M. Divakaran Nair v. State of Kerala and Others

``` 2025:KER:20338 ``` ``` 1 ``` ``` WP(C) No.10634 of 2010 ``` **==> picture [58 x 57] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.M.MANOJ ``` ``` WEDNESDAY, THE 5[TH] DAY OF MARCH 2025 / 14TH PHALGUNA, 1946 ``` ``` WP(C) NO. 10634 OF 2010 ``` ``` PETITIONERS: ``` ``` M.DIVAKARAN NAIR, S/O.KUNHIKANNAN KIDAVU, MADATHIL HOUSE,, KOZHUKALLOOR P.O., VIA MEPPAYUR, KOZHIKODE DIST. ``` ``` BY ADV SRI.N.K.SUBRAMANIAN ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA`** - **`THE SECRETARY TO GOVERNMENT, DEPARTMENT OF, CO-OPERATION, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM.`** - **`2 THE ADDITIONAL REGISTRARSECRETARY KERALA STATE EMPLOYEES PENSION BOARD,, THIRUVANANTHAPURAM.`** - **`3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOZHIKODE.`** - **`4 THE MEPPAYUR SERVICE CO-OPERATIVE BANK LTD., NO.D2019, MEPPAYURE P.O., KOZHIKODE DISTRICT.`** - **`5 THE BOARD OF DIRECTORS THE MEPPAYUR SERVICE CO-OPERATIVE BANK LTD.,, NO.D 2019, MEPPAYURE P.O., KOZHIKODE DISTRICT.`** ``` BY ADVS. SRI.V.C.MADHAVANKUTTY SRI.K.P.SUDHEER ``` ``` 2025:KER:20338 ``` ``` 2 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` ``` OTHER PRESENT: ``` ``` R1 AND 3 - SRI.BINOY DAVIS, GOVERNMENT PLEADER R2 - SRI.M.SASINDRAN,SC R4 AND 5 - SRI.K.P.SUDHEER ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:20338 ``` ``` 3 ``` ``` WP(C) No.10634 of 2010 ``` **==> picture [58 x 57] intentionally omitted <==** ## **JUDGMENT** Dated this the 5th day of March, 2025 The writ petition is preferred challenging Exts.P6, P7, P8, P11 and P14 orders. The petitioner further seeks a direction to the 2[nd] respondent to commence the period of enrollment under the 2[nd] respondent from 15.04.1974 and grant the retirement benefits accordingly. 2. It is the case of the petitioner that he retired from service of the 4[th] respondent as a Secretary. While in service he was subjected to disciplinary proceedings and dismissed. That resulted in a series of litigations and finally Ext.P4 judgment. Consequently, he was reinstated in service on the basis of resolution taken by the 5[th] respondent as per resolution No.5 dated 31.3.2006 and an agreement was entered into between the petitioner and the 5[th] respondent, wherein he was allowed to continue in service from the date of suspension, i.e., 23.12.1993 forenoon. From that date to 31.01.2003, he was treated as Assistant Secretary and from 01.02.2003 he was promoted and designated as Secretary till his retirement on 31.03.2004. His service from 15.04.1974 to 31.03.2004 was treated as continuous. From 23.12.1993 to 31.03.2004, his ``` 2025:KER:20338 ``` ``` 4 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` arrears of salary, leave surrender benefit, bonus, medical allowance and gratuity disbursed at the time of retirement, which comes to Rs.6,75,000/- were disbursed. Necessary steps were taken to ensure the disbursement of his benefits by treating him as having retired as Secretary on 31.03.2004, with a rider, no further litigation in this regard. 3. In accordance with the directions in Ext.P4 judgment and as per the agreement entered into between the 5[th] respondent and the petitioner, the 2[nd] respondent has, after hearing the petitioner, fixed the pension from the date 01.07.1977, the date on which the Provident Fund Scheme commenced. 4. It is the case of the petitioner that he was sanctioned with provisional monthly minimum pension of Rs.4,140/- by Ext.P7. That amount of pension was sanctioned taking into consideration the total length of service as 307 months instead of 359.5 months and thereby his pension has been reduced considerably. Thereafter, on sanctioning regular pension, the final pension amount is fixed at Rs.5,529/- per month from 01.04.2004. According to the petitioner, he is entitled for an amount of Rs.6,960/- as monthly pension and ``` 2025:KER:20338 ``` ``` 5 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` thereby occurred a loss of Rs.1,431/- per month. Aggrieved by the same, the petitioner preferred an appeal before the 2[nd] respondent. On considering the said appeal, by Ext.P11, the 2[nd] respondent rejected the contentions of the petitioner. Thereafter the petitioner preferred a representation before the Minister of the Department as per Ext.P12. In the meanwhile, the 5th respondent granted the benefit of higher grade to the petitioner with retrospective effect from 01.02.2003 and requested to the 2[nd] respondent to enhance the pension in accordance with the new rate of salary paid to the petitioner. However, that was declined as per Ext.P14 on the ground that the higher grade was sanctioned with retrospective effect and only a nominal amount was paid as contribution. Hence, the payment of huge amount as arrears with retrospective effect would cause an unnecessary financial burden. Therefore, only applications which received within one year from the date of retirement alone will be considered. 5. Thereafter the Society has taken a decision to remit the contribution from 15.4.1977 and had taken sufficient steps to enable the 2[nd] respondent to calculate and arrive at the pension amount legally eligible to the petitioner from the ``` 2025:KER:20338 ``` ``` 6 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` date of entry in service. In support of the above contention, the petitioner produced certain additional documents to show that the Society has paid its contribution to the Kerala State Co-operative Employees’ Pension Board from 05.04.1974. The petitioner is reiterating the stand that he is entitled to the pensionary benefits calculating the benefits from 15.04.1974 and also to take into account the higher grade granted with retrospective effect after his retirement. 6. In support of the contentions, the learned counsel for the petitioner brought my attention to the reported decision in **Narayana Kuruppu v. Kerala State Co-operative Employees Pension Board** [2012 (2) KLT 207] wherein it is held that if an employee is not eligible for pension, it should be made clear before receiving contribution under the Scheme and not after a considerable period of time. The Pension Board cannot adjudicate whether the appointment was bad for any reason. 7. Per contra, the learned counsel for the 2[nd] respondent submitted that the petitioner had entered into the service of the 4th respondent Society on 15.04.1974. The Contributory Provident Fund in the name of the petitioner ``` 2025:KER:20338 ``` ``` 7 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` started only with effect from 01.07.1977. As per clause 19 (1) (a) of the Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994, qualifying service is defined as follows; “(1)(a) in the case of an employee who was in service of a Society or a Board constituted under the Act on the date of application of the Scheme to that Society or such Board the length of the service commencing from the date of joining the Contributory Provident Fund.” 8. Therefore, qualifying service of the petitioner can be taken from 01.07.1977, the date on which the Contributory Provident Fund Scheme was implemented. It is also contended that the higher grade granted after the retirement with retrospective effect cannot be taken into consideration for revising the pensionary benefits. Since the contribution paid towards the Self Financing Pension Scheme is a meager one, in accordance with the then available monetary value of the salary, the 2[nd] respondent Pension Fund Board did not receive proportionate contribution in accordance with the revised salary taking into consideration the higher grade granted with ``` 2025:KER:20338 ``` ``` 8 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` retrospective effect. If such revision is effected in pension, that will ultimately affect the resources of the Pension Fund Board and it may affect its future capability to grant pension to the retired employees. Hence, the prayer in the writ petition cannot be granted, the counsel argued. 9. On the other hand, the learned counsel for the respondent in its statement mentioned various decisions to substantiate that, the qualifying service of an employee can only be reckoned from the date of joining the Contributory Provident Fund, which are **Sukumaran N. v. Kerala State Co-operative Employees’ Pension Board, Thiruvananthapuram [2010 (4) KHC 859], Pushpam C. v. State of Kerala and others [2015 (4) KLT 265] and also Purushothaman K. and another v. Kerala State Cooperative Employees’ Pension Board [2011 (3) KHC 325]** wherein it was specifically held that Clause (1)(a) of para 19 stipulates that in the case of an employee who was in the service of a society on the date of application of the scheme to that society, the length of the service commencing from the date of joining the Contributory Provident Fund shall be the qualifying service for the purpose of grant of pension. The first ``` 2025:KER:20338 ``` ``` 9 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` proviso however stipulates that the qualifying service shall be limited to the period for which the employer’s contribution towards the Provident Fund has been fully paid by the society in respect of that employee. 10. This position has been upheld by the Division Bench in **Purushothaman K** . **v. Kerala State Co-operatives Employees’ Employees’ Pension Board** [2011 (4) KLT 455]. 11. In response to that the learned counsel for the petitioner submitted that the 2[nd] respondent has accepted the contribution made by the Society as per Ext.P16 Resolution even prior to the date of implementation of the scheme in the Society. In response, the learned counsel for the 2[nd] respondent submitted that they are ready to refund the excess amount paid to them by the Society as per Ext.P16. 12. I have heard Sri.N.K.Subramanian, the learned counsel for the petitioner, Sri.M.Sasindran, the learned Standing Counsel for the 2[nd] respondent, Sri. K.P.Sudheer, the learned counsel for respondents 4 and 5 and also Sri. Binoy Davis, the learned Government Pleader for the 1[st] respondent. 13. Having considered the submissions made across the Bar, it appears that the petitioner joined the service of the ``` 2025:KER:20338 ``` ``` 10 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` 4[th] respondent Society with effect from 15.04.1974. The name of the petitioner was included in the Contributory Provident Fund with effect from 01.07.1977. In fact, during his tenure, the petitioner was subjected to disciplinary proceedings. Initially he was suspended and later terminated. Litigation ended up in Ext.P4 judgment. In the light of Ext.P4 judgment, an agreement has been entered into between the petitioner and the 5[th] respondent Society. 14. As per the terms of the agreement, petitioner's service has been regularised with effect from date of suspension 22.12.1993 and later he was permitted to continue as Assistant Secretary upto 31.01.2003. Thereafter on 01.02.2003 he was promoted as Secretary and allowed to retire from service on 31.03.2004. A decision was also taken to treat the entire period of service till the retirement as a continuous service. The entire benefits pertaining to the said period were decided to be granted to the petitioner. Further steps have been ensured to provide pension to the petitioner treating that he was retired on 31.03.2004 after a continuous service. It is also decided that in future no legal steps will be taken pursuant to the matter involved in the litigation. ``` 2025:KER:20338 ``` ``` 11 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` Accordingly Ext.P5(a) agreement was signed between the 5[th] respondent and the petitioner. 15. However, as per Ext.P6, the Pension Board has sanctioned pension to the petitioner calculating the pension from the date of joining the pension scheme, i.e., on 01.07.1977, and the Society was directed to remit the arrears of pension contribution with effect from 01.07.1977. When the Society effects the payment of arrears, it was decided to sanction the arrears to the petitioner. However, the Board has taken a decision that it cannot grant any concession in collecting the interest on the arrears paid to Society. As per the Pension Payment Order, which is produced as Ext.P7, it can be seen that the petitioner’s date of joining to the Contributory Provident Fund Scheme is only from 01.07.1977, though he entered into service with effect from 01.07.1974. 16. Under such circumstances, considering Clause 19(1)(a) of the Kerala Co-operative Societies Employees’ Self Financing Pension Scheme, the petitioner is entitled to pensionary benefits from the date on which he entered into the pension scheme, i.e., from 01.07.1977, the date on which the scheme was made applicable to the 4[th] respondent Society. ``` 2025:KER:20338 ``` ``` 12 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` However, the Society as per Ext.P16 decided to remit the contribution with retrospective effect from 15.04.1974 to the Contributory Provident Fund and the 2[nd] respondent has also accepted the amount. 17. Taking into consideration, Clause 19(1)(a) of the Scheme, I do not find any merit in the contention of the petitioner that he is entitled to get pension from the date on which the payment is effected to the Board. However, I cannot defer with the plea raised by the petitioner that the contribution has been paid to the Society much prior to the implementation of the Scheme with retrospective effect. But that cannot be a reason for granting pension to the petitioner taking into account the fact that the amount was paid retrospectively. That too, prior to the date of commencement of the Scheme. 18. I have also considered the contentions of the petitioner that he is entitled to the revised pensionary benefits taking into account the grade given to him after his retirement with retrospective effect. I cannot concede to the contention of the petitioner since the contribution paid by the Society on behalf of the petitioner was meagre and grade was given one ``` 2025:KER:20338 ``` ``` 13 ``` **==> picture [58 x 57] intentionally omitted <==** ``` WP(C) No.10634 of 2010 ``` year after the retirement; that too, with retrospective effect. Without getting any proportionate contribution, if the 2[nd] respondent effects revision taking into consideration of the grade granted to the petitioner with retrospective effect, that will ultimately affect the resources of the 2[nd] respondent, especially the process of effecting payment of other employees. Hence, that prayer of the petitioner cannot be accepted based on the finding that the stand taken by the Board is correct. Under such circumstances, I do not find any merit to interfere with the matter. However, the Pension Board is not entitled to retain the contribution made by the Society, which is in excess of the required amount since the amount is paid from 15.04.1974 prior to the date of implementation. The excess payment made shall be refunded to the Society with statutory interest. If the Society desires to disburse the same to the petitioner, the Society is free to do the same. The writ petition is disposed of accordingly. ## **P.M.MANOJ JUDGE** das ``` 2025:KER:20338 ``` ``` 14 ``` ``` WP(C) No.10634 of 2010 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`APPENDIX OF WP(C) 10634/2010`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF APPOINTMENT LETTER DT.15.4.74 EXHIBIT P2TRUE COPY OF ORDER NO.MSB/1/7/97/ DT.28.7.97 EXHIBIT P3TRUE COPY OF GO(RT) NO.639/2003/CO-OP. DT.3.11.03 EXHIBIT P4TRUE COPY OF JUDGMENT IN WPC NO.39379/03 DT.4.4.06 EXHIBIT P5TRUE COPY OF RESOLUTION DT.31.3.06 EXHIBIT P6TRUE COPY OF ORDER NO.PB/P3/891/KKD DT.15.1.07 EXHIBIT P7TRUE COPY OF PENSION PAYMENT ORDER NO.417/KKD DT.23.2.07 EXHIBIT P8TRUE COPY OF ORDER NO.PB.PPO.417/KKD DT.26.7.07 EXHIBIT P9TRUE COPY OF APPEAL DATED 14.2.08 EXHIBIT P10TRUE COPY OF LETTER DATED 3.4.08 EXHIBIT P11TRUE COPY OF ORDER NO.PB/P3/417/KKD DT.13.6.08 EXHIBIT P12TRUE COPY OF REPRESENTATION DT.22.7.08 EXHIBIT P13TRUE COPY OF ORDER NO.MSB/GR.1/09 DT.10.7.09 EXHIBIT P14TRUE COPY OF ORDER NO.PB/P3/417/KKD DT.13.10.09 EXHIBIT P15TRUE COPY OF LETTER NO.2.11.09 EXHIBIT P16TRUE COPY OF RESOLUTION DT.15.5.06 EXHIBIT P17TRUE COPY OF LETTER DT.31.5.06 EXHIBIT P18TRUE COPY OF LETTER DT.31.5.06 EXHIBIT P19TRUE COPY OF LETTER 10.3.10 EXHIBIT P20TRUE COPY OF REPRESENTATION DATED 9.6.2014 EXHIBIT P21TRUE COPY OF COMMUNICATION DATED 17.6.2014 Exhibit P22THE TRUE COPY OF PAY IN SLIP DATED 31.05.2006. Exhibit P23THE TRUE COPY OF PAY IN SLIP DATED 17.11.2006. ``` ``` 2025:KER:20338 ``` ``` 15 ``` ``` WP(C) No.10634 of 2010 ``` **==> picture [58 x 57] intentionally omitted <==** ``` Exhibit P24 ``` ``` THE TRUE COPY OF PAY IN SLIP DATED 26.05.2007. ``` ``` Exhibit P25 ``` ``` THE TRUE COPY OF PAY IN SLIP DATED 28.06.2007. ``` ``` Exhibit P26 ``` ``` THE TRUE COPY OF PAY IN SLIP DATED 18.07.2007. ``` ``` Exhibit P27 ``` - **`CONSOLIDATED STATEMENT OF DETAILS OF PAYMENT INCLUDING THE ADDITIONAL PAYMENT OF GRANTING THE HIGHER GRADE ISSUED BY THE 4TH RESPONDENT.`** ``` Exhibit P28 ``` ``` THE CALCULATION OF MY PENSION FUND CALCULATED FROM 01.08.1974, WHICH IS THE DATED OF MY JOINING DUTY TILL MY RETIREMENT. ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R2(a)True copy of the judgment dated 06.02.2014 in WP(C) No.2805/2010 ```