Judicial Officers' Pension | Special Pay Part Of Pay, Should Be Reckoned To Calculate Pension : Kerala High Court

The Kerala High Court on Wednesday held that the special pay granted to judicial officers is a part of their pay and that it is to be reckoned for the purpose of calculation of pension.

The Single Judge Bench of Justice Anu Sivaraman was considering a batch of petitions filed by judicial officers who are either working or have retired from service as District and Sessions Judges, seeking refixation of pension payable to the petitioners and members of the Kerala Judicial Officers Association by reckoning special pay which is paid to them as part of their emoluments.

The Court thus directed the respondent authorities to take appropriate steps to see that the pension of the judicial officers who drew special pay at the time of their retirement is revised and the arrears are also disbursed to them within 3 months from the date of receipt of the copy of the judgment rendered. 

The Court took note of its earlier decision in P. Muralidharan v. State of Kerala (2019), and observed that the Court in that case had ascertained that special pay would come within the definition of pay under Rule 12(23). 

"Special Pay is a benefit which is granted to officers posted in specific posts having administrative responsibilities for the extra work which is done by them. The argument that grant of special pay to some officers will lead to a junior-senior anomaly had been agitated in the earlier litigation also but did not find favour with this Court. The argument cannot be sustained for a moment in view of the fact that the principles on which a difference in pay between a senior and junior is to be considered to be an anomaly are provided in the very same Rule itself. Grant of special pay for administrative duties would not, by any stretch of imagination, result in any junior-senior anomaly since it is a special emolument given for extra work done", it was observed. 

The crux of the dispute in these petitions was regarding the counting of the Special pay as well as the Dearness Allowance while calculating their pension, and pensionary benefits. 

On behalf of the petitioners, it was contended that the orders passed by the Government treating special pay as a special allowance and that it need not be reckoned for the purpose of fixation of pensionary benefits is against the Apex Court decision in All India Judges Association & Ors. v. Union of India & Ors. (2002). The counsels submitted that following this decision, the Government had implemented many of the recommendations of the Shetty Commission vide Government orders, and subsequent to the Supreme Court pointing out the shortcomings in the orders issued by the State Governments and directing the Chief Secretaries to rectify the same, a further GO had been issued granting additional benefits in accordance with the recommendations of the Pay Commission to members of the District Judiciary. 

The counsels for the petitioners submitted that the Justice E.Padmanabhan Commission had also recommended in its report that the recommendations of the Shetty Commission had to be followed with respect to quantum of pension and calculation, which the Apex Court had also directed all State governments to implement. 

It was further pointed out that the said action would also be violative of the Kerala High Court's earlier Single Bench decision in P. Muralidharan v. State of Kerala (2019), where the refusal to reckon the special pay for pensionary benefits had been set aside by the Court, and which was later affirmed in the appeal before the Division Bench. It was thus contended that, "in the light of the declaration of law by this Court in the judgments, the act of the Government in limiting the benefit to the petitioner in that case alone is an affront to the orders and authority of this Court". 

It is in this context that the Court noted that it had, in the earlier round of litigation specifically considered the nature of the special pay granted to judicial officers pursuant to the directions of the Shetty Commission, and ascertained that it would also come within the definition of 'pay' under Rule 12(23).

"The impugned orders passed by the Government, without considering the declaration of law by this Court, are completely unsustainable. The contention of the respondents that special pay cannot be reckoned for the purpose of fixation of pension is without any merit whatsoever", the Court declared while setting aside the impugned orders of the Government. 

Case Title: Kerala Judicial Officers' Association & Anr. v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 36 

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