Mohana Kumar.K.P. v. State of Kerala and Others

W.P.(C).No.26954/18 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** ## **WP(C) NO. 26954 OF 2018** ## **PETITIONER:** MOHANA KUMAR.K.P. AGED 66 YEARS S/O. K. PADMANABHAN NAIR,'THRIPATHAM', NEAR VGHS, CHITTOOR P.O, PALAKKAD - 678 101. BY ADV SMT.JAYASREE MANOJ ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,AGRICULTURE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE AGRICULTURAL PRODUCTION KOZHIKODE, CIVIL STATION, KOZHIKODE - 680 20. 3 THE DISTRICT COLLECTOR KOZHIKODE, CIVIL STATION, KOZHIKODE - 678 020. 4 THE SECRETARY IN CHARGE OF MALABAR MARKETING COMMITTEE CIVIL STATION, KOZHIKODE PIN - 673 001. BY ADV GOVERNMENT PLEADER SRI.SUNIL KURIAKOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2022, THE COURT ON 4.11.2022 DELIVERED THE FOLLOWING: W.P.(C).No.26954/18 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.26954 of 2018** **= = = = = = = = = = = = = = = = Dated this the 4[th] day of November, 2022** ## **JUDGMENT** ## 1. This writ petition is filed with the following prayers:- “1.To call for the records leading to the issuance of Ext.P25 and to quash the same by issuing a writ of certiorari or any other appropriate writ direction or order. 2. To call for the records leading to the issuance of Exhibits P9 and P17 orders and to quash the same to the effect it restricts the benefits conferred therein to the employees of erstwhile Malabar Market Committee serving under the Government as on the date of issuance of Exhibit P9 order. 3.To issue a writ of mandamus or any other appropriate Writ, Direction or order commanding the respondents to extend the benefits conferred as per Exhibit P9 and P17 Government Orders to the petitioner and to disburse all consequent monitory benefits forthwith. 4.To call for the records leading to the issuance of Exhibits P13, P14, P16, P20 and P22 and to quash the same. 5. To issue a Writ of mandamus or any other appropriate Writ, Direction or Order commanding the respondents to extend the benefits of G.O.(P) No. 3000/98/Fin dated 25.11.1998 with effect from 01.03.1997 the benefit of G. O.(P) 145/2006/Fin dated 25.03.2006 with effect from 01.07.2004 and to disburse all monitory benefits consequent to the same to the petitioner forthwith. W.P.(C).No.26954/18 3 6.To declare that the petitioner is also entitled to all the benefits that are already extended and to be extended in future to those employees who were redeployed to Government Departments as per Exhibit P3 along with the petitioner.” 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3.It is submitted that the petitioner entered service as Clerk in the erstwhile Malabar Marketing Committee (hereinafter referred to as MMC for short) on 02.11.1971. He was promoted as Supervisor in the year 1983. By virtue of Ext.P1 judgment of this Court dated 19.02.1998, the MMC became defunct and ceased to exist. The assets and liabilities of the committee vested in the Government. Ext.P3 Government Order was issued redeploying the employees of the Committee to Government service, subject to the conditions provided therein. The petitioner accepted the conditions and was posted in the Office of the Executive Engineer, National Highway Division, Kozhikode and retired from service on 31.05.2006. Thereafter, the Government issued Ext.P9 Government Order regularizing the service of 53 erstwhile W.P.(C).No.26954/18 4 employees of the committee in Government service, but without retrospective effect. Ext.P17 Government Order had also been issued modifying Ext.P9 to the effect that for computing the pension of erstwhile employees of the MMC who had been regularized in Government service, their prior service in the MMC will also be taken into account. It is submitted that since the petitioner retired from service in 2006, the benefit of Ext.P9 as well as Ext.P17 Government Orders were denied to him. It is contented that the request made by the petitioner was rejected which has resulted in the filing of this Writ petition. The learned counsel for the petitioner submits that the petitioner, who was also identically situated as all the other employees who had been given the benefit of Ext.P9 and Ext.P17 orders except for the fact that she had the misfortune of retiring from service before Ext.P9 was rendered, is also entitled to all the benefits. 4.Reliance is placed on the decision of the Apex Court in **R. L. Marwaha vs. Union of India and others** [1987 KHC 1245] W.P.(C).No.26954/18 5 as well as the decision in **Chellappan Pillai M. N. and Another vs.State of Kerala and Others** [2017(1) KHC 249]. 5. Detailed counter affidavit has been placed on record on behalf of the 1[st] respondent. It is contended that the MMC was incorporated under Section 7 of the Madras Commercial Crops Act, 1933 and the Act itself was held to be void by this Court in Ext.P1 judgment, which resulted in the MMC becoming defunct. It is submitted that Government Orders had been issued redeploying 58 employees of the Committee to various departments, temporarily, on condition that they will continue to be governed by service conditions of the Committee and they would not be eligible for any benefits available to Government servants. It was also agreed that they would retire from service on attaining the age of 55 years and that the Government is free to relieve or repatriate them at any time and redeployment was to be provisional without any claim for enhancement of pay or regularization. It is submitted that long thereafter orders were issued on W.P.(C).No.26954/18 6 17.11.2007, directing regularization of the existing redeployed employees without any retrospective effect. It is contended that if the Government order is to be given retrospective effect many similarly placed employees would be eligible for the regularization, which has been done specifically without any retrospective effect. It is submitted that all the contentions of the petitioner were considered and rejected by the impugned orders. It is submitted that giving retrospective effect to regularization is against the policy decision of the Government, which has been clarified in Ext.R1(a) Government Order dated 03.03.2018. 6. I have considered the contentions advanced. The petitioner places reliance on the decisions of the Apex Court **R. L. Marwaha vs. Union of India** wherein it is was held that where a benefit is declined to the petitioner while it is granted to identically situated persons, the Government has to justify the reason for denying the benefit to some with a reasonable explanation. The question being considered was whether there is lack of retrospectivity given to an Order W.P.(C).No.26954/18 7 dated 29[th] August 1984 in the matter of grant of pension. The petitioner’s contention was that it is not open to Government to deny the benefit of the order to those employees who had retired prior to the date of the order, as it would bring into existence two classes of pensioners, one class of pensioners who had retired prior the date of the Government Order and another class of pensioners who had retired subsequent thereto. After considering the rival contentions, the Apex Court held that there was absolutely no justification for the differential treatment or the fixing of the cut off date, and therefore all persons who had rendered service during any past period would be entitled to claim the financial benefit of that service, if he is alive on the date of the Government order. 7. In **Chellappan Pillai M. N. and Another vs. State of Kerala and Others** [2017(1) KHC 249], this Court was considering entitlement to pension. Accepting the contention that the petitioners had been excluded from the purview of the pension scheme without any rationale and that the W.P.(C).No.26954/18 8 respondents had not stated anything to support the discriminatory treatment meted out to persons like the petitioner, it was declared that the Kerala Cooperative Societies Employees Self Financing Pension Scheme, 1994, to the extent it insisted on minimum qualifying service for eligibility for pension, in the case of those employees of cooperative societies, who retired from service during the period from 04.06.1993 to 31.03.1998 alone, while there is no such minimum qualifying service, for those who retired prior to 04.06.1993 and subsequent to 31.03.1998 was unconstitutional, arbitrary and discriminatory. 8. In **All Manipur Pensioners Association vs. State of Manipur and others** (AIR 2019 SC 3338), the Apex court considered the precedent law on the point and held that a valid classification must be based on a just objective and the result to be achieved by the just objective presupposes the choice of some for differential consideration/treatment over others. It was held that wherever a cut off date is fixed to categorize one set of pensioners for favourable consideration W.P.(C).No.26954/18 9 over others, the twin test of valid classification or valid discrimination must be satisfied. It was, therefore, found that since the classification in question has no reasonable nexus to the object sought to be achieved and since there is no reasonable differentia between the two classes who are created by the operation of the scheme in question, the classification is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. 9. Having considered the contentions advanced and in view of the fact that apart from stating that Ext.P9 order had no retrospective effect, no reason is stated for the denial of benefits to persons like the petitioners, I am of the opinion that the petitioner is entitled to succeed in this writ petition. The petitioner is a person who had been appointed in the erstwhile MMC in the year 1971. She was working as supervisor from the year 1983 onwards. Ext.P1 Judgment resulted in the MMC becoming defunct and services of all the existing employees had been taken over by the Government. The petitioner continued in service on the basis of the orders W.P.(C).No.26954/18 10 deputing her to Government service and retired in the year 2006. Soon thereafter, Ext.P9 Government Order was issued, granting the benefits of counting of prior service to the erstwhile employees of the MMC, however without retrospective effect. It is clear from a reading of Ext.P9 that the number of employees who had to be absorbed in Government service, pursuant to Ext.P1 was 58. It is clear that as on the date of Ext.P9, 53 of the employees were still in service. It is, therefore, clear it was only in respect of 5 employees that the benefit of Ext.P9 would be denied. The petitioner had admittedly taken up the matter before the Government repeatedly. But replies were issued that the petitioner would not be entitled for any benefits, in view of the fact that Ext.P9 order did not have retrospective effect. By Ext.P17 Order dated 19.07.2011, further benefit of counting of the earlier service rendered in the MMC to the employees, who were regularized as per Ext.P9, were also issued. However, the said benefit was also denied to the petitioner. The petitioner approached the Government and this Court by Ext.P23 judgment directed the proper W.P.(C).No.26954/18 11 consideration of the petitioner’s case. The petitioner's request has now been rejected by Ext.P25 again stating the reason that Ext.P9 order did not have any retrospective effect. No justifiable reason as to why the retrospective operation was declined to only 5 of the 58 employees who had been redeployed in Government service pursuant to Ext.P1 Judgment is not forthcoming either in the order of the Government or in the counter affidavit filed in this writ petition. The reason for a differential classification between the petitioner and the employees, who had been given the benefit of Ext.P9 and Ext.P17 is conspicuous by its absence. 10. In the facts and circumstances of the instant case where the petitioner admittedly had 17 years of service in the MMC, which was service reckonable for pension at the relevant time and since there is absolutely no reason stated for denying the benefit of Ext.P17 to the petitioner in any of the proceedings, I am of the opinion that the petitioner is entitled to succeed in the writ petition. The writ petition is accordingly allowed. The impugned orders, to the extent 12 W.P.(C).No.26954/18 they denied the benefit of absorption and counting of qualifying service to the petitioner, are set aside. There will be a direction to the respondents to grant the benefits of Ext.P9 and Ext.P17 orders to the petitioner forthwith. It is made clear that any stale claims from the persons who did not challenge the Government orders or seek the benefits of the same need not be entertained solely on the strength of this judgment. **==> picture [24 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.26954/18 13 ## **APPENDIX OF WP(C) 26954/2018** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 19.2.1998 IN ORIGINAL PETITION NO. 13907/1994. EXHIBIT P2 A TRUE COPY OF THE G.O(MS) NO. 107/02/AD DATED 12.6.2002. - EXHIBIT P3 A TRUE COPY OF THE G.O(MS) NO. 170/2004/AD DATED 9.8.2004. - EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 20.9.2004. - EXHIBIT P5 A TRUE COPY OF THE REPORT DATED 21.8.2004. - EXHIBIT P6 A TRUE COPY OF THE LIST OF RECORDS HANDED OVER. - EXHIBIT P7 A TRUE COPY OF THE PROCEEDINGS DATED 5.1.2005 OF TAHASILDAR KOZHIKODE. - EXHIBIT P8 A TRUE COPY OF THE OFFICE ORDER NO 1/05 OF THE TAHASILDAR, KOZHIKODE. - EXHIBIT P9 A TRUE COPY OF THE G.O(MS) NO.201/07/AD DATED 17.11.2007. - EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION DATED 9.1.2008. - EXHIBIT P11 A TRUE COPY OF THE LETTER DATED 9.1.2008. W.P.(C).No.26954/18 14 - EXHIBIT P12 A TRUE COPY OF THE LETTER DATED 10.3.2008 OF THE DISTRICT COLLECTOR, KOZHIKODE. - EXHIBIT P13 A TRUE COPY OF THE LETTER NO. 1307/NCA/2/08/AGR DATED 3.5.2008. - EXHIBIT P14 A TRUE COPY OF THE LETTER NO. 20500/NCA2/08/AGR DATED 2.8.2008. - EXHIBIT P15 A TRUE COPY OF THE REPRESENTATION DATED 19.11.2008. - EXHIBIT P16 A TRUE COPY OF THE ORDER NO. 35215/NCA2/08/AGR DATED 24.9.2011. - EXHIBIT P17 A TRUE COPY OF THE G.O(MS) NO. 171/11AGR DATED 19.7.2011. - EXHIBIT P18 A TRUE COPY OF THE REPRESENTATION DATED 6.9.2011. - EXHIBIT P19 A TRUE COPY OF THE LETTER DATED - 19.12.2011 OF THE DISTRICT COLLECTORS. - EXHIBIT P20 A TRUE COPY OF THE LETTER NO.27181/NCA 2/11 AGR DATED 24.2.2012. - EXHIBIT P21 A TRUE COPY OF THE REPRESENTATION DATED 16.3.2012 SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER, GOVERNMENT OF KERALA. - EXHIBIT P22 A TRUE COPY OF THE LETTER NO. 28387/AW B2/12 FIN DATED 17.8.2012. - EXHIBIT P23 A TRUE COPY OF THE JUDGMENT DATED 10.1.2018 IN WP(C) NO. 3853/2013 OF THIS HON'BLE COURT. 15 W.P.(C).No.26954/18 EXHIBIT P24 A TRUE COPY OF THE REPRESENTATION DATED 7.2.2018 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT GOVERNMENT. EXHIBIT P25 A TRUE COPY OF THE G.O(MS) NO. 625/2017/AGRI DATED 27.6.2018. RESPONDENT EXHIBITS EXHIBIT R1(a) TRUE COPY OF THE G.O(p) NO. 31/2018/FIN DATED 03.03.2018. True copy PS to Judge