IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 WP(C).No. 5173 of 2010(V) -------------------------------------- PETITIONER(S): ------------------------ 1. K. SAJEETHA BHEEGAM, W/O.MEERA PILLAN, KALARICKAL HOUSE, VENMONY P.O., CHENGANNUR, ALAPPUZHA (DISTRICT), (SR.SUPERINTENDENT, KSEB). 2. G.R. VIJAYACHANDRAN NAIR, VIJAYA BHAVANAM AMMAN NAGAR 137, PATTATHANAM, KOLLAM 21 PIN 691 021, (SENIOR SUPERINTENDENT, KSEB). 3. A. VIJAYAKUMARAN NAIR, KARAKKAPURAM, KUNNIL HOUSE, CHETHKNNU KUMARAPURAM MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. PIN- 695 011 (SUB ENGINEER) 4. R. RAVINDRAN, SOBHA NIVAS, PUTHENVILA THURUVICAL P.O., PULAYANARKOTTA, THIRUVANANTHAPURAM. 31 (SENIOR SUPERINTENDENT - RETIRED). 5. B.SASI, CHARUVILAKKATU VEEDU, BURMA ROAD, KUMARAPURAM MEDICAL COLLEGE P.O THIRUVANANTHAPURAM. (OVERSEER, KSEB-RETIRED). 6. V.G.AMBUJAKSHAN NAIR, VARRIKAYIL HOUSE CHENGALAM SOUTH P.O. KOTTAYAM (OVERSEER, KSEB-RETIRED). 7. A. ANTONY, KOCHUVEETTIL HOUSE, ARPOOKARA EAST P.O., KOTTAYAM, PIN 686 008 (ASSISTANT ENGINEER). 8. A. JAMEELA BEEVI, KODIYATT PAZHAYATTINKUZHA, VADAKKEVILA P.O KOLLAM, PIN- 691 010 (SENIOR SUPERINTENDENT). WP(C).No. 5173 of 2010(V) 9. NIRMALA JOHN, KUNNUMADOM, ERAVIPURAM KOLLAM, PIN 691 011 (ASSISTANT ADMINISTRATIVE OFFICER). 10. MARIAMMA DAVID, MERRY COTTAGE, HOUSE NO.30, PEOPLES NAGAR, KOLLAM 691 001. (ASSISTANT ADMINISTRATIVE OFFICER). BY ADV. SMT.P.K.RADHIKA RESPONDENT(S): -------------------------- 1. THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDHUTHI BHAVAN, PATTOM PALACE P.O. THIRUVANANTHAPURAM. 4 2. THE CHIEF ENGINEER, HRMS, VAIDHUTHI BHAVAN, PATTOM PALACE P.O. THIRUVANANTHAPURAM. 4 R1 & R2 BY ADV. SRI.K.S.ANIL, SC, KSEB, SRI. ASOK M.CHERIYAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5173 of 2010(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1(a): COPY OF THE APPLICATION DATED 30/12/2004 BY THE 1ST PETITIONER. EXT.P1(b): COPY OF THE APPLICATION DATED 16/08/2004 BY THE 2ND PETITIONER EXT.P1(c): COPY OF THE APPLICATION DATED 10/11/2004 BY THE 3RD PETITIONER. EXT.P1(d): COPY OF THE APPLICATION DATED 03/05/2004 BY THE 4TH PETITIONER. EXT.P1(e): COPY OF THE APPLICATION DATED 24/04/2006 BY THE 5TH PETITIONER. EXT.P1(f): COPY OF THE APPLICATION UNDATED BY THE 6TH PETITIONER. EXT.P1(g): COPY OF THE APPLICATGION UNDATED BY THE 7TH PETITIONER. EXT.P1(h): COPY OF THE APPLICATION DATED 15/07/2004 BY THE 8TH PETITIONER. EXT.P1(i): COPY OF THE APPLICATION DATED 16/03/2005 BY THE 9TH PETITIONER. EXT.P1(j): COPY OF THE APPLICATION DATED 15/07/2005 BY THE 10TH PETITIONER. EXT.P2: COPY OF THE ORDER DATED 11/11/2008. EXT.P3(a): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 1ST PETITIONER DATED 18/07/2009. EXT.P3(b): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 2ND PETITIONER DATED 08/07/2008. EXT.P3(c): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 3RD PETITIONER DATED 01/04/2009. EXT.P3(d): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 4TH PETITIONER DATED 15/06/2009. EXT.P3(e): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 5TH PETITIONER DATED 13/08/2009. EXT.P3(f): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 6TH PETITIONER DATED 18/07/2009. EXT.P3(g): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 7TH PETITIONER DATED 30/07/2009. WP(C).No. 5173 of 2010(V) EXT.P3(h): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 8TH PETITIONER DATED 16/07/2009. EXT.P3(i): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 9TH PETITIONER DTED 14/07/2009. EXT.P3(j): COPY OF THE REVISED PENSION ORDER BY THE SECOND RESPONDENT TO THE 10TH PETITIONER DATED 11/06/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.5173 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of September, 2010 J U D G M E N T In this writ petition the petitioners seek the following reliefs: “(a) issue a writ of mandamus or any other appropriate writ order or direction commanding the first respondent to sanction commutation of 1/3rd 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 7.2 of Ext.P2 order by the board and to quash the same.” Now both sides agree that, the issue involved in this writ petition is covered by the judgment in W.P.(C) No.30613/2009 and connected cases. That judgment reads 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. 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 W.P.(C)No.5173 of 2010 -2- 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 ( 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. W.P.(C)No.5173 of 2010 -3- 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 who have retired after W.P.(C)No.5173 of 2010 -4- 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.” In the above circumstances, this writ petition is disposed of in terms of the above judgment. S. SIRI JAGAN JUDGE shg/