IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 249 of 2003(D)
1. V.VIJAYAN, SENIOR SUPERINTENDENT
... Petitioner
2. K.KOMALAKUMARI,
3. N.A.VISWANATHAN, SENIOR SUPERINTENDENT,
4. K.SARALADEVI, SENIOR SUPERINTENDENT
5. N.K.MUHAMMEDALI, ASSISTANT,
6. A.SETHU, SUB ENGINEER,(RETD), KSEB,
7. A.BHASKARAN, SENIOR WATCHMAN (RETD),
8. K.A.ABUHAMEED, JUNIOR ENGINEER,
9. N.K.LEVAN, ASSISTANT ACCOUNTS OFFICER,
10. R.KRISHNAN, SENIOR SUPERINTENDENT,
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. EXECUTIVE ENGINEER,
3. EXECUTIVE ENGINEER,
4. EXECUTIVE ENGINEER,
For Petitioner :SRI.G.D.PANICKER
For Respondent :SRI.T.G.RAJENDRAN SC FOR K.S.E.B.
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :15/06/2009
O R D E R
ANTONY DOMINIC, J.
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O.P. No.249 of 2003
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Dated, this the 15th day of June, 2009
J U D G M E N T
The petitioners are retired employees of the 1st respondent
Board, having retired during the period from 01/07/1998 to
23/03/2001.
2. Ext.P1 is a Board order, revising the pensionary benefits
of pensioners/family pensioners of the Board. This was issued on
23/03/2001, and as per Clause 5, the order is effective from
01/07/1998. In so far as the issue raised in this original petition is
concerned, all that is to be noticed is that in Clause 17 it is provided
that as far as the arrears payable is concerned, interest will accrue
from the date of authorization of revised DCRG and Commutation.
In implementation of Ext.P1 order authorization of revised DCRG /
Commutation orders were issued to the petitioners on various
dates. Ext.P2 is one such order issued on 15/09/2001.
3. Complaining that as a result of the belated issuance of
authorization, they have lost considerable amounts towards interest,
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Ext.P3 representation was submitted by the 1st petitioner. Ext.P4 is
a tabulation statement in which, the petitioners have given the
details of the amounts, which they claim to have lost towards
interest due to belated issue of authorisation.
4. According to the petitioners, pensioners form one class
and although, in Ext.P1, date of authorization is the date specified
for their entitlement of interest on arrears, in several cases,
authorization has been issued immediately on the issuance of
Ext.P1. It is stated that as against this, in many cases such as those
of the petitioners’, issuance of authorization was inordinately
delayed, and as a result of which, their entitlement for interest
commenced only from a belated date. This, according to the
petitioners, resulted in discrimination, in as much as those who
have been issued authorisation belatedly lost considerable amounts
towards interest. On this factual basis, complaining that their rights
under Article 14 of the Constitution of India has been violated, this
writ petition has been filed seeking to quash the Clause in Ext.P1
providing that interest will accrue from the date of authorization,
and to direct the respondents to grant interest with reference to the
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date of retirement or at least from the date of Ext.P1 order.
5. The respondents have filed a counter affidavit. In the
counter affidavit filed, they are denying the allegation of
discrimination. Irrespective of the factual controversy, that is
involved, what arises for determination is whether the respondents
were justified in fixing the date of authorization of revised
DCRG/Commutation as the date from which, interest will be payable
to the pensioners. In other words, the question is whether fixation
of such a cut off date is arbitrary and is violative of the
constitutional right of the petitioners. The learned counsel for the
petitioners relied on the Apex Court judgment in State of West
Bengal & Others v. Ratan Behari Dey & Others (1993(4) SCC 62). In
this judgment, although the right to choose a cut off date has been
conceded in favour of the Government, the Apex Court held that a
date prescribed shall not be unreasonable or discriminatory. Such a
conclusion has been arrived on referring to the judgments of the
Apex Court in D.S.Nakara v. Union of India (1983(1) SCC 305) and
Krishena Kumar v. Union of India (1990(4) SCC 207). A Division
Bench of this Court in the judgment in Ananthasubramanian v. State
O.P. No.249/2003
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of Kerala (1996(2) KLT 69) has also followed the Apex Court
judgment in State of West Bengal’s case referred to above.
6. On the other hand, the learned standing counsel for the
Electricity Board referred to me the Apex Court judgment in
Government of A.P. v. Subbarayudu (2008(2) KLT 681) and
contended that the fixation of a cut off date has been done taking
into account various considerations and that except in a case of
extreme arbitrariness, this Court will not be justified in interfering
with the same. It is pointed out that in so far as the respondents
are concerned, they have not discriminated any employee in as
much as the date specified is a uniform one, namely, the date of
authorization of revised DCRG/Commutation as the date rendering
the pensioner eligible for interest.
7. As already stated, the limited examination that is
possible for this Court is whether the date chosen by the
respondents is one which is without any justification, or whether it
is so arbitrary and discriminatory offending Article 14 of the
Constitution of India. Although, it is factually correct that the date
of issue of revised authorization is not the same for all the
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employees, which is humanly impractical also, the petitioners
cannot say that the date fixed by the Board is not uniform. If that
be so, the date fixed as such cannot be characterised as one which
is discriminatory. Leaving all these controversies, in my view, in the
light of the law laid down by the Apex Court in Government of A.P.
v. Subbarayudu (2008(2) KLT 681) this Court will not be justified in
interfering with the date fixed. Paragraphs 4 to 8 of the judgment,
which is of relevance is reads as under:-
“4. In a catena of decisions of this Court it has been held
that the cut off date is fixed by the executive authority keeping in
view the economic conditions, financial constraints and many
other administrative and other attending circumstances. This
Court is also of the view that fixing cut off dates is within the
domain of the executive authority and the Court should not
normally interfere with the fixation of cut off date by the executive
authority unless such order appears to be on the face of it
blatantly discriminatory and arbitrary.(See State of Punjab & Ors.
v. Amar Nath Goyal & Ors. (2005 (6) SCC 754).
5. No doubt in D.S.Nakara & Ors. v. Union of India
(1983 (1) SCC 305) this Court had struck down the cut off date in
connection with the demand of pension. However, in subsequent
decisions this Court has considerably watered down the rigid view
taken in Nakara’s case (supra), as observed in para.29 of the
decision of this Court in State of Punjab & ors. v. Amar Nath Goyal
& Ors. (supra).
6. There may be various considerations in the mind of
O.P. No.249/2003
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the executive authorities due to which a particular cut off date has
been fixed. These considerations can be financial, administrative
or other considerations. The Court must exercise judicial restraint
and must ordinarily leave it to the executive authorities to fix the
cut off date. The Government must be left with some leeway and
free play at the joints in this connection.
7. In fact several decisions of this Court have gone to
the extent of saying that the choice of a cut off date cannot be
dubbed as arbitrary even if no particular reason is given for the
same in the counter affidavit filed by the Government, (unless it is
shown to be totally capricious or whimsical) vide State of Bihar v.
Ramjee Prasad (1990 (3) SCC 368), Union of Indian & Anr. v.
Sudhir Kumar Jaiswal (1994 (4) SCC 212) (vide para 5), Ramrao &
Ors. v. All India Backward Class Bank Employees Welfare
Association & Ors. (2004 (2) SCC 76) (vide para 31), University
Grants Commission v. Sadhana Chaudhary & Ors. (1996 (10) SCC
536) etc. It follows, therefore, that even if no reason has been
given in the counter affidavit of the Government or the executive
authority as to why a particular cut off date has been chosen, the
Court must still not declare that date to be arbitrary and violative
of Art.14 unless the said cut off date leads to some blatantly
capricious or outrageous result.
8. As has been held by this Court in Divisional Manager,
Aravali Golf Club & Anr. v. Chander Hass & Anr. 2008(1) KLT SN
29 (C.No.33) SC = 2008(3) 3 JT 221 and in Government of Andhra
Pradesh & Ors. v. Smt.P.Laxmi Devi, 2008(2) KLT SN 13 (C.No.13)
SC = 2008(2) 8 JT 639 the Court must maintain judicial restraint
in matters relating to the legislative or executive domain.”
In the light of the judgment as above, I cannot accept the plea
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of the petitioners that the respondents are to be faulted in fixing the
date of authorization as the relevant date for payment of interest.
The original petition fails, and accordingly, dismissed.
(ANTONY DOMINIC, JUDGE)
jg