Pension Of High Court Judge Who Has Been Re-appointed After Retirement As Ombudsman Cannot Be Deducted From Salary: Kerala HC

The Kerala High Court recently considered the question as to whether the pension of a High Court judge, who has been reappointed as an Ombudsman after retirement, could be deducted from his salary, and answered the same in the negative. 

Justice Anu Sivaraman, observed in this regard, 

"the provisions of the Act (Panchayat Raj Act) and the Rules (Ombudsman for Local Self Government Institutions (Inquiry of Complaints and Service Conditions) Rules, 1999) are quite clear in as much as the provision specifically provides that a person appointed as Ombudsman would be entitled to salary and allowances equivalent to that of a High Court Judge. The Act or the Rules, admittedly, do not provide for any deduction of pension". 

The Court went on to categorically lay down that,

"The pension payable to a High Court Judge is deferred payment for his service as such and unless there is a specific provision in the enactment or the Rules which provides for the appointment of Ombudsman for deducting the amount drawn by the appointee as pension for his service as a High Court Judge, there can be no deduction on the basis of the subjective satisfaction of the officers occupying the post of respondents 2 (Accountant General (A&E), Kerala), and 3 (State of Kerala represented by Secretary, Local Self Government Department), or any of their subordinate officers". 

The Case:

The Court in this case was considering the writ petition filed by retired judge of the Kerala High Court, Justice K.K. Denesan, who sought the interference of the Court through the issuance of an appropriate writ in order to enforce his legitimate right to get full salary and allowances on appointment as Ombudsman without reducing the amount of pension paid to him. 

It was averred by the Senior Advocate K. Jaju Babu on behalf of the petitioner that the latter had been appointed as an Ombudsman under the Kerala Panchayat Raj Act and Rules, vide Order dated December 22, 2017. He was accordingly sworn in as an Ombudsman and discharged his duties until December 21, 2020. The senior counsel relied upon Section 271 G of the Panchayat Raj Act as well as Rule 4 of the Ombudsman for Local Self Government Institutions (Inquiry of Complaints and Service Conditions) Rules, 1999 to content that the petitioner was entitled to the salary and allowances as are admissible to a High Court judge. He pointed out that the petitioner was however, only paid the salary of a High Court Judge after deducting the pension being received by him.

It was averred that when a representation was submitted before the before the Accountant General (2nd respondent herein) for fixation of salary in this regard, it was responded to by the Senior Accounts Officer vide an order dated May 5, 2021, who relied on a Government letter, and thereby fixed the salary deducting the pension drawn by the petitioner for the service he rendered as the High Court Judge. 

It was submitted by the Senior Counsel that there was no provision stipulating the deductions of the pension paid on account of earlier service rendered as a High Court Judge from the amounts payable to the petitioner for service rendered by him as Ombudsman. The counsel also placed reliance on the Apex Court decision in V.S. Mallimath v. Union of India & Anr. (2001) to contend that it was only in cases where the Act or the Rules provides for deduction of the pension already drawn being made from the salary payable that such reductions would be possible.

On the other hand, it was contended by the respondents that since the petitioner is a retired High Court Judge, and is drawing pension for his prior service, his pay and allowances are to be fixed less the pension drawn as was done in the case of other judges who are reemployed after retirement. It was further contended that the Principal Secretary to Government, Local Self Government (IA) Department had clarified that since the petitioner is a retired High Court Judge, he is eligible for pay and allowances as per Rule 100 Part III, KSR and that his pay and allowances shall be fixed as stipulated therein. The counsels contended that as per the provisions of the Act and Rules, the pay and allowances admissible to the Ombudsman, if the person appointed is a retired Judge, who is in receipt of pension has not been specified. 

The Senior Government Pleader appearing on behalf of the respondent submitted that in the case of re-employed Supreme Court/High Court Judges appointed as Commissions or Committees of Enquiry, the Central Government had issued Office Memoranda stating that the pay together with pension and pension equivalent or other forms of retirement benefits should be restricted to Rs.2,25,000 per month in case of retired High Court Judges and Rs.2,50,000 per month in case of retired Chief Justice of High Courts/Judges of Supreme Court. 

Findings of the Court:

The Court in this case found that neither the statute nor the rules permit any deduction of the pension drawn in the capacity of a High Court Judge from the amount payable to the petitioner. 

"The contention that the petitioner is a reemployed pensioner who is, in any manner, governed by the provisions of the Kerala Service Rules is a completely erroneous assumption which I am surprised that officers like respondents 2 and 3 are still laboring under. A High Court Judge draws pension in terms of the specific provisions of the High Court Judges (Salaries and Conditions of Service) Act, 1954 as amended from time to time as well as the High Court Judges Rules, 1956", it observed. 

The Court noted that when the Court had earlier in this matter, directed the consideration of the representation that was filed before the Accountant General for fixation of salary, this was not done. The Court thereby set aside the order of the Senior Accounts Officer, as well as the letter, which was signed by a Special Secretary for the Additional Chief Secretary to Government addressed to the Deputy Accountant General in the Office of the Accountant General, which had stated that the petitioner would be entitled to salary by reducing the amount of pension he had been receiving for his service as Judge in the High Court of Kerala and Upalokayukta. 

The Court therefore found that the petitioner is entitled to the salary applicable to a High Court Judge at the relevant time. 

The Court thus directed the Government to pass an appropriate order granting the benefit of pay and allowances of a High Court Judge to the petitioner. It further directed that the arrears also ought to be disbursed to the petitioner, without delay, within a period of 3 months. 

The petitioner in this case was represented by Senior Advocate K. Jaju Babu, and Advocates M.U. Vijayalakshmi and Brijesh Mohan. Senior Government Pleader Ranjit K.R. appeared on behalf of the respondents. 

Case Title: Justice K.K. Denesan (Retd. Judge) v. Senior Accounts Officer & Ors. 

Citation: 2023 LiveLaw (Ker) 23

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