Saji Varghese v. State of Kerala and others

WP(C) NO. 6514 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944** ## **WP(C) NO. 6514 OF 2022** ## **PETITIONER/S:** SAJI VARGHESE AGED 65 YEARS W/O. SHAJI K VARGHESE, RETIRED HEAD MISTRESS, M.I.S.M.U.P SCHOOL, PENGAD KUNDIL PARAMBA, KANNAMMANGALAM WEST P.O (VIA) A R NAGAR, MALAPPURAM DISTRICT, RESIDING AT THAZHATHU VILLA, MALLASSERY P.O, PATHANAMTHITTA 689 646 BY ADVS. K.RAMAKUMAR (SR.) T.RAMPRASAD UNNI S.M.PRASANTH R.S.ASWINI SANKAR G.RENJITH T.H.ARAVIND ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GENERAL EDUCATION (K) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE PRINCIPAL ACCOUNTANT GENERAL(A AND E) KERALA, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL ( A AND E), KERALA , THIRUVANANTHAPURAM 695 001 3 THE ASSISTANT EDUCATIONAL OFFICER VENGARA, MALAPPURAM 676 304 SMT. NISHA BOSE, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 6514 OF 2022 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No. 6514 of 2022** **-------------------------------------Dated this the 28[th] day of February, 2023** ## **JUDGMENT** ## The above writ petition is filed with following prayers : (i) “To call for the records leading upto Exhibit P10 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ order or direction. (ii) To issue a Writ of Mandamus commanding the respondents to forthwith disburse pension due to the petitioner from 01.06.2013 to 14.01.2019 with 18% interest per annum till the actual date of disbursal. (iii) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.”[SIC] 2. The petitioner is challenging Ext.P10 order. The petitioner was retired from service on 31.05.2013. As per Ext.P1 order, the pension benefits were sanctioned only with effect from 15.01.2019. According to the respondents, the WP(C) NO. 6514 OF 2022 3 pension was sanctioned only with effect from 15.01.2019 because the pension papers were submitted only after three years and there was no sanction from the Government in terms of Rule 120 of Part III KSR. The Government rejected the request of the petitioner as per Ext.P8. Ext.P8 was challenged before this Court by filing W.P.(C) No. 33751/2019. This Court was pleased to set aside Ext.P8 and directed the Government to reconsider the matter. Even then, the Government again rejected the prayer of the petitioner as per Ext.P10 for the same reason mentioned in Ext.P8 is the submission. Aggrieved by Ext.P10 this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. This Court earlier as per Ext.P9 judgment considered the matter in detail and made certain observations and thereafter, directed the Government to consider the matter afresh. It will be beneficial to extract Ext.P9 judgment. The petitioner has approached this Court impugning Ext.P4, which is the order of the Government declining her pensionary benefits from 01.06.2013 to 14.01.2019, solely for the reason that she had delayed submission of her pension papers until WP(C) NO. 6514 OF 2022 4 the year 2018, even though she had retired on 01.06.2013. 2. According to the petitioner, Government has not considered her claim in its proper perspective because she was incapacitated from submitting the pension papers until the year 2018, since she had been involved in various litigations from the year 2004 with respect to the rights as a Teacher in the aided School and that such Writ Petitions were disposed of by this Court only on 08.04.2016. She further explains that in one of the said Writ Petitions, she had to challenge the punishment of compulsory retirement imposed upon her by the jurisdictional District Educational Officer (DEO) on 29.03.2010; and that it was only after all these Writ Petitions were disposed of in her favour, could she have submitted the pension papers. 3. The petitioner submits that immediately after the afore judgment was delivered by this Court, she made an application before the Assistant Educational Officer (AEO), Vengara, as also the Headmaster of the School, along with a copy of the said judgment and that this is evident from Exts.P5 and P6 respectively. She says that, in the meanwhile, she had submitted the statement of fixation in the required format on 27.04.2016 and that after her pay was so fixed, Government issued an order on 18.11.2017, by which the AEO was directed to pay the salary and allowances to her. She says that a copy of this order has been produced as Ext.P7 and that it was only after this order was issued by the Government, could the final pay and entitlement of the petitioner become certain in terms of her service, for drawing the pensionary benefits. 4. The petitioner says that, however, when Ext.P7 order was issued by the Government, there were certain mistakes in it and therefore, that she had to approach this Court again, WP(C) NO. 6514 OF 2022 5 through I.A.No.5/2018 in W.P. (C)No.26915/2014, which was allowed only on 16.01.2018; consequent to which, Government issued Ext.P8 order rectifying these mistakes on 24.02.2018. She asserts that it is only then that her claims became ascertainable and properly quantifiable and therefore, that she submitted her pension papers before the competent Authority after that. She adds that, in fact, the Principal Accountant General has, through Ext.P1, fixed her pension from 01.06.2013 to 30.06.2014 at Rs.16,840/-; while from 01.07.2014 as Rs.33,343/- and therefore, that the alleged delay in submission of the pension papers had not caused any administrative inconvenience for fixing her pension from the date on which she became eligible to it. 5. The petitioner alleges that, in spite of all this, the pension from 01.06.2013 to 14.01.2019 had not been disbursed, thus constraining her to approach the competent Authorities, which has now culminated in Ext.P4 order of the Government. She, therefore, prays that Ext.P4 be set aside and the Principal Accountant General be directed to disburse the eligible pension from 01.06.2013 until 14.01.2019, within a time frame to be fixed by this Court. 6. In reply to the submissions made on behalf of the petitioner by her learned counsel – Sri.S.M.Prasanth, the learned Senior Government Pleader – Sri.P.M.Manoj, submitted that Ext.P4 has been issued in terms of Rule 120 Part III of the Kerala Service Rules (KSR), which mandates that if pension is granted long after an employee had retired, retrospective effect to it could be given only after obtaining special orders from the Government. He submitted that this provision has been incorporated in the KSR to ensure that stale claims of pension are not allowed to be prosecuted; and WP(C) NO. 6514 OF 2022 6 that as far as this case is concerned, it is clear that the petitioner had submitted her pension papers only in the year 2018, even though she had retired as early as in the year 2013. He, therefore, prayed that this Writ Petition be dismissed. 7. The submissions of the learned Senior Government Pleader as afore clearly show that the stand of the Government is that no special order can be issued in this case because the petitioner had unduly delayed submission of pension papers until 2018 though she had retired in the year 2013. However, the explanation offered by the petitioner, which has been recorded above, in having caused the delay in submission of the papers, has not even adverted to by the Government and they have mechanically entered into a finding that the delay is unreasonable. 8. This is pertinent because, if, as stated by the petitioner, she was incapacitated from submitting pension papers on account of the various litigations faced by her, particularly since she was not even sure if her status as a Teacher could be protected, until a judgment had been delivered by this Court. I, therefore, see no valid reason why the Government should not have considered all these, because, even as per Rule 120 Part III of the KSR, it alone has the competence to issue special orders, in cases where pension is sanctioned long after an employee had retired, so as to give it retrospective effect from the date on which it became eligible. Since Ext.P4 does not look into any of these aspects in its proper perspective, I am certain that it cannot find my favour. In the afore circumstances, I set aside Ext.P4; with a resultant direction to the competent Secretary of the Government to reconsider the claim of the petitioner, taking note of the WP(C) NO. 6514 OF 2022 7 circumstances narrated by her and recorded above and after affording her an opportunity of being heard – either physically or through video conferencing – thus culminating in an appropriate order thereon, under the provisions of Rule 120 Part III of the KSR, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. Needless to say, if, after the afore exercise, the petitioner is found entitled to the pension from the date on which she retired from service, same shall be disbursed without any avoidable delay, but not later than two months thereafter. This writ petition is thus disposed of.” 5. A reading of the above judgment will show that there are certain findings and observations in favour of the petitioner. I am of the considered opinion that, without considering the spirit of Ext.P9 judgment, Ext.P10 order is passed. Moreover, in **Baby K.K. v. Addl. Chief Secretary (Finance) Trivandrum and others** [2022 (1) KHC 99], this Court considered the issue in paragraphs 19 and 20 and the same is extracted hereunder : 19. “This Court had reiterated that a discretion is vested in the State Government to consider the case of a genuine and bonafide pensioner for payment of arrears of pension if it is to be paid for the period beyond three years. It was also held that the circular issued by the Government also made it clear that WP(C) NO. 6514 OF 2022 8 the discretion can in fact be exercised sparingly and in deserving circumstances. 20. When discretion has been conferred on the Government under Rule 136 of the KSR to sanction the renewal of payment of pension which had lapsed, it must exercise the discretion after considering the facts and circumstances of the case and come to its decision. If the authority mechanically passes the order and divests itself of the power given to it, the said action cannot be said to be valid. It would also be a case of non application of mind if the concerned authority exercises its discretion in a casual manner without taking due care and caution and without considering the merits of the case carefully. By merely relying on the provisions of the Treasury Code and the relevant provisions of the KSR and by passing an order in a rigid and inflexible manner, the Government has fetered its discretion. The Government was expected to decide each and every case which comes up before it for sanction on its own merits and decide one way or the other. In other words, the Government has shut its ears on the fervent pleas of a retired public servant to give his due for the service rendered by him by forgiving his lapses.” 6. According to me, in the light of Ext.P9 judgment and also in the light of the principle laid down in **Baby's** case (supra), the Government has to reconsider the matter afresh within a time frame. Therefore, this writ petition is allowed in the following manner : WP(C) NO. 6514 OF 2022 9 - 1) Ext.P10 is set aside. - 2) The 1[st] respondent is directed to reconsider the matter in the light of the observations and findings in Ext.P9 judgment and also in the light of the dictum laid down by this Court in **Baby's** case (supra) as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment with notice to the petitioner. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 6514 OF 2022 10 ## **APPENDIX OF WP(C) 6514/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF INTIMATION SLIP OF PENSIONARY BENEFITS DATED 26-04-2019 ISSUED BY THE 2ND RESPONDENT - Exhibit P2 TRUE COPY OF APPLICATION DT 21-04-2016 SUBMITTED BY THE PETITIONER BEFORE THE ASSISTANT EDUCATIONAL OFFICER, VENGARA - Exhibit P3 TRUE COPY OF APPLICATION DT 21-04-2016 SUBMITTED BY THE PETITIONER BEFORE THE HEADMASTER - Exhibit P4 TRUE COPY OF G.O(RT) NO 4448/2017/G EDN DATED 18-11-2017 ISSUED BY THE GOVERNMENT OF KERALA TO THE PETITIONER - Exhibit P5 TRUE COPY OF G.O(RT) NO. 850/2018/G.EDN DATED 24-02-2018 ISSUED BY THE GOVERNMENT OF KERALA TO THE PETITIONER. - Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED 0506-2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT - Exhibit P7 TRUE COPY OF COMMUNICATION NO. A/5746/2018(2) DT 17-06-2019 SENT BY R3 TO R1 - Exhibit P8 TRUE COPY OF ORDER NO. B1/262/19/G.EDN DATED 29-10-2019 ISSUED BY THE 1ST RESPONDENT - Exhibit P9 TRUE COPY OF JUDGMENT DATED 26-02-2021 IN W.P9C0 NO. 33751 OF 2019 - Exhibit P10 TRUE COPY OF G.O(RT) NO. 776/2022/GEDN DATED 11-02-2022 ISSUED BY THE GOVERNMENT OF KERALA TO THE PETITIONER.