IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26661 of 2009(C)
1. M.T.VARGHESE,
... Petitioner
2. JOHN T.P.
3. THOMAS JOSHUA,
4. K.CHANDRANANDAN,
5. N.SIDHARDHAN,
6. K.G.KURIAKOSE,
7. N.SUKUMARAN,
8. A.VENKITA SUBRAMANINA
9. K.REVINDRA NATHAN UNNITHAN,
10. T.V.SUDHAKARAN,
11. K.GOPALAKRISHNAN NAIR,
12. P.M.XAVIER,
13. C.K.JOSEPH,
14. M.P.VIJAYAN NAIR,
15. V.N.BABU,
16. R.RADHAKRISHNA PILLAI,
17. S.N.MOHAN RAJ,
18. P.A.PAREED,
19. A.V.VARGHESE,
Vs
1. STATE OF KERALA,
... Respondent
2. THE PRINCIPAL SECRETARY,
3. THE SPECIAL OFFICER,
4. SECRETARY,KERALA STATE ELECTRICITY BOARD
5. CHIEF ENGINEER(HRM),
For Petitioner :SRI.P.M.PAREETH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :23/07/2010
O R D E R
ANTONY DOMINIC, J.
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W.P(C) Nos.26661/09,30613/09,31366/09,
34565/09 37707/09 & 2158/2010
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Dated this the 23rd day of July, 2010
J U D G M E N T
Issue raised in these writ petitions are common and
therefore the cases were heard together and are disposed of by
common judgment.
2. Petitioners were employees of the Kerala State
Electricity Board, who have retired from service on various dates
subsequent to 1.7.2003. In these writ petitions they challenge some
of the provisions of the Board Order.No.2748/2008
(PS1/1428/2007) dated 11.11.2008. While some of the petitioners
are challenging clause (6) providing for a ceiling of DCRG, the other
petitioners are challenging clause 7.1 and 7.2 providing for
commutation of pension and restoration of commuted portion of
pension.
3. The impugned provisions Ext.P1 Board order referred
to above, are extracted below for reference.
” Ceiling on Death-cum-Retirement Gratuity(DCRG)
6.1 The ceiling of the maximum amount of DCRG
WPC.Nos. 26661/09 & conn.
:2 :
will be raised from Rs.2,80,000/- to Rs.3,30,000/-
to those who retired on or after 1.8.2006. Those
who retired before1.8.2006 are eligible only for
DCRG amount limited to Rs.2.80 lakhs only. All
other conditions governing payment of DCRG shall
remain unchanged.
Commutation of Pension and restoration of
Commuted Portion of Pension.
7.1 The existing rate of 1/3rd of the Basic Pension
for commutation of pension will be enhanced to 40%
of the pension based on the revised pay, in the case
of retirement on or after 1.9.2007.
7.2 Those who retired from 1.7.2003 to 31.8.2007,
are entitled to commute only 1/3rd of the pension
admissible on the pre-revised pay and they are not
entitled to commute 1/3rd of the pension
admissible on the revised pay. In the case of
commutation, already settled cases will not be
reopened. ”
4. The main contention raised by the petitioners is that,
being retired employee of the Board, all the pensioners form one
class. It is stated that by the aforesaid provisions of Ext.P1 Board
order, the existing benefits of DCRG and the commuted value of
pension were revised. According to them while revising or
liberalizing the benefits, the existing one class of
pensioners/beneficiaries, have been classified into two, on the basis
of a cut off date fixed by the Board and that on the basis of the cut
off date, those who retired prior to the cut off date are denied the
WPC.Nos. 26661/09 & conn.
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revised benefit, while those who have retired subsequent to the cut
off date have been given the revised benefits. It is contended that
such classification is irrational and opposed to th law laid down by
the Apex Court in D.S.Nakara & Ors. V. Union of India ( AIR 1983
SCC 130) and therefore the petitioners are entitled to the benefits
as revised by Ext.P1 on a par with those who have retired, after the
cut off dates.
5. Counter affidavit has been filed by the Board. In the
counter affidavit no justification is forthcoming regarding the
fixation of the cut off date as incorporated in the impugned
provisions of the Board order. Board also has not succeeded in
showing that the benefits provided in the impugned provisions are
anything other than revision of the existing benefits. They have
also not put forward any other justification for fixing such a cut off
date.
6. In such a situation, in my view, having regard to the
law laid down by the Apex Court in the judgment referred to above,
the cut off date introduced and the discrimination of one set of
pensioners is unsustainable.
7. In the judgment in Nakara’s case, after referring to
the various precedents it was held that pension is neither a bounty
WPC.Nos. 26661/09 & conn.
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nor a matter of grace depending upon the sweet will of the
employer. Therefore, the Apex Court held as follows.
“Proceeding further, this Court observed that where
all relevant considerations are the same, persons
holding identical posts may not be treated
differently in the matter of their pay merely because
they belong to different departments. If that cannot
be done when they are in service, can that be done
during their retirement? Expanding this principle,
one can confidently say that if pensioners form a
class, their computation cannot be by different
formula affording unequal treatment solely on the
ground that some retired earlier and some retired
later.”
8. It may have been possible for the Board to justify a
cut off date and denial of revised benefits to those retired
subsequent to the cut off date. Cases involving introduction of new
benefits, cases where financial constrains are pleaded are some of
the instances where cut off date specified have been upheld. But
such justification is possible only in cases where facts in support
thereof are adequately pleaded with sufficient supporting material,
which is totally absent in this case. Having regard to the above, in
the light of the law thus laid down, I cannot sustain the
classification attempted by the Board in the impugned provisions.
Therefore the provision in clause6(1) providing that those who have
retired prior to 1.8.2006 are eligible to DCRG limited to Rs.2.80
WPC.Nos. 26661/09 & conn.
:5 :
lakhs, provision in clause 7.1 that those who have retired after
1.9.2007 alone will be entitled to 40% of the basic pension and
clause 7.2 in so far as it provides that those who have retied from
1.7.2003 to 31.8.2007 are entitled to only 1/3rd of the pension
admissible on the pre-revised pay and that they are not entitled to
commute 1/3rd of the pension admissible on the revised pay are
unsustainable.
Therefore, the writ petitions are disposed of, quashing clauses
6.1,7 .1 and 7.2 to the extent it discriminates employees on the
basis of their date of retirement and directing the respondents to
extend the benefit of DCRG and commutation of pension uniformly
to the petitioners without discrimination on the basis of their dates
of retirement.
Writ Petitions are disposed of as above
(ANTONY DOMINIC)
JUDGE
vi/