K. Premarajan and Others v. State of Kerala and Kerala Public Service Commission and Accountant General (A&E), Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** ## **WP(C).No. 25723 of 2013** ## **PETITIONER/S:** **1 K.PREMARAJAN MEMBER,KERALA PUBLIC SERVICE COMMISSION,PATTOM.P.O,THIRUVANANTHAPURAM,RESIDING AT ARUN NIVAS,PULLONNIPARAMBA,KUNNAMANGALAM,KOZHIKODE.`** - **2 SMT.P.JAMEELA MEMBER,KERALA PUBLIC SERVICE COMMISSION,PATTOM.PO,THIRUVANANTHAPURAM,RESIDING AT VALIYATHERAYIL,INDIRA NAGAR,PEROORKKADA,THIRUVANANTHAPURAM-695005.** - **3 DR.USHA MEMBER,KERALA PUBLIC SERVICE COMMISSION,PATTOM.PO, THIRUVANANTHAPURAM,RESIDING AT KAMBISSERIL,PRATHEEKSHA NAGAR,KILIKOLLOOR,KOLLAM-14.** - **4 PROFESSOR(DR.)GRESAMMA MATHEW MEMBER KERALA PUBLIC SERVCICE COMMISSION,PATTOM.P.O,THIRUVANANTHAPURAM,RESIDING AT KANIKKATTOTHU HOUSE,VAKASSERIL LANE,EERAYILKADAVU,MUTTAMBALAM,KOTTAYAM.** - **5 PROFESSOR KOCHUTHRESSIA ABRAHAM MEMBER,KERALA PUBLIC SERVICE COMMISSION,PATTOM.P.O,THIRUVANANTHAPURAM,RESIDING AT KAIPPANPLACKAL,KOZHUVANAL.P.O,KOTTAYAM -686523.** **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN** WP(C).No. 25723 of 2013 ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, GENERAL ADMINISTRATION DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001. 2 KERALA PUBLIC SERVICE COMMISSION PATTOM.P.O,THIRUVANANTHAPURAM-695004,REPRESENTED BY ITS SECRETARY. 3 THE ACCOUNTANT GENERAL(A&E) KERALA,THIRUVANANTHAPURAM-695039. BY ADVS. GOVERNMENT PLEADER SRI.S.KANNAN SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.09.2018, ALONG WITH WP(C).28226/2007, THE COURT ON 26.09.2018 DELIVERED THE FOLLOWING:** ## **P.V.ASHA, J.** **W.P.(C) No.28226 of 2007 & 25723 of 2013** **Dated this the 26[th] day of September, 2018** ## **JUDGMENT** **The petitioners who are retired/serving members of the Kerala Public Service Commission (“PSC” for short) are aggrieved by the amendment effected to Clause (2) of Regulation 4 of the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957, on account of which their pay is fixed after deducting the pension they were drawing by virtue of the service rendered by them under the State Government/Public Sector Undertakings/aided Colleges.** **2. Petitioners in W.P.(C) No.25723 of 2013 were appointed as Members of the Commission on various dates in 2010, 2011 and 2013. One of the petitioners in W.P. (C) No.28226 of 2007 had already retired in 2007 and the other petitioners therein were sitting members at the time of filing the writ petition in 2007. They are aggrieved by the amendment effected in 2002 which took away the benefit which was conferred by the earlier** W.P.(C) No.25723/13&CON./CASE :4: **amendment effected in 1998, based on which the members started getting the benefit of full pay as well as pension attached to the post in which they were working prior to their appointment as members of PSC.** **3. The appointment of the Chairman and members of PSC are governed by Article 316 of the Constitution of India. As per the Proviso to Article 316, one half of the members of the PSC shall be persons who at the date of their respective appointments have held office for at least 10 years either under the Government of India or under the Government of the state. Clause 2 provides that a member of PSC of a state shall hold office for a term of 6 years from the date of assumption of office or until he attains the age of 62 years whichever is earlier. Clause 3 provides that a person who holds office as a member of the PSC shall on the expiration of his term of office be ineligible for reappointment to the office. Article 318 provides that in the case of a State Commission, the Governor of the state may, by regulation determine the number of members of the Commission and their conditions of service; it further** W.P.(C) No.25723/13&CON./CASE **==> picture [19 x 7] intentionally omitted <==** **provides that conditions of service of a member of PSC shall not be varied to his disadvantage after his appointment. Under Article 319, the Chairman as well as members of the State Public Service Commission shall be ineligible for any other employment either under the Government of India or under the Government of the state. Under Article 322, the expenses of the state PSC including any salary, allowances and pensions payable to or in respect of members or staff the commission shall be charged on the Consolidated fund of the state.** **4. The Governor of Kerala has framed the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957 (hereinafter referred to as 'Regulations'), in exercise of powers conferred under Article 318 of the Constitution of India. As per regulation 4 of these regulations, the salary of the Chairman and other members were fixed as Rs.22,850/- per month and Rs.22,500/- per month respectively (since revised) along with DA and City Compensatory Allowance at the** W.P.(C) No.25723/13&CON./CASE **==> picture [19 x 7] intentionally omitted <==** **rates admissible to the officers of the State Govt. As per clause 2 of regulation 4 it was provided that a member who was holding a post under the Govt. of India or a State shall on appointment as Chairman or other member receive salary and DA as mentioned in clause (1). However as per the proviso they would be allowed to draw their salary last drawn in Govt. of India service or State Govt. service minus the pension including commuted value of pension and the pension equivalent of other retirement benefits throughout the period of their service in the Commission if the last pay drawn by them during such service is higher than the pay attached to the posts. Sub clause (ii) of Clause 2 of that regulation further provides that the salary mentioned in clause (1) shall be reduced by such amount not exceeding the pension and the pension equivalent of other retirement benefits if any in case of appointment as Chairman or other member of a person who has retired or deemed to have retired from service under the Government, a Local Body, a University or Private College or an Aided School or any other body** W.P.(C) No.25723/13&CON./CASE **==> picture [19 x 7] intentionally omitted <==** **wholly or substantially owned or controlled by the Government.** ## **5. Relevant portion of Regulation 4 reads as** ## **follows:** _**“(1) There shall be paid to the Chairman a salary at the rate of twentytwo thousand eight hundred and fifty rupees per mensum and to other members at the rate of twentytwo thousand five hundred rupees per mensum. Chairman and other members shall also be paid Dearness Allowance and City Compensatory Allowance at the rates admissible to the officers of the State Government drawing equivalent pay:**_ _**xxxxxxx**_ _**(2) A person who holds at the time of his appointment to the Commission is holding a post in the Government of India or Government of a State shall on appointment as Chairman or other Member, receive the Salary and Dearness Allowance mentioned in Clause (1): Provided that such person shall be allowed to draw his salary last drawn in the Government of India service, the All India Service or the State service, as the case may be, minus pension including commuted value of pension and pension equivalent to other retirement benefits throughout the period of his service in the Commission if the last pay drawn by him during such service is higher than the pay attached to the posts: xxxxxxx**_ _**(ii} In the case of an appointment as Chairman or other member, of a person who has retired or deemed to have retired from service under the Government or local body, a University or a private college or an aided school or any other body wholly or substantially owned or controlled by government and who is on receipt or has received or has become entitled to receive any retirement benefits by way of pension, gratuity, contributory provident fund or otherwise his salary as mentioned in clause (1) shall be reduced by such amount not exceeding the pension (including any portion of the pension which may have been commuted) and pension equivalent of other retirement benefits if any.xxxxx”**_ ## **6. Before the appointment of petitioners as** **Members of the Commission, the 1[st] petitioner in W.P.(C)** W.P.(C) No.25723/13&CON./CASE **==> picture [19 x 7] intentionally omitted <==** **No.28226 of 2007 retired from service of State Government; the 2[nd] petitioner retired from a teaching post in an aided College and 3[rd] petitioner retired from the University of Calicut. Petitioners 1 and 2 in W. P. (C) No.25723 of 2012 retired from service under the State Government and petitioners 3 to 5 retired from teaching posts in aided colleges. The grievance of the petitioners is that the regulations were once amended in 1998, pursuant to the judgment of the apex court in** _**D.S Nakara V Union of India: AIR 1983 SC 130**_ **, for grant of full salary and full pension to the Chairman and Members irrespective of the pension which they were drawing on account of the past service. Prior to amendment in 2002, sub-clause (ii) of clause (2) of Regulation 4, which was incorporated in the Regulations as per GO(P) No.648/98/GD dated 15.12.1998 (which is produced as Ext.P2 in W.P.(C) No.28226 of 2007) reads as follows:** > _**(ii) in the case of an appointment as Chairman or other member, of a person who has retired or deemed to have retired from service under the Government or local body, a University or a Private College or an aided school or any other body wholly or substantially owned or controlled by government and who is on receipt or has received or has become entitled to receive any**_ W.P.(C) No.25723/13&CON./CASE :9: _**retirement benefits by way of pension, gratuity, contributory provident fund or otherwise his salary shall be as mentioned in clause 1 and he shall be eligible to receive such retirement benefits.”**_ ## **7. The amendment brought about in 1998 enabling** **the Chairman and Members to draw pension as well the salary without any deduction was nullified in 2002, restoring the position as existed prior to 1998, as per Ext.P3 order issued on 23.10.2002 restoring the position prior to 1998, in tune with the provisions contained in Rule 100 of Part III KSR.** ## **8. Thus the grievance of the petitioners who are** **pensioners by virtue of the service rendered by them under the Govt.of Kerala/ Private aided Colleges/University is that salary was being paid to them after deducting the amount equivalent to the pension they were drawing and they were getting only a meagre amount towards salary though they are members of a Constitutional body. The matter was taken up by the PSC before the Government pointing out that the attitude shown towards the petitioners who are members of a constitutional body by treating them on par with those holding civil posts under the Government, was not** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **proper. However Government rejected the request of the petitioners as well as that of the PSC. The writ petitions are filed under the above circumstances seeking a declaration that the amendment brought about to subclause (ii) of Clause (2) of Regulation 4 by way of Ext.P3 is unconstitutional pointing out that the members of the PSC cannot be equated to those holding civil posts under the Government so as to invoke Rule 100 of Part III KSR in fixing their pay.** **9. According to the petitioners appointment of half of the members of the PSC are made from among those who have rendered 10 years service in State/Central Government as per Article 316 of the Constitution of India. Therefore they cannot be treated as reemployed persons.** **10. Respondents have filed a counter affidavit stating that the pay of the petitioners were fixed deducting the pension they were drawing as revised from time to time. It is stated that they have opted to draw pension attached to the post they were holding prior to their appointment as Members of PSC, under clause 7A** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **(2) of the Regulations. It is stated that the amendment to regulation 4(2) was made subsequent to the modification to rule 100 of Part III KSR which dispensed with the practice of getting dual benefit of pension and salary at the same time on the reappointment of retired Govt. servant to the post of Chairman and members of PSC. The amendment was effected only prospectively. They get the same emoluments attached to the post of members/Chairman minus the pension attached to their previous service and there would not be any difference in the net emoluments. As a matter of public policy Govt. had stopped the practice of granting dual benefits of pension and salary. Rule 100 was amended and consequential amendment was made in sub clause(ii) of Clause 2 of regulation 4 of the Regulations prospectively in order to ensure that it is not ultravires the provisions of the Constitution. As per Regulation 4 the pension and pensionary benefits equivalent to retirement benefits had to be deducted from the reemployment salary which was adopted in rule 100. Though certain amendments were effected subsequent** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **to the judgment of the Apex court in** _**D.S. Nakara V Union of India: AIR 1983 SC 130**_ **, Rule 100 was amended and the same was incorporated in the Regulations.** **11. In the counter affidavit by PSC in WP(C) No. 25723 of 2013, it is stated that the Chairman and members of the Commission who were appointed to hold constitutional posts cannot be treated on par with employees appointed under the Public Services or other Acts or Rules and therefore there is no question of extension of rule 100 of Part III KSR, which applies only in the case of those retired officers who are employed in Public Services after retirement from such services under Government. Therefore it is illogical to treat them as re-employed pensioners for the purpose of regulating their service conditions. The power to fix the conditions of service is vested only in the Governor of the State under Article 318 of the Constitution of India. Persons like petitioners appointed to a constitutional body are entitled to draw pensionary benefits by way of the service rendered by them and it is their statutory entitlement that cannot** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **be reckoned as part of the salary due to them for their service as member/Chairman. The salary of the members/Chairman is charged on the consolidated fund whereas pension and gratuity is admissible for past service is subject to vote by the legislature. It is also pointed out that MLAs, MPs etc. who receive pension from consolidated funds would continue to get full salary. It is also pointed out that the duties and functions of the Chairman and members of the Commission are one and the same irrespective of the source from which they are appointed that is whether they were employed or not before their appointment as members.** **12. The learned Counsel appearing for the petitioners relied on the judgment of this Court in WP(C) No.11560 of 2012 and WP(C) No.3081 of 2013 and argued that petitioners cannot be treated as mere reemployed hands and they are entitled to enjoy special privilege, being members of a constitutional body.** **13. The learned Government Pleader relied on the judgments in** _**Gopinatha Pillai vs. State of Kerala : 2004 (3) KLT 290**_ **,** _**V.S.Mallimath vs. Union of India and**_ W.P.(C) No.25723/13&CON./CASE :14: _**another : 2001 (4) SCC 31**_ **,** _**M.S.chawla and others vs. State of Punjab and another : 2001 (5) SCC 358**_ **,** _**Guru Gobinda Basu vs. Sankari Prasad Ghosal : AIR 1964 SC - 254**_ **,** _**Confederation of Ex Servicemen Associations and others vs. Union of India and others : 2006 (8) SCC 399**_ **,** _**Pashupati Nath Sukul vs. Nem Chandra Jain : 1984 (2) SCC 404**_ **and** _**Ashraf M. vs. State of Kerala and others : 2013 (2) KHC 559**_ **and argued that the petitioners who are re-employed pensioners are entitled to get pay only after deducting the pension they are drawing.** **14. Heard Sri.Jaju Babu, learned Senior Counsel appearing for petitioner in W.P.(C) No.25273 of 2013, Sri.S.P.Aravindakshan Pillai, the learned Counsel for the petitioners in W.P.(C) No.28226 of 2007, Sri. Kannan, learned Government Pleader and Sri.P.C. Sasidharan, the learned Standing Counsel for the PSC.** **15. The question arising in these cases is whether the pension drawn by petitioners by virtue of the service rendered by them as employees under the State Government, aided Colleges and University can be** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **deducted from the pay attached to that of the Member of PSC.** **16. From the pleadings it is clear that till the issuance of Ext.P2 in 1998 and thereafter from 2002, the pay of the members who were drawing pension was being fixed after deducting the pension equivalent. It would also appear that none of the petitioners have enjoyed the benefit of Ext.P2 amendment effected in 1998, as all of them appear to have been appointed as Members subsequent to the amendment effected in 2002. Whatever it may be it is necessary to examine whether pension being drawn by petitioners was liable to be deducted from the pay attached to the post.** **17. All the petitioners are drawing pension by virtue of the service rendered by them in either State Government or aided Colleges/University. Pension is sanctioned to them and the pension sanctioned to them is regulated under the provisions contained in Part III KSR, as provided in Rule 1(a) of Part III KSR. In other words all of them are governed by Part III KSR, based on which they continue to draw pension. Chapter VII of** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **the KSR deals with re-empoyment of pensioners. Under Rule 92 of Part III KSR every employee who is reemployed should be specifically called to the provisions of this chapter by the authority reemploying him, and by the Audit Officer whenever he becomes aware of such an appointment. Rule 92 is applicable to any pensioner drawing pension under Part III, irrespective of the post in which one is reemployed/ appointed after retirement. Rule 100 as it existed prior to 22.09.2009 reads as follows:** _**The pay of a re-employed pensioner will be fixed at an amount equal to the difference between the pay drawn by him at the time of his retirement and pension and pension equivalent of other forms of retirement benefits admissible to him, limited however, to the minimum of the scale of pay of the post of re-employment, provided that the pay plus pension and pension equivalent of other forms of retirement benefits shall not exceed Rs.3,500. He will also be allowed to draw the full pension in addition to the pay so fixed but will not be given temporary or adhoc increase in pension. He will get the basic pension besides the re-employment pay fixed under the rule plus full Dearness Allowance on the re-employment pay. No increment will be earned during the period of re-employment, except in the case of military pensioners re-employed in civil posts.”**_ ## **18. After the amendment in 2009, relevant portion** ## **of Rule 100 reads as follows:** _**The pay of the re-employed State Government employee whoretired from a post with pay scales currently in force will be the pay drawn at the time of retirement minus basic pension. In the case of others the pay drawn at the time of retirement would updated and fixed at the appropriate stage**_ W.P.(C) No.25723/13&CON./CASE :17: _**in the scale of pay of the post held at the time of retirement or the scale of pay of the post of re-employment as the case may be, if it is a stage.xxxxxRe-employed pensioners are entitled to the benefit of dearness allowance, city compensatory allowance, House Rent Allowance applicable from time to time on the pay before reducing pension but are not entitled to dearness relief on pension. They will also be entitled to the benefit of annual increment with effect from first April 1992. Reemployed pensioners are not eligible for stagnation increments.”**_ **19. In the case of the petitioners the Regulation governing them has incorporated the provisions in Rule 100. But even in a case where there was no such provision under the Kerala Consumer Protection Rules, this court in the judgment in** _**Gopinatha Pillai vs. State of Kerala : 2004 (3) KLT 290**_ **held that Rule 100 will apply to a pensioner who is re-employed. It was held that the appointment of a District Judge as President of the Consumer Disputes Redressal Forum cannot be said to be not a re-employment. In** _**Gopinatha Pillai's**_ **case a retired District Judge who was appointed as the President of the Consumer Disputes Redressal Forum claimed that he is entitled to the pay attached to the post of President of CDRF, as provided in the Consumer Protection Act and the Rules framed under it. In the light of the judgment in** _**M.S.Chawla and others vs. State of Punjab and another : 2001 (5)**_ W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** _**SCC 358**_ **this court found that the pay has to be fixed in accordance with rule 100 of Part III KSR in the case of any re-employed pensioner. The judgments in** _**State of Kerala vs. Govindankutty : 1999 (2) KLT 746**_ **and** _**Govindankutty vs. State of Kerala: 1996 (2) KLT 1007**_ **was held not good law in the light of the judgment in** _**M.S.Chawla's**_ **case. It was held that the provisions contained in Consumer Protection Act or Rules cannot have any overriding effect over Rule 100 of Part III KSR, in fixing the pay of re-employed pensioners, according to which the pay of the re-employed pensioner has to be fixed at an amount equal to the difference between the pay drawn by him at the time of his retirement and pension equivalent of other forms of retirement benefits admissible to him. Referring to rule 1 (a) of Chapter I of Part III KSR the Division Bench observed that pension of all employees to whom the Kerala Service Rules apply would be regulated by the provisions in the general rules. Therefore the authority competent to fix the pay and allowances of the post to which the pensioner is re-employed has to** W.P.(C) No.25723/13&CON./CASE :19: **determine whether the pension shall be claimed wholly or partly and pay would have to be fixed on reemployment at an amount equal to the difference between the last pay drawn and pension admissible subject to the minimum of the scale of pay of the post of reemployment with a maximum limit of Rs.3500/-. It was held that though the President of CDRF was appointed under Sec.10 of the Consumer Protection Act, he continued to be a pensioner governed by the Kerala Service Rules; the contention that Consumer Protection Act is a central enactment and therefore Rule 100 of Part III KSR could not have overriding power was repelled. This Court found that as long as the President of the CDRF continued to be a pensioner governed by the provisions contained in the KSR his reappointment pay would be governed by rule 100 of Part III KSR and that the provisions of Consumer Protection Rules would not have any overriding effect in the matter of pay and allowances.** **20. In** _**M.S.Chawla's**_ **case the provisions under the Consumer Protection Act was considered with reference** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **to Punjab Civil Service Rules which contain provisions in pari materia with those in KSR and the apex court found that the pension of the superannuated District Judges were governed by the Punjab Civil Service Rules which provides for fixation of pay on re-employment. It was also held that the appointment of a District Judge after his retirement cannot be said to be not a reemployment.** **21. 10. In** _**V.S.Mallimath vs. Union of India and another : 2001 (4) SCC 31**_ **the apex court considered the claim of the retired Chief Justice of this court for computation of salary in the post of Member of the National Human Rights Commission, without deduction of pensionary benefits. But it was found that the pension received towards the service rendered as Chief Justice of High Court must be treated as service in connection with the affairs of the Union and the same was deductible under Rule 3(b) of National Human Rights Commission Chairperson and Members (Salaries, Allowances and other Conditions of Service) Rules, 1993. The writ petition was filed when salary was paid** W.P.(C) No.25723/13&CON./CASE :21: **to him only after deducting the pensionary benefits. As per rule 3(b) of the National Human Rights Commission Chairperson and Members (Salaries, Allowances and other Conditions of Service) Rules, 1993 a member is eligible for salary equal to that of a Judge of the Supreme Court. Under the proviso a member who is in receipt of pension in respect of any previous service under the Government of the Union or Government of a State, his salary shall stand reduced to the extent of the pension being drawn. Paragraph 4 of the judgment would show that a contention was raised on behalf of the petitioner that the petitioner was holding the post of Chief Justice of the High Court which is a constitutional post and therefore no deduction can be made, pointing out that the service rendered as a Chief Justice cannot be said to be service under the Union or of a State. But those contentions were not accepted in view of rule 3 (b) observing that a Judge of a High Court belonging the third organ of the State, which is independent of the other two organs namely the Executive and the Legislature though occupies a unique** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **position under the Constitution cannot have any impact on fixing the pay on his appointment as a member of the Human Rights Commission and it would not affect the independence of the judiciary. It was also observed that the Comptroller and Auditor-General of India is an officer under the Union Government, as held in** _**Gurugobinda Basu vs. Sankari Prasad Ghosal : 1964 (4) SCR 311**_ **. It was held that the expression Govt. occurring in rule 3(b) has to be construed in a wider sense and service rendered by a Judge or Chief Justice of High Court must be held to be a service in connection with the affairs of the Union. There also it was held that in the absence of any definition to reemployment, it cannot be said that the appointment of the petitioner as member of the NHRC is not a reemployment.** **22. In the present case, it is true that the appointment of 50% of the members is to be done from among those who were in Central Government or Government of a State. Petitioners are persons who retired from the service of State Government as well as** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **from aided Colleges and University. However all of them are pensioners and they are drawing pension in accordance with the provisions contained in Part III of Kerala Service Rules. Though the conditions of their service, on appointment as Members of PSC, are governed by the Regulations, it cannot be said that they are not drawing pension in terms of the provisions in KSR. As per Rule 1(a) the pension of all employees to whom KSR applies are regulated by part III. As per Rule 2(ii) of Part I KSR, the Rules in KSR apply to every person employed in whole time service of Government. Though Rule 3 of Part I KSR excludes the persons for whom special provision is made governing their conditions of service, the Regulations, 1957 which govern the service conditions of petitioners on their appointment as Members, framed under Article 318, incorporate the provisions in Rule 100 of Part III KSR.** **23. Article 318 confers power on Governor to regulate the pay and allowances and conditions of service of the members. No restriction is imposed for exercising this power. The Regulations 1957 including** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **the amendment carried out to it as per Ext.P3 are issued with due authority. While laying down the conditions of service provisions are made on par with rule 100 of Part III KSR, in such a way that the total amount of pension along with the pay does not exceed the pay admissible to the members of PSC, by deducting the pension from the pay admissible under clause (1) of Regulation 4. When persons drawing pension are appointed as members there is nothing wrong in regulating their pay, as per regulation issued on par with Rule 100 of part III KSR. Moreover Rule 92 as well as Rule 100 mandates that the authority appointing a pensioner on re-employment or the audit officer shall alert such persons of the rules regarding the pay admissible to them .** **24. When Article 316 provides for appointment of half of the members of the Commission from among those who had 10 years service in State Government or Central Government, nothing is stated regarding the eligibility for pay or pension to such 50% of the members. Therefore as long as there is no dispute as to the** W.P.(C) No.25723/13&CON./CASE :25: **authority to frame regulations there is nothing illegal or unconstitutional in regulating the pay of those drawing pension, by way of Regulations incorporating the principles underlying Rule 100 of Part III KSR limiting their total emoluments including pay and pension to a sum not less than the pay fixed under Regulation 4(1). Such a provision is necessary to see that there is parity in pay in the case of all the members appointed from different sources and to avoid the possible disparity between those appointed from those with 10 years drawing pension and full pay and those appointed directly without pension but full pay only.** **25. Though the judgments relied on by the learned Government Pleader do not relate to appointments after retirement to constitutional bodies, when the Regulation 4(2)(ii) itself is issued incorporating Rule 100, the contention that Rule 100 of part III KSR would not apply to them is irrelevant. Moreover the ratio of the judgments in** _**Gopinatha Pilla's case, M.S. Chawla's case, Retd Chief Justice V.S. Malimath's case**_ **(supra)** W.P.(C) No.25723/13&CON./CASE :26: ## **will apply to the present case on all fours.** **26. Though the payment of the salary, allowances and pension of the members of PSC are to be made from the consolidated fund of the State Government, under Article 322 of the Constitution, nothing prevents the respondents from framing regulations which restricts the drawing of full salary along with full pension. Moreover in the light of the dictum laid down in judgment in** _**Gurugobinda Basu's**_ **case (supra) reiterated in** _**V.S. Malimath V Union of India**_ **(supra), it cannot also be said that the petitioners are not governed by KSR on their appointment after retirement as members of PSC. The fact that amendment was effected in tune with the amendment to Rule 100 does not make the provision unconstitutional in any manner.** _**-**_ **27. In** _**Confederation of Ex Servicemen Associations and others vs. Union of India and others : 2006 (8) SCC 547,**_ **relied on by the learned Government Pleader the apex court was considering the claim made by exservicemen for medical facilities even after retirement. The apex court found that classification** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **made between in service defence personnel and retired defence personnel is reasonable. Apex court considered the contention that the ex-servicemen cannot be compared with retired Civilian Central Govt. employees. If certain benefits extended to inservice employees are not extended to retired employees, it cannot be successfully contended that there is discrimination or violation of Article 14. In case the classification is founded on an intelligible differentia which must distinguish persons or things that are grouped together and such a differentia has rational nexus to the object sought to be achieved by the statute or legislation, it can be said that the classification has fulfilled the twin test. Therefore it was held that the classification between defence personnel and other than defence personnel is also reasonable. The public policy underlying Rule 100 of Part III KSR as well as subclause (ii) of Clause (2) of regulation 4 are the same. It cannot be said to suffer from any irrationality or unconstitutionality.** **28. At the same time it is pertinent to note that** W.P.(C) No.25723/13&CON./CASE **==> picture [25 x 7] intentionally omitted <==** **such restrictions were in force except during the period from 1998 to 2002. It would also appear that the appointments of all the petitioners were subsequent to the amendment in 2002. The issues which arose in WP(C) No.3081 of 2013 and W.P.(C) No.12560 of 2012 are entirely different.** **In the above circumstances, I am of the view that the amendment effected in sub clause (ii) of Clause** **(2) of Regulation 4 does not suffer from any unconstitutionality.** **The writ petitions are dismissed.** **Sd/-** **P.V.ASHA** **JUDGE** rkc W.P.(C) No.25723/13&CON./CASE :29: ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXT.P1 COPY OF GO(P).NO.27/2011/GAD DATED 25.01.2011 ISSUED BY THE IST RESPONDENT** **EXHIBIT P2 EXT.P2 COPY OF GO(P)NO.316/2010/GAD DATED 14.09.2010 ISSUED BY THE IST RESPONDENT** |**EXHIBIT P3**|**EXT.P3 COPY OF GO(P)NO.185/2013/GAD**| |---|---| ||**DATED 22.06.2013 ISSUED BY THE IST**| ||**RESPONDENT**| |**EXHIBIT P4**|**EXT.P4 COPY OF GO(MS)NO.413/2010/GAD**| ||**DATED 27.12.2010 ISSUED BY THE IST**| ||**RESPONDENT**| |**EXHIBIT P5**|**EXT.P5 COPY OF THE PAY SLIP DATED**| ||**15.6.2011 OF THE IST PETITIONER**| |**EXHIBIT P6**|**EXT.P6 COPY OF THE PAY SLIP DATED**| ||**3.11.2010 OF THE 2ND PETITIONER**| |**EXHIBIT P7**|**EXT.P7 COPY OF THE PAY SLIP DATED**| ||**13.05.2011 TE 3RD PETITIONER**| |**EXHIBIT P8**|**EXT.P8 COPY OF THE PAY SLIP DATED**| ||**21.3.2011 OF THE 4TH PETITIONER**| |**EXHIBIT P9**|**EXT.P9 COPY OF THE PAY SLIP DATED**| ||**05.09.2013 OF THE 5TH PETITIONER**| |**EXHIBIT P10**|**EXT.P10 COPY OF THE GO(P).NO.648/98/GD**| ||**DATED 15.12.1998**| |**EXHIBIT P11**|**EXT.P11 COPY OF THE GO(P).345/2002**| ||**DATED 23.10.2002**| |**EXHIBIT P12**|**EXT.P12 COPY OF THE DECISION DATED**| ||**26.9.2011 OF THE KERALA PUBLIC SERVICE**| W.P.(C) No.25723/13&CON./CASE :30: ## **COMMISSION.** **EXHIBIT P13 EXT.P13 COPY OF THE REPRESENTATION DATED 26.09.2011 SUBMITTED BY THE CHAIRMAN OF THE KERALA PUBLIC SERVICE COMMISSION TO THE IST RESPONDENT.** **EXHIBIT P14 EXT.P14 COPY OF THE REPLY DATED 12.3.2012 ISSUED BY THE IST RESPONDENT TO THE SECRETARY,KERALA PUBLIC SERVICE COMMISSION** |**EXHIBIT P15**|**EXT.P15 COPY OF THE REPRESENTATION**| |---|---| ||**DATED 16.12.2012 SUBMITTED BY THE**| ||**PETITIONERS TO THE FINANCE MINISTER**| |**EXHIBIT P16**|**EXT.P16 COPY OF THE ADVICE OF THE LAW**| ||**SECRETARY DATED 30.11.2012.**| |**EXHIBIT P17**|**EXT.P17**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**NO.84594/SPL.E1/2012/GAD DATED 7.8.2013**| ||**ISSUED BY THE IST RESPONDENT.**| |**EXHIBIT P18**|**EXT.P18**<br>**COPY**<br>**OF**<br>**THE**| ||**GO(P)NO.25/2013/H.EDN DATED 31.01.2013.**| |**EXT.P19**|**COPY OF THE PAY SLIP NO.19/D/MB-62/7183**| ||**DT.12.12.13**<br>**ISSUED**<br>**TO**<br>**THE**<br>**1ST**| ||**PETITIONER.**| |**EXT.P20**|**COPY OF THE PAY SLIP NO.19/D/MB-62/7185**| ||**DT.12.12.13**<br>**ISSUED**<br>**TO**<br>**THE**<br>**2ND**| ||**PETITIONER**| |**EXT.P21**|**COPY OF THE PAY SLIP NO.19/D/MB-62/7181**| ||**DT.12.12.13**<br>**ISSUED**<br>**TO**<br>**THE**<br>**4TH**| ||**PETITIONER**| |**EXT.P22**|**COPY OF THE PAY SLIP NO.19/D/MB-61/7187**| ||**DT.12.12.13**<br>**ISSUED**<br>**TO**<br>**THE**<br>**3RD**| ||**PETITIONER.**| |**EXT.P23**|**COPY**<br>**OF**<br>**COMMUNICATION**<br>**VIDE**| ||**NO.P7/1011110618/1/979**<br>**DT.23.1.14**| ||**ISSUED BY THE 3RD RESPONDENT TO THE 1ST**| W.P.(C) No.25723/13&CON./CASE :31: ## **PETITIONER.** ## **RESPONDENTS' EXHIBITS** **EXT.R1A TRUE COPY OF THE REPLY NO.74617/SPL.E1/2011/GAD DT.12.3.12 EXT.R1B COPY 0F THE REPLY NO.84594/SPL.E1/2012/GAD DT.7.8.13 EXT.R1C TRUE COPY OF THE REPLY NO.67349/SPL.E1/2012/GAD DT.27.9.12**