STATE OF KERALA & ANOTHER versus ANIE LUKOSE

Citation: [2022] 2 S.C.R. 729 · Decided: 01-02-2022 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Dismissed
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Judgment (excerpt)

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[2022] 2 S.C.R. 729
729
STATE OF KERALA & ANOTHER
v.
ANIE LUKOSE
(Civil appeal No. 835 of 2022)
FEBRUARY 01, 2022
[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/
- 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
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
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
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 – 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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SUPREME COURT REPORTS
[2022] 2 S.C.R.
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
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
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.
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
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
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her. In the previous round of litigation, the fixation made @ Rs. 7138/- in
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
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