Subha B. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942** ## **OP(KAT).No.2 OF 2021** **AGAINST THE ORDER DATED 27.02.2020 IN OA (EKM) 1807/2017 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM (ADDITIONAL** ## **BENCH, ERNAKULAM)** ## **PETITIONER:** **SUBHA.B AGED 63 YEARS,W/O.P.RAVIKUMAR, ASSISTANT EXECUTIVE ENGINEER (RETD.), PERMANENTLY RESIDING AT KALLINGAL HOUSE, VRA - 182, NEAR TALUK OFFICE, KOLLAM, PIN 575 018, MOB.99009 28342** **BY ADV. SRI.P.T.DINESH** ## **RESPONDENTS:** - **1 STATE OF KERALA REP.BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, DEPARTMENT OF WATER RESOURCES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **3 THE CHIEF ENGINEER (I AND A) OFFICE OF THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM PIN 695 033** - **4 THE ACCOUNTANT GENERAL ( A AND E) M.G.ROAD, THIRUVANANTHAPURAM, PIN 695 039** ## **SRI.B.VINOD, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT)No.2/2021 -2- **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.2 of 2021** **-------------------------------------------------th Dated this the 11 day of January, 2021** ## **JUDGMENT** ## **T.R.RAVI, J.** The original petition has been filed challenging the order dated 27.02.2020 in O.A.(Ekm)No.1807/2017 of the Kerala Administrative Tribunal (hereinafter referred to as 'the Tribunal'). 2. The petitioner entered the service of the 1[st] respondent in the Irrigation Department on 17.10.1979, on advice by the Kerala Public Service Commission. Her probation was declared as satisfactorily completed, on 14.02.1982. As per G.O.(Rt.) No.931/82/PW&E dated 18.06.1982, the 1[st] respondent sanctioned leave without allowance to the petitioner for five years from 21.05.1982 to 19.05.1987, to take up employment abroad. After completion of the period of leave, the petitioner rejoined duty on 20.05.1987. Subsequently, as per G.O.(Rt.)No.1433/89/PW&T dated 05.08.1989, the petitioner was sanctioned leave without allowance for five years from 19.05.1988 to 18.05.1993, to join her husband abroad and for taking up employment abroad. Thereafter, by G.O.(Rt.)No.32/94/Irrn. dated 11.01.1994, the 1[st] respondent again sanctioned leave without allowance for OP(KAT)No.2/2021 -3- five years in continuation of the leave already granted, i.e., from 19.05.1993 to 18.05.1998, which was again followed by sanction for leave without allowance for the period from 20.05.1998 to 19.05.2003. The petitioner rejoined duty on 01.10.2002, after obtaining permission to cancel the unavailed portion of leave. Thereafter, as per G.O.(Rt.)No.318/06/WRD dated 06.03.2006, the petitioner was sanctioned leave without allowance for a further period of 7 months and 21 days for joining her family abroad. It would appear that the petitioner had sought for a posting after the period of leave, on 26.10.2006, but she was issued a posting order only on 16.12.2006, by which time, she submits that she had returned abroad. Even though show cause notice was issued to her, since she had not accepted the posting orders, the petitioner submits that as per G.O.(Rt.)No.425/2015/WRD dated 01.06.2015, the 1[st] respondent decided to drop the disciplinary action initiated against her. 3. Coming to the real issue involved in the writ petition, through letter No.A2/15149/2012, dated 14.10.2014, the 3[rd] respondent had informed the petitioner that she is not eligible for statutory pension, since she had only 7 years of qualifying service. The petitioner claims that she has a total service of 7 years, 9 months, and 26 days in the Department and that she would be entitled to receive ex-gratia pension as envisaged in G.O.(P)No.1851/99/Fin. dated 18.09.1999, which has been produced as Annexure A10 in the original application. As per clause 1 of Annexure A10, the ex-gratia pension scheme is available to persons who retire from service on superannuation without the minimum qualifying service. However, the scheme specifically provides that OP(KAT)No.2/2021 -4- those persons who fail to attain the minimum qualifying service and lose their pension, on account of availing leave without allowance under Appendix XII A and XII C of Kerala Service Rules, will not be eligible for ex-gratia pension. According to the petitioner, by the mere fact that she had availed leave without allowance, which was duly sanctioned by the 1[st] respondent, she has been denied the benefit of both the statutory pension as well as the ex-gratia pension. The petitioner had approached the respondents seeking the benefit of ex-gratia pension, but the same was rejected. It is in these circumstances that the petitioner has filed O.A.(Ekm)No.1807 of 2017 before the Tribunal praying for a declaration that the service rendered by her is liable to be reckoned as qualifying service for ex-gratia pension, to declare that persons who lost their eligibility on account of availing leave without allowance will also be eligible for ex-gratia pension and other consequential reliefs. 4. The Tribunal has, by a detailed order dated 27.02.2020, dismissed the original application. This original petition is filed by the petitioner (applicant before the Tribunal) being aggrieved by the above-said order. 5. Heard Sri P.T.Dinesh on behalf of the petitioner and Sri B.Vinod, learned Senior Government Pleader on behalf of the respondents. 6. The counsel for the petitioner reiterated the contentions which were taken before the Tribunal and submitted that the petitioner is being vexed twice for the same reason of availing leave without allowance, i.e., by denial of statutory pension and by denial of ex-gratia pension. The learned OP(KAT)No.2/2021 -5- Senior Government Pleader on the other hand submits that ex-gratia pension is paid under a scheme which had been introduced to give some benefits to persons who fail to complete the required qualifying service to draw a minimum pension. He submits that the intention behind the scheme was only to grant some benefits to persons who lose their eligibility for want of the required qualifying service, not for reasons attributable to them. It is submitted that the very reason for excluding persons who fail to put in the qualifying service solely for the reason of availing leave without allowance, is that such persons had failed to render the qualifying service on their own volition. He further submits that the dictum laid down in the decision of the Full Bench of this Court in **State of Kerala and others v. V.J.Philomina** reported in [2008 (1) KLT 666], which says that when a scheme granting financial benefits specifically excluded some persons from its purview, there cannot be a different interpretation to include such persons also, will apply in the case of the petitioner. The Tribunal has in its order relied on its order in O.A.No.2503 of 2018 dated 02.12.2019, wherein it had considered the claim of ex-gratia pension by persons similarly situated to the petitioner and rejected the claim relying on the above said Full Bench decision. The order referred to by the Tribunal has been produced as Ext.P2 in this original petition. We are in complete agreement with the reasoning adopted in the order dated 27.02.2020 of the Tribunal. As held by the Full Bench, the Exgratia pension is a benefit granted on the basis of a specific scheme and any relief under the scheme can be granted only within the four corners of the OP(KAT)No.2/2021 -6- scheme. This court in exercise of its extraordinary jurisdiction under Article 226 and 227 cannot expand the scope of the scheme or re-write the scheme. 7. In the above circumstances, we find that no legal grounds have been made out warranting interference with the order dated 27.02.2020 in O.A.(Ekm)No.1807/2017 of the Tribunal and the original petition is liable to be dismissed. The original petition hence stands dismissed. In the circumstances of the case, there will be no order as to costs. **==> picture [26 x 13] intentionally omitted <==** ## **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.2/2021 -7- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 27.2.2020 IN O.A. (EKM) N0.1807/2017 BY THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM, (ADDITIONAL BENCH, ERNAKULAM)** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 2.12.2019 IN OA NO.2503/2018 BY THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** - **EXHIBIT P3 TRUE COPY OF THE ORIGINAL APPLICATION (O.A). (EKM.NO.1807/2017) FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM (ADDITIONAL BENCH, ERNAKULAM)** - **ANNEXURE A1 IN TRUE COPY OF THE G.O.(RT) NO.931/82/PW&E DATED EXT.P3 18.6.1982 BY THE GOVERNMENT OF KERALA, PUBLIC WORKS AND ELECTRICITY (A) DEPARTMENT** - **ANNEXURE A2 IN TRUE COPY OF THE G.O.(RT) NO.1433/89/PW&T EXT.P3 DATED 5.8.1989 BY THE GOVERNMENT OF KERALA, PUBLIC WORKS AND TRANSPORT (A) DEPARTMENT** - **ANNEXURE A3 IN TRUE COPY OF OF THE G.O.(RT) NO.1636/98/IRRN. EXT.P3 DATED 10.12.1998 BY THE GOVERNMENT OF KERALA, IRRIGATION (A) DEPARTMENT** - **ANNEXURE A5 IN TRUE COPY OF THE G.O.(RT) NO.823/02/WRD DATED EXT. P3 23.9.2002, THE GOVERNMENT OF KERALA, WATER RESOURCES (A) DEPARTMENT** - **ANNEXURE A6 IN TRUE COPY OF THE G.O.(RT) NO.318/06/WRD DATED EXT.P3 6.3.2006, THE GOVERNMENT OF KERALA, WATER RESOURCES (A) DEPARTMENT.** - **ANNEXURE A7 IN TRUE COPY OF THE SHOW CAUSE NOTICE EXT.P3 NO.13990/G2/07/WRD DATED 1.3.2012 BY THE PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT** - **ANNEXURE A8 IN TRUE COPY OF THE REPLY DATED 14.5.2012 EXT.P3 SUBMITTED BY THE APPLICANT** OP(KAT)No.2/2021 -8- |**ANNEXURE A9 IN**|**TRUE COPY OF THE G.O.(RT) NO.425/2015/WRD**| |---|---| |**EXT.P3**|**DATED 1.6.2015 BY THE GOVERNMENT OF KERALA,**| ||**WATER RESOURCES (GROUND WATER) DEPARTMENT**| |**ANNEXURE A10 IN**|**TRUE COPY OF THE G.O.(P) 1851/99/FIN. DATED**| |**EXT.P3**|**18.9.1999 BY THE GOVERNMENT OF KERALA, FINANCE**| ||**(PAY REVISION IMPLEMENTATION) DEPARTMENT**| |**ANNEXURE A11 IN**|**TRUE COPY OF THE G.O.(P) 87/2011/FIN. DATED**| |**EXT.P3**|**28.2.2011 BY THE FINANCE (PENSION-B)**| ||**DEPARTMENT, GOVERNMENT OF KERALA**| |**ANNEXURE A12 IN**|**TRUE COPY OF THE REPRESENTATION DATED 5.1.2017**| |**EXT.P3**|**SUBMITTED BY THE APPLICANT TO THE PRINCIPAL**| ||**SECRETARY TO GOVERNMENT ON 5.1.2017**| |**ANNEXURE A13 IN**|**TRUE COPY OF THE ORDER NO.102/A1/21017/**| |**EXT.P3**|**JA.VI.VA DATED 2.6.2017 BY THE UNDER SECRETARY**| ||**OF WATER RESOURCES (A) DEPARTMENT FOR THE**| ||**ADDITIONAL CHIEF SECRETARY TO GOVERNMENT**| |**ANNEXURE A14 IN**|**TRUE COPY OF THE G.O.(P) NO.190/16/FIN. DATED**| |**EXT.P3**|**26.12.2016 BY THE ADDITIONAL CHIEF SECRETARY,**| ||**THE FINANCE (B) DEPARTMENT, GOVERNMENT OF**| ||**KEARLA**| |**EXHIBIT P4**|**TRUE COPY OF THE REPLY STATEMENT DATED**| ||**26.11.2019 FILED ON BEHALF OF THE 1ST**| ||**RESPONDENT BEFORE THE KERALA ADMINISTRATIVE**| ||**TRIBUNAL AT THIRUVANANTHAPURAM (ADDITIONAL**| ||**BENCH, ERNAKULAM)**| |**EXHIBIT P5**|**TRUE COPY OF THE REJOINDER DATED 16.2.2020**| ||**FILED BEFORE THE KERALA ADMINISTRATIVE**| ||**TRIBUNAL, THIRUVANANTHAPURAM (ERNAKULAM BENCH)**|