STATE OF KERALA & ANOTHERversusANIE LUKOSE

                         [2022] 2 S.C.R. 729                             729


                STATE OF KERALA & ANOTHER                                A
                                  v.
                          ANIE LUKOSE
                   (Civil appeal No. 835 of 2022)
                       FEBRUARY 01, 2022                                 B
    [INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
       Service Law – Revision of pay scale – Fixation of pension –
Respondent retired w.e.f 31.07.06 – Filed writ petition seeking
fixation of pension @ Rs.8907/- in pre-revised scale and Rs.19333/
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- in the revised scale – Allowed by Single Judge holding that the
pension in the revised scale was rightly fixed @ Rs.19,333/- on
account of completing the qualifying service – Judgment affirmed
by Division Bench – Appellant inter alia contended that the
respondent had retired after one month of re-joining from the leave
for about two years without allowances, therefore, the order             D
impugned, confirming the order of the Single Judge is wholly
unjustified – On appeal, held: Pension of the respondent was fixed
@ Rs. 19334/- w.e.f. 1.3.2010 – As per Circular G.O.(P) dtd.
19.04.12, for computing 10 months emoluments for the purpose of
average emoluments in respect of an employee, who retired from
                                                                         E
service on or after 1.1.2006 and who during the part 10 months
draws pay in the pre-revised 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
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       F
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
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suspended – Thus, 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– No error in
the impugned order warranting interference.
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                                 729
730             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 835 of
      2022.
            From the Judgment and Order dated 30.07.2018 of the High Court
      of Kerala at Ernakulam in W.A. No. 1513 of 2018.
           G. Prakash, Ms. Priyanka Prakash, Ms. Beena Prakash, Manan
B     Sanghai, Advs. for the Appellants.
            Roy Abraham, Ms. Reena Roy, Akhil Abraham, Himinder Lal,
      Advs. for the Respondent.
              The Judgment of the Court was delivered by
C             J. K. MAHESHWARI, J.
              1. Leave granted.
             2. This appeal arises out of the judgment dated 30.7.2018 passed
      in Writ Appeal No. 1513 of 2018 confirming the judgment dated 19.2.2018
      passed by the learned Single Judge allowing the Writ Petition (C) No.
D
      2573 of 2016.
             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
E     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
F     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
G     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
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         STATE OF KERALA & ANOTHER v. ANIE LUKOSE                             731


her. In the previous round of litigation, the fixation made @ Rs. 7138/- in   A
pre- revised 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
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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.
       5. Learned counsel for the appellant would contend that as per         C
the Circular being G.O.(P) No. 230/2012/Fin. dated 19.04.2012, it is
clarified that for computing the 10 months’ emoluments for the purpose
of average emoluments in respect of employees who retired from service
on or after 1.1.2006, the average emoluments are required to be counted.
The average emoluments have been clarified in Clause 63 of Annexure
P-18 regarding Kerala Service Rules. It is contended that the respondent      D
had retired after one month of re-joining from the leave for about two
years without allowances, therefore, the order impugned, confirming the
order of the learned Single Judge, is wholly unjustified.
       6. On the other hand, learned counsel for the respondent has
argued with vehemence and contended that the Accountant General               E
has rightly made the fixation of the pension in the pre-revised and revised
scales of pay, relying upon the circulars and the order of the High Court
passed earlier. Therefore, the order impugned has rightly been passed
by the High Court, which does not warrant interference.
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      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      G
order of the learned Single Judge. For reverting the arguments of the
appellants with reference to the revised Circular dated 19.4.2012, it is
necessary to refer to the original Circular G.O. (P) No. 211/2011/Fin
dated 7.5.2011, specially Clause 2(2) relevant to the facts of the present
case, which is reproduced as thus:
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732            SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A           “For computing 10 months’ emolument for the purpose of average
            emoluments, in respect of employees who retired from service on
            or after 1.1.2006 and who , during part of the said period of 10
            months, drawn pay in the pre-revised scale, their pay in the
            pre-revised scale may be enhanced notionally by adding DA at
            74%”.
B
            8. The said clause has been modified vide Circular G.O.(P) No.
      230/2012/Fin dated 19.4.2012 , which is reproduced as thus:
            “For computing 10 months’ emoluments for the purpose of average
            emoluments in respect of employees who retired from service on
C           or after 1.1.2006 and who, during the part of 10 months, drew pay
            in the pre-revised 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 with effect from 1.2.2006. Para 2.2 of GO
            read above and modified to this extent. Para 2.1 of the GO read
D           above shall not be applicable to the above category.”
             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 pre-revised scale, their pay in
E     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
F     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
G     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.
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          STATE OF KERALA & ANOTHER v. ANIE LUKOSE                              733
                     [J. K. MAHESHWARI, J.]

        10. In view of the foregoing discussion, we do not find any error       A
in the order impugned, warranting interference in this appeal. Accordingly,
this appeal is dismissed. No order as to costs.

Divya Pandey                                                Appeal dismissed.
(Assisted by : Deepak Panwar, LCRA)
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