[Cites 9, Cited by 0]
Kerala High Court
Justice A.K. Basheer (Retd.) vs The State Of Kerala on 18 December, 2025
Author: T.R.Ravi
Bench: T.R.Ravi
W.P.(C)No.9176 of 2024
2025:KER:97468
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 18TH DAY OF DECEMBER 2025 / 27TH AGRAHAYANA, 1947
WP(C) NO. 9176 OF 2024
PETITIONER:
JUSTICE A.K. BASHEER (RETD.)
AGED 74 YEARS
15B, NORTH BLOCK,
HEERA WATERS, BUND ROAD,
CHILAVANNUR, KOCHI, PIN - 682020
BY ADVS.
SRI.N.RAGHURAJ (SR.)
SMT.SAYUJYA RADHAKRISHNAN
SHRI.VIVEK MENON
SHRI.RANCE R.
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY
HOME AND VIGILANCE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
3 THE PRINCIPAL ACCOUNTANT GENERAL (A&E),
ACCOUNTANT GENERAL'S OFFICE COMPLEX,
CANTONMENT STATION ROAD, THIRUVANANTHAPURAM,
KERALA, PIN - 695001
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4 THE REGISTRAR,
KERALA LOK AYUKTA,
VIKAS BHAVAN, LEGISLATURE COMPLEX,
THIRUVANANTHAPURAM - 695033.
SRI ANTONY MUKKATH, SR.GOVT. PLEADER FOR R1 TO R3
SRI.K.M.FIROZ FOR R4
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.12.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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T.R. RAVI, J.
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W.P.(C)No.9176 of 2024
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Dated this the 18th day of December, 2025
JUDGMENT
The petitioner retired as a Judge of this Court on
01.07.2011. He was appointed as Judicial Member of the Central
Administrative Tribunal (CAT) at Mumbai on 09.01.2012, and he
continued in office till 30.06.2014. On 06.01.2016, he was
appointed as Upa-Lok Ayukta in terms of Section 3(3) of the
Kerala Lok Ayukta Act, 1999 ('the 1999 Act' for short). He
completed a 5-year term as Upa-Lok Ayukta on 05.01.2021. The
petitioner is aggrieved by the denial of leave surrender benefits.
The prayer in the writ petition is for a direction to respondents 1
and 2 to disburse leave surrender/encashment benefits
equivalent to his salary, DA and allowances drawn by him as Upa-
Lok Ayukta for 228 days. There is also a prayer for direction to
respondents 1 and 2 to produce the clarificatory letter dated
15.07.2022 issued by the Government and mentioned in Ext.P4
order.
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2. The petitioner contends that the leave surrender
benefits applicable to the Lok Ayukta and Upa-Lok Ayukta are the
same as those of the Judges of this Court. As per Sections 4(1)
and 4(2)(a)(i) of the High Court Judges (Salaries and Conditions
of Service) Act, 1954, a Judge of a High Court is entitled to leave
on half allowance at the rate of one-fourth of the time spent by
him on actual service, that is, 365 x 1/4 equivalent to 91.25 days
per year, half of which can be claimed with full allowance. The
petitioner submits that the leave with full allowance for the 5-
year term as Upa-Lok Ayukta will be 228.125 days, and he is
entitled to leave surrender benefits for 228 days with full
allowances. The request made by the petitioner was rejected by
Ext.P4, stating that the Accountant General had sought
clarification from the Government, and the Government had
clarified in Ext.P5 dated 15.07.2022 that the benefit of
encashment can only be for 60 days. The relevant portions of
Ext.P5 are extracted below;
"As per the Kerala Lok Ayukta Act and the Rules
applicable, the conditions of Service and salary and
allowances of members of Kerala Lok Ayukta is as same as
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that of the Judges of the High Court. The High Court
Judges (Salaries and Conditions of Services) Act, 1954
does not contemplate re-employment after retirement or
grant of leave to such officers. As per Rule 2 of the High
Court Judges Rules 1956, where no express provision has
been in the High Court Judges (Conditions of Services) Act
1954, such matters are to be determined by the rules
applicable to the members of the Indian Administrative
Service holding the rank of Secretary to Government. But
the AIS (Leave) Rules do not have any provision to
regulate the leave admissible to an officer re-employed
after retirement. As per the AIS (Conditions of Service-
Residuary Matters) Rules 1960, matters for which no
provision has been made in the AIS Rules, will be decided
by the rules, regulations and orders applicable to the
officers of the State Civil Services, Class-I. As per Rule 6
of the 'Kerala Lok Ayukta and Upa Lok Ayuktas (Conditions
of Service) Rules, 1999 the Lok Ayukta or an Upa Lok
Ayukta are entitled to surrender leave facilities as in the
case of a Class 1 Officer of the State Government.
In view of the facts detailed above, eligibility of
earned leave and its surrender in respect of Lok Ayukta
and Upa Lok Ayukta appointed on re-employment basis for
limited period has to be examined in the light of Appendix
VIII, Part I, the Kerala Service Rules. As per Rule 2 ibid,
when the appointment is for more than one year but not
more than five years, Earned Leave will be admissible at
1/11th of the period spent on duty, subject to the limit of
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15 days in a year. Such leave may be accumulated upto a
maximum period of 2 months (60 days). The terminal
surrender of earned leave admissible to Lok Ayukta and
Upa Lok Ayukta may be calculated on the basis of these
rules."
3. Heard Sri N. Raghuraj, learned Senior Counsel on
instructions of Sri Vivek Menon, on behalf of the petitioner, Sri
Antony Mukkath, Senior Government Pleader on behalf of
respondents 1 to 3 and Sri K.M. Firoz, for the 4th respondent.
4. The Senior Counsel appearing for the petitioner
submits that the Government letter Ext.P5 proceeds on the basis
that the appointment of the petitioner as Upa-Lok Ayukta is a re-
employment. It is submitted that the said understanding of the
Government itself was wrong. Reliance is placed on the judgment
of a Division Bench of this Court in Sreenivasan Venugopalan
v. Justice M.M.Pareed Pillay (Retd.) & Anr. [2009 (2) KHC
671], wherein the Division Bench categorically held that the post
of Lok Ayukta is an independent statutory post, and by no stretch
of imagination can it come under the purview of 'employment
under the Government'. (See also M.Abdul Rahuman v.
Principal Secretary to Government 2019 SCC OnLine Mad
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29456 and S.Subramaniam v. State of Kerala 2020 SCC
OnLine Kerala 4284). It is submitted that since the
appointment is neither a re-employment nor a post under the
Government, Appendix VIII of Part I of the Kerala Service Rules
has no application whatsoever. It is hence submitted that limiting
the earned leave benefit for 60 days was totally uncalled for.
Ext.P1 is a copy of Kerala Lok Ayukta and Upa-Loak Ayuktas
(Conditions of Service) Rules, 1999. Rule 3 pertains to the salary,
allowance, and other benefits to which the Lok Ayukta and Upa-
Lok Ayuktas are entitled. Rule 6 says that the Lok Ayukta or Upa-
Lok Ayukta shall be entitled to surrender leave facilities as in the
case of a Class I Officer of the State Government. It is
contended that by virtue of Rules 61 to 124 of Kerala Service
Rules, a Class I Officer is entitled to earned leave of a maximum
of 300 days, which is similar to that applicable to a High Court
Judge. The petitioner also relies on the fact that the predecessors
of the petitioner in the office of the Upa-Lok Ayukta have all been
granted earned leave surrender benefits for 228 days, and the
petitioner alone has been discriminated against. The fact that the
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predecessors in office were paid is not disputed. The respondents
contend in paragraph 9 of the counter affidavit filed by the State,
that the Vigilance Department in the Government had examined
the matter in consultation with the Finance Department and
concluded as follows:
"Even though Rule 6 of the Kerala Lok Ayukta &
Upa Lok Ayukta (Conditions of Service) Rules, 1999
entitles the Lok Ayukta & Upa Lok Ayukta to
surrender leave like Class I Officers of the State
government, the conditions of Service and salary and
allowances of the Members of Kerala Lok Ayukta is
the same as that of the Judges of High Court. As per
Rule 4(A) of the High Court Judges Conditions of
Service, Judges of High Court are eligible for
encashment of 300 days of earned leave at his credit
at the time of retirement, in their entire service,
including the period of service rendered in a
pensionable post under the Union or State or on re-
employment.
Also, there shall be a ceiling to the effect that
encashment of Earned Leave payable to the Lok
Ayukta and Upa Lok Ayukta shall not be higher than
300 days earned leave at his credit at the time of
retirement, in their entire service, including the
period of service rendered in a pensionable post
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under the Judicial Service or Union or State or on re-
employment".
In paragraph 10, it is further stated that it will have to be verified
whether the sanctioning of terminal leave surrender benefits in
respect of the predecessors in Office was in accordance with the
rules.
5. The 4th respondent has filed a counter-affidavit. Along
with the counter affidavit, Ext.R4(a) letter from the Registrar of
the Kerala Lok Ayukta to the Government has also been
produced. The 4th respondent has taken a definite stand that
Appendix VIII of Part I KSR apply only to re-employed pensioners
and cannot be applied in the case of Lok Ayukta and Upa-Lok
Ayukta, as is clear from Rule 8 and Note 1 under Rule 63 of Part I
KSR. It has been stated that the post is not a re-employment but
a fresh independent statutory appointment. The 4 th respondent
has also confirmed that the predecessors in office have all been
given the benefit as applicable to the Judges of the High Court. It
is further stated that the proviso to Section 5(4) of the Kerala Lok
Ayukta Act, 1999 specifically states that the salary and
allowances and other conditions of service of the Lok Ayukta
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or Upa-Lok Ayukta shall not be varied to its disadvantage after
the appointment and the reduction of terminal leave surrender in
the case of the petitioner after his appointment, violates Section
5(4) of the Act.
6. Appendix VIII of Part I KSI prescribes the rules for the
grant of leave to officers appointed for limited periods. The
Appendix refers to Appendix I and Note 1 below Rule 3 of Part I
KSR. Appendix I is the model form of agreement referred to in
Rule 8 of Part I, entered into while accepting an appointment for
a prescribed term. The appointment of the petitioner is not
based on such an agreement. Rule 63 of Part I KSR reads thus;
"63. (a) If an officer, who quits the public service on
compensation or invalid pension or gratuity, is re-employed and
if his gratuity is thereupon refunded or his pension held wholly
in abeyance, his past service thereby becoming pensionable on
ultimate retirement, he may, at the discretion of the
Government and to such extent as the Government may
decide, count his former service towards leave.
(b) An officer who is dismissed or removed from the public
service, but is reinstated on appeal or revision, is entitled to
count his former service for leave.
Note 1 - The re-employment of a person who has
retired on a superannuation or retiring
pension is generally an exceptional and
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temporary expedient. In such cases, the
service of the re-employed pensioner should
be regarded as temporary and his leave
during the period of re-employment regulated
by the rules in Appendix - VIII.
Note 2 - Resignation of public service even though it is
followed immediately by re-employment
entails forfeiture of past service and
constitutes an interruption of duty. But
resignation to take up another appointment
does not constitute an interruption."
A reading of the above provision clearly shows that it applies only
to re-employed pensioners. The above provision will not apply to
the petitioner, whose appointment is a statutory appointment
under the Lok Ayukta Act. Section 3 of the Kerala Lok Ayukta Act,
1999, provides for the appointment of Upa Lok Ayuktas. It does
not speak of re-employment. It speaks of an appointment. The
holding of office as a Judge of the High Court is a requirement for
being appointed as an Upa-Lok Ayukta. The appointment is made
on the advice tendered by the Chief Minister in consultation with
the Speaker of the Legislative Assembly of the State and the
Leader of Opposition in the Legislative Assembly of the State,
and after consultation with the Chief Justice of the High Court
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concerned, if the person appointed is a sitting Judge. The
appointment is made by the Governor. It is hence evident that
Appendix VIII can have no role in determining the service
conditions of the Upa Lok Ayukta.
7. On appreciation of the arguments advanced by the
counsel on either side and the materials placed on record, I find
that Ext.P5 cannot be justified in any manner. Ext.P5 is issued
on the premise that the appointment is a re-appointment.
Admittedly, the petitioner retired from service as a Judge of this
Court and was later appointed as a Judicial Member of the
Central Administrative Tribunal. It is thereafter that he was
appointed as Upa-Lok Ayukta in terms of Section 3 of the Kerala
Lok Ayukta Act and Rule 3 of the Kerala Lok Ayukta and Upa-Lok
Ayukta (Conditions of Service) Rules, 1999. Rule 3 specifically
says that the Lok Ayukta shall be entitled to the same salary and
allowances as that of the Supreme Court Judge or the Chief
Justice of a High Court, and that an Upa-Lok-Ayukta shall be
entitled to the same salary and allowances as that of a Judge of a
High Court. Rule 4 says that the Upa-Lok-Ayukta will be
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entitled to the same perquisites as that of a Judge of a High
Court from time to time. As per Rule 5, the Upa-Lok Ayukta is
entitled to a daily allowance at the same rate as a Judge of a
High Court is entitled to. As such, the appointment can never be
treated as a re-employment to make Appendix VIII applicable.
The contents of Ext.P5, on the face of it, are not in accordance
with the law.
The writ petition is hence allowed. Respondents 1 and 2
are directed to disburse leave surrender/encashment benefits to
the petitioner for 228 days, in the manner applicable to High
Court Judges.
Sd/-
T.R. RAVI
JUDGE
dsn
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APPENDIX OF WP(C) NO. 9176 OF 2024
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOCOPY OF THE KERALA LOK AYUKTA AND
UPA-LOK AYUKTA'S (CONDITIONS OF SERVICE)
RULES, 1999.
Exhibit P2 TRUE PHOTOCOPY OF THE HIGH COURT JUDGES
(CONDITIONS OF SERVICE) ACT, 1954
Exhibit P3 TRUE PHOTOCOPY OF THE LEGAL NOTICE DATED
15.06.2022 SUBMITTED BY THE PETITIONER TO THE
1ST RESPONDENT.
Exhibit.P3[a] TRUE PHOTOCOPY OF THE LEGAL NOTICE DATED
15.06.2022 SUBMITTED BY THE PETITIONER TO THE
2ND RESPONDENT.
Exhibit.P4 TRUE PHOTOCOPY OF THE REPLY LETTER BEARING
NO. VIG/C3/274/2022-VIG. DATED 27.08.2022
ISSUED BY THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE LETTER BEARING NO. VIG-
C3/270/2021-VIG DATED. 15.7.2022 ISSUED BY
THE 2ND RESPONDENT
RESPONDENT EXHIBITS
EXHIBIT R4(A) A TRUE PHOTOCOPY OF LETTER ISSUED BY THE
REGISTRAR IN CHARGE OF THE KERALA LOK AYUKTA
TO THE 2ND RESPONDENT BEARING NO.
208/LA/A1/2016 DATED 25.03.2024
EXHIBIT R2(A) TRUE COPY OF LETTER DATED 8/3/21 FROM THE O/O
THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM.
EXHIBIT R2(B) TRUE COPY OF LETTER DATED 15/7/22 FROM
VIGILANCE DEPARTMENT.
EXHIBIT R2(C) TRUE COPY OF GO(MS) 2/2021/VIG DATED 5/2/21.
