IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 567 of 2011(U)
1. N.C.OUSEPH, S/O.THOMA CHACKO,
... Petitioner
2. M.T.JOSE, MOOUJELLY HOUSE,
3. KUNJU KUNJU.A.I, AREECKAL HOUSE,
Vs
1. THE KERALA STATE ELECTRICITY BOARD
... Respondent
2. THE CHIEF ENGINEER,
For Petitioner :SMT.P.K.RADHIKA
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :07/01/2011
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No.567 of 2011
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Dated this the 7th day of January, 2011
J U D G M E N T
The petitioners were employees of the Kerala State Electricity
Board. They have retired from service subsequent to 1.7.2003. After
their retirement, the scales of pay of the employees of the Kerala
State Electricity Board have been revised with retrospective effect
from the date prior to their retirement. The petitioners’ grievance in
this writ petition is that although their pay was revised accordingly,
the petitioners were not paid revised DCRG and commuted value of
pension in terms of the pay revision. The petitioners therefore seek
the following reliefs:
“(a) Issue a writ of mandamus or any other appropriate writ
order or direction to extend the benefits of enhanced
DCRG and enhanced rate of commutation of pension on
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 6.1, 7.1 and 7.2 of Ext. P1 order and to
quash the provisions discriminating pensioners based on
the date of retirement.”
2. I have heard the learned standing counsel for Electricity
Board.
3. An identical question was considered by a learned d Judge of
this Court in a batch of writ petitions, viz. W.P(C) Nos.26661, 30613,
31366, 34565 & 37707/2009 and 2158/2010. In that judgment, it
was held as follows:
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“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 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
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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 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,
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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.”
I am in agreement with the said judgment. Therefore, this writ
petition is also disposed of in terms of that judgment.
Sd/-
S. SIRI JAGAN
JUDGE
//True copy//
P.A. TO JUDGE
shg/