P.K. Sreedhara Panicker and others v. State of Kerala and Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **FRIDAY, THE 15TH DAY OF NOVEMBER 2013/24TH KARTHIKA, 1935** ## **WP(C).No. 7216 of 2012 (B)** **--------------------------------------** **PETITIONER(S):** - **--------------------------** **1. P.K.SREEDHARA PANICKER, AGED 80 YEARS, S/O.C.N.VELU PILLAI, ACCOUNTS OFFICER (RETIRED) KERALA STATE ELECTRICITY BOARD, RESIDING AT PUTHENPURAYIL HOUSE, PULLAD.P.O., PATHANAMTHITTA.** **2. P.M.JACOB, ASSISTANT ENGINEER (RETIRED) KERALA STATE ELECTRICITY BOARD RESIDING AT PEEDIKAYIL VEEDU, VALLAMKULAM, THIRUVALLA.** **3. P.T.KURIAN, ASSISTANT ENGINEER (RETIRED) KERALA STATE ELECTRICITY BOARD RESIDING AT PULLUTHARAYIL KUNNUMPURAM VALLAMKULAM EAST, THIRUVALLA.** **4. V.C.KURIAN,** - **SECOND GRADE OVERSEER (RETIRED) KERALA STATE ELECTRICITY BOARD RESIDING AT PANIKARU VEETTIL VETTIKATHARA VALLAMKULAM, THIRUVALLA.** **5. V.K.VASUDEVA PANICKER, SENIOR SUPERINTENDENT (RETIRED) KERALA STATE ELECTRICITY BOARD RESIDING AT PANICKASSERY LAL BHAVAN, ALA, CHENGANNUR.** **6. R.GOPALA PILLAI, SENIOR SUPERINTENDENT (RETIRED) KERALA STATE ELECTRICITY BOARD RESIDING AT UCHIPUZHA VEEDU, PERINAGARA.P.O., THIRUVALLA.** **7. N.SREEDHARAN NAIR, ASSISTANT ENGINEER (RETIRED) KERALA STATE ELECTRICITY BOARD RESIDING AT SREENIKETAN, MALLAPUZHASSERY, ARANMULA.** **tss** ## **W.P.(C) NO.7216/2012** ## **8. K.GOPINATHAN NAIR, ASSISTANT ACCOUNTS OFFICER (RETIRED) KERALA STATE ELECTRICITY BOARD RESIDING AT KUNNATHETTU VEEDU, CHATHENKKERRY THIRUVALLA.** ## **9. P.M.THOMAS,** **ASSISTANT ENGINEER (RETIRED) KERALA STATE ELECTRICITY BOARD RESIDING ATTUMALIL HOUSE, PERINGARA.P.O THIRUVALLA.** **BY ADVS.SRI.P.B.SURESH KUMAR (SR.) SRI.LEO GEORGE SRI.K.N.SASIDHARAN NAIR** **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** **2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY KERALA STATE ELECTRICITY BOARD, VAIDHYUTHI BHAVAN THIRUVANANTHAPURAM-695001.** **R1 BY SR.GOVERNMENT PLEADER SRI.T. RAMPRASAD UNNI R2 BY ADV. SRI.K.S.ANIL, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2013, ALONG WITH WPC. 17423 OF 2012 AND CONNECTED CASES THE COURT ON 15/11/2013 DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.7216/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT-P1 TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT IN THIS CONNECTION DATED 03/04/1957.** **EXT-P2 TRUE COPY OF G.O.230/(124)/97/FINANCE DATED 14/02/1997.** **EXT-P3 TRUE COPY OF G.O.(P).3001/98/FIN,DATED 25/11/1998.** **EXT-P4 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT ON W.P(C)20865/2O06 DATED 10/08/2010.** **EXT-P5 TRUE COPY OF G.O.(P) NO.125/2006 DATED 17/03/2006.** ## **EXT-P6 TRUE COPY OF G.O.(P) NO.180/2006 DATED 18/04/2006.** **EXT-P7 TRUE COPY OF G.O.(P) 253/2006 DATED 08.06.2006.** **EXT-P8 TRUE COPY OF BOARD ORDER NO.1151/2010 DTD.6.5.2010.** ## **EXT-P8(A) TRUE COPY OF BOARD ORDER NO.2434/2010 DATED 16/9/2010.** ## **EXT-P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS TO THE BOARD DATED 31.1.2012.** **EXT.P9:-COPY OF G.O.(P) NO.87/2011 DTD. 28.2.2011( I.A. NO.5635/2013)** ## **P10:- COPY OF BOARD ORDER NO.BO(MF) NO.1099 DTD. 31.5.2012.** **P11:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS TO THE BOARD DTD. 31.1.2012.** ## **RESPONDENTS' EXHIBITS** ## **NIL** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.Nos.7216 of 2012,17423 of 2012, 18422 of 2012, 20576 of 2012, 20596 of 2012, 21496 of 2012, 23730 of 2012, 23755 of 2012, 25856 of 2012, 25950 of 2012, 26854 of 2012, 28985 of 2012, 598 of 2013 and 1417 of 2013 ---------------------------------------Dated this the 15[th] day of November 2013 ## **J U D G M E N T** Some of the petitioners in the above writ petitions are retired employees of the Kerala State Electricity Board (for short KSEB) and some are family pensioners. The employees were appointed in the Electricity Department of Government of Kerala and thereafter when KSEB was formed, with effect from 01/04/1957 they were transferred to KSEB and service conditions were protected in terms of G.O.No.EL1-4670/57/PW dated 03/04/1957. As per the aforesaid Government order the relevant clause read as under: _“(6). The Board should extend to the personnel transferred and lent, all the benefits_ W.P.C.Nos.7216 of 2012 2 & conn.cases _such as pay and allowances and other conditions of service as enjoyed by them in Government service. The Board should also give them the benefits of increased emoluments which may be sanctioned by the Government from time to time for similar officers in the Public Works Department and other departments._ _7. While fixing the pay and allowances of the employees of the Board, the Government servants lent and transferred to the Board should be free to receive any increased emoluments which the Board may sanction.”_ 2. According to the petitioner, the Government by G.O.P.No.180/06/Fin dated 18/04/2006 revised the pension and other benefits in respect of pensioners of the Government by which the Government adopted a scheme of one rank one pension. The said revision was applicable in respect of persons who retired prior to 01/07/2004, from 01/04/2005. By B.O.(FM)No.3246/2010 dated 10/12/2010 the KSEB extended the same benefit to the pensioners of the Board but it was made effective only from 01/04/2010. 3 W.P.C.Nos.7216 of 2012 & conn.cases Petitioners rely upon a judgment of this Court in W.P.C.No.20865 of 2006 in which a learned Single Judge of this Court directed KSEB to extend certain benefits on par with Government employees. The said judgment had become final. Petitioners submitted various representations to KSEB but nothing has been done in the matter and hence they have approached this Court seeking a direction to KSEB to effect revision of pension from 01/04/2005 as per the Government order G.O.(P).No.180/06 dated 18/04/2006 and to implement one rank one pension. 3. In these batch of writ petitions W.P.C.Nos.21496 of 2012, 17423 of 2012, 18422 of 2012 ,20596 of 2012, 23730 of 2012, 25950 of 2012, 28985 of 2012, 598 of 2013 and 1417 of 2013 are filed for a direction to the KSEB to revise the pension payable to the petitioners in accordance with G.O.(P).No.125/2006/Fin dated 17/03/2006 and Government order G.O.(P).No.253/2006/Fin dated 08/06/2006 and further to extend the benefit of G.O.(P).No.87/2011/Fin dated W.P.C.Nos.7216 of 2012 4 & conn.cases 28/02/2011. According to them, they are also entitled for the pension scheme adopted by the Government from time to time. It is their contention that the Government revised pay scales of State Government employees with effect from 01/07/2004 as per G.O.(P).No.125/2006 dated 07/03/2006 and consequently there has to be a revision in the pension as well. Further guidelines were prescribed in the form of a clarification as per G.O.(P).No.253/2006 dated 08/06/2006. The KSEB decided to implement one rank one pension with effect from April 2010. According to them, pension of Government pensioners was again revised as per G.O.(P). No.87/2011. The KSEB revised the pension only with effect from 01/07/2008 as per Board Order No.B.O.(MF) No.1099 dated 31/05/2012. Though the petitioners had submitted several representations, no action was taken and therefore they have filed the writ petitions. According to them, they are also entitled for all the benefits that are extended to the 5 W.P.C.Nos.7216 of 2012 & conn.cases pensioners of State Government with effect from 01/07/2004 and in respect G.O.P.No.87/2011 with effect from 01/07/2009. 4. In W.P.C.Nos.23755 of 2012, 20576 of 2012 and 25856 of 2012 the petitioners are family pensioners who claim similar benefits on the basis of the Government orders referred above. W.P.C.No.7216 of 2012 is filed by pensioners claiming one rank one pension with effect from 01/07/2004 based on the aforesaid Government orders. 5. Counter affidavit is filed by KSEB in most of these cases. The contentions urged are similar. According to them, the Government had guaranteed various safeguards to the employees of the Electricity Department at the time of transition to ensure that they shall not receive any pay or allowances less than what they were entitled, had they been in the service of Government. According to them, though the Government had revised the pension and other benefits consequent to revision of pay scales from 01/07/2004 the W.P.C.Nos.7216 of 2012 & conn.cases 6 KSEB had implemented the same only with effect from 01/04/2010. According to them, the petitioners are entitled for revision of pension only when KSEB revises the same and not at the time when the Government exercises various revisions. It is contended that in KSEB, pension revisions for the period 1988-93 was ordered on 01/06/1990, from 199398 on 16/05/1996, from 1998-2003 on 23/02/2001 and for 2003-2008 on 11/11/2008. According to them, all revision, Dearness Relief, etc. in respect of pensioners are given with effect from the date on which the Board decides to adopt the Government order. Further it is contended that Government order dated 03/04/1957 only guarantees increased emoluments from time to time and does not regulate pension at all. They also refers to a judgment in O.P.No.889/2000. They further contended that emoluments does not include pension and the pension is regulated by the rules and orders that are existing in an establishment. With reference to the judgment in W.P.C.No.20865 of 2006 which W.P.C.Nos.7216 of 2012 & conn.cases 7 was confirmed in the Writ Appeal it is contended that it was an individual case and has no application in this case. That apart, when that judgment was implemented, it was found that the petitioner therein had enjoyed more benefits and excess amount was recovered from his pension revision arrears. It is further contended that one rank one pension scheme formulated by the Government is not an emolument sanctioned by the Government where as it is a scheme and the scheme is adopted by the KSEB only with effect from 01/04/2010 after getting prior approval from the State Government. The pensioners cannot make a demand otherwise. It is contended that it operates only prospectively. It is further contended that KSEB has revised salary as well as pension from time to time for the benefit of its employees and pensioners. In case of the pensioners of KSEB such benefits were better than that of the pension received by their counterparts in the PWD department of the Government. Respondents therefore sought for dismissal of W.P.C.Nos.7216 of 2012 & conn.cases 8 the writ petition. 6. During the pendency of the writ petition, the petitioner in W.P.C.No.21496 of 2012 brought to the notice of this Court a Board order B.O.(FM).No.2455/2012 dated 18/12/2012 by which, it was decided as under: _“Having considered the matter in detail, the Board is pleased to grant interim relief with effect from 01/02/1997 and revision of pension with effect from 01/03/1997 to the surviving 52 pensioners, as identified by the Chief Engineer (HRM) who have been transferred to the Board from the erstwhile Electricity Department. The said 52 pensioners, as identified by the Chief Engineer (HRM), will not be eligible for further revision of pension with effect from 01/07/1998 / 01/08/1998 as ordered vide Board Order read as 3[rd] paper above. Orders are issued accordingly.”_ 7. This document is produced to indicate that the pensioners who were originally employed in the Electricity Department of the Government of Kerala are treated differently and therefore they are entitled to the same W.P.C.Nos.7216 of 2012 9 & conn.cases benefits that are given to the Government employees as well. 8. Heard the learned senior counsel Sri.P.B.Suresh Kumar, learned counsel Sri.P.M.Pareeth, Sri.K.S.Anil,learned Standing Counsel for KSEB, the Learned Senior Government Pleader Sri.T.Ramaprasad Unni and learned Government Pleader Sri.Noushad Thottathil. 9. The short question involved in the above writ petition is based on the 1957 Government order. The first question to be considered is whether Clauses 6 and 7 of Government order dated 03/04/1957 enables the petitioners to demand the pension in the light of the benefits granted by the State Government to its employees. The first question is whether “all the benefits such as pay and allowances and other conditions of service as enjoyed by them in Government service” would take in pension. The pay and allowances and other conditions of service are qualified by the words “as enjoyed by them in Government service.” The W.P.C.Nos.7216 of 2012 & conn.cases 10 intention is that they should be given the same benefits by way of pay and allowances and conditions of service which they were enjoying at the relevant point of time. Admittedly none of the petitioners in the above case have a complaint that the employees were not given the same benefits as enjoyed by them in the Government service. Further, there was a clear indication that the Board should also give them increased emoluments which may be sanctioned by the Government for similar officers in the Public Works Department and other Departments. None of the petitioners have a case that the employees were not given similar benefits as that of similar officers in the Public Works department and other departments. Therefore, apparently, Clause 6 applies only in respect of the pay and allowances and conditions of service enjoyed at the relevant time or at least while they were in service. The change in situation was with reference to the emoluments that may be increased in respect of similar officers in the Public Works W.P.C.Nos.7216 of 2012 11 & conn.cases Department and other departments. In fact, when they become employees of the KSEB they were entitled to receive increased emoluments which KSEB may sanction. Therefore, the whole concept of Clauses 6 and 7 was to enable the Board to maintain their pay and allowances in such a manner that it should not be less than similarly placed officers in Public Works Department or any other departments. Pension is payable only at the time of retirement and that too on the basis of the last drawn salary and depending upon the number of years of qualifying service. In **Kerala State Road Transport Corporation v. K.O. Varghese, (2003) 12 SCC 293),** the Supreme court held as under: _“20. From the aforesaid analysis three things emerge: (i) that pension is neither bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to the statute, if any, holding the field, (ii) that the pension is not an ex gratia payment but it_ W.P.C.Nos.7216 of 2012 12 & conn.cases _is a payment for the past service rendered; and (iii) it is a social-welfare measure rendering socioeconomic justice to those who in the heyday of their life ceaselessly toiled for employers on an assurance that in their ripe old age they would not be left in the lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the emoluments earlier drawn. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement. That is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure._ _**21.** In Corpus Juris Secundum, Vol. 70, at p. 423, it is stated that the title “pension” includes pecuniary allowances paid periodically by the Government to persons who have rendered services to the public or suffered loss or injury in the public service, or to their representatives; who are entitled to such allowances and rate and amount thereof; and proceedings to obtain and payment of such pensions._ W.P.C.Nos.7216 of 2012 13 & conn.cases _**22.** In its strict sense a pension is not a matter of contract, and is not founded on any legal liability, it is a mere bounty or gratuity “springing from the appreciation and consciousness of the sovereign”, and it may be given or withheld at the discretion of the sovereign. It may be bestowed on such persons and on such terms as the law-making body of the Government prescribes, and it is, at the most, an expectancy granted by the law. The term “pension” has been compared and distinguished from “bonus”, “compensation”, “profits” and “retirement payment”. A pension fund is to be distinguished from an annuity fund derived in part from voluntary contributions under a statutory option to contribute or refrain from contributing.”_ As per Clause 8 of Government order dated 03/04/1957, the past service of the personnels transferred to KSEB shall also be computed for the purpose of pension. The said clause reads as under: _“8. The Board should take into consideration the past service of such personnel, lent and_ W.P.C.Nos.7216 of 2012 14 & conn.cases _transferred for the purpose of promotion, leave, pension and such other benefits.”_ 10. Further the disciplinary control over all the staff lent to the Board was to rest entirely with KSEB and according to the rules framed by KSEB for such purpose. Clause 3 indicated as under: _“3. The Board should pay them their pension and Provident Fund. Government guarantee such payments also to the staff in question.”_ A conjoint reading of the above quoted provisions, does not enable me to come to a conclusion that KSEB was under obligation to provide the pensioners, pension in accordance with the scheme adopted by the Government for Government employees. Much reliance has been placed on the judgment of this court in W.P.C.No.20865 of 2006. That was a case in which by virtue of two Government orders certain interim reliefs were granted to the Government employees with effect from 01/02/1997 and revised pension W.P.C.Nos.7216 of 2012 15 & conn.cases with effect from 01/03/1997. The learned Judge observed that the first petitioner in that case was entitled for certain benefits. But further it was observed that in subsequent pay revision and pension revision interim relief was merged with such orders and only the benefits that are admissible will be due to them. But it is relevant to note that the petitioner does not make a claim as had been granted in the case of E.N.Narayana Pillai. Even otherwise, according to KSEB when the benefits were worked out on the basis of the judgment, the pensioners had to refund certain amount. In other words, the pension that was applicable to the petitioners were better than the benefits that were granted in respect of the Government orders relating to W.P.C.No.20865/2006. That apart, in the present case, it is not a question of revising the pay scale of the employees similarly situated. It is a scheme adopted by the Government. The said scheme is adopted by KSEB, with effect from 01/04/2010. In so far as the liability to pay pension is on the KSEB in terms with W.P.C.Nos.7216 of 2012 16 & conn.cases Clause 3 of the Government order dated 03/04/1957, all pensioners will be bound by such Board orders and they cannot fall back on the benefits granted to the Government employees. Of course, it is always open for the Board to extend any benefit as has been done as per Board order No.2455 dated 18/12/2012 to similarly placed persons. But that does not mean that the petitioners have a legal right to demand implementation of the one rank one pension scheme to them as it is purely within the discretion of the KSEB to implement the scheme with effect from such date as may be decided by them. Under these circumstances, I am of the view that the petitioners are not entitled for the relief as sought for. Accordingly, these writ petitions are dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.Nos.7216 of 2012 17 & conn.cases