits as well. In the light of Exhibit P1 judgment of this Court, the petitioner is also entitled to the said benefits. Denial of the said benefits to the petitioner is in my considered opinion arbitrary and discriminatory and runs counter to the directions issued by this Court in Exhibit P1 judgment. The respondents cannot deny the benefits flowing from Exhibits P5 and P6 to the petitioner on the ground that he was not a member of the Subordinate Judiciary. W.P ( C) No. 17677 of 2007 8 I therefore allow this writ petition, quash Exhibit P9 and direct the respondents to extend the benefits flowing from Exhibits P5 and P6 and other benefits, if any, extended to retired Selection Grade District Judges to the petitioner. The benefits flowing from Exhibits P5 and P6 shall be quantified and disbursed to the petitioner within a period of three months from the date on which the petitioner furnishes a copy of this judgment. If by other Government Orders retired Selection Grade District Judges have been given any other benefits, the Government shall extend such benefits also to the petitioner, without driving him to another round of litigation. (P.N.RAVINDRAN, JUDGE) ma W.P ( C) No. 17677 of 2007 9 W.P ( C) No. 17677 of 2007 10