IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5173 of 2010(V)
1. K.SAJEETHA BHEEGAM, W/O.MEERA PILLAN,
... Petitioner
2. G.R.VIJAYACHANDRAN NAIR, VIJAYA BHAVANAM
3. A.VIJAYAKUMARAN NAIR, KARAKKAPPURAM,
4. R.RAVINDRAN, SOBHA NIVAS, PUTHENVILA
5. B.SASI, CHARUVILAKKATU VEEDU,
6. V.G.AMBUJAKSHAN NAIR, VARRIKAYIL HOUSE
7. A.ANTONY, KOCHUVEETTIL HOUSE,
8. A.JAMEELA BEEVI,
9. NIRMALA JOHN, KUNNUMADOM, ERAVIPURAM
10. MARIAMMA DAVID, MERRY COTTAGE,
Vs
1. THE KERALA STATE ELECTRICITY BOARD
... Respondent
2. THE CHIEF ENGINEER, HRMS,
For Petitioner :SMT.P.K.RADHIKA
For Respondent :SRI.K.S.ANIL, SC, KSEB
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :09/09/2010
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No.5173 of 2010
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Dated this the 9th day of September, 2010
J U D G M E N T
In this writ petition the petitioners seek the following
reliefs:
“(a) issue a writ of mandamus or any other appropriate writ
order or direction commanding the first respondent to
sanction commutation of 1/3rd the revised pension
consequent on the revision of pay.
(b) issue a writ of certiorari or any other appropriate writ
order or direction calling for the records leading to the
issuance of clause 7.2 of Ext.P2 order by the board and to
quash the same.”
Now both sides agree that, the issue involved in this
writ petition is covered by the judgment in W.P.(C)
No.30613/2009 and connected cases. That judgment reads
as follows:
“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
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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
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 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.
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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 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
lakhs, provision in clause 7.1 that those who have retired after
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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.”
In the above circumstances, this writ petition is
disposed of in terms of the above judgment.
S. SIRI JAGAN
JUDGE
shg/