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2017 DIGILAW 595 (KER)

State of Kerala v. Suresh Bose S.

2017-03-27

P.V.ASHA

body2017
ORDER : This review petition is filed along with a petition to condone delay of 461 days. 2. The writ petitioner had retired from service, while he was working as Munsiff Magistrate, Kattappana, on appointment under Rule 9 of the Kerala Judicial Service Rules, 1991. His appointment as Munsiff Magistrate under Rule 9 was made, while he was working as Head Clerk in the Munsiff Court, Varkala. The writ petition was disposed of in the light of a Government letter addressed to the Advocate General, by which the Government informed that the petitioner was entitled to get his pension fixed on the basis of the pay he was drawing as Munsiff Magistrate. 3. The learned counsel for the 1st respondent/review petitioner submits that the entire benefits on the basis of the judgments have already been disbursed to the writ petitioner and there is no reason either to condone the delay in filing the review petition or to review the judgment. 4. The review of the judgment is sought for on the ground that the petitioner whose substantive appointment was in the cadre of Head Clerk was not entitled to get his pension fixed on the basis of the pay drawn by him as Munsiff Magistrate on the basis of his appointment under Rule 9 of Kerala Judicial Service Rules. 5. The writ petitioner had retired from service on 31.08.2008 at the age of 55 years. The respondents rely on Annexure-I order dated 14.02.2016, in support of the review petition. Paragraph 4 of this order provides that this order shall have retrospective effect, but cases already settled shall not be re-opened. It is settled law that there cannot be any executive order, which can operate with retrospective effect. Moreover, according to the writ petitioner, he has received all the benefits. Hence his case is already settled and therefore it is not liable to be reopened. 6. Apart from that, the learned Government Pleader further relies on Rule 62 of Part III KSR including Ruing no.1. The relevant portion of Rule 62 reads as follows: "62. The term 'emoluments' when used in this Part means the emoluments which the employee was receiving immediately before his retirement and comprises the following:- (a) pay as defined in Rule 12(23) in Part I of these rules and/or pay of the appointment under Rule 9 or 31 of the Kerala State and Subordinate Service Rules. The term 'emoluments' when used in this Part means the emoluments which the employee was receiving immediately before his retirement and comprises the following:- (a) pay as defined in Rule 12(23) in Part I of these rules and/or pay of the appointment under Rule 9 or 31 of the Kerala State and Subordinate Service Rules. (b) Dearness pay that the employee was actually in receipt of. Note 1 . deleted 2. xxxxx xxxxx 3. deleted 4. xxxxx 5. xxxxx 6. xxxxx Rulings 1. Special Pay admissible to persons on deputation from the State Service to other State Governments or to the Central Government or from one Government Department to another shall be counted as emoluments for the purpose of pension. The pay drawn in "Foreign Service" by an officer deputed under foreign service conditions in Chapter XI, Part I, K.S. Rs shall not however be treated as emoluments for pension. In such cases the pay he would have drawn under Government had he not been on foreign service alone shall be treated as emoluments 2. Additional pay for holding full additional charge of one or more posts under Rule 53, Part I, K.S.R treated as Class II Special Pay will be counted as "emoluments" for the purpose of pension." Rule 12(23)of Part I KSR reads as follows: "12(23) Pay- Means the amount drawn monthly by an officer as - (i) the pay, other than Special Pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre, and (ii) personal pay and special pay, and (iii) any other emoluments which may be specially classed as pay by the Government." Under Rule 63 of Part III KSR, pay drawn by an officer on provisional appointment under 9(a)(1) and Rule 31 of KS&SSR can be reckoned towards emoluments. Apart from that the pay on an officiating appointment comes under pay as defined in the pay Rule 12 (23), part I KSR, which in turn is liable to be reckoned as his emoluments under Rule 62 under part III KSR. 6. Apart from that the pay on an officiating appointment comes under pay as defined in the pay Rule 12 (23), part I KSR, which in turn is liable to be reckoned as his emoluments under Rule 62 under part III KSR. 6. In the above circumstances, the writ petitioner who was appointed under Rule 9 of Kerala Judicial Service Rules 1991 on a temporary basis was entitled to get his pension fixed on the basis of his pay as a Munsiff Magistrate. Rule 9 of Kerala Judicial Service Rules, 1991 provides for a temporary appointment in public interest, in the absence of an approved candidate qualified to hold the post under the Rules. It is having all the characteristic of a temporary appointment under Rule ((a)(1) or 31 of KS&SSR, apart from the fact that it is an appointment in accordance with statutory rules. Under Rule 12(22) of Part I KSR, an officer officiates in a post when he performs duties of a post in which another person holds lien. It also provides that the appointing authority may appoint an officer to officiate in a vacant post in which no other officer holds lien. Therefore there is no reason for not reckoning the pay the writ petitioner was drawing as Munsiff Magistrate towards the emoluments to fix his retirement benefits. None of the provisions pointed out in the RP or relied on by the learned Senior Govt Pleader supports the contentions raised by the Govt. Therefore, even if the delay is condoned, there is no reason to undertake a review of the judgment. In the above circumstances, the delay is condoned and review petition is dismissed.