Kerala High Court
K.Balakrishnan Nair vs Union Of India on 7 January, 2020
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941
WP(C).No.16604 OF 2019(A)
PETITIONER:
K.BALAKRISHNAN NAIR,
AGED 71 YEARS,
FORMER CHAIRMAN OF KERALA ADMINISTRATIVE TRIBUNAL,
'KARTHIKA', ROSHAN LANE, BANERJI ROAD,
COCHIN-682018.
BY ADVS.
SRI.P.GOPAL
SRI.B.MURALEEDHARAN
SRI.SANKAR P.PANICKER
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
INDIA, DEPARTMENT OF PERSONNEL AND TRAINING IN THE
MINISTRY OF PERSONNEL,
PUBLIC GRIEVANCES AND PENSIONS, LOK NAYAK BHAVAN, NEW
DELHI-110001.
2 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT, PERSONNEL
AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
3 ACCOUNTANT GENERAL(A & E),
POST BOX NO.5607, M.G ROAD,
THIRUVANANTHAPURAM-695039.
BY ADVS. SRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.N.MANOJ KUMAR, SPL GP TO AG
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.16604 OF 2019(A)
2
JUDGMENT
The petitioner, who retired from the post of Chairman of the Kerala Administrative Tribunal on 03.09.2015, is aggrieved by the condition fixed in Ext.P5 order in which Government ordered that pension and other benefits of the Chairman, Kerala Administrative Tribunal shall be fixed as follows:
"i) An amount of Rs.34,350/- for each completed year of service i.e Rs.14,313/- (Rs.34,350 x 5/12) per month as pension with effect from 4.9.2015 and Rs.96,254/- for each completed year of service i.e Rs.40,218/- (Rs.96,254 x 5/12) per month as pension with effect from 1.1.2016 subject to the condition that the current pension and pre-pension taken together should not exceed 50% of the salary of the highest post he held while in service.
ii) DCRG will be 10 days of salary for each completed service of six months subject to the condition that DCRG of pre-service and current service together should be limited to the WP(C).No.16604 OF 2019(A) 3 maximum DCRG of High Court Judges."
2. The grievance is as against the condition stipulated in clause (i) to the effect that the monthly pension would be subject to the condition that the current pension and pre-pension taken together should not exceed 50% of the salary of the highest post he held while in service.
3. The petitioner was a Judge of this Court and he retired on 11.04.2010 after rendering service of 8 years and 6 months and he has been drawing pension since then. It is stated that the Kerala Administrative Tribunal was constituted under Section 4(2) of the Administrative Tribunals Act, 1985 ('the the Act 1985' for short) as per G.O. (Ms).No.9/08/P&ARD dated 29.11.2008 and the Tribunal was established on 25.08.2010. The petitioner was appointed as Chairman of the Kerala Administrative Tribunal (KAT) as per WP(C).No.16604 OF 2019(A) 4 order dated 25.08.2010 and took charge of the post on 03.09.2010. The appointment was for a period of 5 years. Petitioner retired as Chairman of the Tribunal on 03.09.2015.
4. As no steps were taken for fixing his pensionary benefits even after years of his retirement, petitioner had approached this court filing W.P.(C) No.8416 of 2017. The said writ petition was disposed of as per Ext.P2 judgment dated 14.03.2017 directing the 1st respondent - the Union of India, to consider the representation submitted by him and to pass orders thereon after seeking clarifications on the request made by him. Thereafter Government of India issued Ext.P3 order on 11.05.2017 in which it was stated as follows:
"4. After insertion of Section 8(3) of the AT Act, 1985 vide amendment in 2006, the service conditions of the Chairman and Members appointed on or after 19.02.2007 are made equivalent to those of the Judges of the High Court, hence Section 10 of the AT Act, 1985, is no more applicable. WP(C).No.16604 OF 2019(A) 5 Thus, the necessary action to fix the pensionary benefits of Chairmen and Members of CAT and SATs are taken by the concerned authorities as the case may be and not by the Central Government."
5. By the very same order, Government of India requested the Government of Kerala to take necessary action to fix the pensionary benefits of the petitioner within the stipulated time. The Government of India have also filed a petition for extension of time. During the pendency of the said proceedings the 1st respondent issued Ext.P4 order on 14.08.2018, in which it was stated as follows:
"4. After AT (amendment) Act, 2006, process to frame new rules prescribing the conditions of service of Chairman & Members of Central Administrative Tribunal (CAT) was initiated in consultation with the Department of Legal Affairs and Department of Expenditure. However, the same could not be finalized / notified as the Department of Legal Affairs was considering to frame a blanket rules on uniformity in the tenure, retirement age, status, term of Members of various offices WP(C).No.16604 OF 2019(A) 6 etc. of Chairpersons / Presidents of Tribunals etc. for all the Tribunals.
Thus, in consultation with the Department of Expenditure, the pay scales & allowances of Chairman and Members of the CAT were revised on par with those of High Court Judges.
5. Accordingly, Act / Rules applicable to Judges of High Court have been followed for fixation of pay scales, allowances and pensions of Chairman and Members of CAT and SATs of relevant period by the authorities concerned, following Acts & Rules notified by Department of Justice, GoI for governing the conditions of services of Judges of High Courts." With the above observation, it was ordered that pension of the petitioner be fixed following the Act/Rules for Judges, High Courts issued by Department of justice, Government of India, in order to comply with the direction of this Court in its order dated 19.07.2018. The Government of Kerala took further time and passed Ext.P5 order on 18.01.2019 fixing a ceiling on the pension. This writ petition is filed challenging the ceiling fixed by the WP(C).No.16604 OF 2019(A) 7 State Government in Ext P5.
6. The 2nd respondent has filed a counter affidavit justifying the condition imposed. According to them, Ext.P5 order was issued on the basis of the request made by the 1 st respondent and in terms of Section 8(3) of the AT Act. It is stated that the Finance Department has examined pension and other accompanying benefits, structure pertaining to the Judges of this Court, Lok Ayukta, Upa Lok Ayukta and that of the Chairman and members of the Central Administrative Tribunal and after an elaborate deliberation the scheme was finalised and Ext.P5 order was passed thereafter. It is also stated that the condition that the current pension and pre pension taken together should not exceed 50% of the salary of the higher post held by the petitioner in service has been issued strictly in consonance with Section 14 of the High Court Judges (Salaries and Conditions of Service) Act WP(C).No.16604 OF 2019(A) 8 of 1954. It is also stated that Section 36(b) of the Act of 1985 empowers the State Government to make rules regarding salaries and allowances and other service conditions of the officers and other employees of a Tribunal. It is their case that 2nd respondent can exercise its discretion to decide upon the pensionary benefits. According to them, since the 2nd respondent is bearing the expenses pertaining to disbursement of pensionary benefits of the Chairman/Members of the Tribunal, the 2nd respondent has every right to decide as to the manner in which their pensionary benefits are fixed.
7. The contention of the petitioner is that the State Government does not have any authority to impose any condition over and above what is provided in Section 8(3) of AT Act and the High Court Judges (Conditions of Service) Act, 1954 ("the 1954 Act" for short). The learned counsel also pointed out that the WP(C).No.16604 OF 2019(A) 9 condition fixing a ceiling on pension in Ext.P5 is without any authority.
8. Relying on the judgments of the Apex Court in Union of India v. K.B.Khare and Others : [1994 Supp (3) SCC 502], Justice P.Venugopal v. Union of India and Others : [AIR 2003 SC 3887], the learned counsel for the petitioner argued that the service rendered based on an appointment in the constitutional post of High Court Judge and service rendered in a Statutory post of Chairman of the Tribunal cannot be reckoned together so as to fix the ceiling on pension as long as there is no enabling provision in the parent Act which empowers the State Government to impose any conditions while fixing the pension of the petitioner.
9. According to the learned Special Government Pleader the pension is fixed in accordance with Rules 1 and 2 of the first Schedule of the 1954 Act.
10. Heard Sri. P.Gopal, the learned Counsel WP(C).No.16604 OF 2019(A) 10 for the petitioner and Sri. N. Manoj Kumar, the learned Special Government Pleader.
11. The Chairman of the State Administrative Tribunal is appointed by the President of India in consultation with the Governor of the concerned State under Section 6(4) of the Act 1985. In order to determine whether the State Government has any authority to impose conditions as in Ext P5 order, it is necessary to examine the following provisions of the Act 1985, which are relevant for the purpose of this case.
"Section 5. Composition of Tribunals and Benches thereof.--(1) Each Tribunal shall consist of a Chairman and such number of Judicial and Administrative Members] as the appropriate Government may deem fit and, subject to the other provisions of this Act, the jurisdiction, powers and authority of the Tribunal may be exercised by Benches thereof.
xxxxx Section 6. Qualifications for appointment as Chairman, Vice-Chairman and other members.--(1) A person shall not be WP(C).No.16604 OF 2019(A) 11 qualified for appointment as the Chairman unless he is, or has been, a Judge of a High Court:
xxxxx (4) Subject to the provision of sub-
section (3), the Chairman and every other Member of an Administrative Tribunal for a State shall be appointed by the President after consultation with the Governor of the concerned State.
xxxxx Section 8. Term of office.--(1) The Chairman shall hold office as such for a term of five years from the date on which he enters upon his office:
Provided that no Chairman shall hold office as such after he has attained the age of sixty-eight years.
(2) A Member shall hold office as such for a term of five years from the date on which he enters upon his office extendable by one more term of five years:
Provided that no Member shall hold office as such after he has attained the age of sixty-five years.
(3) The conditions of service of Chairman and Members shall be the same as applicable to Judges of the High Court.
xxxxx Section 10. Salaries and allowances and other terms and conditions of service of WP(C).No.16604 OF 2019(A) 12 Chairman and other Members.--The salaries and allowances payable to, and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of the Chairman and other Members shall be such as may be prescribed by the Central Government:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman or other Member shall be varied to his disadvantage after his appointment. Provided further that where a serving Government officer is appointed as a Member, he shall be deemed to have retired from the service to which he belonged on the date on which he assumed the charge of the Member but his subsequent service as Member shall, at his option, be reckoned as a post-retirement re-employment counting for pension and other retirement benefits in the service to which he belonged. xxxxx Section 13. Staff of the Tribunal.--(1) The appropriate Government shall determine the nature and categories of the officers and other employees required to assist a Tribunal in the discharge of its functions and provide the Tribunal with such officers and other employees as it may think fit. (1-A) The officers and other employees of a WP(C).No.16604 OF 2019(A) 13 Tribunal shall discharge their functions under the general superintendence of the Chairman.
(2) The salaries and allowances and conditions of service of the officers and other employees of a Tribunal shall be such as may be specified by rules made by the appropriate Government.
xxxxx Section 35. Power of the Central Government to make rules.--(1) The Central Government may, subject to the provisions of Section 36, by notification, make rules to carry to the provisions of this Act. (2) Without prejudice to the generally of the foregoing power, such rules may provide for all or any of the following, namely:--
(a) the case or cases which shall be decided by a Bench composed of more than [two Members] under clause (d) of sub- section (4) of Section 5;
(b) the procedure under sub-section (3) of Section 9 for the investigation of misbehaviour or incapacity of [Chairman or other Member];
(c) the salaries and allowances payable to, and the other terms and conditions of, the [Chairman and other Members];
(d) the form in which an application may be made under Section 19, the documents and other evidence by which such application WP(C).No.16604 OF 2019(A) 14 shall be accompanied [and the fees payable in respect of the filing of such application or for the service or execution of processes];
(e) the rules subject to which a Tribunal shall have power to regulate its own procedure under sub-section (1) of Section 22 and the additional matters in respect of which a Tribunal may exercise the powers of a Civil Court under Clause (i) of sub-
section (3) of that section; and
(f) any other matter which may be prescribed or in respect of which rules are required to be made by the Central Government.
Section 36. Power of the appropriate Government to makes rules.-- The appropriate Government may, by notification, make rules to provide for all or any of the following matters, namely,--
(a) the financial and administrative powers which the Chairman of a Tribunal may exercise over the Benches of the Tribunal under Section 12;
(b) the salaries and allowances and conditions of service of the officers and other employees of a Tribunal under sub-section (2) of Section 13; and
(c) any other matter not being a matter specified in Section 35 in respect of which rules are required to be made by the WP(C).No.16604 OF 2019(A) 15 appropriate Government."
12. The amended Section 8 of the 1985 Act as substituted by Act 1 of 2007 with effect from 19.02.2007, brought about parity in the service conditions of the Chairman and members of the Tribunals with the High Court Judges. As rightly contended by Sri.Gopal, the learned Counsel for the petitioner, Section 10 would not have any relevance for the Chairman and Members of the Tribunal appointed after 19.02.2007. At the same time there is no other provision than Section 10, which deals with the service conditions of those appointed prior to the amendment in 2007. However the 1 st proviso to Section 10 would apply to all irrespective of the date of appointment; according to which the terms and conditions of service of the Chairman and Members shall not be varied to their disadvantage after their appointment.
13. The conditions of service of Judges of WP(C).No.16604 OF 2019(A) 16 the High Court are governed by High Court Judges (Conditions of Service) Act, 1954. Sections 14 and 15 of the Act read as follows:
Section 14. Pension payable to Judges.-- Subject to the provisions of this Act, every Judge shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part I of the First Schedule:
Provided that no such pension shall be payable to a Judge unless--
(a)he has completed not less than twelve years of service for pension; or
(b)he has attained the age of sixty-two years, and, in the case of a Judge holding office on the 5th day of October, 1963, sixty years; or
(c)his retirement is medically certified to be necessitated by ill-health:
Provided further that if a Judge at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service in the Union or a State, the pension payable under this Act shall be in lieu of, and not in addition to, that pension.
Explanation.--In this section 'Judge' means a Judge who is not a member of the Indian Civil Service or has not held any WP(C).No.16604 OF 2019(A) 17 other pensionable post under the Union or a State and includes a Judge who being a member of the Indian Civil Service or having held any other pensionable post under the Union or a State has elected to receive the pension payable under Part I of the First Schedule.
15. Special provision for pension in respect of Judges who are members of service.-- (1) Every Judge-
(a) who is a member of the Indian Civil Service shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part II of the First Schedule;
(b) who is not a member of the Indian Civil Service but has held any other pensionable post under the Union or a State, shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule:
Provided that every such Judge shall elect to receive the pension payable to him either under Part I of the First Schedule or, as the case may be, Part II or Part III of the First Schedule, and the pension payable to him shall be calculated accordingly.
(2) Notwithstanding anything contained in sub-section (1), any Judge to whom WP(C).No.16604 OF 2019(A) 18 that sub-section applies and who is in service on or after the 1st day of October, 1974, may, if he has elected under the proviso to that sub-section to receive the pension payable to him under Part II or, as the case may be, Part III of the First Schedule before the date on which the High Court Judges (Conditions of Service) Amendment Act, 1976, receives the assent of the President, cancel such election and elect afresh to receive the pension payable to him under Part I of the First Schedule and any such Judge who dies before the date of such assent shall be deemed to have elected afresh to be governed by the provisions of the said Part I if the provisions of that Part are more favourable in his case."
14. Rules 1 and 2 of the First Schedule, read as follows:
"1. The provisions of this part apply to a Judge who is not a Member of the Indian Civil Service or has not held any other (pensionable post) under the Union or a State and also apply to a Judge who, being a member of the Indian Civil Service or having held any other pensionable Civil post under the Union or a State has elected to receive the pension payable under this Part. WP(C).No.16604 OF 2019(A) 19
2. Subject to the other provisions of this Part, the pension payable to a Judge to whom this part applies and who has completed not less than seven years of service for pension shall be
(a) for service as Chief Justice in any High Court (Rs.43,890/-) per annum for each completed year of service;
(b) for service as any other Judge in any High Court, (Rs.34,350/-) per annum for each completed year of service."
15. The petitioner was holding a constitutional post and had been drawing pension based on service as a High Court Judge. The same cannot be termed either as a civil post or as a post under the Union or the State. The Act 54 does not provide for clubbing of service rendered in a constitutional post for determining pension of a High Court Judge. The power to make rules regarding salary and allowances and other terms and conditions of Chairman and Members of the Tribunals, which include both State and Central is under Section WP(C).No.16604 OF 2019(A) 20 35(2)(c). Central Government alone is the authority to frame rules under Section 35(2)
(c). In Ext.P4 letter the 1st respondent made it clear that after the amendment to Section 8, they have not framed rules determining service conditions of Chairman and Members of CAT or SAT and it is being fixed in accordance with the provisions under the 1954 Act. Power conferred under Section 36 on appropriate Government is only to frame rules relating to conditions of service of officers and other staff of the Tribunal. Chairman is not an officer or staff of the Tribunal. The officers and Staff of the Tribunal under Section 13 are those appointed for assisting the functioning of the Tribunal. Therefore the contention of the State Government that they have got authority to frame rules or fix conditions under Section 36, relating to pension of the Chairman is baseless.
16. There is no provision in the Act which WP(C).No.16604 OF 2019(A) 21 permits the State Government to fix or vary the conditions of service of the petitioner to his disadvantage. It is pertinent to note that only a person, who is or has been a Judge of the High Court, can be appointed as the Chairman of the Tribunal. There is no provision in the 1985 Act, which provides that the pension of the Chairman would be fixed taking note of the pension drawn by him as High Court Judge or that the total pension drawn by virtue of service rendered by High Court Judge and as Chairman shall not exceed 50% of the pay drawn as High Court Judge. The 1954 Act is made applicable only for fixing the pension, and the ceiling provided therein can apply only to the pension as Chairman when pension is fixed under Section 8(3) read with the provisions in 1954 Act.
17. In the judgment in K.B.Khare's case (supra), the appellant had joined as Member of Central Administrative Tribunal after voluntary WP(C).No.16604 OF 2019(A) 22 retirement from the post of District Judge in Madhya Pradesh Judicial Service. The rejection of his request for option to refund the pensionary benefits received by him by virtue of his service as District Judge to Central Government in order to draw consolidated pension or in the alternative to club his service as Member of CAT along with his service in MP Judicial Service was set aside by the High Court directing that he should be allowed to draw consolidated pension. The Apex Court held that the service rendered as a District Judge in the MP Judicial Service and the service rendered as Member of Central Administrative Tribunal are governed by separate set of rules; service in CAT cannot be treated as one on re-employment, but it is a separate judicial service specifically governed by the provisions in Central Administrative Tribunals (Salaries and Allowances and Conditions of Service of Chairman, Vice- WP(C).No.16604 OF 2019(A) 23 Chairman and Members) Rules, 1985 framed under Section 35(2)(c) of the Act by the Central Government.
18. The judgment in K.B.Khare's case (supra) was approved by a three Judge Bench in the judgment in Justice P.Venugopal's case (supra). There the appellant, who retired as an ad hoc Judge from the High Court, claimed that the service rendered by him on his appointment as Enquiry Commission by the State Government, while he was an ad hoc Judge and also thereafter shall be reckoned for fixing his pension under the 1954 Act. Referring to the provisions under the Act, the Apex Court held as follows in paragraph 16:
"16. xxxx A High Court Judge is entitled to pensionary benefits only in terms of the said Act and not otherwise. The said Act is a self-contained code. It does not contemplate grant of pension to a retired High Court Judge for holding any other office of profit. Clubbing of services for the purpose of computation of WP(C).No.16604 OF 2019(A) 24 pension is not contemplated under the said Act and, thus, the court cannot by process of interpretation of statutory or constitutional provisions hold so."
19. Section 8(3) of the Act, 1985 is a provision equating the service conditions of the Chairman and Members of Tribunals which include both Central and State Administrative Tribunals with that of High Court Judges. Service conditions include matters relating to pension also. In the absence of any rules framed by the Central Government under Section 35(3)(C) of the Act, the authority of State Government is only to fix the pension in accordance with Section 8(3) read with Rules 1 and 2 of Schedule I under Rules 14 and 15 of the Act 1954, when the Government of India had in its letter Ext.P4 directed the State Government to fix the pension of the petitioner following the Act/Rules for Judges of High Courts issued by Department of justice, Government of India. There is no WP(C).No.16604 OF 2019(A) 25 provision in the Administrative Tribunals Act which empowers the Government of Kerala to impose any conditions while fixing pension.
20. Though the learned Special Government Pleader pointed out that Rules 1 and 2 of the First Schedule under Sections 14 and 15 of the High Court Judges (Conditions of Service) Act, 1954 provides that the pension shall not exceed Rs.5,40,000/- per annum in the case of a Chief Justice and Rs.4,80,000/- per annum in the case of any other Judge, Section 8 does not provide that the pension of a Chairman or a Member shall be fixed reckoning the pension drawn by a High Court Judge. It only says that it shall be in accordance with the provisions contained in the 1954 Act. Therefore the pension in the case of the Chairman of Tribunal can only be in addition to the pension which the petitioner has been drawing by virtue of his service rendered as a High Court Judge. Section 8 does not provide that a person, who is getting pension at the WP(C).No.16604 OF 2019(A) 26 rate fixed in Rule 2 of the Schedule will not be entitled to any pension or that there is any ceiling with reference to the previous service rendered as a High Court Judge.
21. The provisions relating to fixing of pension in the case of Lok Ayuktas and Upa Lok Ayuktas cannot have any relevance in fixing the pension of the Chairman of KAT, as the Kerala Lok Ayukta and Upa Lok Ayuktas (Conditions of Service) Rules, 1999 are framed by the State Government and the Lok Ayuktas and Upa Lok Ayuktas are appointed by virtue of provisions contained in Kerala Lok Ayukta and Upa Lok Ayuktas Act, 1999, and the Chairman of the Kerala Administrative Tribunal is appointed in accordance with the provision contained in the Administrative Tribunals Act, 1985, which is a Central Act.
Therefore, I find that the condition in Ext.P5 fixing a ceiling for pension is without authority. Accordingly the condition imposed in WP(C).No.16604 OF 2019(A) 27 Ext.P5 order that the current pension and pre- pension taken together should not exceed 50% of the salary of the highest post the petitioner held while in service shall stand set aside. The 2nd respondent shall fix the pension of the petitioner without reckoning the pension drawn by the petitioner as a Judge of the High Court and shall see that the same is disbursed to him along with arrears within a period of three months from the date of receipt of a copy of the judgment.
The writ petition is allowed,
accordingly.
Sd/-
P.V.ASHA
JUDGE
WW/AS
WP(C).No.16604 OF 2019(A)
28
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED
28.12.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 14.03.2017 IN WP(C) NO.8416 OF 2017 OF THIS HON'BLE COURT.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION NO.A-
11014/9/2015-AT DATED 11.5.2017 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ORDER NO.A-11014/9/2015-AT DATED 14.8.2018 OF THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF ORDER G.O(RT)NO.34/2019/P&ARD DATED 18.1.2019 ISSUED BY THE 2ND RESPONDENT.