Kerala High Court
Subha.B vs State Of Kerala on 11 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
OP(KAT).No.2 OF 2021
AGAINST THE ORDER DATED 27.02.2020 IN OA (EKM) 1807/2017 OF
KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM (ADDITIONAL
BENCH, ERNAKULAM)
PETITIONER:
SUBHA.B
AGED 63 YEARS,W/O.P.RAVIKUMAR,
ASSISTANT EXECUTIVE ENGINEER (RETD.),
PERMANENTLY RESIDING AT KALLINGAL HOUSE,
VRA - 182, NEAR TALUK OFFICE,
KOLLAM, PIN 575 018, MOB.99009 28342
BY ADV. SRI.P.T.DINESH
RESPONDENTS:
1 STATE OF KERALA
REP.BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
DEPARTMENT OF WATER RESOURCES, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 PRINCIPAL SECRETARY TO GOVERNMENT
DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
3 THE CHIEF ENGINEER (I AND A)
OFFICE OF THE CHIEF ENGINEER,
IRRIGATION AND ADMINISTRATION,
THIRUVANANTHAPURAM PIN 695 033
4 THE ACCOUNTANT GENERAL ( A AND E)
M.G.ROAD, THIRUVANANTHAPURAM, PIN 695 039
SRI.B.VINOD, SR.GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 11.01.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
OP(KAT)No.2/2021 -2-
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.2 of 2021
--------------------------------------------------
Dated this the 11th day of January, 2021
JUDGMENT
T.R.RAVI, J.
The original petition has been filed challenging the order dated
27.02.2020 in O.A.(Ekm)No.1807/2017 of the Kerala Administrative Tribunal
(hereinafter referred to as 'the Tribunal').
2. The petitioner entered the service of the 1 st respondent in the
Irrigation Department on 17.10.1979, on advice by the Kerala Public Service
Commission. Her probation was declared as satisfactorily completed, on
14.02.1982. As per G.O.(Rt.) No.931/82/PW&E dated 18.06.1982, the 1 st
respondent sanctioned leave without allowance to the petitioner for five years
from 21.05.1982 to 19.05.1987, to take up employment abroad. After
completion of the period of leave, the petitioner rejoined duty on 20.05.1987.
Subsequently, as per G.O.(Rt.)No.1433/89/PW&T dated 05.08.1989, the
petitioner was sanctioned leave without allowance for five years from
19.05.1988 to 18.05.1993, to join her husband abroad and for taking up
employment abroad. Thereafter, by G.O.(Rt.)No.32/94/Irrn. dated
11.01.1994, the 1st respondent again sanctioned leave without allowance for
five years in continuation of the leave already granted, i.e., from 19.05.1993 to
18.05.1998, which was again followed by sanction for leave without allowance
for the period from 20.05.1998 to 19.05.2003. The petitioner rejoined duty
on 01.10.2002, after obtaining permission to cancel the unavailed portion of
leave. Thereafter, as per G.O.(Rt.)No.318/06/WRD dated 06.03.2006, the
petitioner was sanctioned leave without allowance for a further period of 7
months and 21 days for joining her family abroad. It would appear that the
petitioner had sought for a posting after the period of leave, on 26.10.2006,
but she was issued a posting order only on 16.12.2006, by which time, she
submits that she had returned abroad. Even though show cause notice was
issued to her, since she had not accepted the posting orders, the petitioner
submits that as per G.O.(Rt.)No.425/2015/WRD dated 01.06.2015, the 1 st
respondent decided to drop the disciplinary action initiated against her.
3. Coming to the real issue involved in the writ petition, through
letter No.A2/15149/2012, dated 14.10.2014, the 3rd respondent had informed
the petitioner that she is not eligible for statutory pension, since she had only
7 years of qualifying service. The petitioner claims that she has a total service
of 7 years, 9 months, and 26 days in the Department and that she would be
entitled to receive ex-gratia pension as envisaged in G.O.(P)No.1851/99/Fin.
dated 18.09.1999, which has been produced as Annexure A10 in the original
application. As per clause 1 of Annexure A10, the ex-gratia pension scheme is
available to persons who retire from service on superannuation without the
minimum qualifying service. However, the scheme specifically provides that
those persons who fail to attain the minimum qualifying service and lose their
pension, on account of availing leave without allowance under Appendix XII A
and XII C of Kerala Service Rules, will not be eligible for ex-gratia pension.
According to the petitioner, by the mere fact that she had availed leave
without allowance, which was duly sanctioned by the 1 st respondent, she has
been denied the benefit of both the statutory pension as well as the ex-gratia
pension. The petitioner had approached the respondents seeking the benefit
of ex-gratia pension, but the same was rejected. It is in these circumstances
that the petitioner has filed O.A.(Ekm)No.1807 of 2017 before the Tribunal
praying for a declaration that the service rendered by her is liable to be
reckoned as qualifying service for ex-gratia pension, to declare that persons
who lost their eligibility on account of availing leave without allowance will
also be eligible for ex-gratia pension and other consequential reliefs.
4. The Tribunal has, by a detailed order dated 27.02.2020,
dismissed the original application. This original petition is filed by the
petitioner (applicant before the Tribunal) being aggrieved by the above-said
order.
5. Heard Sri P.T.Dinesh on behalf of the petitioner and Sri B.Vinod,
learned Senior Government Pleader on behalf of the respondents.
6. The counsel for the petitioner reiterated the contentions which
were taken before the Tribunal and submitted that the petitioner is being
vexed twice for the same reason of availing leave without allowance, i.e., by
denial of statutory pension and by denial of ex-gratia pension. The learned
Senior Government Pleader on the other hand submits that ex-gratia pension
is paid under a scheme which had been introduced to give some benefits to
persons who fail to complete the required qualifying service to draw a
minimum pension. He submits that the intention behind the scheme was
only to grant some benefits to persons who lose their eligibility for want of the
required qualifying service, not for reasons attributable to them. It is
submitted that the very reason for excluding persons who fail to put in the
qualifying service solely for the reason of availing leave without allowance, is
that such persons had failed to render the qualifying service on their own
volition. He further submits that the dictum laid down in the decision of the
Full Bench of this Court in State of Kerala and others v. V.J.Philomina
reported in [2008 (1) KLT 666], which says that when a scheme granting
financial benefits specifically excluded some persons from its purview, there
cannot be a different interpretation to include such persons also, will apply in
the case of the petitioner. The Tribunal has in its order relied on its order in
O.A.No.2503 of 2018 dated 02.12.2019, wherein it had considered the claim
of ex-gratia pension by persons similarly situated to the petitioner and
rejected the claim relying on the above said Full Bench decision. The order
referred to by the Tribunal has been produced as Ext.P2 in this original
petition. We are in complete agreement with the reasoning adopted in the
order dated 27.02.2020 of the Tribunal. As held by the Full Bench, the Ex-
gratia pension is a benefit granted on the basis of a specific scheme and any
relief under the scheme can be granted only within the four corners of the
scheme. This court in exercise of its extraordinary jurisdiction under Article
226 and 227 cannot expand the scope of the scheme or re-write the scheme.
7. In the above circumstances, we find that no legal grounds have
been made out warranting interference with the order dated 27.02.2020 in
O.A.(Ekm)No.1807/2017 of the Tribunal and the original petition is liable to
be dismissed.
The original petition hence stands dismissed. In the circumstances of
the case, there will be no order as to costs.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R. RAVI, JUDGE
dsn
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 27.2.2020 IN O.A.
(EKM) N0.1807/2017 BY THE KERALA
ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM,
(ADDITIONAL BENCH, ERNAKULAM)
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 2.12.2019 IN OA
NO.2503/2018 BY THE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
EXHIBIT P3 TRUE COPY OF THE ORIGINAL APPLICATION (O.A).
(EKM.NO.1807/2017) FILED BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM
(ADDITIONAL BENCH, ERNAKULAM)
ANNEXURE A1 IN TRUE COPY OF THE G.O.(RT) NO.931/82/PW&E DATED
EXT.P3 18.6.1982 BY THE GOVERNMENT OF KERALA, PUBLIC
WORKS AND ELECTRICITY (A) DEPARTMENT
ANNEXURE A2 IN TRUE COPY OF THE G.O.(RT) NO.1433/89/PW&T
EXT.P3 DATED 5.8.1989 BY THE GOVERNMENT OF KERALA,
PUBLIC WORKS AND TRANSPORT (A) DEPARTMENT
ANNEXURE A3 IN TRUE COPY OF OF THE G.O.(RT) NO.1636/98/IRRN.
EXT.P3 DATED 10.12.1998 BY THE GOVERNMENT OF KERALA,
IRRIGATION (A) DEPARTMENT
ANNEXURE A5 IN TRUE COPY OF THE G.O.(RT) NO.823/02/WRD DATED
EXT. P3 23.9.2002, THE GOVERNMENT OF KERALA, WATER
RESOURCES (A) DEPARTMENT
ANNEXURE A6 IN TRUE COPY OF THE G.O.(RT) NO.318/06/WRD DATED
EXT.P3 6.3.2006, THE GOVERNMENT OF KERALA, WATER
RESOURCES (A) DEPARTMENT.
ANNEXURE A7 IN TRUE COPY OF THE SHOW CAUSE NOTICE
EXT.P3 NO.13990/G2/07/WRD DATED 1.3.2012 BY THE
PRINCIPAL SECRETARY TO GOVERNMENT, WATER
RESOURCES DEPARTMENT
ANNEXURE A8 IN TRUE COPY OF THE REPLY DATED 14.5.2012
EXT.P3 SUBMITTED BY THE APPLICANT
ANNEXURE A9 IN TRUE COPY OF THE G.O.(RT) NO.425/2015/WRD
EXT.P3 DATED 1.6.2015 BY THE GOVERNMENT OF KERALA,
WATER RESOURCES (GROUND WATER) DEPARTMENT
ANNEXURE A10 IN TRUE COPY OF THE G.O.(P) 1851/99/FIN. DATED
EXT.P3 18.9.1999 BY THE GOVERNMENT OF KERALA, FINANCE
(PAY REVISION IMPLEMENTATION) DEPARTMENT
ANNEXURE A11 IN TRUE COPY OF THE G.O.(P) 87/2011/FIN. DATED
EXT.P3 28.2.2011 BY THE FINANCE (PENSION-B)
DEPARTMENT, GOVERNMENT OF KERALA
ANNEXURE A12 IN TRUE COPY OF THE REPRESENTATION DATED 5.1.2017
EXT.P3 SUBMITTED BY THE APPLICANT TO THE PRINCIPAL
SECRETARY TO GOVERNMENT ON 5.1.2017
ANNEXURE A13 IN TRUE COPY OF THE ORDER NO.102/A1/21017/
EXT.P3 JA.VI.VA DATED 2.6.2017 BY THE UNDER SECRETARY
OF WATER RESOURCES (A) DEPARTMENT FOR THE
ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
ANNEXURE A14 IN TRUE COPY OF THE G.O.(P) NO.190/16/FIN. DATED
EXT.P3 26.12.2016 BY THE ADDITIONAL CHIEF SECRETARY,
THE FINANCE (B) DEPARTMENT, GOVERNMENT OF
KEARLA
EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT DATED
26.11.2019 FILED ON BEHALF OF THE 1ST
RESPONDENT BEFORE THE KERALA ADMINISTRATIVE
TRIBUNAL AT THIRUVANANTHAPURAM (ADDITIONAL
BENCH, ERNAKULAM)
EXHIBIT P5 TRUE COPY OF THE REJOINDER DATED 16.2.2020
FILED BEFORE THE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM (ERNAKULAM BENCH)
