IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 OP.No. 4074 of 2003(I) ---------------------- PETITIONER(S): --------------- E.K.VELAYUDHAN, PEON, WEIGHTS AND MEASURES DEPARTMENT, (RTD), ERNAKULAM, EDAVAZHIKKAL HOUSE, PANAVALLY P.O., CHERTHALA, PIN 688 566. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SMT.RESMI G. NAIR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. CONTROLLER OF LEGAL METROLOGY, VIKAS BHAVAN, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 4074 of 2003 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE G.O.(MS)179/06/RD DATED 14.3.86 EXT.P2- TRUE COPY OF THE CERTIFICATE DATED 31.5.93 ISSUED BY THE PSYCHIATRIST OF DISTRICT HOSPITAL, ALAPPUZHA EXT.P3- TRUE COPY OF THE G.O.(P).1851/99/FIN. DATED 18.9.99 EXT.P4- TRUE COPY OF THE LETTER NO.A2-749/01 DATED 24.10.01 OF THE 2ND RESPONDENT EXT.P5- TRUE COPY OF THE GOVERNMENT LETTER NO.51779/PRC.C2/2002/FIN DATED 14.8.02 ADDRESSED TO THE 2ND RESPONDENT EXT.P6- TRUE COPY OF THE LETTER NO.A2/749/01 DATED 28.9.02 OF THE 2ND RESPONDENT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- O.P.4074/2003 -------------------- Dated this the 2nd day of June, 2010 JUDGMENT Petitioner joined the Department of Legal Metrology as Peon on 22.4.1986 and retired from service on 31.3.1999. During the said period, according to him, on account of ailments, he had to be on leave without allowance for long spells of time. As a result thereof, he did not have a minimum qualifying service of ten years to be eligible for pension. 2. The Government introduced a Scheme for payment of Ex-gratia pension by Ext.P3 Government Order. Petitioner applied for the benefit of the Scheme, but that was declined by Ext.P4. Representations made by the petitioner were also rejected by Exts.P5 and P6. It is in these circumstances, the Original petition was filed praying to quash Exts.P4, P5 and P6 and also to extend the benefit of clause 1(b) of Ext.P3 Scheme. 3. Admittedly, petitioner does not have the minimum qualifying service to be eligible for payment of pension. It is therefore, that he is O.P.4074/03 2 claiming for the benefit of Ex-gratia pension under Ext.P3. However, Clause 1 deals with the eligibility and sub clause (b) provides that those who have lost their eligibility for minimum pension on account of not having the minimum qualifying service (ie, 10 years) by availing leave without allowance including those sanctioned Appendix XII A/XII C of KSR will not be eligible for Ex-gratia pension. It is relying on this provision of Ext.P3 that the application made by the petitioner was rejected by Exts.P4, P5 and P6. It is in these circumstances this writ petition is filed seeking to challenge Clause 1 (b) of Ext.P3 and also the orders rejecting his claim for Ex-gratia pension. 4. Admittedly, Ext.P3 discloses the introduction of a Government Scheme for payment of pension to those who are otherwise not eligible for payment of pension. Scheme itself is a concession and in the matter of concession, it is always open to the Government to impose such of those conditions which they deem it appropriate to include. In the wisdom of the Government they have chosen to introduce a clause which provides that those who have lost their O.P.4074/03 3 eligibility for minimum pension on account of not having the minimum qualifying service for reason of having availed of leave without allowance will be ineligible for payment of Ex-gratia pension. In my view, there cannot be anything objectionable in such a condition. 5. However, the learned counsel for the petitioner contended that those who availed of Appendix XII A/C of the KSR would have availed leave voluntarily for their benefit and that as far as he is concerned, he had to avail of leave for reasons beyond his control. Therefore it is contended that persons who have voluntarily availed of leave and persons who have availed of leave for reasons beyond their control, are not to be treated equally and for that reason Clause1(b) of Ext.P3 is discriminatory and illegal. 6. I am not able to agree with the learned counsel for the reason that clause 1(b) only provides that those who have lost their eligibility for not having minimum qualifying service by availing leave will be ineligible for Ex-gratia pension. There can be various circumstances O.P.4074/03 4 in which leave could have been availed of by employees, which would have rendered them ineligible for minimum pension. One of the circumstances for availing of leave is under Appendix XIIA/C of the KSR. Therefore the inclusion of those who have availed of leave appended under clause XIIA/C is only inclusive and therefore there is nothing objectionable in treating all those who fall in this category as one class. I do not find any merit in the contention raised by the learned counsel for the petitioner. Therefore, rejection of the petitioner's claims as per Exts.P4, P5 and P6 will have to be upheld and I do so. Writ petition fails and it is dismissed. ANTONY DOMINIC, Judge mrcs