N D P Namboodripad (Dead) By Lrs vs Union Of India & Ors

2. The appellant entered the Kerala Higher Judicial Service as a directly recruited District & Sessions Judge and was later elevated as a Judge of the Kerala High Court in the year 1972. He retired on 31.7.1980 with 23 years of pensionable service which included 8 years of service as a Judge of the High Court. At the time of his retirement, the appellant was in receipt of a total emolument of Rs.4,237/- comprising Basic Pay of Rs.3,500/-, Dearness Allowance of Rs.437/- and Special Allowance of Rs.300/-.

Provided that the pension under clause (a) and the additional pension under clause (b) together shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in the case of any other Judge."

(Note : The special additional pension was Rs.700/- per annum and the ceiling was Rs.3500/- per annum under clause (b) and these were substituted as Rs.1600/- and Rs.8000/- respectively with effect from 1.11.1986) The pension payable to the appellant was fixed at Rs.17,300/- per annum (comprised of Rs.13,800/- as ordinary pension and Rs.3,500/- as special additional pension).

2 30 Increase due to Revision : Rs. 192/- p.m. or Rs. 2304/- p.a. "Consolidation of Pension as per O.M. dt. 16.4.1987 Amount Per Annum

3. Increase due to recalculation at 50% of Pay Rs. 2,304/-

The explanatory notes to the two amendments clarify that the State Government decided to amend the Service Rules to give more clarity and to avoid ambiguity in calculating pension and the term 'emolument' for the purpose of calculation of pension will comprise of only pay and dearness pay. We have already held accordingly while interpreting unamended Rule

62. The amendments merely reinforce our view.

19. We, therefore, accept the contention of the State Government that Rule 62 does not enable the addition of dearness allowance and special allowance to the pay for purposes of pension. The 'emolument' of the appellant was rightly taken as Rs.3500/- per month. We find no error in calculation of the consolidated ordinary pension at Rs.29,220/-.

Re : Special Additional Pension :

20. Special additional pension is provided for under Para 2(b) of Part III of first Schedule to the Act. In M.L. Jain (III) - AIR 1991 SC 928, the ceiling prescribed under para 2(b) was held to be unconstitutional being violative of Article 14 of Constitution of India. Therefore, neither the ceiling of Rs.8,000/- introduced with effect from 1.11.1986, nor the earlier ceiling of Rs.3500/- is valid. As a consequence, the special additional pension should be taken as Rs.5,600/- per annum (that is Rs.700x8) instead of Rs.3500/- from 1.1.1986 and Rs.12,800/- per annum (that is Rs.1600x8) instead of Rs.8,000/- from 1.11.1986. In fact, neither Union of India, nor State Government dispute this position.

21. We, therefore, allow these appeals in part and hold as follows :

22. We direct that the pension due be recalculated and settled accordingly. If any excess payment has been made to the appellant, it shall not, however, be recovered from the Legal Representatives of the deceased appellant. Parties to bear their respective costs.