Kerala High Court
N.Prakash vs The High Court Of Kerala on 23 August, 2025
WA NO.224/2025 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
SATURDAY, THE 23RD DAY OF AUGUST 2025 / 1ST BHADRA, 1947
WA NO. 224 OF 2025
ARISING OUT OF THE JUDGMENT DATED 22.01.2025 IN WP(C)
NO.42443/2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN THE WRIT PETITION:
N.PRAKASH
AGED 60 YEARS
SON OF LATE A.NARAYANA RAO,
PRAJITH VIHAR, AYINI ROAD,
MARADU P.O., ERNAKULAM, PIN - 682304
BY N.PRAKASH(PARTY-IN-PERSON)
RESPONDENTS/RESPONDENTS:
1 THE HIGH COURT OF KERALA
REPRESENTED BY ITS REGISTRAR GENERAL,
HIGH COURT BUILDINGS, ERNAKULAM, PIN - 682031
2 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME (C) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE PRINCIPAL ACCOUNTANT GENERAL (AUDIT/A&E)
ACCOUNTANT GENERAL'S OFFICE COMPLEX,
CANTONMENT STATION ROAD, STATUE, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695001
BY ADVS.SRI.V.A.MUHAMMED, SC, R1
SRI.SUNIL KUMAR KURIAKOSE, GP, R2
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
23.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA NO.224/2025 2
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JUDGMENT
Syam Kumar V.M., J.
This appeal is filed challenging the judgment dated
22.01.2025 rendered by the learned Single Judge in W.P.(C)
No.42443 of 2024. Appellant was the petitioner in the said Writ
Petition.
2. Appellant, while working as a Private Secretary to a Judge
of this Court, was suspended and later dismissed from service vide
order dated 16.12.2008. On his appeal, the order of dismissal was
modified to an order of compulsory retirement from service vide
order dated 04.06.2009. The order of compulsory retirement was
challenged by him unsuccessfully up to the Hon'ble Supreme Court,
and thereafter, he filed a Review Petition seeking to resurrect the
matter. The said Review Petition was also dismissed by the Division
Bench vide order dated 31.01.2019. After such dismissal of review,
the appellant submitted pension papers on 23.11.2021 for his
pension. The appellant thereafter filed W.P.(C) No.9508 of 2023
praying that he should be entitled to pension and Death cum
Retirement Gratuity from the date of compulsory retirement ie.
04.06.2009 and that his application for pension dated 23.11.2021
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should be treated as one within three years period in as much as the
Review Petition was dismissed by the Division Bench only on
31.01.2019. The said W.P.(C) was disposed of by the Single
Bench vide judgment dated 01.07.2024, directing the respondents to
reconsider the appellant's claim for pension and other reliefs.
Pursuant to the said direction, the Government turned down his plea
vide order dated 18.11.2024 [Ext.P23 in the W.P.(C)] inter alia
holding that as per Rule 120 of the Kerala Service Rules Part III if
the application for pension is made three years after the date of
retirement, the same cannot be given retrospective effect without
special Government orders. Insofar as the appellant had submitted
the pension papers more than a decade after his compulsory
retirement, and since he had failed to provide sufficient reasons for
the delay, his request for pension and DCRG from the date of
compulsory retirement was rejected. W.P.(C) No.42443 of 2024
was filed by the appellant seeking the following prayers:
"i. Issue a writ of certiorari or any other appropriate writs, directions
or orders calling for the records leading upto Exhibit P23 and quash the
same in so far as it denies pension and Death-Cum-Retirement Gratuity to
the petitioner from the date of compulsory retirement i.e.7.4.2006 to the
date of application for pension i.e., 23.11.2021.
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ii. Declare that the petitioner is entitled for pension and Death-
Cum-Retirement Gratuity from the date of compulsory retirement
i.e.7.4.2006 to the date of application for pension i.e.23.11.2021.
iii. Issue a writ of mandamus or any other appropriate writs,
directions or orders commanding the second respondent to pass orders
sanctioning pension and Death-Cum Retirement Gratuity due to the
petitioner from the date of compulsory retirement i.e.7.4.2006, within a
time limit to be fixed by this Hon'ble Court.
iv. Issue a writ of mandamus or any other appropriate writs,
directions or orders commanding the third respondent to calculate
pension and Death-Cum-Retirement Gratuity due to the petitioner from
the date of compulsory retirement i.e.7.4.2006, within a time limit to be
fixed by this Hon'ble Court.
v. Issue such other orders as are deemed fit and proper in the
circumstances of the case. "
3. The learned Single Judge disposed of the Writ Petition
inter alia holding that the pendency of the litigation is not a
consequence which is factored in Rule 120 of the Kerala Service
Rules Part III, and hence the appellant is not entitled to pension from
04.06.2009 till the application is made i.e., on 23.11.2021. The
learned Single Judge, taking note of the fact that by Ext.P10 G.O.,
the appellant had already been granted pension with effect from
23.11.2021, remitted the matter back to the Government for the
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limited purpose of considering whether the appellant can be granted
pension for the period three years before the date of his application
i.e., 23.11.2021 by special sanction by the Government. Aggrieved
by the said judgment of the learned Single Judge, the appellant has
preferred this Writ Appeal.
4. Heard the appellant in person and Sri.V.A.Muhammed,
Advocate, Standing Counsel for the 1st respondent and Sri. Sunil
Kumar Kuriakose, learned Government Pleader for the 2 nd
respondent.
5. The appellant contended that the judgment rendered by the
learned Single Judge is erroneous and had overlooked the
contentions put forth by him in the W.P.(C). The learned Single
Judge had failed to take note that Ext.P23 is arbitrary, illegal and
rendered against the principles of natural justice. He submits that
after the disposal of the Review Petition, vide Ext.P6, no
communication had been issued to him by the 1 st respondent to
submit the pension book. Hence, he had submitted the pension
book and the connected papers on 23.11.2021, which is within three
years from the date on which Ext.P6 order was rendered. The
learned Single Judge ought to have noted that though Ext.P23
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refers to Exts.P7 and P9 which are communications from the
Registrar General of this Court specifically requesting to issue
sanctioning orders taking into consideration the litigations elaborated
therein which were pending till 2019, the 2 nd respondent had
overlooked the same. There has been no discussion on Exts.P7
and P9 in Ext.P23. It is clear from Ext. P9 that the appellant had
submitted pension papers within three years from 31.01.2019 on
which date the Review Petition filed by the appellant was dismissed,
and it is only then that the litigations in the matter had effectively
come to an end. Appellant contends that he can be termed to have
retired only on the culmination of the legal proceedings initiated
challenging the compulsory retirement order, and the said date is
31.01.2019. There is hence no legal basis for the finding that he
failed to provide sufficient reasons for the delay. As regards Rule
120 of the KSR Part III, it is contended that it does not stipulate that
pension papers should be submitted within three years of the order
imposing compulsory retirement when the order of compulsory
retirement was under challenge before the courts. The punishment
of dismissal had been converted into compulsory retirement, and to
deny the claim of pension from the date on which compulsory
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retirement was imposed and sanctioning the pension only from the
date of application for pension amounts to imposition of 'double
jeopardy' as the appellant was challenging the order imposing
compulsory retirement before the competent courts. Since the
matter was subjudice, he could not have applied for pension and
any such application filed by him could have affected the outcome of
the litigation. If the appellant had applied for pension at the relevant
time and if the challenge against compulsory retirement had
succeeded, the whole matter would have had to be reversed. It is
for the said reason that he had chosen not to apply for pension at
that stage and deferred it to the final outcome of the litigation.
Hence, denying pension to the appellant on the ground that he had
not preferred the claim for pension during the pendency of the
litigation cannot be sustained at all. Ext.P23 was rendered
mechanically without proper application of mind. Reliance is placed
on the dictum laid down by the Hon'ble Supreme Court in
D.S.Nakara and others v. Union of India [(1983) 1 SCC 305] :
Sudhir Chandra Sarkar v. Tata Iron and Steel Company Ltd. and
others [(1984) 3 SCC 369) and State of Jharkhand and others v.
Jitendra Kumar Srivastava and another [(2013) 12 SCC 210] to
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buttress his contention that the right to receive pension is a
constitutional right and the same cannot be denied or made
dependent upon the discretion of the employer. Reliance is also
placed on the judgment of this Court in State of Kerala and others
v. Ponnamma Kuriakose [(2017) SCC OnLine Ker 28318] wherein
the application of Rule 120 Part III KSR was considered by this
court when proceedings are pending and it had been held that such
application could have been submitted only after such proceedings
had ended. The same ratio, it is contended, applies to the appellants
case. The appellant thus seeks to set aside the judgment of the
learned Single Judge and to allow the W.P.(C) as prayed for.
6. Per contra the learned Government Pleader as well as the
Standing Counsel appearing for the 1 st respondent made
submissions defending the judgment rendered by the learned Single
Judge and submitted that the appellant is not entitled to any relief
insofar as he had not complied with the mandates of Rule 120 of
KSR Part III. It is submitted that Rule 120 mandates that if the
reasons for delay in submitting the pension are solely on account of
the fault of the petitioner, then the adverse scenario envisaged in the
second limb of Rule 120 of Part III KSR, would come into play.
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Admittedly, the petitioner had submitted the application after a lapse
of 15 years from the date of compulsory retirement. He had been
called upon to submit the application innumerable times, and he had
chosen to ignore the same. The purported reason of pendency of
litigation is not a reason to exclude the mandate in the second limb
of Rule 120. The learned Single Judge has correctly noted the
same. It is thus prayed that the Writ Appeal is devoid of merits and
fit to be dismissed.
7. We have heard both sides in detail and have perused the
contentions put forth. It is noted that the following facts, as reflected
in Exhibit P23, remain undisputed. The appellant had failed to
submit his pension papers in time despite the fact that right from
18.11.2009 he had been called upon to do so. Thereafter, on
17.09.2011 he was requested through registered post to submit the
pension book and connected papers for onward transmission to the
office of the Accountant General. But the appellant neither submitted
the pension papers nor furnished any reply to the letter. The letter
dated 20.07.2018 from the registry after dismissal of the writ appeal
filed by him was also in vain. The appellant had finally chosen to
submit the pension book along with the connected papers only on
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23.11.2021 ie., after a lapse of 15 years from the date of compulsory
retirement. The only reason stated for the delay is the pendency of
the litigation. As rightly pointed out by the learned counsel for the 1st
respondent, the delay on the part of the appellant had led to the
logical consequence of triggering of the special sanction
requirement in Rule 120 of the Kerala Service Rules, Part III. The
Government had accorded sanction to grant pension and DCRJ to
the appellant only from the date of application for pension, and it had
been specifically noted in Exhibit P23 that the High Court had
directed the appellant to submit pension papers as early as
18.11.2009 to no avail. The reasoning that applying for a pension
amid the litigation could have jeopardised his contentions and that if
his challenge had succeeded, the process may have had to be
reversed is devoid of merit. Such contingency, if at all it had arisen,
could have been factored into the decision that would have followed,
and it was not at all the lookout of the appellant. We note that there
has been a total non-compliance with the requirements of Rule 120
of the KSR Part III and the three-year limitation period provided
therein for filing the pension papers from the date of the order of
retirement, which could include the order of compulsory retirement.
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The learned Single Judge had rightly concluded that pendency of
the litigation is not a consequence that is contemplated in Rule 120
of KSR Part III. We find no reason to interfere with the finding of the
learned Single Judge. The impugned judgment does not suffer from
any illegality or perversity. The finding that the appellant is not
entitled to pension from 04.06.2009 till the application was made i.e.,
on 23.11.2021 is valid and proper. Accordingly, the above Writ
Appeal is dismissed. However, the direction of the learned Single
Judge to the State Government to consider whether the appellant
could be granted a pension for the period of three years prior to the
date of his application i.e., 23.11.2021, by special sanction is
retained. The period of one month fixed by the learned Single Judge
in the said respect is re-fixed as one month from the date of receipt
of a copy of the judgment in this Writ Appeal.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
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PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE STATEMENT DATED 7.1.2025
FILED ON BEHALF OF THE RESPONDENT IN THE
CONTEMPT OF COURT CASE, CON.CASE (C)
NO.2920 OF 2024 ON 14.1.2025
Annexure A2 TRUE COPY OF THE REPLY AFFIDAVIT DATED
20.1.2025 FILED BY THE APPELLANT IN
CON.CASE (C)NO.2920 OF 2024 ON 20.1.2025
Annexure A3 TRUE COPY OF THE ORDER DATED 22.1.2025 IN
CON.CASE (C) NO.2920 OF 2024 DATED
22.1.2025
Annexure A4 TRUE COPY OF THE JUDGMENT DATED 21.11.2024
IN W.P.C.NO.24202 OF 2019
Annexure A5 TRUE COPY OF THE JUDGMENT DATED 26.2.2021
IN W.P.C.NO.33751 OF 2019
