State of Kerala v. Dr. G. Rajasekharan Nair (OP(KAT) Nos. 188/2018 & 189/2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944** **OP(KAT) NO. 189 OF 2018 AGAINST THE ORDER DATED 7.6.2017 IN OA 2122/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1, 2 & 4 IN O.A.:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, FINANCE, THIRUVANANTHAPURAM, KERALA -695 001. 2 THE SECRETARY HEALTH & FAMILY WELFARE DEPARTMENT, STATUE, THIRUVANANTHAPURAM, KERALA -695 001. 3 THE DISTRICT TREASURY OFFICER STATUE, THIRUVANANTHAPURAM, KERALA- 695 001. 4 ADDL. P4. THE PRINCIPAL ACCOUNTANT GENERAL (A AND E), KERALA, STATUE, THIRUVANANTHAPURAM, KERALA-695001. (AS PER THE ORDER DATED 28/03/2019 IN IA NO.1266/18 IN OP(KAT) 189/2018, THE 2ND RESPONDENT IS DELETED FROM THE RESPONDENTS PARTY ARRAY AND IS IMPLEADED AS (ADDL. P4) OFFICIAL PETITIONER IN THE ORIGINAL PETITION.) BY ADV SMT.M.R.SREELATHA, SPECIAL GOVERNMENT PLEADER ## **RESPONDENTS/APPLICANT & 3RD RESPONDENT IN THE O.A.:** 1 DR. K.JAYANANDAN, AGED 70 YEARS, S/O.C.K.KUNJAN, RETIRED ADDITIONAL DIRECTOR OF HEALTH SERVICE, ASHA MANDIRAM, TC 30/741, PETTAH, PETTAH.P.O., THIRUVANANTHAPURAM, KERALA -695 024. OP(KAT) NO. 188 & 189 of 2018 2 2 THE PRINCIPAL ACCOUNTANT GENERAL (A AND E), KERALA, STATUE, THIRUVANANTHAPURAM, KERALA -695 001. (DELETED) (AS PER THE ORDER DATED 28/03/2019 IN IA NO.1266/18 IN OP(KAT) 189/2018, THE 2ND RESPONDENT IS DELETED FROM THE RESPONDENTS PARTY ARRAY AND IS IMPLEADED AS (ADDL. P4) OFFICIAL PETITIONER IN THE ORIGINAL PETITION.) BY ADVS. SRI.R.S.SARAT THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 21.07.2022, ALONG WITH OP(KAT).188/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT) NO. 188 & 189 of 2018 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944 OP(KAT) NO. 188 OF 2018** **AGAINST THE ORDER NO.2226/2015 DATED 7.6.2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1, 2 & 4 IN THE O.A.:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, FINANCE,STATUE, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, KERALA-695 001. 2 THE SECRETARY HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM, KERALA-695 001. 3 THE DISTRICT TREASURY OFFICER STATUE, THIRUVANANTHAPURAM, KERALA-695 001. ADDL.P4 4 THE PRINCIPAL ACCOUNTANT GENERAL A AND E KERALA, STATUE, THIRUVANANTHAPURAM, KERALA-695001. AS PER THE ORDER DATED 28.03.2019 IN I.A.NO.1261/2018 IN OP(KAT)188/18, THE 2ND RESPONDENT IS DELETED FROM THE RESPONDENTS ARRAY AND IS IMPLEADED AS (ADDL. P4) OFFICIAL PETITIONER IN THE ORIGINAL PETITION. BY ADV SMT.M.R.SREELATHA, SPL.GOVERNMENT PLEADER OP(KAT) NO. 188 & 189 of 2018 4 ## **RESPONDENTS/APPLICANT & 3RD RESPONDENT IN THE O.A.:** 1 DR.G.RAJASEKHARAN NAIR AGED 71 YEARS, S/O. LATE DR.K.GOVINDAN NAIR, RETD. DEPUTY DIRECTOR, KERALA HEALTH SERVICE, LEKSHMY, T.C.22/50,PIPPINMOODU, SASTHAMANGALAM,THIRUVANANTHAPURAM, KERALA-695 010. 2 THE PRINCIPAL ACCOUNTANT GENERAL (A AND E) KERALA, STATUE, THIRUVANANTHAPURAM, KERALA - 695 001 (DELETED) AS PER THE ORDER DATED 28.03.2019 IN I.A.NO.1261/2018 IN OP(KAT)188/18, THE 2ND RESPONDENT IS DELETED FROM THE RESPONDENTS ARRAY AND IS IMPLEADED AS (ADDL. P4) OFFICIAL PETITIONER IN THE ORIGINAL PETITION. BY ADV. SRI.R.S.SARAT THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 21.07.2022, ALONG WITH OP(KAT).189/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT) NO. 188 & 189 of 2018 5 'C.R.' ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The State is the petitioner in both these Original Petitions which impugn the order dated 07.06.2017 of the Kerala Administrative Tribunal in O.A.Nos.2122 and 2226 of 2015. The applicants before the Tribunal, the respondents herein are Medical Officers who retired as Additional Director of Health Services on 31.10.1998 and 31.03.1999 respectively after rendering more than 30 years of service. The grievance projected by the applicants before the Tribunal was essentially that they had not been extended pensionary benefits in tune with the new pay revision benefits extended to those presently in service and hence they were denied the benefits of One Rank One Pension (OROP) that had been assured to them as pensioners. It was their case that while certain allowances had been sanctioned in favour of those in service as on 01.07.2009, and the grant of such allowances had the effect of altering the minimum of the basic pay obtained by persons presently in service in the cadre of Additional Director of Health Services the corresponding benefit of revision of pension was not given to them. They contended therefore that the State had effectively created two classes of pensioners, namely, those who retired before 01.07.2009 and those who had retired thereafter and that the said classification was discriminatory in nature. 2. It would appear that the applicants were being paid their pension OP(KAT) NO. 188 & 189 of 2018 6 regularly and the benefits of periodic revisions were also being extended to them. Consequent to the recommendations of the 9[th] Pay Revision Commission, the Government by an Order dated 26.02.2011 revised the pay and allowances of the Government employees. Based on the said revision, the Government also issued an order dated 28.02.2011 revising the pension and other benefits with effect from 01.07.2009. In adherence to the principles of OROP, the Government in the order dated 28.02.2011 had clearly indicated that the fixation of pension will be subject to the provision that in the case of pensioners having qualifying service of 30 years and above, the consolidated pension so arrived at shall not be lower than 50% of the minimum of the pay in the corresponding revised scale of the post from which the pensioner retired. 3. We find that the pay scale applicable to the post of Additional Director of Health Services as revised by the Government Order dated 26.02.2011 was Rs.46,640/- - Rs.59,840/-. However, since the doctors in service in the Health Services Department were not satisfied with the hike in their pay as provided in the Government Order which, apparently went against their expectations, they approached the Government through the Kerala Government Medical Officers Association, while simultaneously resorting to public agitations. In a bid to to restore normalcy, the Government initiated discussions with the Medical Officers Association as a conciliatory measure. During the deliberations the Government proposed that instead of subsuming the special allowances allowed in the Government Order dated 26.05.2008, an amount equal to 76% special allowance would be subsumed OP(KAT) NO. 188 & 189 of 2018 7 with the basic pay in the respective posts and special allowances would be sanctioned to the posts in the specialty cadre. Further, acting on the suggestions offered by the Kerala Government Medical Officers Association, the Government also agreed that the pay would be fixed in the next stage in the same scale of pay. Thereafter, taking note of the Government Order dated 29.11.2011 it was ordered that all the doctors in the Health Services Department would be allowed pay revision as per the general conditions in 2009 pay revision order and after revising the pay, 76% of the existing common special allowance attached to each cadre would be merged with the revised basic pay as on 01.07.2009, or any subsequent date to which the incumbents came over to the revised pay, and the pay fixed at the next higher stage in the scale of pay. The entry level basic pay of the Additional Director of Health Services was accordingly revised to Rs.50,840/- in the scale of pay of Rs.46,640/- - Rs.59,840/- with special pay of Rs.3,100/- only for those in service as on 01.07.2009. 4. It is clear from the above that although the agitating doctors had approached the Government with a request for revision in the pay scales that were sanctioned in their favour through the pay revision orders, the Government did not accede to the said request. To pacify the striking Medical Officers, however, the Government decided to grant them a special allowance which would be merged with their basic pay in the revised pay scale and which benefit would thereafter enure to the officers in subsequent pay revision orders also. While the said arrangement was acceptable to the striking doctors who withdrew their agitation, it is clear that the arrangement OP(KAT) NO. 188 & 189 of 2018 8 itself was for conferring benefits on a class of doctors who had been agitating for an increase in their pay. 5. The case of the applicants before the Tribunal was essentially that the special allowance that was permitted to be merged along with the basic pay of the doctors then in service, in the revised scale of pay, had the effect of altering the minimum in the scale of pay of Additional Directors of Health Services from Rs.46,640/- to Rs.50,840/-. The contention, in other words, was that while ensuring 50% of the minimum of the revised scale of pay for the post of Additional Director of Health Services from which the applicants retired, the minimum of the scale of pay had to be taken as Rs.50,840/- and not Rs.46,640/-. 6. The Tribunal which considered the matter found force in the contention of the applicants based on the judgment of the Supreme Court in **Col.B.J.Akkara (Retd.) v. Government of India and others** (2006) 11 SCC 709 and on the finding that consequent to the grant of allowances the fresh entrants in the post of Additional Director of Health Services could not be paid an amount less than Rs.50,840/-, which had accordingly to be seen as the minimum pay in the revised pay scale for all practical purposes including payment of pension to the retired employees. The original applications were accordingly allowed and a direction was issued to the petitioners herein to continue to pay the pension to the applicants based on the fixation effected initially based on the Government Order dated 29.11.2011. OP(KAT) NO. 188 & 189 of 2018 9 7. Before us it is the contention of Smt.M.R.Sreelatha, the learned Government Pleader appearing on behalf of the petitioners, that the Tribunal erred in assuming that through the exercise of merging the special allowance with the basic pay of the officers in the Health Services Department of the State who were then in service, there had been a corresponding revision in the pay scale by shifting the minimum in the pay scale from Rs.46,640/- to Rs.50,840/- in the case of Additional Director of Health Services. In particular it is pointed out that since the special allowances were granted as a one time benefit to a class of officers in the Health Services Department, it was not intended to alter the scales of pay applicable to the various posts in the Health Services Department. Accordingly, while the immediate and subsequent benefits consequent to the grant of allowances would enure to the officers then in service, there would be no corresponding benefit to any person who had already retired from service prior to 01.07.2009 since there was no change in the pay scales. 8. We find force in the said contention of the learned Government Pleader. When it is apparent that the allowances in question were extended to striking members of the medical community for the purposes of restoring normalcy and taking note of the peculiar situation faced by them which according to the Government needed to be redressed, the persons who were not in service or facing the same difficulties as those in service, cannot be seen as entitled to similar benefits. It is also significant that while it was optional for the Government to either grant the relief by way of special allowances to the existing officers of the Health Services Department or in the OP(KAT) NO. 188 & 189 of 2018 10 alternative to revise the existing pay scale to a higher level, the Government chose the former and not the latter. In fact even the agitating officers of the Health Services Department had through their associations requested only for such a course of action and did not pursue the larger demand for the grant of a higher pay scale. 9. The decision in **Col. B.J. Akkara (Retd.)** (supra) relied upon by the Tribunal is clearly distinguishable on facts. In that case the court was dealing with a contention that pensioners were entitled to the benefit of enhanced Non-Practising Allowance (NPA) that was extended to Defence Service Medical Officers with effect from 01.01.1996. The pensioners who retired prior to that date argued that for the purposes of reckoning their pension, the minimum pay applicable to the post from which they retired had to be seen as enhanced by the revised NPA granted to serving officers with effect from 01.01.1996. The court accepted the said contention on the finding that NPA had always been treated as a component of 'pay' for Defence Service Medical Officers and hence even those who retired prior to 01.01.1996 would be entitled to the benefit of treating the minimum pay in the revised pay scale as enhanced by the revised NPA. Granting of pay scales is a purely executive function and a delicate one at that since it requires various considerations including financial capacity, responsibility, educational qualifications, mode of appointment etc. to be taken into account and it has a cascading effect. It is therefore that courts ordinarily do not interfere with a fixation of pay scale by the executive. [See OP(KAT) NO. 188 & 189 of 2018 11 ## **S.C.Chandra and others v. State of Jharkhand and others** (2007) 8 SCC 279]. When the State executive, in its wisdom, chose to confer financial benefits to a group of employees through a mechanism that did not involve altering of the existing pay scales, it was not open to the Tribunal in the instant case to alter the pay scale on its own notion of fairness, and extend the benefits of higher pension to a class of persons for whom such benefits were not intended. We therefore set aside the orders of the Tribunal impugned in these O.P.(KAT)'s and allow the O.P.(KAT)'s. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P.** **JUDGE** csl OP(KAT) NO. 188 & 189 of 2018 12 ## **APPENDIX OF OP(KAT) 188/2018** PETITIONERS' EXHIBITS EXHIBIT P1: TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION ALONG WITH ANNEXURES. ANNEUXRE A1 TRUE COPY OF THE PENSION PAYMENT ORDER OF THE APPLICANT PR8/PenA/306/NN/98-99 DATED 1.5.99 ANNEXURE A2 TRUE COPY OF THE RELEVANT PAGES OF THE REVISED PENSION PAYMENT ORDER AS PER GO(P),582/2011/(27)/FIN DATED 29.11.2011 ANNEXURE A3 TRUE COPY OF THE RELEVANT PAGES OF THE PENSION DATED 13.11.2013 ANNEUXRE A4 TRUE COPY OF GO(P) NO.87/2011/FIN DATED 28.2.2011 ANNEUXRE A5 TRUE COPY OF GO(P)NO.582/2011/(27)FIN DATED 29.11.2011 ANNEXURE A6 TRUE COPY OF LETTER NO.40/2011/ K.G.M.O.A.DATED 1.7.2011 ANNEXURE A7 TRUE COPY OF REPRESENTATION DATED 8.7.2011 ANNEXURE A8 TRUE COPY OF GO(P) NO.172/2008/H&FWD DATED 26.5.2008 ANNEXURE A9 TRUE COPY OF THE MINUTES OF TEH MEETING WITH THE HEALTH MINSTER HELD ON 21.5.2008 ANNEXURE A10 TRUE COPY OF GO(P) NO.551/2012/FIN DATED 9.10.2012 ANNEXURE A11 TRUE COPY OF COMMUNICATION OF THE 3RD RESPONDENT NO.PM/2/9-7/12-13/77 DATED 17.10.2012 ANNEXURE A12 TRUE COPY OF ORDER IN O.A.NO.2902/13 DATED 9.7.2015 OP(KAT) NO. 188 & 189 of 2018 13 - ANNEXURE A13 TRUE COPY OF THE IMPUGNED ORDER NO.GO(RT)NO.9567/2015/FIN DATED 3.11.2015 - ANNEXURE A14 TRUE COPY OF PRC REPORT ANNEXURE A15 TRUE COPY OF GO(P) NO.324/2012/FIN DATED 4.6.2012 - ANNEXURE A16 TRUE COPY OF THE ORDER IN O.A.NO.2122/2015 OF THE TRIBUNAL DATED 1.12.2015 - EXHIBIT P2: TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE IST RESPONDENT. - EXHIBIT P2(a): TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT WITH ANNEXURES. - ANNEXURE R4(a) TRUE COPY OF G.O.(P) NO.87/2011/FIN DATED 28.2.2011 ANNEXURE R4(b) TRUE COPY OF THE GO(P) NO.582/2011(27) FIN DATED 29.11.2011 EXHIBIT P3: TRUE COPY OF THE ORDER DATED 7.6.2017 IN O.A (EKM)NO.2226/2015. OP(KAT) NO. 188 & 189 of 2018 14 ## **APPENDIX OF OP(KAT) 189/2018** PETITIONERS' EXHIBITS - EXHIBIT P1TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION ALONG WITH ANNEXURES. - ANNEXURE A1 RELEVANT PAGES OF THE PENSION PAYMENT ORDER PR8/penA/387/Y/98-99 DATED 29.1.1999 - ANNEXURE A2 RELEVANT PAGES OF THE PENSION BOOK EFFECTING RECOVERY - ANNEXURE A3 RELEVANT PAGES OF THE PENSION PAYMENT ORDER GRANTING BENEFIT OF G.O. (P)NO.582/2011/(27)FIN. DATED 29.11.2011 - ANNEXURE A4 TRUE COPY OF G.O.(P) NO.87/2011/FIN. DATED 28.2.2011 ANNEXURE A5 TRUE COPY OF GO(P) NO.582/2011/(27)/FIN DATED 29.11.2011 ANNEXURE A6 TRUE COPY OF LETTER NO.40/2011/KGMOA DATED 1.7.2011 ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED 8.7.2011 ANNEXURE A8 TRUE COPY OF GO(P) NO.172/2008/H&FWD DATED 26.5.2008 ANNEXURE A9 TRUE COPY OF THE MINUTES OF THE MEETING WITH THE HEALTH MINISTER HELD ON 21.5.2008 ANNEXURE A10 TRUE COPY OF GO(P) NO.551/2012/FIN DATED 9.10.2012 ANNEXURE A11 TRUE COPY OF THE COMMUNICATION OF THE 4TH RESPONDENT NO.PM/2/9-7/12-13/77 DATED OP(KAT) NO. 188 & 189 of 2018 15 17.10.2012 ANNEXURE A12 TRUE COPY OF THE ORDER IN O.A.NO.2902/13 DATED 9.7.2015 ANNEXURE A13 TRUE COPY OF THE IMPUGNED ORDER NO.G.O. (RT) NO.9567/2015/FIN. DATED 3.11.2015 ANNEXURE A14 TRUE COPY OF PRC REPORT ANNEXURE A15 TRUE COPY OF GO(P) NO.324/2012/FIN DATED 4.6.2012 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT EXHIBIT P3TRUE COPY OF THE ORDER DATED 07/06/2017 IN O.A.(EKM)NO.NO.2122/2015. RESPONDENT'S DOCUMENTS : NIL