## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943**
**WP(C) NO. 3126 OF 2021**
## **PETITIONERS:**
1 K.K.USHA AGED 69 YEARS W/O.PEETHAMBARAN K.N., AISWARYA, GREEN PARK COLONY, THODUPUZHA, IDUKKI-685584. 2 V.M.THOMAS, AGED 69 YEARS S/O.MATHEW, VELLIMMOZHAYIL, KARIMKUNNAM, OTTALLOOR, IDUKKI DISTRICT-688586. 3 N.K.DIVAKARAN PILLAI, AGED 69 YEARS S/O.KRISHNA PILLAI, NELLANICKAL HOUSE, KAPPU, MADAKKATHANAM P.O., MUVATTUPUZHA-686670. BY ADVS. GEORGE MATHEW SHRI.PRAVEEN S. SMT.ELSA DENNY PINDIS SRI.M.D.SASIKUMARAN SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SHRI.MATHEW K.T. SHRI.GEORGE K.V.
## **RESPONDENTS:**
1 STATE OF KERALA REP. BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCADU, THIRUVANANTHAPURAM-695014. 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, PAINAVU, IDUKKI DISTRICT-685603.
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4 THE THODUPUZHA URBAN CO-OPERATIVE BANK LTD., NO.394, REP. BY ITS GENERAL MANAGER, THODUPUZHA-685584. 5 THE GENERAL MANAGER, THE THODUPUZHA URBAN CO-OPERATIVE BANK LTD., NO.394, THODUPUZHA-685584. 6 THE KERALA CO-OPERATIVE EMPLOYEES PENSION BOARD, REP. BY ITS SECRETARY, ADDITIONAL REGISTRAR OF COOPERATIVE SOCIETIES, CHINMAYA HOUSE, THIRUVANANTHAPURAM-695001. BY ADVS. GOVERNMENT PLEADER SRI.ATHUL SHAJI SRI.M.SASINDRAN
## **OTHER PRESENT:**
SR.GP BIMAL K NATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 6.08.2021, THE COURT ON 27/9/2021 DELIVERED THE FOLLOWING:
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## **JUDGMENT**
Writ petitioners were the employees of the 4[th] respondent Co-operative society. The first petitioner joined the service of the 4th respondent on 13/8/1979 as a probationary junior clerk and retired on 30/4/2009, while serving as a branch manager at the branch of the 4[th] respondent. She thereby claims to have put in total service of 29 years 9 months and 17 days with the 4[th] respondent. The second petitioner joined the service of the 4[th] respondent on 13/8/1979 as probationary junior clerk and retired on 31/8/2009, while working as the Deputy General Manager. He claims to have a total service of 30 years and 18 days. 3[rd] petitioner joined the service on 13/8/1979, as probationary junior clerk and retired on 31/8/2009 as Branch Manager at the Head office. He claims to have put in 30 years and 18 days service. According to the petitioners, considering their period of employment, they are entitled to full pension as per the scheme with its modification declared by the first respondent.
2. Immediately after their retirement, they submitted applications for full pension with the 6[th] respondent. Grievance of the first petitioner is that 6[th] respondent considered only 344 months as eligible service instead of 360 months for calculating pension and sanctioned lesser amount than the eligible pension. Pension payment order is Ext.P4. According to the second petitioner, the 6[th] respondent considered only 348 months as eligible service, instead of 360 months and thus sanctioned a lesser amount evidenced by Ext.P5 pension payment order. Grievance of the 3[rd] petitioner is that the 6[th]
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respondent considered only 342 months as consolidated eligible service instead of 360 months, for calculating the pension and thus sanctioned lesser amount than the eligible amount as evidenced by Ext.P6 pension payment order. Pursuant to Exts.P7, P8 and P9 representations requesting for full pension, the managing committee of the 4[th] respondent in its meeting held on 9/6/2020 resolved to request the 6[th] respondent for enhanced pension in the light of G.O. (Rt.) No.416.2017/Co-op, dated 4/8/2017 and resolved to remit an amount of Rs.17942/- in each pension account to make them eligible to draw enhanced pension under the scheme, taking into consideration of their entire claim. Total sum of Rs.53,826/- remitted with the 6[th] respondent was accepted. However, by Ext.P11 reply, Exts.P7 P8 and P9 were rejected on the ground that the petitioners had only consolidated pay during the period from 1/8/1979 to 13/8/1980. They were allotted pay scale only on 14/8/1980 and accordingly they were granted pension reckoning their service with effect from 14/8/1980 .
3. Assailing this, petitioners have approached this court contending that their probation period is liable to be reckoned for the purpose of fixing the qualifying service. Learned counsel for the petitioners relied on the decision of the Division Bench in **Purushothaman K. and Another v. Kerala State Coop.Employees and Another (2011 (4) KHC) 213),** to contend that the employees of the Co-operative Society Act, who were on probation at the time of introduction of pension scheme, were eligible to consider the period of probation as qualifying service of pension. It was contended that accordingly, petitioners were entitled for the benefit of contributory scheme.
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4. Pension scheme was introduced by enabling provision under section 80A of the Kerala Co-operative Societies Act, which was introduced by Act 16/93, dated 20/8/1993. Pension scheme known as Kerala Co-operative Pension Scheme, 1994 came into force by SRO 323/95 dated 14/3/1995. Learned counsel for the petitioners relied on the notification No. GO (Rt.)416/2017/Co-op. Dated 4/8/2017. Amendment was proposed to various provisions of the pension scheme including clause 19 (1) A. Modification/amendment in relation to it was that the period of probation will be qualifying period for calculating qualifying service, while calculating pension. Qualifying service is referred to in clause 19 (1) A which provides that in the case of an employee who was in service of a society on the date of application of the scheme to that society, the length of service commencing from the date of joining the contributory scheme shall be the qualifying service. The 3[rd] proviso to it provides that an employee, who was on probation and on whose behalf the contribution of the employer towards the pension scheme was remitted at the time of implementation of the scheme, such period probation shall also be qualifyied for pension contribution together with interest thereon. Learned counsel for the petitioners relied on the notification referred earlier and the definition of qualifying service and contended that qualifying service of the petitioners shall include their probation period also. Learned counsel further relied on the G.O. NO.271/2001 dated 14/2/2001, which referred to the definition of pay, as to include any other amount ordered to be treated as pay, for the purpose of pension under the scheme. Relying on these provisions, it
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was contended by the learned counsel for the petitioners that the petitioners are entitled to count full qualifying period of service, for reckoning their pension.
5. In the detailed statement filed by the 6[th] respondent, it was contended that the petitioners retired from the Co-operative Bank in the year 2009 and are drawing pension from the self financing pension scheme, which is a contributory pension scheme. It was stated that the scheme which is G.O.(Rt.) No. 416/2017 Co-op. Dated 4/8/2017, refers to only a modification in the pension scheme or only a proposal for amendment. It was also mentioned that during the period around 1979 to 1980, all the petitioners were working on consolidated pay and the pay scale was sanctioned to them only much later. It was also stated that since the petitioners were on consolidated pay during the above period, the pay scale was not sanctioned to them immediately. According to 6[th] respondent,, if any excess amount has been remitted as pension, it can be returned to the depositors.
6. The crux of the contention of the learned counsel for the 6[th] respondent was that G.O.(Rt.) No.416/2017/Co-op. was only a proposal which has not came into effect. To substantiate it, learned counsel for the 6[th] respondent took me to the various provisions of the statute. It was stated that the relevant portion is section 19 (1) (A) where as G.O.(Rt.) No.416/2017/Co-op. refers only modifications or suggestions. Learned counsel emphasized on the last paragraph, which stated that necessary amendment in the Act/Rules will be issued separately. It was also stated that Registrar of Co-operative Society will submit a proposal for amendment in consultation with various parties. This
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clearly shows that G,O,(Rt).No.416/2017/Co-op has not come into force and has not attained sanctity of law. Hence, the petitioners are not entitled for any relief. The writ petition fails and is accordingly dismissed. The excess amount, if any, received by the 6[th] respondent shall be returned to the petitioners on application.
Sd/-
**SUNIL THOMAS Judge**
dpk
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## **APPENDIX OF WP(C) 3126/2021**
PETITIONER EXHIBITS
- EXHIBIT P1 TRUE COPY OF RELEVANT PAGES OF SERVICE BOOK OF 1ST PETITIONER WITH LAST ENTRY ON 30.04.2009.
- EXHIBIT P2 TRUE COPY OF RELEVANT PAGES OF SERVICE BOOK OF 2ND PETITIONER WITH LAST ENTRY ON 31.08.2009.
- EXHIBIT P3 TRUE COPY OF RELEVANT PAGES OF SERVICE BOOK OF 3RD PETITIONER WITH LAST ENTRY ON 30.06.2009.
- EXHIBIT P4 TRUE COPY OF PENSION PAYMENT ORDER NO.212/IDY DATED 22.12.2009 OF 1ST PETITIONER.
- EXHIBIT P5 TRUE COPY OF PENSION PAYMENT ORDER NO.213/IDY DATED 22.12.2009 OF 2ND PETITIONER.
- EXHIBIT P6 TRUE COPY OF PENSION PAYMENT ORDER NO.205/IDY DATED 31.10.2009 OF 3RD PETITIONER.
- EXHIBIT P7 TRUE COPY OF APPLICATION DATED 19.09.2019 SUBMITTED BY 1ST PETITIONER TO 4TH RESPONDENT.
- EXHIBIT P8 TRUE COPY OF APPLICATION DATED 19.09.2019 SUBMITTED BY 2ND PETITIONERS TO 4TH RESPONDENT.
- EXHIBIT P9 TRUE COPY OF APPLICATION DATED 19.09.2019 SUBMITTED BY 3RD PETITIONER TO 4TH RESPONDENT.
- EXHIBIT P10 TRUE COPY OF RESOLUTION NO.46 DATED 09.06.2020 OF MANAGING COMMITTEE OF 4TH RESPONDENT.
- EXHIBIT P11 TRUE LETTER NO.PB/R1/IDY DATED 01.12.2020 ISSUED BY 6TH RESPONDENT.
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EXHIBIT P12 TRUE COPY OF CALCULATION SHOWING MONTHLY HIKE IN PENSION AND ARREARS OF PENSION IN RESPECT OF 1ST PETITIONER.
EXHIBIT P13 TRUE COPY OF CALCULATION SHOWING MONTHLY HIKE IN PENSION AND ARREARS OF PENSION IN RESPECT OF 2ND PETITIONER.
EXHIBIT P14 TRUE COPY OF CALCULATION SHOWING MONTHLY HIKE IN PENSION AND ARREARS OF PENSION IN RESPECT OF 3RD PETITIONER.
