IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 WP(C).No. 1890 of 2011(I) ------------------------- PETITIONER(S): --------------- 1. PAUL GEORGE N.,S/O.GEORGE AGED 58, RESIDING AT 25/402 D, NJALIYATH HOUSE, PUTHIYA KAV THRIPUNITHURA, ERNAKULAM PIN-682301, (RETIRED AS DEPUTY CHIEF ENGINEER FROM THE KSEB ON 31/08/2007 FN) 2. B.R.VENUGOPALAN NAIR, S/O.K.K.VASUDEVAN NAIR, AGED 60,BHASKARA VILASOM, CHENKAL, CHENKAL P.O. NEYYATTINKARA 9RETIRED AS SUB EBGINEER FROM THE KSEB ON 28/2/2006FN) 3. K.K.VASUDEVAN NAIR, KUNNATHOOR HOUSE, PODIYADI P.O.THIRUVALLA PIN-689110 (RETIRED AS OVERSER FROM THE KSEB ON 30/1/2006 AN) 4. B.SASIDHARAN, GEETHALAYAM, NEAR AMMANKOVIL, A.N.R.A.36,POOVAR ROAD, NEYYATTINKARA 9RETIRED AS SENIOR SUPERINTENDENT FROM THE KSEB ON 31/05/2006 FN) BY ADV. SMT.P.K.RADHIKA RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVANAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 4. 2. THE CHIEF ENGINEER, HRMS, VAIDYUTHI BHAVANAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 4. SRI. K.S. ANIL, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 1890 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th day of January, 2011. J U D G M E N T The petitioners were employees of the Kerala State Electricity Board. They have retired from service subsequent to 1.7.2003. After their retirement, the scales of pay of the employees of the Kerala State Electricity Board have been revised with retrospective effect from the date prior to their retirement. The petitioners' grievance in this writ petition is that although their pay was revised accordingly, the petitioners were not paid revised DCRG and commutted value of pension in terms of the pay revision. The petitioners therefore seek the following reliefs: “(a) Issue a writ of mandamus or any other appropriate writ, order or direction to extend the benefits of enhanced DCRG and enhanced rate of commutation of pension on the revised pension consequent on the revision of pay. (b) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to the issuance of clause 6.1, 7.1 and 7.2 of Ext. P1 order and to quash the provisions discriminating pensioners based on the date of retirement.” 2. I have heard the learned standing counsel for Electricity Board. 3. An identical question was considered by a learned d Judge of this Court in a batch of writ petitions, viz. W.P(C) Nos.26661, 30613, 31366, 34565 & 37707/2009 and 2158/2010. In that judgment, it was held as follows: “Issue raised in these writ petitions are common and therefore the cases were heard together and are disposed of by common judgment. -: 2 :- 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 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 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 -: 3 :- ( 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 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 lakhs, provision in clause 7.1 that those -: 4 :- 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.” I am in agreement with the said judgment. Therefore, this writ petition is also disposed of in terms of that judgment. Sd/- S. Siri Jagan, Judge. Tds/ [TRUE COPY] P.S TO JUDGE.