Kerala High Court
Shaju K K vs The Assistant Engineer on 23 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
R.P. No.727 of 2024
in
Writ Appeal No.2103 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
RP NO. 727 OF 2024
AGAINST THE JUDGMENT DATED 12/01/2024 IN WA NO.2103
OF 2019 OF HIGH COURT OF KERALA
REVIEW PETITIONER(S)/1ST RESPONDENT IN WA/PETITIONER IN WP
SHAJU K K
AGED 53 YEARS,
ASSISTANT ENGINEER,
KSEB, S/O KOCHAPPAN,
KALLELY HOUSE, NALLAYAM,
KOZHIKODU DIST, PIN - 673004
BY ADVS.
A.MUHAMMED HASHIM
P.ALI
RESPONDENT(S)/RESPONDENTS/APPELLANTS 1 TO 3 IN WA AND 2ND
AND 3RD RESPONDENTS IN WA & RESPONDENTS IN WRIT PETITION:
1 THE ASSISTANT ENGINEER
100 KV SUB DIVISION,
KSEB LTD, EDAPPAL KALADY P.O,
MALAPPURAM DIST, PIN - 679582
2 THE CHIEF ENGINEER
KSEB, VYDHYUDHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM, PIN - 695004
R.P. No.727 of 2024
in
Writ Appeal No.2103 of 2019
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3 THE KERALA STATE ELECTRICITY BOARD LTD,
REPRESENTED BY ITS SECRETARY,
VYDHYUDHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM, PIN - 695004
4 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
5 THE DIVISIONAL OFFICER
SOUTHERN RAILWAY,
PALAKKAD, PIN - 678001
BY ADVS.
JOSEPH ANTONY C
RAJU JOSEPH (SR.)(R-191)
SRI.B.PRAMOD SC
SRI.T.K.VIPINDAS -SR G.P.
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
04.10.2024, THE COURT ON 23.10.2024 DAY DELIVERED THE
FOLLOWING:
R.P. No.727 of 2024
in
Writ Appeal No.2103 of 2019
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AMIT RAWAL & C.S.SUDHA, JJ.
---------------------------------------------
R.P. No.727 of 2024
in
Writ Appeal No.2103 of 2019
---------------------------------------------
Dated this the 23rd day of October 2024
ORDER
C.S.Sudha, J.
This review petition has been filed by the first respondent
in Writ Appeal No.2103/2019 for reviewing the judgment dated
12/01/2024 by which the writ appeal was allowed and the writ
petition filed by the petitioner was dismissed. The parties will be
referred to as described in the writ petition.
2. The writ petition was filed by the petitioner
challenging Ext.P3 order by which the request of the petitioner to
reckon his previous service for the purpose of pension and
pensionary benefits was rejected. The fourth respondent, KSEB
filed counter affidavit contending that there was no reciprocal
agreement between the KSEB and the PWD/Industrial Training
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Department/Indian Railways for sharing pension liabilities based
on the prior service rendered by the employees in those
organizations and as reciprocal arrangements for sharing pension
liabilities between these organizations is a prerequisite for
counting prior service of its employees for pension, the KSEB did
not reckon the prior service rendered by the petitioner. Moreover,
proviso to Rule 20 Part III KSR states that past service put in by
Government employees and Aided School/College Teachers in
Panchayath/Municipal Common Service and Universities prior to
their entry in State Government Service or Aided School/College
Service shall be reckoned as qualifying service for pension and
DCRG from Government. However, the Note to the aforesaid
Rule specifically stipulates that the provision shall not be
applicable to appointments to or from Public Sector undertakings,
or similar bodies, as they are constituted under the Companies Act
or by separate legislations of the Central/State Government.
Accordingly, by virtue of its rule making power, the KSEB
decided not to count the service of employees rendered by them
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prior to joining the service of the KSEB with effect from
01/07/2003 as per Clause 14 of the Long Term Settlement - 2007
(LTS). The KSEB therefore contended that the petitioner was not
entitled to the relief prayer for.
3. The learned counsel for the petitioner relying on
the dictums in D.S.Nakara v. Union of India, (1983) 1 Supreme
Court Cases 305; Abdul Jabbar v. K.S.E.B., 2010(1) KLT 586
and All Manipur Pensioners Assn. v. State of Manipur, (2020)
14 Supreme Court Cases 625 submitted that the impugned
judgment in the light of the said dictums is wrong and hence
requires to be reviewed.
3.1. Per contra, it was submitted by the learned
Senior Counsel appearing for the KSEB that the facts in the said
decisions are different and therefore the dictums cannot be applied
to the case on hand.
4. In Abdul Jabbar (Supra), the question that
arose for consideration was whether a teacher of an aided school,
who later joined the KSEB could count his past service in the
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school as teacher, for the purpose of pensionary benefits, on his
retirement from the KSEB. The appellant in the said case had
joined KSEB on 01/07/1977 and retired from service on
31/10/2004. The Division Bench held that in the light of Rule
14E of the Kerala Service Rules (KSR) and as provisions of the
KSR has been adopted by the KSEB, the KSEB was bound to
reckon the past service of the appellant for the purpose of
pensionary benefits. This dictum is apparently not applicable to
the case on hand because unlike in the case of the petitioner
herein, the past service of teachers in aided schools has not been
exempted from the Note to Rule 20 Part II KSR.
4.1. In All Manipur Pensioners Assn. (Supra), the
issue before the Apex Court was whether the State Government
was justified in creating two classes of pensioners, namely, pre-
1996 retirees and post-1996 retirees for the purpose of revised
pension. The State Government considering the increase in the
cost of living, enhanced/revised the pension of its employees with
effect from 01/01/1996. However, this revision in pension was
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done differently for employees who retired prior to 01/01/1996
and for employees who retired after 01/01/1996. Consequently,
the State provided a lower percentage of increase to those who
retired before 1996 and a higher percentage of increase to those
who retired post 1996. The classification was sought to be
justified by the State solely on the ground of financial constraint.
It was noticed that as per the relevant Rules applicable, employees
subject to completing the qualifying service, retiring in
accordance with pension rules were entitled to pension.
Therefore, all pensioners form only one homogeneous class and
so relying on D.S.Nakara (Supra) it was held that the
classification had no reasonable nexus to the objective sought to
be achieved while revising the pension. All the pensioners form a
single class and therefore such a classification for the purpose of
grant of revised pension was unreasonable, arbitrary,
discriminatory and violative of Article 14. It was further held that
the State could not arbitrarily pick and choose from amongst
similarly situated persons, a cut-off date for extension of benefits
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especially pensionary benefits. However, it has also been held
that whenever a new benefit is granted and/or new scheme is
introduced, it would be possible for the State to provide a cut-off
date taking into consideration its financial resources.
4.2. The aforesaid dictum is also not applicable to
the facts of the case on hand because the petitioner was found not
entitled to count his past service for pension based on the Note to
Rule 20 KSR. By incorporating the Note to the proviso to Rule
20, past service in certain specified sectors were exempted from
the rigour of Rule 20. The last part of the Note to the proviso only
clarifies that the past service in public sector undertakings and
autonomous or similar bodies will not be reckoned as qualifying
service, on the appointment of employees from those sectors in
Government service. No right has been granted under Rule 20 to
Government employees having prior service in public sector
undertakings and autonomous or similar bodies, and so by
incorporating the Note no right or benefit has been taken away.
Therefore, there is no discrimination or classification created
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among similar situated persons.
4.3. In D.S.Nakara (Supra), it has been held that all
pensioners have equal right to receive the benefits of liberalised
Pension Scheme. Pensioners form a class as a whole and cannot
be micro-classified by an arbitrary, unprincipled and unreasonable
eligibility criterion for the purpose of grant of revised pension.
Criterion of date of enforcement of the revised pension scheme
entitling benefits of the revision to those retiring after that date
while depriving the benefits of those retiring prior to the date was
held violative of Article 14 of the Constitution.
5. We also refer to the decisions cited on behalf of
the KSEB. In Krishena Kumar v. Union Of India, 1990 KHC
891: (1990) 4 SCC 207 a Constitution Bench of the Apex Court
held that option given to the railway employees covered by the
Provident Fund Scheme to switch over to the pension scheme
with effect from specified cut off date would not be violative of
Article 14 of the Constitution of India. It was further held that in
D.S.Nakara (Supra), the Apex Court was never required to be
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decide whether all the retirees formed a class and whether a
further classification among them was permissible. Specified date
was fixed in relation to the reason for giving the option and only
employees who retired after the specified date and before and
after the date of the notification were made eligible. It was held
that there was no discrimination and the question of striking down
or reading down the clause giving option did not arise in the case.
6. In Indian Ex-Services League v. Union of
India (UOI), 1991 KHC 921: (1991) 2 SCC 104 another
Constitution Bench of the Apex Court held after referring to
D.S.Nakara (Supra), and Krishena Kumar (Supra) that in
D.S.Nakara (Supra) it was never required to be decided that all
retirees for all purposes formed one class and no further
classification was permissible. It was held that the decision in
D.S.Nakara (Supra) has only limited application and that there is
no scope for enlarging the ambit of that decision to cover all
claims made by the pensioners or a demand for an identical
amount of pension to every retiree for the same rank irrespective
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of the date of retirement, even though the reckonable emoluments
for the purpose of computation of pension be different.
7. Therefore, it can be seen that none of the
dictums cited by the review petitioner are applicable to the facts
of the present case. Moreover, Rule 20 or the Note thereto has not
been challenged by the petitioner. As long as the same continues
in the Statute book, the same will be applicable to the petitioner.
The decision relied by the learned Single Judge, that is,
Mohammed Basheer A. v. State of Kerala, 2014 (4) KHC 658
(DB) which was relied on for dismissing the writ petition was
thereafter over ruled by a Full Bench of this Court in Jayakumar
S. v. State of Kerala, 2021 (5) KHC 157. We followed the
dictum of the Full Bench.
8. Further, an order/judgment can be reviewed by a
Court only on the grounds mentioned in Order XLVII Rule 1
C.P.C. The powers of review cannot be exercised as an inherent
power nor can an appellate power be exercised in the guise of
power of review. [Shri Ram Sahu v. Vinod Kumar Rawat,
in
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(2021) 13 SCC 1].
The review petition is liable to be dismissed and hence
we do so.
Interlocutory application, if any pending, shall stand
closed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
C.S.SUDHA
JUDGE
Jms
in
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PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE DISCHARGE SUMMARY
DATED 12.01.2024
Annexure A2 TRUE COPY OF THE ORDER OF THE 3RD
RESPONDENT DATED 25.05.2018
Annexure A3 TRUE COPY OF THE RECEIPT OF AMOUNT
DATED 03.04.2020
