Kerala High Court
State Of Kerala vs State Of Kerala on 5 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
OP(KAT).No.126 OF 2020
AGAINST THE ORDER IN OA 2737/2016 DATED 29-08-2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 AND 2 IN OA:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL
SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE COMMISSIONER FOR RURAL DEVELOPMENT,
COMMISSIONERATE OF RURAL DEVELOPMENT, NANTHANCODU,
THIRUVANANTHAPURAM, KERALA-695003.
BY SRI.B.VINOD, SR.GOVERNMENT PLEADER
RESPONDENT/APPLICANT IN OA:
M.PRASANNA KUMARI
(RETIRED BALAWADY AYAH), W/O.NARAYANAN,
RESIDING AT MOTTAMMAL HOUSE, PUTHIYATHERU,
CHIRAKKAL P.O., KANNUR, KERALA-670011.
R1 BY ADV. SRI.GEORGE MECHERIL
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 17-12-2020, THE COURT ON 05-01-2021 DELIVERED THE
FOLLOWING:
OP(KAT) No.126/2020
-:2:-
JUDGMENT
Dated this the 5th day of January, 2021
Shaffique, J.
This OP had been filed by the State of Kerala and the
Commissioner for Rural Development challenging order dated
29/8/2019 in OA No.2737/2016 of the Kerala Administrative
Tribunal, Thiruvananthapuram. By the impugned order, the
Tribunal directed the petitioners herein to pass appropriate orders
to ensure payment of twice the ex gratia pension payable to a
regular employee having 9 years of service along with arrears of
pension, to the applicant who was working as an Aaya in a
Balawadi. She was appointed provisionally on 22/9/1982 for a
period of 179 days. She was sponsored by the employment
exchange. She continued to remain in service provisionally for
more than 24 years. She attained the age of superannuation on
30/4/2007. Claiming pension, she filed WP(C) No. 13669/2007
which was transferred to the Tribunal and renumbered as TA
No.885/2012. Tribunal directed the petitioners to consider the
OP(KAT) No.126/2020
claim of the applicant for pension based on the judgment in
State of Kerala v. M.Daisy (2012 (3) KLT 366). Government
rejected her claim as per order dated 13/4/2016 (Annexure A5)
stating that she was only a provisional employee. The matter
again came up before the Tribunal and the Tribunal having
observed that the Full Bench judgment of this Court in Daisy's
case (supra) holds the field and therefore direction was issued to
the Government to pay her the pension.
2. The learned Senior Government Pleader Sri.B.Vinod
while challenging the impugned order submits that the service
rendered by the applicant was not a pensionable service and
therefore direction to grant ex gratia pension cannot be
sustained. Apparently the applicant as well as the Tribunal had
placed emphasis on the Full Bench judgment in WA No. 631/2009.
The Full Bench having taken note of the Government Order dated
18/9/1999 and the subsequent modifications thereof observed
that the said Government Order cannot be pressed into service
or relied upon to direct the Government to pay ex gratia pension
to the respondent. It is also the finding of the Full Bench that the
respondent was not appointed on a regular basis. Having found
OP(KAT) No.126/2020
so, it was held that she was appointed on a provisional basis on
6/10/1982 after a process of selection through employment
exchange and continued to serve the department without break
and therefore, she cannot be denied the benefit of the judgment
of the learned Single Judge. It was also held that the respondent
was appointed after her name was sponsored by the Employment
Officer, Employment Exchange, Neyyatinkara and she had
undergone a process of selection. She was also qualified to be
appointed as IInd Grade Draftsman. Finally, having found that
there are no provision which enables the respondent to get
pension, for the sole reason that she continued in service until
she attained the age of 55 years, the Full Bench observed that
"the Government should relax the rigor of the rules and sanction
and disburse pension to the petitioner taking cue from the
stipulations in the Ex-gratia Pension Scheme introduced as per
GO(P) No.1851/1999/Fin dated 18/9/1999". Thereafter it is held
as under:-
"We also notice in this context that but for the Ex-gratia
Pension Scheme, even regular employees of the
Government who retire from service on attaining the age of
superannuation, but do not have the minimum qualifying
OP(KAT) No.126/2020
service of ten years, are ineligible for pension. It is to
redress their grievances that the Ex-gratia Pension Scheme
was introduced in the year 1999. In such circumstances as
there is no noticeable difference in the quality and content
of the service rendered by a provisional employee like the
respondent and a regularly appointed II nd Grade Draftsman
and the respondent possessed the qualifications prescribed
for the post, we are of the opinion that the Government
should, in relaxation of the provisions contained in the
Kerala Service Rules, exercising the power conferred on it
under rule 7 of Part II of the Kerala Service Rules and rule
11 of Part III of the Kerala Service Rules, sanction and pay
pension to the respondent. The yardstick adopted by the
Government when it implemented the Ex-gratia Pension
Scheme, to quantify the pension payable to regular
employees who have less than ten years of service, should
in our opinion serve as a guideline for the Government to
fix and pay pension to the respondent, in relaxation of the
rules."
3. Apparently, the judgment of the Full Bench cannot be
treated as a precedent, as it does not lay down any law as such.
The finding of the Full Bench is that she was not eligible for
pension as per the Rules. But taking note of the special
circumstances, direction was issued to pay her double the ex-
gratia pension.
4. In the case on hand, the applicant was working as an
Aaya for 24 years. Even though the Full Bench judgment does not
OP(KAT) No.126/2020
lay down any law as such, taking into consideration the factual
aspects involved in the matter, when such a view had been taken
and the Tribunal thought it fit to extend such benefit to the
respondent herein, we do not think that we will be justified in
interfering with the said order.
OP(KAT) is dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
GOPINATH P.
Rp True Copy JUDGE
PS to Judge
OP(KAT) No.126/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A PHOTOCOPY OF THE O.A.NO.2737/2016
ALONG WITH ANNEXURES.
EXHIBIT P1 (A1) TRUE COPY OF THE ORDER
NO.7180/EB1/05/LSGD DATED 09.12.2005 OF
THE 1ST RESPONDENT.
EXHIBIT P1 (A2) TRUE COPY OF THE G.O.(RT) NO.543/07
DATED 23.02.2007.
EXHIBIT P1 (A3) TRUE COPY OF THE ORDER DATED 27.05.2014
OF THIS HON'BLE COURT IN
T.A.NO.885/2012.
EXHIBIT P1 (A4) TRUE COPY OF THE JUDGMENT DATED
13.04.2012 OF THE HON'BLE HIGH COURT OF
KERALA IN W.A.NO.631/2009.
EXHIBIT P1 (A5) TRUE COPY OF THE GO(RT)
NO.1450/2016/LSGD DATED 13.04.2016 OF
THE 1ST RESPONDENT.
EXHIBIT P2 A PHOTOCOPY OF THE REPLY STATEMENT OF
THE 2ND RESPONDENT.
EXHIBIT P3 A PHOTOCOPY OF THE ORDER DATED
29.08.2019 IN OA NO.2737/2016.
