IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 26661 of 2009(C) --------------------------------------- PETITIONERS: --------------------- 1. M.T.VARGHESE, ASSISTANT ENGINEER(RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT MOOLAMKUZHIYIL HOUSE, THIRUVAMKULAM-682 305, ERNAKULAM DIST. 2. JOHN T.P, SENIOR SUPERINTENDENT(RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT THONDICKAMATTOM HOUSE, PERUMBAVOOR P.O, PIN -683 542, ERNAKULAM DISTRICT. 3. THOMAS JOSHUA, ASSISTANT EXECUTIVE ENGINEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT KOTTACKAKATHU HOUSE, KARTHIKAPPALLY P.O, ALAPPUZHA DISTRICT. 4. K.CHANDRANANDAN, ASSISTANT ENGINEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT SAKTHI, CHAPPANA SOUTH, KARUNGAPPALLY, KOLLAM DISTRICT. 5. N.SIDHARDHAN, EXECUTIVE ENGINEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT VARAMPATHU VEEDU, MUTHUKULAM NORTH, CHOOLATHERUVU P.O, ALAPPUZHA DISTRICT. 6. K.G.KURIAKOSE, DEPUTY CHIEF ENGINEER (RETD), KERALA STATE ELECTRICITY BOARD, RESIDING AT KALAMPATTUSERIL, 201/16-SYRIAN CHURCH ROAD, ALUVA, 7. N.SUKUMARAN, ASSISTANT EXECUTIVE ENGINEER(RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT THUSHARA, PRASANTH NAGAR, NETHAJI ROAD, ALUVA. W.P.(C). NO.26661/2009-C: 8. A.VENKITA SUBRAMANIAN, ASSISTANT EXECUTIVE ENGINEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT XIV/148 "SREENIKETHANAM" PRASANTH NAGAR, NETHAJI ROAD, ALUVA,. 9. K.REVINDRA NATHAN UNNITHAN, EXECUTIVE ENGINEER(RTD) KERALA STATE ELECTRICITY BOARD, RESIDING AT `JYOTHIS' MUTHUKULAM SOUTH P.O,ALAPPUZHA DISTRICT. 10. T.V.SUDHAKARAN, ASSISTANT EXECUTIVE ENGINEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT THONDAPPILLY HOUSE, ANNAMANADA P.O, PIN - 680 741. 11. K.GOPALAKRISHNAN NAIR, ASST.ENGINEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT `GOKULAM' CHATHENKARY P.O, THIRUVALLA - 689 112. 12. P.M.XAVIER, OVERSEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT PULIPARAMBIL HOUSE, 9/980, KEMBIRI ROAD, COCHIN- 682 002. 13. C.K.JOSEPH, ASSISTANT ENGINEER (RTD, KERALA STATE ELECTRICITY BOARD, RESIDING AT 18/1622, CHERUTHURUTHY HOUSE, E.S.I ROAD, PALLURUTHY, KOCHI-6 14. M.P.VIJAYAN NAIR, SENIOR SUPERINTENDENT (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT UTHRATTATHI HOUSE U.C.COLLEGE P.O, EAST KADUNGALLOOR, ALUVA-2. 15. V.N.BABU, SPECIAL GRADE DRIVER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT VADAKKE ERAYIL HOUSE, KATTATHURUTH, VADAKKEKARA P.O., NORTH PARAVUR, ERNAKULAM- 683 513. 16. R.RADHAKRISHNA PILLAI, DEPUTY CHIEF ENGINEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT AG'S BHAVAN, KATTANAM, PALLICKAL P.O, ALAPPUZHA- 690 503. 17. S.N.MOHAN RAJ, ASST.EXECUTIVE ENGINEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT KALATHIL HOUSE, P.H.WARD, ALAPPUZHA-7. W.P.(C). NO.26661/2009-C: 18. P.A.PAREED, SENIOR ASSISTANT(H.G) (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT PUTHENPURAYIL HOUSE, ARAYANKAVU, KEECHERY, KULAYATTIKKARA P.O, PIN- 682 315. 19. A.V.VARGHESE, OVERSEER (RTD), KERALA STATE ELECTRICITY BOARD, RESIDING AT EDASSERY HOUSE, BHAVANA NAGAR-181, NAZERATH ROAD, ANGAMALY SOUTH, NR.RAILWAY STATION. BY ADVS. SRI.P.M.PAREETH, SRI.MOHAMMED SHAMEEL. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, POWER (C)DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANNATHPURAM. 2. THE PRINCIPAL SECRETARY, FINANCE (RULES DEPARTMENT), GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SPECIAL OFFICER, MANAGING COMMITTEE, KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 4. SECRETARY,KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 5. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SRI. P. NANDAKUMAR, R3 TO R5 BY SRI. ASOK M.CHERIYAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2010, ALONG WITH W.P.(C). NO. 37707 OF 2009 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26661/2009-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PENSION REVISION ORDER NO. B.O.(FB) NO. 2748/2008 (PS/11428/2007) DTD. 11/11/2008 EXCLUDING ANNEXURES. EXT.P.2: COPY OF THE PENSION REVISION ORDER DTD. 17/06/09 IN RESPECT OF THE P.1. EXT.P.3: COPY OF THE ORDER DTD. 31/06/06 AUTHORIZING BASIC PENSION GRATUITY AND COMMUTTED VALUE OF PENSION ON THE BASIS OF THE PRE REVISED PAY IN RESPECT OF THE P.1. EXT.P.4: COPY OF THE RELEVANT PORTION OF THE G.O.P.NO.180/2006 DTD. 18/04/06. EXT.P.5: COPY OF THE KERALA ELECTRICITY FIRST TRANSFER SCHEME 2008, ISSUED IN G.O.M.S. NO. 37/2008/PD NOTIFIED 25/09/08. EXT.P.6: COPY OF THE G.O. NO. 461/2001 PSI/3141/2000 DTD. 23/02/01. EXT.P.7: COPY OF THE BOARD ORDER DTD. 10/12/2002. EXT.P.8: COPY OF THE RELEVANT PAGES OF THE G.O.(P).3001/98/FIN. DTD. 25/11/98. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. ---------------------------------------------------------------- W.P(C) Nos.26661/09,30613/09,31366/09, 34565/09 37707/09 & 2158/2010 ------------------------------------------------------------------- Dated this the 23rd day of July, 2010 J U D G M E N T Issue raised in these writ petitions are common and therefore the cases were heard together and are disposed of by common judgment. 2. Petitioners were employees of the Kerala State Electricity Board, who have retired from service on various dates subsequent to 1.7.2003. In these writ petitions they challenge some of the provisions of the Board Order.No.2748/2008 (PS1/1428/2007) dated 11.11.2008. While some of the petitioners are challenging clause (6) providing for a ceiling of DCRG, the other petitioners are challenging clause 7.1 and 7.2 providing for commutation of pension and restoration of commuted portion of pension. 3. The impugned provisions Ext.P1 Board order referred to above, are extracted below for reference. “ Ceiling on Death-cum-Retirement Gratuity(DCRG) 6.1 The ceiling of the maximum amount of DCRG WPC.Nos. 26661/09 & conn. :2 : will be raised from Rs.2,80,000/- to Rs.3,30,000/- to those who retired on or after 1.8.2006. Those who retired before1.8.2006 are eligible only for DCRG amount limited to Rs.2.80 lakhs only. All other conditions governing payment of DCRG shall remain unchanged. Commutation of Pension and restoration of Commuted Portion of Pension. 7.1 The existing rate of 1/3rd of the Basic Pension for commutation of pension will be enhanced to 40% of the pension based on the revised pay, in the case of retirement on or after 1.9.2007. 7.2 Those who retired from 1.7.2003 to 31.8.2007, are entitled to commute only 1/3rd of the pension admissible on the pre-revised pay and they are not entitled to commute 1/3rd of the pension admissible on the revised pay. In the case of commutation, already settled cases will not be reopened. “ 4. The main contention raised by the petitioners is that, being retired employee of the Board, all the pensioners form one class. It is stated that by the aforesaid provisions of Ext.P1 Board order, the existing benefits of DCRG and the commuted value of pension were revised. According to them while revising or liberalizing the benefits, the existing one class of pensioners/beneficiaries, have been classified into two, on the basis of a cut off date fixed by the Board and that on the basis of the cut off date, those who retired prior to the cut off date are denied the WPC.Nos. 26661/09 & conn. :3 : revised benefit, while those who have retired subsequent to the cut off date have been given the revised benefits. It is contended that such classification is irrational and opposed to th law laid down by the Apex Court in D.S.Nakara & Ors. V. Union of India ( AIR 1983 SCC 130) and therefore the petitioners are entitled to the benefits as revised by Ext.P1 on a par with those who have retired, after the cut off dates. 5. Counter affidavit has been filed by the Board. In the counter affidavit no justification is forthcoming regarding the fixation of the cut off date as incorporated in the impugned provisions of the Board order. Board also has not succeeded in showing that the benefits provided in the impugned provisions are anything other than revision of the existing benefits. They have also not put forward any other justification for fixing such a cut off date. 6. In such a situation, in my view, having regard to the law laid down by the Apex Court in the judgment referred to above, the cut off date introduced and the discrimination of one set of pensioners is unsustainable. 7. In the judgment in Nakara's case, after referring to the various precedents it was held that pension is neither a bounty WPC.Nos. 26661/09 & conn. :4 : nor a matter of grace depending upon the sweet will of the employer. Therefore, the Apex Court held as follows. “Proceeding further, this Court observed that where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that cannot be done when they are in service, can that be done during their retirement? Expanding this principle, one can confidently say that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later.” 8. It may have been possible for the Board to justify a cut off date and denial of revised benefits to those retired subsequent to the cut off date. Cases involving introduction of new benefits, cases where financial constrains are pleaded are some of the instances where cut off date specified have been upheld. But such justification is possible only in cases where facts in support thereof are adequately pleaded with sufficient supporting material, which is totally absent in this case. Having regard to the above, in the light of the law thus laid down, I cannot sustain the classification attempted by the Board in the impugned provisions. Therefore the provision in clause6(1) providing that those who have retired prior to 1.8.2006 are eligible to DCRG limited to Rs.2.80 WPC.Nos. 26661/09 & conn. :5 : lakhs, provision in clause 7.1 that those who have retired after 1.9.2007 alone will be entitled to 40% of the basic pension and clause 7.2 in so far as it provides that those who have retied from 1.7.2003 to 31.8.2007 are entitled to only 1/3rd of the pension admissible on the pre-revised pay and that they are not entitled to commute 1/3rd of the pension admissible on the revised pay are unsustainable. Therefore, the writ petitions are disposed of, quashing clauses 6.1,7 .1 and 7.2 to the extent it discriminates employees on the basis of their date of retirement and directing the respondents to extend the benefit of DCRG and commutation of pension uniformly to the petitioners without discrimination on the basis of their dates of retirement. Writ Petitions are disposed of as above (ANTONY DOMINIC) JUDGE vi/