V.Vijayakumar vs State Of Kerala
2022 Latest Caselaw 4804 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
         FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
                         WP(C) NO. 8346 OF 2021
PETITIONERS:

     1     V.VIJAYAKUMAR
           AGED 65 YEARS
           S/O.VELAYUDHAN NADAR, SANKARAMANDIRAM, PUZHIKUNNU,
           INDUSTRIAL ESTATE P.O., THIRUVANANTHAPURAM - 695 019.
     2     ASOKAN K.K.
           AGED 64 YEARS
           S/O.MADHAVAN NAIR, POYILIL HOUSE, ULLIYERI P.O, KOYILANDI
           (VIA), KOZHIKODE - 673 323.
     3     K.NARAYANAN NAIR
           AGED 63 YEARS
           S/O.KESAVA PILLAI, THENNOOR VEEDU, TC 23/192, VALIASALA,
           CHALAI P.O., THIRUVANANTHAPURAM - 695 036.
     4     G.ELSA CHRISTY BAI
           AGED 63 YEARS
           W/O.K.J.VARGHESE, KANJIRATHINGAL, HOUSE NO.16/745,
           AAVANAKILVILA, PALLIMUKKU, PEYAD P.O.,
           THIRUVANANTHAPURAM - 695 573.
     5     S.SANTHAKUMARI
           AGED 63 YEARS
           W/O.P.R.RAJENDRAN, NATH NIVAS, T.C.78/1827, PERUNALLY
           JUNCTION, MUTTATHARA, VALLAKKADAVU P.O.,
           THIRUVANANTHAPURAM - 695 008.
     6     THRESIA J.
           AGED 64 YEARS
           W/O.C.R.RAJAN, THOTTADIVILA VEEDU, KUDAPPANAKUNNU,
           KUDAPPANAKKUNNU P.O.,
           THIRUVANANTHAPURAM - 695 032.
     7     RADHAMMA K.
           AGED 67 YEARS
           W/O.V.SIVAN PILLAI, RADHA SIVA,
           VELLARI PARAMBU, THALAYIL, BALARAMAPURAM,
           THIRUVANNTHAPURAM - 695 501.
     8     THANKAMANI S.
           AGED 61 YEARS
           W/O.V.JOHN WILLIAM, ANEESHN BHAVAN,
           MUKKAMPALA MOODU, NARUVANMMODU P.O.,
           THIRUVANANTHAPURAM - 695 528.
           BY ADVS.
           SRI. K.M.GEORGE
           KUM.CHITHRA P.GEORGE
 W.P.(C)8346 OF 2021
                                       2


RESPONDENTS:

     1       STATE OF KERALA
             REPRESENTED BY THE SPECIAL SECRETARY TO GOVERNMENT, SOCIAL
             JUSTICE (D) DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.
     2       KERALA STATE HANDICAPPED PERSONS WELFARE CORPORATION LTD.
             REPRESENTED BY ITS MANAGING DIRECTOR, POOJAPPURA,
             POOJAPPURA P.O., THIRUVANANTHAPURAM - 695 012.
             BY ADVS.
             SRI. PREMCHAND R. NAIR, SR. GOVERNMENT PLEADER
             SRI.T.K.VIPINDAS - SC FOR R2


      THIS   WRIT     PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
23.03.2022, THE COURT ON 29.04.2022, DELIVERED THE FOLLOWING:
 W.P.(C)8346 OF 2021
                                      3




                               JUDGMENT

Dated this the 29th day of April, 2022

The petitioners are retired employees of the

Kerala State Handicapped Persons Welfare

Corporation Ltd./second respondent. They are

aggrieved by the denial of the monetary benefit of

the revision of pay due to them, based on the

recommendation of the 9th pay revision commission.

The petitioners had voiced their grievance before the

authorities, but failed to evoke any positive action or

elicit a reply. The writ petition is hence filed seeking

the following reliefs;

"(i) Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exhibit-P4 and to quash the same to extent of denying the full monetary benefits of the 9th Pay Revision for the period from 1.7.2009 to 31.03.2012, and to modify the same in order to enjoy the full benefits of the pay Revision;

(ii) Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exhibits-P20(a) and P20(b) and to issue direction to the 1st respondent to take appropriate steps to grant the D.C.R.G. of Rs.7,00,000/-, Terminal Surrender etc. due to the petitioners consequent on the 9th Pay Revision without any further delay; W.P.(C)8346 OF 2021

(iii) Issue a writ of mandamus or other appropriate Writ, Order, or direction compelling the 1st Respondent to sanction 9th Pay revision with full benefits to the Petitioners as granted to the employees of the State Government vide Exhibit-P2, Water Authority vide Exhibit-P5 and autonomous bodies like Universities vide Exhibit-P5(a), without any discrimination;

(iv) Issue a writ of mandamus or appropriate writ or order, sanctioning gratuity of Rs.7,00,000/- (Rupees Seven lakhs) to the Petitioners vide Exhibits-P2 & P3 with interest at 15%;

(v) Issue writ of mandamus or appropriate writ order or direction for taking into consideration the superannuation age of the Petitioners as 58 years, and to sanction Pay Revision benefits including terminal surrender benefits in accordance with that."

2. Dr. K.M. George, learned Counsel appearing

for the petitioners, submitted that as per Article 41

(8) of the Articles of Association of the Corporation,

matters relating to revision of scales of pay and T.A.

of the employees require prior approval of the

Government. As the Special Rules envisaged under

Article 41(9) is yet to be framed, the Kerala Service

Rules, except Part-III (pension), is being followed by

the Corporation. The periodical pay revision of State

Government employees is also made applicable to

the employees of the Corporation. The 9th pay W.P.(C)8346 OF 2021

revision of the State Government employees was

implemented with retrospective effect from

01.07.2009, vide G.O.(P).No.85/2011 dated

26.02.2011. As per paragraph 40 of the

recommendation, in respect of Public Sector

Undertakings, Statutory Corporations/Boards,

Autonomous Bodies and Grant-in-aid Institutions in

which State scale of pay is being granted, formal

approval/sanction of the Government has to be

obtained before extending the new pay scale. The

Board of the second respondent decided to extend

the benefit of the 9th pay revision commission

recommendation to its employees and submitted the

proposal for Government's approval. Government

approved the proposal by Ext.P4, but made the

revision of pay notional from 01.07.2009 to

31.03.2012. As a result, the monetary benefits of the

pay revision is made available to the employees only

with effect from 01.04.2012. Learned Counsel

contended that the decision is patently W.P.(C)8346 OF 2021

discriminatory, since monetary benefit of the pay

revision is extended with effect from 01.07.2009

itself to the employees in State Government service,

Public Sector Undertakings like Kerala Water

Authority and Autonomous Bodies like Universities. It

is submitted that implementation of 9th pay revision

in such arbitrary manner has resulted in huge loss to

the petitioners by way of pay revision arrears,

D.C.R.G. and terminal leave surrender benefit. The

classification is challenged on the ground that it is

not based on any intelligible differential and fails,

when tested on the touchstone of Article 14 of the

Constitution of India. In support of the contention,

reliance is placed on the decisions in State of

Jharkhand and others v. Brahmputra Metallics

Ltd. and others [2021 (1) SCJ 131] and

Kavirajan R and others v. KSBC Ltd. and others

[2020 (2) KLT 1]. Finally it is contended that the

petitioners being disabled employees, the

Government should have considered their grievance W.P.(C)8346 OF 2021

sympathetically.

3. The petitioners are also aggrieved by the

non-payment of D.C.R.G. at the enhanced rate of

Rs.7 lakh, as recommended by the 9 th pay revision

commission. Yet another grievance is that, after

rendering service up to 58 years, the petitioners are

not granted terminal leave surrender encashment for

their service beyond 56 years, on the specious

reasoning that the Government has not approved the

Corporation's request for fixing the age of its

employees as 58 years. The petitioners lament about

the negligible pension paid to them under the

Employees Provident Fund Pension Scheme, even

when the National Pension Scheme is made

applicable for State Government employees. It is

pointed out that, even though the Managing Director

of the Corporation has addressed the Government by

Ext.P20, seeking sanction of funds and approval for

implementing the National Pension Scheme, there

was no positive response from the Government. W.P.(C)8346 OF 2021

Instead, by Ext.P20(a), Government informed the

Corporation that decision with regard to gratuity and

terminal leave surrender of the employees can be

taken only after provisions of the Kerala Service

Rules are made applicable to its employees.

Similarly, through Ext.P20(b) communication, it was

informed that, in the absence of provisions in the

Articles of Association and Memorandum of

Association of the Corporation, with respect to the

benefits like gratuity and leave surrender, a decision

on those aspects can be taken only after the Special

Rules framed by the Corporation is approved.

4. Learned Counsel for the petitioners fairly

brought Exts.P21 and P22 orders issued after filing of

the writ petition, to the notice of this Court. By

Ext.P21, the Government has permitted the

Corporation to disburse gratuity and terminal

surrender to its employees, at the rate at which

those benefits were being granted earlier and by

Ext.P22, the retirement age of the employees is W.P.(C)8346 OF 2021

enhanced to 58 years.

5. Advs. Premchand R Nair, learned Government

Pleader and T. K. Vipindas, learned Standing Counsel

for the second respondent Corporation, refuted the

contentions urged on behalf of the petitioners and

submitted that by Exts.P21 and P22 orders, the

employees' grievance regarding retirement age,

non-disbursal of gratuity and terminal leave

surrender benefits stands allayed. It is contended

that the petitioners cannot allege discrimination in

the matter of implementation of pay revision merely

for the reason that the monetary benefit of pay

revision was granted to Government employees and

employees in certain other sectors. It is argued that

pay revision is a policy decision of the State and an

employee has no legal right to get the pay revision

implemented. In support of the contention, reliance

is placed on the decision in Retired Teachers and

Employees Union and others v. State of Kerala

and others. [ILR 2012 (1) Ker 476]. The decision W.P.(C)8346 OF 2021

in Government of Andhra Pradesh and others v.

N. Subbarayudu and others [2008 (14) SCC

702], is relied on to contend that the fixing of cut

off date is within the domain of the executive

authority and courts should not normally interfere

with such decisions unless the order appears to be

patently discriminatory and arbitrary.

6. The proposition that the justiciability of a

Government decision can be tested on the touchstone

of Article 14 of the Constitution, is well settled. Herein,

the question is whether the decision to implement pay

revision in the second respondent Corporation

notionally from 01.07.2009 to 31.03.2012, while

extending the monetary benefits to Government

employees and employees in other sectors from

01.07.2009 onwards, is so patently discriminatory and

unreasonable that it warrants interference in exercise

of the power of judicial review vested with this Court. It

is settled law that Article 14 would be treated as

violated when equal protection is denied among two W.P.(C)8346 OF 2021

persons belonging to the same class/category. Further,

the person challenging the action of the State as

violative of Article 14, has to convince the Court that

there is no reasonable basis for the differentiation. In

Retired Teacher's and Employees Union (supra),

this Court, after elaborate consideration of the

precedents, held that the decision regarding

implementation of pay revision is in the realm of policy

and the financial implications of the revision and

financial stability of the Government are relevant

factors. As held in N. Subbarayudu (supra), there

may be various considerations in the mind of executive

authorities due to which a particular cut off date has

been fixed. The considerations can be financial,

administrative or other considerations. Courts must

exercise judicial restraint and must ordinarily leave it to

the executive authorities to fix the cut off date. The

Government must be left with some leeway and free

play at the joints in this connection.

7. A conspectus of the precedents shows that it is W.P.(C)8346 OF 2021

for the Government to decide on the cut off date with

respect to the implementation of pay revision, based on

factors like financial implication and financial stability of

the organisation etc. The Government having done so,

it is not for this Court to trench upon the executive

domain and direct such implementation from an

anterior date. The contention regarding unreasonable

classification cannot also be countenanced, since the

petitioners, the State Government employees and the

employees of other sectors, do not form a

homogeneous class.

For the aforementioned reasons, the challenge

raised in the writ petition fails and consequently, the

writ petition is dismissed.

Sd/-

V.G.ARUN

JUDGE NB W.P.(C)8346 OF 2021

APPENDIX OF WP(C) 8346/2021

PETITIONERS' EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED TO THE 1ST PETITIONER BY THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM DATED 22/4/1997. EXHIBIT P1(A) TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 2ND PETITIONER BY THE SOCIAL WELFARE DEPARTMENT DATED 27/07/2010.

EXHIBIT P1(B) TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 3RD PETITIONER BEARING NO.KL TVM LD 4158 DATED 31/12/2005.

EXHIBIT P1(C) TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 4TH PETITIONER BY THE SOCIAL WELFARE DEPARTMENT DATED 7/10/2009.

EXHIBIT P1(D) TRUE COPY OF THE CERTIFICATE ISSUED TO THE 5TH PETITIONER BY THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM DATED 14/11/1994. EXHIBIT P1(E) TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 6TH PETITIONER BY THE SOCIAL WELFARE DEPARTMENT DATED 15/07/2010.

EXHIBIT P1(F) TRUE COPY OF THE CERTIFICATE ISSUED TO THE 7TH PETITIONER BY THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM DATED 28/2/1989. EXHIBIT P1(G) TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 8TH PETITIONER BY THE SOCIAL WELFARE DEPARTMENT DATED 20/09/2010.

EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF G.O.(P) NO.85/2011 DATED 26/2/2011.

EXHIBIT P3 TRUE COPY OF THE G.O.(P) NO.87/2011 DATED 28/2/2011.

EXHIBIT P4 TRUE COPY OF G.O.(MS) NO.13/2017 SJD DATED 29/03/2017.

EXHIBIT P5 TRUE COPY OF G.O.(P) NO.58/2012/FIN DATED 19/01/2012.

EXHIBIT P5(A) TRUE COPY OF G.O.(P) NO.86/2011/FIN. DATED 26/02/2011.

EXHIBIT P6 TRUE COPY OF LETTER NO.375/91/A4/KSHPWC DATED 17/05/2018 ISSUED BY THE 2ND RESPONDENT TO THE 8TH PETITIONER.

EXHIBIT P7 TRUE COPY OF THE TABLE SHOWING THE RETIRAL BENEFITS ENTITLED TO THE PETITIONERS. EXHIBIT P8 TRUE COPY OF G.O.(RT) NO.12/2021/SJD DATED 23/02/2021.

EXHIBIT P9 TRUE PHOTOCOPY OF THE G.O.(P) NO.26/16/WRD DATED 27/09/2016 IN R/O.KERALA STATE WATER AND WASTE AUTHORITY.

EXHIBIT P9(A) TRUE PHOTOCOPY OF THE G.O.(P) NO.11/2016/FIN DATED 21/01/2016, REVISION OF PENSION IN R/O W.P.(C)8346 OF 2021

UNIVERSITIES.

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION OF 1ST THE PETITIONER ADDRESSED TO THE 1ST RESPONDENT, DATED 24/8/2020.

EXHIBIT P10(A) TRUE COPY OF THE REPRESENTATION OF THE 1ST PETITIONER ADDRESSED TO THE 2ND RESPONDENT DATED 24/8/2020.

EXHIBIT P11 TRUE COPY OF THE REPRESENTATION OF THE 2ND PETITIONER ADDRESSED TO THE 1ST RESPONDENT DATED 24/8/2020.

EXHIBIT P11(A) TRUE COPY OF THE REPRESENTATION OF THE 2ND PETITIONER ADDRESSED TO THE 2ND RESPONDENT, DATED 24/8/2020.

EXHIBIT P12 TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 3RD PETITIONER ADDRESSED TO THE 1ST RESPONDENT DATED 24/8/2020.

EXHIBIT P12(A) TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 3RD PETITIONER ADDRESSED TO THE 2ND RESPONDENT, DATED 24/8/2020.

EXHIBIT P13 TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 4TH PETITIONER ADDRESSED TO THE 1ST RESPONDENT, DATED 24/8/2020.

EXHIBIT P13(A) TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 4TH PETITIONER ADDRESSED TO THE 2ND RESPONDENT, DATED 24/8/2020.

EXHIBIT P14 TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 5TH PETITIONER ADDRESSED TO THE 1ST RESPONDENT, DATED 24/8/2020.

EXHIBIT P15 TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 6TH PETITIONER ADDRESSED TO THE 1ST RESPONDENT, DATED 24/8/2020.

EXHIBIT P15(A) TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 6TH PETITIONER ADDRESSED TO THE 2ND RESPONDENT, DATED 24/8/2020.

EXHIBIT P16 TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 7TH PETITIONER ADDRESSED TO THE 1ST RESPONDENT, DATED 24/8/2020.

EXHIBIT P16(A) TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 7TH PETITIONER ADDRESSED TO THE 2ND RESPONDENT, DATED 24/8/2020.

EXHIBIT P17 TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 8TH PETITIONER ADDRESSED TO THE 1ST RESPONDENT, DATED 7/12/2020.

EXHIBIT P17(A) TRUE PHOTOCOPY OF THE REPRESENTATION OF THE 8TH PETITIONER ADDRESSED TO THE 2ND RESPONDENT, DATED 7/12/2020.

EXHIBIT P18 TRUE PHOTOCOPY OF THE CIRCULAR NO.07/2014/FIN DATED 6/02/2014.

EXHIBIT P19 TRUE PHOTOCOPY OF THE G.O.(RT) NO.11/2021/SJD DATED 19/02/2021.

W.P.(C)8346 OF 2021

EXHIBIT P20 TRUE PHOTOCOPY OF THE LETTER NO.10/A1/2015/HPWC DATED 23/06/2015 OF THE 2ND RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P20(A) TRUE PHOTOCOPY OF THE LETTER NO.557/D2/17/SJD DATED 13/05/2019 OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT.

EXHIBIT P20(B) TRUE PHOTOCOPY OF THE LETTER NO.557/D2/17/SJD DATED 09/10/2020 OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT.

EXHIBIT-P21 TRUE PHOTOCOPY OF THE LETTER DATED 21/4/21 ISSUED BY THE GOVERNMENT OF KERALA 2021 EXHIBIT-P22 TRUE PHOTOCOPY OF THE G.O.(Rt) NO.439/2021/S.J.D DATED 25.06.2021

RESPONDENTS' EXHIBITS: NIL

TRUE COPY

P.A. TO JUDGE