C. Pavithran v. Union of India and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 WP(C) NO. 632 OF 2023`** ``` PETITIONER: ``` ``` C.PAVITHRAN KAPPACHERIHOUSE,P.O.KUTTIKKOL,TALIPARAMBA,KANNUR - DISTRICT,PIN670562 BYADVS. LINDONSC.DAVIS E.U.DHANYA SWATHYA.P. ``` ``` RESPONDENTS: ``` ``` 1UNIONOFINDIA REPRESENTEDBYITSSECRETARY,MINISTRYOFHOME - AFFAIRS,NEWDELHI,PIN110001 2INSPECTORGENERALOFPOLICE WESTERNSECTOR,C.R.P.F,C.G.O.COMPLEX,CBDBELAPUR, - NAVIMUMBAI,PIN400614 3DEPUTYINSPECTORGENERALOFPOLICE CENTRALRESERVEPOLICEFORCE,GROUPCENTRE,NAGPUR, - MAHARASHTRASTATE,PIN440019 4PAY&ACCOUNTSOFFICER CENTRALPENSIONACCOUNTINGOFFICE,TRIKOOT-2, - BHIKAJICAMAPALACE,NEWDELHI,PIN110066 ``` ``` SRI.MLSURESHKUMAR,CGC. THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON01.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C.) No.632 of 2023 2 ## **JUDGMENT** The petitioner states that he had served as a Sub Inspector in the Central Reserve Police Force, and he attained superannuation on 31.1.2016 on his attaining 57 years. According to the petitioner, Rule 43 of Central Reserve Police Force Rules, 1955 mandates the retirement of a member of the Force on the last day of the month in which such member attains the age of 57 years. He asserts that his date of birth is 19.1.1959, and he would complete the age of 57 years on 18.1.2016. However, by the application of law, he would have retired only on 31.1.2019. He refers to Ext.P1 pension order to substantiate the said contention. 2. The petitioner asserts that the issue with regard to the uniform retirement age of 60 years, irrespective of rank in the Central Armed Police Force, including CRPF, was decided by the Division Bench of the Delhi High Court in **Dev Sharma and Others. v. Indo Tibetan Border Police and** **Others**[1] . The Division Bench, after considering the entire facts and circumstances, had declared Rule 43 of the CRPF Rules, 1955, and other incidental Rules to the extent they provided that a member of the Central > 1 2019 SCC OnLine Del 6797 W.P.(C.) No.632 of 2023 3 and Allied Police Forces (CAPFs), including Indo-Tibetan Border Police, the Border Security Force and CRPF upto the rank of Commandant would retire at 57 years, to be discriminatory and violative of Article 14 of the Constitution of India. Their Lordship of the Division Bench had ordered that for the purpose of calculation of the retirement benefits, including pension and gratuity, a differential period (in the event of enhancement of the retired age) will be added to the period of service actually rendered by each of them. It was also held that on such calculation, they would be entitled to arrears of retirement benefits after adjusting the amount already paid. 3. The petitioner submits that, in light of the law laid down by the Division Bench, the petitioner is also entitled to receive an enhanced pension upon attaining the age of 60. In the said circumstances, the petitioner is stated to have preferred Ext.P3 representation before the 2nd respondent for enhancement of retirement age from 57 years to 60 years and also to grant the benefit of the same. 4. The petitioner states that his request was rejected by Ext.P4 order stating the reason that the petitioner had crossed the age of 60 years on 18.1.2019, i.e., before passing of the judgment on 31.1.2019. The petitioner asserts that persons similarly placed as the petitioner were granted W.P.(C.) No.632 of 2023 4 ## benefits as borne out from Exts. P5 and P5(a) orders. It is on these assertions that this writ petition is filed seeking the following reliefs: i) to issue a writ of mandamus or any other appropriate writ, order or direction to direct the respondents to refix and grant pension along with arrears and other retirement benefits to the petitioner, as if he has continued in service till 31.01.2019. ii) to declare that, the petitioner is eligible to get benefit of Ext.P2 order by notionally fixing the date of retirement of the petitioner as 31.01.2019. iii) to issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P4 as unjust and illegal. 5. The learned Standing Counsel for the respondents submits that the petitioner had retired from service only on 31.1.2016, and he would not be covered within the instructions issued by the DIG. According to the learned counsel, the petitioner had never forwarded any option certificate to rejoin duty after obtaining all pensionary benefits on completion of the age of 60 years. According to the respondents, since the date of birth of the petitioner is 19.1.1959, and he proceeded on superannuation on 31.1.2016, after completing 57 years of age and crossed the age of 60 years as on 31.1.2019, he is not eligible to get the benefits as per the instructions issued by the DGE. W.P.(C.) No.632 of 2023 5 6. I have considered the submissions advanced. The judgment rendered by the Division Bench of the Delhi High Court was on 31.1.2019. As per the above judgment, their Lordships held that Rule 43(a) insofar as it states that retirement of the member of the Force shall take effect from the afternoon of the last day of the month in which such member attains the age of 57 years is discriminatory. The Court had also directed that for the purpose of calculation of retiral benefits, including pension and gratuity, the differential period (in the event of enhancement of retirement age) will be added to the period of service actually rendered by each officer. The Court had directed that the notional date of retirement would be arrived at by adding the differential years to their actual date of retirement. On such calculation, they were held to be entitled to the arrears of retirement benefits after adjusting the amount already paid. 7. In pursuance of the directions issued by the Court, Exhibit P2 order has been issued clarifying that those who have retired but did not choose to approach any Court will be governed by the court order dated 04.02.2019 clarifying para 72 of original order dated 31.01.2019 in **Dev Sharma Case** (supra) and hence will be entitled to exercise options either for joining, after returning all pensionary benefits, if received, or will have an W.P.(C.) No.632 of 2023 6 option to have benefit of fitment of pension on completion of age of 60 years. The petitioner is not insisting on joining the service but is claiming the benefit of fitment of pension on completion of age of 60 years. 8. The contention of the petitioner is that though his date of birth is 19.1.1959, and though he had completed the age of 57 years on 18.1.2016, he was bound to retire only on 31.1.2016, and if that be the case, he would be entitled to continue in the service till the afternoon of the last day of the month, in which he attains the age of 60 years. In order to substantiate his contention, the petitioner refers to Rule 43 of the Central Reserve Police Force Rules, 1955. The above rule reads as under: Superannuation: (a) Retirement of a member of the Force shall take effect from the afternoon of the last day of the month in which such member attains the [age of 57 years]. In case, the date of birth of a member of the Force falls on the first day of a month, his retirement shall take effect from the afternoon of the last day of the month preceding the month in which the member of Force attains the [age of 57 years.] 9. In the case on hand, a very unique situation has happened. As per the operation of the Rules, the petitioner is to attain superannuation only on 31.1.2019, the date on which the judgment was rendered by the Delhi W.P.(C.) No.632 of 2023 7 High Court. He submits that if this aspect of the matter was considered, the respondents ought to have extended the benefits to the petitioner. It is his case that his request was rejected by Exhibit P4 order on the sole ground that he had crossed the age on 18.1.2019, i.e., much before 31.01.2019. There is some merit in the submission of the learned counsel that the High Court had clearly held that those persons who had retired prior to the date of passing of the judgment would not be entitled to the relief, and as he was due to retire only on 31.1.2019, the benefits of the judgment ought to have been extended to him as well. This aspect of the matter was not taken note of by the respondents while passing Exhibit P4. In Ext.P5 order, persons who are similarly situated were given the benefits of Ext.P2 order and their superannuation was notionally fixed. The petitioner has a case that he has been discriminated against as some of the individuals who find a place in Ext.P5 are persons who had attained the age of 60 years before 31.01.2019, but they were extended the benefits of the judgment. I am of the considered opinion that these are matters to be considered by the competent among respondents for which necessary directions can be issued. In view of the discussion above, this writ petition is disposed of by issuing the following directions: W.P.(C.) No.632 of 2023 8 a. Exhibit P4 will stand quashed. The competent among respondents is directed to reconsider the matter and pass fresh orders in accordance with the law. Before passing orders, an opportunity of being heard shall be afforded to the petitioner. b. Orders shall be passed expeditiously, in any event, within three months from the date of receipt of a copy of this judgment. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P.(C.) No.632 of 2023 9 ## **`APPENDIX OF WP(C) 632/2023`** ``` PETITIONER’SEXHIBITS: ``` ``` ExhibitP1ACOPYOFTHEPENSIONPAYMENTORDERISSUED TOTHEPETITIONER,DATED20.01.2016 ExhibitP2COPYOFTHEORDER NO.F.N.45020/1/2019/LEGAL-IDATED 19.08.2019ISSUEDBYTHE1STRESPONDENTBY ENHANCINGTHEAGEOFRETIREMENTAS60YEARS IRRESPECTIVEOFRANK ExhibitP3ACOPYOFTHEREPRESENTATIONDATED 28.08.2022 ExhibitP4ATRUECOPYOFTHELETTER NO.P.III-1/2022-SRC-WSDATED07.09.2022OF THE2NDRESPONDENT ExhibitP5ACOPYOFTHELETTERNO.P.III-01/2019-3 SIG-PEM(BENEFITOFENHANCEMENTINTHEAGE OFRETIREMENT)DATED17.03.2021FROMTHE OFFICEOFTHECOMMANDANT-3SIGNALBNCRPF ExhibitP5(a)ATYPEDCOPYOFEXT.P5 ExhibitP6ACOPYOFJUDGMENTINWPCNO.695/2019OF THEHIGHCOURTOFDELHIDATED04.02.2019. RESPONDENTS’EXHIBITS: ExhibitR1(a)Truecopyoftheletterno:15/2228/SP dated29/12/2015 ``` ``` ExhibitR1(b) TruecopyofthedairyNo.239031527060A1 ``` W.P.(C.) No.632 of 2023 10 ``` dated16-10-2017 ``` ``` ExhibitR1(c)TruecopyoftheletterNo. R.IX.01/2019-Adm-III(Rules)dated 18-09-2019 ExhibitR1(d)TruecopyoftheDIG(Adm)signalNo.R.IX 01/2019-DA-Rulesdated04-01-2021 ``` ``` ExhibitR1(e)Truecopyoftherepresentationdated 04-08-2021 ``` ``` ExhibitR1(f)TruecopyoftheletterNo P.III.43/2015-GCN-Pensiondated06-09-2021 ``` ``` ExhibitR1(g)Truecopyoftheapplicationdated 28-09-2021 ``` ``` ExhibitR1(h)Truecopyofthe3rdsignalBn,signalNo. p-III-3/2023-pension-3sigdated16-02-23 ``` ``` ExhibitR1(i)Truecopyofthecancellationorderissued byComdt-3rdsignalBattaliondated 05-03-2022 ``` ``` ExhibitR1(j)TruecopyofthePAOfile no.15/2154/SP/PA-39dated06-09-2022 ``` ``` ExhibitR1(k)Truecopyofthefileno.15/2191/SP/PA-39 dated06-09-2022 ``` ``` ExhibitR1(l) ``` ``` TruecopyoftheComdtGOsEntitlement,Dte SignalNo.P.III.02/2022.Adm-I.GosEntt dated24.01.2022 ```