P.M. Balakrishnan Pillai & H. Navaneeth v. State of Kerala & Principal Secretary to Government, Department of Higher Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930** ## **OP.No. 38471 of 2002(E)** **---------------------------------** ## **PETITIONER(S):** - **----------------------** **1. P.M.BALAKRISHNA PILLAI, S/O.P.MADHAVAN PILLAI, AGED 61 YEARS, RESIDING AT "REVATHI", KAITHAVANA, ALAPPUZHA (SELECTION GRADE LECTURER (RETIRED) S.D.COLLEGE, ALAPPUZHA.)** **2. H.NAVANEETH, S/O.HARIHARAPUTHRA PILLAI, AGED 61 YEARS, RESIDING AT 'VIZAGH', SANATHANAM WARD, ALAPPUZHA(SELECTION GRADE LECTURER (RETIRED) S.D.COLLEGE, ALAPPUZHA.)** ## **BY ADV. SRI.M.R.RAJENDRAN NAIR (SR.)** **SRI.R.SREERAJ SRI.M.R.HARIRAJ SRI.ANIL R. NAIR SMT.REKHA VASUDEVAN SMT.T.M.RESHMI SMT.VINEETHA B.** ## **RESPONDENT(S):** ## **-------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, FINANCE (PAY REVISION IMPLEMENTATION) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** ## **GOVERNMENT PLEADER SRI.T.T.MOHAMOOD FOR R1 & R2** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.NO.38471/2002-E** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE G.O.(P)NO.365/94/FIN DATED 01/06/1994 ISSUED BY THE SENIOR ACCOUNTS OFFICER (P.A. 1) FINANCE (PRC.C) DEPARTMENT.** **EXT.P2: COPY OF THE G.O.(P)NO.3001/98/FIN. DATED 25/11/1998 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE), FINANCE (PAY REVISION IMPLEMENTATION) DEPARTMENT.** **EXT.P3: COPY OF THE G.O.(P)NO.171/99/H.EDN DATED 21/12/1999 ISSUED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION (C) DEPARTMENT.** **EXT.P4: COPY OF THE G.O.(P)NO.118/2001/(91)/FIN. DATED 17/01/2001 ISSUED BY THE ADDITIONAL SECRETARY (FINANCE), FINANCE (PAY REVISION CELL-C) DEPARTMENT.** ## **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Rs/** ## **ANTONY DOMINIC, J** **-----------------------------------------------------------** O.P.No.38471/2002 **-----------------------------------------------------------** Dated this the 28th day of November, 2008 JUDGMENT The prayers sought for in this writ petition are as follows; "i. To declare that the petitioners having retired from service only on a date after 1.1.1996, and the monthly pension and other pensionary benefits having become due to them on that basis are entitled to the maximum ceiling of Rs.2,80,000 on DCRG as also the benefit of commutation of a portion of their revised pension on account of Ext.P4 order. ii. To declare that Clause 13.2 of Ext.P3 is illegal and unconstitutional, to the extent that those who retired after 1.1.1996 and prior to 1.3.1997 are excluded. O.P.No.38471/2002 2 iii. to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to grant the petitioners DCRG to the tune of Rs.2.80 lakhs irrespective of their date of retirement." 2. Petitioners were Selection Grade Lecturers and retired from service on 31.3.1996 and 31.5.1996. Their entitlement for DCRG is as per the provisions contained in Rule 68 of Part III KSR. At the time of their retirement, the Rule provided for an upper limit of Rs.80,000/-. Subsequently, by Ext.P2 Government order dated 25.11.1998, the upper limit of Rs.80,000/- provided in Rule 68 of Part-III KSR was enhanced to Rs.2,80,000/- with effect from 1.3.1997. Still later, by Ext.P3 Government Order dated 21.12.1999, revision of scale of pay was introduced in terms of the UGC scheme with effect from 1.1.1996. O.P.No.38471/2002 3 3. Clause 13.2 of Ext.P3 reads as under. "Retirement benefits will be applied to College/University teachers including Physical Education teachers as per the existing pension rules under the State Government." 4. According to the counsel for the petitioners, clause 13.2 referred to above means that the pension rules which existed as on the date of Ext.P3 should be the basis on which DCRG should be calculated. It is stated that since pay has been revised with effect from 1.1.96 and as on the date of Ext.P3, the Rule which existed provided for an upper limit of Rs.2,80,000/- introduced by Ext.P2, although they have retired prior to 1.3.1997, their DCRG is liable to be reckoned on the revised last drawn pay with reference to the upper limit of Rs.2,80,000/-. Counsel also contends that, if this is not the interpretation that is possible, the Lecturers who have been given the benefit of Ext.P3 and have retired during the period from 1.1.1996 to 1.3.1997 O.P.No.38471/2002 4 alone will be subjected to a discretionary treatment by limiting their D.C.R.G to Rs.80,000/- and at the same time those retired subsequent to 1.3.1997 are given the beneficial treatment of upper limit of Rs.2,80,000/-. It is submitted that such an interpretation offends the equality clause provided in Article 14 of the Constitution of India, in as much as the cut off date of 1.3.1997 is arbitrary and unconstitutional. Learned counsel also placed reliance on the judgment of the Apex Court in **L.I.C of India V. Retd. L.I.C Officers' Association and Others** (ILR 2008(2) Kerala 231). 5. On the other hand, the Learned Government Pleader contended for the position that, entitlement for gratuity is a right that is crystallized in favour of an employee at the date of his retirement from service. It is contended that the expression 'existing rule' in Clause 13.2 of Ext.P3 has to be understood as to the rule that prevailed as on the date of retirement of the employee concerned. It O.P.No.38471/2002 5 is stated that the petitioners have retired on 31.3.1996 and 31.5.1996 respectively, when Rule 68 of Part-III of KSR provided for an upper limit of Rs.80,000/- and the gratuity in terms there of has been paid to the petitioners. It is contended that subsequent prospective revision in the rate of gratuity that is payable will not enure to the benefit of the petitioners. He also relied on the judgments of the Apex Court reported in the **State Govt. Pensioners' Association V. State of Andhra pradesh** (AIR 1986 SC 107), **Government of A.P. v. Subbarayudu** (2008(2) KLT 681(sc) and the judgment reported in **Kerala State Ware Housing Corporation R.E. Assocaition V. State of Kerala** (2006(3)KLT 77). 6. As already noticed, it is subsequent to the retirement of the petitioners, with effect from 1.3.1997, the limit of DCRG in Rule 68 of Part-III KSR was enhanced. It was still later, the UGC scheme was implemented by Ext.P3 with effect from 1.1.1996. Clause 13.2 of Ext.P3 provided O.P.No.38471/2002 6 for granting of terminal benefits based on the existing rules. Gratuity is a reward paid to the employee for the faithful service rendered during the period of his service. The right of an employee for payment of gratuity is crystallized on his retirement, which in the case of the petitioners was on their retirement on 31.3.1996 and 31.5.1996. This has been recognized in terms of the statutory provisions prevailing then and on that basis amount has been quantified and has also been paid. Though in view of the subsequent retrospective pay revision gratuity is liable to recalculated applying the revised last drawn pay, such quantification will be subject to the upper limit that prevailed on the dates of their retirement. If that be so, the subsequent revision in the maximum limit of gratuity and that too with prospective effect, cannot be claimed by the petitioners. This position is settled by the judgments referred to above. O.P.No.38471/2002 7 7. In **State Govt. Pensioners' Association V. State of Andhra pradesh** (AIR 1986 SC 1907), it has been held as follows. "The amount got crystallized on the date of retirement on the basis of the salary drawn by him on the date of retirement. And it was already paid to them on that footing. The transaction is completed and closed. There is no scope for upward or downward revision. In the context of upward or downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides retrospectively(downward revision may not be legally permissible even). It would be futile to contend that no upward revision of gratuity amount can be made in harmony with Art.14, unless it also provides for payment on the revised basis to all those who have already O.P.No.38471/2002 8 retired between the date of commencement of the Constitution in 1950, and the date of upward revision. There is therefore no escape from the conclusion that the High Court was perfectly right in repelling petitioner's plea in this behalf." 8. Assuming for the sake of argument that Ext.P2 provides a cut off date in the matter of providing for gratuity, such cut off date will stand the test of reasonablenss. This has been accepted by the Apex Court in the judgment referred to above. That apart the judgments relied on by the Government Pleader in **Government of A.P. v. Subbarayudu** (2008(2) KLT 681(SC) and in **Kerala State Ware Housing Corporation R.E. Assocaition V.** **State of Kerala** (2006(3)KLT 77) also supports this proposition. Therefore, I am not persuaded to accept the contention of the learned counsel for the Petitioners that those who retired between the periods 1.1.1996 to O.P.No.38471/2002 9 28.2.1997 are discriminated and therefore the effective date of 1.3.1997 provided in Ext.P2 is arbitrary or unconstitutional for any reason. 9. True the counsel for the petitioner relied on the judgment reported in **L.I.C of India V. Retd. L.I.C Officers' Association and Others** (ILR 2008(2) Kerala 231). That was a case where pay was revised with retrospective effect and what the Apex Court has held is that the employee is entitled to be paid gratuity reckoned on the basis of last drawn pay as revised. This proposition of law is not in dispute. However, in this case the maximum entitlement of the petitioners depended upon the upper limit that was prescribed in rule 68 of Part III KSR, unlike the case dealt with by the Apex Court. Therefore, the judgment relied on by the counsel for the petitioners does not improve their case in any manner. O.P.No.38471/2002 10 For all these reasons I am not persuaded to agree with the counsel for the petitioner. Necessarily, the writ petition deserves to be dismissed and I do so. vi **ANTONY DOMINIC JUDGE** O.P.No.38471/2002 11 ## **ANTONY DOMINIC, J** **-----------------------------------------------------------** O.P.No.38471/2002 **-----------------------------------------------------------** Dated this the 28th day of November, 2008 JUDGMENT O.P.No.38471/2002 12