K. Abdulla v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 19TH DAY OF DECEMBER 2012/28TH AGRAHAYANA 1934 WP(C).No. 4590 of 2009 (U) -------------------------- PETITIONER(S): ------------- K.ABDULLA, RETIRED PUBLICATION OFFICER, KERALA STATE INSTITUTE OF LANGUAGES, RESIDING AT ALIF MANZIL, ANANGADI, KADALUNDI NAGARAM P.O., MALAPPURAM DISTRICT, PIN:673314. BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, CULTURAL AFFAIRS, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE DIRECTOR, KERALA STATE INSTITUTE OF LANGUAGES, NALANDA, NANTHENCODE, THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER SRI. M.J.RAJASREE R2 BY ADVS. SRI.P.K.VIJAYAMOHANAN,SC, STATE INSTITUTE OF LANGUAGES SRI.JAWAHAR JOSE, SC, STATE INSTITUTE OF LANGUAGES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- WP(C).No. 4590 of 2009 (U) ## APPENDIX ## PETITIONER'S EXHIBITS: - P1 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P.NO.17987/2000 DATED 11.10.2000. - P2 COPY OF THE GO(MS)29/2000/CAD DATED 08.09.2000. - P3 COPY OF THE RULES APPENDED TO EXT.P2. - P4 COPY OF THE ORDER NO.3/PSA/CAD/2001 DATED 27.02.2001. - P5 COPY OF THE ORDER NO.E1/927/1983/SIL DATED 13.03.2008. - P6 COPY OF THE RECEIPT WHEN RECEIVING A SUM OF RS.25,000/-. - P7 COPY OF ORDER GO(MS)NO.3/03/CAD DATED 24.01.2003. - P8 COPY OF THE ORDER NO.LF/SIL/A1/PEN/138/2002 DATED 29.03.2003. - P9 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.9111/1990 DATED 18.07.1995. - P10 COPY OF THE ORDER NO.34/PENSION/2007/KGCIEPS DATED 29.02.2008. ## RESPONDENTS' EXHIBITS: R2(A) COPY OF THE ORDER G.O.(RT)NO.14/2000/CAD DATED 24.04.2000. // TRUE COPY // P.A. TO JUDGE DSV/- ## **P.R. RAMACHANDRA MENON, J.** ## **---------------------------------------** ## **W.P.(C). No.4590 of 2009** **---------------------------------------Dated this the 19[th] day of December, 2012** ## **JUDGMENT** Whether the petitioner who was made to retire from the service of the 2[nd] respondent on 31.10.2000 pursuant to an option exercised by him in conformity with Ext.P3 Pension Rules is entitled to have gratuity at the rates as payable to the State Government employees is the question to be considered in this writ petition. 2. The petitioner joined the service of 2[nd] respondent institute as a Proof Reader on 1.7.1969. Subsequently, he was promoted as Publication Officer in the year 1980 and was later shifted to Kozhikode. Even though the petitioner's post was originally included in the category of Academic Officers, it later got to be converted to the Administrative Branch. By virtue of the relevant decision taken by the Board, the petitioner was entitled to continue till attaining the age of 58 years. While so, the Government passed an order dated 10.7.1984, whereby the retirement age was brought down to 55 years; on the basis of W.P.C. No. 4590 of 2009 -2- which, steps were being taken to retire the petitioner at the age of 55 years on 31.7.1999. This was subjected to challenge by filing O.P.No. 17987/2000, which came to be finally decided in favour of the petitioner as per Ext.P1 judgment dated 11.10.2000, whereby the petitioner was permitted to continue till attaining the age of 58 years. The said verdict has become final and the petitioner was continuing accordingly. 3. While so, Ext.P3 Pension Rules were introduced in the 2[nd] respondent, as per which, the age of retirement was uniformly fixed as 55 years. However, persons who were continuing in office after crossing the age of 55 in the given circumstances, were permitted to continue till attaining the age of 58 years or to submit an option to have the benefit of pension as provided under Ext.P3 Rules, which had to be exercised within one month. According to the petitioner, he exercised the option and sought to have pension as provided under Ext.P3. This was accepted and the petitioner came out of service on 31.10.2000. But on filing the claim for DCRG, the petitioner was given only a meagre sum of Rs.25,000/-(Rupees twenty five thousand only), stating that he was not eligible to have gratuity as payable to the State W.P.C. No. 4590 of 2009 -3- Government employees. The claim preferred by the petitioner was turned down as per Ext.P10 order dated 29.2.2008, which in turn is under challenge in this writ petition. 4. The 2[nd] respondent has filed a counter affidavit rebutting the averments and allegations and also asserting that the scheme clearly stipulates payment of benefits only to the prescribed extent and that the petitioner cannot have anything over and above the same. It also remains an admitted fact that, the petitioner crossed the age of 55 and was continuing in service with liberty to go upto 58 years, and it was with open eye that he sought for the benefit of Pension by submitting the option. By virtue of Clauses 5 and 6 of the Pension Rules, the petitioner had to be considered as retired much prior to the cut off date, i.e., 1.4.2000. The petitioner was taken as retired on attaining the age of 55 on 31.7.1999. It was accordingly that the benefits were worked out, simultaneously granting the gratuity to the specified extent of Rs.25,000/-(Rupees twenty five thousand), as it existed at the relevant time. 5. The learned counsel for the petitioner submits that, Ext.P3 has been sought to be wrongly interpreted by the 2[nd] W.P.C. No. 4590 of 2009 -4- respondent and that the Scheme contemplates only that the benefits will be paid to the concerned employees without reckoning the subsequent spell of service after crossing the age of 55 years and nothing more. Reliance is sought to be placed on Ext.P9 judgment passed by this Court in O.P.No.9111/1990 dated 18.7.1995, whereby another person by name Velappan (who also came to be transferred to Kozhikode along with the petitioner, was permitted to continue till 58 years) on exercising the option, was granted the benefits under the Pension Rules including the gratuity of Rs.60,000/-(Rupees sixty thousand), as payable in respect of the State Government employees. The learned counsel further refers to the discriminatory attitude shown, in so far as the former Managing Director, Dr.M.R. Thamban was sanctioned gratuity to an extent of 2.8 lakhs. 6. The learned Standing Counsel appearing for the 2[nd] respondent submits that the provisions of Ext.P3 Rules are quite clear and categoric, which cannot be widened in the manner as desired by the petitioner. The Rule clearly specifies vide Clause 5 that the monetary benefit payable under the Rules shall come into effect only from 1.4.2000 and that those who retired till W.P.C. No. 4590 of 2009 -5- 31.3.2000 shall not be eligible to commute their pension and shall not be entitled to have the DCRG at the rate admissible to the State Government employees. It is further stipulated in Clause 6 that the age of superannuation of employees in the cultural institutions mentioned in Part II Rule 3 (a) of Ext.P3 Rules shall be 55 years from January, 2000. It also stipulates that, the pension of those who opt for pension shall be fixed on the basis of the average pay as payable at the age of 55 which is the age of superannuation of State Government employees; as provided in Part III KSR. The learned counsel further submits that, even though Ext.P9 judgment could not be challenged at that point of time due to various circumstances, the actual position was brought to the notice of this Court later when similar claims came to be agitated before this Court. Copy of judgment dated 3.11.2003 in O.P.No. 12605/1996 has been placed for consideration of this Court, whereby it has been held that the claim for granting the gratuity at the rate of 60,000/-(Rupees sixty thousand) on par with the gratuity payable to the State Government employees was not liable to be entertained and that the maximum gratuity payable as per the Rules applicable to the W.P.C. No. 4590 of 2009 -6- employees of the 2[nd] respondent at that point of time was only Rs.25,000/-(Rupees twenty five thousand) which has been granted by this Court as well. The learned counsel also submits that the classification as given in Ext.P3 particularly, by way of Clauses 5 and 6, amounts to a reasonable classification and that the Rules are not under challenge in this writ petition. 7. After hearing both the sides, this Court finds that the petitioner although was entitled to have continued in service only upto the age of 58 years by virtue of Ext.P1 judgment, it did not contemplate payment of any pension. It was only on introduction of Ext.P3 Rules, that the employees of the 2[nd] respondent came to be eligible for pension and this facility was also made open to the petitioner, who had already attained the age of 55 and who was continuing in service. The Rules categorically stipulate, to what extent the benefits are payable and in what manner; This Court does not find that there is anything wrong with regard to the classification as mentioned above, particularly in view the law declared by the Apex Court as reported in **State Government Pensioners' Association and Others v. State of Andhra Pradesh(1986 (3) SCC 501).** That apart, it also remains a fact W.P.C. No. 4590 of 2009 -7- that, Rules 5 and 6 if Ext.P3 have not been subjected to challenge by the petitioner. In view of the finalization of similar matters as borne by the judgment dated 11.10.2000 in O.P.No.17987/2000, this Court finds that the petitioner cannot successfully prosecute the proceedings, so as to have the relief sought for. Writ petition fails and the same is dismissed accordingly. **P.R. RAMACHANDRA MENON, JUDGE.** Kp/-