VASUDEVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner had retired from service as Chief Judicial Magistrate. He is aggrieved by the payment of commuted value of his pension taking the commutation factor as 8.194 which is the rate applicable to Central Government employees instead of the rate available for State Government employees which is 9.81. The claim of the petitioner is based on the recommendations of the National Judicial Pay Commission which was accepted by the Apex Court with the modification contained in the judgment reported in All India Judges' Association v/s. Union of India ( : (2002) 4 SCC 247). It is the specific case of the petitioner that the recommendation of the Shetty Commission to the effect that in the matter of calculation of pension of Judicial Officers, the State Rules for the time being in force in the respective States was accepted by the Central as well as the State Governments. Though, Ext.P2 Government order specifically provided that 10 years service shall be the minimum qualifying service in the case of Judicial Officers and that commutation will be allowed to the extent of 50% and restoration shall be effected after 15 years, no mention was made to the commutation factor applicable. It is the case of the petitioner that any departure from the recommendations of the National Judicial Pay Commission, is also not possible at the hands of the State Government. In any view of the matter, it is stated that since commutation factor applicable in the State services is 9.81 and since it has been recommended by the Pay Commission and accepted by the Apex Court that the rules for calculation of pension are those applicable to the State Government employees in the case of Judicial Officers also, the petitioner is entitled to commute 50% of his pension with the commutation factor of 9.81 as provided in Exts.P1 and P2. When such benefit was denied to him, the petitioner had preferred Ext.P9 representation before the Government. By Ext.P10 reply dated 05.06.2012, issued by the Principal Secretary to Government to the Secretary of the Kerala Magistrates' Judicial Association, the State Government has stated that the commutation factor applicable to Central Government employees is 8.194 consequent on the revision by the 6th Central Pay Commission, while the multiplier of 9.81 remains unchanged in the State. It is further stated that the commutation factor applicable to Judicial Officers will change in tune with the commutation factor applicable to Central Government employees. It is further stated that the Rules governing pension of Judicial Officers are same through out the country and the same cannot be altered in the State of Kerala alone. On these grounds the request for commuting pension with the commutation factor of 9.81 as applicable to State Government employees is rejected. By Ext.P11, the petitioner was informed that since reply has already been given to the association his case stands thus. The petitioner has preferred this Writ Petition challenging Exts.P10 and P11 as also Item No. 4(b) in Ext.P8 communication from the Additional Chief Secretary to Government to the Accountant General stating that commutation factor for Judicial Officers is 8.194 and seeking a declaration that the commutation factor applicable for calculating his pension is 9.81 as provided under the pension commutation rules applicable to the State Government employees.

(2.) The Government has filed a counter affidavit stating that Exts.P1 to P3 Government orders contained no details about the calculation of commutation of pension. It is stated that the orders now issued by the Government limiting the commutation factor to 8.194 are based on the Justice E. Padmanabhan Commission Report, as per which the commutation factor eligible for the petitioner is as per Central Rules. It is further stated that there are differences in the period as well as qualifying service for pension and commutation between employees and the State Government and Judicial Officers and therefore they are not entitled to commutation factor of 9.81 as provided in the Pension Commutation Rules applicable to State Government.

(3.) Petitioner has preferred a reply affidavit to the counter affidavit filed by the 2nd respondent specifically stating that Justice E. Padmanabhan Commission Report does not contain any deviation from the recommendation of the National Judicial Pay Commission which had been accepted by the Central Government. It specifically states that there is no departure from the position that the calculation of pension in respect of Judicial Officers is to be made based on the Rules applicable to State Government employees.