M.J. Rajam v. Kerala State Electricity Board Ltd. (WP(C).Nos.14478/19 & con.cases; WP(C).No.17190/2021; WP(C).No.26896/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944** **WP(C) NO. 14478 OF 2019** ## **PETITIONER:** M.J.RAJAM AGED 71 YEARS ASST. ACCOUNTS OFFICER (RTD), RESIDING AT VILANILATH BINVILLA, THITTAMEL, CHENGANNUR P.O.,689 121 BY ADVS. HARISH GOPINATH SRI.P.I.NAJUMAL HUSSAIN ## **RESPONDENTS:** 1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004 2 DEPUTY CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD,OFFICE O THE CHIEF ENGINEER (HRM),VYDYUTHI BHAVANAM, PATTAIM, THIRUVANANTHAPURAM-695 004 3 ACCOUNTS OFFICER (PENSION AUTHORISATION), KERALA STATE ELECTRICITY BOARD, OFFICE OF THE CHIEF ENGINEER (HRM),VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004 4 THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, CHENGANNUR-689 121 W.P.(C).Nos.14478/19 & con.cases **==> picture [7 x 8] intentionally omitted <==** BY ADV SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH WP(C).17190/2021, 26896/2019, THE COURT ON 19.08.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.14478/19 & con.cases 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 WP(C) NO. 17190 OF 2021** ## **PETITIONER:** G.LALITHAMMA AGED 75 YEARS (RETIRED SR.SUPERINTENDENT, KERALA STATE ELECTRICITY BOARD, W/O.V.JAYACHANDRAN, RESIDING AT PAURNAMI, MRA 37, PONGUMOODU, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM, PIN -695011. BY ADV THIRUMALA P.K.MANI ## **RESPONDENTS:** 1 KERALA STATE ELECTRICITY BOARD - KSEB REPRESENTED BY ITS SECRETARY, VAIDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN-695009. 2 CHIEF ENGINEER(HRM), KERALA STATE ELECTRICITY BOARD, VAIDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM,PIN-695009. W.P.(C).Nos.14478/19 & con.cases 4 3 ACCOUNTS OFFICER(PENSION AUTHORITIES), KERALA STATE ELECTRICITY BOARD, VAIDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM,PIN-695009. BY ADV M.K.THANKAPPAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH WP(C).14478/2019 AND CONNECTED CASES, THE COURT ON 19.08.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.14478/19 & con.cases 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 WP(C) NO. 26896 OF 2019** ## **PETITIONER/S:** R.SUSEELA DEVI, AGED 71 YEARS RETIRED DEPUTY CHIEF ENGINEER/DIRECTOR OF MANAGEMENT INFORMATION SYSTEM (MIS), KERALA STATE ELECTRICITY BOARD LTD., VAIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. RESIDING AT KEERTHANAM, T.C.3/2476/MGRA-105, TKD ROAD, PATTOM, THIRUVANANTHAPURAM - 695 004. BY ADVS. S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY ## **RESPONDENT/S:** 1 KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN -695 004, REPRESENTED BY ITS SECRETARY. 2 CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN- 695 004. 6 ## W.P.(C).Nos.14478/19 & con.cases 3 SECRETARY (ADMINISTRATION), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. 4 CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. 5 ACCOUNTS OFFICER (PENSION AUTHORIZATION), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN-695 004. BY ADV SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2022, ALONG WITH WP(C).14478/2019 AND CONNECTED CASES, THE COURT ON 19.08.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.14478/19 & con.cases 7 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.14478 & 26896 of 2019 and 17190 of 2021 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of August, 2022** ## **JUDGMENT** 1.Heard the learned counsel for the petitioners and the learned standing counsel appearing for the respondents. 2.These writ petitions are filed challenging orders of revision of pension and recovery thereof after the retirement of the petitioners. The petitioners were employees of the Kerala State Electricity Board. They had retired from service in 2001 and 2003. Pensionery benefits were calculated and sanctioned to them and were being paid. During the service in the KSEB the petitioners had availed Leave Without Allowance (LWA for short). In the case of the petitioner in W.P.(C).No. 14478 of 2019 the relevant period of LWA is from 1.6.1978 to 25.9.1981 and from 18.6.1984 to 31.5.1987. The petitioner in W.P.(C).No.26896/2021 had availed LWA from 1.4.1976 to 5.2.1979 and from 10.5.1982 ## W.P.(C).Nos.14478/19 & con.cases 8 to 9.5.1983, while the petitioner in W.P.(C).No.17190 of 2021 had availed LWA from 13.2.1978 to 10.2.1983. Earlier the petitioners had approached this Court when the period of LWA was sought to be excluded from their qualifying service. Judgments were rendered directing that the period of LWA availed by the petitioners cannot be disregarded for the purpose of calculating service benefits, including increment and grade promotions. Thereafter, the entire benefits were released and pension was also fixed taking note of the period spent on LWA as well. It is submitted that long after the retirement of the petitioners, orders were passed re-fixing the pension and ordering recovery on the ground that the LWA periods had been directed for recokening of grade promotions and increments and not for the purpose of pension. - 3.The learned counsel for the petitioners submit that their entitlement for counting the period of LWA availed by them before the introduction of Appendix XII A in the Kerala Service Rules (KSR for short) stands settled by judgments W.P.(C).Nos.14478/19 & con.cases 9 of this Court and that the petitioners had also admittedly retired in 2001 and 2003 and had been paid the entire pensionery benefits, reckoning the LWA availed by them also as qualifying service. It is, therefore, submitted that at this distance of time, the respondents are absolutely unjustified in attempting to revise the pensionery benefits and make recovery of amounts from the petitioners contrary to the judgments of this Court specifically rendered inter se between the petitioners and the Board. 4.Counter affidavit has been placed on record in this matter. The contentions are that the judgments obtained by the petitioners in 2002 and 2003 was with regard to the entitlement to higher grade counting the leave availed by them and that the question of counting the period for pension was not considered in those cases. It is contended that going by the guidelines in GO(P) NO.274/70/Fin dated 29.4.1970, the LWA availed before the introduction of Appendix XIIA in Part I KSR would also not count for pension. It is, therefore, contended that the grant of W.P.(C).Nos.14478/19 & con.cases 10 pensionery benefits to the petitioners recokening the period of LWA availed by them before Appendix XIIA was introduced in the KSR was erroneous and that there is nothing wrong in the orders now passed. 5.I have considered the contentions advanced. The entitlement of the petitioners to reckon the period of LWA availed by them before the introduction of Appendix XIIA to Part I KSR stands settled by judgments obtained by the petitioners as against the respondents as admitted in the counter affidavit filed by the respondents. The learned counsel for the petitioner in W.P.(C).No.17190 of 2021 would contend that the judgment relied on by the respondents in the counter affidavit has absolutely no application, since that was specifically a case where the condition that the period of leave availed would not be counted for any benefits was specified in the order granting the leave itself. It is submitted that in the instant case, since the Board had admittedly re-fixed the pension due to the petitioners taking note of the LWA availed by them in W.P.(C).Nos.14478/19 & con.cases 11 the 1970s and in the early 80s also and that the petitioners had been drawing the said revised pension, there is absolutely no justification in the present impugned orders. 6.I notice that the petitioners' right to count the LWA availed by them before the introduction of Appendix XII A to the Part I KSR stands settled by the judgments of this Court. The respondents had accepted the said judgments and revised the pension, granting all benefits to the petitioners reckoning the said period as qualifying service. The contention that the judgments only directed the grant of higher grade taking the LWA availed by them also as qualifying service is utterly fallacious in view of the fact that service which counts for increment and grade promotions cannot be omitted to be counted for pension as well, unless there are specific orders to that effect. In the instant case, the petitioners have retired in the years 2001 and 2003 respectively. Their pension was fixed and sanctioned counting the period of LWA availed by them. At this distance of time, the attempt of the respondents to W.P.(C).Nos.14478/19 & con.cases 12 revise the said orders and to re-fix the pensionery benefits or to recover the amounts from the petitioners is completely illegal and unsustainable, apart from being an arbitrary exercise of power. 7.The Apex Court has time and again considered the attempts of the State and quasi-Governmental authorities to effect recovery from retired persons and has held that the belated attempts to re-fix pensionery benefits and order recovery of amounts from pensioners is to be deprecated. The decision of the Apex Court in **State of Punjab** v. **Rafiq Masih (White Washer)** [(2015) 4 SCC 334] is only one such instance where precedents on the point had been examined and it was held that the attempts for revision and refixation of service benefits long after retirement is impermissible. In the instant case also, there is absolutely no justifiable reason for the attempt to re-fix the pension of persons who retired from service in 2001 and 2003, more so, in view of the fact that they had been held entitled to the benefits by judgments of this Court. W.P.(C).Nos.14478/19 & con.cases 13 8.In the result, the writ petitions are liable to be allowed. I do so. The impugned orders are set aside. The petitioners shall continue to draw pensions and all other benefits without any deductions thereon and all future increments to the pension will also be duly disbursed to the petitioners. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).Nos.14478/19 & con.cases 14 ## **APPENDIX OF WP(C) 14478/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 14/3/2003 IN OP NO.2774 OF 2003 P0ASSED BY THIS HONOURABLE COURT EXHIBIT P2 TRUE COPY OF ORDER DATED 03/11/2003 BY THE 2ND RESPONDENT - EXHIBIT P3 TRUE COPY OF LETTER DATED 6/4/2019 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT EXHIBIT P4 TRUE COPY OF ORDER OF THE 2ND RESPONDENT DATED 1/2/2019 EXHIBIT P5 TRUE COPY OF OFFICE ORDER (CMD) NO.1026/2018 (ESTT.VIII/4354/2018 DATED 24.12.2018 RESPONDENT EXHIBITS EXHIBIT R1 TRUE COPY OF THE GUIDELINES IN G.O(P) NO.274/70/FIN.DATED 29.04.1970. EXHIBIT R1(b) TRUE COPY OF THE JUDGMENT DATED 23.01.2007 IN WP(C) NO.12136/2004 FILED BY SRI PONNAPPAN PILLAI. W.P.(C).Nos.14478/19 & con.cases 15 ## **APPENDIX OF WP(C) 17190/2021** PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 16.01.2018 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR KERALA STATE ELECTRICITY BOARD Exhibit P2 TRUE PHOTOCOPY OF THE ORDER DATED 27.06.2018 PASSED BY THE 3RD RESPONDENT REVISING THE PENSIONARY AND OTHER SERVICE BENEFITS OF THE PETITIONER Exhibit P3 TRUE PHOTOCOPY OF THE ORDER DATED 15.02.2019 PASSED BY THE 3RD RESPONDENT CANCELLING THE REVISAL OF PENSION AND OTHER SERVICE BENEFITS GRANTED TO THE PETITIONER Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 09.08.2021 CLAIMING REVISAL OF PENSION AND OTHER SERVICE BENEFITS TREATING THE LWA AS QUALIFYING SERVICE. RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE RELEVANT PAGE OF GO(P) 274/70/FIN DATED 29.4.1970 W.P.(C).Nos.14478/19 & con.cases 16 ## **APPENDIX OF WP(C) 26896/2019** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 19/10/2006 IN O.P.NO.2922/2003 OF THIS HON'BLE COURT. - EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 19/01/2009 IN W.P (C) NO.1879/2009 OF THIS HON'BLE COURT. - EXHIBIT P3 TRUE COPY OF THE ISSUED ORDER NO.B3/CE(HRM)/09-10 DATED 13/04/2009 OF THE 4TH RESPONDENT. - EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 25/06/2012 IN W.A.NO.1843/2007 OF THIS HON'BLE COURT. - EXHIBIT P5 TRUE COPY OF THE LETTER NO.PA VI/PPO 32446 DATED 24/09/2019 OF THE 5TH RESPONDENT. - EXHIBIT P6 TRUE COPY OF THE OFFICE ORDER (CMD) NO.1563/2019(ESTT.VIII/4354/2018) DATED 31/08/2019 OF THE 3RD RESPONDENT, FROM THE OFFICE OF THE 5TH RESPONDENT. - EXHIBIT P7 TRUE COPY OF THE ORDER NO.B.O.(MF) NO.105/2013 (LAS I/13000/08) DATED 16/01/2013. EXHIBIT P8 TRUE COPY OF THE ORDER NO.EBPS9/833/2003 DATED 17/12/2013 OF THE KSEB. 17 W.P.(C).Nos.14478/19 & con.cases RESPONDENT EXHIBITS Exhibit R1(A) TRUE COPY OF THE GOVERNMENT ORDER NO. G.O(P) 274/70/FIN. DATED 29/04/1970 Exhibit R1(B) TRUE COPY OF THE JUDGMENT DATED 23/01/2007 IN W.P(C)12136/2004 TRUE COPY PS TO JUDGE