IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24790 of 2007(A)
1. P.J.ANDREWS,
... Petitioner
2. SUDHAKARA KAMATH,
3. K.V.PRABHAKARAN,
4. K.J.GEORGE,
5. K.R.RAGHUVARAN,
6. A.S.ANCELI,
7. V.J.JOSEPH,
Vs
1. GOVERNMENT OF KERALA, REPRESENTED BY
... Respondent
2. DIRECTOR OF MUNICIPAL ADMINISTRATION,
3. CORPORATION OF COCHIN REPRESENTED BY
For Petitioner :SRI.M.C.CHERIAN
For Respondent :SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATI
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :28/01/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos.24790, 30787
& 35094 of 2007
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 28th day of January, 2009.
JUDGMENT
Common questions arise in these writ petitions and therefore they are
disposed of by a common judgment.
2. In Writ Petition Nos.30787 and 35094 the petitioners respectively
are widows of ex-employees of the Corporation of Cochin and in Writ
Petition No.24790 the petitioners are retired employees of the Corporation.
The relevant facts in respect of W.P.(C) No.24790 show the following:
3. The petitioners herein are getting pension and DR pursuant to
Exts.P1 to P4 and similar orders. All these petitioners retired from service
between 31.1.1984 and 31.10.1995. They were working in the Vypeen
Ferry Service under the Cochin Corporation. While in service, they were
being paid D.A. on salary just like all other employees in the Cochin
Corporation which was same as in the case of other Government employees.
They are also being paid D.R. on pension at the same rate as being paid to
all other retired employees of Cochin Corporation. The petitioners contend
that they are not being paid D.R. payable as per Exts.P6 and P7 orders
WPC 24790, 30787
& 35094/07 2
which resulted in them submitting Ext.P8 representation and later, a lawyer
notice, Ext.P9. The petitioners have been served with a communication,
Ext.P10 by the Accounts Officer on 6.8.2007 proposing various recoveries
from their pension amounts. Ext.P10 was issued on the basis of the
communication dated 18.8.2006 issued by the Director of Urban affairs,
whereby the same relief has been denied by the Government to three other
retired employees. The effect of Ext.P11 is that the ex-employees of
Vypeen Ferry Service would be governed by the conditions for grant of
pension and rates of D.A. as are applicable in the Kerala State Road
Transport Corporation and not that was being paid to Government
employees.
4. In Writ Petition No.30787/2007 it is averred that on retirement,
the husbands of the petitioners were being sanctioned and given pension
and D.A. just like all other Government employees. Exts.P1 to P4 are the
respective orders. Upon death of their husbands, the petitioners were
granted family pension as per the orders issued by the second respondent.
Orders granting pension in respect of petitioners 9 and 10 have been
produced as Exts.P5 and P6 respectively. The other petitioners are also
getting family pension in a similar manner. All the petitioners were getting
WPC 24790, 30787
& 35094/07 3
monthly family pension at Rs.1,275/- and D.R. admissible to retired
employees of Cochin Corporation which is at the same rate as made
applicable to all other Government employees. Payment was made at the
rate of Rs.2620/- till May, 2007 and thereafter it was drastically reduced
without any intimation to the petitioners. But they were given a
communication dated 21.6.2007 of the Accounts Officer of Cochin
Corporation wherein recovery has been ordered from July, 2007 onwards.
According to the petitioners, they are also entitled for increased rate of D.R.
as reflected in Exts.P11 and P12. Recoveries have been effected on the
basis of Ext.P9 also, wherein the stand taken is that the ex-employees of
Vypeen Ferry Service are not entitled to D.A. at the rate applicable to
Government employees and they are entitled for payment of pension and
other benefits as applicable to employees of K.S.R.T.C. and the retired
employees of K.S.R.T.C. have not been given revised pension from 1997
and their D.A. rate has also not been revised and thus the recovery has been
ordered.
5. In Writ Petition No.35094/2007 the husbands of the petitioners
were being sanctioned and paid pension and D.A. Just like all other
Government employees. Upon death of their husbands, the petitioners were
WPC 24790, 30787
& 35094/07 4
granted family pension as per orders of the second respondent (Exts.P1 and
P2). Ext.P3 is the letter dated 19.10.2007 issued by the Accounts Officer
intimating that the pension amount of the petitioners is revised and reduced
and the excess amount will be recovered from the monthly pension from
November 2007 onwards. The petitioners understood that the recoveries are
being effected since the husbands of the petitioners were employees of
Vypeen Ferry Service under the Cochin Corporation and the stand taken in
respect of those employees is that they are being granted pensionary
benefits at the rate applicable to the employees of K.S.R.T.C. and after 1997
there had not been any revision of pension in respect of the employees of
K.S.R.T.C. Hence, the petitioners are not entitled to the pension at the rate
applicable to Government employees.
6. The respondents have filed counter affidavits opposing the
averments in the various writ petitions. In the statement filed by the third
respondent, it is pointed out that in the judgment in Writ Petition
NO.168/2006 this court directed that the pensionary benefits to the ex-
employees of Vypin Ferry Service should be given in parity with the
stipulation and conditions applicable to that of the retired employees of
K.S.R.T.C. In compliance with the directions contained in the said
WPC 24790, 30787
& 35094/07 5
judgment the Department of Local Self Government passed an order dated
10.7.2006 (G.O.(Rt) NO.1631/2006/LSGD) and thereafter, the second
respondent vide communication dated 18.8.2006 directed the third
respondent that the retired employees of Vypeen Ferry Service are not
entitled to get pension and D.A. at the rate given to the Government
employees. It is further directed that the pension and D.A. in respect of
Vypeen Ferry Service employees should be paid in accordance with the
norms and conditions which are applicable to the employees of K.S.R.T.C.
and there was a direction to recover the surplus amount already paid.
7. In the counter affidavit filed on behalf of the second respondent, it
is pointed out that as per the judgment in Writ Petition No.168/2006 this
court directed the Government that the pensionary benefits to the ex-
employees of Vypin Ferry Service should be given in parity with the
stipulation and conditions applicable to that of the retired employees of
K.S.R.T.C. In compliance with the said directions, the Government issued
Ext.R2(a) order dated 10.7.2006. Further instructions were given to the
Secretary of Cochin Corporation by letter dated 18.8.2006 to the effect that
retired employees of Vypin Ferry Service are not entitled to get pensionary
benefits at the rate applicable and given to the Government employees.
WPC 24790, 30787
& 35094/07 6
8. A reading of Ext.R2(a) produced by the second respondent shows
the following: The Government have considered the representations which
were directed to be considered by this court in the judgment in Writ Petition
No.168/2006. As per reference (1), order therein dated 23.12.1966, the
employees of Vypeen Ferry Service were considered as a separate wing. In
the orders appointing them, it had been made clear that the service
conditions of the K.S.R.T.C. are applicable to them including pay and
allowances. As per reference (2) which is an order issued in the year 1968,
the rates of wages as applicable to K.S.R.T.C. Employees with effect from
1.4.1968 were made applicable to the employees of Vypeen Ferry Service.
As per reference third cited, order dated 13.7.1992, a general order was
issued making it clear that the benefits of grade and other service benefits
which are enjoyed by the employees of K.S.R.T.C. as per the agreement
dated 2.2.1987, will be applicable to the employees of Vypeen Ferry Service
also. Accordingly, Ext.R2(a) maintains that the employees who have retired
from Vypeen Ferry Service are entitled to the pensionary benefits and D.A.
as applicable to K.S.R.T.C. Employees.
9. The petitioners have filed a reply affidavit producing a copy of the
judgment in Writ Petition No.168/2006. It is pointed out that no binding
WPC 24790, 30787
& 35094/07 7
directions have been issued therein and this court only directed the
concerned respondent to dispose of the representation. It is pointed out that
the Secretary of the Cochin Corporation had forwarded his recommendation
to the Director of Municipal Administration for issuing an order granting
the request of the three petitioners therein to give them the pension benefits
including D.A. just like other employees of Cochin Corporation. (Ext.P9 in
Writ Petition NO.35094/07). It is further pointed out that Ext.R2(a) is not
only a general order but in respect of the three retired employees mentioned
therein. The petitioners have also produced the agreements executed
between the management of K.S.R.T.C. and their employees as per
Exts.P10(a) and P10(b) produced in Writ Petition No.35094/2007.
10. Learned counsel for the petitioners submitted that even going by
the agreements between the management and the employees of the
K.S.R.T.C., the petitioners are eligible to be paid DA at the rate applicable
to Government employees. In Ext.P10(a) produced in Writ Petition
No.35094/2007, the said clause is clause III. It states that ” the Corporation
employees are entitled to D.A. at the revised rates as applicable to
Government employees. The same is clause III in Ext.P10(b) also. It is
submitted that the reason for reduction is therefore clearly wrong as there
WPC 24790, 30787
& 35094/07 8
cannot be a difference in the rates. Merely because the employees of
K.S.R.T.C. are not given any pension revision from 1997 onwards, it cannot
adversely affect the petitioners. As regards KSRTC, their employees are
not getting the benefit because of various factors like adverse financial
conditions, etc. But that is not the case herein. Petitioners therefore are
entitled for such benefits as are made applicable to KSRTC employees from
time to time. Factors like any delay in implementation by the KSRTC, or
not implementation by them cannot deprive the petitioners of their
legitimate rights. It is therefore stated that the stand taken in the
communication issued by the Accounts Officer (Ext.P10 in W.P.(C)
No.24790/07, Ext.P7 in W.P.(C) No.30787/07 and Ext.P3 in W.P.(C)
No.35094/07) is not correct.
11. It is true that in Ext.R2(a) the Government has specified that the
former employees of Vypeen Ferry Service are entitled for the pension and
D.A. at the rate applicable to the employees of K.S.R.T.C. including
revision of pay. But merely because K.S.R.T.C. is not releasing the same or
is not revising the same, the petitioners cannot be denied the benefits. Even
accepting the order Ext.R2(a) itself, they are entitled for the benefits as
applicable to the employees of K.S.R.T.C. which are revised from time to
WPC 24790, 30787
& 35094/07 9
time.
12. In that view of the matter, the recovery ordered against the
petitioners cannot be justified and it is declared as illegal. The orders
impugned herein, viz. Ext.P10 in Writ Petition No.24790/07, Ext.P7 in Writ
Petition No.30787/07 and Ext.P3 in Writ Petition No.35094/07 are quashed.
The petitioners cannot be denied the benefit merely for the reason that after
1997 there has not been any implementation of revision of pay and
pensionary benefits, D.A. etc. for the KSRTC employees. Fresh
proceedings will be issued in accordance with the findings rendered above,
by making applicable the corresponding revision of pay, rates of DA and
other monetary benefits as applicable to KSRTC employees, to the
petitioners herein also. The same shall be done within a period of two
months from the date of receipt of a copy of this judgment.
The writ petitions are disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/
