K. Premarajan v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944** ## **WP(C) NO. 28946 OF 2020** ## **PETITIONER:** K.PREMARAJAN AGED 66 YEARS MEMBER (RETIRED), KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM, RESIDING AT ARUN NIVAS, PULLONNIPARAMBA, KUNNAMANGALAM, KOZHIKODE-673 571. BY ADVS. S.PRASANTH (AYYAPPANKAVU) SMT.VARSHA BHASKAR SMT.N.R.REESHA ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-695 004, REPRESENTED BY ITS SECRETARY. 3 THE ACCOUNTANT GENERAL ( AND E), KERALA, THIRUVANANTHAPURAM-695 039. BY ADV SHRI.P.C.SASIDHARAN, SC, KPSC SUNIL KUMAR KURIAKOSE-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28946 OF 2020 2 ## **JUDGMENT** Dated this the 6[th] day of October, 2022 ## This writ petition is filed seeking the following reliefs:- i) issue a writ of certiorari or any other writ or order setting aside Ext.P10 order; ii) directing the 1[st] respondent to permit the petitioner to exercise reoption with effect 28-01-2011; ii) Declare that the petitioner is entitled for sanction of his pension on 50% of the fixed pay as member of the 2[nd] respondent Commission, pursuant to Ext P1 appointment with all consequential benefits; iv) Direct respondents 1 and 3 to sanction the pension of the petitioner based on 50% of the fixed pay of member of the 2[nd] respondent Commission pursuant to Exts.P1 and grant him all consequential benefits including DCRG, pension, family pension and commutation of pension; 2. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 3 as well as the learned Standing Counsel appearing for the Kerala Public Service Commission. ## 3. It is submitted by the learned counsel for the petitioner WP(C) NO. 28946 OF 2020 3 that the petitioner, while working as Commissioner in the Malabar Devaswom Board and Additional Secretary to Government, was appointed as member of the Public Service Commission and assumed charge on 29/1/2011. He retired as member of the Public Service Commission on 28/1/2017. It is submitted that the petitioner had been drawing pension only for his service in the Government and that he had not been granted any pension for his service as member of the Public Service Commission. It is contended that it was on account of the provisions of Ext.P2 the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957 that the said situation arose. The Regulation provided for an option to the Chairman/Members for opting for the revised pension under the regulations or any another pension. It is submitted that the petitioner, who was a Government servant as on his date of appointment as member of the Commission had opted for being paid the service pension to which he is eligible as on the date of his appointment. It is contended that by Ext.P6 the regulations have been amended WP(C) NO. 28946 OF 2020 4 with retrospective effect from 1/02/2006 by which Rule Regulation 7(1) was amended to read as follows:- “(1) The Chairman/Member of the Commission shall be given pension at the rate of 7.5% of the basic pay drawn for every completed year of service as Chairman/Member in the Commission subject to a maximum of 50% of basic pay drawn and Dearness allowances at the rate admissible to Central Government employees (pre-revised).” 4. It is submitted that the petitioner had approached this Court filing WP(c) No.4203/2015 and this Court taking note of the amendment to the regulations with retrospective effect as well as an earlier judgment of this Court as evidenced by Ext.P8 had directed the consideration of the request of the petitioner for payment of revised pension, taking note of the amended regulations. The Government was also directed to consider whether a fresh opportunity should be given to the petitioners to opt in the light of the subsequent amendment of the regulations with retrospective effect from the dates prior to the appointment WP(C) NO. 28946 OF 2020 5 of the petitioner. 5. It is submitted that Ext.P10 order has been passed by the Government rejecting the request of the petitioner relying on the unamended provisions of Regulation 7A(1) and (2) of the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957. It is submitted that since there is no provision for exercising a re-option and since the petitioner had already exercised his option, such request also cannot be examined. 6. The learned counsel for the petitioner relies on judgment of the Apex Court in _**Ramakrishnam Raju P. v Union of India and Othes [2014 KHC 4209]**_ to contend that the person, who is appointed as member of the PSC cannot be discriminated against on the ground of the source from which he was so appointed. It is submitted that the rejection of the petitioner's claim has resulted in an anomalous situation where, persons, who were appointed as members of PSC from sources other than from Government service are being paid enhanced WP(C) NO. 28946 OF 2020 6 rate of pension, while the petitioner, who was appointed as the member of the Public Service Commission while he was working as a Government servant is being paid absolutely no pension at all for the period he had functioned as the member of the Public Service Commission. 7. The learned counsel also would place reliance on Exts.P13, P17 and P20 to contend that identically situated persons had been granted the benefits as sought for by the petitioner by the Government while the claims of the petitioner have been rejected. 8. A counter affidavit has been placed on recored by the 2[nd] respondent supporting the case of the petitioner and contending that the anomaly had been brought to the notice of the Government and that the Commission had requested the Government to pass orders, taking note of the amendment to Regulation 7 of 1957 Regulations, so that the grievance of the petitioner could be redressed. 9. The Government has placed a counter affidavit on WP(C) NO. 28946 OF 2020 7 record. It is contended therein that the petitioner had been granted an option in terms of the Regulations and the petitioner had opted to draw the pension in respect of his earlier service as a Government servant. It is submitted that though there is a retrospective amendment to the Regulations, specifically clause 7A(1) thereof, there is no provision in the Regulations or in the amendment for a grant of a chance for re-option to persons like the petitioner. It is therefore contended that since the petitioner was actually drawing a pension based on his prior service as a Government servant, he is not entitled to pension as a member of the Public Service Commission as a matter of right, since Regulations do not provide such grant of pension. 10. A reply affidavit has also been placed on record by the petitioner producing orders with regard to other identically placed members, who have been granted the benefits as has been sought by the petitioner. 11. Having considered the contentions advanced, I am of the opinion that the rejection of the claim of the petitioner by a WP(C) NO. 28946 OF 2020 8 cryptic order in the nature of Ext.P10 is completely unwarranted, especially in view of the fact that the benefits as sought for by the petitioner have been extended to other persons by a pick and choose method by the Government itself by relaxation of the provisions in the Regulations. If that be so, I fail to see the reason why the petitioner, whose case was also directed to be considered did not get the similar benefits of consideration after placing the matter before the cabinet of Ministers and after the exercise of the general powers of exemption as has been done in the case of identical situated persons. I am of the opinion that the rejection of the claim raised by the petitioner by Ext.P10 is therefore completely untenable. Even in exercise of the powers of exemption, the Government cannot be heard to contend that similarly situated persons can be subjected to elimination without any justification. In the result, Ext.P10 order is set aside. There will be a direction to the Government to re-consider the case of the petitioner for grant of the re-option and for drawl of pension in WP(C) NO. 28946 OF 2020 9 accordance with the amended Regulations as has been done in the case of identically situated persons as evident from Exts.P13 and P20 orders, after following necessary procedure as has been done in those cases. The 1[st] respondent shall take appropriate steps to pass orders in accordance with law, in the case of the petitioner as well and after following all due procedure, taking note of the orders passed in the case of identical situated persons. Appropriate action shall be taken within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** ska WP(C) NO. 28946 OF 2020 10 ## **APPENDIX OF WP(C) 28946/2020** RESPONDENT EXHIBITS Exhibit R1(A): TRUE COPY OF THE GO(MS)NO.88/2021/H.EDN DATED 12/2/2021 Exhibit R1(B): TRUE COPY OF THE GO(MS)NO.109/2013/GAD DATED 22/4/2013 ExhibitR1(c): TRUE COPY OF THE GO(MS)NO.339/2013/GAD DATETD 30/11/2013 ExhibitR1(D): TRUE COPY OF THE GO(MS)NO.3355/2013/GAD DATED 24/4/2013 PETITIONER EXHIBITS Exhibit P11 TRUE COPY OF THE EXTRACT OF FILE NOTE BY LAW DEPARTMENT IN FILE NO. 11877/SUIT (1)/2014/LAW Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 02/08/2021 IN W.P(C) 6525/2021 Exhibit P13 TRUE COPY OF THE LETTER NO. SPL.E1/86/2019/GAD DATED 22/08/2019 SENT BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT Exhibit P14 TRUE COPY OF THE EXTRACT OF THE CABINET NOTE DATED 19/02/2019 IN FILE NO. SPECIAL.E1/97/2018/GAD Exhibit P15 TRUE COPY OF THE G.O(MS) 413/2010/GAD DATED 27/12/2010 ISSUED BY THE 1ST RESPONDENT Exhibit P16 TRUE COPY OF THE LETTER NO. R&A11(1) 4422/06/GW DATED 10/09/20211 SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT Exhibit P17 TRUE COPY OF THE G.O(RT) 6354/2009/GAD DATED WP(C) NO. 28946 OF 2020 11 ||07/09/2009 ISSUED BY THE 1ST RESPONDENT| |---|---| |Exhibit P18|TRUE COPY OF THE G.O(MS) NO. 103/2019/GAD| ||DATED 28/05/2019 ISSUED BY THE 1ST RESPONDENT| |Exhibit P19|TRUE COPY OF THE CABINET NOTE FOR FILE NO.| ||SPECIAL E1/1/115/2017/GAD| |Exhibit P20|TRUE COPY OF THE G.O(MS) NO. 102/2019/GAD| ||DATED 27/05/2019 ISSUED BY THE 1ST RESPONDENT| |Exhibit P21|TRUE COPY OF THE G.O(RT0 359/2020/GAD DATED| ||21/01/2020 ISSUED BY THE 1ST RESPONDENT| |Exhibit P22|TRUE COPY OF THE G.O(MS) 2/2021/GAD DATED| ||01/01/2021 ISSUED BY THE 1ST RESPONDENT| |EXHIBIT P1|TRUE COPY OF GO(P) NO.27/2011/GAD DATED| ||25.01.2011.| |EXHIBIT P2|TRUE COPY OF THE EXTRACT OF KERALA PUBLIC| ||SERVICE COMMISSION REGULATIONS 1957.| |EXHIBIT P3|TRUE COPY OF THE RESOLUTION DATED 08.12.2014| ||OF THE 2ND RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE COVERING LETTER DATED| ||10.12.2014 SENT BY THE 2ND RESPONDENT TO THE| ||1ST RESPONDENT.| |EXHIBIT P5|TRUE COPY OF GO(MS)NO.25/2013 DATED 31.01.2013| ||ISSUED BY THE PRINCIPAL SECRETARY, DEPARTMENT| ||OF HIGHER EDUCATION (F).| |EXHIBIT P6|TRUE COPY OF GO(P) NO.23/2017/GAD DATED| ||21.08.2017 ISSUED BY THE PRINCIPAL SECRETARY| ||TO GOVERNMENT, GENERAL ADMINISTRATION (SPECIAL| ||E).| |EXHIBIT P7|TRUE COPY OF THE JUDGMENT OF THIS HON'BLE| WP(C) NO. 28946 OF 2020 12 COURT DATED 16.11.2019 IN WPC NO.4203/2015. EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 22.05.2019 IN WPC NO.37423/2015. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 12.12.2019 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P10 TRUE COPY OF GO(RT) NO.76/2020/GAD DATED 04.01.2020 ISSUED BY THE 1ST RESPONDENT.