E.P. GOPALAKRISHNAN (YOGI KRISHNANANDA GIRI) v. STATE OF KERALA, THE KERALA CO-OPERATIVE EMPLOYEES PENSION BOARD, AND KIZHAKKAMPALAM SERVICE CO-OPERATIVE BANK

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** ## **WP(C) NO. 24004 OF 2014** ## **PETITIONER:** E.P. GOPALAKRISHNAN (YOGI KRISHNANANDA GIRI), AGED 65 YEARS RETD. SENIOR CLERK, KIZHAKKAMBALAM SERVICE CO-OPERATIVE BANK LIMITED, KIZHAKKAMBALAM, RESIDING AT C/O THALEKKARAMADOM, CHENGAMANAD PO, ALWAYE BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.ASHA BABU SMT.AMMU CHARLES SRI.M.MANOJKUMAR CHELAKKADAN SRI.S.M.PRASANTH SRI.G.RENJITH ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF COOPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE KERALA CO-OPERATIVE EMPLOYEES PENSION BOARD TC NO.27/156, 157, KALA NIVAS, CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS ADDITIONAL REGISTRAR/SECRETARY. 3 KIZHAKKAMPALAM SERVICE CO-OPERATIVE BANK NO.R83 KUNNATHUNADU TALUK, KIZHAKKAMPALAM PO, ERNAKULAM DISTRICT - 683 562, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.M.SASINDRAN, SC, KERALA STATE COOPERATIVE EMPLOYEES PENS GP SRI B HARISH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 24004 OF 2014** **2** ## **JUDGMENT** The prayer, in the instant writ petition is, for quashing of paragraph 38A substituted by G.O.(P) No.105/2011 dated 09.08.2011 being arbitrary, illegal and violative of Articles 14, 19 (1) (g) and 21 of the Constitution of India with a further prayer to declare the petitioner eligible for pension under Kerala Cooperative Societies Employees Self Financing Pension Scheme, 1994 and grant of pension under the aforementioned provisions. In order to substantiate the aforementioned prayers it has been pleaded that petitioner, on completion of 23 years and 8 months of service at the age of 43, on 25.05.1991, had taken voluntary retirement from the service of Kizhakkampalam Service Cooperative Bank - 3[rd] respondent. Petitioner entered the service of the Society on 25.09.1967. Government vide Order No.44/95 dated 14.03.1995 introduced the pension scheme for the employees working in the Co-operative Societies governed by the Kerala Co-operative Societies Act, 1969 by applying to the classes of societies from the dates government may from time to time notify in the gazette. Originally the scheme was made applicable **WP(C) NO. 24004 OF 2014** **3** to the persons who were in the service as on the date of introduction of the Pension Scheme but vide subsequent G.O. (P).No.58/2003 an amendment was brought under the Pension Scheme by introducing paragraph 38A. Clause (i) of the paragraph stated that every person who retired from the service of a society during the period between 01.01.1974 and 03.06.1993 and are alive on the date of commencement of Kerala Co-operative Societies Employees Self Financing Pension (Amendment) Scheme, shall be paid a monthly pension subject to condition that the person opts for pension within a period of six months. However, vide impugned notification dated 19.08.2011 the aforementioned paragraph was substituted by adding the word 'retired on superannuation'. ## 2. Learned counsel appearing on behalf of the petitioner submitted that since the petitioner had sought voluntary retirement, he had not been given the benefits under the Pension Scheme. The aforesaid benefit was applied in 2012, which is recurring cause of action. By way of amendment the eligibility of pension has been restricted only to those persons who retired on **WP(C) NO. 24004 OF 2014** **4** superannuation which is against the provisions of Articles 19 (1) (g) and 21 of the Constitution of India. Pension is no longer a bounty but a legal and substantive/vested right, cannot be taken by any subsequent amendment. In support of the contention reliance has been laid to the judgment of this Court in _**Kochurani Thomas v. State of Kerala and Others**_ [2016 KHC 184] wherein an application of wife of a deceased pensioner for family pension was rejected on the ground that the said employee had taken voluntary retirement. In other words, Clause 23 of the Kerala Co-operative Societies Employees Self Financing Pension Scheme 1994 scheme was relied on to deny the benefit. This Court allowed the writ petition by holding that artificial differentia which was sought to be introduced between two classes of people on retirement on superannuation and voluntary retirement could not have been sustained and was without any rational basis. 3. On the contrary the learned counsel for the respondents submitted that the application was submitted belatedly ie., in 2012 and the writ petition has been filed in 2014. Amendment in 2003 was prospective; therefore the petitioner **WP(C) NO. 24004 OF 2014** **5** cannot be benefited and permitted to lay challenge. 3. I have heard the learned counsel for the parties and appraised the paper book. 4. Previous to the impugned amendment and the amended provisions, germane to the present case are extracted as under: "(1) Every person who has retired from the service of a society during the period between 1st January 1974 and 3rd June, 1993, and are alive on the date of commencement of Kerala Co operative Societies Employees Self Financing pension (Amendment) Scheme, 2003, shall be paid a monthly pension subject to the following conditions and restriction namely:- (a) any person who opts for pension shall within six months, remit to the Pension Fund an amount equal to such portion of the contributory Provident Fund as may constitute the employer's contribution." "(1) Every person who has retired on superannuation from the service of a society during the period from 1st January, 1974 to 3rd June, 1993 shall be entitled to a monthly pension subject to the following conditions and restrictions, namely: (a) any person who opts for pension shall within one year remit to the Pension Fund an amount equal to such portion of the employer's Contribution to the Contributory Provident Fund, with interest thereon, up to the date of retirement of the employee concerned". 5. The expression “superannuation” is the core issue **WP(C) NO. 24004 OF 2014** **6** which has taken way the right of the petitioner to claim pension and cannot be perused to be prospective as it applies to the employees who have superannuated from the service of the society during the period 01.01.1974 to 03.06.1993. It is a matter of record that the petitioner had sought the voluntary retirement on 25.05.1991 thus it would be covered within the period where the expression 'superannuation' was made to be eligible for claiming the benefits of the amended pension scheme 1994. Identical controversy with regard to the claim of family pension of a deceased widow rejecting the claim of family pension by taking the aid of Clause 23 of 1994 Pension Scheme came to be pondered by the learned Single Bench of this Court in the judgment cited (supra) wherein paragraph 41 to 44, it was held ## as under: “41. There is no gain saying the well-established Constitutional cannon that equal protection or benefit of the law is meant that amongst equals law should be equally administered and similarly placed persons should be treated in a similar manner. It is, of course, equally well established that the State does have the power to indulge in positive discrimination on the basis of reasonable classification with intelligible differentia as its bedrock, though. **WP(C) NO. 24004 OF 2014** **7** 42. However, what is not to be lost sight of is that the differentia must have a rational nexus with the object sought to be achieved. In this case, it is a classification by way of identification of the source. It cannot be arbitrary. In other words, classification per se cannot be considered an anathema; its keeping company with arbitrariness is. 43. In the present instance, the defence on the part of the State is that the persons seeking voluntary retirement put in less service than those who retire on their attaining the age of superannuation. As a corollary, they contribute less to the pension fund. In fact, in the above paragraphs this fallacy has been exposed. There can be any number of instances where a person retiring after superannuation puts in less service than a person seeking voluntary retirement. I am, therefore, of the opinion that the artificial differentia sought to be introduced between two classes of people who are otherwise identically placed cannot be sustained. It, in fact, falls foul of Art. 14 of the Constitution of India.” 44. To elaborate, I must observe that the legislative intendment as could be gathered from Ext. P2 amendment does not stand the judicial scrutiny. The employees retiring on their attaining the age of superannuation and those voluntarily retiring cannot be treated as two classes of employees for the purpose of terminal benefits. Indeed, both are, admittedly, entitled to a pension, but as regards the family pension, a differentia was introduced. In my considered view, the differentia thus introduced is without any rational basis; it, therefore, falls foul of the constitutional mandate of equality - equal protection of the **WP(C) NO. 24004 OF 2014** **8** law, at that. 6. Retirement on superannuation is on attaining the age as fixed in the Rules while voluntary retirement shall also mean retirement. The artificial differentia attempted to be projected by the respondent in denying the benefits of the petitioner has no rational or basis as volunteered act leads to the retirement though before the age fixed for the superannuation. The Act cannot be construed to take away the right, as it would also include voluntary retirement. Resultantly, the writ petition is allowed. Respondent is directed to grant the benefit to the petitioner under the 1994 Pension Scheme and release the same in accordance with law not later than two months from the date of receipt of copy of this judgment. **Sd/AMIT RAWAL JUDGE** nak **WP(C) NO. 24004 OF 2014** **9** ## **APPENDIX OF WP(C) 24004/2014** PETITIONER ANNEXURE EXHIBIT P1 : TRUE COPY OF COMMUNICATION DATED 25.05.2012 ISSUED BY R2 EXHIBIT P2 : TRUE COPY OF COMMUNICATION DATED 17.07.2012 BY R2 EXHIBIT P3 : TRUE COPY OF ORDER DATED 21.12.2012 ISSUED BY R1 EXHIBIT P4 : TRUE COPY OF REPRESENTATION DATED 11.03.2014 SUBMITTED BY THE PETITIONER EXHIBIT P5 : TRUE COPY OF THE ORDER DATED 28.03.2014 BY R1