K.A. Salim and others v. Kerala State Electricity Board Limited and The Chief Engineer, HRMS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939** ## **WP(C).No. 4315 of 2017 (L)** ## **PETITIONERS** - **1 K.A. SALIM, S/O.K.ABDUL RAZAK, KARIPPADAPPILLIL, VARNDARAPPILLY P.O., THRISSUR - 680 303.** - **2 C.N.NARAYANAN, S/O.C.N.NEELAKANDAN NAMBOOTHIRI, CHALOOR MANA, KARUVANNUR POST,IRINJALAKUDA, THRISSUR, PIN - 680 711.** - **3 N.MOHANAN, S/O.NEELAKANDAN, KEEZHUMANGALATH, MANU VIHAR, VENKIDANGU P.O., THRISSUR - 680 510.** - **4 PRATHAPAN T.A., S/O.AYYAPPAN T.K., THATTARAPURAKKAL, NATTIKA P.O., PIN - 680 566.** - **5 PRAKASH K.V., S/O.VELAYUDHAN, KATTIKOVIL HOUSE, MANALUR P.O., THRISSUR, PIN - 680 617.** - **6 C.M.SATHIAN, S/O.MADHAVAN, CHULLIPARAMBIL HOUSE, MUPLIYAM P.O., THRISSUR, PIN - 680 312.** - **7 K.K.SASI, S/O.KOCHURAMAN K.K., KALLUMPURAM HOUSE,** **MATTATHURKUNNU P.O., THRISSUR - 680 684.** **BY ADVS. SRI.N.SUKUMARAN (SR.) SRI.N.K.KARNIS.** ## **RESPONDENTS** **1. KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVANAM, PATTAM, PALALCE P.O., THIRUVANANTHAPURAM - 695 004.** **2. THE CHIEF ENGINEER, HRMS, VAIDHYUTHI BHAVANAM, PATTOM, PALACE P.O., THIRUVANANTHAPURAM - 695 004.** **BY ADVS: SRI.M.K.THANKAPPAN, SC. SMT.ANEETHA A.G., SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Hr.........** **WP(C).No. 4315 of 2017 (L)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 26.02.2016. EXHIBIT P2. TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 04.03.2016. EXHIBIT P3. TRUE COPY OF THE GOVERNMENT ORDER DATED 20.01.2011. EXHIBIT P4. TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN W.P.(C) NO.36339 OF 2010 DATED 06.12.2010. EXHIBIT P5. TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT DATED 03.10.2016.** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **// TRUE COPY// P.S TO JUDGE.** **Hr.....** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.4315 of 2017** **-------------------------------------** Dated this the 7[th] day of February, 2018 ## **J U D G M E N T** The petitioners are officers, who retired from service from the Kerala State Electricity Board Limited ('the Board' for short) between 01.07.2013 and 01.04.2016. As per Ext.P1 order, the Board approved the recommendations of the Pay Revision Sub Committee for revision of pay and allowances of the officers of the Board and to accept the agreement reached with the recognized Trade Unions for revision of pay and allowances of workmen. In this order, it is stated that a Pay Revision Sub Committee was constituted by the Board for conducting negotiations with the Trade Unions and Officers of Associations to arrive at a Long Term Settlement and for revising the pay and allowances of Officers. It is stated that the Pay Revision Sub Committee after detailed discussions with the Associations of Officers have W.P.(C).No.4315 of 2017 2 reached a consensus and submitted a proposal for the revision of pay and allowances of the Officers of KSEB. On the basis of this report, the Board decided to implement the pay revision. Ext.P2 Board Order was issued on 04.03.2016 with respect to the revision of pension and other related benefits to the pensioners in the KSEB. 2. In the present case, petitioners are aggrieved by Clause 6 of Ext.P2 order, which provides for commutation of pension and restoration of commuted portion of pension, which reads as ## follows: “The existing rate of commutation of pension (40% of the basic pension) shall be admissible on the revised pay (in the revised scales of pay of workmen and officers implemented vide Board Orders read as 4[th] and 6[th] paper above with effect from 01.07.2013/01.08.2013) shall be applicable only in cases of retirement on or after 01.04.2016, as the case may be. The existing commutation factor and the period of restoration shall continue. Commuted portion shall be recovered in the next month of payment of commuted value.” 3. Petitioners are persons, who are thus, denied the benefit of commutation of pension at the revised rates of pension for the reason that they W.P.(C).No.4315 of 2017 3 retired from service between 01.07.2013 and 01.04.2016, as the benefit of commutation of pension is made admissible on the revised pay only for those who retired after 01.04.2016. Petitioners submit that the cut off date fixed for enjoying the benefit of commutation of pension is unconstitutional and arbitrary and contrary to the dictum laid down by the Supreme Court in **D.S.Nakara v. Union of India** [AIR 1983 SC 130]. It is pointed out that there is hostile discrimination in denying the benefits to the petitioners only for the reason that they retired between 01.07.2013 and 01.04.2016, when the pay and pension are revised with effect from 01.07.2013. 4. The respondents have filed a counter affidavit, stating that the Full Time Directors of the Board took the decision regarding commutation of pension, considering the financial stringencies being faced by the Board, accepting the modality adopted by the Government in sanctioning the W.P.(C).No.4315 of 2017 4 benefits. It is stated that financial position of the Board is very poor and in case the commutation facilities are extended to all the pensioners who retired since 31.03.2014, crores of Rupees would be required to pay the advance commutation of amount. It is stated that petitioners would be entitled to get more pension on account of the revision of pension every month; the benefit of revision is not denied to persons like petitioners; only the benefit of commutation is denied. It is stated that fixing a cut off date cannot be said to be a measure of discrimination. It is further stated that the Board had fixed a similar cut off date in the previous occasion when the revision of pension was ordered as per order dated 11.11.2008. A batch of writ petitions were filed challenging a similar provision restricting the commutation of pension on the basis of date of retirement. By the judgment reported in **Kerala State Electricity Board v. Reghukumar** [2012 (1) KLT 199] in W. A. No.1702 of 2010 and connected W.P.(C).No.4315 of 2017 5 cases filed by the Board, the Division Bench of this Court held that the cut off date was not arbitrary or discriminatory, keeping in view of economic conditions, financial constraints and other administrative and attending circumstances involved. It is therefore pointed out that the very same method is adopted in the present revision of pension also. 5. The learned Senior Counsel appearing for the petitioners relied on the judgments of the Apex Court in **State of Rajasthan and others v. Mahendra Nath Sharma** [2015 (9) SCC 540], the judgment of this Court in OP(CAT).No.28 of 2016, judgment in **Chellappan Pillai M.N. and Another v. State of Kerala and Others** [2017 (1) KHC 249] and argued that the Division Bench judgment of this Court cannot have any binding force in the light of the subsequent Supreme Court judgment in **Mahendra Nath Sharma** 's case (supra). 6. I have considered the contentions raised W.P.(C).No.4315 of 2017 6 on either side. In **Mahendra Nath Sharma** 's case (supra), the Apex Court was considering a case where the Lecturers who were granted Selection Scale prior to 01.01.2006, were denied pension equal to 50% of minimum pay of the post when the State Government attempted to justify the cut off date on the ground of the financial burden involved. Relying on the judgment in **Nakara** 's case (supra), the Apex Court held that the denial of revision of pension on the ground of cut off date was unconstitutional and that as pension is the property of the pensioners as was held in a series of judgments, even though the judgment in **Nakara** 's case (supra) has been explained as having been diluted on certain other aspects, paragraphs 18 to 20 of that judgment still held the field. In those paragraphs, the Apex Court referred to various judgments wherein it was held that the grant of pension does not depend upon anyone's discretion and it is not a bounty to be disbursed at the will of the employer. The contention regarding W.P.(C).No.4315 of 2017 7 financial burden was repelled observing that there were only 200 to 250 retired Lecturers in the selection Scale. The judgment in **Chellappan Pillai M.N. and Another v. State of Kerala and Others** [2017 (1) KHC 249] is a case where pension itself was denied to those who retired from Co-operative Societies between 04.06.1993 and 31.03.1998, insisting a minimum qualifying service, when all others who retired from service before 04.06.1993 and after 31.03.1998 were made eligible for pension without insisting any minimum qualifying service. Therefore, it was held that the denial of pension to them was arbitrary. The judgment in OP(CAT).No.28 of 2016 was in respect of denial of pension to those who retired prior to 2006, at the same rates as in the case of those who retired subsequent to that. 7. In this case what is restricted is the commutation of pension. The benefit of pension is not denied to persons like petitioners. The petitioners are persons, who have already enjoyed W.P.(C).No.4315 of 2017 8 the benefit of commutation based on pre-revised pension, as soon as they retired from service. When revision is ordered as per Ext.P2, their pension has undergone revision and they are getting pension at revised rates every month. Even though, they do not get a lump sum payment in advance, they are getting revised monthly pension without any reduction towards commutation. Therefore, except for the advance payment, there is no denial of the benefit. The respondents have stated that there are innumerable persons who have to be paid the benefit. In the judgment referred to by the learned Senior Counsel, it is specifically noted that there were only 200 to 250 Senior Scale Lectures, who are the beneficiaries of the judgment. 8. The learned Standing Counsel pointed out that the revision was ordered after a consensus was arrived at with the Officers Associations and a Circular was issued on 23.03.2016 providing for the revision. Even though, there is no bar in W.P.(C).No.4315 of 2017 9 challenging the provisions in the pension revision order, even if, the Officers Associations did not have any objection in restriction of pension on the cut off date, there is nothing wrong in fixing a cut off date, on the basis of financial burden. As the Division Bench has in **Kerala State Electricity Board v. Reghukumar** [2012 (1) KLT 199] upheld similar provision in the previous pay revision and held that such restrictions can be imposed, keeping in view of the economic conditions and financial constraints, I am bound to follow the said judgment. Accordingly, the writ petition is dismissed. Sd/- **P.V.ASHA, JUDGE.** AS