P. D. Vasanthakumary 'Padma' v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935** ## **WP(C).No. 264 of 2011 (G)** **-----------------------------------** ## **PETITIONER(S):** **-----------------------** ## **P.D.VASANTHAKUMARY "PADMA", BURMA ROAD, THIRUVANANTHAPURAM.** **BY ADVS.SMT.SREEDEVI KYLASANATH SMT.V.J.SAFEENA** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REP. BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT WATER RESOURCES (WSC) DEPARTMENT THIRUVANANTHAPURAM-695 001.** ## **2. THE SECRETARY,** - **FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.** ## **3. THE MANAGING DIRECTOR,** - **KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM THIRUVANANTHAPURAM-695 010.** **R1 & R2 BY GOVERNMENT PLEADER SMT. LILLY K.T. R3 BY ADVS. SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY SRI.C.UNNIKRISHNAN, SC, KWA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** ## **WP(C).No. 264 of 2011 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1: COPY OF THE FORMAL APPLICATION FOR PENSION DATED 29.04.1993 RECORDED IN PAGE NO. 5 OF THE PENSION BOOK** - **EXHIBIT P2: COPY OF THE GOVERNMENT ORDER G.O.(P) NO. 893/78/FIN DATED 30.12.1978** **EXHIBIT P3: COPY OF THE ORDER NO. G.O. (RT) 637/97/IRD DATED 14.05.1997** - **EXHIBIT P4: COPY OF THE REPRESENTATION DATED 13.01.2003 SUBMITTED BY PETITIONER TO ACCOUNTANT GENERAL** - **EXHIBIT P5: COPY OF THE PETITION DATED 2.12.2003 SUBMITTED BY PETITIONER BEFORE THE HON'BLE MINISTER FOR WATER RESOURCES DEPARTMENT** - **EXHIBIT P6: COPY OF THE OFFICE NOTES OF 3RD RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT.** - **EXHIBIT P7: COPY OF THE COMMUNICATION NO. KWA/JB/E:9/1455/04 DATED 11.8.2005 OF 3RD RESPONDENT** - **EXHIBIT P8: COPY OF THE COMMUNICATION NO. KWA/JB/E:9/1455/04 DATED 9.10.2005 OF 3RD RESPONDENT** - **EXHIBIT P8(a):COPY OF THE COMMUNICATION DATED 20.06.2006 OF CHIEF ENGINEER (SR) TO THE MANAGING DIRECTOR, KERALA WATER AUTHORITY** - **EXHIBIT P9: COPY OF THE COMMUNICATION DATED 01.08.2006 OF 3RD RESPONDENT TO 1ST RESPONDENT** - **EXHIBIT P10: COPY OF THE RELEVANT PART OF THE OFFICE NOTE OF FINANCE DEPARTMENT AND WATER RESOURCES DEPARTMENT WHICH THE PETITIONER RECEIVED UNDER RIGHT TO INFORMATION ACT** - **EXHIBIT P11: COPY OF ORDER NO. NO. 13019/C2/07/WRD DATED 16.02.2008 OF 1ST RESPONDENT** - **EXHIBIT P12: COPY OF COUNTER AFFIDAVIT FILED ON BEHALF OF THE 1ST RESPONDENT** **EXHIBIT P13: COPY OF THE REPLY AFFIDAVIT FILED BY PETITIONER** **DCS** ## **WP(C).No. 264 of 2011 (G)** **EXHIBIT P13(a): COPY OF JUDGMENT DATED 20.05.2010 IN W.P.(C). NO. 9462/2009** **EXHIBIT P14: COPY OF THE HEARING NOTES SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT.** **EXHIBIT P15: COPY OF ORDER G.O. (RT) NO. 1189/2010/WRD DATED 5.10.2010** **RESPONDENT'S EXHIBITS:- NIL** ## **/TRUE COPY/** **P.A. TO JUDGE** **DCS** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 264 of 2011 - G --------------------------------------------------Dated this the 5[th] April, 2013 **J U D G M E N T** The petitioner challenges Ext.P15 an order passed by the Government rejecting the request of the petitioner for monthly pension. 2. The facts as disclosed in the writ petition would reveal that the petitioner entered the service of the Public Health Engineering on 21.6.1969. While as Department working U.D.Clerk in the PHED, the Petitioner was absorbed in the Kerala Co-operative Marketing Federation Limited with effect from 23.10.1983. The Government employees who was having minimum 10 years service was entitled to get the minimum pension. But according to the petitioner, the request for monthly pension and DCRG was W.P.(C) No. 264 of 2011 - G **==> picture [7 x 9] intentionally omitted <==** not granted. Later the petitioner requested for commutation of 50% of the pension. She was paid certain lump sum amount. Later it was known that the lump sum amount paid was in lieu of the pension. 3. It is noticed that by virtue of Ext.P2 G.O (P) No. 893/78/Fin dated 30.12.1978, an option was available to the petitioner either to get the pension or to get the lump sum amount in lieu of pension. Clause (iii)(b) of Ext.P2 reads as under: ## “(iii) **Exercise of option** (iii) A Government servant who has been permitted to be absorbed in service of post in an Autonomous Body/Public Undertaking shall , if such absorption is declared by the Government to be in the public interest, be deemed to have retired W.P.(C) No. 264 of 2011 - G 3 from service from the date of such absorption. Each such Government servant is required under the relevant orders applicable to him to exercise an option within six months of his absorption for either of the alternative indicated below:- (a) Receiving the monthly Pension and Death-cum-Retirement Gratuity already worked out, under the usual Government arrangements. (b) Receiving the gratuity and a lump sum amount in lieu of pension worked out with reference to commutation tables obtaining on the date from which the pro-rata pension, gratuity etc. will be disbursable. Where no option is exercised within the prescribed period, the officer will automatically be governed by W.P.(C) No. 264 of 2011 - G 4 alternative (b) above, option once exercised shall be final. The option shall be exercised in writing and communicated by the Government employee concerned to the Undertaking/Autonomous Body”. 4. Therefore a contention was raised by the respondents that since the option was not exercised within the specified time, petitioner was only entitled for a lump sum amount which had already been paid. 5. In an earlier round of litigation as per judgment dated 20.5.2010 in W.P.(C) No. 9462/2009, this Court having taken into consideration the factual details of the matter and having regard to the scope of the rules prevailing as on the relevant time, formed an opinion that any W.P.(C) No. 264 of 2011 - G 5 order in this case in favour of the petitioner would be taken as a precedent which should not result in any injustice to the claims made by various persons and therefore there was a direction to the Government to take appropriate decision as to whether the petitioner could be paid pension on refund of the lump sum amount which she had already received. 6. Ext.P14 is the argument note submitted by the petitioner and still the Government passed Ext.P15. In Ext.P15 it is stated that since the petitioner received the lump sum amount in lieu of pension way back in 1998. She had submitted a representation for re-option in the year 2003 i.e. 5 years after receiving the lump sum amount. In that case she had submitted an application W.P.(C) No. 264 of 2011 - G 6 relinquishing her right under Government Order, accepting the conditions in G.O.(P) No. 893/78/Fin dated 30.12.1978 as recorded in a letter No. 13019/E2/04/WRD dated 24.6.2004, the request of the petitioner for monthly pension was rejected. 7. In the writ petition the petitioner also challenges the vires of Clause(iii)(b) which according to her violates the provisions of KSR and the contention is that the petitioner is entitled to receive the monthly pension and other ancillary reliefs. 8. The learned counsel for the petitioner relies upon the following judgments in **State of Kerala** v. **M.Padmanabhan Nair** (AIR 1985 SC 356) and **Union of India** v. **Aboobacker** [2011(4) KLT 176]. I do not think that these judgments can be W.P.(C) No. 264 of 2011 - G 7 made applicable to the facts of the case. 9. The contention that Rule (iii) of Ext.P2 is ultra vires to the provisions of KSR is not sustainable. It is evident from the Government order that a special provision had been made in cases of Government servants transfer from one Government Department to another Department. This was a case where PHED was taken over by KWA and the petitioner had opted to get a transfer to the Kerala Co-operative Marketing Federation Ltd. in public interest. This was a special procedure permitted by the Government and therefore the Government had framed appropriate rules relating to their service conditions including pension. In that view of the matter, I do not think that the option that was given was not illegal or W.P.(C) No. 264 of 2011 - G 8 violative of the provisions of K.S.R. 10. Having found so, the only relief that could be granted by this Court is to compensate the petitioner for the delay on the part of the Department in paying the lump sum amount which was legally due to the petitioner in terms of Clause (iii) (b). By an interim order dated 3.1.2013 this Court had called upon the 1[st] respondent to file an affidavit to explain the delay in payment of gratuity and lump sum amount in terms of Clause (iii)(b) of Ext.P2 G.O. But though an affidavit has been filed, there is no valid explanation for the said delay. She left PHED on 23.10.1983. Six months time for exercise of option expired on 23.4.1984. She was paid the lump sum amount only on 14.5.1997. In these circumstances, the W.P.(C) No. 264 of 2011 - G 9 only order that can be passed in this case is to direct the 3[rd] respondent to pay the petitioner interest on the gratuity and lump sum amount from the expiry of six months from the date of retirement till the date of actual payment. In the result, the writ petition is allowed as follows: (i) The 3[rd] respondent shall pay the petitioner interest @ 9% per annum on the gratuity and lump sum which was paid to the petitioner, from 23.4.1984 till the date of actual payment (14.5.1997) within a period of three months from the date of receipt of a copy of this judgment. Sd/- **A.M.SHAFFIQUE, JUDGE.** rka /true copy/ W.P.(C) No. 264 of 2011 - G 10 (iii) A Government servant who has been permitted to be absorbed in service of post in an Autonomous Body/Public Undertaking shall , if such absorption W.P.(C) No. 264 of 2011 - G 11 is declared by the Government to be in the public interest, be deemed to have retired from service from the date of such absorption. Each such Government servant is required under the relevant orders applicable to him to exercise an option within six months of his absorption for either of the alternative indicated below:- (a) Receiving the monthly Pension and Death-cumRetirement Gratuity already worked out, under the usual Government arrangements. (b) Receiving the gratuity and a lump sum amount in lieu of pension worked out with reference to commutation tables obtaining on the date from which the pro-rata pension, gratuity etc. will be disbursable. Where no option is exerciseed within the W.P.(C) No. 264 of 2011 - G **==> picture [13 x 9] intentionally omitted <==** prescribed period, the officer will automatically be governed by alternative (b) above, option once exercised shall be final. The option shall be exercised in writing and communicated by the Government employee concerned to the Undertaking/Autonomous Body”.