Smt. Rajeswary.K v. State of Kerala & Ors.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 14TH DAY OF JANUARY 2021/24TH POUSHA, 1942** ## **WP(C).No.6746 OF 2019(P)** ## **PETITIONER:** **SMT.RAJESWARY.K, AGED 43 YEARS, W/O ANIL PRABHA, KAPPACHERY HOUSE, PATTUVAM POST, KANNUR, PRESENTLY RESIDING AT KIZHAKKEPURATH HOUSE, KORATTY SOUTH P.O., ERNAKULAM DISTRICT PIN-680 308** **BY ADV. SRI.K.N.CHANDRABABU** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY,**| ||**FINANCE (WELFARE WING), DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**THE PRINCIPAL SECRETARY,**| ||**FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS (C)**| ||**DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM- 695 001.**| |**3**|**KERALA STATE CONSUMER REDRESSAL COMMISSION,**| ||**THIRUVANANTHAPURAM,**| ||**REPRESENTED BY ITS SECRETARY AND REGISTRAR,**| ||**NCC ROAD, VAZHUTHACAUD,**| ||**THIRUVANANTHAPURAM-695 014.**| **R1-2 BY GOVERNMENT PLEADER SRI. M.R.SABU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-01-2021, ALONG WITH WP(C).12114/2019(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) Nos.6746 & 12114 of 2019 : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 14TH DAY OF JANUARY 2021/24TH POUSHA, 1942** ## **WP(C).No.12114 OF 2019(L)** ## **PETITIONERS:** - **1 ADV. N.O.INASU, AGED 58 YEARS, S/O.N.I.OUSEPH, NADAKAVUKARAN (H), MAIN ROAD P.O., KURIACHIRA, THRISSUR-680006.** - **2 ADV. AJITHAKUMARI C., AGED 51 YEARS W/O.K.RAVI, KRISHNAPADAM, KAUSTHUPAM LANE, PUTHURKARA, AIYANTHUR-680003.** - **3 ADV. P.MURALEEDHARAN, PURANTHODATH HOUSE, NADAKKATHUZHA P.O., BADAGARA (VIA), KOZHIKODE-673104.** - **4 ADV. JOSEPH MATHEW, AGED 58 YEARS, MADAPAM HOUSE, CHENNAD P.O., KOTTAYAM DISTRICT-686581.** - **5 ADV. P.V.PRAKSAN, AGED 53 YEARS, JAYA NIVAS, SOUTH PARAVOOR P.O., THRIPUNITHURA, ERNAKULAM-682307.** - **6 ADV. V.P.ASOKAN, AGED 58 YEARS, S/O.PADMANABHAN, KUMARAKAM P.O., KOTTAYAM-686563.** WP(C) Nos.6746 & 12114 of 2019 : 3 : - **7 SMT. LIJU B.NAIR, AGED 49 YEARS, SREE SHYLAM, A.R.W.A-4, KURIYATHI, MANACAUD (P.O.), THIRUVANANTHAPURAM-695009.** - **8 ADV. NINU KUTTIMOOSA, VELLEPPARAMBIL HOUSE, PANANGAD P.O., ERNAKULAM-682506.** - **9 SHRI. VENUGOPALAN NAIR, CHAITHRAM, ARALAMMOOD (VIA), NEYYATTINKARA, THIRUVANANTHAPURAM-695121.** - **10 ADV. SOBHA VARGHESE, AGED 51 YEARS, CC 1/926 A, KOTTAVALAPPU, KOCHI-682001.** - **11 ADV. M.S.MARIA JAIN, AGED 44 YEARS, W/O.JOLLY JOSEPH, ARAKKAPARAMBIL HOUSE, CMC 32, CHERTHALA, ALAPUZHA-688524.** - **12 ADV. K.LATHA, AGED 57 YEARS, W/O.ADV. K.BABU, SHIVA SURYA, SOUTH GATE, CANAL SIDE, VAIKOM P.O., KOTTAYAM DISTRICT-686141.** **BY ADV. SRI.M.R.NANDAKUMAR** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CIVIL SUPPLIES AND CONSUMER AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 ADDITIONAL CHIEF SECRETARY (FINANCE), FINANCE (WELFARE WING) DEPARTMENT, THIRUVANANTHAPURAM.** WP(C) Nos.6746 & 12114 of 2019 : 4 : > ADDL. **3 KRISHNA PILLAI.C.K AGED 64 YEARS, CHENGAZHASSERIL HOUSE, THOTTABHAGAM.P.O., THIRUVALLA-689541.** > ADDL. **4 S. SWARNALATHA, ADVOCATE, O/O. NEAR TRAFFIC JUNCTION, PALLAM ROAD, KASARGOD, TRINITY TOWERS, KASARGOD, RESIDING AT SHAKTHI MAHAL, BANK ROAD, KASARGODE.** **(ARE IMPLEADED AS PER ORDER DATED 16-10-2020 IN IA 1/2020 IN WP(C) 12114/2019).** **R1-2 BY GOVERNMENT PLEADER SRI. M.R.SABU R3-4 BY ADV. SINDHU SANTHALINGAM R3-4 BY ADV. SRI.A.D.SHAJAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-01-2021, ALONG WITH WP(C).6746/2019(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) Nos.6746 & 12114 of 2019 : 5 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 14[th] day of January, 2021**_ The petitioners in these two writ petitions, who were members of the District Consumer Disputes Redressal Forum, seek to command the respondents to grant monthly retirement benefit to them, taking into account their service as Member of District Consumer Disputes Redressal Forum. 2. The facts are not in dispute. The petitioner in W.P. (C) No.6746 of 2019 served as Member, Consumer Disputes Redressal Forum, Kannur from 22.01.2002 to 11.02.2007. The petitioners in W.P.(C) No.12114 of 2019 served as members of various District Consumer Disputes Redressal Forums for 5 years continuously during various periods between the years 1991 and 2007. 3. The petitioners were appointed under the provisions of the Consumer Protection Act, 1986 which came WP(C) Nos.6746 & 12114 of 2019 : 6 : into force with effect from 24.12.1986. The petitioners were paid only honorarium initially. Pursuant to the representations made from several quarters, the Government issued Ext.P1 (in W.P.(C) No.12114/2019) dated 28.11.2016 granting pension to the retired members of statutory commissions. By Ext.P2 letter (in W.P.(C) No.12114/2019), the Additional Chief Secretary (Finance), Government of Kerala clarified that District Consumer Disputes Redressal Forums can be treated as statutory commissions and the benefit of Ext.P1 G.O. can be extended to them also. 4. Ext.P1 provided that only those members of statutory commissions appointed on or after 01.012006 and were not government employees, can be granted retirement benefits. Ext.P1 was issued in the year 2016. Retrospective effect was given to Ext.P1, taking into its fold persons who were appointed on or after 01.01.2006. The petitioners were appointed prior to 01.01.2006. The petitioners contended that the qualifications and post held by the petitioners before 01.01.2006 and those who discharged duties after WP(C) Nos.6746 & 12114 of 2019 : 7 : 01.01.2006, are one and the same. The functions discharged by the petitioners and those who were appointed after 01.01.2006 were also the same. 5. When the Government has decided to extend the benefit of Ext.P1 retrospectively to past members also, prescription of a cut-off date namely 01.01.2006 is highly arbitrary and without having any nexus with the object sought to be achieved. Ext.P1 to that extent is liable to be quashed and the petitioners are entitled to a declaration that they are also entitled to the benefits provided under Ext.P1. 6. The 2[nd] respondent-Additional Chief Secretary (Finance) filed a statement in W.P.(C) No.12114 of 2019 contesting the claims of the petitioners. The 2[nd] respondent took a stand that Ext.P1 Government Order contemplates introduction of a new Scheme to the members of the statutory commissions, making them eligible for retirement benefits. The Government Order explicitly states that the benefits thereunder will be available only to those persons who are appointed on or after 01.01.2006. WP(C) Nos.6746 & 12114 of 2019 : 8 : 7. The cut-off date was fixed taking into account financial capacity of the Government. Extending the benefit of Ext.P1 G.O. beyond the period provided in the order would create huge financial liability and administrative burden to the State. Members of the District Consumer Disputes Redressal Forums are not the only beneficiaries of Ext.P1. The Scheme has to be applied to a number of other commissions also. 8. The 2[nd] respondent also pointed out that petitioners took up the assignment knowing that it is a non-pensionable assignment. The petitioners cannot aspire for a benefit introduced subsequent to their retirement. The writ petitions are therefore liable to be dismissed. 9. Two members of District Consumer Disputes Redressal Forum, who retired prior to 01.01.2006 got impleaded in W.P.(C) No.12114 of 2019 and supported the case of the petitioners. They contended that financial implication cannot be a sole criterion for fixing a cut-off date and State should act as a model employer. There is no rationale or justification to confine retirement benefits to one WP(C) Nos.6746 & 12114 of 2019 : 9 : category of employees while denying the same to another batch, on the ground of financial implication. 10. Learned counsel for the petitioners relied on the judgment of the Constitution Bench of the Hon'ble Apex Court in _**D. S. Nakara and others v. Union of India** [(1983) 1 SCC 305]_ to contend that if classification of pensioners has no nexus with the object sought to be achieved, then it amounts to differential treatment and discrimination, violative of equal treatment guaranteed under Article 14 of the Constitution of India. Relying on the judgment in _**Union of India v. S. R. Dhingra and others** [(2008) 2 SCC 229],_ the learned counsel contended that introduction of benefit retrospectively or prospectively fixing a cut-off date arbitrarily, dividing a single homogeneous class of pensioners into two groups and subjecting them to differential treatment, is discriminatory. 11. The learned counsel for the petitioners placed reliance on a Division Bench judgment of this Court in _**Mohammad Basheer A. v. State of Kerala and others** [2015 (1) KLT SN 118]_ and also on a judgment of this Court in WP(C) Nos.6746 & 12114 of 2019 : 10 : _**Avirah C.A. and others V. Board of Directors of the Canara Bank and others** [2017 (1) KLT SN 18]_ and argued that the fixation of cut-off date in the matter of extending the benefit of pension to former members of District Consumer Disputes Redressal Forum, is highly illegal and arbitrary, offending Article 14 of the Constitution of India. The counsel for the petitioners further pointed out that in the judgment of the Apex Court in _**All Manipur Pensioners Association by its Secretary v. State of Manipur and others** [AIR 2019 SC 3338]_ , the Apex Court had categorically held that all the pensioners form a single class and therefore a classification for the purpose of grant of pension is unreasonable. 12. The learned Government Pleader, on the other hand, argued that the Hon'ble Apex Court has held in the judgment in _**D. S. Nakara and others**_ (supra) has already held that when the authorities introduce a new Scheme, they are entitled to make it prospective and also to prescribe a cut-off date taking into consideration financial and administrative limitations and requirements. The judgment of WP(C) Nos.6746 & 12114 of 2019 : 11 : the Apex Court in _**All India Reserve Bank Retired Officers Association and others v. Union of India and others** [1992 Supp (1) SCC 664]_ has also upheld the rationale for fixing cut-off date based on relevant considerations. Since Ext.P1 brings into effect a new Scheme, retired members like the petitioners cannot put up a case based on Article 14 of the Constitution of India, contended the learned Government Pleader. 13. I have heard the learned counsel for the petitioners, learned Government Pleader appearing for the State of Kerala and the counsel appearing for additional respondents 3 and 4 in W.P.(C) No.12114 of 2019. 14. The question of sustainability of cut-off date in the matter of extending service benefits including retirement benefits, has been clearly answered by the Hon'ble Apex Court in the judgment in _**D. S. Nakara and others**_ (supra). The Hon'ble Apex Court held that when an existing Scheme is modified introducing more benefits, then in such cases, the new benefits should be made available to all employees WP(C) Nos.6746 & 12114 of 2019 : 12 : enjoying the benefit of the Scheme ordinarily. However, when a new Scheme is introduced, the governmental authorities have a right to consider various aspects including the financial burden on the public exchequer and availability of funds and fix a cut-off date for beneficiaries. 15. The Hon'ble Apex Court considered the issue of cut-off date again in the judgment in _**All India Reserve Bank Retired Officers Association and others**_ (supra). Placing reliance on the Constitution Bench judgment in _**D. S. Nakara and others**_ (supra), the Apex Court held as follows:- “ **10.** _Nakara's_ judgment (AIR 1983 SC 130) has itself drawn a distinction between an existing scheme and a new scheme. Where an existing scheme is revised or liberalised all those who are governed by the said scheme must ordinarily receive the benefit of such revision or liberalisation and if the State desires to deny it to a group thereof, it must justify its action on the touchstone of Article 14 and must show that a certain group is denied the benefit of revision/liberalisation on sound reason and not entirely on the whim and caprice of the State. The underlying principle is that when the State decides to revise and liberalise an existing pension scheme with a view to augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-off line which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduces an entirely new scheme which WP(C) Nos.6746 & 12114 of 2019 : 13 : has no connection with the existing scheme, different considerations enter the decision making process. One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would throw, the employer would have to decide upon the extent of applicability of the scheme. That is why in _Nakara's case_ this Court drew a distinction between continuance of an existing scheme in its liberalised form and introduction of a wholly new scheme; in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing a cut-off date would ordinarily violate the principle of equality in treatment unless there is a strong rationale discernible for so doing and the same can be supported on the ground that it will subserve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact-situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. It must be realised that in the case of an employee governed by the CPF scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in _Nakara's case (AIR 1983 SC 130)_ drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum WP(C) Nos.6746 & 12114 of 2019 : 14 : payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasised by this Court in _Krishena's case (AIR 1990 SC 1782) (supra)._ ” 16. Ext.P1 and P2 Government Orders undoubtedly introduce a new Scheme. In view of the judgments of the Hon'ble Apex Court, the petitioners, who have retired much earlier than the introduction of the new Scheme, cannot insist that they should also be granted the benefit of the new Scheme. It has to be noted that the petitioners accepted the assignment to function as members of District Consumer Disputes Redressal Forum, knowing that their engagement is not pensionable. 17. The judgment in _**S. R. Dhingra and others**_ (supra) cannot help the petitioners because it was a case where there was an existing Scheme for granting running allowance to the running staff of railways and when amendments were made enhancing the percentage of running allowance for the purpose of computation of pension, the railways fixed the WP(C) Nos.6746 & 12114 of 2019 : 15 : cut-off date. The Hon'ble Apex Court held that introduction of such cut-off date is discriminatory. But, it has to be noted that in _**S. R. Dhingra and others**_ (supra), the Hon'ble Apex Court was dealing with an amendment to an existing Scheme wherein the cut-off date was introduced. In the case of the petitioners herein, the claim is for a retrospective operation of a newly introduced Scheme. 18. The judgment in _**Mohammad Basheer A.**_ (supra) of a Division Bench of this Court will not be of any avail to the petitioners, since the said judgment also was considering changes in existing scheme/government orders, for the purpose of counting past service of government employees in public sector undertakings. In the judgment of this Court in _**Avirah C.A. and others**_ (supra), this Court held that there cannot be a cut-off date to divide a homogenous group. In the said case, the Management of Canara Bank introduced a pension scheme for employees who were in service of the bank on or after 01.01.1986. As regards employees who were compulsorily retired, the Scheme provided that only WP(C) Nos.6746 & 12114 of 2019 : 16 : employees compulsorily retired on or after 01.11.1993 would be eligible for pension at a rate not less than 2/3[rd] . The petitioner therein was an employee who was compulsorily retired before 01.11.1993. This Court held that after fixing a cut-off date 01.01.1986 for introduction of the pension scheme, the bank authorities were not justified in dividing the employees who were compulsorily retired before and after 01.11.1993 and it amounts to division of a homogenous group, which has no rational or nexus with the object sought to be achieved. It is in such circumstances that this Court held that the cut-off date of 01.11.1993 is arbitrary and discriminatory. The said judgment would not be of any help to the petitioners. 19. The learned counsel for the petitioners further urged that when Ext.P1 G.O. dated 28.11.2016 has admittedly given retrospective operation granting pension benefits to retired Members also, the Government ought not have created an artificial distinction between Members appointed before 01.01.2006 and Members appointed thereafter for the purpose WP(C) Nos.6746 & 12114 of 2019 : 17 : of grant of pension. 20. But, the Hon'ble Apex Court has held in _**Nakara's case**_ (supra) and also in _**All India Reserve Bank Retired Officers Association and others**_ (supra) that when an employer introduces an entirely new Scheme which has no connection with any existing Scheme, different considerations enter the decision making process and one such consideration may be the financial implications of the Scheme and the extent of capacity of the employer to bear the burden. Therefore, it is evident that when introducing a new Scheme, the Government is at liberty to fix a cut-off date even if the new Scheme is made retrospectively operational. For the aforesaid reasons, this Court finds no merits in the contentions of the petitioners. These writ petitions are accordingly dismissed. Sd/- **N. NAGARESH, JUDGE** aks/11.01.2021 WP(C) Nos.6746 & 12114 of 2019 : 18 : ## **APPENDIX OF WP(C) 6746/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER OF APPOINTMENT NO 9072/C1/2001/F.SC & CA DATED 5.2.2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE DATED 9.2.2017 ISSUED BY THE PRESIDENT OF DISTRICT CONSUMER DISPUTE REDRRESSAL FORUM AT KANNUR.** **EXHIBIT P3 A TRUE COPY OF THE GO(P) NO.175/2016 FIN DATED 28.11.2016 ISSUED BY FINANCE (WELFARE WING) DEPARTMENT, THIRUVANANTHAPURAM** **EXHIBIT P4 A TRUE COPY OF THE FORWARDING LETTER NO. A 397/17 DATED 5.4.2017 SENT BY THE SENIOR SUPERINTENDENT CDRF, KANNUR TO THE SECRETARY CDRC, THIRUVANANTHAPURAM EXHIBIT P5 A TRUE COPY OF THE ORDER NO. F 856/17 DATED 20.4.2018 REJECTING APPLICATION FILED BY THE PETITIONER** WP(C) Nos.6746 & 12114 of 2019 : 19 : ## **APPENDIX OF WP(C) 12114/2019** **PETITIONERS' EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE GO(P) NO.175/ 2016/FIN. DATED 28.11.2016.** **EXHIBIT P2 A TRUE COPY OF THE ORDER NO.WW1/7/2017/FIN DATED 17.03.2017.** **RESPONDENTS' EXHIBITS: EXHIBIT R3(A) A TRUE COPY OF THE ORDER DATED 21/4/21997 ISSUED BY THE SECRETARY TO GOVERNMENT FOOD AND CIVIL SUPPLIES (C) DEPARTMENT TO THE 3RD RESPONDENT WAS APPOINTED AS A MEMBER OF THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. EXHIBIT R3(B) A TRUE COPY OF THE ORDER DATED 21/04/1997 ISSUED BY THE SECRETARY TO GOVERNMENT FOOD AND VICIL SUPPLIES (c) DEPARTMENT TO THE 4TH RESPONDENT WAS APPOINTED AS A MEMBER OF THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA.** SR