WP(C).No. 6284 of 2010 (I)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 2ND DAY OF FEBRUARY 2017/13TH MAGHA, 1938** ## **WP(C).No. 6284 of 2010 (I)** **---------------------------------------** **PETITIONER(S) : -------------------------** - **1. PROF.(DR.)S.BALARAMAN, SWARAM, MUNDAKKAL MIDDLE, KOLLAM DISTRICT, PIN-690 001. (DIED)** ## *** ADDITIONAL P2 IMPLEADED** **2. T.SARASWATHY, AGED 70 YEARS, W/O.PROF (DR.) S.BALARAMAN (DIED), SWARAM, MUNDAKKAL MIDDLE, KOLLAM DISTRICT, PIN - 690 001.** *** ADDITIONAL P2 IS IMPLEADED AS PER ORDER DATED 23.07.2013 IN I.A.NO. 9745 OF 2013.** **BY ADVS. SRI.M.V.THAMBAN** **SRI.B.BIPIN SRI.R.REJI SRI.V.K.SATHYANATHAN** **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SECRETARY TO GOVERNMENT, LAW (H) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **BY SR. GOVERNMENT PLEADER SMT. MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 6284 of 2010 (I)** **---------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE G.O(P)NO. 524/98/LAW DATED 11.12.1998. EXHIBIT P2: TRUE COPY OF THE G.O(P)NO. 321/2003/LAW DATED 16.10.2003. EXHIBIT P3: TRUE COPY OF THE REPRESENTATION DATED 15.01.2006.** **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **ANU SIVARAMAN, J.** ----------------------------------- ## W.P.(C) No.6284 of 2010 ------------------------------------ Dated this the 2[nd] day of February, 2017 ## **J U D G M E N T** The prayers in this writ petition are as follows: - i) To issue a declaration that petitioner is entitled to special additional pension under clause 2(b) Part III of High Court Judges (Condition of Service) Act from 16.12.2003 onwards in view of Rule 11 of the Kerala State Human Rights Commission Rules. - ii) To issue a declaration that the delay in disbursing the pensionary benefits to the petitioner is culpable and hence he is entitled to penal interest for the delayed payment of his pensionary benefits at the rate of 12% per annum. - iii) To issue a writ of mandamus or other writ or order directing the respondents to disburse special additional pension to the petitioner with arrears from 16.12.2003 with 12% interest. 2. Heard the learned counsel for the petitioner and the learned Senior Government Pleader appearing for respondents. **W.P.(C) No.6284/2010** **2** 3. It is submitted that the petitioner, who had retired from service while working in the University on 30.11.1994, had been appointed as member of the State Human Rights Commission by Ext.P1 order dated 11.12.1998. He had served as Acting Chairperson of the Commission from 17.10.2003 and vacated the office on 15.12.2003 on completing his term of service. 4. On the strength of Kerala State Human Rights Commission Rules, 1998, the petitioner claims that he is entitled to pension in terms of High Court Judges (Conditions of Service) Act. The petitioner relies on Rules 9 & 11 of the Rules to contend that he would be entitled to pension in terms of High Court Judges (Conditions of Service) Act, in addition to the pension he draws from the Calicut University. 5. Learned counsel for the petitioner relies on the decisions of this Court in _**N.D.P. Namboodiripad** vs._ _**Union of India and others**_ (1992 KHC 562) and in _**Rajamony** vs._ _**State of Kerala**_ (1998 KHC 377) and of the Apex Court in _**Union of India** vs._ _**S.N.Saxena**_ (2003 KHC 578) and also in _**State of West Bengal and others** vs._ _**Ratan Behari Dey and Others**_ ((1993) 4 Supreme Court Cases 62). Learned counsel for the petitioner **W.P.(C) No.6284/2010** **3** also relies on Rule 11 of the Kerala State Human Rights Commission Rules, 1998 which reads as follows: “ **11. Residuary Provision.-** The conditions of service of the Chairperson and the Members for which no express provision is made in these rules shall be determined by the rules and orders for the time being applicable to a Chief Justice or a Judge of a High Court, as the case may be”. 6. The petitioner submits that Section 15 of the High Court Judges (Conditions of Service) Act, 1954 provides for payment of pension at the rates provided therein. It is further submitted that Rule 9 of Kerala State Human Rights Commission Rules also provides that conditions of service of High Court Judges will be applicable to Chairperson and Members of the Commission as well. 7. Learned Senior Government Pleader would, on the other hand, submit that Rule 9 of the Rules specifically provides that facilities applicable to a Judge of High Court under Chapter IV of High Court Judges (Conditions of Service) Act and Rules shall be applicable to Chairperson and the Members. It is further submitted that Rule 11 states that the conditions of service of the Chairperson and the Members for which no express provision is **W.P.(C) No.6284/2010** **4** made in the rules shall be determined by the rules and orders for the time being applicable to a Chief Justice or a Judge of a High Court. It is therefore submitted that pension due to High Court Judge being a matter governed by Chapter III of the Act is specifically excluded from the purview of Rule 9 of 1998 Rules. Further it is contended that the Human Rights Commission Act under which the petitioner is appointed does not provide for any pension payable to the Chairperson or Members of the Commission. Such person would therefore be entitled only to pension, if any, on the strength of the service rendered by them in their previous capacities before appointment as Members or Chairperson of the Commission. 8. Section 22 of the Protection of Human Rights Act, 1993 provides for appointment of Chairperson and Members of the State Commission. Section 26 of the Act, which was substituted on 23.11.2006, provides that the salaries and allowances payable to, and other terms and conditions of service of, the Chairperson and Members shall be on such terms as may be prescribed by the State Government. Section 41 of the Act provides for the power of the State Government to make rules. The said section provides that the State Government may, by notification, make **W.P.(C) No.6284/2010** **5** rules to carry out the provisions of the Act. In particular, power is granted to frame Rules relating to salaries and allowances and other terms and conditions of service of the Chairperson and Members under Section 26. 1998 Rules are framed by the State Government under this provision. While it is clear that the State Government has been given the power to make Rules regarding the salaries, allowances and other terms and conditions of service of Chairperson and Members, there is no provision contained in either Section 22 or Section 26 of the Act which provides for payment of any pensionary benefits to Chairperson or Members of the Commission. 9. In the above view of the matter, I am of the opinion that the Rules could provide only for those conditions of service which would be contemplated under the provisions of the Act and for no other purpose. The residuary provision contained in Rule 11 of the Kerala State Human Rights Commission Rules 1998 would only mean those conditions of service which would be contemplated under the provisions of the Act. 10. The decisions relied on by the learned counsel for the petitioner are in respect of the persons who are either directly covered by the conditions of the High Court Judges (Conditions of **W.P.(C) No.6284/2010** **6** Service) Act and Rules or in respect of persons who were entitled, in terms of the provisions of the Act, under which they are appointed, and on the basis of their appointment orders to be paid pension in accordance with the provisions applicable to High Court Judges. 11. In this case, the Act under which the petitioner was appointed being the Protection of Human Rights Act which does not provide for payment of pension to any Member or Chairperson under it, I am of the opinion that the applicability of the provisions of the service conditions of High Court Judges for payment of pension to Member of the Human Rights Commission would not arise. In the above view of the matter, this writ petition fails. The same is accordingly dismissed. Sd/- **ANU SIVARAMAN JUDGE** smp