M. Abdassalam, Nishanth; A. Abdul Slam; D. Jayaram v. State of Kerala, Principal Secretary to Government, Finance Department, Government Secretariat, Housing Department, and Kerala State Housing Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940** **WP(C).No. 13564 of 2014** ## **PETITIONER(S)** **1 M. ABDASSALAM, NISHANTH, TC 2/453(4), PLOT NO.28, PT. CHACKO NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011, [EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD (RTD)].** ## **2 A.ABDUL SLAM,** **KUZHIVILAKATHU VEEDU, ROSE NAGAR NO.42, SREEKARIYAM P.O., THIRUVANANTHAPURAM-695 017, [EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD (RTD)].** ## **3 D.JAYARAM,** **THULASSEVANAM, TC 50/792(3), KALADY, KARAMANA P.O., THIRUVANANTHAPURAM-695 002, [JUNIOR SUPERINTENDENT, KERALA STATE HOUSING BOARD(RTD)].** **BY ADVS.SRI.B.RAGUNATHAN** **SRI.G.GOPALAKRISHNA PILLAI SRI.M.SALIM SRI.R.SRINATH SRI.V.M.JACOB** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOUSING DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **3. KERALA STATE HOUSING BOARD, REPRESENTED BY SECRETARY, KERALA STATE HOUSING BOARD, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.** **R1 TO R2 BY SPL.GOVERNMENT PLEADER SMT.M.R.SREELATHA R3 BY ADV. SRI.MANOJ RAMASWAMY, S.C ADV. SRI.GEORGE BOBAN, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2018, THE COURT ON 14-06-2018 DELIVERED THE FOLLOWING:** **Msd.** - **19.06.2018** **WP(C).No. 13564 of 2014 (U)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXT.P1: TRUE COPY OF G.O.(RT)NO.75/03/HSG DATED 06/09/2003.** - **EXT.P2: TRUE COPY OF G.O.(RT)NO.82/07/HSG DATED 13/11/2007.** - **EXT.P3: TRUE COPY OF G.O.(RT)NO.29/05/HSG DATED 22/04/2005.** - **EXT.P4: TRUE COPY OF G.O.(RT)NO.20/2006/HSG DATED 27/03/2006.** - **EXT.P5: TRUE COPY OF G.O.(RT)NO.58/2006/HSG DATED 06/08/2008.** |**EXT.P6:**|**TRUE COPY OF THE LETTER DATED 19/07/2006 OF THE 3RD RESPONDENT.**| |---|---| |**EXT.P7:**|**TRUE COPY OF THE LETTER DATED 07/11/2013 OF THE 2ND RESPONDENT.**| |**EXT.P8:**|**TRUE COPY OF THE JUDGMENT DATED 13/12/2012 IN**| ||**W.P.(C)NO. 22254/2010.F.**| |**EXT.P9:**|**TRUE COPY OF THE ORDER DATED 09/09/2013 IN WA NO.1113/2013.**| |**EXT.P10:**|**TRUE COPY OF THE LETTER DATED 29/03/2014 RECEIVED BY**| ||**THE 3RD PETITIONER.**| |**EXT.P11:**|**TRUE COPY OF THE STATEMENT DATED 01/04/2014.**| |**EXT.P12:**|**TRUE COPY OF THE STATEMENT OF THE 1ST PETITIONER**| ||**DATED 08/04/2014.**| |**EXT.P13:**|**TRUE COPY OF THE STATEMENT OF THE 2ND PETITIONER**| ||**DATED 08/04/2014.**| |**EXT.P14:**|**TRUE COPY OF THE STATEMENT OF THE 3RD PETITIONER**| ||**DATED 08/04/2014.**| |**EXT.P15:**|**TRUE COPY OF G.O.(RT) NO.2747/14/FIN DATED 29/03/2014.**| |**EXT.P16:**|**TRUE COPY OF THE ORDER DATED 06/05/2014 PASSED BY**| ||**THIS HON'BLE COURT IN W.P.(C)NO. 11910/2014-K.**| |**EXT.P17:**|**TRUE COPY OF G.O.(RT)NO.53/2014/HSG DATED 08/05/2014 RECEIVED BY**| ||**THE 1ST PETITIONER.**| |**EXT.P18:**|**TRUE COPY OF G.O.(RT)NO.52/2014/HSG DATED 08/05/2014 RECEIVED BY**| ||**THE 2ND PETITIONER.**| |**EXT.P19:**|**TRUE COPY OF G.O.(RT)NO.51/2014/HSG DATED 08/05/2014 RECEIVED BY**| ||**THE 3RD PETITIONER.**| |**EXT.P20:**|**TRUE COPY OF THE ORDER DATED 12/05/2014 RECEIVED BY**| ||**THE 1ST PETITIONER.**| |**EXT.P21:**|**TRUE COPY OF THE ORDER DATED 12/05/2014 RECEIVED BY**| ||**THE 2ND PETITIONER.**| **WP(C).No. 13564 of 2014 (U)** **EXT.P22: TRUE COPY OF THE ORDER DATED 12/05/2014 RECEIVED BY THE 3RD PETITIONER. EXT.P23: TRUE COPY OF G.O.(RT)NO.56/2014/HSG DATED 16/05/2014 RECEIVED BY THE 1ST PETITIONER. EXT.P24: TRUE COPY OF G.O.(RT)NO.57/2014/HSG DATED 16/05/2014 RECEIVED BY THE 2ND PETITIONER. EXT.P25: TRUE COPY OF G.O.(RT)NO.58/2014/HSG DATED 16/05/2014 RECEIVED BY THE 3RD PETITIONER. EXT.P26: TRUE COPY OF G.O.(P) NO.703/2012/FIN. DATED 12/12/2002. EXT.P27: TRUE COPY OF THE LETTER DATED 19/11/2013 OF THE 3RD RESPONDENT THE 2ND RESPONDENT. EXT.P28: TRUE COPY OF THE JUDGMENT DATED 08/08/2008 IN W.P.(C)NO. 25653/2004-D.** - **EXT.P29: TRUE COPY OF THE JUDGMENT DATED 13/11/2011 IN W.P.(C)NO. 6536/2007-C.** - **EXT.P30: TRUE COPY OF THE KERALA HOUSING BOARD EMPLOYEES (PENSION AND OTHER RETIREMENT BENEFITS), REGULATIONS, 1990.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R1(A): TRUE COPY OF JUDGMENT OF THE HONOURABLE DIVISION BENCH IN W.A.NO.1113/2013.** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 19.06.2018** ## **P.V.ASHA, J.** ## **W.P.(C) No.13564 of 2014 -U** ## **Dated this the 14[th] day of June, 2018** ## **JUDGMENT** Petitioners who retired from the service of the Kerala State Housing Board (“the Board” for short) – the 3[rd] respondent are aggrieved by the action of respondents 1 and 2 by which the orders fixing their pension reckoning their service under the Central Government/State Government/K.S.R.T.C. are cancelled, years after their retirement. 2. The 1[st] petitioner had worked in the Technical Education Department for the period from 29.8.1973 to 01.12.1980; thereafter he worked in KSRTC for the period from 02.12.1980 to 22.07.1983 and he joined the service of the Board as Assistant Engineer on 23.07.1983. The 2[nd] petitioner worked as Conductor Grade II in KSRTC for the period from 13.07.1979 to 13.06.1983 and thereafter as Assistant Engineer in Agricultural Department of the State Government from 13.06.1983 to 16.08.1986. He joined the Board as Assistant Engineer on 16.08.1986. The 3[rd] petitioner worked as LD Clerk in the Economics and Statistics Department under State Government for the period from 03.9.1977 to 28.02.1983. He joined the Board as LD Clerk on 28.02.1983. All the appointments were through Public Service Commission and there was no break in service. Petitioners 1 and 2 got W.P.(C) No.13564/14 :2: promotions and retired from service on 31.05.2003 and 30.04.2007 respectively, while working as Executive Engineers. The 3[rd] petitioner retired from service on 31.05.2005 while working as Junior Superintendent. The petitioners had submitted representations requesting to fix their pension reckoning the service rendered by them in KSRTC/Departments under the Government till they joined the Board. Government had accordingly issued Exts.P1, P2 and P3 orders on 06.09.2003, 13.11.2007 and 22.04.2005 respectively according sanction for reckoning their previous service. On the basis of Exts.P1 to P3 orders, the proportionate pension contribution from the respective Departments were remitted as per Exts.P4, P5 and P6 orders. While they were so drawing pension on the basis of the orders Exts.P1 to P3, they received Ext.P7 notice dated 07.11.2013 from the Secretary to Government, Housing Department- 2[nd] respondent informing them that Government desires to review the orders Exts.P1 to P3 issued in their case sanctioning permission to reckon their previous service for calculating their pensionary benefits in the Board in view of the observation made by this Court in Ext.P9 interim order dated 09.09.2013 in W.A.No.1113 of 2013. Ext.P9 was an interim order issued by this Court in a writ appeal filed by the Government W.P.(C) No.13564/14 :3: against Ext.P8 judgment in WP(C) No.22254 of 2010 filed by one Smt.Sarada who retired from the Board while working as a UD Clerk. She had approached this Court for direction to fix her pension reckoning the service rendered by her in an aided school and this Court had allowed that writ petition with cost. Relevant portion of the interim order reads as follows: _“2. We also note from the impugned judgment that, mainly for not challenging Ext.P18 judgment an interparte judgment between the parties and so also Government's move in extending such benefit to other employees of Housing Board as indicated at Exts.P4, P5 and P6 the learned Single Judge proceeded to opine that the writ petition is also entitled for reckoning her earlier service in aided school for opting the pensionary benefits._ _3. We fail to understand the stand of the Government in the present case when such special treatment was extended to the fortunate employees at Exts.P4, P5 and P6. We would like to know, the stand of the Government for such extension of benefits though those employees were not entitled as per Board's regulations. We direct the appellant-State to place on record on what basis such action was considered at Exts.P4, P5 and P6 and why those cases were special when compared to the case of present respondent/writ petitioner”._ Thereafter petitioner received Ext.P7 notice from Government informing the proposal to review Exts.P1 to P3 orders in the light of Ext.P9 interim order. Thereafter they received Ext.P10 notice dated 29.03.2014 for a hearing which was held on 08.04.2014. The petitioners submitted a joint representation Ext.P11 before the 2[nd] respondent and thereafter individual representations Exts.P12, P13 and P14 at the time of hearing, on 08.04.2014 pointing out that they W.P.(C) No.13564/14 **==> picture [14 x 9] intentionally omitted <==** had been enjoying the pension on the basis of the orders issued in their case; they were not parties to the writ appeal referred to in the notice; the case of Smt.Sarada was not identical to them as she was working in a private school. As petitioners had been receiving pension, at the rates fixed on the basis of Exts.P1 to P3 orders, for the last several years, they submitted that there was no reason to review the orders. They pointed out the cases of other persons who are also enjoying pension on the basis of similar orders. They also stated that under the provisions contained in KSR prior service rendered by them could be reckoned for pension. It is alleged that even before hearing was held on 08.04.2014 the 3[rd] respondent issued Ext.P15 order referring to the circumstances leading to the interim order Ext.P9 and stating that no specific reason was found in treating their cases as special and therefore Government decided to review the special orders in the interest of the State. 2[nd] respondent ordered that the orders Exts.P1 to P3 are to be reviewed in order to file affidavit before this Court. At this stage the petitioners approached this Court filing WP(C) No.11910 of 2014. When the matter came up for consideration on 06.05.2014 the learned Special Government Pleader submitted that Government proposed to consider the representation submitted by the W.P.(C) No.13564/14 :5: petitioners pursuant to the notices issued to them and a reasoned order would be passed. The petitioners submit that writ petition was thereafter withdrawn, as they had to challenge the orders issued by the Government. Government thereupon issued Exts.P17 to P19 orders cancelling Exts.P1 to P3 orders. Government found that Exts.P1 to P3 orders sanctioning permission to fix their pension reckoning the service rendered by them prior to their joining the Board were issued as a special case. Saying that no specific reason was found in treating the cases as special, Government decided to review the special orders. It was stated that at the time of hearing before the Joint Secretary, Housing Department, the petitioners could not produce any document for consideration of their case as special. It was stated that as per paragraph 5 of the Kerala State Housing Board Employees' (Pension and Other Retirement Benefits) Regulations, 1990 (herein after referred to as “the Regulations”), the petitioners were not eligible for reckoning their previous service in the respective Departments/Establishment as qualifying service for pensionary benefits. The amount of pro-rata pension contribution remitted by the petitioners was directed to be re-imbursed. Following Exts.P17 to P19 orders the 3[rd] respondent issued Exts.P20 to P22 orders refixing their W.P.(C) No.13564/14 **==> picture [14 x 9] intentionally omitted <==** pension excluding their prior service and according sanction for reimbursement of pro-rata pension. Thereafter 2[nd] respondent issued Exts.P23 to P25 orders in modification of Exts.P17 to P19 with some more elaboration in support of the cancellation of Exts.P1 to P3 orders. In these orders it was stated that the Regulations, 1990 do not permit reckoning of service rendered by the petitioners before joining the Board, towards qualifying service for pension. As per section 5(i) and 5(ii) of the Regulations service rendered in Kerala State Housing Board and in Trivandrum City Improvement Trust alone can be treated as qualifying service for pension. As per the schedule to the said Regulation, rule 14(B) to 14(I) and 17 to 24 of Chapter II of KSR Part III are also not applicable to the employees of the Board. It was further stated that only those service enumerated under Regulation 5 of the Regulations 1990- can be treated as services qualifying for pension of an employee who retires from the Board. Therefore the orders issued in the case of the petitioners granting them the benefit of reckoning their prior service was not proper and it is contrary to the specific provisions in the Regulations. The petitioners have filed this writ petition at this stage challenging the orders Exts.P7, P10, P15 and P17 to P25 and for a direction to restore their pensionary benefits W.P.(C) No.13564/14 **==> picture [14 x 9] intentionally omitted <==** granted to them pursuant to Exts.P1 to P3 orders. 3. Producing Ext.P26 order dated 12.11.2002 petitioners claim that their previous service is liable to be reckoned for pensionary benefit along with the service under the Board. By Ext.P26 Government ordered that employees of the State Government Departments who left their former service in the Central Government/ Central Public Sector undertakings on their own volition for taking appointments in State Government Department would be allowed to reckon their prior service for pensionary benefit along with the service in the State Department in case the former employer remits the share of proportionate pro-rata pensionary liability. At the same time several persons who retired prior to their retirement and subsequent to their retirement are enjoying the benefit and that the benefit of previous service is taken away, only in their case. In Ext.P27 letter dated 19.11.2013 of the 3[rd] respondent addressed the Secretary to Government, in reply to a letter dated 07.11.2013 of the Government, had furnished the details of persons whose prior service was counted as qualifying service for pensionary benefits. Petitioners relied on Exts.P28 and 29 judgments in support of their contention. 4. The respondents filed a counter affidavit stating that the W.P.(C) No.13564/14 **==> picture [14 x 9] intentionally omitted <==** petitioners were granted the benefit of reckoning their prior service as per Exts.P1 to P3 orders as a special case as seen from those orders. It is stated that on the basis of the direction issued by the Division Bench in the interim order in W.A.No.1113 of 2013 Government decided to reexamine the legality of such special orders as they were called upon to explain as to why those orders were treated as special. The Regulations of the Board were considered elaborately by the Division Bench in Ext.R1(a) judgment dated 22.09.2014 in the writ appeal filed by the Government against Ext.P8 judgment. The Division Bench found that the said judgment was rendered without adverting to the statutory regulations governing the field. It was stated that the orders issued in the case of petitioners reckoning the benefits granted to them were produced before the Division Bench and the same were recorded in the judgment. It is the case of the respondents that the issue arising in this case is covered by Ext.R1(a) judgment. It is further stated that Regulation 4 makes the provision contained in part III KSR except those specified in the schedule appended to those Regulations applicable to the employees of the Board. Regulation 5 deals with qualifying service of pension. It is stated that in the absence of any provision enabling the Board and the Government to reckon the W.P.(C) No.13564/14 **==> picture [14 x 9] intentionally omitted <==** prior service the orders issued granting such benefits are not legal or sustainable. The Division Bench has considered the case of Smt.Sarada with reference to the provisions contained in regulation 4 and 5. Therefore it is stated the impugned action of Government is in accordance with rules. 5. Having heard the contentions on either side, it is necessary to examine the provisions contained in the Regulation relating to fixation of pension, qualifying service etc. Regulation 4 reads as follows: _4. Application of the provisions of Kerala Service Rules: subject to the provisions of the Kerala State Housing Board Act, 1971 (19 of 1971) and also subject to the provisions of these Regulations, the rules contained in part III of the Kerala Service rules for the time being in force and the decisions, rulings and notifications given or issued by the Government of Kerala from time to time thunderer except these specified in the schedule appended to these Regulations, shall mutatis mutandis apply to all employees of the Board for regulating their pension and other retirement benefits._ On a reading of regulation 4 it would appear that all the provisions contained in KSR except those which specifically excluded under the schedule are applicable to the employees of the Board including those provisions with respect to the qualifying service. However regulation 5 reads as follows: > _5. Service qualifying for pension: Notwithstanding anything contained in the Rules in Part III of the Kerala Service Rules, for the purpose of these Regulations, service of an employee qualifying for pension will be:_ _i. Service under the Kerala State Housing Board: ii. Service under the erstwhile Trivandrum City Improvement Trust: iii. In respect of those employees who had served the Board and/or_ W.P.(C) No.13564/14 **==> picture [20 x 9] intentionally omitted <==** _Trivandrum City Improvement Trust, on deputation from Central or State Government and subsequently absorbed in the regular establishment of the Board/City Improvement Trust, service rendered by them under the Central/State Government prior to such absorption provided the employee had not received any pensionary benefits from the Central/State government for such services._ _Provided further that such absorption has been made in accordance with Government Orders/Rules in force regarding pensionary liability._ 6. The aforesaid provision of the Regulations, which starts with a non-obstante clause specifically deals with qualifying service while excluding the very application of the provisions contained in KSR with respect to the qualifying service. In that view of the matter, no other service can be added towards the qualifying service of an employee under the Board for the purpose of pension, along the the service under the Board other than the erstwhile Trivandurm City Improvement Trust. In the case of those who are absorbed in the Board, in continuation of their deputation from central or State Government service, their service also can be reckoned. Then there is no question of application of either rule 9, 10 or 11 of Part III KSR as argued by the learned counsel for the petitioners. 7. It is true that petitioner in Ext.P8 judgment was having aided school service and regulation 4 itself excludes the provision contained in rule 14E of part III KSR which relates to reckoning of aided school service. Though the case of Smt.Sarada is worse than that of W.P.(C) No.13564/14 **==> picture [19 x 9] intentionally omitted <==** petitioners by exclusion of that service by way of regulation 4 as well as regulation 5, the fact remains that as long as qualifying service is specifically provided under regulation 5, the service rendered by petitioners even if it was under the State Government or under the State Public Sector Undertakings, such service cannot be reckoned towards qualifying service. Thus it can be seen that the orders Exts.P1 to P3 were issued by Government without looking into the regulations governing the petitioners or in the case of any other employees referred to in Ext.P27 order. 8. Ext.P27 letter contains a list of 7 persons including the petitioners. It is seen that one Sri.Theodore Machado, Regional Engineer was granted the benefit of reckoning his prior service in PWD as per order dated 12.10.2000 of Government. In the case of M/s G.Ravindran Nair, retired AE with prior service in PWD and in KIP Thenmala, that of Sri.K.Ravindran Nair retired as Fair Copy Superintendent with prior service in PHED, Sri.Radharkrishan Nair, Assistant Engineer with prior service in PWD and Irrigation Project' prior services were not counted as Government did not accord sanction for remittance of pro-rata pensioanary liability. It is further stated that in the case of one M.Krishnan and K.Jayaprakash, their service in W.P.(C) No.13564/14 **==> picture [20 x 9] intentionally omitted <==** CPWD and P&T Department were reckoned as qualifying service for pensionary benefits. Sri.M.Krishnan was absolved in the Housing Board, while he was working under the Central Government. In the case of Sri.Jayaprakash the Board had declined his request to reckon his service in P&T Department. But he was granted the benefit on the basis of the judgment of this Court. 9. In Ext.P28 judgment dated 08.08.2008 in WP(C) No.25653 of 2004 in the case of Sri.Jayaprakash. This Court took note of the benefit granted to M/s.M.Krishnan and Theodore Machado in which case the Board had decided to treat their services under the Central Government as qualifying service and in the case of Sri.Theodore Machado Government had issued order dated 28.6.2000 for reckoning his service in the state PWD. In the case of Sri.Jayaprakash, the Government had passed an order directing the Board to allow his request subject to the conditions in Ext.P26 order dated 12.11.2002. This Court further observed that Government had issued order dated 06.08.2003 by which the liability to pay pension reckoning the past service in Central/State Government would be that of the Government concerned and recovery of proportionate share of pension contribution could not be made. Thereafter Board denied him the benefit on the W.P.(C) No.13564/14 **==> picture [20 x 9] intentionally omitted <==** ground of financial stringency. Petitioner therein expressed his willingness to pay the share of contribution payable by the P&T Department. Though it was contended on behalf of the Board that the order issued by Government on 06.12.2003 was not implemented in the Board, the learned single Judge allowed the petitioner to remit the amount. It was observed that there was no dispute on the fact that the employees of the Central Government who go over to the State Government service or to autonomous bodies or public sector undertakings are entitled to have their earlier service in the Central Government reckoned for the purpose of pensionary benefits. The only dispute which arose in that case was on the question whether it is the former employer or the later employer who is liable to contribute. Observing that the contention of the Board was that service rendered by the petitioner in the Department of Post and Telecommunication can be reckoned for fixing pension in case the former employer pays the pro-rata share of pension liability, the writ petition was disposed of directing the respondents to refix his pensionary benefits reckoning his prior service in case he remitted the pro-rata contribution. 10. In Ext.P29 judgment in the case of Assistant Motor Vehicles Inspector who had prior service in KSRTC and this Court directed that W.P.(C) No.13564/14 **==> picture [20 x 9] intentionally omitted <==** his service in KSRTC shall be computed as qualifying service for pension, relying on another case wherein it was held that KSRTC would come under the expression of autonomous body and it come within the purview of the orders issued by the Government on 02.02.2001. 11. The learned counsel for the petitioners submits that the orders of cancellation were issued without giving them a fulfledged opportunity of hearing consistent with the principles of natural justice because the respondents had already decided to review the orders. Referring to Exts.P7 and P10 it was pointed out that the notices indicated the intention to review the orders issued in their case. Similarly the Finance Department, in Ext P15, ordered that Exts.P1 toP3 orders were required to review, even before the petitioners were heard. Ext.P15 order was issued on 29.3.2014 whereas hearing was held on 08.04.2014. Therefore it is stated that hearing was an empty formality as the respondents had already taken a decision against them.Even assuming that a decision was taken as alleged by the petitioners, the fact remains that employees under the Board are governed by the Regulations and qualifying service is governed by regulation 5. The learned Standing Counsel for the Board submitted that proposal for amendment of the regulation 4 are pending before W.P.(C) No.13564/14 **==> picture [20 x 9] intentionally omitted <==** Government. Therefore even by this time there is no amendment to the regulation for reckoning the service rendered under the Government prior to the joining of the Board towards qualifying service. Therefore the contention regarding the violation of the principles of natural justice or regarding the post decisional hearing do not improve the case of the petitioners. 12. The Regulations are framed in exercise of section 19 of the Kerala State Housing Board Act, 1971. Even though the learned counsel referred to sec.166 of the Act, the provision does not in any way help the petitioners. 13. However what is to be looked into is whether the petitioners who had been enjoying the pension since the year 2003, 2007 and 2005, on the basis of the erroneous orders can be allowed to continue to enjoy the same. While canceling the orders Exts.P1 to P3 the respondents have ordered that the pension they have already drawn based on those orders would not be recovered. However the pension is refixed in Exts.P20 to P22 orders from 2014 onwards. Allowing the petitioners to enjoy the benefit of illegal orders would perpetuate illegalities, though it is a fact that they had been planning their life in accordance with the pension that was being drawn by them for several W.P.(C) No.13564/14 **==> picture [20 x 9] intentionally omitted <==** years. Though it would be a heartburn for the petitioners, allowing them to enjoy the benefit would give rise to further claims from similarly situated others. Though the learned counsel for the petitioners submits that the theory of sit back has to be applied as in the case of seniority as petitioners had been enjoying the benefit for a long time, I am of the view that the sit back theory is in a case where there are rival claims between third parties. In this case authority to grant the pension is one and the same. The beneficiaries also continue to be the one and the same. There cannot be any sit back in enjoying the fruits of erroneous or illegal orders, by drawing excess pension. It is settled law that the doctrine of equality cannot be invoked to perpetuate illegality (see _**Bihar Public Service Commission vs. Kamini : (2007) 5 SCC 519, State of Madhya Pradesh vs. Ramesh Chandra Bajpai : (2009) 13 SCC 635, State of Bihar vs. Kameswar Prasad Singh : (2000) 9 SCC 94, State of madhya Pradesh vs. Parvez Khan : (2015) 2 SCC 591 and Orissa IDC vs. Mesco Kalinga Steel ltd. : (2017) 5 SCC 86**_ ). W.P.(C) No.13564/14 **==> picture [20 x 9] intentionally omitted <==** In the above circumstances, I do not find any circumstances to interfere with the orders impugned. The writ petition is accordingly dismissed. Sd/- **P.V.ASHA JUDGE** rkc