Kerala High Court

K.Premarajan vs State Of Kerala on 26 September, 2018

Author:
P.V.Asha

Bench:
P.V.Asha

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE SMT. JUSTICE P.V.ASHA

WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940

WP(C).No. 25723 of 2013

PETITIONER/S:

1 K.PREMARAJAN
MEMBER,KERALA PUBLIC SERVICE
COMMISSION,PATTOM.P.O,THIRUVANANTHAPURAM,RESIDING AT
ARUN NIVAS,PULLONNIPARAMBA,KUNNAMANGALAM,KOZHIKODE.`

2 SMT.P.JAMEELA
MEMBER,KERALA PUBLIC SERVICE
COMMISSION,PATTOM.PO,THIRUVANANTHAPURAM,RESIDING AT
VALIYATHERAYIL,INDIRA
NAGAR,PEROORKKADA,THIRUVANANTHAPURAM-695005.

3 DR.USHA
MEMBER,KERALA PUBLIC SERVICE COMMISSION,PATTOM.PO,
THIRUVANANTHAPURAM,RESIDING AT KAMBISSERIL,PRATHEEKSHA
NAGAR,KILIKOLLOOR,KOLLAM-14.

4 PROFESSOR(DR.)GRESAMMA MATHEW
MEMBER KERALA PUBLIC SERVCICE
COMMISSION,PATTOM.P.O,THIRUVANANTHAPURAM,RESIDING AT
KANIKKATTOTHU HOUSE,VAKASSERIL
LANE,EERAYILKADAVU,MUTTAMBALAM,KOTTAYAM.

5 PROFESSOR KOCHUTHRESSIA ABRAHAM
MEMBER,KERALA PUBLIC SERVICE
COMMISSION,PATTOM.P.O,THIRUVANANTHAPURAM,RESIDING AT
KAIPPANPLACKAL,KOZHUVANAL.P.O,KOTTAYAM -686523.

BY ADVS.
SRI.K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI
SRI.BRIJESH MOHAN
SRI.T.R.SADEESAN
WP(C).No. 25723 of 2013

RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA,
GENERAL ADMINISTRATION DEPARTMENT,GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM-695001.

2 KERALA PUBLIC SERVICE COMMISSION
PATTOM.P.O,THIRUVANANTHAPURAM-695004,REPRESENTED BY ITS
SECRETARY.

3 THE ACCOUNTANT GENERAL(A&E)
KERALA,THIRUVANANTHAPURAM-695039.

BY ADVS.
GOVERNMENT PLEADER SRI.S.KANNAN
SR
I.P.C
.SASIDHARAN, SC, KPSC

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.09.2018,
ALONG WITH WP(C).28226/2007, THE COURT ON 26.09.2018 DELIVERED THE
FOLLOWING:
P.V.ASHA, J.

W.P.(C) No.28226 of 2007 & 25723 of 2013

Dated this the 26th day of September, 2018

JUDGMENT

The petitioners who are retired/serving members of

the Kerala Public Service Commission ("PSC" for short)

are aggrieved by the amendment effected to Clause (2)

of
Regulation 4
of the Kerala Public Service Commission

(Composition and Conditions of Service of Members and

Staff) Regulations, 1957, on account of which their pay

is fixed after deducting the pension they were drawing

by virtue of the service rendered by them under the

State Government/Public Sector Undertakings/aided

Colleges.

2. Petitioners in W.P.(C) No.25723 of 2013 were

appointed as Members of the Commission on various dates

in 2010, 2011 and 2013. One of the petitioners in W.P.

(C) No.28226 of 2007 had already retired in 2007 and

the other petitioners therein were sitting members at

the time of filing the writ petition in 2007. They are

aggrieved by the amendment effected in 2002 which took

away the benefit which was conferred by the earlier
W.P.(C) No.25723/13&CON./CASE

:4:

amendment effected in 1998, based on which the members

started getting the benefit of full pay as well as

pension attached to the post in which they were working

prior to their appointment as members of PSC.

3. The appointment of the Chairman and members of

PSC are governed by
Article 316
of the Constitution of

India. As per the Proviso to
Article 316
, one half of

the members of the PSC shall be persons who at the date

of their respective appointments have held office for

at least 10 years either under the Government of India

or under the Government of the state. Clause 2 provides

that a member of PSC of a state shall hold office for a

term of 6 years from the date of assumption of office

or until he attains the age of 62 years whichever is

earlier. Clause 3 provides that a person who holds

office as a member of the PSC shall on the expiration

of his term of office be ineligible for reappointment

to the office.
Article 318
provides that in the case of

a State Commission, the Governor of the state may, by

regulation determine the number of members of the

Commission and their conditions of service; it further
W.P.(C) No.25723/13&CON./CASE

:5:

provides that conditions of service of a member of PSC

shall not be varied to his disadvantage after his

appointment. Under
Article 319
, the Chairman as well as

members of the State Public Service Commission shall be

ineligible for any other employment either under the

Government of India or under the Government of the

state. Under
Article 322
, the expenses of the state

PSC including any salary, allowances and pensions

payable to or in respect of members or staff the

commission shall be charged on the Consolidated fund of

the state.

4. The Governor of Kerala has framed the Kerala

Public Service Commission (Composition and Conditions

of Service of Members and Staff) Regulations, 1957

(hereinafter referred to as 'Regulations'), in exercise

of powers conferred under
Article 318
of the

Constitution of India. As per regulation 4 of these

regulations, the salary of the Chairman and other

members were fixed as Rs.22,850/- per month and

Rs.22,500/- per month respectively (since revised)

along with DA and City Compensatory Allowance at the
W.P.(C) No.25723/13&CON./CASE

:6:

rates admissible to the officers of the State Govt. As

per clause 2 of regulation 4 it was provided that a

member who was holding a post under the Govt. of India

or a State shall on appointment as Chairman or other

member receive salary and DA as mentioned in clause

(1). However as per the proviso they would be allowed

to draw their salary last drawn in Govt. of India

service or State Govt. service minus the pension

including commuted value of pension and the pension

equivalent of other retirement benefits throughout the

period of their service in the Commission if the last

pay drawn by them during such service is higher than

the pay attached to the posts. Sub clause (ii) of

Clause 2 of that regulation further provides that the

salary mentioned in clause (1) shall be reduced by such

amount not exceeding the pension and the pension

equivalent of other retirement benefits if any in case

of appointment as Chairman or other member of a person

who has retired or deemed to have retired from service

under the Government, a Local Body, a University or

Private College or an Aided School or any other body
W.P.(C) No.25723/13&CON./CASE

:7:

wholly or substantially owned or controlled by the

Government.

5. Relevant portion of
Regulation 4
reads as

follows:

"(1) There shall be paid to the Chairman a salary at
the rate of twentytwo thousand eight hundred and fifty
rupees per mensum and to other members at the rate of
twentytwo thousand five hundred rupees per mensum.

Chairman and other members shall also be paid Dearness
Allowance and City Compensatory Allowance at the rates
admissible to the officers of the State Government
drawing equivalent pay:

xxxxxxx
(2) A person who holds at the time of his appointment
to the Commission is holding a post in the Government
of India or Government of a State shall on appointment
as Chairman or other Member, receive the Salary and
Dearness Allowance mentioned in Clause (1):

Provided that such person shall be allowed to draw his
salary last drawn in the Government of India service,
the All India Service or the State service, as the case
may be, minus pension including commuted value of
pension and pension equivalent to other retirement
benefits throughout the period of his service in the
Commission if the last pay drawn by him during such
service is higher than the pay attached to the posts:
xxxxxxx
(ii} In the case of an appointment as Chairman or other
member, of a person who has retired or deemed to have
retired from service under the Government or local
body, a University or a private college or an aided
school or any other body wholly or substantially owned
or controlled by government and who is on receipt or
has received or has become entitled to receive any
retirement benefits by way of pension, gratuity,
contributory provident fund or otherwise his salary as
mentioned in clause (1) shall be reduced by such amount
not exceeding the pension (including any portion of the
pension which may have been commuted) and pension
equivalent of other retirement benefits if any.xxxxx"

6. Before the appointment of petitioners as

Members of the Commission, the 1st petitioner in W.P.(C)
W.P.(C) No.25723/13&CON./CASE

:8:

No.28226 of 2007 retired from service of State

Government; the 2nd petitioner retired from a teaching

post in an aided College and 3rd petitioner retired from

the University of Calicut. Petitioners 1 and 2 in W. P.

(C) No.25723 of 2012 retired from service under the

State Government and petitioners 3 to 5 retired from

teaching posts in aided colleges. The grievance of the

petitioners is that the regulations were once amended

in 1998, pursuant to the judgment of the apex court in

D.S Nakara V Union of India: AIR 1983 SC 130, for grant

of full salary and full pension to the Chairman and

Members irrespective of the pension which they were

drawing on account of the past service. Prior to

amendment in 2002, sub-clause (ii) of clause (2) of

Regulation 4
, which was incorporated in the Regulations

as per GO(P) No.648/98/GD dated 15.12.1998 (which is

produced as Ext.P2 in W.P.(C) No.28226 of 2007) reads

as follows:

(ii) in the case of an appointment as Chairman or
other member, of a person who has retired or deemed to
have retired from service under the Government or local
body, a University or a Private College or an aided
school or any other body wholly or substantially owned
or controlled by government and who is on receipt or has
received or has become entitled to receive any
W.P.(C) No.25723/13&CON./CASE

:9:

retirement benefits by way of pension, gratuity,
contributory provident fund or otherwise his salary
shall be as mentioned in clause 1 and he shall be
eligible to receive such retirement benefits."

7. The amendment brought about in 1998 enabling

the Chairman and Members to draw pension as well the

salary without any deduction was nullified in 2002,

restoring the position as existed prior to 1998, as per

Ext.P3 order issued on 23.10.2002 restoring the

position prior to 1998, in tune with the provisions

contained in Rule 100 of Part III KSR.

8. Thus the grievance of the petitioners who are

pensioners by virtue of the service rendered by them

under the Govt.of Kerala/ Private aided

Colleges/University is that salary was being paid to

them after deducting the amount equivalent to the

pension they were drawing and they were getting only a

meagre amount towards salary though they are members of

a Constitutional body. The matter was taken up by the

PSC before the Government pointing out that the

attitude shown towards the petitioners who are members

of a constitutional body by treating them on par with

those holding civil posts under the Government, was not
W.P.(C) No.25723/13&CON./CASE

:10:

proper. However Government rejected the request of the

petitioners as well as that of the PSC. The writ

petitions are filed under the above circumstances

seeking a declaration that the amendment brought about

to subclause (ii) of Clause (2) of
Regulation 4
by way

of Ext.P3 is unconstitutional pointing out that the

members of the PSC cannot be equated to those holding

civil posts under the Government so as to invoke Rule

100 of Part III KSR in fixing their pay.

9. According to the petitioners appointment of

half of the members of the PSC are made from among

those who have rendered 10 years service in

State/Central Government as per
Article 316
of the

Constitution of India. Therefore they cannot be

treated as reemployed persons.

10. Respondents have filed a counter affidavit

stating that the pay of the petitioners were fixed

deducting the pension they were drawing as revised from

time to time. It is stated that they have opted to draw

pension attached to the post they were holding prior to

their appointment as Members of PSC, under clause 7A
W.P.(C) No.25723/13&CON./CASE

:11:

(2) of the Regulations. It is stated that the amendment

to regulation 4(2) was made subsequent to the

modification to rule 100 of Part III KSR which

dispensed with the practice of getting dual benefit of

pension and salary at the same time on the

reappointment of retired Govt. servant to the post of

Chairman and members of PSC. The amendment was effected

only prospectively. They get the same emoluments

attached to the post of members/Chairman minus the

pension attached to their previous service and there

would not be any difference in the net emoluments. As a

matter of public policy Govt. had stopped the practice

of granting dual benefits of pension and salary. Rule

100 was amended and consequential amendment was made in

sub clause(ii) of Clause 2 of regulation 4 of the

Regulations prospectively in order to ensure that it is

not ultravires the provisions of the Constitution. As

per
Regulation 4
the pension and pensionary benefits

equivalent to retirement benefits had to be deducted

from the reemployment salary which was adopted in rule

100. Though certain amendments were effected subsequent
W.P.(C) No.25723/13&CON./CASE

:12:

to the judgment of the Apex court in D.S. Nakara V

Union of India: AIR 1983 SC 130, Rule 100 was amended

and the same was incorporated in the Regulations.

11. In the counter affidavit by PSC in WP(C) No.

25723 of 2013, it is stated that the Chairman and

members of the Commission who were appointed to hold

constitutional posts cannot be treated on par with

employees appointed under the Public Services or other

Acts or Rules and therefore there is no question of

extension of rule 100 of Part III KSR, which applies

only in the case of those retired officers who are

employed in Public Services after retirement from such

services under Government. Therefore it is illogical to

treat them as re-employed pensioners for the purpose of

regulating their service conditions. The power to fix

the conditions of service is vested only in the

Governor of the State under
Article 318
of the

Constitution of India. Persons like petitioners

appointed to a constitutional body are entitled to draw

pensionary benefits by way of the service rendered by

them and it is their statutory entitlement that cannot
W.P.(C) No.25723/13&CON./CASE

:13:

be reckoned as part of the salary due to them for their

service as member/Chairman. The salary of the

members/Chairman is charged on the consolidated fund

whereas pension and gratuity is admissible for past

service is subject to vote by the legislature. It is

also pointed out that MLAs, MPs etc. who receive

pension from consolidated funds would continue to get

full salary. It is also pointed out that the duties and

functions of the Chairman and members of the Commission

are one and the same irrespective of the source from

which they are appointed that is whether they were

employed or not before their appointment as members.

12. The learned Counsel appearing for the

petitioners relied on the judgment of this Court in

WP(C) No.11560 of 2012 and WP(C) No.3081 of 2013 and

argued that petitioners cannot be treated as mere re-

employed hands and they are entitled to enjoy special

privilege, being members of a constitutional body.

13. The learned Government Pleader relied on the

judgments in
Gopinatha Pillai vs. State of Kerala
:

2004 (3) KLT 290, V.S.Mallimath vs. Union of India and
W.P.(C) No.25723/13&CON./CASE

:14:

another : 2001 (4) SCC 31, M.S.chawla and others vs.

State of Punjab and another : 2001 (
5) SCC 358 , Guru

Gobinda Basu vs. Sankari Prasad Ghosal
:
AIR 1964 SC

254, Confederation of Ex-Servicemen Associations and

others vs. Union of India and others
: 2006 (
8) SCC

399, Pashupati Nath Sukul vs. Nem Chandra Jain
: 1984

(2) SCC 404 and Ashraf M. vs. State of Kerala and

others : 2013 (2) KHC 559 and argued that the

petitioners who are re-employed pensioners are entitled

to get pay only after deducting the pension they are

drawing.

14. Heard Sri.Jaju Babu, learned Senior Counsel

appearing for petitioner in W.P.(C) No.25273 of 2013,

Sri.S.P.Aravindakshan Pillai, the learned Counsel for

the petitioners in W.P.(C) No.28226 of 2007, Sri.

Kannan, learned Government Pleader and Sri.P.C.

Sasidharan, the learned Standing Counsel for the PSC.

15. The question arising in these cases is whether

the pension drawn by petitioners by virtue of the

service rendered by them as employees under the State

Government, aided Colleges and University can be
W.P.(C) No.25723/13&CON./CASE

:15:

deducted from the pay attached to that of the Member of

PSC.

16. From the pleadings it is clear that till the

issuance of Ext.P2 in 1998 and thereafter from 2002,

the pay of the members who were drawing pension was

being fixed after deducting the pension equivalent. It

would also appear that none of the petitioners have

enjoyed the benefit of Ext.P2 amendment effected in

1998, as all of them appear to have been appointed as

Members subsequent to the amendment effected in 2002.

Whatever it may be it is necessary to examine whether

pension being drawn by petitioners was liable to be

deducted from the pay attached to the post.

17. All the petitioners are drawing pension by

virtue of the service rendered by them in either State

Government or aided Colleges/University. Pension is

sanctioned to them and the pension sanctioned to them

is regulated under the provisions contained in Part III

KSR, as provided in Rule 1(a) of Part III KSR. In other

words all of them are governed by Part III KSR, based

on which they continue to draw pension. Chapter VII of
W.P.(C) No.25723/13&CON./CASE

:16:

the KSR deals with re-empoyment of pensioners. Under

Rule 92 of Part III KSR every employee who is re-

employed should be specifically called to the

provisions of this chapter by the authority re-

employing him, and by the Audit Officer whenever he

becomes aware of such an appointment. Rule 92 is

applicable to any pensioner drawing pension under Part

III, irrespective of the post in which one is re-

employed/ appointed after retirement. Rule 100 as it

existed prior to 22.09.2009 reads as follows:

The pay of a re-employed pensioner will be fixed at an
amount equal to the difference between the pay drawn by
him at the time of his retirement and pension and
pension equivalent of other forms of retirement benefits
admissible to him, limited however, to the minimum of
the scale of pay of the post of re-employment, provided
that the pay plus pension and pension equivalent of
other forms of retirement benefits shall not exceed
Rs.3,500. He will also be allowed to draw the full
pension in addition to the pay so fixed but will not be
given temporary or adhoc increase in pension. He will
get the basic pension besides the re-employment pay
fixed under the rule plus full Dearness Allowance on the
re-employment pay. No increment will be earned during
the period of re-employment, except in the case of
military pensioners re-employed in civil posts."

18. After the amendment in 2009, relevant portion

of Rule 100 reads as follows:

The pay of the re-employed State Government employee
whoretired from a post with pay scales currently in force
will be the pay drawn at the time of retirement minus basic
pension. In the case of others the pay drawn at the time of
retirement would updated and fixed at the appropriate stage
W.P.(C) No.25723/13&CON./CASE

:17:

in the scale of pay of the post held at the time of
retirement or the scale of pay of the post of re-employment
as the case may be, if it is a stage.xxxxxRe-employed
pensioners are entitled to the benefit of dearness
allowance, city compensatory allowance, House Rent
Allowance applicable from time to time on the pay before
reducing pension but are not entitled to dearness relief on
pension. They will also be entitled to the benefit of
annual increment with effect from first April 1992. Re-
employed pensioners are not eligible for stagnation
increments."

19. In the case of the petitioners the Regulation

governing them has incorporated the provisions in Rule

100. But even in a case where there was no such

provision under the Kerala Consumer Protection Rules,

this court in the judgment in
Gopinatha Pillai vs.

State of Kerala
: 2004 (3) KLT 290 held that Rule 100

will apply to a pensioner who is re-employed. It was

held that the appointment of a District Judge as

President of the Consumer Disputes Redressal Forum

cannot be said to be not a re-employment.

In
Gopinatha

Pillai
's case a retired District Judge who was

appointed as the President of the Consumer Disputes

Redressal Forum claimed that he is entitled to the pay

attached to the post of President of CDRF, as provided

in the
Consumer Protection Act
and the Rules framed

under it. In the light of the judgment in
M.S.Chawla

and others vs. State of Punjab and another
: 2001 (5)
W.P.(C) No.25723/13&CON./CASE

:18:

SCC 358 this court found that the pay has to be fixed

in accordance with rule 100 of Part III KSR in the case

of any re-employed pensioner.

The judgments in
State of

Kerala vs. Govindankutty
: 1999 (2) KLT 746 and

Govindankutty vs. State of Kerala: 1996 (2) KLT 1007

was held not good law in the light of the judgment in

M.S.Chawla's case. It was held that the provisions

contained in
Consumer Protection Act
or Rules cannot

have any overriding effect over Rule 100 of Part III

KSR, in fixing the pay of re-employed pensioners,

according to which the pay of the re-employed pensioner

has to be fixed at an amount equal to the difference

between the pay drawn by him at the time of his

retirement and pension equivalent of other forms of

retirement benefits admissible to him. Referring to

rule 1 (a) of Chapter I of Part III KSR the Division

Bench observed that pension of all employees to whom

the Kerala Service Rules apply would be regulated by

the provisions in the general rules. Therefore the

authority competent to fix the pay and allowances of

the post to which the pensioner is re-employed has to
W.P.(C) No.25723/13&CON./CASE

:19:

determine whether the pension shall be claimed wholly

or partly and pay would have to be fixed on re-

employment at an amount equal to the difference between

the last pay drawn and pension admissible subject to

the minimum of the scale of pay of the post of re-

employment with a maximum limit of Rs.3500/-. It was

held that though the President of CDRF was appointed

under
Sec.10
of the Consumer Protection Act, he

continued to be a pensioner governed by the Kerala

Service Rules; the contention that
Consumer Protection

Act
is a central enactment and therefore Rule 100 of

Part III KSR could not have overriding power was

repelled. This Court found that as long as the

President of the CDRF continued to be a pensioner

governed by the provisions contained in the KSR his re-

appointment pay would be governed by rule 100 of Part

III KSR and that the provisions of Consumer Protection

Rules would not have any overriding effect in the

matter of pay and allowances.

20. In M.S.Chawla's case the provisions under the

Consumer Protection Act
was considered with reference
W.P.(C) No.25723/13&CON./CASE

:20:

to Punjab Civil Service Rules which contain provisions

in pari materia with those in KSR and the apex court

found that the pension of the superannuated District

Judges were governed by the Punjab Civil Service Rules

which provides for fixation of pay on re-employment. It

was also held that the appointment of a District Judge

after his retirement cannot be said to be not a re-

employment.

21. 10.
In
V.S.Mallimath vs. Union of India and

another
: 2001 (4) SCC 31 the apex court considered the

claim of the retired Chief Justice of this court for

computation of salary in the post of Member of the

National Human Rights Commission, without deduction of

pensionary benefits. But it was found that the pension

received towards the service rendered as Chief Justice

of High Court must be treated as service in connection

with the affairs of the Union and the same was

deductible under Rule 3(b) of National Human Rights

Commission Chairperson and Members (Salaries,

Allowances and other Conditions of Service) Rules,

1993. The writ petition was filed when salary was paid
W.P.(C) No.25723/13&CON./CASE

:21:

to him only after deducting the pensionary benefits. As

per rule 3(b) of the National Human Rights Commission

Chairperson and Members (Salaries, Allowances and other

Conditions of Service) Rules, 1993 a member is eligible

for salary equal to that of a Judge of the Supreme

Court. Under the proviso a member who is in receipt of

pension in respect of any previous service under the

Government of the Union or Government of a State, his

salary shall stand reduced to the extent of the pension

being drawn. Paragraph 4 of the judgment would show

that a contention was raised on behalf of the

petitioner that the petitioner was holding the post of

Chief Justice of the High Court which is a

constitutional post and therefore no deduction can be

made, pointing out that the service rendered as a Chief

Justice cannot be said to be service under the Union or

of a State. But those contentions were not accepted in

view of rule 3 (b) observing that a Judge of a High

Court belonging the third organ of the State, which is

independent of the other two organs namely the

Executive and the Legislature though occupies a unique
W.P.(C) No.25723/13&CON./CASE

:22:

position under the Constitution cannot have any impact

on fixing the pay on his appointment as a member of the

Human Rights Commission and it would not affect the

independence of the judiciary.

It was also observed

that the Comptroller and Auditor-General of India is an

officer under the Union Government, as held in

Gurugobinda Basu vs. Sankari Prasad Ghosal
: 1964 (4)

SCR 311. It was held that the expression Govt.

occurring in rule 3(b) has to be construed in a wider

sense and service rendered by a Judge or Chief Justice

of High Court must be held to be a service in

connection with the affairs of the Union. There also it

was held that in the absence of any definition to re-

employment, it cannot be said that the appointment of

the petitioner as member of the NHRC is not a re-

employment.

22. In the present case, it is true that the

appointment of 50% of the members is to be done from

among those who were in Central Government or

Government of a State. Petitioners are persons who

retired from the service of State Government as well as
W.P.(C) No.25723/13&CON./CASE

:23:

from aided Colleges and University. However all of them

are pensioners and they are drawing pension in

accordance with the provisions contained in Part III

of Kerala Service Rules. Though the conditions of their

service, on appointment as Members of PSC, are governed

by the Regulations, it cannot be said that they are not

drawing pension in terms of the provisions in KSR. As

per Rule 1(a) the pension of all employees to whom KSR

applies are regulated by part III. As per Rule 2(ii) of

Part I KSR, the Rules in KSR apply to every person

employed in whole time service of Government. Though

Rule 3 of Part I KSR excludes the persons for whom

special provision is made governing their conditions of

service, the Regulations, 1957 which govern the service

conditions of petitioners on their appointment as

Members, framed under
Article 318
, incorporate the

provisions in Rule 100 of Part III KSR.

23.
Article 318
confers power on Governor to

regulate the pay and allowances and conditions of

service of the members. No restriction is imposed for

exercising this power. The Regulations 1957 including
W.P.(C) No.25723/13&CON./CASE

:24:

the amendment carried out to it as per Ext.P3 are

issued with due authority. While laying down the

conditions of service provisions are made on par with

rule 100 of Part III KSR, in such a way that the total

amount of pension along with the pay does not exceed

the pay admissible to the members of PSC, by deducting

the pension from the pay admissible under clause (1) of

Regulation 4
. When persons drawing pension are

appointed as members there is nothing wrong in

regulating their pay, as per regulation issued on par

with Rule 100 of part III KSR. Moreover Rule 92 as well

as Rule 100 mandates that the authority appointing a

pensioner on re-employment or the audit officer shall

alert such persons of the rules regarding the pay

admissible to them .

24. When
Article 316
provides for appointment of

half of the members of the Commission from among those

who had 10 years service in State Government or Central

Government, nothing is stated regarding the eligibility

for pay or pension to such 50% of the members.

Therefore as long as there is no dispute as to the
W.P.(C) No.25723/13&CON./CASE

:25:

authority to frame regulations there is nothing illegal

or unconstitutional in regulating the pay of those

drawing pension, by way of Regulations incorporating

the principles underlying Rule 100 of Part III KSR

limiting their total emoluments including pay and

pension to a sum not less than the pay fixed under

Regulation 4(1)
. Such a provision is necessary to see

that there is parity in pay in the case of all the

members appointed from different sources and to avoid

the possible disparity between those appointed from

those with 10 years drawing pension and full pay and

those appointed directly without pension but full pay

only.

25. Though the judgments relied on by the learned

Government Pleader do not relate to appointments after

retirement to constitutional bodies, when the

Regulation 4(2)(ii)
itself is issued incorporating Rule

100, the contention that Rule 100 of part III KSR would

not apply to them is irrelevant. Moreover the ratio of

the judgments in
Gopinatha Pilla
's case, M.S. Chawla's

case, Retd Chief Justice V.S. Malimath's case (supra)
W.P.(C) No.25723/13&CON./CASE

:26:

will apply to the present case on all fours.

26. Though the payment of the salary, allowances

and pension of the members of PSC are to be made from

the consolidated fund of the State Government, under

Article 322
of the Constitution, nothing prevents the

respondents from framing regulations which restricts

the drawing of full salary along with full pension.

Moreover in the light of the dictum laid down in

judgment in
Gurugobinda Basu
's case (supra) reiterated

in V.S. Malimath V Union of India (supra), it cannot

also be said that the petitioners are not governed by

KSR on their appointment after retirement as members of

PSC. The fact that amendment was effected in tune with

the amendment to Rule 100 does not make the provision

unconstitutional in any manner.

27.
In
Confederation of Ex-Servicemen Associations

and others vs. Union of India and others
: 2006 (8) SCC

547, relied on by the learned Government Pleader the

apex court was considering the claim made by ex-

servicemen for medical facilities even after

retirement. The apex court found that classification
W.P.(C) No.25723/13&CON./CASE

:27:

made between in service defence personnel and retired

defence personnel is reasonable. Apex court considered

the contention that the ex-servicemen cannot be

compared with retired Civilian Central Govt. employees.

If certain benefits extended to inservice employees are

not extended to retired employees, it cannot be

successfully contended that there is discrimination or

violation of
Article 14.
In case the classification is

founded on an intelligible differentia which must

distinguish persons or things that are grouped together

and such a differentia has rational nexus to the object

sought to be achieved by the statute or legislation, it

can be said that the classification has fulfilled the

twin test. Therefore it was held that the

classification between defence personnel and other than

defence personnel is also reasonable. The public policy

underlying Rule 100 of Part III KSR as well as

subclause (ii) of Clause (2) of regulation 4 are the

same. It cannot be said to suffer from any

irrationality or unconstitutionality.

28. At the same time it is pertinent to note that
W.P.(C) No.25723/13&CON./CASE

:28:

such restrictions were in force except during the

period from 1998 to 2002. It would also appear that the

appointments of all the petitioners were subsequent to

the amendment in 2002. The issues which arose in WP(C)

No.3081 of 2013 and W.P.(C) No.12560 of 2012 are

entirely different.

In the above circumstances, I am of the view that

the amendment effected in sub clause (ii) of Clause

(2) of
Regulation 4
does not suffer from any

unconstitutionality.

The writ petitions are dismissed.

Sd/-

P.V.ASHA

JUDGE
rkc
W.P.(C) No.25723/13&CON./CASE

:29:

APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1 EXT.P1 COPY OF GO(P).NO.27/2011/GAD
DATED 25.01.2011 ISSUED BY THE IST
RESPONDENT

EXHIBIT P2 EXT.P2 COPY OF GO(P)NO.316/2010/GAD
DATED 14.09.2010 ISSUED BY THE IST
RESPONDENT

EXHIBIT P3 EXT.P3 COPY OF GO(P)NO.185/2013/GAD
DATED 22.06.2013 ISSUED BY THE IST
RESPONDENT

EXHIBIT P4 EXT.P4 COPY OF GO(MS)NO.413/2010/GAD
DATED 27.12.2010 ISSUED BY THE IST
RESPONDENT

EXHIBIT P5 EXT.P5 COPY OF THE PAY SLIP DATED
15.6.2011 OF THE IST PETITIONER

EXHIBIT P6 EXT.P6 COPY OF THE PAY SLIP DATED
3.11.2010 OF THE 2ND PETITIONER

EXHIBIT P7 EXT.P7 COPY OF THE PAY SLIP DATED
13.05.2011 TE 3RD PETITIONER

EXHIBIT P8 EXT.P8 COPY OF THE PAY SLIP DATED
21.3.2011 OF THE 4TH PETITIONER

EXHIBIT P9 EXT.P9 COPY OF THE PAY SLIP DATED
05.09.2013 OF THE 5TH PETITIONER

EXHIBIT P10 EXT.P10 COPY OF THE GO(P).NO.648/98/GD
DATED 15.12.1998

EXHIBIT P11 EXT.P11 COPY OF THE GO(P).345/2002
DATED 23.10.2002

EXHIBIT P12 EXT.P12 COPY OF THE DECISION DATED
26.9.2011 OF THE KERALA PUBLIC SERVICE
W.P.(C) No.25723/13&CON./CASE

:30:

COMMISSION.

EXHIBIT P13 EXT.P13 COPY OF THE REPRESENTATION
DATED 26.09.2011 SUBMITTED BY THE
CHAIRMAN OF THE KERALA PUBLIC SERVICE
COMMISSION TO THE IST RESPONDENT.

EXHIBIT P14 EXT.P14 COPY OF THE REPLY DATED
12.3.2012 ISSUED BY THE IST RESPONDENT
TO THE SECRETARY,KERALA PUBLIC SERVICE
COMMISSION

EXHIBIT P15 EXT.P15 COPY OF THE REPRESENTATION
DATED 16.12.2012 SUBMITTED BY THE
PETITIONERS TO THE FINANCE MINISTER

EXHIBIT P16 EXT.P16 COPY OF THE ADVICE OF THE LAW
SECRETARY DATED 30.11.2012.

EXHIBIT P17 EXT.P17 COPY OF THE ORDER
NO.84594/SPL.E1/2012/GAD DATED 7.8.2013
ISSUED BY THE IST RESPONDENT.

EXHIBIT P18 EXT.P18 COPY OF THE
GO(P)NO.25/2013/H.EDN DATED 31.01.2013.

EXT.P19 COPY OF THE PAY SLIP NO.19/D/MB-62/7183
DT.12.12.13 ISSUED TO THE 1ST
PETITIONER.

EXT.P20 COPY OF THE PAY SLIP NO.19/D/MB-62/7185
DT.12.12.13 ISSUED TO THE 2ND
PETITIONER

EXT.P21 COPY OF THE PAY SLIP NO.19/D/MB-62/7181
DT.12.12.13 ISSUED TO THE 4TH
PETITIONER

EXT.P22 COPY OF THE PAY SLIP NO.19/D/MB-61/7187
DT.12.12.13 ISSUED TO THE 3RD
PETITIONER.

EXT.P23 COPY OF COMMUNICATION VIDE
NO.P7/1011110618/1/979 DT.23.1.14
ISSUED BY THE 3RD RESPONDENT TO THE 1ST
W.P.(C) No.25723/13&CON./CASE

:31:

PETITIONER.

RESPONDENTS'
EXHIBITS

EXT.R1A TRUE COPY OF THE REPLY

NO.74617/SPL.E1/2011/GAD DT.12.3.12

EXT.R1B COPY 0F THE REPLY
NO.84594/SPL.E1/2012/GAD DT.7.8.13

EXT.R1C TRUE COPY OF THE REPLY
NO.67349/SPL.E1/2012/GAD DT.27.9.12