Case: STATE OF KERALA &amp; ANOTHER Vs. ANIE LUKOSE

3. The facts giving rise to the present appeal are that 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 pre-revised scale at Rs. 8907/- p.m.. Inadvertently, in the verification report, the basic pension was erroneously shown as Rs. 7138/- p.m. (pre-revised). 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 the earlier round of litigation in W.P. (C) No. 30847 of 2012. The High Court vide judgment dated 28.02.2013 held that the fixation of pension at Rs. 7138/- was erroneous and his pension of Rs. 8907/- (pre-revised) ought to have been taken into account at the time of revision of the pay and pension w.e.f. 1.1.2006. The said judgment has not been challenged and therefore became final. In view of the said fact, prayer was made in WP(C) No. 2573 of 2016 to fix the pension @ Rs. 8907/- in pre-revised and Rs. 19333/- as per revision of pay and pension of the appellant.4. 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.

Court's reasoning:
7. After having heard learned counsel for the parties at length and on perusal of the fixation made by the office of the Accountant General, sent to the Principal Secretary (Finance), Finance (Pension B) Department, Thiruvananthapuram, it is clear that the pension of the respondent was fixed at @ Rs. 19334/- w.e.f. 1.3.2010. The said fact has not been controverted in the counter-affidavit, as apparent from the order of the learned Single Judge.9. On perusal of the aforesaid, it is clear 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 prerevised scale, their pay in the pre-revised 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 of Annexure P-18, 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 re-instated 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, it is clear that 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.