Kerala High Court
Smt.Rajeswary.K vs State Of Kerala on 14 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 14TH DAY OF JANUARY 2021/24TH POUSHA, 1942
WP(C).No.6746 OF 2019(P)
PETITIONER:
SMT.RAJESWARY.K,
AGED 43 YEARS,
W/O ANIL PRABHA,
KAPPACHERY HOUSE,
PATTUVAM POST, KANNUR,
PRESENTLY RESIDING AT KIZHAKKEPURATH HOUSE,
KORATTY SOUTH P.O.,
ERNAKULAM DISTRICT PIN-680 308
BY ADV. SRI.K.N.CHANDRABABU
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
FINANCE (WELFARE WING), DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE PRINCIPAL SECRETARY,
FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS (C)
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695 001.
3 KERALA STATE CONSUMER REDRESSAL COMMISSION,
THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY AND REGISTRAR,
NCC ROAD, VAZHUTHACAUD,
THIRUVANANTHAPURAM-695 014.
R1-2 BY GOVERNMENT PLEADER SRI. M.R.SABU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-01-2021, ALONG WITH WP(C).12114/2019(L), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.6746 & 12114 of 2019
:2 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 14TH DAY OF JANUARY 2021/24TH POUSHA, 1942
WP(C).No.12114 OF 2019(L)
PETITIONERS:
1 ADV. N.O.INASU,
AGED 58 YEARS,
S/O.N.I.OUSEPH, NADAKAVUKARAN (H),
MAIN ROAD P.O., KURIACHIRA,
THRISSUR-680006.
2 ADV. AJITHAKUMARI C.,
AGED 51 YEARS
W/O.K.RAVI, KRISHNAPADAM,
KAUSTHUPAM LANE, PUTHURKARA,
AIYANTHUR-680003.
3 ADV. P.MURALEEDHARAN,
PURANTHODATH HOUSE, NADAKKATHUZHA P.O.,
BADAGARA (VIA), KOZHIKODE-673104.
4 ADV. JOSEPH MATHEW,
AGED 58 YEARS,
MADAPAM HOUSE, CHENNAD P.O.,
KOTTAYAM DISTRICT-686581.
5 ADV. P.V.PRAKSAN,
AGED 53 YEARS,
JAYA NIVAS, SOUTH PARAVOOR P.O.,
THRIPUNITHURA, ERNAKULAM-682307.
6 ADV. V.P.ASOKAN,
AGED 58 YEARS,
S/O.PADMANABHAN, KUMARAKAM P.O.,
KOTTAYAM-686563.
WP(C) Nos.6746 & 12114 of 2019
:3 :
7 SMT. LIJU B.NAIR,
AGED 49 YEARS,
SREE SHYLAM, A.R.W.A-4, KURIYATHI,
MANACAUD (P.O.), THIRUVANANTHAPURAM-695009.
8 ADV. NINU KUTTIMOOSA,
VELLEPPARAMBIL HOUSE, PANANGAD P.O.,
ERNAKULAM-682506.
9 SHRI. VENUGOPALAN NAIR,
CHAITHRAM, ARALAMMOOD (VIA),
NEYYATTINKARA,
THIRUVANANTHAPURAM-695121.
10 ADV. SOBHA VARGHESE,
AGED 51 YEARS,
CC 1/926 A, KOTTAVALAPPU, KOCHI-682001.
11 ADV. M.S.MARIA JAIN,
AGED 44 YEARS,
W/O.JOLLY JOSEPH, ARAKKAPARAMBIL HOUSE,
CMC 32, CHERTHALA,
ALAPUZHA-688524.
12 ADV. K.LATHA,
AGED 57 YEARS,
W/O.ADV. K.BABU, SHIVA SURYA,
SOUTH GATE, CANAL SIDE,
VAIKOM P.O., KOTTAYAM DISTRICT-686141.
BY ADV. SRI.M.R.NANDAKUMAR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
CIVIL SUPPLIES AND CONSUMER AFFAIRS,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
2 ADDITIONAL CHIEF SECRETARY (FINANCE),
FINANCE (WELFARE WING) DEPARTMENT,
THIRUVANANTHAPURAM.
WP(C) Nos.6746 & 12114 of 2019
:4 :
ADDL. 3 KRISHNA PILLAI.C.K
AGED 64 YEARS,
CHENGAZHASSERIL HOUSE,
THOTTABHAGAM.P.O.,
THIRUVALLA-689541.
ADDL. 4 S. SWARNALATHA,
ADVOCATE, O/O. NEAR TRAFFIC JUNCTION,
PALLAM ROAD, KASARGOD,
TRINITY TOWERS, KASARGOD,
RESIDING AT SHAKTHI MAHAL,
BANK ROAD, KASARGODE.
(ARE IMPLEADED AS PER ORDER DATED 16-10-2020
IN IA 1/2020 IN WP(C) 12114/2019).
R1-2 BY GOVERNMENT PLEADER SRI. M.R.SABU
R3-4 BY ADV. SINDHU SANTHALINGAM
R3-4 BY ADV. SRI.A.D.SHAJAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-01-2021, ALONG WITH WP(C).6746/2019(P), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.6746 & 12114 of 2019
:5 :
JUDGMENT
~~~~~~~~~
Dated this the 14th day of January, 2021
The petitioners in these two writ petitions, who were
members of the District Consumer Disputes Redressal Forum,
seek to command the respondents to grant monthly retirement
benefit to them, taking into account their service as Member of
District Consumer Disputes Redressal Forum.
2. The facts are not in dispute. The petitioner in W.P.
(C) No.6746 of 2019 served as Member, Consumer Disputes
Redressal Forum, Kannur from 22.01.2002 to 11.02.2007.
The petitioners in W.P.(C) No.12114 of 2019 served as
members of various District Consumer Disputes Redressal
Forums for 5 years continuously during various periods
between the years 1991 and 2007.
3. The petitioners were appointed under the
provisions of the Consumer Protection Act, 1986 which came
WP(C) Nos.6746 & 12114 of 2019
into force with effect from 24.12.1986. The petitioners were
paid only honorarium initially. Pursuant to the representations
made from several quarters, the Government issued Ext.P1
(in W.P.(C) No.12114/2019) dated 28.11.2016 granting
pension to the retired members of statutory commissions. By
Ext.P2 letter (in W.P.(C) No.12114/2019), the Additional Chief
Secretary (Finance), Government of Kerala clarified that
District Consumer Disputes Redressal Forums can be treated
as statutory commissions and the benefit of Ext.P1 G.O. can
be extended to them also.
4. Ext.P1 provided that only those members of
statutory commissions appointed on or after 01.012006 and
were not government employees, can be granted retirement
benefits. Ext.P1 was issued in the year 2016. Retrospective
effect was given to Ext.P1, taking into its fold persons who
were appointed on or after 01.01.2006. The petitioners were
appointed prior to 01.01.2006. The petitioners contended that
the qualifications and post held by the petitioners before
01.01.2006 and those who discharged duties after
WP(C) Nos.6746 & 12114 of 2019
01.01.2006, are one and the same. The functions discharged
by the petitioners and those who were appointed after
01.01.2006 were also the same.
5. When the Government has decided to extend the
benefit of Ext.P1 retrospectively to past members also,
prescription of a cut-off date namely 01.01.2006 is highly
arbitrary and without having any nexus with the object sought
to be achieved. Ext.P1 to that extent is liable to be quashed
and the petitioners are entitled to a declaration that they are
also entitled to the benefits provided under Ext.P1.
6. The 2nd respondent-Additional Chief Secretary
(Finance) filed a statement in W.P.(C) No.12114 of 2019
contesting the claims of the petitioners. The 2 nd respondent
took a stand that Ext.P1 Government Order contemplates
introduction of a new Scheme to the members of the statutory
commissions, making them eligible for retirement benefits.
The Government Order explicitly states that the benefits
thereunder will be available only to those persons who are
appointed on or after 01.01.2006.
WP(C) Nos.6746 & 12114 of 2019
7. The cut-off date was fixed taking into account
financial capacity of the Government. Extending the benefit of
Ext.P1 G.O. beyond the period provided in the order would
create huge financial liability and administrative burden to the
State. Members of the District Consumer Disputes Redressal
Forums are not the only beneficiaries of Ext.P1. The Scheme
has to be applied to a number of other commissions also.
8. The 2nd respondent also pointed out that petitioners
took up the assignment knowing that it is a non-pensionable
assignment. The petitioners cannot aspire for a benefit
introduced subsequent to their retirement. The writ petitions
are therefore liable to be dismissed.
9. Two members of District Consumer Disputes
Redressal Forum, who retired prior to 01.01.2006 got
impleaded in W.P.(C) No.12114 of 2019 and supported the
case of the petitioners. They contended that financial
implication cannot be a sole criterion for fixing a cut-off date
and State should act as a model employer. There is no
rationale or justification to confine retirement benefits to one
WP(C) Nos.6746 & 12114 of 2019
category of employees while denying the same to another
batch, on the ground of financial implication.
10. Learned counsel for the petitioners relied on the
judgment of the Constitution Bench of the Hon'ble Apex Court
in D. S. Nakara and others v. Union of India [(1983) 1 SCC
305] to contend that if classification of pensioners has no
nexus with the object sought to be achieved, then it amounts
to differential treatment and discrimination, violative of equal
treatment guaranteed under Article 14 of the Constitution of
India. Relying on the judgment in Union of India v. S. R.
Dhingra and others [(2008) 2 SCC 229], the learned counsel
contended that introduction of benefit retrospectively or
prospectively fixing a cut-off date arbitrarily, dividing a single
homogeneous class of pensioners into two groups and
subjecting them to differential treatment, is discriminatory.
11. The learned counsel for the petitioners placed
reliance on a Division Bench judgment of this Court in
Mohammad Basheer A. v. State of Kerala and others [2015
(1) KLT SN 118] and also on a judgment of this Court in
WP(C) Nos.6746 & 12114 of 2019
Avirah C.A. and others V. Board of Directors of the
Canara Bank and others [2017 (1) KLT SN 18] and argued
that the fixation of cut-off date in the matter of extending the
benefit of pension to former members of District Consumer
Disputes Redressal Forum, is highly illegal and arbitrary,
offending Article 14 of the Constitution of India. The counsel
for the petitioners further pointed out that in the judgment of
the Apex Court in All Manipur Pensioners Association by
its Secretary v. State of Manipur and others [AIR 2019 SC
3338], the Apex Court had categorically held that all the
pensioners form a single class and therefore a classification
for the purpose of grant of pension is unreasonable.
12. The learned Government Pleader, on the other
hand, argued that the Hon'ble Apex Court has held in the
judgment in D. S. Nakara and others (supra) has already
held that when the authorities introduce a new Scheme, they
are entitled to make it prospective and also to prescribe a
cut-off date taking into consideration financial and
administrative limitations and requirements. The judgment of
WP(C) Nos.6746 & 12114 of 2019
the Apex Court in All India Reserve Bank Retired Officers
Association and others v. Union of India and others [1992
Supp (1) SCC 664] has also upheld the rationale for fixing
cut-off date based on relevant considerations. Since Ext.P1
brings into effect a new Scheme, retired members like the
petitioners cannot put up a case based on Article 14 of the
Constitution of India, contended the learned Government
Pleader.
13. I have heard the learned counsel for the petitioners,
learned Government Pleader appearing for the State of Kerala
and the counsel appearing for additional respondents 3 and 4
in W.P.(C) No.12114 of 2019.
14. The question of sustainability of cut-off date in the
matter of extending service benefits including retirement
benefits, has been clearly answered by the Hon'ble Apex
Court in the judgment in D. S. Nakara and others (supra).
The Hon'ble Apex Court held that when an existing Scheme is
modified introducing more benefits, then in such cases, the
new benefits should be made available to all employees
WP(C) Nos.6746 & 12114 of 2019
enjoying the benefit of the Scheme ordinarily. However, when
a new Scheme is introduced, the governmental authorities
have a right to consider various aspects including the financial
burden on the public exchequer and availability of funds and
fix a cut-off date for beneficiaries.
15. The Hon'ble Apex Court considered the issue of
cut-off date again in the judgment in All India Reserve Bank
Retired Officers Association and others (supra). Placing
reliance on the Constitution Bench judgment in D. S. Nakara
and others (supra), the Apex Court held as follows:-
"10. Nakara's judgment (AIR 1983 SC 130)
has itself drawn a distinction between an existing
scheme and a new scheme. Where an existing
scheme is revised or liberalised all those who are
governed by the said scheme must ordinarily receive
the benefit of such revision or liberalisation and if the
State desires to deny it to a group thereof, it must
justify its action on the touchstone of Article 14 and
must show that a certain group is denied the benefit of
revision/liberalisation on sound reason and not entirely
on the whim and caprice of the State. The underlying
principle is that when the State decides to revise and
liberalise an existing pension scheme with a view to
augmenting the social security cover granted to
pensioners, it cannot ordinarily grant the benefit to a
section of the pensioners and deny the same to others
by drawing an artificial cut-off line which cannot be
justified on rational grounds and is wholly unconnected
with the object intended to be achieved. But when an
employer introduces an entirely new scheme which
WP(C) Nos.6746 & 12114 of 2019
has no connection with the existing scheme, different
considerations enter the decision making process.
One such consideration may be the financial
implications of the scheme and the extent of capacity
of the employer to bear the burden. Keeping in view its
capacity to absorb the financial burden that the
scheme would throw, the employer would have to
decide upon the extent of applicability of the scheme.
That is why in Nakara's case this Court drew a
distinction between continuance of an existing scheme
in its liberalised form and introduction of a wholly new
scheme; in the case of the former all the pensioners
had a right to pension on uniform basis and any
division which classified them into two groups by
introducing a cut-off date would ordinarily violate the
principle of equality in treatment unless there is a
strong rationale discernible for so doing and the same
can be supported on the ground that it will subserve
the object sought to be achieved. But in the case of a
new scheme, in respect whereof the retired employees
have no vested right, the employer can restrict the
same to certain class of retirees, having regard to the
fact-situation in which it came to be introduced, the
extent of additional financial burden that it will throw,
the capacity of the employer to bear the same, the
feasibility of extending the scheme to all retirees
regardless of the dates of their retirement, the
availability of records of every retiree, etc. It must be
realised that in the case of an employee governed by
the CPF scheme his relations with the employer come
to an end on his retirement and receipt of the CPF
amount but in the case of an employee governed
under the pension scheme his relations with the
employer merely undergo a change but do not snap
altogether. That is the reason why this Court in
Nakara's case (AIR 1983 SC 130) drew a distinction
between liberalisation of an existing benefit and
introduction of a totally new scheme. In the case of
pensioners it is necessary to revise the pension
periodically as the continuous fall in the rupee value
and the rise in prices of essential commodities
necessitates an adjustment of the pension amount but
that is not the case of employees governed under the
CPF scheme, since they had received the lump sum
WP(C) Nos.6746 & 12114 of 2019
payment which they were at liberty to invest in a
manner that would yield optimum return which would
take care of the inflationary trends. This distinction
between those belonging to the pension scheme and
those belonging to the CPF scheme has been rightly
emphasised by this Court in Krishena's case (AIR
1990 SC 1782) (supra)."
16. Ext.P1 and P2 Government Orders undoubtedly
introduce a new Scheme. In view of the judgments of the
Hon'ble Apex Court, the petitioners, who have retired much
earlier than the introduction of the new Scheme, cannot insist
that they should also be granted the benefit of the new
Scheme. It has to be noted that the petitioners accepted the
assignment to function as members of District Consumer
Disputes Redressal Forum, knowing that their engagement is
not pensionable.
17. The judgment in S. R. Dhingra and others (supra)
cannot help the petitioners because it was a case where there
was an existing Scheme for granting running allowance to the
running staff of railways and when amendments were made
enhancing the percentage of running allowance for the
purpose of computation of pension, the railways fixed the
WP(C) Nos.6746 & 12114 of 2019
cut-off date. The Hon'ble Apex Court held that introduction of
such cut-off date is discriminatory. But, it has to be noted that
in S. R. Dhingra and others (supra), the Hon'ble Apex Court
was dealing with an amendment to an existing Scheme
wherein the cut-off date was introduced. In the case of the
petitioners herein, the claim is for a retrospective operation of
a newly introduced Scheme.
18. The judgment in Mohammad Basheer A. (supra)
of a Division Bench of this Court will not be of any avail to the
petitioners, since the said judgment also was considering
changes in existing scheme/government orders, for the
purpose of counting past service of government employees in
public sector undertakings. In the judgment of this Court in
Avirah C.A. and others (supra), this Court held that there
cannot be a cut-off date to divide a homogenous group. In the
said case, the Management of Canara Bank introduced a
pension scheme for employees who were in service of the
bank on or after 01.01.1986. As regards employees who were
compulsorily retired, the Scheme provided that only
WP(C) Nos.6746 & 12114 of 2019
employees compulsorily retired on or after 01.11.1993 would
be eligible for pension at a rate not less than 2/3 rd. The
petitioner therein was an employee who was compulsorily
retired before 01.11.1993. This Court held that after fixing a
cut-off date 01.01.1986 for introduction of the pension
scheme, the bank authorities were not justified in dividing the
employees who were compulsorily retired before and after
01.11.1993 and it amounts to division of a homogenous
group, which has no rational or nexus with the object sought
to be achieved. It is in such circumstances that this Court
held that the cut-off date of 01.11.1993 is arbitrary and
discriminatory. The said judgment would not be of any help to
the petitioners.
19. The learned counsel for the petitioners further
urged that when Ext.P1 G.O. dated 28.11.2016 has admittedly
given retrospective operation granting pension benefits to
retired Members also, the Government ought not have created
an artificial distinction between Members appointed before
01.01.2006 and Members appointed thereafter for the purpose
WP(C) Nos.6746 & 12114 of 2019
of grant of pension.
20. But, the Hon'ble Apex Court has held in Nakara's
case (supra) and also in All India Reserve Bank Retired
Officers Association and others (supra) that when an
employer introduces an entirely new Scheme which has no
connection with any existing Scheme, different considerations
enter the decision making process and one such
consideration may be the financial implications of the Scheme
and the extent of capacity of the employer to bear the burden.
Therefore, it is evident that when introducing a new Scheme,
the Government is at liberty to fix a cut-off date even if the
new Scheme is made retrospectively operational.
For the aforesaid reasons, this Court finds no
merits in the contentions of the petitioners. These writ
petitions are accordingly dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/11.01.2021
WP(C) Nos.6746 & 12114 of 2019
APPENDIX OF WP(C) 6746/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER OF
APPOINTMENT NO 9072/C1/2001/F.SC & CA
DATED 5.2.2022 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE DATED
9.2.2017 ISSUED BY THE PRESIDENT OF
DISTRICT CONSUMER DISPUTE REDRRESSAL
FORUM AT KANNUR.
EXHIBIT P3 A TRUE COPY OF THE GO(P) NO.175/2016
FIN DATED 28.11.2016 ISSUED BY FINANCE
(WELFARE WING) DEPARTMENT,
THIRUVANANTHAPURAM
EXHIBIT P4 A TRUE COPY OF THE FORWARDING LETTER
NO. A 397/17 DATED 5.4.2017 SENT BY
THE SENIOR SUPERINTENDENT CDRF, KANNUR
TO THE SECRETARY CDRC,
THIRUVANANTHAPURAM
EXHIBIT P5 A TRUE COPY OF THE ORDER NO. F 856/17
DATED 20.4.2018 REJECTING APPLICATION
FILED BY THE PETITIONER
WP(C) Nos.6746 & 12114 of 2019
APPENDIX OF WP(C) 12114/2019
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE GO(P) NO.175/
2016/FIN. DATED 28.11.2016.
EXHIBIT P2 A TRUE COPY OF THE ORDER
NO.WW1/7/2017/FIN DATED 17.03.2017.
RESPONDENTS' EXHIBITS:
EXHIBIT R3(A) A TRUE COPY OF THE ORDER DATED
21/4/21997 ISSUED BY THE SECRETARY TO
GOVERNMENT FOOD AND CIVIL SUPPLIES (C)
DEPARTMENT TO THE 3RD RESPONDENT WAS
APPOINTED AS A MEMBER OF THE CONSUMER
DISPUTES REDRESSAL FORUM,
PATHANAMTHITTA.
EXHIBIT R3(B) A TRUE COPY OF THE ORDER DATED
21/04/1997 ISSUED BY THE SECRETARY TO
GOVERNMENT FOOD AND VICIL SUPPLIES (c)
DEPARTMENT TO THE 4TH RESPONDENT WAS
APPOINTED AS A MEMBER OF THE CONSUMER
DISPUTES REDRESSAL FORUM,
PATHANAMTHITTA.
SR
