N.C.R. Unnikrishnan vs State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939 OP(KAT).No. 384 of 2017 (Z) ---------------------------- AGAINST THE ORDER IN OA 241/2016 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 17-11-2016 PETITIONERS/RESPONDENTS IN O.A:: --------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT(ERA)DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,KERALA-695001. 2. THE COMMISSIONER FOR RURAL DEVELOPMENT, COMMISSIONERATE OF RURAL DEVELOPMENT,SWARAJ BHAVAN, NANTHANCODE,KOWDIAR.P.O,THIRUVANANTHAPURAM,KERALA-695003. 3. THE ACCOUNTANT GENERAL(A&E) KERALA, M.G.ROAD,P.B.NO.5607,THIRUVANANTHAPURAM,KERALA-695001. BY ADV. GOVERNMENT PLEADER MR. ANTONY MUKKATH. RESPONDENT/APPLICANT IN O.A:: -------------------------------- N.C.R.UNNIKRISHNAN, S/O.KRISHNA VARMA RAJA,RETIRED PRINCIPAL & DEPUTY DEVELOPMENT COMMISSIONER,EXTENSION TRAINING CENTRE,MANNUTHY,THRISSUR-680651,RESIDING AT MAPLETON APARTMENTS,VELACHERY TAMBARAM MAIN ROAD,PALLIKARANI,CHENNAI-600044. BY SRI.B.ASHOK SHENOY THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 13-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 384 of 2017 (Z) ---------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS EXHIBIT P1 PHOTOCOPY OF THE O.A.NO.241/16 ALONG WITH ANNEXURES EXHIBIT P2 REPLY STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 17.11.2016 IN O.A.(EKM) NO.241/2016. RESPONDENT(S)' EXHIBITS NIL /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & ANU SIVARAMAN, JJ.** .............................................................................. **O.P.(KAT)No.384 OF 2017** ......................................................................... **Dated this the 13[th] October , 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Respondents in O.A.(Ekm)24/16 of the Kerala Administrative Tribunal are the petitioners. The grievance is against Ext.P3 order passed by the Tribunal declaring that the past service rendered by the applicant in the University of Kerala is liable to be treated as part of the service for granting the retirement benefits, which was contended as not extendable to persons who retired prior to 02.02.2001. 2. The contention of the Government was that the enabling provision was brought into existence on 21.06.2008 as per G.O (P)No.269/2008/Fin and hence it could not be extended to persons, who retired prior to the cut off date. Reliance was placed by the Tribunal on the decision rendered by a Division Bench of this Court in _**Dasan K.N. vs. State of Kerala**_ **[2014 (4) KHC 747** ] which was held as squarely applicable to the case of the applicants also extracting the relevant paragraph **2** ## **O.P.(KAT)No.384 OF 2017** (paragraph 19) in paragraph 5 of Ext.P3 order. 3. There is no dispute to the facts and figures. The respondent/applicant joined the Service as Block Development Officer and retired from the service while holding the post of Principal & Deputy Development Commissioner of Extension Training at Mannuthy on 30.09.2000. The respondent preferred a claim to reckon his past service rendered as Library Assistant in the University of Kerala from 30.08.1972 to 31.03.1981 for payment of pensionary benefits. It was declined, which made the respondent to approach the Tribunal with the following prayers: _“a) Call for the records and files leading to Annexures A4 and A7 issued by 3[rd] and 1[st] respondents respectively and set aside//quash Annexures A4 and A7;_ _b) Declare that applicant is entitled to count his past service in University of Kerala from 30.08.1972 to 31.03.1981 as qualifying service along with the service rendered by him under the 1[st] respondent-State for the purpsoe of computing his pensionary benefits payable by 1[st] respondent- State;_ _c) Direct the respondents to count the past service of applicant in University of Kerala from 30.08.1972 to 31.03.1981 as qualifying service along with the service rendered by him under the 1[st] respondent State for the purpose of computing his pensionary benefits payable by_ **3** ## **O.P.(KAT)No.384 OF 2017** _1[st] respondent-State, and to accordingly revise the pensionary benefits payable to applicant as also pay him arrears thereunder, within a reasonable time limit as this Hon'ble Tribunal may deem fit to fix in the facts and circumstances of the case; and_ _d) grant such other and further reliefs as are deemed just and necessary in the facts and circumstances of the case including the costs of this Original Application. “.._ 4. The claim was resisted from the part of the Department, particularly with reference to the G.O. mentioned above. The Tribunal heard both the sides and held that there was absolutely no rhyme or reason to have restricted the benefits to persons who retired from the service only after 02.02.2001 and that the rationale in stipulating such date was held as not correct or sustainable, by virtue of the law declared by a Division Bench of this Court in **2014 (4) KHC 747** (cited supra). It was accordingly that the O.A. was allowed directing the respondents therein to have the benefits computed, also reckoning the past service and disburse the retirement benefits to the applicant, which made the respondents in the O.A. to feel aggrieved and hence this Original Petition. 5. The correctness and sustainability of stipulating a cut off **4** ## **O.P.(KAT)No.384 OF 2017** date, had come up for consideration before the Apex Court and the position was answered by a Constitution Bench in _**D.S.Nakara & others vs. Union of India**_ ( **AIR 1983 SC 130** ). It was held that, unless 'nexus' was established, it was liable to be held as arbitrary and violative of the Constitutional provisions. According to the learned Government Pleader, the position, with reference to the factual aspects involved in the case, was considered by the Apex Court as per the rulings rendered in _**T.N. Electricity Board vs. R. Veerasamy and others**_ [ **(1999) 3 SCC 414]** (three member Bench) and _**State of Punjab and others vs. Amar Nath Goyal and others**_ [ **(2005) 6 SCC 754** ] (two member Bench). We have gone through the said verdicts as well. In no way, the said judgments have watered down the law declared by the Constitution Bench in _**D.S.Nakara & others vs. Union of India**_ ( **AIR 1983 SC 130** ). The position made clear by the above Benches were with reference to the basic declaration of law in _**D.S.Nakara & others vs. Union of**_ _**India.**_ The decisions sought to be relied on by the learned Government Pleader do not come to the rescue of the petitioners **O.P.(KAT)No.384 OF 2017** **5** in any manner, to draw an inference contrary to the law declared by the Constitution Bench in _**D.S.Nakara & others vs. Union of India.**_ 6. That apart, the more vital and important aspect to be noted is the declaration made by a Division Bench of this Court in _**Dasan K.N. vs. State of Kerala**_ **[2014(4)KHC 747** ]. The rider under the relevant G.O./amendment of the Rule stipulating the cut off date as '02.02.2001' was considered therein and it was categorically held by the Bench that such a stipulation was quite arbitrary and illegal in all respects and violative of the Constitution. It was accordingly declared in 'paragraph 19' that the eligibility criteria so devised in the G.O. and in the amendment to Rule 20 of Chapter II of Part III KSR was quite arbitrary and violative of Article 14 of the Constitution of India and hence struck down as unconstitutional. It was after making such a declaration that the right of the persons to get the benefit was declared, virtually allowing the O.P.(KAT), declaring the conclusion in “paragraph 22”, which is reproduced below: _“For the aforesaid reasons and discussions, the petitioner is entitled to count his past service in the Municipal_ **6** ## **O.P.(KAT)No.384 OF 2017** _Common Service as qualifying service for the purpose of computing his pensionary benefits. Therefore, he is entitled to succeed in this Original Petition._ _In the result,_ _"1) The impugned Annexure -1 order passed by the Kerala Administrative Tribunal in TA No. 4786 of 2012 (WP (C) No. 25526 of 2011) is set aside._ _2) Exts. P3, P7, P8 and P12 orders issued by the respondents rejecting the claim of the petitioner for computing his past service in the Municipal Common Service as qualifying for pension are quashed._ _3) The sentence that reads "The benefit of this order will be applicable to the retirements after the date of this order and the pension cases already settled or pending settlement on administrative reasons will not be considered on any account" occurring in the last paragraph of the GO (P) No. 228/2001/Fin. dated 02/02/2001 and the sentence that reads "This shall apply to all cases in which retirement takes place on or after 2nd day of February, 2001" occurring in the amendment to Rule 20 brought out by GO (P) No. 269/2008/Fin. dated 21/06/2008 are struck down as unconstitutional._ _4) It is declared that the petitioner is entitled to count his past service in the Municipal Common Service from 13/08/1973 to 04/02/1976 as qualifying service along with the service rendered by him under the Government of Kerala for the purpose of computing his pensionary benefits._ _5) The respondents concerned are directed to count the_ **7** ## **O.P.(KAT)No.384 OF 2017** _past service of the petitioner in the Municipal Common Service as qualifying service along with the service rendered by him under the Government of Kerala for the purpose of computing his pensionary benefits._ _6) The respondents concerned shall revise the pensionary benefits of the petitioner in the light of the directions issued in this judgment within two months from the date of receipt of a copy of this judgment. The arrears of pensionary benefits payable to the petitioner shall be disbursed to him within two months of such revision of his pensionary benefits."_ 7. The learned Govt. Pleader was required to substantiate the maintainability of the O.P., challenging the verdict passed by the Tribunal placing reliance on the verdict passed by the Division Bench in _**Dasan K.N. vs. State of Kerala**_ **[2014(4)KHC 747** ], in so far as the declaration made by the Bench as to the illegality and striking down the relevant provision was not subjected to challenge . In so far as the declaration stands and the relevant provision which is sought to be relied on has been struck down from the statute book, the Government cannot restrict the benefits to persons who retired from the service only after 02.02.2001. **8** ## **O.P.(KAT)No.384 OF 2017** 8. It is not brought to the notice of this Court that the aforesaid verdict passed by the Division Bench of this Court in _**Dasan K.N. vs. State of Kerala**_ **[2014(4)KHC 747** ] has been successfully challenged by the State by filing appropriate proceedings before the Apex Court. In so far as the said declaration stands and the relevant portion of the G.O. has already been struck down, the said portion cannot be given effect to by the State/Department to deny the benefit to similarly situated persons like the respondent herein. This alone has been done by the Tribunal while passing Ext.P3. We find no tenable ground to call for interference. Ext.P3 order passed by the Tribunal is perfectly within the four walls of law and is not assailable under any circumstance. Interference is declined and the OP. stands dismissed. ## **P.R. RAMACHANDRA MENON, JUDGE** ## **ANU SIVARAMAN, JUDGE** lk