The main legal point established in the judgment is the interpretation of the provisions of Kerala Service Rules defining pay and special pay, and their inclusion in the computation of pensionary benefits for judicial officers.

JUDGMENT :

ALEXANDER THOMAS, J.

The State of Kerala and the Accountant General, who were arrayed as respondent Nos.1 & 2 in the instant writ petition (civil), W.P (C) No.36379/2017 have come before us by instituting this intra-court appeal under Sec.5(i) of the Kerala High Court Act, to impugn the judgment dated 28.03.2019 rendered by the learned Single Judge in the said W.P(C) filed by the 1st respondent herein.

2. Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the appellants in the writ appeal/respondent Nos.1 & 2 in the W.P(C), Sri.K.Jaju Babu, learned Senior counsel instructed by Smt.M.U.Vijayalekshmi, learned counsel appearing for the 1st respondent in the W.A/writ petitioner and Sri.P.J.Elvin Peter, learned counsel appearing for the 2nd respondent in the W.A/3rd respondent in the W.P(C).

3. The 1st respondent in this appeal (writ petitioner) had instituted the abovesaid W.P(C) No.36379/2017 essentially for seeking directions from this Court to the respondents to reckon and count the special pay granted to him, in terms of Ext.P6 Government Order, as pay for the purpose of reckoning his pension. The learned Single Judge, as per the impugned judgment rendered on 28.03.2019 in the above W.P(C) has granted the said relief. Being aggrieved thereby, the State of Kerala and the Accountant General have filed the instant writ appeal as above.

4. A brief resume of the essential and relevant facts would be necessary. The writ petitioner was a judicial officer, who was later appointed by way of transfer to the post of Additional District & Sessions Judge and while holding the said post, he was posted as the University Appellate Tribunal and later he had retired from service (Kerala State Higher Judicial Service) on 30.06.2011, after attainment of the superannuation age. By Ext.P3 G.O (Ms.) No.157/2006/Home dated 30.08.2006, the competent authority of the State Government in the Home Department had inter alia ordered, as per paragraph No.13(a) that from 1.1.1996 the pensioner concerned will be entitled for 50% of the last pay drawn as the pension and that there will be no ceiling on the maximum pension, etc. (see page No.45 of the paper book of this W.A). But later, the competent authority of the State Government in the Home Department has issued Ext.P6 G.O (Ms.)181/2006/Home dated 31.10.2006, wherein it has been inter alia ordered that one of the recommendations of the first National Judicial Pay Commission (Shetty Commission) is to grant ‘special pay’ to the serving judicial officers and that therefore, special pay at the rate of Rs.1000/-per month is payable to the categories of Judicial Officers mentioned therein and the Additional District Judge holding the post of University Appellate Tribunal is also thus brought within the entitlement zone for special pay (see page Nos.51 & 52 of the paper of this W.A). Later, the said special pay has been enhanced to Rs.2,500/-per month.

5. By Ext.P11 G.O (Ms.)No.76/2010/Home dated 23.03.2010, the Government in the Home Department has inter alia ordered therein that the special allowances allowed to the Judicial Officers has to be renamed as special pay (see page No.60 of the paper book of this W.A). Further, in Ext.P12 government letter No.41046/C3/2008/Home dated 08.06.2010, it has been clarified that the special allowance drawn by the judicial officers prior to the issuance of Ext.P11 G.O (Ms.) No.76/2010/Home dated 23.03.2010, has been converted to special pay, which is to be counted for all purposes, that is fixation, pension benefits, etc. It may be profitable to refer the contents of Ext.P12 government letter No.41046/C3/2008/Home dated 08.06.2010 (see page No.62 of the paper book of this W.A), which reads as follows:

“Attention is invited to the reference cited. The rule position stated in your letter cited relates to State Rule and as such it has no applicability to Judicial Officers coming under the purview of Shetty Commission recommendations. Hence its is clar