K.P. Balakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **WP(C).No.34785 OF 2016(W)** ## **PETITIONER/S:** **K.P.BALAKRISHNAN, AGED 82 YEARS, S/O. UNNIKUTTY K.P., RETIRED PROFESSOR, HOUSE NO 6/645A, 'HERMITAGE', NEAR C.H. FLY OVER EAST END, KOZHIKODE - 673 001.** **BY ADVS. SRI.NIRMAL. S SRI.D.V.NARAYANAN** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY OF GOVERNMENT,**| ||**HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.**| |**2**|**THE PRINCIPAL SECRETARY TO GOVERNMENT,**| ||**FINANCE DEPARTMENT, GOVERNMENT OF KERALA,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.**| |**3**|**THE PRINCIPAL ACCOUNT GENERAL (A&E),**| ||**OFFICE OF THE ACCOUNT GENERAL,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**4**|**THE DIRECTOR OF COLLEGIATE EDUCATION,**| ||**VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 001.**| ||**R1 TO R4 BY SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT**| ||**PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.34785 of 2016** **2** ## **JUDGMENT** This writ petition is filed by a Grade-I Professor who retired on 30.06.1989, seeking to quash that part of Ext.P7 order of the State Government, extending State Pension Revision only with effect from 01.07.2009 to the retired persons on the basis of G.O. (P)No.81/2007/Fin. dated 28.02.2007, and since the State pension revision was ordered with effect from 01.07.2009,the Government ordered the arrears consequent on revision of pension as per G.O. (P)No.211/2011/Fin. dated 07.05.2011 with effect from 01.07.2009 alone. Basic material facts for the disposal of the writ petition are as follows: 2. Petitioner retired from service as Professor Gr.I on 30.06.1989. According to the petitioner, he retired as UGC Associate Professor, and as per the latest Kerala Pension Payment Order(PPO)No.CNR 12851/KDE 14380 issued by the Accountant General (A&E), Kerala, on 15.12.2011, the basic pension of the petitioner was fixed at Rs.20,107/- p.m. with effect from 01.03.2010. The Government of Kerala had issued orders to implement the 6[th] UGC Scheme and therefore, the Government _vide_ G.O.(P)No.58/2010/H. Edn. dated 27.03.2010, revised the pay &allowances of teachers in Universities, affiliated ## **W.P.(C)No.34785 of 2016** ## **3** Colleges etc. under the UGC Scheme. The 6[th] UGC pay was revised in Kerala with effect from 01.01.2006 and the monetary benefit was given only with effect from 01.03.2010. It is provided in clause 1(f) of Ext.P1 Government Order dated 27.03.2010 that the arrears for the period from 1[st] January, 2006 to 28[th] February, 2010 shall be released subject to the Central Government agreeing to the grant of 80% as financial assistance. 3. The case of the petitioner is that, the pension was also revised in compliance with Clause No.11.8 of Ext.P1 Government Order. The Government of Kerala thereafter issued Ext.P2 order, revising the pension/family pension for those who come under the UGC/AICTE/Medical Education Scheme. It is stated in the said order that the pensionary benefits are also revised from 01.01.2006, and the date of effect of Ext.P2 Government Order is shown as with effect from 01.03.2010. According to the petitioner, there is no reason assigned for the decision of the Government to withhold the revised UGC pension disbursement for the period from 01.01.2006 to 28.02.2010. Thereupon, petitioner has submitted an application before the Pension disbursing authority for revising the pension. As a result, the pension of the petitioner was revised **4** ## **W.P.(C)No.34785 of 2016** as per Ext.P3 order dated 15.12.2011 on and with effect from 01.03.2010 at Rs.20,107/-. 4. It is also the case of the petitioner that, the Government of Kerala as per Ext.P4 order dated 22.02.2013 decided to disburse the arrears on 6[th] UGC pay revision in 4 instalments starting from 01.01.2006 and ending on 31.03.2010, and also accorded sanction to release the 1[st] instalment of arrears for the period from 01.01.2006 to 30.06.2007. But the State did not issue any orders regarding the disbursement of unpaid UGC revised pension also in convenient instalments as the Government has done in Ext.P4 regarding the 6[th] UGC pay revision. 5. It was thereupon, petitioner has sent a registered letter to the 1[st] respondent under the Right to Information Act, seeking clarification about the inordinate delay in sanctioning the 6[th] UGC pension arrears from 01.01.2006 onwards. Accordingly, petitioner has received Ext.P5 reply dated 26.10.2013, intimating that for the disbursement of arrears to pensioners, the Higher Education Department has already requested the Finance Department to issue another order in continuation of G.O.(P)No.211/2011/Fin. dated 07.05.2011. ## **W.P.(C)No.34785 of 2016** **5** 6. Yet another letter was also sent by the petitioner to the 1[st] respondent seeking further clarification, and it was informed by Ext.P6 communication dated 30.12.2013 that the issue is being considered. However, there was no progress in disbursing the arrears of pension. In the meanwhile, the Government of Kerala as per order dated 01.06.2015, decided to disburse the 2[nd] instalment of 6[th] UGC Pay Revision arrears for the period from 01.07.2007 to 30.06.2008, and the Government as per order dated 10.01.2014, accorded sanction to release the arrears consequent on revision of pension with effect from 01.07.2009, evident from Ext.P7. However, the Government limited the disbursement of arrears on revision of pension for the period from 01.07.2009 to 28.02.2010 alone. According to the petitioner, petitioner is entitled for arrears on revision of pension as per Para 1(g) of Ext.P2 Government Order with effect from 01.01.2006. Therefore, the contention advanced by the petitioner is that, Ext.P7 Government Order is issued without properly considering the fact that the implementation of the 6[th] UGC Pension revision was to take effect from 01.01.2006, that is to say, the pensioners are entitled for the pension revision for a **6** ## **W.P.(C)No.34785 of 2016** period of 50 months from 01.01.2006 to 28.02.2010. 7. It is also pointed out that, the Central Government's assurance of financial support of 80% of the additional expenditures from 01.01.2006 to 31.03.2010 was conveyed to the Government of Kerala through letters dated 14.08.2012 and 14.11.2012 by the Ministry of Human Resources Development, Government of India. Therefore, according to the petitioner, the Central Government has cleared its commitments and the Government of Kerala to go ahead without any snag or hurdles to fully implement the entire scheme in Kerala including disbursement of both 6[th] UGC Pay and pension arrears simultaneously for the entire unpaid period of 50 months from 01.01.2006 to 28.02.2010. It is also submitted that, the arrears on revision of pension for the period from 01.01.2006 to 30.06.2009 has been worked out by the petitioner at Rs.4,58,049/-. Since the arrears of pension is not paid, petitioner has submitted Ext.P9 representation, however, there was no reply, and consequent to which, petitioner has submitted Ext.P10 reminder also. In spite of the same, no action is initiated, which constrained the petitioner to file this writ petition. **7** ## **W.P.(C)No.34785 of 2016** 8. A detailed counter affidavit is filed by the 1[st] respondent, refuting the claims and demands raised by the petitioner. Among other contentions, it is stated that, the Government _vide_ Ext.P1 Government Order dated 27.03.2010 have decided to accept the revised UGC Scheme for revision of pay scales and revised the pay of teachers in Universities, Law Colleges, Engineering Colleges etc. As per paragraphs 11.8, 11.9 & 11.11 of Ext.P1 Government Order, it has been clearly ordered that pension, family pension, gratuity and encashment of leave will be as applicable to State Government Employees. As per Ext.P2 G.O. (P)No.211/2011/Fin. dated 07.05.2011, orders were issued for revision of pension to the incumbents coming under the UGC Scheme with effect from 01.01.2006 with monetary effect from 01.07.2009. The U.G.C Regulations as pronounced by the Commission does not mandate granting of pension. But, Government of Kerala having incorporated the condition of granting pension to UGC scheme pensioners as applicable to State Government Pensioners. 9. It is also submitted that, several cases requesting to grant pension arrears in respect of Ext.P2 Government Order were received. However, the **W.P.(C)No.34785 of 2016** **8** Government took the stand that pensionary benefits in respect of those who come under UGC/AICTE/MES shall be as applicable to State Government Employees. State Pension revision is being extended to pensioners covered under Central Schemes, in each time when pension in respect of State Pensioners is revised. Accordingly, the State pension revision with effect from 01.04.2005 has also been extended to those coming under UGC/AICTE/MES. 10. It is further submitted that, the University Grants Commission Guidelines do not envisage payment of pensionary benefits, and all the provisional revisions given to UGC pensioners consequent to State pay/pension revisions were made prior to the issuance of Ext.P2 Government Order. Such provisional revisions were given because, till then UGC category did not receive a revision of pension in accordance with the UGC pay scales. But as per Ext.P2 Government Order, the pension of the UGC category has been revised reckoning revised scale of pay together with Academic Grade Pay. Therefore, with the issuance of Ext.P2 Government Order, the UGC/AICTE/MES category pensioners have become a separate entity different from State Service Pensioners. **W.P.(C)No.34785 of 2016** **9** 11. That apart, it is pointed out that, the Government as per G.O.(P)No.16/2014 have made it clear that since State Pension revision with effect from 01.04.2005 had been extended to UGC Pensioners, _vide_ G.O.(P)No.81/2007/Fin. dated 28.02.2007, and since the State Pension Revision was ordered with effect from 01.07.2009, arrears consequent on the revision of pension _vide_ Ext.P2 Government Order will be paid with effect from 01.07.2009 only. But, as per the said Government Order, the pension of the UGC category has been revised reckoning revised scale of pay together with Academic Grade Pay. But the State Government have incorporated the condition of granting pension to UGC scheme pensioners as applicable to State Government Pensioners, which has led to an anomalous situation wherein the UGC pensioners have enjoyed State Pension revision as well as UGC pension revision. 12. Further, it is submitted that, while implementing the 6[th] UGC Scheme, the Government of India had committed that 80% of the additional amount required for the implementation of the scheme from 01.01.2006 to 31.03.2010 will be reimbursed by the Government of India, subject to the following conditions: **W.P.(C)No.34785 of 2016 10** (i) Financial Assistance from the Central Government shall be restricted to revision of pay scales in respect of those posts which were in existence and filled up as on 01.01.2006; and (ii) No allowances or pension would be admissible for reimbursement for the above period, which implies that the Financial Burden prior to those who retired prior to 01.01.2006 will have to be met from the own funds of the State Government. 13. That apart, the State Government have released a white paper on the State Finances which depicted the severe financial crunch faced by the exchequer. While sanctioning UGC pension arrears, it was clarified that the pension arrears were granted from 01.07.2009, the date on which the 9[th] pension revision was made effective. It is also submitted that, from 01.04.2010 onwards the full burden of implementation of even pay revision is on the shoulders of State Government, and the next UGC pay revision is on the verge. Therefore, it is contended that, petitioner is not entitled to secure any reliefs as are sought for in the writ petition. ## **W.P.(C)No.34785 of 2016** **11** 14. The 2[nd] respondent has also filed a counter affidavit almost in similar lines to that of the counter affidavit filed by the 1[st] respondent. 15. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition and also producing computation of 6[th] UGC Pension arrears, alleged to be entitled by the petitioner, for 42 months i.e., from 01.01.2006 to 30.06.2009. 16. I have heard learned counsel for the petitioner and the learned Senior Government Pleader, and perused the pleadings and the documents on record. 17. The main contention advanced by learned counsel for the petitioner is that, petitioner is entitled to get the arrears on revision of pension for the period from 01.01.2006 to 30.06.2009. However, the respondents have only ordered disbursement of pension for a period of 8 months from 01.07.2009 to 28.02.2010, leaving unpaid arrears for 42 months from 01.01.2006 onwards. So also, by Ext.P1 Government Order, the State Government have decided to implement the 6[th] UGC pay revision in the State, and it was also observed that the arrears for the period 01.01.2006 to 28.02.2010 shall be released subject to the grant of 80% financial assistance from the Central Government, **W.P.(C)No.34785 of 2016** **12** and the Central Government has extended the support of 80% of additional expenditure from 01.01.2006 to 28.02.2010, and the State Government have also decided to disburse the arrears on 6[th] UGC pay revision in 4 instalments for the entire period of 50 months from 01.01.2006 to 28.02.2010. But no orders are passed regarding the disbursement of arrears of pension in instalments. Therefore, according to learned counsel for the petitioner, unless and until a direction is issued by this Court, the payments will not be effected to the petitioner. 18. On the other hand, learned Senior Government Pleader has invited my attention to Ext.P1 Government Order dated 27.03.2010. In the said order, it is stated that, the Government of India in their letter dated 31.12.2008, informed that the Central Government have decided to continue to provide financial assistance to the State Governments which wish to adopt and implement the 6[th] UGC Scheme including the revision of pay scales to College/University teachers, Physical Education teachers and Librarians in the State subject to the terms and conditions. Relying upon the clauses contained thereunder, it is submitted that, the State Government have issued the said order only for revision **W.P.(C)No.34785 of 2016 13** of pay and it is never intended for revision of pension. It is also submitted that, petitioner has retired from service much before Ext.P1 Government Order, i.e., on 30.06.1989, and therefore, petitioner is not entitled to make any claim on the basis of Ext.P1 pay revision order. It is further submitted that, the pay revision as per Ext.P1 applies to the existing employees as ordered in Ext.P1. Therefore, petitioner being a retired person cannot seek any claim relying upon Ext.P1. 19. On evaluating the rival submissions, I am of the considered view that the crux of the case pointed out by the respective parties depends upon Ext.P1 Government Order dated 27.03.2010. On an analysis of the provisions thereunder, it is clear that the financial assistance from the Central Government to the State Governments opting to revise the pay scales of teachers covered under the Scheme shall be limited to the extent of 80% of the additional expenditure involved for the implementation of the revision. The stipulations are so clear that the Government have issued the order to revise the pay scales of teachers and it is important to note that the order is issued only to revise the pay scales of the teachers who are **W.P.(C)No.34785 of 2016** **14** in employment. 20. The other stipulations contained thereunder will clearly show that while accepting the Central Scheme, the State Government opting for revision of pay shall meet the remaining 20% of the additional expenditure from its own sources, and it was the said financial assistance that is provided for the period from 01.01.2006 to 31.03.2010 and that has nothing to do with the payment of pension by the State Government to an employee retired during the year 1989, i.e., 10 years prior to Ext.P1 Government Order. In that regard, learned counsel for the petitioner has invited my attention to the judgment of the apex court in ' _**U.P.**_ ## _**Raghavendra Acharya and Others v. State of Karnataka**_ _**and Others**_ ' [(2006) 9 SCC 630], which has dealt with revision of pension consequent to retrospective revision of pay, and though it has a _prima facie_ appearance of relevance to the facts of the case, actually it is not so. There, retrospective effect was given to revised scale of pay from 01.01.1996 to the teachers of University and Private Aided Colleges despite their superannuation in between 01.01.1996 and 31.03.1998, and therefore, it was held that, since the computation of pension was to be done on the basis of **15** ## **W.P.(C)No.34785 of 2016** last pay drawn, the employees were entitled to get pension on the revised scale. However, in the case on hand, petitioner did not have the benefit of the pay revision as per Ext.P1 Government Order at all and consequentially not entitled for pension accordingly. It is also clear that the entire liability on account of revision of pay scales etc. of University and College teachers shall be taken over by the State Governments opting for revision of pay scales with effect from 01.04.2010. Clause (g) in Ext.P1 order is relevant to the context, which read thus: _“(_ _**g** ) The pay for the existing incumbents, who are in position as on 01.01.2006 in various categories of posts shall be fixed in accordance with the formula appended to this order as Appendix-I and fitment tables (Table 1 to 6) for fixation of pay, which is appended to this order as Appendix-II”._ 21. As per clause (h) thereunder, “The payment will be made after taking an undertaking from the existing incumbents that the excess amount, if any made on account of incorrect fixation of pay in the pay band or AGP shall be adjusted against the future payments due”. It was thereupon that the Government have decided to accept the revised UGC Scheme for revision of pay scales and accordingly orders were issued for payment of arrears of pay. **W.P.(C)No.34785 of 2016** **16** 22. Yet another contention advanced by learned counsel for the petitioner is that, in Ext.P2 order issued by the Government, revising Pension and Family Pension to those coming under UGC/AICTE/Medical Education Scheme, Ext.P1 Government Order dated 27.03.2010 is referred to, and therefore, it contemplates that petitioner is entitled to secure pension in accordance with the pay band as directed by the Government in Ext.P1 order. In my considered view, it is a far-fetched argument. Mere mention of a Government order in a pension revision order will not enable a pensioner to think and visualise that he is entitled to get the benefits and the pay revision as per Ext.P1. 23. I have gone through Ext.P2 Government Order and I could not find any recital therein in respect of the pension being paid to the pensioners on the basis of the benefits of Ext.P1 Government Order. On the other hand, Ext.P2 deals with arrears of pension in clause 14 thereunder. Clause 14.1 clearly specifies that the arrears on account of revision of pension/family pension, Commutation & DCRG shall be disbursed in cash in four equal quarterly instalments commencing from June 2011 onwards. Therefore, as per **W.P.(C)No.34785 of 2016** **17** Ext.P2, the State Government have formulated the pension revision in accordance with the Scheme launched by it, which has no bearing to the pay band fixed under Ext.P1. 24. Ext.P4 Government Order bearing (P)No.49/2013/H. Edn. dated 22.02.2013 also deals with payment of 6[th] UGC Pay revision arrears to the existing incumbents in office only, and it is also discernible that the Government have issued orders implementing 6[th] UGC Pay revision and Scheme for teachers in Universities, Affiliated Colleges, teachers in Law Colleges, Engineering Colleges, Kerala Agricultural University and teachers in Physical Education and qualified Librarians. Therefore, the same has nothing to do with the claim raised by the petitioner for pension in accordance with Ext.P1 Government Order. It was accordingly that revised pension was provided to the petitioner, evident from Ext.P5 issued by the State Public Information Officer of Higher Education Department dated 26.10.2013, and it is clarified thereunder that, as per the Government Order dated 27.03.2010, i.e., Ext.P1, the revised pay according to the Sixth UGC Pay revision shall be paid from 01.03.2010 and the pay revision arrears from 01.01.2006 ## **W.P.(C)No.34785 of 2016** ## **18** to 28.02.2010 shall be released subject to the Central Government agreeing to grant 80% as financial assistance. Therefore, it was clarified that, petitioner who has retired as early as on 30.06.1989 is not entitled to get the benefits of Ext.P1 pay revision order in the matter of payment of pension. In order to clarify the situation alone, the Government have issued Ext.P6 communication and revision of pension and family pension was made on and with effect from 01.07.2009. 25. Taking into account all these aspects, I am of the considered opinion that, petitioner is not entitled to get any reliefs as are sought for in the writ petition, since there are no arbitrariness, illegality or unfairness on the part of the State Government in providing any arrears of pension on the basis of Ext.P1 order of the State Government, revising the pay of the existing incumbents in office. Resultantly, the writ petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** **St/-15.11.2019** **W.P.(C)No.34785 of 2016** **19** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE G.O(P) NO.58/2010/H.EDN. DATED 27-03-2010.** **EXHIBIT P2 TRUE COPY OF G.O(P) NO.211/2011/FIN. DATED 07-05-2011.** - **EXHIBIT P3 TRUE COPY OF ORDER OF THE ACCOUNTANT GENERAL DATED 15-12-2011.** **EXHIBIT P4** - **TRUE COPY OF GO(P)NO.49/2013/H.EDN. DATED 22-02-2013.** - **EXHIBIT P5 TRUE COPY OF THE REPLY DATED 26-10-2013.** - **EXHIBIT P6 TRUE COPY OF THE REPLY DATED 30-12-2013.** - **EXHIBIT P7 TRUE COPY OF G.O(P) NO.16/2014/FIN. DATED 10-01-2014.** - **EXHIBIT P8 TRUE COPY OF TABLE OF CALCULATION OF UGC PENSION ARREARS FROM 01-01-2006 TO 30-062009 PREPARED BY THE PETITIONER.** **EXHIBIT P9 TRUE COPY OF REPRESENTATION DATED 08-01-2016 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF REMINDER LETTER DATED 01-032016 SUBMITTED BY THE PETITIONER.** **EXHIBIT P11 TRUE COPY OF THE CALCULATION STATEMENT WITH INTEREST.** **RESPONDENTS' EXHIBITS: NIL**