IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 WP(C).No. 9462 of 2009(C) ------------------------------------- PETITIONER: --------------- P.D.VASANTHA KUMARI, "PADMA", BURMA ROAD, THIRUVANANTHAPURAM, RETIRED FROM KERALA CO-OP. MARKETING FEDERATION LTD. (MILMA) BY ADV. SMT.SREEDEVI KYLASANATH SRI.S.SANJITH SMT.V.J.SAFEENA RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REP. BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, WATER RESOURCES (WSC) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. SRI. N. MANOJ KUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/5/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9462 of 2009(C) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE FORMAL APPLICATION FOR PENSION DATED 29/4/1993 RECORDED IN PAGE NO.5 OF THE PENSION BOOK. EXHIBIT P2: TRUE COPY OF THE GOVERNMENT ORDER G.O.(P) NO.893/78/FIN DATED 30/12/1978. EXHIBIT P3: TRUE COPY OF THE ORDER NO.G.O.(RT) 637/97/IRD DATED 14/5/1997. EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 13/1/2003 SUBMITTED BY PETITIONER TO ACCOUNTANT GENERAL. EXHIBIT P5: TRUE COPY OF REVIEW PETITION DATED 2/1/2003 SUBMITTED BY PETITIONER BEFORE THE HON'BLE MINISTER FOR WATER RESOUCES DEPARTMENT. EXHIBIT P6: TRUE COPY OF THE OFFICE NOTES OF 3RD RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT. EXHIBIT P7: TRUE COPY OF THE COMMUNICATION NO. KWA/JB/E: 9/14455/04 DATED 11/8/2005 OF 3RD RESPONDENT. EXHIBIT P8: TRUE COPY OF THE COMMUNICATION NO. KWA/JB/E: 9/14455/04 DATED 9/10/2005 OF 3RD RESPONDENT. EXHIBIT P9: TRUE COPY OF THE COMMUNICATION DATED 1/8/2006 OF 3RD RESPONDENT TO 1ST RESPONDENT. EXHIBIT P10: TRUE COPY OF THE RELEVANT PART OF THE OFFICE NOTE OF FINANCE DEPARTMENT AND WATER RESOURCES DEPARTMENT WHICH THE PETITIONER RECEIVED UNDER RIGHT TO INFORMATION ACT. EXHIBIT P11: TRUE COPY OF ORDER NO.13019/C2/07/WRD DATED 16/2/2008 OF 1ST RESPONDENT. EXHIBIT P12: TRUE COPY OF G.O.(P) NO.1288/2000/FIN. DATED 4/11/2000. TRUE COPY P.A. TO JUDGE scm K.T. SANKARAN, J. --------------------------- W.P(C).No. 9462 of 2009 ----------------------------------- Dated this the 20th day of May, 2010 J U D G M E N T The reliefs prayed for in the Writ Petition are the following: i. To issue a writ of Certiorari calling for records relating to Exhibit P-11, and quash the same and Exhibit P-2 to that extent it stipulate that where no option is exercised within 6 months, the officer will automatically be governed by alternative (b), as the same is violative of the provision of KSR, to receive monthly pension benefit. ii. To issue a writ of Certiorari calling for records relating to Exhibit P-3 and quash the same to the extend it orders surrendering of petitioner's right of drawing pension for the service under Government any more. iii.To issue a writ of Mandamus or any other writ or order directing the respondents to disburse the monthly pension to the petitioner after adjusting the wrongly fixed lump sum pension. iv.To issue a writ of Mandamus or any other writ or order directing the respondents to give arrears of pension with interest, after adjusting the wrongly fixed lump sum pension. v.To pass any other writ or order as is deemed fit and proper by this Hon'ble Court in the interest of justice. vi. To issue cost of the writ petition to petitioner. 2. The petitioner entered service in the Public Health W.P(C).No. 9462/ 2009 2 Engineering Department (herein after referred to as P.H.E.D) on 21/6/1969. While she was working as U.D. Clerk in P.H.E.D, she was absorbed permanently in the Kerala Co-operative Milk Marketing Federation Ltd.(Milma) on 23/10/1983. From 21/6/1969 to 22/10/1983, she was having continuous service in P.H.E.D. The service of the petitioner in Milma was not a pensionable service. But, she was entitled to pension for her service in P.H.E.D, since she had completed more than ten years of service in that Department. The petitioner retired from service on 30/4/2001, while working in Milma. 3. G.O.(P) No.893/78/Fin. dated 30th December 1978 provides for grant of pension, exercise of option, Commutation of Pension etc. relating to persons in the Government services transferred permanently to Autonomous Bodies/Public Undertakings. It is relevant to extract Clause (iii) and portion of Clause (iv) of the said Government Order (Ext.P2), which reads as follows: (iii)Exercise of Option:(iii) A Government servant who has been permitted to be absorbed in a service or post in an Autonomous Body/Public Undertaking shall, if such absorption is declared by the Government to be in the public interest, be deemed to have retired from service from the date of such W.P(C).No. 9462/ 2009 3 absorption. Each such Government servant is required under the relevant orders applicable to him to exercise an option within six months of his absorption for either of the alternatives indicated below:- (a) Receiving the monthly Pension and Death-Cum- Retirement Gratuity already worked out, under the usual Government arrangements. (b) Receiving the gratuity and lump sum amount in lieu of pension worked out with reference to commutation tables obtaining on the date from which the pro-rata pension, gratuity etc., will be disbursable. Where no option is exercised within the prescribed period, the officer will automatically be governed by alternative (b) above, option once exercised shall be final. The option shall be exercised in writing and communicated by the Government employee concerned to the Undertaking/Autonomous Body. (iv)Commutation of pension : A person opting for alternative (iii)(a) above is entitled to commutation of a portion of the pension admissible to him in accordance with the rules in force at the time of such commutation. When a government servant elects alternative (iii) (b) above he shall be granted on an application made in this behalf the admissible gratuity plus a lump sum amount in lieu of pension not exceeding the commuted value of pension works out with reference to the commutation tables obtaining at the time the incumbent becomes eligible for the amount. An undertaking should also be obtained from the pensioner (the applicant) to the effect that he surrenders his right of drawing pension for the service under Government. The commutation shall become absolute and the title to receive the commuted value shall accrue on the date on which the W.P(C).No. 9462/ 2009 4 Medical Board (Authority) sign the Medical Certificate. 4. The petitioner submits that she opted for monthly pension and Death cum Retirement Gratuity as provided in clause (iii)(a) of Exhibit P2. Even after lapse of 10 years, the petitioner was not granted the pensionary benefits. It is stated that the petitioner submitted Exhibit P1 application dated 29/4/1993 in form-II for pension, in which she claimed commutation of pension to the extent of 50%. On 14/5/1997, Exhibit P3 order was passed by the Government according sanction for payment of a sum of Rs.24,024/- as commuted value of pension and Rs.3,900/- as D.C.R.G. to the petitioner. It is stated that the petitioner received an intimation from the Sub Treasury in the year 1999 that she could receive the amount as ordered in Exhibit P3. The petitioner received the amount. The petitioner submitted Exhibit P4 representation dated 13/1/2003 to the Accountant General, to sanction monthly pension to the petitioner after adjusting lump sum amount granted to her erroneously. In Exhibit P4, it was stated that there was long delay in settling the pensionary claim of the petitioner and that claim of the petitioner was for monthly pension. It is also stated therein that the petitioner should have W.P(C).No. 9462/ 2009 5 been granted monthly pension and that she received the lump sum amount under the belief that it was arrears of monthly pension due to her on account of the delayed payment. The petitioner made other representations also subsequent to Exhibit P4. The representations dated 2/12/2003 and 30/6/2006 submitted by the petitioner were disposed of by the Government as per Exhibit P11 order dated 16/2/2008 and the claim for monthly pension put forward by the petitioner was rejected. It was also held in Exhibit P11 that there was no mistake in granting lump sum amount as provided in Sub Clause (b) of Clause (iii) of Exhibit P2 Government Order dated 30/12/1978. It is also stated in Exhibit P11 that after five years of the receipt of the lump sum amount, the petitioner was putting forth a claim for monthly pension without any bonafides. 5. The petitioner submits that there is no document to indicate that lump sum amount was granted under Sub Clause (b) of Clause (iii) of Exhibit P2 on the ground that the petitioner did not submit the option within six months as provided therein. It is also pointed out that the records would indicate that necessary documents were not available in the office concerned. The W.P(C).No. 9462/ 2009 6 petitioner submitted Exhibit P5 representation on 2/12/2003 to the Hon’ble Minister for Water Resources. That representation was also dealt with under Exhibit P11 order. 6. The learned counsel for the petitioner pointed out that in Exhibit P6 office notes of the Managing Director of the Water Authority, there is a note made on 29/10/2004 recommending sanction of pension to the petitioner. It is also pointed out that in Exhibit P11 order dated 16/2/2008, it was mentioned that on verification of the records no option submitted by the petitioner was traceable and no entry was recorded in the service book of the petitioner. The petitioner also relies on Exhibit P10, Office Note of the Finance Department and the Water Resources Department with particular reference to the following notes: “ . In the present case, according to the petitioner she had exercised her option in accordance with the GO, but apparently the same is not duly recorded in her Service Book. • Subsequently, she has applied for monthly pension on 04.1993, which is evident from the copy of her pension book in file. But it is seen that without considering her request, she was sanctioned amount of Rs.24,024/- towards commutated value of pension and Rs.3,900/- as DCRG vide G.O. (Rt) 637/97/IRD dated 14.08.1997.Had such an order been issued before the petitioner applied for pension(i.e. prior to W.P(C).No. 9462/ 2009 7 29.04.1993), such action of Government would have been appropriate. • This being the case, while issuing the G.O. (Rt) 637/97/IRD dated 14.08.1997, it would have been more appropriate to first consider Smt.Vasanthakumari's option for monthly pension through her request in the pension book. 99. Sanction the lump sum amount after a lapse of nearly 14 years ignoring the request of the petitioner appears to be a harsh measure that has deprived her of legitimate benefits due from Government. It is obvious that this situation has arisen due to the inordinate delay and lack of prompt action in processing the case, thereby putting the petitioner at severe disadvantage. Hence, it would be appropriate to rectify this error even at this late stage. 100. In the light of the facts brought out above, this case deserves to be considered on humanitarian grounds. • Minister(Finance) may therefore kindly see the file to reconsider the stand taken by FD in this case.” 7. The aforesaid note was made by none other than the Hon’ble Minister for Water Resources. However, the Finance Department did not agree with this suggestion and the claim put forward by the petitioner was rejected. It was held by the Finance Department that there was no good ground for reconsideration of the earlier stand taken by the Finance Department. Exhibit P11 order was passed accordingly. W.P(C).No. 9462/ 2009 8 8. The petitioner has raised various contentions in the Writ Petition. She has also challenged that portion of Exhibit P2 Government Order, which provides for automatic application of Sub clause (b) of Clause (iii), in case no option is made within six months. The petitioner also relies on various decisions of this Court as well as that of the Supreme Court to contend that pension is a right and that it was the duty of the head of the department to prepare pension papers and do the needful so that the petitioner could draw her monthly pension, years before. 9. In the counter affidavit filed by the first respondent, Exhibit P11 is justified and all the contentions put forward by the petitioner for supporting her contention for monthly pension were denied and controverted. The contention of the first respondent is that the petitioner had not exercised the option within the prescribed period of six months. The petitioner had received the lump sum capitalized value of the entire pension in lieu of monthly pension and therefore, she has no right to claim pension for the service rendered by her in P.H.E.D. It is contended that even after the receipt of the lump sum amount, for about five years, she did not make any representation or raise any objection W.P(C).No. 9462/ 2009 9 for non-receipt of the monthly pension after that period. It would clearly indicate that the claim for pension now made by the petitioner is an afterthought and it was only for claiming the benefits of the revision in pensionary benefits made applicable even in the case of disbursement of pro-rata pension. 10. There are certain aspects which require to be noticed. The petitioner was absorbed permanently in Milma after relieving her service in P.H.E.D. in the year 1983. Whether she was entitled to monthly pension or lump sum commuted value of pension, she should have got it in 1983 or at least in 1984 . But, she received a sum of Rs.24,024/- only in the year 1999, after the lapse of 15 years of her notional retirement from P.H.E.D. There is no explanation for this long delay. Had Sub-clause (b) of Clause (iii) of Exhibit P2 Government Order been applied, there was no difficulty for fixing the amount payable to the petitioner and the amount should have been disbursed without delay. It is also relevant to note that there is no record to indicate that the petitioner did not exercise her option and therefore, Sub Clause (b) was made applicable. It is true, as rightly submitted by the special learned Government Pleader, that the W.P(C).No. 9462/ 2009 10 applicability of Clause(b) is automatic. Still, one would expect a record to show that Clause (b) was made applicable on account of non-exercise of option. This is relevant in view of specific case of the petitioner that she had put forwarded her option in time. Another aspect to be noticed is that at least in 1993, as per Exhibit P1 dated 29/4/1993, she put forwarded a claim for monthly pension. Lump sum amount was sanctioned only as per Exhibit P3 dated 14/5/1997. At that time, her request for monthly pension as per Exhibit P1 was pending. The petitioner was not intimated, her explanation was not obtained and she was not heard before passing Exhibit P3 order in spite of the fact that Exhibit P3 order was passed about 14 years after she was absorbed in Milma. The petitioner has a case that she believed that the sanctioning of Rs.24,024/- was towards arrears of pension. Even if it was to be treated as commuted value of pension, it could be justified even under Exhibit P1 application for pension, wherein a claim was made for commutation of 50 percent of the pension. At any rate, quantification of lump sum amount either in Sub Clause (b) of Clause (iii) of Exhibit P2 or commutation of 50% of the pension, was necessary. Therefore, it W.P(C).No. 9462/ 2009 11 cannot be ruled out that the belief entertained by the petitioner was without any basis. It is true, there was delay on the part of the petitioner in making Exhibit P4 representation, after receipt of Rs.24,024/-in 1999. But, when compared to the delay in sanctioning the lump sum amount after absorption of the petitioner in Milma, the delay on the part of the petitioner cannot said to be deliberate or unreasonable. If there is unreasonableness, there is unreasonableness on either side. If there is delay, both parties are guilty of delay. If there is mistake for not keeping the records, that mistake was committed by both the parties. 11. In the peculiar facts and circumstances of the case, a humanitarian consideration, leaving aside a technical approach, is required in the case. I quash Exhibit P11 order for the aforesaid reasons. I think, it would be proper to relegate the matter to the Government itself to consider all aspects of the case and to take a just and reasonable decision in the matter. I hasten to add that a technical consideration of the question, on the apprehension that any order passed in this case in favour of the petitioner would be taken as a precedent, should not lead to a conclusion, which W.P(C).No. 9462/ 2009 12 would work out injustice. It is made clear that an order passed in the peculiar facts and circumstances of the case, particularly, on the basis of the order passed by this Court, would not be treated as a precedent. Appropriate decision can be taken by the Government without delay after affording an opportunity of being heard to the petitioner. Let an order be passed by the Government within four months from today. The petitioner shall produce a copy of the Writ Petition and exhibits, Counter affidavit and reply affidavit before the Government along with a copy of the judgment. It is made clear that the challenge against Exhibit P2 and the contentions in the writ petition are left open. Writ petition is disposed of as above. K.T. SANKARAN, JUDGE scm