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TMI Blog2007 (3) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... /- comprising Basic Pay of Rs. 3,500/-, Dearness Allowance of Rs. 437/- and Special Allowance of Rs. 300/-. 3. The pension payable to High Court Judges is governed by Chapter III of the High Court Judges (Conditions of Service) Act, 1954 (for short 'the Act'). Clause (b) of Sub-section (1) of Section 15 provides that every Judge who was not a member of the Indian Civil Service but has held any other pensionable post under the Union or a State, shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule. The proviso thereto and Sub-section (2) require such Judge to exercise certain options. The appellant was governed by Part III of the First Schedule to the Act as he did not opt for pension under Part I of that Schedule. Part III of the First Schedule is extracted below: 1. The provisions of this Part apply to a Judge who has held any pensionable post under the Union or a State (but is not a member of the Indian Civil Service) and who has not elected to receive the pension payable under Part 1. 2. The pension payable to such a Judge shall be - (a) the pension to which he is entitled under the ordinary rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Governments to either adopt the said O.M. or issue independent orders on similar lines, subject to the maximum stipulated in Schedule III to the Act. By order dated 19.10.1989, the Government of Kerala directed that the pension of the Judges of the High Court, who have been promoted from the State Higher Judicial Service and falling under Part III of the First Schedule to the Act, shall be revised with effect from 1.1.1986 in accordance with the rates referred to in the O.M. dated 16.4.1987 issued by the Government of India. 6. By communication dated 26.10.1989, the office of the Accountant General, Kerala, informed the Central Government (with copy endorsed to appellant) that the pension of the appellant who had opted for Part III of the First Schedule to the Act, was revised and consolidated from 1.1.1986 and 1.11.1986 as follows: (a) Pension (including additional pension) from 1.1.1986: Rs. 32,720 p.a. (b) Pension (including additional pension) from 1.11.1986: Rs. 37,220 p.a. The annexure to the said letter showed the calculation of pension as follows, by treating the ' emolument reckoned for pension as Rs. 3,500/- per month and qualifying service as 23 years: Amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion that average emolument of the appellant had to be taken as Rs. 4237/- instead of Rs. 3500/- per month for calculating the ordinary pension. In support of the contention that the special additional pension should be calculated without any ceiling, reliance was placed on M.L. Jain (111 ) MANU/SC/0206/1991 : (1991)ILLJ499SC . 10. This Court, by judgment dated 16.4.2004 (reported in 2004 (5) SCC 259) held that having regard to Rule 62, 'emolument' for calculating pension, would include dearness allowance and other special allowances. This Court further held that the ordinary pension of appellant should be calculated by taking Rs. 4237/- was the monthly emolument instead of Rs. 3,500/-. This Court also held that the special additional pension should be calculated under Clause 2(b) of Part III of the First Schedule to the Act without any ceiling, in view of the decision in M.L. Jain (III). The respondents were directed to recalculate the pension within three months and pay the arrears to the appellant. 11. Aggrieved by the first part of the judgment relating to calculation of ordinary pension based on the interpretation of Rule 62, the State of Kerala filed a review petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng immediately before his retirement and includes: (a) pay as defined in Rule 12(23) in Part 1 of these Rules and/or pay of the appointment under Rule 9 or Rule 31 of the Kerala State and Subordinate Service Rules. (b) the dearness pay the employee was actually in receipt of. Rule 12(23) in Part 1 of the Kerala Service Rules defines 'pay' thus: Pay:- Means the amount drawn monthly by an officer as - (i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which is entitled by reason of his position in a cadre, and (ii) personal pay and special pay, and (iii) any other emoluments which may be specially classed as pay by the Government. The appellant was not receiving any Dearness Pay. It is also not in dispute that dearness allowance and special allowance were not specially classed as 'pay' by the State Government under Rule 12(23). Therefore dearness allowance and special allowances, do not form part of pay. The word 'emolument' no doubt is a wider term than basic pay. It generally refers to the salary or profits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 175 referring to and relying on the decisions of this Court in The Municipal Council, Raipur v. State of Madhya Pradesh MANU/SC/0154/1969 : 1970CriLJ1656 , South Gujarat Roofing Tile Manufacturers Association v. State of Gujarat MANU/SC/0314/1976 : [1977]1SCR878 , Hindustan Aluminum Corporation v. State of Uttar Pradesh MANU/SC/0405/1981 : 1983(13)ELT1656(SC) , and Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. MANU/SC/0073/1987 : [1987]2SCR1 . It is, therefore, evident that the word 'includes' can be used in interpretation clauses either generally in order to enlarge the meaning of any word or phrase occurring in the body of a Statute, or in the normal standard sense, to mean 'comprises' or 'consists of or 'means and includes', depending on the context. 17. If the words 'and includes' were intended to rope in certain items which would not be part of the meaning, but for the definition, then Rule 62 would have specified only 'dearness pay' as the item to be included but not 'pay'. If pay, dearness allowance and other allowances were already included in 'emolument' with reference to its gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- introduced with effect from 1.11.1986, nor the earlier ceiling of Rs. 3500/- is valid. As a consequence, the special additional pension should be taken as Rs. 5,600/- per annum (that is Rs. 700x8) instead of Rs. 3500/- from 1.1.1986 and Rs. 12,800/- per annum (that is Rs. 1600x8) instead of Rs. 8,000/- from 1.11.1986. In fact, neither Union of India, nor State Government dispute this position. 21. We, therefore, allow these appeals in part and hold as follows: (i) that for the purpose of calculation of pension, the 'emolument' received by the appellant was Rs. 3,500/- per month and not Rs. 4,237/-. Consequently, determination of consolidated ordinary pension as Rs. 29,220/- per annum from 1.1,1986 is upheld. (ii) As the ceiling on the amount to be added under Clause 2(b) of Part III of First Schedule to the Act is invalid, the special additional pension per annum would be Rs. 5600/- per annum from 1.1.1986 and Rs. 12,800/- per annum from 1.11.1986 in the case of appellant. (iii) Therefore, the total pension was Rs. 34,820/- p.a. from 1.1.1986 and Rs. 42,020/- per annum from 1.11.1986. 22. We direct that the pension due be recalculated and settled accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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