Anne Thomas v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946 ## WP(C) NO. 39511 OF 2017 ## PETITIONER: MRS. ANNE THOMAS SKYLINE CITADEL, APT 5D, K.K.ROAD,KANJIKUZHI, KOTTAYAM-686 004. (FORMERLY GRADE II PROFESSOR OF ENGLISH, CMS COLLEGE, KOTTAYAM). BY ADVS. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) SRI.V.ANANDA SHENOY SRI.K.P.CHANDRASEKHAR SRI.LUIZ GODWIN D COUTH ## RESPONDENTS: - 1 STATE OF KERALA REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. - 2 DIRECTOR OF COLLEGIATE EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM - 695 001. - 3 THE MAHATMA GANDHI UNIVERSITY KOTTAYAM, REPRESENTED BY THE REGISTRAR, PIN - 686 002. - 4 THE MANAGER C.M.S. COLLEGE, KOTTAYAM - 686 001. BY ADV SRI. ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI. SURIN GEORGE IPE, SC, SRI. V.K. SUNIL, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.39511 OF 2017 2 ## P.V.KUNHIKRISHNAN, J. -----------------------------------------------W.P.(C) No.39511 of 2017 -------------------------------------------------Dated this the 05[th ] day of June, 2024 ## JUDGMENT The above writ petition is filed with the following prayers: _“i) issue a Writ of Certiorari or any other appropriate Writ, Order or Direction quashing Exhibits P8 order,_ _ii) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction declaring that the Petitioner is entitled for pensionary benefits for the service rendered by her for the period from 22.06.1964 to 31.08.1988 with all consequential benefits including arrears of pension._ _iii) to grant such other relief's which this Hon'ble Court may deem fit and proper in the circumstances of the case.” SIC_ WP(C) NO.39511 OF 2017 3 2. The Petitioner entered the service of the 4[th] Respondent, CMS College Kottayam on 22.06.1964. While so the Petitioner had availed extra ordinary leave for five years from 01.09.1983 to 31.08.1988. After expiry of the above leave the Petitioner had applied for extension of leave and the same was not considered. Thereafter Exhibit P1 show cause notice dated 28.08.1989 was issued by the 4th Respondent directing her to show cause as to why her service in the College shall not be terminated w.e.f. 01.09.1988. It is submitted that, the Management has not considered the request of the petitioner for reinstatement and hence, the petitioner was forced to apply for voluntary retirement. According to the 4 WP(C) NO.39511 OF 2017 petitioner, she submitted the voluntary retirement request believing that instead of 20 years of service 19 years 2 months and 9 days would be enough for pensionary benefits. The Petitioner had submitted Exhibit P2 representation to the Principal of the CMS College, Kottayam with a copy to the 4th Respondent for allowing her to opt for voluntary retirement beginning from 01.09.1988, is the submission. The 4[th] respondent had issued Exhibit P3 communication dated 09.10.1990 terminating her service w.e.f. 01.09.1988. Thereafter the Petitioner who is not having any pensionary benefits applied for sanction of compassionate allowance considering her service rendered for the period of 19 years 2 months and 9 5 WP(C) NO.39511 OF 2017 days. But, the 1[st] respondent, Government by Exhibit P4 letter dated 26.04.2003 informed that the Petitioner is not eligible for compassionate allowance as she was terminated from service. Aggrieved by the rejection of the request of the Petitioner, she had filed Writ Petition (C) No. 34903 of 2015 before this Court, is the submission. The same was disposed of by Exhibit P7 Judgment with a direction to the Government to consider the matter and pass appropriate orders. By Ext.P8, the 1[st] respondent rejected the request for compassionate allowance. The petitioner submitted that, Ext.P9 is a judgment of the Apex Court that a resignation of an employee can be treated as voluntary retirement and eligible for pensionary benefits. The 6 WP(C) NO.39511 OF 2017 petitioner also relying Ext.P10 judgment, which is an order of the Central Administrative Tribunal, Lucknow Bench following the judgment of the Hon’ble Supreme Court. Therefore, this writ petition is filed challenging Ext.P8 order. 3. Heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the University. 4. The counsel for the petitioner relied upon the judgment of this Court in _Thankappan Nair v._ _State of Kerala [2001(3) KLT 855]_ , in which it is stated that, the Government servants dismissed for serious misconduct also eligible for compassionate allowance. The Division Bench, in the above judgment 7 WP(C) NO.39511 OF 2017 also stated that Rule 5(a) Part III KSR is not meant for virtuous persons, but on the contrary, it is meant to ameliorate the conditions of sinners dismissed from service. It is of course observed by the Court that mere fact that the removal was due to a serious misconduct, would not conclude the issue. Many other circumstances is relevant in deciding the claim for compassionate allowance is the findings of the Division Bench. The Division Bench also observed that, if an employee has amassed wealth by receiving bribe, his claim for compassionate allowance can be justifiably rejected on that ground alone. It is also observed that the delay is fatal to the grant of reliefs for the reason that the long delay might have created WP(C) NO.39511 OF 2017 8 rights in favour of others and a belated intervention may result in disturbing them. 5. A perusal of Ext.P8 would show that, the Government considered all relevant aspects before rejecting the request of the petitioner. The Government also considered the financial position, present income certificate and service verification report of the petitioner. The Government observed that the petitioner had been requested to produce the income certificate twice. But, the communication had been returned undelivered and the postal department noted that the addressee is out of India. As a last attempt to ascertain the financial status, the Government took up the matter with the District 9 WP(C) NO.39511 OF 2017 Collector, Kottayam and it has been reported that the petitioner owned a flat and a fixed deposit of Rs.25 lakhs in Federal Bank in her name. It is also found that her daughter settled in USA where the petitioner used to visit regularly. In such circumstances, Government decided that the petitioner is not eligible for compassionate allowance as laid down in Rule 5 of Part III KSR. This Court is not in a position to set aside the above order passed by the Government. The compassionate allowance is not a right and the discretion is given to the Government to sanction the same. I see no reason to interfere with Ext.P8 order. Therefore, this writ petition is dismissed. nvj **Sd/-** P.V.KUNHIKRISHNAN JUDGE WP(C) NO.39511 OF 2017 10 ## APPENDIX OF WP(C) 39511/2017 - PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE LETTER DATED 28.08.1989 WAS ISSUED BY THE 4TH RESPONDENT. - EXHIBIT P2 TRUE COPY OF A REPRESENTATION TO THE PRINCIPAL OF THE CMS COLLEGE, KOTTAYAM WITH A COPY TO THE 4TH RESPONDENT. - EXHIBIT P3 TRUE COPY OF THE ABOVE COMMUNICATION DATED 09.10.1990 TO THE PETITIONER BY THE 4TH RESPONDENT. - EXHIBIT P4 TRUE COPY OF THE LETTER DATED 26.04.2003, 1ST RESPONDENT, GOVERNMENT BY INFORMED THE PETITIONER. - EXHIBIT P5 TRUE COPY OF THE LETTER DATED 07.10.2012. - EXHIBIT P6 TRUE COPY OF THE LETTER DATED 30.06.2014. - EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN W.P[C]NO.34903 OF 2015 DATED 27.06.2016 IN THE HON'BLE HIGH COURT OF KERALA. - EXHIBIT P8 TRUE COPY OF ORDER GO(RT.)NO.1495/2017/HEDN, DATED 08.08.2017. - EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 12.10.2015 CIVL APPEAL NO.10251 OF 2014 IN THE HON'BLE APEX COURT. - EXHIBIT P10 TRUE COPY OF THE ORDER DATED 14.09.1998 BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, LUCKNOW BENCH IN OA NO.353 WP(C) NO.39511 OF 2017 **==> picture [13 x 9] intentionally omitted <==** OF 1998. EXHIBIT P11 TRUE COPY OF CERTIFICATE DATED 08.09.1983. RESPONDENTS EXHIBITS:NIL //TRUE COPY// PA TO JUDGE