Saji Varghese vs The Secretary To General ...
2021 Latest Caselaw 6818 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

                      WP(C).No.33751 OF 2019(T)


PETITIONER:

               SAJI VARGHESE, AGED 62 YEARS
               W/O. SHAJI K. VARGHESE, RETIRED HEAD MISTRESS,
               M.I.S.M.U.P. SCHOOL, PENGAD KUNDIL PARAMBA,
               KANNAMMANGALAM WEST P. O., (VIA) A. R. NAGAR,
               MALAPPURAM DISTRICT, RESIDING AT THAZHATHU VILLA,
               MALLASSERY P. O., PATHANAMTHITTA - 689 646.

               BY ADVS.
               SRI.K.RAMAKUMAR (SR.)
               SRI.T.RAMPRASAD UNNI
               SRI.S.M.PRASANTH
               SRI.G.RENJITH
               SMT.R.S.ASWINI SANKAR
               SRI.T.H.ARAVIND

RESPONDENTS:

      1        THE SECRETARY TO GENERAL EDUCATION (B) DEPARTMENT
               GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      2        THE PRINCIPAL ACCOUNTANT GENERAL (A AND E),
               KERALA, OFFICE OF THE PRINCIPAL ACCOUNTANT
               GENERAL (A AND E), KERALA,
               THIRUVANANTHAPURAM - 695 001.

      3        THE ASSISTANT EDUCATIONAL OFFICER
               VENGARA, MALAPPURAM - 676 304.


               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
26.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 33751/19
                                       2


                                 JUDGMENT

The petitioner has approached this Court

impugning Ext.P4, which is the order of the

Government declining her pensionary benefits

from 01.06.2013 to 14.01.2019, solely for the

reason that she had delayed submission of her

pension papers until the year 2018, even

though she had retired on 01.06.2013.

2. According to the petitioner,

Government has not considered her claim in its

proper perspective because she was

incapacitated from submitting the pension

papers until the year 2018, since she had been

involved in various litigations from the year

2004 with respect to the rights as a Teacher

in the aided School and that such Writ

Petitions were disposed of by this Court only

on 08.04.2016. She further explains that in

one of the said Writ Petitions, she had to

challenge the punishment of compulsory WPC 33751/19

retirement imposed upon her by the

jurisdictional District Educational Officer

(DEO) on 29.03.2010; and that it was only

after all these Writ Petitions were disposed

of in her favour, could she have submitted the

pension papers.

               3.    The        petitioner            submits                that

      immediately           after      the    afore        judgment           was

      delivered            by   this        Court,     she        made         an

application before the Assistant Educational

Officer (AEO), Vengara, as also the Headmaster

of the School, along with a copy of the said

judgment and that this is evident from Exts.P5

and P6 respectively. She says that, in the

meanwhile, she had submitted the statement of

fixation in the required format on 27.04.2016

and that after her pay was so fixed,

Government issued an order on 18.11.2017, by

which the AEO was directed to pay the salary

and allowances to her. She says that a copy of WPC 33751/19

this order has been produced as Ext.P7 and

that it was only after this order was issued

by the Government, could the final pay and

entitlement of the petitioner become certain

in terms of her service, for drawing the

pensionary benefits.

4. The petitioner says that, however,

when Ext.P7 order was issued by the

Government, there were certain mistakes in it

and therefore, that she had to approach this

Court again, through I.A.No.5/2018 in W.P.

(C)No.26915/2014, which was allowed only on

16.01.2018; consequent to which, Government

issued Ext.P8 order rectifying these mistakes

on 24.02.2018. She asserts that it is only

then that her claims became ascertainable and

properly quantifiable and therefore, that she

submitted her pension papers before the

competent Authority after that. She adds that,

in fact, the Principal Accountant General has, WPC 33751/19

through Ext.P1, fixed her pension from

01.06.2013 to 30.06.2014 at Rs.16,840/-; while

from 01.07.2014 as Rs.33,343/- and therefore,

that the alleged delay in submission of the

pension papers had not caused any

administrative inconvenience for fixing her

pension from the date on which she became

eligible to it.

5. The petitioner alleges that, in spite

of all this, the pension from 01.06.2013 to

14.01.2019 had not been disbursed, thus

constraining her to approach the competent

Authorities, which has now culminated in

Ext.P4 order of the Government. She,

therefore, prays that Ext.P4 be set aside and

the Principal Accountant General be directed

to disburse the eligible pension from

01.06.2013 until 14.01.2019, within a time

frame to be fixed by this Court.

6. In reply to the submissions made on WPC 33751/19

behalf of the petitioner by her learned

counsel - Sri.S.M.Prasanth, the learned Senior

Government Pleader - Sri.P.M.Manoj, submitted

that Ext.P4 has been issued in terms of Rule

120 Part III of the Kerala Service Rules

(KSR), which mandates that if pension is

granted long after an employee had retired,

retrospective effect to it could be given only

after obtaining special orders from the

Government. He submitted that this provision

has been incorporated in the KSR to ensure

that stale claims of pension are not allowed

to be prosecuted; and that as far as this case

is concerned, it is clear that the petitioner

had submitted her pension papers only in the

year 2018, even though she had retired as

early as in the year 2013. He, therefore,

prayed that this Writ Petition be dismissed.

7. The submissions of the learned Senior

Government Pleader as afore clearly show that WPC 33751/19

the stand of the Government is that no special

order can be issued in this case because the

petitioner had unduly delayed submission of

pension papers until 2018 though she had

retired in the year 2013. However, the

explanation offered by the petitioner, which

has been recorded above, in having caused the

delay in submission of the papers, has not

even adverted to by the Government and they

have mechanically entered into a finding that

the delay is unreasonable.

8. This is pertinent because, if, as

stated by the petitioner, she was

incapacitated from submitting pension papers

on account of the various litigations faced by

her, particularly since she was not even sure

if her status as a Teacher could be protected,

until a judgment had been delivered by this

Court. I, therefore, see no valid reason why

the Government should not have considered all WPC 33751/19

these, because, even as per Rule 120 Part III

of the KSR, it alone has the competence to

issue special orders, in cases where pension

is sanctioned long after an employee had

retired, so as to give it retrospective effect

from the date on which it became eligible.

Since Ext.P4 does not look into any of these

aspects in its proper perspective, I am

certain that it cannot find my favour.

In the afore circumstances, I set aside

Ext.P4; with a resultant direction to the

competent Secretary of the Government to

reconsider the claim of the petitioner, taking

note of the circumstances narrated by her and

recorded above and after affording her an

opportunity of being heard - either physically

or through video conferencing - thus

culminating in an appropriate order thereon,

under the provisions of Rule 120 Part III of

the KSR, as expeditiously as is possible, but WPC 33751/19

not later than three months from the date of

receipt of a copy of this judgment.

Needless to say, if, after the afore

exercise, the petitioner is found entitled to

the pension from the date on which she retired

from service, same shall be disbursed without

any avoidable delay, but not later than two

months thereafter.

This writ petition is thus disposed of.

Sd/-

                                      DEVAN RAMACHANDRAN
      RR                                     JUDGE
 WPC 33751/19



                           APPENDIX
      PETITIONER'S/S EXHIBITS:

      EXHIBIT P1        TRUE COPY OF INTIMATION SLIP OF

PENSIONARY BENEFITS DATED 26.4.2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 5.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 17.6.2019 OF THE 3RD RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF ORDER NO.B1/262/19/G.EDN. DATED 29.10.2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF APPLICATION DT.21.4.2016 SUBMITTED BY THE PETITIONER BEFORE AEO, VENGARA

EXHIBIT P6 TRUE COPY OF APPLICATION DT.21.4.2016 SUBMITTED BY THE PETITIONER BEFORE THE HEADMASTER

EXHIBIT P7 TRUE COPY OF G.O.(RT) NO. 4448/2017/ G.EDN DATED 18.11.2017 ISSUED BY THE GOVT.OF KERALA.

EXHIBIT P8 TRUE COPY OF G.O.(RT) NO.850/2018/ G.EDN DATED 24.2.2018 ISSUED BY THE GOVT.OF KERALA.