U. Rajappan v. State of Kerala and KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 6TH DAY OF AUGUST 2018 / 15TH SRAVANA, 1940** ## **WP(C).No. 12252 of 2015** ## **PETITIONER(S):** **U.RAJAPPAN** **S/O. AYYAPPANKUTTY, PADIYATTU PADMAVILAS, NANTHIATTUKUNNA, NORTH PARAVOOR P O, ERNAKULAM DISTRICT-683513.** **BY ADVS. SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA SMT.ANNIE JACOB** ## **RESPONDENT(S):** **1. STATE OF KERALA,** - **REP. BY THE SECRETARY TO GOVT, TRANSPORT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695011.** **2. KERALA STATE ROAD TRANSPORT CORPORATION,** - **REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P O, THIRUVANANTHAPURAM - 695 023.** **R1 BY GOVERNMENT PLEADER SMT. MARY BEENA JOSEPH R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SC SRI.T.P SAJAN, SC KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RVS.** **WP(C).No. 12252 of 2015 (F)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF G.O.MS.75/PW DATED 22.3.1965 ISSUED BY THE GOVERNMENT. EXHIBIT P2: TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 16.2.2010. EXHIBIT P3: A TRUE COPY OF THE ORDER OF THE LOK AYUKTHA DATED 31.10.2012. EXHIBIT P4: A TRUE COPY OF THE JUDGMENT DATED 18.11.2013 IN W.P(C) NO.28046/2010. EXHIBIT P5: TRUE COPY OF THE ORDER DATED 28.2.2015 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 20.3.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7: TRUE COPY OF THE ABOVE LETTER DATED 22.2.2013.** ## **RESPONDENT(S)' EXHIBITS:** **NIL.** **/TRUE COPY/** **P.S. TO JUDGE** **RVS. 10/08/2018** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.12252 of 2015-F ------------------------------------------- _Dated this the 6[th] day of August, 2018_ ## _**JUDGMENT**_ The petitioner is an Erstwhile employee of the Transport Department under Government. The Kerala State Road Transport Corporation (`KSRTC' for short) was formed while he was working in the Transport Department. He was absorbed in the KSRTC in terms of the Rules issued at the relevant time of the formation of KSRTC. He retired from service on 30.6.1987. The petitioner was getting pension on the basis of the pay revision orders/pension revision orders and he received the same on the basis of the orders of revision issued on 2.3.2009. The petitioner’s case is that even when order dated 2.3.2009 issued, some of the benefits which were granted to the State Government employees were denied to the petitioner and others who were absorbed from the Department. The petitioner claims that the Government had issued Ext.P1 order dated 22.3.1965, according to which, the Corporation is bound to extend all the benefits which are admissible to the employees under the Government to persons who were absorbed in the KSRTC. Therefore, it is the claim of the petitioner that all the benefits extended to the Government pensioners are liable to be granted to him. It is pointed out that when the benefits were 2 W.P(C) No.12252 of 2015-F revised based on pay revision order dated 17.3.2006 and implemented in the KSRTC as per order dated 2.3.2009, the 2[nd] respondent had granted only 3% fitment benefits as against the 6% fitment benefits given to the Government employees. When the pay revision/pension revision was implemented in the State Government w.e.f 1.4.2005, it was implemented in KSRTC only w.e.f 1.4.2009. Medical allowance was sanctioned to Government employees w.e.f 1.3.2006; whereas it was extended to the KSRTC only from 1.4.2009. Persons like the petitioner are denied the benefit of one rank one pension. Similarly situated persons had approached this Court in W.P©.No.33646/2009 challenging the denial of benefits on par with the Government employees. Even after direction from this Court to consider their cases, there was no positive action and when their claim was rejected as per Ext.P2 order on 16.2.2010, the petitioner filed W.P©.No.28046 of 2010 which was disposed of as per Ext.P4 judgment in which this Court, taking note of the observations contained in Ext.P6 order passed by the Lok Ayukta, disposed of the writ petition reserving liberty to the petitioners to pursue their remedy in case any adverse decision was taken on the recommendations made in Ext.P3 by the Lok Ayukta. 2. Thereafter, Ext.P5 order was issued by the Government on 28.2.2015 in which the petitioner and others were informed that the KSRTC 3 W.P(C) No.12252 of 2015-F is running through acute financial crisis and therefore the additional pension liabilities of pensioners who were absorbed from the Erstwhile Transport Department would adversely affect the already ailing Corporation and therefore their request cannot be considered. The KSRTC had as per Ext.P6 letter informed the petitioner that as and when Government takes a decision in the case of the Departmental pensioners for implementation of the orders of Lok Ayukta and this Court, the petitioners and others would be granted the benefits. It was stated that as per Ext.P7 letter the KSRTC had requested the Government to take up the responsibility for payment of pension or to give them grant in order to sanction all pensionery benefits to the departmental pensioners of the KSRTC on par with the State Government pensioners. 3. The learned counsel for the petitioner submits that when Ext.P1 specifically provides that the employees absorbed from the Erstwhile Transport Department would be granted all the benefits as admissible to the Government employees, the respondents are bound to disburse the benefits due to them as in the case of the Government employees and they cannot be denied the same on the basis of Ext.P6 and P7 letters. 4. The learned Standing Counsel for the KSRTC points out that the claim raised by similarly situated persons was considered by the Apex 4 W.P(C) No.12252 of 2015-F Court in the judgment in _**K.S.R.T.C v. Varghese**_ [2007(3) KLT 292 (SC)] in which the Apex Court considered the impact of Section 34 of the Road Transport Corporations Act, 1950 and the Government had taken a policy decision and communicated the same to the KSRTC to defer the implementation of the recommendations of pay commission, which would be understood only as a direction in terms of Section 34 of the Act. It was also stated that the communication cannot be understood only as a mere letter because the power to issue such a direction is traceable to Section 34 of the Act. The Apex Court considered the financial condition of the KSRTC. In that case the question was regarding implementation of the 5[th] Pay Commission, which was postponed for better times. The Apex Court found that only actual payment was postponed. The financial position of a Corporation like KSRTC was noted by the Apex Court and it was found that when the Corporation takes a decision as to whether it should implement a recommendation for enhanced emoluments or pension and when there is a decision taken by the Government not to implement the revision of pension, there is no extraneous consideration. The judgment of this Court directing implementation of pay revision with effect from the date on which it was implemented under the State Government was thereupon reversed. 5. In the Government letter Ext.P5 it is stated that in view of the 5 W.P(C) No.12252 of 2015-F financial condition, pensionary benefits cannot be sanctioned to departmental pensioners of KSRTC on par with the State Government pensioners considering the precarious financial condition. In Ext.P6 the KSRTC has stated that as and when the Government takes over the liability the benefits due to the petitioners would be granted on par with the Government employees. 6. The learned Standing Counsel for the KSRTC submits that the position has become worse. Therefore, the KSRTC is not in a position to grant the benefits claimed by the petitioner, as it is finding it difficult to meet its expenditure. They have stated that as and when the Government takes up the responsibility of the KSRTC to disburse the pension and pensionary benefits, the petitioner would be paid the benefits. It is seen that there is no deliberate inaction in implementing Ext.P1. 7. The learned Government Pleader submits that the KSRTC is making payment of pension only because of the grant extended by the Government. 8. It is seen that the Lok Ayukta passed Ext.P3 order taking note of the judgment of the Apex Court. From the pleadings it is also seen that the financial condition of the KSRTC has not yet improved. 9. However, in case the Government has not passed orders on W.P(C) No.12252 of 2015-F 6 Ext.P7 letter of the 2[nd] respondent so far, it shall pass orders on the same as expeditiously as possible, in the light of the recommendation in Ext.P3 order of Lok Ayukta. The writ petition is accordingly closed, but with the above direction. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_