Kerala High Court
Paul Simon vs State Of Kerala on 17 October, 2025
WA NO.2107/2018 1
2025:KER:77181
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR.JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 17TH DAY OF OCTOBER 2025 / 25TH ASWINA, 1947
WA NO.2107 OF 2018
ARISING OUT OF THE JUDGMENT DATED 28.06.2018 IN WP(C)
NO.33935/2017 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
PAUL SIMON
(RETIRED DISTRICT JUDGE)
(MEMBER(RETD), ADVISORY BOARD,
KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION)ACT),
KOODARAM, MAROTTICHUVADU ROAD, KENNADI MUKKU,
EDAPPALLY P.O., ERNAKULAM, PIN- 682024.
BY ADVS.
SRI.ENOCH DAVID SIMON JOEL
SRI.GEORGE A.CHERIAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695001
2 ACCOUNTANT GENERAL (A AND E)
INDIAN AUDIT AND ACCOUNTS DEPARTMENT,
OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL (A & E),
KERALA, M.G.ROAD, P.B.NO.5607,
THIRUVANANTHAPURAM-695001.
BY ADV.SRI.K.P.HARISH, SR.GOVERNMENT PELADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
16.07.2025, THE COURT ON 17.10.2025 DELIVERED THE FOLLOWING:
WA NO.2107/2018 2
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JUDGMENT
Dated this the 17th day of October, 2025
Syam Kumar V.M., J.
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
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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
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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 Sri.Enoch David Simon Joel, Advocate for the appellant
and Sri.K.P.Harish, Senior Government Pleader for the 1 st respondent.
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5. The learned counsel or the appellant contended that the
learned Single Judge erred in dismissing the writ petition. It is submitted
that earned leave is to be calculated on full pay, and the full pay of a re-
employed pensioner is the pay drawn by him on the date of retirement.
Being a re-employed pensioner, in the manner of disbursement, the
pension he receives will be deducted from his full pay, and only the
amount due to him will be paid as pension plus the balance due. The
reliance placed by the learned Single Judge on Rule 100 of Part III of
KSR is termed as erroneous, and it is submitted that the learned Single
Judge ought to have placed reliance on Rule 92 of Part III of KSR,
which dealt with the method of calculating leave and salary. Rule 100 of
Part III of KSR, on the other hand, dealt with the manner in which the
pay is to be distributed for a re-employed pensioner. The learned Single
Judge failed to appreciate the said essential difference between the
provisions. It is further contended that the learned Single Judge
overlooked the fact that there has been a violation of the mandate of
equality under Article 14 of the Constitution insofar as other members of
the KAAPA had been paid amounts higher than what has been paid to
the appellant, and to that extent, there was discrimination. It is
submitted that there are no enabling rules or orders entitling the 2nd
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respondent to withhold or deny Rs.28,850/-, which is the monthly
pension portion, while granting the earned leave surrender salary to the
appellant and the 2nd respondent was not entitled to effect such a
deduction. The learned Single Judge had failed to appreciate the
irrational and arbitrary approach adopted by the 2 nd respondent, and the
impugned judgment is hence liable to be set aside.
6. Per contra, the learned Senior Government Pleader submitted
that the judgment of the learned Single Judge does not call for any
interference and that the Writ Appeal is only to be dismissed. It is
submitted that the appellant had retired on 30.06.2010 as a District
Judge and he was re-employed as a member of the Advisory Board
constituted under the KAAPA. As per Rule 6(2) of the said Rules, a
member of the Advisory Board who is a retired District Judge is entitled
to draw salary and allowances equivalent to the salary and allowances
drawn at the time of retirement and in terms of Rule 100 of KSR Part III,
it is submitted that as per Rule 100 of KSR Part III, a re-employed
pensioner is entitled to draw salary and allowance equivalent to the
salary and allowance drawn at the time of his retirement, minus the
monthly pension he is receiving. They are entitled to DA on full pay and
HRA, and CCA as admissible from time to time and also for periodical
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increments. The appellant was authorised a salary and allowance
equivalent to the salary and allowance drawn at the time of retirement
as a District Judge, minus the monthly pension admitted. On the date of
his appointment as a member of the Advisory Board of KAAPA, he was
drawing Rs.28,850/- as his monthly pension. Therefore, he was
authorised re-employment pay of Rs.28,850/- with effect from
01.02.2013 ie., the date of appointment as a member of KAAPA
Advisory Board and subsequently the same was raised to Rs.30,080/-
with effect from 01.02.2014 and Rs.31,460/- from 01.02.2015 after
granting increments as per rules. The re-employment pay due to the
appellant on 01.09.2014 was Rs.30,080/- and the surrender of earned
leave had been sanctioned based on the clarification of the Government
in Circular dated 01.08.1996. As regards the alleged discrimination, it is
submitted that the appellant cannot compare himself with another
member who was not a re-employed person, whose surrender of
earned leave was arrived at the rate of his monthly salary. It is thus
prayed that none of the contentions raised are sustainable and the Writ
Appeal is only to be dismissed.
7. We have heard both sides in detail and have considered the
contentions put forth. The learned Single Judge had proceeded to
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consider the question whether, on surrender of earned leave, a re-
employed pensioner is entitled to be paid the entire pre-retirement pay
without deducting his monthly pension towards the leave salary. The
learned Single Judge had taken note of Rule 100 of Part III, which
governs the pay of re-employed pensioners and had concluded that by
virtue of the said provision, whenever a pensioner is re-employed, his
pay on such re-employment would be fixed at the pay drawn at the time
of his retirement minus basic pension. He is also entitled to Dearness
Allowance, House Rent Allowance and City Compensatory Allowance,
calculated on the pre-retirement pay without reducing the pension. After
taking note of Rule No.77 (iii) of Part I KSR, which relates to earned
leave, as well as Rule No.12(17) that defines leave salary, i.e., the
monthly amount paid by the Government to an officer on leave, the
learned Single Judge had concluded that the monthly amount paid by
the Government is pre-retirement pay minus pension as provided under
Rule 100 of Part III KSR and hence even though the appellant had
earned leave by performing duty, leave salary that would be admissible
to the appellant would be only an amount equal to the pre-retirement
pay minus pension. Relying on Exhibit P2 Rules of 2011, it was held
that the members who are retired District Judges would be eligible for
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pre-retirement pay minus their monthly pension. We do not find any
error in the said reasoning and conclusion arrived at by the learned
Single Judge. We concur with the view of the learned Single Judge that
the duty pay of the appellant can only be the pay which he would have
drawn if he were on duty. As regards a person who is re-employed, he
is governed by Rule 100 of Part III of KSR, and he will be eligible only
for the pre-retirement pay minus pension towards the leave salary. The
conclusion arrived at by the learned Single Judge that any payment,
inclusive of pension towards surrender of earned leave, would violate
Rule 100 of Part III is valid and cogent. We note that the monthly pay of
a member of the Advisory Board of KAAPA is pay and allowance at the
time of retirement, minus the monthly pension. No Government Order,
Circular or any binding legal norm has been pointed out to support the
contention that the amount of pension is to be treated as part of the
salary. As regards the alleged discrimination against the appellant on
the premise that another member appointed along with the appellant
was given a higher amount as surrender leave salary, we note that the
said individual, who is not a re-employed pensioner, stood on a different
footing and was hence entitled to the same. We thus find no error or
perversity in the impugned judgment of the learned Single Judge
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meriting any interference. The Writ Appeal is accordingly dismissed.
The direction of the learned Single Judge to disburse within one
month of the impugned judgment, the amounts due to the appellant
towards surrender of earned leave, if not already complied with, shall be
complied with within one month from the date of this judgment.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
