IMPORTANT POINT
For calculating pension for Judge of High Court of Kerala, last emolument drawn would include the dearness allowance and special allowance.

JUDGMENT

Rajendra Babu, J.-The appellant was a member of the Higher Judicial Services of the State of Kerala and was elevated as a Judge of the High Court of Kerala in 1972. He retired from service with 23 years of pensionable service; 8 years of which he served as a High Court Judge.

2. The Pension and other benefits of High Court Judges are determined on the basis of Part III of the 1st Schedule of the High Court Judges (Conditions of Service) Act, 1954, as amended by the Amending Acts, 1986 and 1988. In accordance with these provisions, the basic pension payable to the Appellant was fixed at Rs. 17,300/- p.a.

3. The U.O.I. issued order O.M. dated 16.04.1987 rationalizing the pension structure of employees who retired before 1.1.1986. It is also stated in the said order that separate orders vis-a-vis the Pension of the retired High Court and Supreme Court Judges would be issued. Accordingly the Government of India in a Notification dated 18.12.1987, ordered to revise the ordinary pension admissible to High Court Judges under clause 2(a) of Part III of the 1st Schedule of the Act with effect from 1.1.1986.

4. In G.O. Ms. 228/89/GAD dated 19.10.1989 the Government of Kerala issued orders extending the benefit of O.M. dated 16.04.1987 to the retired Judges of the High Court with effect from 1.1.1986.

5. Accordingly, the appellant s pension was revised to Rs. 32,720/- per annum with effect from 1.1.1986 to 31.10.1986. Considering the amendment to Para 2(b) of Part III to Schedule I of the Act by Act 38 of 1986, whereby the figures of Rs. 700/- and Rs. 3500/- were substituted with figures of Rs. 1600/- and Rs. 8000/-, there was a further increase in the appellant s pension to Rs. 37,220/- per annum with effect from 1.11.1986.

6. Aggrieved by this order, the appellant filed O.P. No. 203 of 1990 before the High Court of Kerala.

7. A learned Single Judge vide judgment dated 12.03.1992 allowed the Original petition and directed the Respondents to refix appellant s pension at Rs. 35,000/- per annum from 1.1.1986 and at Rs. 47,900/- per annum from 1.11.1986. He also held that the appellant would be entitled to all other consequential benefits according to this re-fixation of pension.

8. Aggrieved by this judgment, the Respondent No.1 filed W.P./Appeal No. 804/1992 before the Division Bench of the High Court of Kerala. The Division Bench vide judgment dated 10.07.1997 allowed the appeal, inter alia, holding that the method used by the U.O.I. in calculating the pension was quite correct and held that the method used by the learned Single Judge in calculating the pension by adding the figures under clauses (a) and (b) of para 2 of Part III of the 1st Schedule of the Act in order to find out the amount of revised pension, was not correct.

9. Aggrieved, the appellant filed Review Petition No. 299/1997 before the High Court. The High Court vide Order dated 10.11.1997 dismissed the Review Petition, inter alia, holding that the appellant had no case that the order sanctioning pension to the appellant is illegal. Hence these appeals by special leave.

10. The two issues which arise for consideration are:

(I) Whether the High Court s fixation of the pension under clause 2(a) is correct?

(II) Whether the High Court was correct in not adding the figures under para 2 cls. (a) and (b) of Schedule I, Part III of the Act in order to find out the revised amount of pension and whether a ceiling was imposed under clause 2(b)?

Issue No. I

11. The appellant claims that the decision of the Division Bench regarding the fixation of the pension due to the appellant under cl. 2(a) is incorrect. The appellant claims that G.O. (P) No. 760/89/FW dated 26.12.1989 (Annexure P-7) states that pension has to be determined at 50% of the average emoluments in all cases. Accordingly, he claims that Rs. 4237/- was the last emolument he received prior to his retirement and it is one half of this amount & not the salary of Rs. 3500/- that should be taken