M.K. Shanmughan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY ,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941** ## **WP(C).No. 4785 of 2019** ## **PETITIONER/S:** **M.K.SHANMUGHAN AGED 72 YEARS S/O. KRISHNAN, OPERATOR(HR.GRADE)(RETD), WATER SUPPLY SECTION NORTH PARAVUR, RESIDING AT MULAKKAL HOUSE, THUNDATHUMKADAVU, VARAPUZHA P.O, ERNAKULAM DISTRICT683517.** **BY ADVS. SMT.VINEETHA SUSAN THOMAS SRI.CHRISTY THOMAS** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS PRINCIPAL SECRETARY, WATER**| ||**RESOURCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-**| ||**695001.**| |**2**|**THE MANAGING DIRECTOR,**| ||**KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM,**| ||**THIRUVANANTHAPURAM, PIN-695821.**| |**3**|**THE ACCOUNTS OFFICER(ESTABLISHMENT),**| ||**KERALA WATER AUTHORITY, JALABHAVAN,**| ||**VELLAYAMBALAM,THIRUVANANTHAPURAM-695821.**| |**4**|**THE ACCOUNTS OFFICER(FUNDS)**| ||**KERALA WATER AUTHORITY, JALABHAVAN,**| ||**VELLAYAMBALAM,THIRUVANANTHAPURAM-695821.**| |**5**|**THE EXECUTIVE ENGINEER,**| ||**PUBLIC HEALTH DIVISION, KERALA WATER AUTHORITY,**| ||**ALUVA, COCHIN-683101.**| 2 _**WP(C).4785/19**_ **6 THE ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, NORTH PARAVUR-683513.** **BY ADV. SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** ## **OTHER PRESENT:** ## **BIJOY CHANDRAN GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 _**WP(C).4785/19**_ ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 4785 of 2018** ## **----------------------------------------------Dated this the 2[nd] day of April, 2019** ## **JUDGMENT** This writ petition is filed seeking the following prayers: - _“i. issue a writ of certiorari or other appropriate writ or direction, quashing Exhibit P1 order in so far as the qualifying service of the petitioner for pensionary benefits is mistakenly calculated therein only as 24yrs 5 months and 28 days, instead of 24 years 6 months and 4 days, thereby enabling it to be rounded to 25 years._ - _ii. issue a writ of mandamus or other appropriate writ or direction, commanding the respondents to count the qualifying service of the petitioner as 24 yrs 6 months and 4 days, which is to be rounded off to 25 years, as ruled in Exhibit P3 Division Bench judgment which is upheld by Apex Court (P4) and in Rule 57 Part III KSR and to disburse his all pensionary benefits viz pension, DCRG, commutation and residuary pension including arrears, on that basis within a time frame._ - _iii. to declare that the petitioner is entitled to count to his qualifying service, 6 extra days also, which accumulated to his credit by virtue of 6 leap years, intervened during his service, as has been ruled in P3 judgment, for the payment of all pensionary benefits to him and he is entitled to get all benefits viz. pension, DCRG, commutation and residuary pension etc. and arrears on that basis within a specified time._ 4 _**WP(C).4785/19**_ 2. Heard Sri.Sampath V.Toms, learned counsel for the petitioner, Sri.Bijoy Chandran, the learned Government Pleader and Sri.Benjamin Paul, the learned Standing Counsel appearing for respondents 2 to 6. 3. It is submitted by learned counsel for the petitioner that if the six leap years during his tenure in service are taken into account, the petitioner would have 24 years, six months and 4 days of service and as such, the qualifying service would be liable to be rounded off as 25 years. Relying on the decision of this Court in _**Mathai M.V. v. Accountant General (A&E), Tvm.**_ [ILR 2015(4) Kerala 682] as affirmed in _**Accountant General (A&E), Tvm. v. Mathai M.V.**_ [2017(3) KLT 842], learned counsel for the petitioner submits that the six leap years and the corresponding six working days are liable to be added to the qualifying service of the petitioner and he would be entitled to fixation of pension reckoning his qualifying service as 25 years. It is submitted that by Exhibit P4, the SLP preferred as against the Division Bench judgment of this Court has also been dismissed and as such, Exhibits P2 and P3 judgments have become final. 4. Respondents 3 to 6 have placed a counter affidavit on record. It is submitted that the petitioner had entered service as SLR worker through the Employment Exchange on 4.2.1976 and was absorbed to regular establishment in 1985. It is stated that the petitioner was promoted as Operator with effect from 1.11.1983 and he retired on 5 _**WP(C).4785/19**_ superannuation on 31.1.2002. It is stated that the petitioner had 24 years, 5 months and 28 days as qualifying service. It is contended that there can be no change by completion of years of service due to existence of leap years. It is stated that the service rules refer to completed years of service and that as such the existence of the leap years can make no difference to the computation of the qualifying service. It is further contended that the petitioner having retired from service in 2002 has chosen to approach this Court only in the year 2019, and as such, the claim is highly belated. 5. Learned counsel for the petitioner would contend that the arguments with regard to completed years of service had been raised before this Court in Exhibit P3 also. The Division Bench of this Court, after considering the contentions raised with regard to the language of the Rules in the Kerala Service Rules including Rule 57(1) of Part III KSR and Sub-Rule (21) of Rule 12 of Part I KSR, the Division Bench held that the extra days in leap years are liable to be taken note of and the qualifying service is to be reckoned accordingly. It is stated that the appeal taken by the Government against Exhibit P3 judgment was also dismissed by the Apex Court by Exhibit P4. It is therefore contended that the contentions raised in the counter affidavit are untenable and the petitioner would be entitled to reckoning of qualifying service of 25 years and for revision of pension accordingly. 6 _**WP(C).4785/19**_ 6. With regard to the contentions that the petitioner's claim is belated, the learned counsel relies on the decision of a Division Bench of this Court in _**S.Sasikumar v. The Pathanamthitta District Cooperative Bank Ltd.**_ [ILR 2019(1) Kerala 168]. It is stated that in the said case also, the claim was with regard to the arrears of pay for the period from 1.7.2002 to 30.6.2003. The learned single Judge had dismissed the writ petition filed in 2018 on the ground that it was belated and that no reason had been stated justifying the delay. Relying on the decisions of the Apex Court in _**D.S.Nakara and others v. Union of India**_ [AIR 1983 SC 130], _**State of Utter Pradesh Arvind Kumar Srivastava**_ [(2015)1 SCC 347] and _**Union of India v. Tarsem Singh**_ [(2008)8 SCC 648], the Apex Court held that the writ petition ought not to have been dismissed on the sole ground of delay. It was stated that the denial of arrears to pay for the period from 1.7.2002 to 30.6.2003 to the appellants amounts to a continuing wrong and that the writ petition ought not to have been rejected on the ground of delay. In the instant case, the claim of the petitioner is with regard to revision of pension. The pension being payable every month, any reduction therefrom is also a continuing wrong which is liable to be corrected at the instance of the pensioner. 7. In view of the finding of the Division Bench of this Court in _**S.Sasikumar's case (supra)**_ , I am of the opinion that this Court may 7 _**WP(C).4785/19**_ not be justified in rejecting the claim of the petitioner for revision of pension. Since the issue stands covered by Exhibits P2 and P3 judgments, the petitioner would be entitled to the benefit of revision of pension accordingly.. The Division Bench has specified that the pensioner would not be entitled to interest on account of the delay in approaching this Court. The same yardstick can be adopted in the instant case as well and the petitioner will not be entitled to any interest on arrears payable to him on the revision and refixation of the pension. In the result, the writ petition is allowed. There will be a direction to the respondents to reckon the extra six days on account of the leap years during the petitioner's service and to count the qualifying service as 24 years six months and four days which is liable to be rounded off as 25 years. Appropriate revision shall be carried out on the petitioner's pension and the arrears shall be disbursed within a period four months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** _vgs5/4_ 8 _**WP(C).4785/19**_ ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE PENSION PAYMENT ORDER NO.3652 DATED NIL.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WPC.NO.10405/2009 DATED 22.09.2015.** **EXHIBIT P3 TRUE COPY OF THE DIVISION BENCH JUDGMENT DATED IN WA.146/2016 DATED 17-07-2017.** **EXHIBIT P4 TRUE COPY OF THE ORDER IN SLP(CIVIL) 27604/2017 DATED 26.11.2018.** **EXHIBIT P5 TRUE COPY OF THE DETAILED REPRESENTATION SUBMITTED BEFORE ALL THE RESPONDENTS BY THE PETITIONER DATED 10-01-2019.** **EXHIBIT P6 TRUE COPY OF THE POSTAL RECEIPTS EVIDENCING DISPATCH OF THE REPRESENTATIONS TO ALL THE RESPONDENTS DATED 28-01-2019.**