Senior Accounts Officer v. State of Kerala

JUSTICE K.K. DENESAN (RTD. JUDGE) AGED 75 YEARS, RETIRED JUDGE, HIGH COURT OF KERALA, ERNAKULAM, RESIDING AT KADVAILPARAMBIL HOUSE, THRIKKADAKKAPPILLY, CHERAI, ERNAKULAM, PIN - 693514 BY ADVS. K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI BRIJESH MOHAN(K/1851/1999) SR.G.P-SHRI ANTONY MUKKATH THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON

24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Writ Appeal No. 1231 of 2023 2 AMIT RAWAL & C.S.SUDHA, JJ. ------------------------------------------------------- Writ Appeal No.1231 of 2023 ---------------------------------------------------- Dated this the 24th day of January, 2024 J U D G M E N T Amit Rawal, J. The present intra court appeal is directed against the judgment of the learned single Bench whereby the appellant/State has been directed to fix the pay of the respondent/petitioner in terms of Ext.P7 order, ie., the salary fixed for discharging duties of Ombudsman, plus pension drawn as a retired High Court Judge.

The facts in brief are that the respondent/petitioner after having demitted the office of the High Court of Kerala on 25/04/2007, on 01/12/2017 was appointed as Ombudsman as per the provisions of Section 271 G(2) of the Kerala Panchayat Raj Act. The said Act envisages that a person appointed as Ombudsman shall be entitled to salary and allowances as admissible to the High Court Judge and the period was for three years. On retirement from the post of the High Court Judge, the respondent/petitioner continued to draw the pension as per the provisions of the High Court Judges (Salaries and Conditions of Service) Act, 1954 as Writ Appeal No. 1231 of 2023 3 amended in 2009 and later, in terms of Section 14A on its induction providing for computation of bar service as qualifying service of the Judges of the High Courts who are elevated from the bar for the purpose of the pension. The State Government vide Ext.P7 had appointed another former Judge as the Chairperson of the Appellate Tribunal under the Real Estate (Regulation and Development) Act 2016, vide notification dated 14/06/2020, and had ordered that the salary and allowances would be fixed as per the provisions of Rule 30(1)(a) of the Kerala Real Estate (Regulation & Development) Rules, 2018, specifying that Chairperson shall be paid a monthly salary equivalent to the last drawn salary by such person, as a Judge of the High Court. The contention was that the said Judge, who was appointed as the Chairperson was drawing over and above the salary fixed for the Chairperson, and had been drawing the pension as a former High Court Judge. Thus there was a discrimination at the instance of this Court. In support of the contention, Rule 4 of the Ombudsman for Local Self Government Institutions (Inquiry of Complaints and Service Conditions) Rules, 1999 was also referred to.

The stand of the State was that as per the provisions of Section 271 G(5) of Kerala Panchayat Raj Act, 1994, and Rule 4 of the Ombudsman for Local Self Government Institutions (Inquiry of Writ Appeal No. 1231 of 2023 4 Complaints and Service Conditions) Rules, 1999 as well as the office memorandum of the Central Government dated 12/09/2018, the salary of the retired High Court Judge appointed as the Member of the Commissions/Committee set up by the State Government will be restricted to ₹2,25,000/- together with pension. It is in that background, pension drawn by the respondent/petitioner, that is a sum of ₹1,34,000/- was being deducted from his salary, ie., from ₹2,25,000/-. State had already undertaken to clarify the order Ext.P7, viz-a-viz the appointment of the Chairperson of the Real Estate Appellate Tribunal. The learned single Bench noticing all the aforementioned facts, did not agree with the contentions of the State and allowed the writ petition and direction was issued to the State Government to fix the salary of the respondent/petitioner in terms of Ext.P7 order.

The learned counsel appearing on behalf of the appellant submits that while rendering the finding, the contents of the office memorandum dated 12/09/2018 have not been referred to and even otherwise, once the State has undertaken to issue a clarification with regard to the allowances and the salary of the former Judge appointed as Chairperson of the RERA, there would not be any ambiguity, viz-a-viz any retired Judge appointed as the Member of the Commissions/Committee in Writ Appeal No. 1231 of 2023 5 the State Government.

On the other hand, the learned counsel appearing on behalf of the respondent/petitioner submitted that the only reason for allowing the writ petition was Ext.P7 and the statements of the appellants should be recorded in order to avoid any discrimination and ambiguity.

We have heard the learned counsel for the parties and appraised the paper book.

Vide Ext.P6 letter dated 10/03/2021, the State Government clarified the query raised by the Deputy Accountant General with regard to the salary of the respondent/petitioner and the contents of the same reads as under - "Inviting attention to the reference cited, the following details are given in pursuance to the reference cited. As per Section 271G(5) of Kerala Panchayat Raj Act, 1994 Ombudsman shall be entitled for salary and allowances as are admissible to a Judge of the High Court of Kerala. Justice K.K.Denesan's pay and Ombudsman for Local Self Government Institutions shall be reduced by the amount of pension he has been receiving for his service as Judge in High Court and Upa Lok Ayukta via OM No.19048/7/8-E.IV dated 08/10/1987 and OM No.19047/1/2018-E.IV dated 12/09/2018. he shall receive DA for pay from LSG Department and DR for pension from concerned Pension Disbursing Authority. Other allowances shall be governed by the provisions of OM No.19048/7/80-E.IV dated 08/10/1987.” Writ Appeal No. 1231 of 2023 6

The grievance of the respondent/petitioner was that Ext.P6 order was contrary to the contents of Ext.P7 notification dated 14/06/2020 pertaining to the appointment of a retired High Court Judge as the Chairperson of the Appellate Tribunal under the Real Estate (Regulation and Development) Act, 2016, the same reads as under -

As per notification read as 2nd paper above, Government of Kerala had established the Kerala Real Estate Appellate Tribunal and as per Notification read 3rd paper above, Mr. Justice(Retd.)P.Ubaid was appointed as the Chairperson of the Tribunal. Accordingly, Mr. Justice(Retd.)P.Ubaid assumed charge as Chairperson of the Kerala Real Estate Appellate Tribunal on the F.N. of 21.04.2020 and informed Government as per letter read 4th paper above. 2) As per Section 75(2)(a) of the Real Estate (Regulation & Development) Act, 2016 (Central Act No.16 of 2016), all administrative expenses including the salaries and allowances of Chairperson, Members, other officers and employees of the Real Estate Regulatory Authority and Real Estate Appellate Tribunal shall be met from Real Estate Regulatory Fund. Government had already constituted the 'Real Estate Regulatory Fund Kerala' as per G.O. Read as 1st paper above. 3) In the above circumstances, Government are pleased to accord sanction to fix the salary and allowances of the Chairperson, Kerala Real Estate Appellate Tribunal as per Rule 30(1)(a) of the Kerala Real Estate (Regulation & Development) Rules, 2018, which specifies that, the Chairperson, Kerala Real Estate Appellate Tribunal shall be paid a monthly salary equivalent to the last drawn salary by such person, as a Judge of High Court. The expenditure in this regard shall be met from Writ Appeal No. 1231 of 2023 7 the 'Real Estate Regulatory Fund Kerala' constituted by Government as per G.O. Read as 1st paper above.

The terms and conditions of service of the Ombudsman have been provided under Section 271 G of the Kerala Panchayat Raj Act. As per the provisions of Section 271 G(5) of the Kerala Panchayat Raj Act, a person appointed as Ombudsman shall be entitled for salary and allowances as admissible to a Judge of the High Court of Kerala. Since there was a lot of confusion with regard to the pension drawn by a retired High Court Judge while discharging the duties of the Member or Chairperson of the Commissions/Committee, the Central Government came out with a clarification/Office Memorandum vide communication dated 12/09/2018; the same reads as under - “ The undersigned is directed to refer this Ministry's OM.No.19047/7/80-E.IV dated 08.10.1987 and OM No.19047/21/09-E.IV dated 08.04.2009 on the subject mentioned above and to say that several references have been received in this Department seeking clarification on the applicability of revised pay scale of Judges of Supreme Court and High Court w.e.f. 01.01.2016 in respect of retired judges of Supreme Court and High Court on their appointment as Chairman or Members of the Commissions/Committees set up by the Government.

2. The matter has been considered and it has been decided that pay together with pension and pension equivalent Writ Appeal No. 1231 of 2023 8 or other forms of retirement benefits, may be restricted to Rs.2,50,000/- per month in case of retired Chief Justice of High Courts/Judges of Supreme Court w.e.f. 01.01.2016. This is issued with the approval of the Finance Minister.”