P.K. Mohanachandran Pillai and others v. State of Kerala and Kerala Coir Workers Welfare Fund Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** ## **WP(C) NO. 20939 OF 2018** ## **PETITIONERS:** - **1 P.K.MOHANACHANDRAN PILLAI AGED 56 YEARS SUB OFFICER, KERALA COIR WORKERS WELFARE FUND BOARD, KARUNAGAPPALLY SUB OFFICE, KARUNAGAPPALLY-690 518.** - **2 G. VALSALAKUMARI DISTRICT OFFICER, KERALA COIR WORKERS WELFARE FUND BOARD, DISTRICT OFFICE, KOLLAM-691 601.** - **3 K. SANTHOSH KUMAR LOWER DIVISION CLERK, KERALA COIR WORKERS WELFARE FUND BOARD, REGIONAL OFFICE, CHIRAYINKEEZHU -695 304.** - **4 T. GEETHA PEON, KERALA COIR WORKERS WELFARE FUND BOARD, REGIONAL OFFICE, CHIRAYINKEEZHU-695 304. BY ADVS. SRI. N.NANDAKUMARA MENON (SR.) SMT. ALICE THOMAS SRI. P.K.MANOJKUMAR SMT. SMITHA S.PILLAI SMT. M.C.SINY** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,INDUSTRIES(E)DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 KERALA COIR WORKERS WELFARE FUND BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,HEAD OFFICE, VELLAKKINAR, ALAPPUZHA-688001.** ## **BY ADVS.** **SRI. VENUGOPAL V., GOVERNMENT PLEADER SRI. SHANES MATHER, SC FOR R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)20939 OF 2018** 2 ## **JUDGMENT** ## **Dated this the 21[st] day of March, 2022** The petitioners are erstwhile employees of the Kerala Coir Workers Welfare Fund Board ('the Board' for brevity). The service of the petitioners, who were originally appointed as daily wage employees was regularised by Ext.P1 order dated 16.03.1996. While so, the Employees Provident Fund and Miscellaneous Provisions Act, 1952 was made applicable to the employees of the Board as per Ext.P2 order dated 09.01.1998 and by Ext.P3 order dated 24.05.2000, the Employees Provident Fund Pension Scheme, 1995 was also made applicable. The petitioners contend that their entitlement for full pension under the EPF Pension Scheme is dependent on their continuance in service upto 58 years, and are aggrieved by refusal to enhance the age of superannuation of the employees of the Board from 56 years to 58 years. The petitioners submit that the Director Board of the second **W.P.(C)20939 OF 2018** 3 respondent having recommended for enhancing the retirement age as 58 years and the service regulations having also been modified accordingly, the Government committed a gross illegality by rejecting the recommendation, vide Exts.P6 and P23 orders. The writ petition is filed seeking the following reliefs; _i. To issue a writ of mandamus or other appropriate writ order or direction, directing the respondents to enhance the age of superannuation of the petitioners as 58 years in the Kerala Coir Workers Welfare Fund Board from the present 56 years of age;_ _ii. To issue a writ of mandamus or other appropriate writ order or direction, directing the respondents to permit the petitioners to continue in the services of the second respondent Board till the petitioners attain the age of 58 years._ _iii. To issue a writ of mandamus or other appropriate writ or direction, directing the 1[st] respondent to approve Exhibit-P11 draft of the Special Rules and to approve the age of retirement of the employees of the Board as 58 years._ 2. Heard learned Senior Counsel Nandakumara Menon for the petitioners, Senior Government Pleader V. Venugopal for the Government and Adv. P. U. **W.P.(C)20939 OF 2018** 4 Shailajan, Standing Counsel for the second respondent Board. 3. Learned Senior Counsel contended that fixation of retirement age of its employees being the prerogative of the Director Board, the Government has committed gross illegality in rejecting the recommendations for enhancement of retirement age submitted by the Board. In Ext.P6, the reason for rejection stated is that the retirement age of staff of other welfare Fund Boards under the Government of Kerala, where EPF Pension Scheme has been implemented, continue to be 56 years. That reason does not hold good now, since the retirement age of the staff of most of the other Welfare Fund Boards was enhanced to 58 years by the Government, as evidenced by Exts.P12 to P18. Once again the Board recommended for enhancement of retirement age as per Ext.P8 Resolution and submitted it to the Government under Ext.P9 communication dated 23.10.2017. The Board also prepared draft service **W.P.(C)20939 OF 2018** 5 regulations, fixing the age of superannuation as 58 years and submitted for the Government's approval. By Ext. P23 order dated 16.06.2018, the Government again rejected the request and decided to maintain the age of superannuation of the staff of the second respondent as 56 years. It is pointed out that, even though this Court refused to grant interim order, the petitioners were allowed to continue under the second respondent beyond the existing retirement age at their risk, without payment of salary. Aggrieved by the permission granted to the petitioners to continue in service, the second respondent Board took the matter in appeal. By judgment dated 31.07.2018 in W.A.No.1548/2018, the Division Bench dismissed the appeal leaving it open for both sides to pursue the matter before the Single Bench. Accordingly, the petitioners continued in service upto 58 years. To the dismay of the petitioners, the Government issued Ext.P24 order dated 11.02.2021 enhancing the age of superannuation of the staff of the second respondent **W.P.(C)20939 OF 2018** 6 Board to 58 years, after the petitioners has superannuated. Learned Senior Counsel contended that the benefit of Ext.P24 should be extended to the petitioners by treating the enhancement to be retrospective from 05.05.2017, the date on which the Board had recommended enhancement of retirement age. It is further contended that, having permitted the petitioners to continue upto 58 years, their age of superannuation should be taken as 58 and the benefit of the EPF Pension Scheme extended to them. 4. Learned Government Pleader contended that the petitioners do not have any vested right to get their superannuation age increased. Such right will accrue only on the service regulations being modified with the approval of the State Government. The decision regarding enhancement of retirement age of the staff of Government controlled Corporations is within the realm of policy making and this Court is not expected to trench upon such domain of the executive. In support of the contention, reliance is placed on the **W.P.(C)20939 OF 2018** 7 decisions of the Apex Court in _**Chandra Mohan Varma v. State of Uttar Pradesh and others [2020 (13) SCC 261] and New Okhla Industrial Development Authority and another v. B. D. Singhal and others [AIR 2021 SC 3457]**_ . It is contended that the petitioners having continued in service on the specific understanding that they will not be entitled for remuneration for the service rendered after 56 years, the petitioners cannot demand salary and other emoluments for the said period. Attention is drawn to the judgment in W.A.No.1548/2018 wherein, the Senior Counsel's submission that the writ petitioners, will not claim the benefit of equity, if ultimately they lose the battle with regard to the challenge raised against the impugned orders is recorded. 5. Learned Standing Counsel for the second respondent Board contended that Ext.P24 being prospective, the petitioners are not entitled to the benefit of that order. It is contended that merely **W.P.(C)20939 OF 2018** 8 because the Board of Directors of the second respondent had resolved to raise the age of retirement of its employees, the Government is not bound to grant approval. Reliance is placed on the decision in _**State of Kerala and another v. Kerala Land Development Corporation Employees Union and others [ILR 2016 (2) Ker 81]**_ to contend that the authority of the Government to reject recommendation of the Board of Directors of Corporations has been upheld by the Division Bench. 6. As rightly pointed out by the learned Government Pleader, the decision as to the age of superannuation and the date with effect from which the enhancement should be made, are matters of policy. The same issue considered by the apex court in _**New Okhla Industrial Development Authority**_ _(supra) and a_ nswered as under; _Paragraph 19: Whether the age of superannuation should be enhanced is a matter of policy. If a decision has been taken to enhance the age of superannuation, the date with effect from which the_ **W.P.(C)20939 OF 2018** 9 _enhancement should be made falls within the realm of policy. The High Court in ordering that the decision of the State government to accept the proposal to enhance the age of superannuation must date back to 29 June 2002 has evidently lost sight of the above factual background, more specifically (i) the rejection of the original proposal on 22 September 2009; and (ii) the judgment of the Division Bench dated 17 January 2012 refusing to set aside the order rejecting the proposal on 22 September 2009 which has attained finality. But there is a more fundamental objection to the basis of the decision of the High Court. The infirmity in the judgment lies in the fact that the High Court has trenched upon the realm of policy making and has assumed to itself, jurisdiction over a matter which lies in the domain of the executive. Whether the age of superannuation should be increased and if so, the date from which this should be effected is a matter of policy into which the High Court ought not to have entered. Paragraph 20: xxxxxxxxxxx_ _Paragraph 21: Whether the decision to increase the age of superannuation should date back to the resolution passed by NOIDA or should be made effective from the date of the approval by the State government was a matter for the State government to decide. Ultimately, in drawing every cut-off, some employees would stand on one side of the line while the others would be positioned otherwise. This element of hardship cannot be a ground for the High_ **W.P.(C)20939 OF 2018** 10 _Court to hold that the decision was arbitrary. When the State government originally decided to increase the age of superannuation of its own employees from fifty eight to sixty years on 28 November 2001, it had left the public sector corporations to take a decision based on the financial impact which would result if they were to increase the age of superannuation for their own employees._ In _**Chandra Mohan Varma**_ , the appellant had sought the benefit of a Government order enhancing the retirement age of Professors in Medical Colleges to 65 years. Facts of that case reveals that Chandra Mohan Varma had actually retired from service much prior to the Government Order dated 06.02.2015, was granted a 'session benefit' of extension of service upto 30.06.2015. The contention that having continued in service, the benefit of the Government Order should be granted to the appellant was negatived, by holding that the determination of the age of retirement is a matter of executive policy and having attained the age of superannuation prior to the notification dated 06.02.2015, the appellant was not entitled to the benefit of enhancement of retirement age. In _**Kerala**_ **W.P.(C)20939 OF 2018** 11 ## _**Land Development Corporation Employees Union,**_ this Court rejected the challenge against the Government's refusal to approve the Land Development Board's recommendation to enhance the retirement age of its employees. The contention that superannuation pension being payable to the members of the EPF Pension Scheme only on attaining the age of 58 years, the State Government was obliged to accept the retirement age of the employees of the Corporations as 58 years was also negatived. 7. A conspectus of the above precedents leads to the only possible conclusion that Exts.P6 and P23 are unassailable, in the absence of any material to show that the policy in fixing the age of retirement was not based on any intelligible criteria. The petitioners have not succeeded in demonstrating any such perversity, unreasonableness of lack of intelligible criteria in relation to Exts.P6 and P23 orders. As such the challenge against those orders fail. 8. It is true that, by Ext.P24 order, the **W.P.(C)20939 OF 2018** 12 Government has enhanced the retirement to 58 years. The decision to enhance the retirement age and fixing of cut off date being within the realm of policy, the contention that the benefit of Ext.P24 should be extended to the petitioners by treating the order to be retrospective, can only be rejected. Incidentally it is also to be noted that W.P.(C) No.9508/2015 filed by an employee named D. Lathika, raising similar contentions, was dismissed by this Court vide judgment dated 14.09.2018. Therein, the claim for salary for the period for which the petitioner had continued beyond her retirement age was also rejected finding that she had willingly taken the risk of continuing without remuneration. 9. Even though, in the instant case, it was conceded that the petitioners will not claim the benefit of equity, if they ultimately lose the challenge, the fact remains that the petitioners' service was utilised till they attained 58 years. The second respondent Board has no case that the petitioners had not rendered **W.P.(C)20939 OF 2018** 13 satisfactory service during the said two years. In my considered opinion, the second respondent Board having utilised the service of the petitioners, cannot deny eligible remuneration due to them. In the result, the writ petition is disposed of as under; (i) The prayer for extending the benefit of Ext.P24 order to the petitioners, by making the order retrospective with effect from 05.05.2017 is rejected. (ii) The second respondent Board is directed to fix and pay eligible remuneration to the petitioners for the period they had worked beyond the age of 56 years. (iii) Necessary action in that regard shall be taken as expeditiously as possible and at any rate, within three months of receipt of a copy of this judgment. ## **Sd/-** **V.G.ARUN** **JUDGE** NB **W.P.(C)20939 OF 2018** 14 ## **APPENDIX OF WP(C) 20939/2018** |**PETITIONERS' EXHIBITS**|| |---|---| |**EXHIBIT P1**|**THE PHOTOSTAT COPY OF THE GOVERNMENT ORDER**| ||**G.O(MS)NO.61/96/ID DATED 16/3/1996 ISSUED BY**| ||**THE GOVERNMENT.**| |**EXHIBIT P2**|**THE**<br>**PHOTOSTAT**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**NO.LR/KC/15565/ENF.11(4)/97/10102**<br>**DATED**| ||**9/1/1998 ISSUED BY THE REGIONAL PROVIDENT FUND**| ||**COMMISSIONER, COCHIN.**| |**EXHIBIT P3**|**THE**<br>**PHOTOSTAT**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**| ||**G.O(RT)NO.567/2000/ID DATED 24/5/2000 ISSUED BY**| ||**THE GOVERNMENT.**| |**EXHIBIT P4**|**THE PHOTOSTAT COPY OF THE JUDGMENT DATED**| ||**29/5/2013 IN WPC NO.13056 OF 2013(F) PASSED BY**| ||**THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM.**| |**EXHIBIT P5**|**THE PHOTOSTAT COPY OF THE JUDGMENT DATED**| ||**23/3/2015 IN WPC NO.5811 OF 2012 (B) PASSED BY**| ||**THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM.**| |**EXHIBIT P6**|**THE PHOTOSTAT COPY OF ORDER G.O(RT)**| ||**NO.187/2015/ID DATED 27/2/2015 ISSUED BY THE**| ||**GOVERNMENT.**| |**EXHIBIT P7**|**THE PHOTOSTAT COPY OF THE INTERIM ORDER DATED**| ||**26/3/2015 PASSED BY THE HON'BLE HIGH COURT OF**| ||**KERALA AT ERNAKULAM.**| |**EXHIBIT P8**|**THE PHOTOSTAT COPY OF THE RESOLUTION**| ||**NO.162/5(18) PASSED BY THE KERALA COIR WORKERS**| ||**WELFARE FUND BOARD, DATED 5/5/2017, 11 A.M.**| |**EXHIBIT P9**|**THE PHOTOSTAT COPY OF THE REPRESENTATION**| ||**NO.CWB/E1/211/2011 DATED 23/10/2017 SUBMITTED**| ||**BY THE CHIEF EXECUTIVE OFFICER, KERALA COIR**| ||**WORKERS WELFARE FUND BOARD, HEAD OFFICE, KERALA**| ||**COIR WORKERS WELFARE FUND BOARD, HEAD OFFICE,**| ||**ALAPPUZHA, TO THE ADDITIONAL CHIEF SECRETARY,**| ||**INDUSTRIES (E)DEPARTMENT, TVM.**| |**EXHIBIT P10**|**THE PHOTOSTAT COPY OF THE LETTER PUBLISHED**| ||**ALONG WITH THE SPECIAL RULES BY THE CHIEF**| ||**EXECUTIVE OFFICER, KERALA COIR WORKERS WELFARE**| ||**FUND BOARD, HEAD OFFICE, ALAPPUZHA.TO THE**| ||**DISTRICT REGIONAL SUB OFFICER, VADAKAN**| ||**PARAVOOR,**<br>**VAIKOM,**<br>**NO.CWB/E1/1/99**<br>**DATED**| ||**19/1/2018.**| |**EXHIBIT P11**|**THE PHOTOSTAT COPY OF THE TRUE EXTRACT OF THE**| ||**SPECIAL RULES SHOWING THE AGE OF RETIREMENT AS**| ||**58 YEARS, G.O. INDUSTRIES.**| |**EXHIBIT P12**|**THE PHOTOSTAT COPY OF THE LETTER NO.CWB/E1/1/99**| ||**DATED 22/1/2018, ISSUED BY THE CHIEF EXECUTIVE**| ||**OFFICER, KERALA COIR WORKERS WELFARE FUND BOARD**| ||**ALAPPUZHA, TO THE DIRECTOR, KERALA COIR WORKERS**| ||**WELFARE FUND BOARD, COIR BHAVAN, TVM.**| **W.P.(C)20939 OF 2018** 15 |**EXHIBIT P13**|**THE PHOTOSTATE COPY OF THE ORDER ISSUED BY**|**THE**| |---|---|---| ||**GOVERNMENT G.O(MS)NO.56/10/1D DATED 15/3/2010.**|| |**EXHIBIT P14**|**THE PHOTOSTAT COPY OF THE ORDER NO.G.O(MS)**|| ||**NO.84/2010/TSM DATED 16/3/2010 ISSUED BY**|**THE**| ||**GOVERNMENT.**|| |**EXHIBIT P15**|**THE PHOTOSTAT COPY OF THE ORDER NO.G.O(MS)**|**NO.**| ||**(MS)NO.33/2011/FIN.D. DATED22/2/2011 ISSUED**|**BY**| ||**THE GOVERNMENT.**|| |**EXHIBIT P16**|**THE PHOTOSTAT COPY OF THE ORDER G.O(MS)**|| ||**NO.01/2011/CSIN DATED 26/2/2011 ISSUED BY**|**THE**| ||**GOVERNMENT.**|| |**EXHIBIT P17**|**THE**<br>**PHOTOSTAT**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**|| ||**G.O(MS)NO.297/2011/H&FW DATED 7/5/2011 ISSUED**|| ||**BY THE GOVERNMENT.**|| |**EXHIBIT P18**|**THE**<br>**PHOTOSTAT**<br>**COPY**<br>**OF**<br>**THE**<br>**ORDER**|| ||**G.O(RT)NO.62/11/M.E.D DATED 18/6/2011 ISSUED**|**BY**| ||**THE GOVERNMENT.**|| |**EXHIBIT P19**|**THE PHOTOSTAT COPY OF THE CIRCULAR NO.PENSION-**|| ||**PEN-1/3/4/2016/MOL&E/2 DATED 8/5/2017 ISSUED**|**BY**| ||**THE REGIONAL PF COMMISSIONER-1(PENSION),**|**NEW**| ||**DELHI, TO THE ALL ACCOUNTS (ZONAL OFFICES).**|| |**EXHIBIT P20**|**THE PHOTOSTAT COPY OF THE REPRESENTATION DATED**|| ||**29/12/2017 SUBMITTED BY THE 1ST PETITIONER**|**TO**| ||**THE **<br>**SPECIAL**<br>**SECRETARY, **<br>**INDUSTRIES**|**(E)**| ||**DEPARTMENT, TVM.**|| |**EXHIBIT P21**|**THE PHOTOSTAT COPY OF THE REPRESENTATION DATED**|| ||**22/12/2017 SUBMITTED BY THE 2ND PETITIONER**|**TO**| ||**THE **<br>**SPECIAL**<br>**SECRETARY, **<br>**INDUSTRIES**|**(E)**| ||**DEPARTMENT, TVM.**|| |**EXHIBIT P22**|**THE PHOTOSTAT COPY OF THE ORDER DATED 1/6/2018**|| ||**IN W.P(C)NO.6854/2018 (F) PASSED BY **|**THE**| ||**HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM.**|| |**EXHIBIT P23**|**THE PHOTOSTAT COPY OF THE ORDER NO.G.O(RT)**|| ||**NO.689/2018/ID DATED 16/6/2018 ISSUED BY**|**THE**| ||**GOVERNMENT.**|| |**EXHIBIT P24**|**THE PHOTOSTAT COPY OF THE ORDER 11/02/2021.**|| |**RESPONDENTS EXHIBITS:**|**NIL**|| **TRUE COPY** **P.A. TO JUDGE**