Dr. K.V. Sankaran and others v. State of Kerala and Kerala State Council for Science, Technology & Environment and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938** ## **WP(C).No. 5338 of 2014 (N)** ## **---------------------------** **PETITIONER(S): -------------------------** **1. DR.K.V.SANKARAN, (FORMER DIRECTOR, KERALA FOREST RESEARCH INSTITUTE), 'MANASI', CONVENT ROAD, SHORNUR-679 121, PALAKKAD DISTRICT.** ## **2. DR.K.SWARUPANANDAN,** **(FORMER RESEARCH CO-ORDINATOR), KERALA FOREST RESEARCH INSTITUTE), X/21/1, ''VAIKUNTAM'', PERUMPADAPPU LANE, MANNUTY, THRISSUR-680 651.** ## **3. MR.A.RAMAKRISHNAN,** **(FORMER P.A.TO REGISTRAR, KERALA FOREST RESEARCH INSTITUTE), 'PRASADAM', KOTTAPPURAM ROAD, THRISSUR-680 004** ## **4. MR.S.SHAHUL HAMEED,** **(FORMER DRIVER IN ADMN KERALA FOREST RESEARCH INSTITUTE), ''ANEES'', NAVAKKODE, KODUVAYUR, PALAKKAD-678 501** ## **5. DR.C.N.KRISHNANKUTTY,** **(FORMER HEAD OF THE DEPARTMENT OF STATISTICS KERALA FOREST RESEARCH INSTITUTE), CHETTIANVEETTIL- 'KRISHNASREE', S.K.V.ROAD, ONAMTHURUTHU.P.O., KOTTAYAM-686 602** ## **6. MRS.K.M.SUSEELA,** **(FORMER SECTION OFFICER KERALA FOREST RESEARCH INSTITUTE) KOROTTIL HOUSE, HOUSE NO.10, SANTHOSH NAGAR, MANNUTHY BY PASS, MANNUTHY, THRISSUR-680 651** **7. DR.A.R.RAMACHANDRA MENON** **(FORMER SCIENTIST F KERALA FOREST RESEARCH INSTITUTE), ARYAPPALLI HOUSE, OLLUKARA.P.O., THRISSUR-680 655** ## **8. DR.T.SURENDRAN,** **(FORMER SCIENTIST F & HEAD DEPARTMENT OF TREE PHYSIOLOGY KERALA FOREST RESEARCH INSTITUTE), 'SREESYLAM', HOUSE NO.TC/46/326, BANK COLONY, THIRUVANATH TEMPLE ROAD, AYYANTHOLE, THRISSUR-680 003** **2/-** **-2-** ## **WP(C).NO.5338/2014** **9. DR.GEORGE MATHEW, (FORMER PROGRAMME COORDINATOR KERALA FOREST RESEARCH INSTITUTE), VALIYAVEETIL, CHERUKOLE, MAVELIKARA-690 104** **10. DR.C.MOHANAN, (FORMER HEAR & SCIENTIST F, FOREST PATHOLOGY KERALA FOREST RESEARCH INSTITUTE), 'SHISHIRAM', NEAR GANAPATHY KSHETHRAM KANNADIPARAMBA.P.O., KANNUR-670 604** **11. DR.C.RENUKA, (FORMER REGISTRAR AND SCIENTIST G, KERALA FOREST RESEARCH INSTITUTE), 5, PREM SAI APARTMENTS, VPN LANE, THRISSUR-680 001** ## **12. DR.E.P.INDIRA,** - **(FORMER SC F & PROGRAMME COORDINATOR KERALA FOREST RESEARCH INSTITUTE), SREE PADAM, SREELAKSHMI NAGAR, MANNUTHY.P.O., THRISSUR-680 651** ## **13. DR.K.YESODHARAN,** - **(FORMER SCIENTIST C KERALA FOREST RESEARCH INSTITUTE), LAKSHMI KRIPA, SANTHINAGAR, KANNARA.P.O., THRISSUR-680 652** ## **14. DR.E.J.MARIA FLORANCE,** - **(FORMER PROGRAMME CO-ORDINATOR FOREST HEALTH DIVISION KERALA FOREST RESEARCH INSTITUTE), KOLLANNOOR HOUSE, 6TH STONE, MANNUTHY.P.O., THRISSUR-680 651** ## **15. DR.P.VIJAYAKUMARAM NAIR,** - **(FORMER HEAD GIS DIVISION KERALA FOREST RESEARCH INSTITUTE) 'ANJALI, PTN/114, PERUMPADAPPU, MANNUTHY.P.O., THRISSUR-680 651** **16. DR.K.K.UNNI (FORMER SCIENTIST C KERALA FOREST RESEARCH INSTITUTE), KURULY HOUSE, PONNUKKARA.P.O., THRISSUR-680 306** **17. DR.T.S.NAYAR, (FORMER HEAD, DIVISION OF CONSERVATIN BIOLOGY, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN & RESEARCH INSTITUTE), ''THEMATH'', K.P.V/339(1),PUTICHY ROAD, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695 043.** ## **18. DR. THOMAS P.THOMAS,** **(FORMER SCIENTIST F KERALA FOREST RESEARCH INSTITUTE), SAMUDAYATHIL HOUSE, EDAPPALAM, PATTIKKAD-680 652, THRISSUR.** **19. DR. K.VISHNU BHAT, (FORMER SCIENTIST F KERALA FOREST RESEARCH INSTITUTE), DOOR NO.3-87(2), 'DEEPTHI', NEAR VISHNUMURTHYTEMPLE, ALIKE VILLAGE, P.O. S.S.VIHAR, DAKSHINA KANNADA DIST, KARNATAKA-574 235** ## **BY ADV. SRI.KALEESWARAM RAJ** **3/-** **-3-** ## **WP(C).NO.5338/2014** ## **RESPONDENT(S):** **------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF SCIENCE & TECHNOLOGY, (EX-OFFICIO PRINCIPAL SECRETARY), SECRETARIAT, THIRUVANANTHAPURAM-695 001** **2. KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY & ENVIRONMENT, REPRESENTED BY THE EXECUTIVE VICE PRESIDENT, KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY & ENVIRONMENT, SASTHRA BHAVAN, PATTOM.P.O., THIRUVANANTHAPURAM-695 004** **3. THE MEMBER SECRETARY, KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY & ENVIRONMENT, SASTHRA BHAVAN, PATTOM.P.O., THIRUVANANTHAPURM-695 004.** **R1 BY SR GOVERNMENT PLEADER SMT. RAJI T. BHASKER R2 & R3 BY ADV. SRI.GEORGE ZACHARIAH,SC,KSCSTE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.5338/2014** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE G.O(MS) NO.1/11/S& TD DATED 1/3/2011** - **P2 COPY OF THE QUESTION TOGETHER WITH REPLY DATED 23/7/2012** - **P3 COPY OF THE G.O(MS) NO.1/2014/S & TD DATED 01/2/2014** - **P4 COPY OF THE ORDER DATED 20/9/2011** - **P5 COPY OF THE VARIATION IN THE GRATUITY AMOUNT WITH RESPECT TO A GROUP OF 16 RETIRED EMPLOYEES** - **P6 COPY OF THE G.O(MS) NO.133/2011/H&FWD DATED 26/2/2011** - **P7 COPY OF THE G.O.(MS) NO.411/2013/H&FWD DATED 9/10/2013** - **P8 COPY OF THE G.O.(MS) NO.29/2000 DATED 8/9/2000** - **P9 COPY OF THE JUDGMENT REPORTED IN VUNGKHONEM V. STATE OF MANIPUR AND OTHERS 2008 (1) GLT 14.** - **P10 COPY OF THE G.O(MS) NO.183/2014/LSGD DATED 24/10/2014.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## ANU SIVARAMAN, J. ---------------------------------------- W.P.(C) No.5338 of 2014 ----------------------------------------Dated this the 25th day of November, 2016 ## JUDGMENT This writ petition is filed with the following ## prayers:- (i) To issue a writ of certiorari quashing Ext.P3 to the extent to which it excludes the 49 employees who retired between 01.03.2011 and 31.03.2013 from the Council and all the organizations under it; (ii) To declare that the benefit arising out of Ext.P3 are to be granted to all the officers/employees of Kerala State Council for Science, Technology and Environment and its R & D Institutions who retired on or after 01.03.2011, which is the date of Ext.P1; (iii) To issue a writ of mandamus directing the respondents to implement Ext.P1 from the date of Ext.P1 that is with effect from 01.03.2011 and to ensure that there is no discrimination between the persons retiring after the date of Ext.P1 and those who retire after the date shown Ext.P3, i.e., 31.03.2013; (iv) To issue a writ of mandamus directing the respondents to pay the pension to the petitioners who retired on different dates between 01.03.2011 and 31.03.2013 at the rate provided in Ext.P3; W.P.(C) No.5338 of 2014 -2- (v) To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit on the facts and circumstances of the case. 2. The contention of the petitioners is that they are persons, who retired from service under the second respondent, on various dates after 01.03.2011. It is stated that by Ext.P1, a policy decision was taken by the Government to make a pension scheme applicable to employees, under the second respondent. Steps were taken to implement the said scheme. Thereafter, Ext.P3, guidelines were issued. In Ext.P3, it is stated that pension will be granted to 634 regular employees as on 31.03.2013 in the second respondent. It is further stated that the new pension scheme of the Government shall be introduced for the new recruits on or after 01.04.2013. Ext.P3 further provides that the Member Secretary of the second respondent will prepare a detailed proposal for the self-sustainable and self-financing pension scheme, based on the guidelines issued. 3. The petitioners challenged the condition in W.P.(C) No.5338 of 2014 -3- Ext.P3 to the effect that pension will be limited to regular employees, who were in service as on 31.03.2013. They contend that since Ext.P1 policy decision had been taken as early as on 01.03.2011, the petitioners, who had retired from service after that date and before 31.03.2013, are also entitled to pension. It is contended that there exists absolutely no rationale for the fixing of the cut-off date of 31.03.2013 for the date of payment of pension. The petitioners relied on Exts.P6, P7, P8 and P10 Government Orders, to contend that in the case of similar pension schemes made applicable to other Government organizations, there was no cut-off date prescribed, and the pension schemes were made applicable from the date of the policy decision. It is further contended by the learned counsel for the petitioner that in the light of the binding decision of the Apex Court in D.S.Nakara and others v. Union of India [AIR 1983 SC 130], A.N.Sachdeva v. Maharshi Dayanand University [2015 (10) SCC 117] and Union of India and Another v. Sps Vains (Retd.) and Others [2008 KHC 4940] W.P.(C) No.5338 of 2014 -4- the fixing of a cut-off date, without any rationale, is arbitrary and unsustainable. 3. The learned Government Pleader appearing for the first respondent would submit that the implementation of the pension scheme is still in process, and that the Government had, by Ext.P3 only approved the guidelines for the self financing pension scheme. The Government had taken a policy decision to provide a grant in aid of Rs.25 crores to the scheme, and the rest of the amounts had to be created with the said grant in aid and the individual pension funds available in the EPF account of the employees. It is stated that the petitioners, who are retired employees, had already drawn the amounts to their credit from such fund. 4. The learned counsel appearing for the second respondent would contend that the scheme was only approved 'in principle' by Ext.P1, and Ext.P3 is also only an approval of the guidelines for the working of the scheme. It is stated that the date of 31.03.2013 is fixed as a cut-off date, since W.P.(C) No.5338 of 2014 -5- persons who join service on or after 1st April 2013 will be governed by the new pension scheme of the Government of Kerala. It is also stated by the second respondent that since amounts standing to the credit of the retired employees in the EPF account has already been drawn by them, it will be unworkable to grant them the benefits of pension from the scheme, which is contemplated as a self financing pension scheme. 5. I have considered the contentions advanced on either side. It is submitted by the learned counsel for the petitioners that pleadings are raised in the writ petition itself to the effect that the petitioners have no objection in refunding the amounts drawn from the EPF, in order to make the pension scheme workable and applicable to them. The contention raised by the learned counsel for the petitioners is to the effect that after having taken a policy decision to make the pension scheme applicable to employees of the second respondent by Ext.P1, it was not open to the Government by W.P.(C) No.5338 of 2014 -6- Ext.P3 to fix a cut-off date as 31.03.2013 for its application. I notice that no reply in this aspect has been given to the petitioners by the Government. In the counter affidavit filed on behalf of the first respondent also, there is no mention as to this point of contention raised by the petitioners in the writ petition. Since it is submitted by the learned counsel appearing for the second respondent as well as the Government Pleader that the implementation of the pension scheme is only proceeding, I am of the opinion that this is an aspect which has to gain the attention of the Government, while the pension scheme is implemented in respect of employees of the second respondent. 6. The petitioners are persons who have retired from service after the date of Ext.P1. They contend that they are also entitled to the benefit of the scheme, as has been made applicable to other similarly placed employees in other institutions by Exts.P6, P7, P8 and P10. It is further contended that there is no rationale existing for fixing the cut-off date of W.P.(C) No.5338 of 2014 -7- 31.03.2013, for implementation of the pension scheme. Though it may be true that the new pension scheme of the Government would be applicable to recruits who have entered service after 01.04.2013, that does not mean that the petitioners, who had retired from service after the date of Ext.P1, would be disentitled to claim benefits of the scheme. 5. In the above circumstances, I am of the opinion that the contentions raised by the petitioners in this writ petition should be considered by the Government, while implementing the pension scheme, in respect of employees of the second respondent. It is contended that there are only 49 employees who are similarly placed, like the petitioners herein, who would get the benefit of the pension scheme, if it is made applicable with effect from the date of Ext.P1. In the above circumstances, it is directed that the first respondent shall take up and consider the contentions raised by the petitioners and similarly placed persons, that the pension scheme is to be made applicable with effect from W.P.(C) No.5338 of 2014 -8- 01.03.2011. To enable such consideration, the petitioners shall prefer a representation, complete in all respects before the Government, supported by all authorities and materials which they seek to rely on. If such a representation is made within a period of two weeks from the date of receipt of a copy of this judgment, the Government shall hear the petitioners, and pass orders thereon, within a period of two months thereafter. All contentions raised by the petitioners shall be considered and speaking orders shall be passed thereon. Writ petition is disposed of as above. ANU SIVARAMAN, JUDGE vs