The deduction of pension from the salary of a re-employed pensioner upon surrender of leave is lawful under the applicable rules.

JUDGMENT :

Syam Kumar V.M., J

1. This Writ Appeal is filed challenging the judgment dated 28.06.2018 of the learned Single Judge in W.P.(C) No.33935 of 2017. Appellant was the petitioner in the W.P. (C).

2. Appellant, a retired District Judge, had preferred the WP (C) alleging denial of full salary towards leave surrender. After his retirement as a District Judge, the appellant was re-employed as a member of the Advisory Board constituted under the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short 'KAAPA'). The service conditions of the member of the Advisory Board are prescribed by Exhibit P2 Rules. As per Rule 6(2) of the said Rules, a member of the Advisory Board is entitled to draw pay and allowances equivalent to the pay and allowances drawn by him at the time of retirement and as per Rule 100 of Part III KSR, a re-employed pensioner will be given pay and other allowances attached to the re-employed post minus the monthly pension he was drawing for his prior service. When the appellant surrendered his earned leave for 30 days, the 2^nd respondent, by Exhibit P3 sanctioned only the re-employment pay i.e. Rs.30,080/- which is only the amount equivalent to the pay after deducting Rs.28,850/- the monthly pension amount of the appellant as leave salary on the premise that in the event of re-employment, his actual pay is not the re-employment pay as fixed by the Accountant General, but it is equivalent to what he drew last at the time of his retirement as prescribed in Exhibit P2 Rules, which includes the monthly pension amount also. Contending that he is entitled to get the pension amount he was receiving, also treated as part of the salary, and the same is to be taken into account while calculating the earned leave surrender salary, appellant filed the W.P.(C) seeking the following reliefs:

"i. call for the records leading to Ext.P3 and Ext.P6 and quash Ext.P6 in toto and Ext.P3 to the extent it is against the petitioner by the issuance of a writ of certiorari or any other appropriate writ, order or direction.

ii. declare that the petitioner is entitled to get the pension amount also treated as part of the salary in his re-employed post and be taken into account while calculating the earned leave surrender salary.

iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to treat the monthly pension amount of the petitioner also as part of his salary in the re-employed post, count that amount also while calculating the earned leave surrender salary and disburse Rs.28,850/- or such other amount as the balance of the earned leave surrender salary authorized as per Ext.P3 with 18% Interest per annum from the date of Ext.P3, within a time limit to be fixed by this Hon’ble Court.

iv. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pass orders on Ext.P7 application and to disburse the due amounts, within a time limit to be fixed by this Hon’ble Court.

and

v. grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case Including the costs of this Writ Petition (Civil)."

3. The learned Single Judge dismissed the Writ Petition, inter alia holding that Rule 92 read with Rule 100 entitles the appellant only for the pay which he would have drawn had he been performing the duty, and had the appellant been on duty, he would have been eligible only for the pre-retirement pay minus pension. Therefore, the claim of the appellant that the pension shall not be deducted from the salary since he is not getting a pension for the leave surrendered is unsustainable. Aggrieved by the said dismissal of the W.P.(C), this Writ Appeal is filed.

4. Heard Sr