K. NADARAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) WHETHER the petitioner, a retiree on re -employment or reappointment and subsequent suspension from the re -employed or reappointed post would be entitled to subsistence allowance in the absence of specific provisions therefor in the service conditions relating the said post? This question arises for consideration on the following factual matrix: - The petitioner retired from service as Deputy Inspector General of Police and thereafter, as per Ext.P1, he was appointed as the State Information Commissioner of the Kerala State Information Commission in terms of Section 15(3) of the Right to Information Act, 2005 (for short RTI Act). While continuing so, he was placed under suspension as per Ext.P3 order dated 09.11.2012. A reference was then made to the Hon'ble Supreme Court of India in terms of sub -section (1) of section 17 of the RTI Act for enquiry and report. Subsequently, the petitioner submitted Ext.P4 representation dated 31.01.2013 requesting for payment of subsistence allowance. Inaction thereon constrained the petitioner to make further representations and at last, his request for sanction of subsistence allowance was forwarded by the State of Kerala, the 1st respondent to the office of the Accountant General. Ext.P7 is the communication from the office of the Accountant General to the 1st respondent in response to the same. In Ext.P7 it is stated thus: - ''In this context it may please be noted that there is no provision/orders to regulate the subsistence allowance to a re -employed officer. As the re -employment pay is fixed after deducting the pension, normal rules cannot be made applicable. Hence, Government may please examine the case and issue specific orders to regulate the subsistence allowance, if admissible in consultation with the Finance department ''. Subsequently, the petitioner submitted Ext.P9 representation before His excellency the Governor of Kerala and also before the Chief Secretary to Government of Kerala, essentially reiterating the request for payment of subsistence allowance. Ext.P11 is the letter dated 24.04.2013 from the Chief Secretary to the Accountant General stating that there is no precedence anywhere of a person being paid subsistence allowance in addition to pension. Under Ext.P11, it was suggested to restore the dearness relief on pension to the petitioner until he is reinstated as State Information Commissioner, obviously, if he is to be reinstated. In fact, as per Ext.P11 the Chief Secretary requested the Accountant General's office to allow only pension and dearness relief on pension to the petitioner during the period of suspension. Later, Ext.P12 communication was issued to the petitioner from the office of the 2nd respondent holding that he is not eligible for subsistence allowance. In short, Exts.P11 and P12 would reveal that the request of the petitioner was rejected with a reply that being a pensioner he is not entitled to get subsistence allowance. In Ext.P11 it is stated thus: ''Normally, when the salary is paid on reemployment the officer opts to get the Dearness Allowance on such salary and forgoes the Dearness Relief on pension. After suspension since the salary including DA is stopped, the Government feels that it will be in order if Sri.K.Nadarajan is allowed to draw DR on the pension of Rs. 26055/ -. Since the present DR rate is 80%, this works out to a DR of Rs. 20844/ - or total pension + DR of Rs. 46899/ - which is clearly more than any subsistence allowance any ordinary Government servant on suspension would get. Hence, he may be allowed only pension + DR during the period of suspension. ''

(2.) THUS evidently, it was found that the amount of pension plus dearness relief allowable comes to Rs.46,899/ - which is clearly more than any subsistence allowance any ordinary government servant on suspension would get and that the petitioner is enjoying the benefit of monthly pension and therefore, he could not be said to be one without any means of subsistence. In that view of the matter, the petitioner was held entitled only to get pension plus dearness relief during the period of suspension, as per Ext.P11. As per Ext.P12, the petitioner was informed that at the time of appointment the petitioner was in receipt of pension on account of his retirement on superannuation from the previous service and it was taking into account the said fact that his salary and allowances were fixed, in tune with the provisions of section 16(5) of the RTI Act, on his appointment as State Information Commissioner. After stating that payment of subsistence allowance to a suspended State Information Commissioner drawing salary under section 16(5) of the RTI Act is also liable to be scrutinized under its first proviso it is held that in view of the peculiar facts and circumstances of the case viz., the petitioner being a pensioner receiving the pension of his previous service, he could not claim for subsistence allowance as a matter of right. After observing that subsistence allowance is paid to an employee under suspension only for sustaining his bare necessities it was held thereunder that as State Information Commissioner the petitioner would not be entitled to get the subsistence allowance while under suspension.

(3.) THE contention of the petitioner is that the orders in Exts.P11 and P12 virtually holding that he is not entitled to subsistence allowance owing to his being a pensioner, is palpably unsustainable. Evidently, the petitioner did not dispute the power to suspend him from the post, in this proceedings. True that, earlier he challenged the order of suspension unsuccessfully in W.P.(C)No.27844 of 2012 and the appeal filed viz., W.A.No.721 of 2013 is now pending. The reference made under sub section (1) of section 17 of the RTI Act to the Hon'ble Supreme Court of India for enquiry and report is also pending, it is submitted. The learned counsel appearing for the petitioner contended that going by the section 16(5) of the Act that deals with the salaries and allowances payable and other items and conditions of service the petitioner is entitled to get subsistence allowance at the same rate as applicable to Chief Secretary to the State Government if placed under suspension.