Annamma Kurien v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022/4TH PHALGUNA, 1943** ## **WP(C) NO.33002 OF 2018** ## **PETITIONER:** **(ANNAMMA KURIEN)* AGED 78 YEARS, W/O L.VARGHESE, HIGH SCHOOL ASSISTANT (SOCIAL STUDIES) (RETD.), MOUNT TABORE HIGH SCHOOL, PATHANAPURAM AND RESIDING AT PANAYIL PUTHENVEEDU, KUREEPPALLY, NEDUMPANA P.O., KOLLAM- 691 576** ***(L.VARGHESE) S/O P.C.LUKE AND AGED 81 YEARS, RESIDING AT PANAYIL PUTHEN VEEDU, KUREEPPALLY, NEDUMPANA P.O., KOLLAM-691576.** ***(L.VARGHESE IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED WRIT PETITIONER, AS PER ORDER DATED 15/2/2022 IN I.A. No.1/2021 IN WPC 33002/2018.)** ## **BY ADV N.UNNIKRISHNAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.** **2 THE SECRETARY TO GOVERNMENT DEPARTMENT OF FINANCE (PENSION) (B), DEPARTMENT OF GOVERNMENT SECRETARIAT,** W.P.(C) No.33002/18 ## **-:2:-** ## **THIRUVANANTHAPURAM-695001.** - **3 THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM-695039.** - **4 THE DIRECTOR OF PUBLIC INSTRUCTIONS VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.** - **5 THE DEPUTY DIRECTOR OF EDUCATION KOLLAM-691001.** - **6 THE DISTRICT EDUCATIONAL OFFICER PUNALUR-691305.** **BY SMT.NISHA BOSE, SR. GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.02.2022, THE COURT ON 23.02.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.33002/18 ## **-:3:-** ## **BECHU KURIAN THOMAS, J. -------------------------------W.P.(C) No.33002 of 2018** **--------------------------------** Dated this the 23[rd] day of February, 2022 ## **JUDGMENT** The service rules in Kerala provide that when pension is not claimed within three years of retirement, the same will lapse for the period until it is claimed. On the basis of the aforesaid principle, the writ petitioner's claim for pension for the period 1995 to 2005 was declined, challenging which this writ petition has been preferred. 2. The writ petitioner expired on 06.05.2021 and her husband has been impleaded as the legal representative as per order dated 15.02.2022 in I.A. No.1 of 2021. The reference in this judgment as 'petitioner' indicates the original writ petitioner. 3. Petitioner retired as a High School Assistant on 31.05.1995. During her service, she had availed leave without allowance from 19.08.1981 till 30.03.1995. She rejoined duty on 31.03.1995 and retired on 31.05.1995. During the period of her leave without allowance, as mentioned above, she claims to have been with her husband in South Africa and after retirement also she continued to be W.P.(C) No.33002/18 ## **-:4:-** in South Africa. According to the petitioner, though her pension was sanctioned in 1997, she could not draw the pension till 2005. Subsequently, by order dated 09.01.2006 of the Accountant General, pension to the petitioner was revalidated for payment with effect from 01.11.2005. Her pension was thus denied for the period 1995 to 30.10.2005, pointing out that arrears of pension undrawn for more than three years cannot be authorised by the Accountant General. Petitioner was directed to take up the issue of arrears of pension for consideration before the Government. Thereafter, petitioner approached the Government by Ext.P4 letter dated 26.08.2010 stating that she could not avail her pension immediately after retirement, due to personal inconvenience and that though her pension has been revalidated and sanctioned, arrears of pension from 01.06.1995 to 31.10.2005 had not been paid. 4. In a subsequent letter dated 11.01.2011, produced as Ext.P5, petitioner claimed that she had suffered a cerebral stroke in 1995 which partially incapacitated her physically and had also undergone a bypass surgery due to which she was unable to claim pension in time and thus sought for authorising payment of arrears of her pension. The representation of the petitioner was rejected by Ext.P6 communication dated 14.03.2011. 5. Petitioner approached this Court through W.P.(C) W.P.(C) No.33002/18 ## **-:5:-** No.15009 of 2011 challenging the rejection of her claim for arrears of pension. By judgment dated 27.11.2017, this Court directed the Government to reconsider petitioner's claim for arrears of pension after giving an opportunity to the petitioner to produce further records, that had not been produced earlier before the Government. Thereafter the first respondent reconsidered the case of the petitioner and directed her to obtain a report from the District Medical Board for the period 01.06.1995 to 31.10.2005. By Ext.P16, a report was submitted by the District Medical Board, Kollam. Based on the aforesaid medical report, the case of the petitioner was again considered and by the impugned order dated 26.07.2018, the first respondent rejected the claim of the petitioner for arrears of pension for the period 01.06.1995 to 31.10.2005. Aggrieved by the said rejection, petitioner has approached this Court under Article 226 of the Constitution of India. 6. A counter affidavit has been filed on behalf of the second respondent stating that the Government rejected the claim of the petitioner for arrears of pension since there was a failure to produce any additional treatment records for the period 01.06.1995 to 31.10.2005 and also that every employee is bound to submit a formal application for pension at least once in a year in advance of the date of anticipated retirement. It was also stated that, if under special W.P.(C) No.33002/18 ## **-:6:-** circumstances a pension is granted after a long period of the employee's retirement, no retrospective effect will be given to the beneficiary without special orders of the Government and that in the absence of special orders, such pension will take effect only from the date of sanction. Respondents averred that no administrative delay occurred in the grant of pension to the petitioner and on the other hand the delay occurred solely due to the fault of the beneficiary herself and that as per Rule 133 of Part III of KSR, the pension will lapse, if not drawn for three years and hence there is no merit in the writ petition. 7. A reply affidavit has also been filed by the petitioner reiterating the contentions in the writ petition and alleging that all documents are produced by the petitioner to prove her case. 8. I have considered the arguments raised by Sri.N.Unnikrishnan, learned counsel for the petitioner as well as Smt.Nisha Bose, the learned Senior Government Pleader. 9. Though pension is not a bounty, the right is governed by statute. Kerala Service Rules Part III deals with pension. In the context of the present case, it would be relevant to refer to Rule 110 and Rule 129 of KSR Part III. As per Rule 110, the formal application for pension must be submitted one year in advance to the anticipated date of retirement. As per Rule 129, a pensioner can draw his pension W.P.(C) No.33002/18 ## **-:7:-** through a duly authorized agent even. However, Rule 135 stipulates that if a pension remains undrawn for more than three years, it ceases to be payable. For a better comprehension, Rule 135 is extracted below: _**135. Lapses and forfeiture** .- If a pension remains undrawn for more than three years the pension ceases to be payable._ 10. Provision is made for disbursing pension even in cases where the pensioner appears subsequently. Rule 136 deals with such situations and is as follows: _**136.** If the pensioner afterwards appears, the Disbursing Officer may reclaim the Pension Payment Order and renew his payments. But the arrears cannot be paid (a) without the orders of the Audit Officer, and (b) if the pension in arrears is to be paid for the first time or if the amount of arrears exceed Rs.75,000/-without the previous sanction of the Government to be obtained through the Audit Officer._ 11. A reading of the above rule reveals that if the pensioner appears for the first time after three years and if the amount of arrears exceeds Rs.75,000/-, previous sanction of the Government is required to be obtained. In the instant cast, the Government has declined to grant sanction to the petitioner to draw the arrears of pension from 1995 till 2005. 12. While considering the correctness of the decision of the Government declining the grant of arrears of pension, it is necessary to bear in mind the judgment of this court in W.P.(C) No.15009 of ## W.P.(C) No.33002/18 ## **-:8:-** 2011, produced as Ext.P13. In the said judgment, it was observed that, the Government must consider the case of the petitioner if records that had not been produced earlier are submitted by the petitioner. The judgment also contained the rider that if the petitioner fails to produce such records, the earlier order Ext.P7 (Ext.P6 in the present case) will remain intact. This Court notices the fact that the petitioner had not been able to produce any additional records to support the reason projected, other than those that were already available and produced before the Government. The report of the District Medical Board, Kottayam is of the year 2018 and it cannot be treated as a new record relating to the period 1995-2005. A document to support the claim of the petitioner must be one issued contemporaneous to the period i.e., 1995 to 2005. Even otherwise, the said report cannot be regarded as a document of substance to justify the claim of inconvenience raised by the petitioner for the relevant period. Thus, the reason stated by the Government is not perverse or even erroneous, warranting any interference under Article 226 of the Constitution of India. ## 13. In the decision in **T.K.Barathy v. Principal Secretary to Government Finance (Pension) Dept. and Others** (2007 (2) ILR Ker. 161) it was observed that pension is not a bounty from the State and though the right is statutorily recognised, the pensioner cannot W.P.(C) No.33002/18 ## **-:9:-** have the luxury of choosing his own time to claim the arrears of pension especially when the rules provide for an adequate mechanism to claim pension through a power of attorney holder/authorised agent, in case the pensioner is not in station. Similarly in the decision reported in **Baby K.K. v. Addl. Chief Secretary (Finance), Tvm and Others** (2022 (1) KHC 99), it was held that discretion is vested with the State Government to consider the case of a genuine and qualified pensioner for payment of arrears of pension if it is to be paid for the period beyond three years and if the discretion is exercised in a mechanical manner and without proper application of mind, the order cannot be sustained. 14. On an appreciation of the circumstances arising in the case, this Court finds that the Government had approached the issue properly and in the correct perspective. There is no reason to infer any mechanical approach adopted by the Government. In such circumstances, Ext.P18 order of the Government does not warrant any interference. The writ petition is hence dismissed. Sd/- ## **BECHU KURIAN THOMAS JUDGE** vps W.P.(C) No.33002/18 ## **-:10:-** ## **APPENDIX OF WP(C) 33002/2018** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE DATED 23.12.2010 ISSUED FROM DR.TOERIEN.** **EXHIBIT P2 A TRUE COPY OF LETTER NO.PR4/PenA/259/Z/97-98/2008 DATED 13.8.1997 ADDRESS TO THE FIFTH RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF LETTER NO.PLY/Inw 681/LR/178 DATED 9.1.2006.** - **EXHIBIT P4 A TRUE COPY OF LETTER DATED 26.8.2010 ISSUED TO THE SECOND RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF LETTER DATED 11.1.2011 ISSUED TO THE SECOND RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF LETTER NO.72068/Pen.A2/10/Fin. DATED 14.3.2011 REPLY ISSUED TO THE PETITIONER.** - **EXHIBIT P7 A TRUE COPY OF THE DISCHARGE SUMMERY DATED 19.6.2010 ISSUED BY THE DEPARTMENT OF CARDIOLOGY, KIMS, THIRUVANANTHAPURAM.** - **EXHIBIT P8 A TRUE COPY OF THE DISCHARGE SUMMARY DATED 30.7.2010 ISSUED BY THE DEPARTMENT OF INTERNAL MEDICINE, KIMS.** **EXHIBIT P9 A TRUE COPY OF CERTIFICATE DATED 9.7.2011 ISSUED BY DR.ALEXANDER K. GEORGE, CONSULTANT PHYSICIAN, HOLLY CROSS HOSPITAL, KOTTIYAM.** - **EXHIBIT P10 A TRUE COPY OF DISCHARGE SUMMARY DATED 11.1.2015 ISSUED BY DR.JOSSY CHACKO.** - **EXHIBIT P11 A TRUE COPY OF DISCHARGE SUMMARY DATED 19.5.2016 ISSUED BY DR. JOSSY CHACKO.** - **EXHIBIT P12 A TRUE COPY OF THE DISCHARGE SUMMARY DATED 3.3.2016 ISSUED BY TEH SP FORT HOSPITAL, THIRUVANANTHAPURAM.** - **EXHIBIT P13 A TRUE COPY OF THE JUDGMENT DATED 27.11.2017 IN WPC NO.15009/2011.** W.P.(C) No.33002/18 ## **-:11:-** **EXHIBIT P14 A TRUE COPY OF LETTER DATED 27.1.2018 SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT.** **EXHIBIT P15 A TRUE COPY OF LETTER NO.735979/PenB3/2018-FIN DATED 10.5.2018 ISSUED BY THE DEPUTY SECRETARY FOR PRINCIPAL SECRETARY (FINANCE).** **EXHIBIT P16 A TRUE COPY OF MEDICAL CERTIFDICATE DATED 21.6.2018 ISSUED BY THE DISTRICT MEDICAL BOARD, KOLLAM.** **EXHIBIT P17 A TRUE COPY OF CERTIFICATE ISSUED BY DR.H.C.TOERIEN PR 1484990, POSBUS 1337, WHITE RIVER 1240, SOUTH AFRICA.** **EXHIBIT P18** **A TRUE COPY OF ORDER G.O.(RT) NO.6353/2018/FIN. DATED 26.7.2018.**