Krishnan P. Pensioner v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935** **WA.No. 1413 of 2012 () IN WP(C).19909/2008 --------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 19909/2008 of HIGH COURT OF KERALA DATED 20-03-2012** ## **APPELLANT(S)/PETITIONER:** **----------------------------------------------** **KRISHNAN.P. PENSIONER RESIDING AT 'DEVI SADANAM ' NEAR BLOCK OFFICE KELOTH OF PAYYANUR AMSOM AND DESOM OF TALIPARAMBA TALUK KANNUR DISTRICT** ## **BY ADV. SRI.MAHESH V RAMAKRISHNAN** ## **RESPONDENT(S)/RESPONDENT:** **--------------------------------------------------** ## **1. STATE OF KERALA** - **REP.BY ITS CHIEF SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM** ## **2. SECRETARY TO GOVERNMENT ,** ## **CO-OPERATION (B) DEPARTMENT, THIRUVANANTHAPURAM** **3. THE KERALA CO-OPERATIVE EMPLOYEE PENSION BOARD REP. BY ITS SECRETARY, THIRUVANANTHAPURAM** ## **4. REGISTRAR OF CO-OPERATIVE SOCIEITIES, THIRUVANANTHAPURAM** **R3 BY ADV. SRI.K.R.SUNIL,SC,CO-OP.EMP.PENSION BOARD BY GOVERNMENT PLEADER SRI.MOHAMMED SHAH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== Writ Appeal No. 1413 of 2012 ====================** ## **Dated this the 7[th] day of February, 2014** ## **J U D G M E N T** ## Antony Dominic, J. This appeal arises out of the judgment in WP(C) No.19909/08 filed by the appellant. 2. The complaint of the appellant was that though he was having a qualifying service of more than 30 years and was entitled to a pension of `14,761/- per month, by Ext.P3 order, he was sanctioned pension of `10,000/- only. This, according to him, is against the provisions of Clause 22 of Ext.P2 Pension Scheme and it was therefore that he filed the writ petition challenging Ext.P3 order and for directing that pension should be paid reckoning 30 years of qualifying service and without any limit as provided in the second proviso to clause 22 of the pension scheme as amended. The learned Single Judge by the impugned judgment negatived the claim and hence the appeal. 3. We heard the learned counsel for the appellant **W.A No.1413/12** **: 2 :** and also the learned counsel appearing for the respondent Board. 4. Appellant was an employee of the Payyannur Service Co-operative Bank, a Primary Co-operative Society. According to him, he joined the Bank on 17/9/76 and on attaining the age of superannuation, retired from service on 30/9/2007 while working as its Secretary. He claims to have a total qualifying service of 31 years and 14 days. As already mentioned above, his contention is that in terms of the provisions of Ext.P2 scheme, he was entitled to get a monthly pension of `14,761/- and that instead by Ext.P3 order dated 4/12/2007, 3[rd] respondent determined his pension limiting it at `10,000. It is the correctness of this order that arises for consideration. 5. Clause 22 of Ext.P2 Pension Scheme provide for the amount of pension, other than Family Pension. Clause 22 (1) provides that the amount of pension other than family pension that may be granted shall be determined on the **W.A No.1413/12** **: 3 :** basis of length of service and as calculated in the manner provided therein. This provision reads thus; _**22. Amount of pension, other than Family Pension-(1)** The amount of pension other than family pension that may be granted shall be determined on the basis of length of service and as calculated as follows:-_ _Pension = A.P x Q.S. 60_ _AP = Average Pay QS = No. of years of Qualifying Service subject to a maximum of 30 years._ 6. By GO(P) 129/06/Co-op. dated 12[th] of July, 2006, a new proviso was introduced after the first proviso to sub paragraph 1 above, which read thus. _“Provided further that for calculating pension, the average pay shall be limited to Rs.20,000 (Rupees twenty thousand only) in case the length of service is less than 30 years and the pension shall be calculated as follows:-_ _Pension = A.P x Q.S. ------------- (in number of months) 720_ 7. In the explanatory note to the notification, the reasons for introducing that amendment was stated thus: **W.A No.1413/12** **: 4 :** _“ Financial year of Co-operative Institutions starts from 1[st] April and ends on 31[st] March of the succeeding year. The amendment changing the year is therefore necessary to have uniformity in the matter. Amount of pension to the employees of Co-operative Institutions has considerably increased consequent on the pay revisions implemented from time to time. Hence society's contribution to the pension also has to be increased to meet the commitment. Further limiting the maximum pension by way of ceiling is also imperative for the effective and smooth functioning of the self financing pension scheme._ 8. Reading of the second proviso introduced by the amendment dated 12[th] of July, 2006 shows that in calculating the pension, the average pay shall be limited to `20,000/- in case of employees whose length of service is less than 30 years and the pension is to be quantified in the manner as stated therein. However, this new provision did not incorporate anything for achieving the object of limiting the maximum pension by way of ceiling. 9. Subsequently, by GO(P) No.239/08/Co-op dated 22[nd] of October, 2008, the aforesaid proviso was substituted **W.A No.1413/12** **: 5 :** ## and the substituted proviso reads thus; _“Provided further that in the case of employees who are having less than thirty years of qualifying service the pension shall be calculated as follows: Pension = A.P x Q.S. ------------- (in number of months) 720_ _Provided also that for calculating pension, the average pay shall be limited to Rs.20,000 (Rupees twenty thousand only) and the maximum amount of pension shall be limited to Rs.10,000 (Rupees ten thousand only)”_ ## The explanatory note which gives the reasons for this amendment reads thus; _As per G.O(P) No.129/2006/Co-op dated the 12[th] July, 2006 and published as S.R.O.No.579/2006 in the Kerala Gazette Extraordinary No.1293 dated 7[th] August 2006, the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994, was amended by incorporating a proviso to sub-paragraph (1) of paragraph 22 of the scheme to the effect that the maximum average emoluments to be considered for calculating pension is limited to Rs.20,000 (Rupees twenty thousand only). But it caused ambiguity to the effect that the limitation was applicable only to those employees who are_ **W.A No.1413/12** **: 6 :** _having a Qualifying service less than 30 years. The Government have decided to amend the scheme to remove the ambiguity and make this provision applicable to all employees and also to limit the maximum pension that can be allowed to an employee under the scheme to Rs.10,000/(Rupees ten thousand only).”_ 10. Reading of the scheme as amended would therefore show that the amendment by GO(P) No.129/06/Coop. dated 12[th] of July, 2006 was necessitated on account of the fact that the amount of pension of the employees of Cooperative institutions have increased considerably consequent on the pay revisions implemented from time to time and that the liability of the societies for making contribution also have proportionately increased. Government also felt the necessity of limiting the maximum pension by way of ceiling for the effective and smooth functioning of the self financing pension scheme. 11. Despite saying so, in the new proviso that was introduced by the 2006 amendment, instead of incorporating **W.A No.1413/12** **: 7 :** necessary provision for achieving the object that was sought to be achieved, a new class of pensioners was created without any justifiable basis. As a result of that situation, the claims were raised by persons having more than 30 years service to the effect that they are entitled to be paid pension without any limit on the qualifying service. That apart, against the object of achieving a ceiling on the maximum pension, no provision was also introduced in the 2006 amendment. It was on account of the above situation and the claims that were raised by the beneficiaries of the claim that to clarify the position, the amendment of 22[nd] October, 2008 was necessitated by which the proviso itself was substituted. The question is whether this proviso can apply to persons like the appellant, who retired from service in 2007. 12. The object of the amendments and substitutions about which we have made reference herein above shows that what was sought to be achieved by the Government by **W.A No.1413/12** **: 8 :** the amendment was to clarify the position. If a provision is introduced by plenal legislation or subordinate legislation by way of clarification, it is the settled law that it will always operate with retrospective effect and not prospective effect as contended. If that be so, it would apply to every employee of the Co-operative sector, who is eligible for the benefit of the scheme, irrespective of whether his retirement is prior to the introduction of the amendment by Government order dated 22[nd] of October, 2008 or not. If that be so, the fixation of pension applying the ceiling as introduced by the amendment by Ext.P3, in the case of the appellant, cannot be said to be illegal. We are fortified in the view we have taken herein by the Division Bench judgment of this Court in _**Kerala State Co operative Employees Pension Board v. Nanu**_ (2012(4) KLT 163). In that judgment, dealing with identical claims by employees who retired during 2004 to 2009, a Division Bench of this Court held thus; _We find force in the contentions of appellant that the upper limit of Rs.20,000/- with respect to_ **W.A No.1413/12** **: 9 :** _average pay as well as upper limit of Rs.10,000/with respect to monthly pension is applicable to all co-operative employees irrespective of their length of qualifying service. So also the upper limit of 30 years with respect to qualifying service is also applicable in the case of all the employees. This is well clear from the amendment brought into clause 22 of the scheme. Apparently the learned single Judge while following Ext.P2 judgment has not considered the effect of the subsequent amendment._ 13. In the light of the above, we are not persuaded to interfere with the judgment of the learned Single Judge. Writ appeal fails and is dismissed. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** Rp **//True Copy//** **PA TO JUDGE**