M.P. Sankaran v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** ## **WP(C). No. 27428 of 2003 (M)** **----------------------------** ## **PETITIONER(S):** ## **--------------------------** **M.P.SANKARAN, AGED 88 YEARS, S/O. LATE PERACHAN, MELAR POYIL, UMMALATHUR, VELLIPARAMBA, CALICUT-8. GARDNER (RETIRED), ST.JOSEPH COLLEGE, DEVAGIRI, CALICUT. (DELETED).** ## **# ADDL. PETITIONER IMPLEADED:** **SAROJINI @ CHOYICHI, AGED 78 YEARS, W/O. LATE SANKARAN, RESIDING AT MELAR POYIL, UMMALATHUR, VELLIPARAMBA, VIA KUTTIKATOOR, CALICUT - 8.** **# (ADDITIONAL PETITIONER IS IMPLEADED AS PER ORDER DATED 14.12.2011 IN I.A NO.19747/11 IN THE CAPACITY OF THE LEGAL HEIR OF DECEASED PETITIONER.)** ## **BY ADV. SRI.SIVAN MADATHIL.** **RESPONDENT(S):** ## **--------------------------** **1. STATE OF KERALA, FINANCE (PENSION) DEPARTMENT, REPRESENTED BY ITS PRINCIPAL SECRETARY, SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF COLLEGIATE EDUCATION, TRIVANDRUM.** **3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, NORTH ZONE, CALICUT.** **4. ACCOUNTANT GENERAL (A&E) KERALA, TRIVANDRUM.** **5. ST.JOSEPH'S COLLEGE, DEVAGIRI, CALICUT, REPRESENTED BY ITS PRINCIPAL.** - **R5 BY ADVS. SRI.M.ASOKAN** **SRI.DEVAPRASANTH.P.J.** - **R1 TO R4 BY SENIOR GOVERNMENT PLEADER SHRI P. FAZIL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C). No. 27428 of 2003 (M)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1:- COPY OF THE GO(MS) NO.105/93/H.EDN. DT.10.08.1993.** - **P2:- COPY OF THE GO(MS) NO.191/96/H.EDN DT.6.11.1996.** - **P3:- COPIES OF PENSION BOOK, FORMAL APPLICATION, NO-LIABILITY CERTIFICATE AND LPC SUBMITTED BY PETITIONER.** - **P4:- COPY OF LETTER NO.B6-684/97 DT.15.3.2000.** - **P5:- COPY OF LETTER NO.B6-684/97 DT.6.6.2001.** - **P6:- COPY OF LETTER NO.32524/PEN/B2/02 DT. 23.9.2002.** - **P7:- COPY OF LETTER NO.G/6/684/97 G2 DATED 31.10.2002.** - **P8:- COPY OF LETTER NO.PM/PEN A265/AD/98-99/527 DT. 9.9.08 EXT.P6 IN O.P NO.19092/2001.** - **P9:- COPY OF LETTER DT. 30.5.2001 OF THE PETITIONER ADDRESSED TO THE ACCOUNTANT GENERAL (A&E) (EXT.P2 IN OP NO.,19092/2001)** ## **RESPONDENTS' EXHIBITS:-** ## **R1(A):- COPY OF THE G.O(P) NO.93/76/H.EDN DATED 26.06.1976.** /True Copy/ ## **P.A to Judge** **KRJ** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = = = W.P(C) No.27428 of 2003 = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of January, 2014 ## **JUDGMENT** The subject matter in this writ petition relates to the grant of minimum pension eligible to the deceased first petitioner by the State for which, an earlier writ petition i.e. W.P(C) No.19092 of 2001 was preferred by him. In that writ petition, this Court had directed the respondents State authorities to consider and pass appropriate orders on a detailed representation submitted by the deceased petitioner before it. However, the Government by Ext.P8 letter informed the deceased petitioner that he is entitled to ex gratia pension only, instead of is claim for minimum pension. 2. During the pendency of the writ petition, the original petitioner died and his legal representative was brought to record as additional second petitioner. 3. The deceased first petitioner Sankaran was a Gardner from 1.4.1961 to 31.5.1974 in the fifth respondent college. He demitted office on completion of 60 years. At that time, pension scheme was not extended to private college staff. Pension scheme was extended to private college staff with effect from 1.4.1976 only. WP(C).27428/03 **-:2:-** 4. Later, as per G.O(P) No.93/76/H.Edn. dated 26.6.1976 [Ext.R1(a)], the Government extended the retirement benefits to the staff of private colleges who had retired prior to 1.4.1976, subject to various conditions. As per the said Government Order, those who had retired at the age of 60 from the private colleges, from the date of introduction of the scheme of direct payment, but before 1.4.1976, were given pensionary benefits, provided they had qualifying service of ten years or more. It was stipulated in the said order that service upto the age of 55 years alone could be counted for calculating the qualified service of and above ten years. 5. Subsequently, the respondent State issued two orders liberalising the pension scheme taking into consideration the service beyond 55 years for computing the total qualifying service of teaching staff of private colleges as per G.O(MS) No.105/93/ H.Edn. dated 10.8.1993 (Ext.P1). Later, as per G.O(MS) No.191/ 96/H.Edn. dated 6.11.1996 (Ext.P2) this benefit was extended to non-teaching staff, like the deceased first petitioner. However, this benefit was not extended to the deceased petitioner, despite detailed representation submitted to the authorities concerned, containing all facts and merits in the petitioner's contentions WP(C).27428/03 ## **-:3:-** highlighting his eligibility for minimum pension based on his past service rendered. 6. The petitioners allege that pensionary benefits given to the employees is their social security in their twilight of life and providing this benefit does not amount to a bounty. According to the petitioners, the denial of the minimum right of pensionary benefits is without any substantial ground which is against Article 21 of the Constitution. 7. The Government had filed a detailed counter affidavit highlighting the following contentions. 8. Firstly, it is contended that the deceased first petitioner did not belong to Chapter II or III of Pension Statutes, 1976 and, therefore, he did not come within the ambit of the aforesaid Government Orders. Therefore, the service relied on by the deceased petitioner after 55 years of ages did not qualify for minimum pension as per existing rules; it was averred. 9. The second contention is that the deceased first petitioner was not entitled to pension as per Ext.R1(a), since he had not acquired qualifying service of 10 years at the age of 55 and he had qualified service of only 8 years at the age of 55. Therefore, according to the respondents, the deceased petitioner was entitled WP(C).27428/03 ## **-:4:-** to ex gratia pension @ 4,00/- per month reckoning the qualifying₹ service of 2 years, being the service rendered by him after the date of implementation of direct payment system w.e.f 1.9.1972. 10. Arguments have been heard. 11. While the learned Senior Government Pleader gave thrust to the contentions in the counter affidavit, the learned counsel for the petitioners maintained the stand that denial of pension to the deceased first petitioner is arbitrary. 12. Admittedly, the deceased first petitioner had a service of 13 years and two months, when he demitted his office on 31.5.1974, on attaining the age of 60 years. Pensionary benefits to the staff of private colleges was extended as per Ext.R1(a). But, it was subject to certain conditions. Subsequently, Exts.P1 and P2 relating to payment of liberalised pension to Chapter III of nonteaching staff of private colleges were issued. The stand taken by the respondents is that the deceased first petitioner had not acquired the qualifying service of 10 years at the time of 55 years and he had only qualifying service of 8 at that age. 13. The problem arose because of the fact that Exts.P1 and P2 were not extended to those, who retired prior to 1.4.1976. In this context, two documents produced from the side of the WP(C).27428/03 ## **-:5:-** petitioners assume relevance. Ext.P8 is the copy of the letter addressed by the office of the Accountant General to the Principal Secretary, Finance (Pension) Department, Thiruvananthapuram, by which the Government was adviced to consider whether orders issued for application of liberalised pension scheme to Chapter III opted teachers and non-teaching staff of private colleges and admissible to those who retired prior to 31.5.1974, like the deceased petitioner. Another document is Ext.P4, which is the copy of the letter dated 15.3.2000 issued from the Office of the Deputy Director of Collegiate Education, Kozhikode to the Accountant General (A&E), Thiruvananathapuram. It was a forwarding letter of the of formal application of the deceased first petitioner. In the 2[nd] paragraph of the letter, it was stated as under: “In this connection it may be noted that even though he had 13 years and 2 months service the service after the date of implementation of Direct Payment register with effect from 1-9-72 as para (p) 221/72 dated 6-10-72 has only been taken into account. In case he is otherwise eligible for higher rate of pension, necessary revised orders can be issued after getting necessary clarification in this regard.” 14. So long as it is an admitted fact that the petitioner had been continuing in the same institution in the same post for a continuous period of 13 years and 2 months, the denial of WP(C).27428/03 ## **-:6:-** pensionary benefits to the deceased first petitioner on the strength of an artificial date is highly discriminatory; according to the learned counsel for the petitioners. 15. In this context, I would like to refer to an observation made by the Apex Court in **Randhir Singh** v. **Union of India** [(1982) 1 SCC 618] ; [AIR 1982 SC 879]. There the Apex Court observed that where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that cannot be done when they are in service, can that be done during their retirement? No. If that principle is expanded, one can confidently say that if the pensioners form a class, the computation of their pension cannot be by a different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. Though the Government was pleased to issue Ext.P2, liberalising the payment of pension to Chapter III opted teachers and non-teaching staff of private colleges, it was not specifically extended to those who retired prior to 1.4.1976. This differential treatment, according to the learned counsel for the petitioners is highly discriminatory. I see valid force in the said submission. WP(C).27428/03 ## **-:7:-** 16. While viewed in the backdrop of Article 39 (e) of the Constitution of India, which requires the State to secure that the health and strength of workers, men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength and Article 41 of the Constitution, which obliges the State within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want, the denial of pension to the deceased first petitioner cannot be tolerated by a court of law. I also note that Article 43(3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities. 17. Therefore, this Court is of the definite view that the deceased first petitioner was entitled to the pension as prayed for. As the first petitioner is no more, the second petitioner who is the legal representative, is entitled to the eligible pension as per the Rules. In the result, the writ petition is allowed. It is hereby declared that the deceased first petitioner is entitled to the WP(C).27428/03 **-:8:-** pensionary benefits, as those who are covered by Ext.P2 Government Order. The first respondent is directed to issue formal orders in this regard within a period of two months in the name of the additional second petitioner, who is the legal representative of the deceased first petitioner. Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge