IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 WA.No. 2691 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.8383/2005 Dated 08/07/2009 .................... APPELLANT/1ST RESPONDENT IN WPC: ------------------------------------------- KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT P.O.,THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC SHRI P.BENJAMIN PAUL,SC, KSRTC RESPONDENT/PETITIONER IN WPC: --------------------------------------- P.MOHAMMED, S/O.BAPPUTTY, PANNIKUZHIYIL HOUSE, P.O.KOODALLUR, VIA ANAKKARA, PALAKKAD DISTRICT. BY ADV. SRI.P. CHANDRASEKHARAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2691 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2011 JUDGMENT Antony Dominic, J. The 1st respondent in W.P.(C) No.8383 of 2005 is the appellant and the writ petition was filed by the respondent herein. 2. At the time of his retirement, the respondent was a Vehicle Supervisor under the appellant. According to the respondent, he and one Sri.Kunhan were drawing similar pay scale and retired from the service on the same date, viz, 30.06.1997. It was the case of the respondent that despite both of them having rendered qualifying service of 23 years and drawing an equal last drawn salary, he was granted pension of `2588/- with effect from 01.07.1997 under the 1997 scale of pay, whereas Sri.Kunhan was granted pension of `2,736/-. 3. Complaining of the above, after making Ext.P7 representation, the respondent approached this Court by filing O.P. No.24217 of 2002. That Original Petition was WA No. 2691 of 2009 -:2:- disposed of by Ext.P8 judgment directing that the representation of the respondent be considered and orders shall be passed. Accordingly, the claim of the respondent was considered and the appellant passed Ext.P9 order dated 18.12.2004, the relevant portion of which reads as follows: “The verification of the calculation of pension reveals that the pension and the pensionary benefits already disbursed are absolutely in order. Your request to raise pension from Rs.2,588/- to Rs.2,736/- and granting arrears of pension and pensionary benefits is against Rules and hence cannot be allowed. As your request relies on granting parity with a similarly placed pensioner Shri.K.P. Unneeri Alias Kunhan, Vehicle Supervisor, the following facts are laid down for your kind information. Even though Shri.K.P. Unneeri and you were similarly placed having entered into service in 1973, secured promotion as Vehicle Supervisor and retired from service on the same date, the last pay drawn by him was higher by Rs.200/-. Accordingly, Shri.K.P. Unneeri was eligible for higher rate of pension and pensionary benefits than that due to you. The difference in Last pay is seen occurred due to the fact that Shri.K.P. Unneeri had exercised his option for 1997 Pay Revision in a more beneficial date than as opted by you. The calculation of pension and pensionary benefits, based on the last pay drawn by you is absolutely in order. Hence your representation requesting to revise pension and WA No. 2691 of 2009 -:3:- grant arrears of pension and consequential pensionary benefits cannot be allowed and hence declined.” (emphasis supplied) 4. On receiving Ext.P9 order, realising that his claim for increasing pension has been turned down, the respondent filed writ petition No.8383 of 2005 with the prayer as follows: “i) issue a writ of mandamus or any other writ, order or direction directing the respondents to revise the petitioner's monthly pension to Rs.2736/- per month from 01.07.1997, revise his DCRG and commuted value of pension correspondingly and grant to him arrears of pension DCRG, commuted value of pension and other consequential benefits forthwith.” 5. The writ petition was disposed of by judgment dated 08.07.2009 and the reasoning of the learned Single Judge is as follows: “In an earlier round, Ext.P8judgment was issued directing consideration of Ext.P7, wherein the petitioner has pointedly stated that the average emoluments of the petitioner would be more than that of Sri.Kunhan. That assertion is at serial No.5 in the last paragraph of Ext.P7 wherein different relevant personal particulars of the petitioner and Kunhan are stated. Not only that the impugned decision does not proceed on any ground refuting those service particulars, even the counter affidavit does not contain any averment disputing the assertion of the petitioner in Ext.P7, a document produced WA No. 2691 of 2009 -:4:- along with the writ petition, that his average emoluments was Rs.2,579.66 as against Rs.2,669/- drawn by Sri.Kunhan.” 6. Adopting the aforesaid reasoning, the learned Judge rejected the stand of the appellant and held that the pension of the respondent will stand revised as `2,736/- per month with effect from 01.07.1997. It is aggrieved by this judgment this appeal is filed. 7. We have heard the learned Standing Counsel appearing for the appellants and the learned counsel appearing for the respondent. 8. A reading of the judgment would show that the learned Judge proceeded on the assumption that the particulars given in Ext.P7 were not refuted. Ext.P7 is the representation which was directed to be considered by the appellant by Ext.P8 judgment of this Court. It was in pursuance to the above, Ext.P9 order was passed, the relevant portion of which has been extracted above. 9. A reading of Ext.P9 order would show that the claim made by the respondent was in fact considered by the appellant and was turned down. Further, in Ext.P9 appellants WA No. 2691 of 2009 -:5:- have explained the reasons why the other person was drawing higher pension. The judgment under appeal shows that without adverting to Ext.P9, the learned Judge concluded that the contents of Ext.P7 were not refuted and such a conclusion is factually erroneous. The learned Judge also has not held the reasons assigned by the appellant justifying the higher pension of the respondent to be unsustainable. It was in spite of it, the impugned judgment was rendered. For the aforesaid reasons, the judgment cannot be sustained. 10. That apart, we also note that in the writ petition the respondent/writ petitioner did not seek any prayer for quashing Ext.P9 order and even in the pleadings no factual particulars have been furnished for us to conclude that the averments made in Ext.P9 order are erroneous. Further in the counter affidavit filed by the appellant it was pleaded thus: “It is respectfully submitted that though the petitioner and Sri.K.P.U.Kunjan was drawing same last pay, petitioner had exercised his option to come over to the 1997 scale revision with effect from 09/06/1997, whereas Sri.Kunjan with effect from 01/03/97, while calculating average emoluments of Sri.P.Muhammed the benefit of scale revision was conferred only for 22 days from 9/6/97 to 30/6/97 (Date of Retirement WA No. 2691 of 2009 -:6:- 30/6/97) and for the remaining period his emoluments had to be reckoned in the pre-revised scale. In case of Sri.Kunjan, he exercised his option with effect from 01/3/97 and he was eligible for the revised benefit from 01/3/97 to 30/6/97(D/R) and only the balance in pre-revised rate. Hence he was eligible for higher emoluments and resultant increase in basic pension. It may therefore be seen that the disparity in pension between the two had occurred due to their exercise of option to the revised scales on different dates and not due to any fault on the part of the KSRTC.” No affidavit has been filed by the respondent disputing these averments. In the circumstances, no relief could have been granted to the respondent. For the aforesaid reasons, the judgment under appeal is set aside and the writ appeal will stand allowed dismissing the writ petition filed by the respondent. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb WA No. 2691 of 2009 -:7:-