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M.T.Varghese vs State Of Kerala on 23 July, 2010

Kerala High Court
M.T.Varghese vs State Of Kerala on 23 July, 2010
       

  

  

 
 
  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.
        ----------------------------------------------------------------
           W.P(C) Nos.26661/09,30613/09,31366/09,
                 34565/09 37707/09 & 2158/2010
       -------------------------------------------------------------------
              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.

:3 :

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.

:4 :

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/

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