K.S. Dayanandan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929** **OP.No. 29832 of 2002(B)** **----------------------------------** **PETITIONER:** - **-------------------** **K.S. DAYANANDAN, RETIRED SELECTION GRADE LECTURER, "SAI", ANITHA PARK, PEETAH P.O., TRIVANDRUM-695 024.** **BY ADV. SRI. BASANT BALAJI, SRI.P.V.ANIL, SRI.M.DINESH.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, TRIVANDRUM.** **2. THE PRINCIPAL SECRETARY TO GOVT., FINANCE DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM.** **3. THE ACCOUNTANT GENERAL (A & E), TRIVANDRUM.** **BY GOVERNMENT PLEADER SRI. SANDESH RAJA.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON 18/03/2008 DELIVERED THE FOLLOWING:** **ORDER ON C.M.P. NO. 50592/2002 IN O.P. NO. 29832/2002-B** ## **DISMISSED** **18/03/2008. SD/- P.N.RAVINDRAN, JUDGE.** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE RELEVANT PAGES OF G.O. (P) NO. 171/99/H. EDN. DTD. 21/12/99. EXT.P.2: COPY OF THE G.O. (P). NO. 3001/98/FIN. DTD. 25/11/1998. EXT.P.3: COPY OF THE G.O. (P). NO. 118/2001/(91)/FIN. DTD. 17/01/2001.** **EXT.P.4: COPY OF THE AUTHORIZATION OF THE ACCOUNTANT GENERAL REGARDING THE REVISED PENSION.** ## **RESPONDENT'S EXHIBIT:** **EXT.R1.A: COPY OF THE G.O. (P). NO. 1552/00/FIN. DTD. 15/12/00.** **//TRUE COPY//** **prv.** ## **P.N.Ravindran,J. ============== O.P.No.29832 of 2002** ## **==============** ## **Dated this the 18[th] day of March, 2008.** ## **JUDGMENT** The petitioner entered service as Lecturer in Economics in the S.N.College, Kollam on 10.7.1967. The petitioner's date of birth is 31.8.1941. The petitioner who attained 55 years of age on 31.8.1996 retired from service on 31.3.1997 as provided in Rule 60(c) of Part I of the Kerala Service Rules, hereinafter referred to as the "K.S.R." for short. 2. By Ext.P2 government order dated 25.11.1998, the State Government ordered revision of pensionary benefits payable to State Service Pensioners/Family Pensioners/College Teachers who come under U.G.C./A.I.C.T.E./Medical Education Schemes scales of pay. The revised pensionary benefits were to be disbursed only from 1.3.1997. Based on the representations filed by several persons who retired from service prior to 1.3.1997, the State Government issued Ext.P3 government order OP 29832/02 -: 2 :- dated 17.1.2001. Ext.P3 reads as follows: "In the Government Order read above, Government have issued orders in regard to the revision of pensionary benefits to State Service Pensioners/Family Pensioners and to College Teachers who come under U.G.C./A.I.C.T.E./Medical Education Schemes scales of pay with effect from 01.03.1997. As per the above order employees retired prior to 01.03.1997 were allowed increase in Basic Pension by merging Dearness Relief at 1510 points of All India Consumer Price Index. The above method was coined in order to allow relief to those Pensioners who have not been benefited by the revision of scales of pay. Subsequently, Government have revised the scales of pay of certain categories with effect from 01.01.1996 by merging Dearness Allowance at 1510 points of All India Consumer Price Index. It has come to notice of the Government that pensioners coming under the above category ie. U.G.C./A.I.C.T.E. who retired after 01.01.1996 but before 01.03.1997 are in a disadvantageous position than in the case of those who retired after 01.03.1997 as they are not eligible to receive the benefit of 50% of their revised scale as pension with effect from 01.01.1996. OP 29832/02 -: 3 :- Government have further examined the matter in detail and are pleased to order as follows: In the case of employees whose pay have been revised with effect from 01.01.1996 by merging Dearness Allowance at 1510 points of All India Consumer Price Index the maximum pension admissible will be 50% of the maximum of the revised scale under A.I.C.T.E./U.G.C./Medical Education Schemes scale of pay with effect from 01.01.1996. Those retired from the above category between 01.01.1996 and 28.02.1997 (including 28.02.1997) shall not be entitled to commute a portion of their revised pension on account of the concession hereby granted. The 15% increase in Basic Pension, merger of Dearness Allowance and revised rate of Death cum Retirement Gratuity as ordered in G.O.(P) No.3001/98/Fin. will not be admissible to those whose Pay and Allowances have been revised with effect from 01.01.1996 by merging 1510 points. This modification is for the limited purpose of allowing pensionary benefits to the U.G.C./A.I.C.T.E./Medical Education category whose scales of pay have been revised with effect from 01.01.1996." OP 29832/02 -: 4 :- 3. Paragraph 6 of Ext.P3 order states that persons who retired between 1.1.1996 and 28.2.1997 will not be entitled to commute a portion of their revised pension. Paragraph 7 of Ext.P3 order states that the 15% increase in basic pension, merger of dearness allowance and revised rate of Death cum Retirement Gratuity as ordered in Ext.P2 will not be admissible to those whose pay and allowances have been revised with effect from 1.1.1996 by merging 1510 points. The petitioner has in this original petition challenged the stipulations in paragraphs 6 and 7 of Ext.P3 on the ground that those stipulations militate against the provisions of the K.S.R. and are arbitrary and unconstitutional. The petitioner claims that he is entitled to commute the revised pension sanctioned as per Ext.P3 and is also entitled to the revised gratuity sanctioned as per Ext.P2. 4. I heard Sri.M.Dinesh, the learned counsel appearing for the petitioner and Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner contended relying on the decision of a Full Bench this Court in **Accountant General** v. **Neelakandan Nair** - 2003 (3) K.L.T. 525 as affirmed by the Apex Court in **State of Kerala** OP 29832/02 -: 5 :- v. **Neelakandan Nair** - 2005(3) K.L.T. 717 that as the petitioner retired from service only on 31.3.1997, he is entitled to have his terminal benefits fixed and paid in terms of Ext.P2 without the restriction imposed in paragraphs 6 and 7 of Ext.P3. The learned counsel for the petitioner contended that on the terms of Rule 60 (c) of Part I, K.S.R., the petitioner was entitled to continue in service till 31.3.1997 and that as the petitioner retired from service only after 1.3.1997, he is entitled to have his pensionary benefits fixed and paid in terms of Ext.P2. Per contra, the learned Government Pleader appearing for the respondents contended that the petitioner, who attained the age of superannuation on 31.8.1996, was allowed to continue in service till 31.3.1997 by virtue of Rule 60(c) of Part I, K.S.R. and that on the terms of Rule 60(c) as amended by SRO No.591/2000, the extended period of service beyond the age of superannuation of the teaching staff covered by Rule 60(c) of Part I, K.S.R. cannot be reckoned as qualifying service for pension. He further contended that the petitioner cannot claim the benefit of Ext.P2 which came into force after the petitioner attained the age of superannuation on 31.8.1996. The learned Government Pleader OP 29832/02 -: 6 :- further submitted that though the revision of pensionary benefits ordered by Ext.P2 was applicable to teachers placed under U.G.C. scale of pay, as the maximum admissible pension was not revised with effect from 1.1.1996 those teachers who had retired after 1.1.1996 but before 1.3.1997 were in a disadvantageous position and it was to rectify this disparity that Ext.P3 government order was issued though with the restriction that they will not be permitted to commute a portion of their revised pension or be entitled to claim the 15% increase in basic pension, merger of dearness allowance and revised rate of D.C.R.G. as ordered in Ext.P2. The learned Government Pleader further contended that by Ext.P3 government order, the terminal benefits payable to College Teachers placed in the U.G.C. scale of pay were revised with effect from 1.3.1997 and that as and when pension is revised by the Government, a portion of revised pension cannot be again commuted and that paragraph 13 of Ext.P2 government order itself states that the revised pension fixed in terms of para 5(b) thereof is not commutable. As regards the claim for gratuity, the learned Government Pleader contended that the petitioner was entitled only to D.C.R.G. as per OP 29832/02 -: 7 :- the rules in force prior to 1.3.1997 and that the gratuity payable to the petitioner was fixed and paid in terms of the rules in force prior to 1.3.1997. 5. I have considered the rival contentions. It is evident from Ext.P2 that the petitioner and others who are similarly situated are not entitled to the benefit of Ext.P2. However, the benefit of enhanced pension was extended to the petitioner and others similarly placed, by Ext.P3 government order dated 17.1.2001 by giving them also the maximum pension granted as per Ext.P2, namely, 50% of the maximum of the highest scale of pay. Even under Ext.P2, the revised pension granted was not commutable. Hence, the petitioner cannot claim the benefit of commuted value of pension revised as per Ext.P3. Further, as regards the D.C.R.G., though the ceiling on maximum amount of D.C.R.G. was raised from Rs.80,000/- to Rs.2.80 lakhs with effect from 1.3.1997, in the light of Rule 60(c) of Part I, K.S.R. as amended by S.R.O.No.591/2000, the petitioner who attained the age of superannuation on 31.8.1996, but continued in service till 31.3.1997 cannot claim that benefit. What was granted by Ext.P3 was a concession so as to enable the petitioner also to draw the OP 29832/02 -: 8 :- maximum pension admissible under the rules, namely, 50% of the maximum of the revised scale under the U.G.C. scheme. The petitioner and others similarly placed, who are not entitled to the benefit of Ext.P2, cannot therefore challenge Ext.P3. Since Ext.P3 is a concession extended to the petitioner and others similarly placed, they are not entitled to challenge the same on the ground that it is arbitrary and discriminatory. 6. Rule 60(c) of Part I, K.S.R. was amended by SRO No.591/2006 published in the Kerala Gazette Extra-ordinary No.1317 dated 11.8.2006. By the said amendment, Rule 60(c) as amended by incorporating the following stipulation: "But the extended period of service will not count as qualifying service for pension and the pay received during the period will not be reckoned for computing average emoluments or pensionary benefits or commuted value of pension." This amendment is deemed to have come into force on 15.5.1986. There was a further amendment to the following effect: "They shall also not be eligible for the benefits of pay revision effective from a date after the date of OP 29832/02 -: 9 :- superannuation, under sub-rule (a) of R.60." The said amendment came into force with effect from 15.12.2000. In view of these amendments introduced in Rule 60 (c) of Part I, K.S.R., as contended by the learned Government Pleader, the petitioner who attained the age of superannuation on 31.8.1996 but continued in service till 31.3.1997 cannot reckon his service after 31.8.1996 as service for the purpose of pensionary benefits including gratuity. The amendment to Rule 60(c) of Part I, K.S.R. was brought into force while this original petition was pending. The petitioner has not chosen to challenge the validity of the amendments introduced in Rule 60(c) of Part I, K.S.R. by S.R.O.No.591/2006. The petitioner is therefore not entitled to the reliefs prayed for in this original petition. In the result, the original petition fails and it is dismissed. No costs. P.N.Ravindran, Judge. ess 11/3