IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 OP.No. 249 of 2003(D) ------------------------------- PETITIONER(S): ----------------------- 1. V.VIJAYAN, SENIOR SUPERINTENDENT (RETD), KSEB, SOUPARNIKA, 39/652, HARIKKARA STREET, PALAKKAD. 2. K.KOMALAKUMARI, SENIOR SUPERINTENDENT (RETD), KSEB, DREAM LAND, PERINKULAM, ALATHUR, PALAKKAD. 3. N.A.VISWANATHAN, SENIOR SUPERINTENDENT, (RETD), KSEB, 24/384, DOULA STREET, NURRANNI VILLAGE, PALAKKAD. 4. K.SARALADEVI, SENIOR SUPERINTENDENT (RETD), KSEB, 32/109, KRISHNAKRIPA, THAVANAT LANE, VADAKKANTHARA, PALAKKAD. 5. N.K.MUHAMMEDALI, ASSISTANT, ENGINEER, (RETD), KSEB, PLOT NO.28, RAHMAT, VAIDUTHI NAGAR, PALAKKAD. 6. A.SETHU, SUB ENGINEER,(RETD), KSEB, AMRUTHA, RAMANATHAPURAM, PALAKKAD. 7. A.BHASKARAN, SENIOR WATCHMAN (RETD), KSEB, 8/48, SURABHI, VAIDUTHI NAGAR, COLLEGE ROAD, PALAKKAD. 8. K.A.ABUHAMEED, JUNIOR ENGINEER, (RETD), KSEB, CHINNAKALAM HOUSE, EAST STREET, KODUVAYOOR, PALAKKAD. 9. N.K.LEVAN, ASSISTANT ACCOUNTS OFFICER, (RETD), KSEB, SREEHARI, BANK ROAD, ALATHUR, PALAKKAD. 10. R.KRISHNAN, SENIOR SUPERINTENDENT, (RETD) KSEB, MULAMTHRODE HOUSE, PARUVASSERI POST, KANNAMPRA, PALAKKAD. BY ADVS. MR.G.D.PANICKER SMT.JEENA JOSEPH OP. NO.249/2003 RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PALAKKAD. 3. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, CHITTOOR. 4. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PALAI. BY ADVS.MR.T.G.RAJENDRAN SC FOR K.S.E.B. FOR R1 TO R4 MR.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.269/2003 IN OP. NO.249/2003 DISMISSED 15/06/2009 SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.461/2001 PSI/3141/2000 DT. 23.2.2001 FROM THE IST RESPONDENT. P2:- COPY OF THE ORDER NO.PA.XIII/23415(B) /63 DT. 15.9.01 FROM THE IST RESPONDENT. P3:- COPY OF THE REPRESENTATION DT. 10.6.02 BY ATHE PETITIONER BEFORE THE IST RESPONDENT. P4:- COPY OF THE TABULATION SHEET PREPARED BY THE PETITIONER SHOWING THE DETAILS OF DCRG, COMMUTATION AND THE INTEREST. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE CIRCULAR NO.AO/PA/GL/3/2001, DT. 21.3.01. R1(b):- COPY OF THE LETTER NO.PA/I/PPO. 22338(R), DT. 26.2.02 ISSUED BY CHIEF ENGINEER (HRM). R1(c):- COPY OF THE STATEMENT SHOWING CALCULATION OF INTEREST ON ARREARS OF COMMUTATION & DCRG. R1(d):- COPY OF THE B.O. NO.(F.M.) 1740/2003(PSI/3141/2000) DT. 7.11.03. TRUE COPY P.A. TO JUDGE TSS ANTONY DOMINIC, J. ------------------------- O.P. No.249 of 2003 --------------------------------- Dated, this the 15th day of June, 2009 J U D G M E N T The petitioners are retired employees of the 1st respondent Board, having retired during the period from 01/07/1998 to 23/03/2001. 2. Ext.P1 is a Board order, revising the pensionary benefits of pensioners/family pensioners of the Board. This was issued on 23/03/2001, and as per Clause 5, the order is effective from 01/07/1998. In so far as the issue raised in this original petition is concerned, all that is to be noticed is that in Clause 17 it is provided that as far as the arrears payable is concerned, interest will accrue from the date of authorization of revised DCRG and Commutation. In implementation of Ext.P1 order authorization of revised DCRG / Commutation orders were issued to the petitioners on various dates. Ext.P2 is one such order issued on 15/09/2001. 3. Complaining that as a result of the belated issuance of authorization, they have lost considerable amounts towards interest, O.P. No.249/2003 -2- Ext.P3 representation was submitted by the 1st petitioner. Ext.P4 is a tabulation statement in which, the petitioners have given the details of the amounts, which they claim to have lost towards interest due to belated issue of authorisation. 4. According to the petitioners, pensioners form one class and although, in Ext.P1, date of authorization is the date specified for their entitlement of interest on arrears, in several cases, authorization has been issued immediately on the issuance of Ext.P1. It is stated that as against this, in many cases such as those of the petitioners’, issuance of authorization was inordinately delayed, and as a result of which, their entitlement for interest commenced only from a belated date. This, according to the petitioners, resulted in discrimination, in as much as those who have been issued authorisation belatedly lost considerable amounts towards interest. On this factual basis, complaining that their rights under Article 14 of the Constitution of India has been violated, this writ petition has been filed seeking to quash the Clause in Ext.P1 providing that interest will accrue from the date of authorization, and to direct the respondents to grant interest with reference to the O.P. No.249/2003 -3- date of retirement or at least from the date of Ext.P1 order. 5. The respondents have filed a counter affidavit. In the counter affidavit filed, they are denying the allegation of discrimination. Irrespective of the factual controversy, that is involved, what arises for determination is whether the respondents were justified in fixing the date of authorization of revised DCRG/Commutation as the date from which, interest will be payable to the pensioners. In other words, the question is whether fixation of such a cut off date is arbitrary and is violative of the constitutional right of the petitioners. The learned counsel for the petitioners relied on the Apex Court judgment in State of West Bengal & Others v. Ratan Behari Dey & Others (1993(4) SCC 62). In this judgment, although the right to choose a cut off date has been conceded in favour of the Government, the Apex Court held that a date prescribed shall not be unreasonable or discriminatory. Such a conclusion has been arrived on referring to the judgments of the Apex Court in D.S.Nakara v. Union of India (1983(1) SCC 305) and Krishena Kumar v. Union of India (1990(4) SCC 207). A Division Bench of this Court in the judgment in Ananthasubramanian v. State O.P. No.249/2003 -4- of Kerala (1996(2) KLT 69) has also followed the Apex Court judgment in State of West Bengal’s case referred to above. 6. On the other hand, the learned standing counsel for the Electricity Board referred to me the Apex Court judgment in Government of A.P. v. Subbarayudu (2008(2) KLT 681) and contended that the fixation of a cut off date has been done taking into account various considerations and that except in a case of extreme arbitrariness, this Court will not be justified in interfering with the same. It is pointed out that in so far as the respondents are concerned, they have not discriminated any employee in as much as the date specified is a uniform one, namely, the date of authorization of revised DCRG/Commutation as the date rendering the pensioner eligible for interest. 7. As already stated, the limited examination that is possible for this Court is whether the date chosen by the respondents is one which is without any justification, or whether it is so arbitrary and discriminatory offending Article 14 of the Constitution of India. Although, it is factually correct that the date of issue of revised authorization is not the same for all the O.P. No.249/2003 -5- employees, which is humanly impractical also, the petitioners cannot say that the date fixed by the Board is not uniform. If that be so, the date fixed as such cannot be characterised as one which is discriminatory. Leaving all these controversies, in my view, in the light of the law laid down by the Apex Court in Government of A.P. v. Subbarayudu (2008(2) KLT 681) this Court will not be justified in interfering with the date fixed. Paragraphs 4 to 8 of the judgment, which is of relevance is reads as under:- “4. In a catena of decisions of this Court it has been held that the cut off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary.(See State of Punjab & Ors. v. Amar Nath Goyal & Ors. (2005 (6) SCC 754). 5. No doubt in D.S.Nakara & Ors. v. Union of India (1983 (1) SCC 305) this Court had struck down the cut off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara's case (supra), as observed in para.29 of the decision of this Court in State of Punjab & ors. v. Amar Nath Goyal & Ors. (supra). 6. There may be various considerations in the mind of O.P. No.249/2003 -6- the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date. The Government must be left with some leeway and free play at the joints in this connection. 7. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter affidavit filed by the Government, (unless it is shown to be totally capricious or whimsical) vide State of Bihar v. Ramjee Prasad (1990 (3) SCC 368), Union of Indian & Anr. v. Sudhir Kumar Jaiswal (1994 (4) SCC 212) (vide para 5), Ramrao & Ors. v. All India Backward Class Bank Employees Welfare Association & Ors. (2004 (2) SCC 76) (vide para 31), University Grants Commission v. Sadhana Chaudhary & Ors. (1996 (10) SCC 536) etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Art.14 unless the said cut off date leads to some blatantly capricious or outrageous result. 8. As has been held by this Court in Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr. 2008(1) KLT SN 29 (C.No.33) SC = 2008(3) 3 JT 221 and in Government of Andhra Pradesh & Ors. v. Smt.P.Laxmi Devi, 2008(2) KLT SN 13 (C.No.13) SC = 2008(2) 8 JT 639 the Court must maintain judicial restraint in matters relating to the legislative or executive domain.” In the light of the judgment as above, I cannot accept the plea O.P. No.249/2003 -7- of the petitioners that the respondents are to be faulted in fixing the date of authorization as the relevant date for payment of interest. The original petition fails, and accordingly, dismissed. (ANTONY DOMINIC, JUDGE) jg