IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 OP.No. 20455 of 1999(I) ----------------------- PETITIONER: ------------ 1. M.GANGADHARAN, INTERNAL AUDIT OFFICER (RETD.), PALM DALE, MUDAVANMUKAL, THIRUVANANTHAPURAM. (DIED) *2. JAYASREE S.G., AGED 35 YEARS, D/O.LATE GANGADHARAN, AMBALATHIL VEEDU NO.2, MAMPILLY KUNNAM, YMCA ROAD, CHATHANNOOR.P.O., QUILON. *3. K.SHIVAKUMARI, AGED 60 YEARS,W/O.LATE GANGADHARAN, AMBALATHIL VEEDU NO.2, MAMPILLY KUNNAM, YMCA ROAD, CHATHANNOOR.P.O., QUILON. *4. JAYAPRAKASH S.G., S/O.LATE GANGADHARAN, AMBALATHIL VEEDU NO.2, MAMPILLY KUNNAM, YMCA ROAD, CHATHANNOOR.P.O., QUILON. *5. JAYALEKSHMI S.G., AGED 33 YEARS, D/O.LATE GANGADHARAN, AMBALATHIL VEEDU NO.2, MAMPILLY KUNNAM, YMCA ROAD, CHATHANNOOR.P.O., QUILON. *6. JAYALEKHA S.G. D/O.LATE GANGADHARAN, MANI BHAVAN, MNRA – 1.A, CHENGALLOOR, POOJAPPURA.P.O., THIRUVANANTHAPURAM. (*IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 6 IN THE WRIT PETITION AS LEGAL HEIRS OF THE DECEASED 1ST PETITIONER AS PER ORDER DATED 16/10/2006 IN I.A.NO.9835/2006) BY ADV. SRI.ANIMON A. JOHN SRI.R.PRAVEEN SRI.SEBASTIAN VARGHESE O.P.NO. 20455/1999 RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY COMMISSIONER & SECRETARY TO GOVERNMENT OF KERALA, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A&E), THIRUVANANTHAPURAM. 3. COMMISSIONER FOR RURAL DEVELOPMENT DEPARTMENT, LMS COMPOUND, THIRUVANANTHAPURAM. BY SMT.N.SUDHA DEVI, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO. 20455/1999 ORDER ON CMP NOS.33776/1999 & 10288/2001 IN O.P.NO. 20455/1999 DISMISSED. 12/03/2008 SD/- (T.R.RAMACHANDRAN NAIR, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF G.O.(MS)NO.50/87/RDD DATED 19/12/87. P2 : COPY OF THE LETTER DATED 01/08/92. P3 : COPY OF THE G.O.(P) NO.3000/98/FIN DATED 25/11/98. P4 : COPY OF G.O (P) NO.3214/98/FIN DATED 23/12/98. P5 : COPY OF THE RELEVANT PORTION OF CIRCULAR DATED 29/12/98. P6 : COPY OF LETTER DATED 06/01/99. P7 : COPY OF REPRESENTATION DATED 04/03/99. P8 : COPY OF LETTER ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DATED 22/06/99. // TRUE COPY // PA TO JUDGE. jg T.R.RAMACHANDRAN NAIR, J. ------------------------- O.P. No. 20455 of 1999 --------------------------------- Dated, this the 12th day of March, 2008 J U D G M E N T The petitioners herein are the legal heirs of the deceased original petitioner, who died pending the original petition. He retired from service on 31/01/1998 as an Internal Audit Officer under the 3rd respondent. Before his appointment under the 3rd respondent, he was working as Under Secretary in the Secretariat itself. Persons like the petitioner, who have been appointed in the Commissionarate of Rural Development, were granted special pay @ 10% of the basic pay, as is evident from Ext.P1. Even after the revision of pay and as per the pay revision order in the year 1992, as per Ext.P2 it was clarified that beneficiaries can continue to draw the special pay. The petitioner has referred to Rule 12 (31) of Part I KSR to support the said payment also. 2. It is a case where the petitioner had been drawing the special pay till his retirement. Pensionary benefits were also granted after reckoning the same. Meanwhile an important development occurred in the form of the Government Order bringing out the pay revision of the employees as per G.O (P) No.3000/98/Fin. dated 25/11/1998, which was brought into effect O.P.NO. 20455/1999 -2- as per Ext.P3 dated 25/11/1998. One of the modifications made by the pay revision order was to dispense with the system of payment of special pay and to introduce the concept of special allowances as is evident from paragraph 16 of Ext.P3. It was made clear that special pay drawn by different categories of employees will stand discontinued with effect from the date of the order. Thereafter, by a separate order, namely Ext.P4, the Government clarified that in partial modification of Ext.P3 the date of effect of special allowance indicated in paragraphs 16 & 17 will be with effect from 01/03/1997. It was also clarified that Dearness Allowance, House Rent Allowance etc. based on special pay drawn by the employees in the pre-revised scale will not be adjusted from the arrears from 01/03/1997 to 31/10/1998. Thereafter, Ext.P5 circular was issued by the Accountant General whereby certain instructions have been issued for the guidance of various Head of the Departments. Paragraph 5(a) of Ext.P5 deals with the introduction of special allowance with effect from 01/03/1997 specifying that it should not be reckoned for any other benefits such as Dearness Allowance, House Rent Allowance, Compensatory Allowance, Pension, Gratuity etc. The petitioner's case is that because of the implementation of O.P.NO. 20455/1999 -3- the orders from 01/03/1997, the petitioner has suffered heavy loss in that the pensionary benefits have been reduced accordingly. There would be a drop of Rs.61/- per month in the monthly pension. This is the basis of the grievance raised in the writ petition. Even though, a representation was submitted, that was rejected by Ext.P8. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader. 4. Learned counsel for the petitioner submitted that the benefit drawn by the petitioner has been withdrawn retrospectively and the Government is not competent to effect such retrospective amendment of the conditions of service of employees / pensioners. It is argued that the petitioner was enjoying the benefit as on the date of retirement and when such a benefit is taken away on a retrospective effect on the basis of implementation of an order on a retrospective basis, the authority is acting arbitrarily and in a discriminatory manner. Reliance is based on the dictum laid down in Chairman, Railway Board and Others Vs. C.R.Rangadhamaiah, reported in 1997(6) SCC 623 and in Ex- Major N.C.Singhal Vs. Director General, Armed Forces O.P.NO. 20455/1999 -4- Medical Services, New Delhi & Another, reported in AIR (1972) SC 628. 5. The respondents have filed a detail counter affidavit justifying the action taken for implementing the pay revision orders based on the various recommendations of the Pay Revision Committee. It is pointed out that the Government have dispensed with the system of granting of special pay after satisfying themselves on the recommendations of the Pay Revision Committee 1997. In fact, the Pay Revision Committee as per para 9.22 noted that the practice of granting special pay has to be discontinued. They have stated that the counterparts of most categories in the central structure have no special pays or allowances attached to them. It is also pointed out in the counter affidavit that by adopting a uniform date as 01/03/1997, which is the date of effect of the pay revision, the Government has not discriminated the employees or the pensioners. It is also pointed out that the petitioner retired from service on 31/01/1998 and as on the date of his retirement the special pay drawn by him was reckoned for Dearness Allowances, House Rent Allowances etc. and once the pay revision order became effective, that system was dropped. It is pointed out O.P.NO. 20455/1999 -5- that modification was made as to the date of effect, since it was felt that there were many persons, who have retired between 01/03/1997 and the date of the pay revision order i.e.25/11/1998, the date of Ext.P3. They were also covered by the pay revision orders and the revised formula for granting pension. Therefore, it is not a case where the date 01/03/1997 has been picked up from the hat arbitrarily. 6. Going by the facts of the case, as revealed from the various Government Orders, it is clear that the Government has adopted 01/03/1997 as the date on which the pay revision was made effective. Ext.P3 is the order by which the Government brought into force revised pay scales, after accepting the report of the Pay Revision Committee. It is clear from Clause 2 that the pay scales have been revised so as to come into force with effect from 01/03/1997. The special pay has been dropped as per paragraph 16. Now by Ext.P4 for implementation of paragraph 16 also the Government has chosen 01/03/1997 as the relevant date. This is obviously done since entire scheme had been made effective from 01/03/1997. It is not disputed that the late 1st petitioner was also a beneficiary of the pay revision order. He had been brought into the O.P.NO. 20455/1999 -6- scope of the pay revision order since it had been given a retrospective effect i.e. from 01/03/1997, even though the order by which the pay revision was made effective was only dated 25/11/1998. If the pay revision was not effected on a retrospective basis, the petitioner who retired from service on 31/01/1998 would have gone out of the entire scheme of pay revision and would not have drawn the revised pay. Therefore, it is not a case where the order has visited with any adverse civil consequences to the petitioner, whereas actually he had also been benefitted by the said order since the pensionary benefits have been granted in the revised scale. He had also drawn arrears of pay and other allowances for the period from 01/03/1997 to 31/01/1998. The drop in pension is not with reference to basic pension, as explained in the counter affidavit. Para 12 of the counter affidavit shows the substantial increase he has obtained in the pensionary benefits. It shows that there will be an increase in the pension of the petitioners to the tune of Rs.69 after the loss of Rs.61 per month. Thus he has not suffered any reduction of pension. The only thing is that going by the scheme the special pay has been re-categorised as special allowances and the same will not count for pension. It cannot be O.P.NO. 20455/1999 -7- said that the same is arbitrary and illegal. Therefore, the dictum laid in the two decisions referred to by the petitioner will not have any application here. The writ petition, therefore, fails and the same is dismissed. No costs. (T.R.RAMACHANDRAN NAIR, JUDGE) jg