Kerala High Court
Anne Thomas vs State Of Kerala on 5 June, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
WP(C) NO. 39511 OF 2017
PETITIONER:
MRS. ANNE THOMAS
SKYLINE CITADEL, APT 5D, K.K.ROAD,KANJIKUZHI,
KOTTAYAM-686 004. (FORMERLY GRADE II PROFESSOR OF ENGLISH,
CMS COLLEGE, KOTTAYAM).
BY ADVS.
SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
SRI.V.ANANDA SHENOY
SRI.K.P.CHANDRASEKHAR
SRI.LUIZ GODWIN D COUTH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 DIRECTOR OF COLLEGIATE EDUCATION
DIRECTORATE OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM - 695 001.
3 THE MAHATMA GANDHI UNIVERSITY
KOTTAYAM, REPRESENTED BY THE REGISTRAR, PIN - 686 002.
4 THE MANAGER
C.M.S. COLLEGE, KOTTAYAM - 686 001.
BY ADV
SRI. ASOK M. CHERIAN, SC, M.G. UNIVERSITY
SRI. SURIN GEORGE IPE, SC,
SRI. V.K. SUNIL, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.39511 OF 2017
2
P.V.KUNHIKRISHNAN, J.
------------------------------------------------
W.P.(C) No.39511 of 2017
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Dated this the 05th day of June, 2024
JUDGMENT
The above writ petition is filed with the following
prayers:
"i) issue a Writ of Certiorari or any other
appropriate Writ, Order or Direction quashing
Exhibits P8 order,
ii) issue a Writ of Mandamus or any other
appropriate Writ, Order or Direction declaring that
the Petitioner is entitled for pensionary benefits for
the service rendered by her for the period from
22.06.1964 to 31.08.1988 with all consequential
benefits including arrears of pension.
iii) to grant such other relief's which this Hon'ble
Court may deem fit and proper in the
circumstances of the case." SIC
WP(C) NO.39511 OF 2017
2. The Petitioner entered the service of the 4 th
Respondent, CMS College Kottayam on 22.06.1964.
While so the Petitioner had availed extra ordinary
leave for five years from 01.09.1983 to 31.08.1988.
After expiry of the above leave the Petitioner had
applied for extension of leave and the same was not
considered. Thereafter Exhibit P1 show cause notice
dated 28.08.1989 was issued by the 4th Respondent
directing her to show cause as to why her service in
the College shall not be terminated w.e.f. 01.09.1988.
It is submitted that, the Management has not
considered the request of the petitioner for
reinstatement and hence, the petitioner was forced to
apply for voluntary retirement. According to the
WP(C) NO.39511 OF 2017
petitioner, she submitted the voluntary retirement
request believing that instead of 20 years of service 19
years 2 months and 9 days would be enough for
pensionary benefits. The Petitioner had submitted
Exhibit P2 representation to the Principal of the CMS
College, Kottayam with a copy to the 4th Respondent
for allowing her to opt for voluntary retirement
beginning from 01.09.1988, is the submission. The
4th respondent had issued Exhibit P3 communication
dated 09.10.1990 terminating her service w.e.f.
01.09.1988. Thereafter the Petitioner who is not
having any pensionary benefits applied for sanction of
compassionate allowance considering her service
rendered for the period of 19 years 2 months and 9
WP(C) NO.39511 OF 2017
days. But, the 1st respondent, Government by Exhibit
P4 letter dated 26.04.2003 informed that the Petitioner
is not eligible for compassionate allowance as she was
terminated from service. Aggrieved by the rejection of
the request of the Petitioner, she had filed Writ
Petition (C) No. 34903 of 2015 before this Court, is the
submission. The same was disposed of by Exhibit P7
Judgment with a direction to the Government to
consider the matter and pass appropriate orders. By
Ext.P8, the 1st respondent rejected the request for
compassionate allowance. The petitioner submitted
that, Ext.P9 is a judgment of the Apex Court that a
resignation of an employee can be treated as voluntary
retirement and eligible for pensionary benefits. The
WP(C) NO.39511 OF 2017
petitioner also relying Ext.P10 judgment, which is an
order of the Central Administrative Tribunal, Lucknow
Bench following the judgment of the Hon'ble Supreme
Court. Therefore, this writ petition is filed challenging
Ext.P8 order.
3. Heard the learned counsel appearing for the
petitioner, the learned Government Pleader and the
learned Standing Counsel appearing for the University.
4. The counsel for the petitioner relied upon
the judgment of this Court in Thankappan Nair v.
State of Kerala [2001(3) KLT 855], in which it is
stated that, the Government servants dismissed for
serious misconduct also eligible for compassionate
allowance. The Division Bench, in the above judgment
WP(C) NO.39511 OF 2017
also stated that Rule 5(a) Part III KSR is not meant for
virtuous persons, but on the contrary, it is meant to
ameliorate the conditions of sinners dismissed from
service. It is of course observed by the Court that
mere fact that the removal was due to a serious
misconduct, would not conclude the issue. Many
other circumstances is relevant in deciding the claim
for compassionate allowance is the findings of the
Division Bench. The Division Bench also observed
that, if an employee has amassed wealth by receiving
bribe, his claim for compassionate allowance can be
justifiably rejected on that ground alone. It is also
observed that the delay is fatal to the grant of reliefs
for the reason that the long delay might have created
WP(C) NO.39511 OF 2017
rights in favour of others and a belated intervention
may result in disturbing them.
5. A perusal of Ext.P8 would show that, the
Government considered all relevant aspects before
rejecting the request of the petitioner. The
Government also considered the financial position,
present income certificate and service verification
report of the petitioner. The Government observed
that the petitioner had been requested to produce the
income certificate twice. But, the communication had
been returned undelivered and the postal department
noted that the addressee is out of India. As a last
attempt to ascertain the financial status, the
Government took up the matter with the District
WP(C) NO.39511 OF 2017
Collector, Kottayam and it has been reported that the
petitioner owned a flat and a fixed deposit of Rs.25
lakhs in Federal Bank in her name. It is also found
that her daughter settled in USA where the petitioner
used to visit regularly. In such circumstances,
Government decided that the petitioner is not eligible
for compassionate allowance as laid down in Rule 5 of
Part III KSR. This Court is not in a position to set
aside the above order passed by the Government. The
compassionate allowance is not a right and the
discretion is given to the Government to sanction the
same. I see no reason to interfere with Ext.P8 order.
Therefore, this writ petition is dismissed.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
WP(C) NO.39511 OF 2017
APPENDIX OF WP(C) 39511/2017
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE LETTER DATED
28.08.1989 WAS ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P2 TRUE COPY OF A REPRESENTATION TO THE
PRINCIPAL OF THE CMS COLLEGE, KOTTAYAM
WITH A COPY TO THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ABOVE COMMUNICATION
DATED 09.10.1990 TO THE PETITIONER BY
THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED
26.04.2003, 1ST RESPONDENT, GOVERNMENT
BY INFORMED THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED
07.10.2012.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED
30.06.2014.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN
W.P[C]NO.34903 OF 2015 DATED 27.06.2016 IN
THE HON'BLE HIGH COURT OF KERALA.
EXHIBIT P8 TRUE COPY OF ORDER
GO(RT.)NO.1495/2017/HEDN, DATED
08.08.2017.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED
12.10.2015 CIVL APPEAL NO.10251 OF 2014 IN
THE HON'BLE APEX COURT.
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 14.09.1998
BY THE HON'BLE CENTRAL ADMINISTRATIVE
TRIBUNAL, LUCKNOW BENCH IN OA NO.353
WP(C) NO.39511 OF 2017
OF 1998.
EXHIBIT P11 TRUE COPY OF CERTIFICATE DATED
08.09.1983.
RESPONDENTS EXHIBITS:NIL
//TRUE COPY//
PA TO JUDGE
