Kerala State Electricity Board Ltd. v. K. Subramanian (WA No. 207 of 2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **WA.No.207 OF 2021** **AGAINST THE JUDGMENT IN WP(C).NO.34390/2011(W) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** |**1**|**KERALA STATE ELECTRICITY BOARD LTD.,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**VYDYUTHI BHAVANAM, PATTOM,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE CHIEF ENGINEER,**| ||**KERALA STATE ELECTRICITY BOARD LTD,**| ||**VYDYUTHI BHAVANAM, THIRUVANANTHAPURAM-695001.**| |**3**|**THE ASST.EXECUTIVE ENGINEER,**| ||**KERALA STATE ELECTRICITY BOARD LTD,**| ||**ELECTRICAL MAJOR SECTION, PATTAMBI,**| ||**PALAKKAD DISTRICT,PIN-679303.**| ||**BY ADV. SRI.ASOK M.CHERIAN**| ## **RESPONDENT/PETITIONER:** **K.SUBRAMANIAN, AGED 70 YEARS, S/O.K.GOVINDAN NAIR,RESIDING AT KAVULLI HOUSE,P.O.MARUTHOOR,(VIA) MELA PATTAMBI, PALAKKAD DISTRICT.** ## **BY ADV. SRI.SANTHEEP ANKARATH(B/O)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS & K.BABU, JJ. ------------------------------------------------------------------------- ## W.A. No. 207 of 2021 _[arising out of the impugned judgment dated 20.8.2020 in W.P.(C) No. 34390 of 2011]_ ------------------------------------------------------------------------Dated this the 24[th] day of March, 2021 ## J U D G M E N T ## ALEXANDER THOMAS, J. The Kerala State Electricity Board, its Chief Engineer and its Assistant Executive Engineer, who were arrayed as respondents in the instant WP(C) No.34390/2011 filed by the sole respondent herein, have filed the instant intra court appeal under Section 5 of the Kerala High Court Act so as to impugn the judgment dated 20.8.2020 rendered by the learned Single Judge allowing the main pleas in WP(C) No.34390/2011 filed by R-1 herein. 2. Heard Sri.Asok M.Cherian, learned Standing Counsel for the Kerala State Electricity Board (KSEB) appearing for the appellants herein/respondents in the WP(C) and Sri.Sandeep Ankarath, learned counsel appearing for the sole respondent herein/sole petitioner in the WP(C). 3. The respondent herein (writ petitioner) had filed the above WP(C) No.34390/2011 with the following prayers: _{See page 23 of the paper book of this Writ Appeal}_ W.A. No. 207/2021 ..3.. - _“ i. Call for the records leading to Exhibit P7 order and quash Exhibit P7 by the issue of a writ of certiorari or other appropriate writ, order or direction;_ - _ii. Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 and 2 to reckon the service of the petitioner in Panchayat Common Service from 1.12.1980 till 10.6.1982 as qualifying service for grant of higher grade and for computing his terminal benefits and disburse the difference in amount to the petitioner within such short time as this Hon'ble Court deems fit to grant;_ - _iii. Issue such other orders as are deemed fit and proper in the circumstances of the case.”_ 4. The case set up in the above WP(C) is to the effect that the respondent herein (writ petitioner) had earlier served the Panchayat Common Service for the period from 1.12.1980 to 11.6.1982 on regular appointment by the Kerala Public Service Commission (PSC). Later, he was regularly appointed and joined duty in the KSEB on 11.6.1982. The writ petitioner had retired from service in KSEB on 29.2.2000 holding the post of Office Attendant Grade II. The main complaint of the writ petitioner is regarding the refusal on the part of the respondents in the WP(C) to reckon the previous service rendered by him in the Panchayat Common Service towards the qualified service rendered by him for the purpose of qualified pensionable service for computing pension after retirement from the KSEB. W.A. No. 207/2021 ..4.. 5. The writ petitioner would point out that the KSEB had issued Board Order B.O.95/2000/Estt.IV/5596/99 which provided for service benefits reckoning previous service rendered by an employee along with service in the KSEB. That, thereupon the writ petitioner had filed Ext.P-1 representation dated 28.6.1999 before the competent authority of the Board to reckon the previous service rendered by him in the Panchayat Common Service towards the qualified service rendered by him for the purpose of qualified pensionable service for computing pension after retirement from the KSEB. The Accounts Officer of the Board as per Ext.P-2 letter dated 29.9.2000 had informed that the matter is for consideration and that further aspects of the matter would be intimated to him as and when the decision is taken. The writ petitioner had also submitted Ext.P-3 representation dated 3.4.2000 and Ext.P-5 representation dated 15.7.2002 before the 3[rd] respondent and the 2[nd] respondent in the WP(C) respectively. Later, this Court as per Ext.P-6 judgment rendered on 14.1.2010 in WP(C) No.1237/2010 filed by the writ petitioner herein had directed the respondent Chief Engineer to consider his W.A. No. 207/2021 ..5.. representation. Thereupon, the impugned Ext.P-7 rejection order dated 22.5.2010 was issued by the 2[nd] respondent in the WP(C) ordering that the prior service of the Board employees is reckoned as per the Board Orders existed at the time of their application. But at the time of his representations, no rule in KSR or Board Orders had been framed in respect of employees serving in Panchayath/Municipal Common Service and therefore his request cannot be considered etc. 6. In the instant WP(C) the petitioner challenged Ext.P-7 rejection order stating that in the light of the Board Order made as per B.O. No. 95/2000/Estt IV/5596/99 his prior service in the Panchayat Common Service is liable to be reckoned for the purpose of computing his pensionable service in the KSEB. It was also argued by the petitioner that he was granted increments by reckoning Panchayat Common Service, etc. 7. The respondents in the WP(C) had resisted the pleas of the writ petitioner by filing their counter affidavit mainly pleading that reckoning of prior service of employees under the Panchayat Common Service/Municipal Common Service was prior to W.A. No. 207/2021 ..6.. the rendering of Government Circular which was issued only on 2.2.2001 as per Ext.R-2(b) order dated 2.2.2001 and that the Board Order dated 12.1.2000 does not prefer the service rendered in the Panchayat Common Service/Municipal Common Service, though it provides for reckoning of the Central Government/ State Government/Autonomous Bodies/Quasi Governmental Organizations etc while their appointment in the KSEB. Hence, it has been urged by the respondents in the WP(C) that the writ petitioner cannot be granted any benefit based on the orders issued subsequent to his retirement. 8. The learned Single Judge has allowed the main pleas of the writ petitioner by placing reliance on the judgment of the Division Bench of this Court in the case in _**K.N.Dasan v. The State of Kerala [2014 (4) KHC 747 (DB)]**_ which dealt with a case of a person who joined Govt. Service after rendering service in the Municipal Common Service. Taking note of the amendments made to Rule 20 of Part III KSR the Division Bench in _**K.N.Dasan's** case supra_ ordered that the prior service under the Municipal Common Service should also be treated as pensionable W.A. No. 207/2021 ..7.. service for the purpose of reckoning the pension claims of the employee, and the contra stand taken in the rejection order is illegal, etc. It is this judgment rendered by the learned Single Judge on 20.8.2020 in the instant WP(C), that is under challenge in this Writ Appeal. 9. We have heard both sides and gone through the pleadings and materials on record. 10. Sri.Asok M.Cherian, learned Standing Counsel for the Kerala State Electricity Board (KSEB) appearing for the appellants herein has urged the following aspects: Firstly, that exercising the power of Rule 11 of Part III KSR, the State Government has ordered Ext.R-2(b) order only on 2.2.2001 to the effect that service if put in by any government employees in Municipal Common Service/Panchayat/ prior to their rendering of State Government service, including increments can be reckoned for pensionable benefits. That, in the said order it was specifically stated that the benefits therein would be applicable to the retirement that has taken place after the issuance of said order. In the instant case the W.A. No. 207/2021 ..8.. writ petitioner has retired from service on 29.2.2000, which is before the said cut-off date (2.2.2001). Secondly it is contended by the learned Standing Counsel for the KSEB that Ext.R-2(b) G.O. dated 2.2.2001 was in fact adopted by appellant KSEB authorities by Ext.R-2(c) order only on 6.1.2003 and therefore the benefit thereof can be given in terms of Ext.R-2(c) only for retirements which have taken place in the Board on or after 6.1.2003 and not before that. 11. Further, it is pointed out that Rule 20 of Part III KSR was amended by G.O. dated 21.6.2008 incorporating a proviso thereto to the effect that past service put in by government employees as aided school/college teachers, as well as in Panchayat/Municipal Common Service and Universities prior to entry in government service in aided school/college service shall be reckoned as qualifying service for service for pension-cum-DCRG from government, etc. That, KSR is mutatis mutandis applicable to the employees of the Board as regards their service conditions with or without amendments made thereunder from time to time. Further, it is also contended that the decision of the Division Bench W.A. No. 207/2021 ..9.. of this Court in _**K.N.Dasan’s case supra [2014 (4) KHC 747 (DB)]**_ after relying on the decision of the Apex Court _**D.S.Nakara v. Union of India [(1983) 1 SCC 305]**_ has struck down the restriction in Ext.R-2(b) that the benefit therein would only be applicable to those who retired after the date of the order. The learned Standing Counsel for the respondent KSEB would urge that the directions issued by the learned Single Judge in the impugned judgment in favour of the applicant and the dictum laid down by this Court in _**K.N.Dasan’s case supra**_ , are not on the basis of correct legal position, etc. 12. In that regard, the appellants would place reliance on the decisions of the Apex Court as in _**Commander Head Quarter v. Capt. Biplabendra Chanda [(1997) 1 SCC 208], State of West Bengal v. Ratan Bihari Dey [(1992) 4 SCC 62] and State of Punjab v. Amar Nath Goyal, [(2005) 6 SCC 754]** ._ 13. Our attention to the factual details in the aforecited judgments has also been invited by the learned Standing Counsel W.A. No. 207/2021 ..10.. for the appellant KSEB. In _**Commander Head Quarter v. Capt. Biplabendra Chanda [(1997) 1 SCC 208]**_ **,** the respondent was a commissioned officer. He retired on 18.5.1982. According to the Rules then in force, only 2/3[rd] of the pre-commissioned service was allowed to be counted towards qualifying service for earning pensionary benefits. On the basis of the said Rule, the respondent was found ineligible for grant of pension and accordingly no pension was granted to him. About 4 years later, the rules regulating to qualifying service were changed with effect from 1.1.1986. These rules permitted full precommissioned service to be counted towards qualifying service. In the civil appeal filed by the department, the Apex Court has held therein in para 4 thereof as follows: _“The new and revised Rules (it is not necessary for the purpose of this case to go into the question whether the Rules that came into force with effect from 1.1.1986 were new rules or merely revised or liberalised Rules) which came into force with effect from 1.1.1986 were not given retrospective effect. The Respondent cannot be retrospectively eligible for pension by virtue of these Rules in such a case. This is not a case where discrimination is being made among pensioners who were similarly situated.”_ 14. Reliance is also placed on the decision of the Apex Court in the case in _**State of West Bengal v. Ratan Bihari Dey [(1992) 4 SCC 62]**_ wherein para 5 thereof reads as follows: W.A. No. 207/2021 ..11.. _“....it is open to the State or to the Corporation as the case may be, to change the condition of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, ie, without bringing about a discrimination between similarly situated persons, no interference is called for by the Court in that behalf._ _** ** ** ** ** ** ** ** **_ _….the power of the state to specify a date with effect from which the Regulations framed, or amended as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the prescription of the date in this case is neither arbitrary or unreasonable, the complaint of discrimination must fail. ”_ 15. In para 10 of _**Ratan Bihari Dey**_ **’s** case supra **[(1992) 4 SCC 62]** , the Apex Court after placing reliance on the previous decision in _**Krishna Kumar v. Union of India [(1990) 4 SCC 207]**_ has observed as follows: _“....Nakara was a case where an artificial date was specified classifying the retirees, governed by the same Rules and similarly situated, into two different classes, depriving one such class of the benefit of liberalised Pension Rules. It is found in that case that the specification of the date from which the liberalised Rules were t come into force was arbitrary. Whereas in this case the employees retiring prior to April 1, 1977 and those retiring thereafter were governed by different sets of rules.”_ 16. Further, it is urged by the appellants that financial constraints is a valid ground for fixation of cut-off dates in the W.A. No. 207/2021 ..12.. cases of the present nature. Our attention is also drawn by the appellants to the decision of the Apex Court in _**State of Punjab**_ _**v. Amar Nath Goyal [(2005) 6 SCC 754],**_ paras 23, 24, 25, 26 & 29 thereof read as follows: _“23. The learned counsel for the Union of India and the State Governments contended that, though it is a fact that certain percentage of dearness allowance was to be merged with the basic pay with effect from 1.7.1993 (linked to the All-India Consumer Price level 1201.66) and that the said dearness allowance admissible to the employees on 1.7.1993 was to be treated as dearness pay for reckoning emoluments for the purpose of death gratuity and retirement gratuity, financial constraints impelled the Governments, both at the Centre and the State, to restrict such payments only to the employees who had died or retired on or after 1.4.1995._ _24. The learned counsel for the Union of India made available the Government's file from which it is seen that the Government took a conscious decision that the benefit of the increase in the quantum of gratuity, pursuant to the merged portion of the dearness allowance and the revised ceiling shall be made available from 1.4.1995, which was the date recommended in the Interim Report of the Fifth Central Pay Commission. The Government noticed that the consequential financial burden would be very heavy. Hence, the Central Government decided that these benefits would be made available only from 1.4.1995. The State Governments followed suit._ _25. The only question, which is relevant and needs consideration, is whether the decision of the Central and State Governments to restrict the revision of the quantum of gratuity as well as the increased ceiling of gratuity consequent upon merger of a portion of dearness allowance into dearness pay reckonable for the purpose of calculating gratuity, was irrational or arbitrary._ _26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/ State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level._ W.A. No. 207/2021 ..13.. |_27._|_xxxx_|_xxxx_|_xxxx_| |---|---|---|---| |_28._|_xxxx_|_xxxx_|_xxxx_| _29. D.S. Nakara (supra), which is the mainstay of the case of the employees, arose under special circumstances, quite different from the present case. It was a case of revision of pensionary benefits and classifications of pensioners into two groups by drawing a cut-off line and granting the revised pensionary benefits to employees retiring on or after the cut-off date. The criterion made applicable was "being in service and retiring subsequent to the specified date". This Court held that for being eligible for liberalised pension scheme, application of such a criterion is violative of Article 14 of the Constitution, as it was both arbitrary and discriminatory in nature. The reason given by the Court was that the employees who retired prior to a specified date, and those who retired thereafter formed one class of pensioners. The attempt to classify them into separate classes/ groups for the purpose of pensionary benefits was not founded on any intelligible differentia, which had a rational nexus with the object sought to be achieved. However, it must be noted that even in cases of pension, subsequent judgments of this Court have considerably watered down the rigid view taken in D.S. Nakara (supra) as we shall see later in T. N. Electricity Board v. R. Veerasamy and Ors. ("Veerasamy"). In any event, this is not a case of a continuing benefit like pension; it is a one-time benefit like gratuity.”_ 17. The appellants have also placed reliance on the judgment of Apex Court in _**T.N.Electricity Board. V. R.Veerasamy [(1999) 3 SCC 414].**_ 18. Whereas, the respondent herein would place reliance on the judgment of the Division Bench of this Court in the case in _**K.N.Dasan’s case supra [2014 (4) KHC 747 (DB)]**_ as well as the judgments of the Apex Court relied on therein. 19. After hearing both sides and after giving our anxious W.A. No. 207/2021 ..14.. consideration, it is seen that the restrictions in the very same Government Order have already been struck down by the Division Bench of this Court in _**K.N.Dasan’s case supra [2014 (4) KHC 747 (DB)]**_ as unconstitutional and unenforceable, as it amount to hostile discrimination based on the legal principles laid down by the Apex Court in the decisions as in _**D.S.Nakara v. Union of India [(1983) 1 SCC 305]**_ etc. It will be profitable to refer to paras 13, 18, 19 & 20 thereof, which read as follows: _“13. The other facet of Art. 14 which must be remembered is that it eschews arbitrariness in any form Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi's case in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identified with the doctrine of classification because the view taken was that Art. 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in EP. Royappa v. State of Tamil Nadu, it was held that the basic principle which informs both Arts. 14 and 16 is equality and inhibition against discrimination. This Court further observed as under:_ _"From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.”_ _14. xxxx xxxx xxxx 15. xxxx xxxx xxxx_ W.A. No. 207/2021 ..15.. _16. xxxx xxxx xxxx 17. xxxx xxxx xxxx_ _18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised ? Is the employer, which expression will include even the State, bound to pay pension ? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service ?_ _19. What is a pension ? What are the goals of pension ? What public interest or purpose, if any, it seeks to serve ? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date ? We need seek answer to these and incidental questions so as to render just justice between parties to this petition._ _20. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar & Ors. wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab & Anr. v. Iqbal Singh.”_ 20. In para 22(3), the Division Bench has held in **K.N.Dasan’s case supra [2014 (4) KHC 747 (DB)]** as follows: _“The sentence that reads “The benefit of this order will be applicable to the retirements after the date of this order and the_ W.A. No. 207/2021 ..16.. _pension cases already settled or pending settlement on administrative reasons will not be considered on any account” occurring in the last paragraph of the G.O. (P) No.228/2001/Fin. dated 02-02-2001 and the sentence that reads “This shall apply to all cases in which retirement takes place on or after 2nd day of February, 2001” occurring in the amendment to R.20 brought out by G.O.(P) No.269/2008/Fin. dated 21-06-2008 are struck down as unconstitutional ”_ 21. A reading of the abovesaid judgment of the Division Bench of this Court in _**K.N.Dasan’s case supra [2014 (4) KHC 747 (DB)]**_ would indicate that various subtle and nuanced aspects flowing out from the very same Order and the restrictions imposed therein for denying pension based on the cut off date have been considered therein by the Division Bench of this Court, and it has been held that the denial of pension on the basis of cut off date would amount to hostile discrimination and is unconstitutional, etc. In para 22(3), the Division Bench has also held in **K.N.Dasan’s case supra** that the relevant restriction in the very same Government Order to the effect that _“the benefit of this order will be applicable to the retirements after the date of this order and the pension cases already settled or pending settlement on administrative reasons will not be considered on any account”_ occurring in the last para of G.O.(P) No. 228/2001/Fin dated 2.2.2001 and the sentence that reads _“this shall apply to all cases in which retirement takes place on or after 2[nd] day_ W.A. No. 207/2021 ..17.. _of February, 2001”_ occurring in the amendment to Rule 20 brought out by G.O.(P) No. 269/2008/Fin dated 21.6.2008 are struck down as unconstitutional. 22. Further, it has also been declared in para 22 that the petitioner therein is entitled to count his past service in the Municipal Common Services as qualifying service along with the services rendered by him under the State Government for computing his pensionary benefits. A reading of the abovesaid decision of the Division Bench of this Court in **K.N.Dasan’s case supra** would indicate that the impugned Government Order G.O.(P) No. 228/2001/Fin dated 2.2.2001 has been struck down as unconstitutional. It is on the basis of Ext.R-2(b) that the Board has issued the consequential order at Ext.R-2(c) etc and it is placing reliance on the restrictions on the amended Rule 20 that the plea for reckoning past service in the Panchayat Common Service is seen to be denied. It is the very same restriction in Rule 20 that has already been struck down in para 22(3) by the Division Bench in **K.N.Dasan’s case supra.** We are apprised that the State authorities have complied with the directions of the Division Bench W.A. No. 207/2021 ..18.. in **K.N.Dasan’s case supra** and that the State has followed the dictum in very many cases as well. 23. So, it appears that the State authorities and the Board authorities have consistently been acting in accordance with the dictum laid down by the Division Bench of this Court in **K.N.Dasan’s case supra** . Since, the decision of the Division Bench in **K.N.Dasan’s case supra** is after considering the very same restrictions and the very same Government Order and Rule 20, we are of the view that the writ petitioner is entitled to succeed in this case. We are of the view that the learned Single Judge has not committed any illegality and impropriety in placing reliance on the ratio of the Division Bench judgment, for giving relief to the writ petitioner herein. The judgment of the learned Single Judge in the instant case does not warrant any interdiction. However, we note that the judgment of the learned Single Judge in this case has been rendered as early as on 20.8.2020. The present Writ Appeal has been filed by the Board on 22.1.2021. Hence, it is ordered that the appellants may comply with the directions and orders passed by the learned Single Judge in the instant WP(C) without much W.A. No. 207/2021 ..19.. delay, preferably within 2 months from the date of receipt of a certified copy of this judgment. The directions and orders of the learned Single Judge in the instant WP(C) will stand modified to the limited extend as above. With these observations and directions, the above Writ Appeal will stand dismissed. **==> picture [27 x 14] intentionally omitted <==** ALEXANDER THOMAS, JUDGE **==> picture [27 x 13] intentionally omitted <==** K.BABU, JUDGE MMG