Kerala High Court
P. Jameela vs The State Of Kerala on 6 January, 2025
Author: Murali Purushothaman
Bench: Murali Purushothaman
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
WP(C) NO. 40494 OF 2023
PETITIONERS:
1 P. JAMEELA, AGED 69 YEARS
MEMBER(RTD), KERALA PUBLIC SERVICE COMMISSION,
D/O N SREEDHARAN, AGED 69 YEARS
M-10-16 VALIYATHARAYIL INDIRANAGAR,
THIRUVANANTHAPURAM, PIN - 695005
2 DR. GRESAMMA MATHEW, AGED 69 YEARS
MEMBER(RTD), KERALA PUBLIC SERVICE COMMISSION,
D/O MATHEW KANIKATHOTTU(H), VAKASSERIL LANE
ERAYILKADAVU, KOTTAYAM, PIN - 686001
3 DR. K USHA, AGED 68 YEARS
MEMBER(RTD), KERALA PUBLIC SERVICE COMMISSION,
D/O KAMBISSERI KARUNAKARAN KAMBISSERIL,
PRATHEEKSHA NAGAR KOLLAM, PIN - 691004
BY ADVS.
S.PRASANTH (AYYAPPANKAVU)
VARSHA BHASKAR
ANUPAMA SIBI
N.KRISHNA OZHAKKANAT
MALAVIKA K.
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RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL ADMINISTRATION(E),
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY PATTOM PO.,
THIRUVANANTHAPURAM, PIN - 695004
3 THE ACCOUNTANT GENERAL(A&E) KERALA
THIRUVANANTHAPURAM, PIN - 695039
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLYL
HEARD ON 22.11.2024, THE COURT ON 06.01.2025 DELIVERED
THE FOLLOWING:
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JUDGMENT
The petitioners are retired members of the
Kerala Public Service Commission (PSC). The 1 st
petitioner, who retired on 31.03.2010 as Joint
Director of Forensic Science Laboratory under the
Home Department, was appointed as Member of the
PSC as per Ext.P1 Government Order. Vide Ext.P1,
the 2nd petitioner who retired on 31.03.2010 as a
Teacher from BCM College, Kottayam was also
appointed as Member of the PSC. The 3rd petitioner
retired from Sasthamkotta Devaswom Board
College as Associate Professor on 31.03.2010 and
was appointed as the Member of the PSC as per
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Ext.P2 Government Order.
2. The Kerala Public Service Commission
(Composition and Conditions of Service of Members
and Staff) Regulations, 1957 (hereinafter referred
to as 'the Regulations') are framed under Article
318 of the Constitution of India. Regulations 7 and
7A relate to the reckoning of pension for the
Chairman and Members of the PSC. As per the
Regulations, the Chairman or other Member of the
PSC, who, on the date of his entering on duties as
such, was in the service of the Government of
Kerala, shall count his service as Chairman/Member
for pension under the Rules applicable to the
service to which he belonged immediately before
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such appointment. However, at his option, to be
exercised within a period of six months, he would
be entitled to draw his pension and other
retirement benefits under the Rules applicable to
service to which he belonged. As per Clause (3) of
Regulation 7A, the Chairman or other Member of
the Commission, who on the date of his entering on
duties as such was in the service of the Government
of India or the Government of any State other than
the State of Kerala shall from the date of his
appointment be entitled to draw his pension and
other retirement benefits under the Rules
applicable to the service to which he belonged, with
effect from the date of his appointment as Chairman
or other Member. Clause (4) also enables such a
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Chairman or other Member to exercise option
within a period of three months not to draw the
pension and be entitled to count his service for
pension and his pension shall be revised as per the
Rules applicable to the service to which he
belonged immediately before such appointment.
However, the salary shall be reduced by the amount
equivalent to the pension and he shall be entitled to
draw his pension and retirement benefits
separately. Clause (4) of Rule 7A enables the
Chairman or Members to exercise the option, within
a period of three months, not to draw the pension
and to count the service towards pension under the
Rules of his erstwhile appointment.
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3. The Government have amended the
Regulations as per Ext.P7 Order dated 21.08.2017.
As per Clause 7(1) of the amended Regulations, the
Chairman/Member of the PSC shall be given
pension at the rate of 7.5% of the basic pay drawn
for every completed year of service as
Chairman/Member in the Commission subject to a
maximum of 50% of basic pay drawn and Dearness
Allowance at the rate admissible to Central
Government Employees (pre-revised).
4. The petitioners, along with one
K.Premarajan and another person, had earlier
approached this Court by filing WP(C)
No.4203/2015 and this Court, taking note of the
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amended Regulations as well as Ext.P9 judgment
rendered in identical case, directed consideration
of the request of the petitioners for payment of
revised pension vide Ext.P8 judgment. The
Government was also directed to consider whether
a fresh opportunity should be given to the
petitioners to opt in the light of the subsequent
amendment of the Regulations with retrospective
effect from the dates prior to the appointment of
the petitioners.
5. Pursuant to Ext.P8 judgment, the
Government passed Ext.P10 order rejecting the
request of the petitioners relying on the unamended
provisions of Regulation 7A(1) and (2) of the
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Regulations. It is stated therein that since there is
no provision for exercising a re-option and since the
petitioners had already exercised their option, such
request also cannot be considered.
6. One of the petitioners in W.P.(C) No.4203 of
2015 viz., Sri.K.Premarajan, filed W.P.(C) No.28946
of 2020 challenging Ext.P10 order. This Court, by
Ext.P15 judgment, set aside Ext.P10 order and
directed the Government to re-consider the case of
the petitioner for grant of re-option and for drawal
of pension in accordance with the amended
Regulations as has been done in the case of
identically situated persons after following
necessary procedure. This Court, in Ext.P15,
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observed as follows:
"In the result, Ext.P10 order is
set aside. There will be a direction to
the Government to re-consider the
case of the petitioner for grant of the
re-option and for drawl of pension in
accordance with the amended
Regulations as has been done in the
case of identically situated persons as
evident from Exts.P13 and P20
orders, after following necessary
procedure as has been done in those
cases. The 1st respondent shall take
appropriate steps to pass orders in
accordance with law, in the case of
the petitioner as well and after
following all due procedure, taking
note of the orders passed in the case
of identical situated persons.
Appropriate action shall be taken
within a period of three months from
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the date of receipt of a copy of this
judgment."
7. Pursuant to Ext.P15 judgment, the
Government have issued Ext.P16 order, allowing
Sri.K.Premarajan to revise his pension option. The
petitioners state that they are similarly situated like
Sri.K.Premarajan and the benefit granted to him
shall be extended to them also.
8. Heard Sri.Prasanth Sugathan, the learned
counsel for the petitioners, Sri.Antony Mukkath, the
learned Senior Government Pleader and
Sri.P.C.Sasidharan, the learned Standing Counsel
for the 2nd respondent.
9. By Ext.P15 judgment, this Court observed
that when benefits were conferred to identically
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situated persons, there can be no reason to
eliminate other similarly situated persons without
any justification. It was in the said circumstances
that this Court set aside Ext.P10 and directed the
Government to re-consider the case of the
petitioner in W.P.(C)No.28946 of 2020 for grant of
re-option and for drawal of pension in accordance
with the amended Regulations. Pursuant to
Ext.P15, the Government considered the case of the
petitioner therein and granted him the benefit as
per Ext.P16 order after exempting from the
provision of Regulation 7A(2) of the Regulations. It
is stated in Ext.P16 that the decision taken by the
Government therein shall not be treated as a
precedent. If the benefit of re-option of pension can
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be granted to Sri.K.Premarajan, there is no rhyme
or reason for not extending the same to the
petitioners who are similarly situated and who had
approached this Court in W.P.(C) No.4203 of 2015
along with Sri.K.Premarajan seeking for the very
same benefit. While exercising the powers of
exemption from the provisions of Regulation 7A(2),
similarly situated persons cannot be eliminated
without any justification. The discretion of the
Government to grant exemption cannot be
exercised in arbitrary manner. The same would
amount to violation of Articles 14 and 16 of the
Constitution of India.
Accordingly, the writ petition is allowed. There
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will be a direction to the 1st respondent to re-
consider the case of the petitioners for grant of re-
option and for drawal of pension in accordance with
the amended Regulations as has been done in
Ext.P16 order in the case of Sri.K.Premarajan.
Appropriate orders in this regard shall be passed
within a period of two months from the date of
receipt of a copy of this judgment.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB
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APPENDIX
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF G.O.(P) NO. 316/2010/GAD
DATED 14/09/2010 ISSUED BY THE 1ST
RESPONDENT
Exhibit P2 TRUE COPY OF DATED G.O.(P) NO. 27/2011/GAD
DATED 25/01/2011 ISSUED BY THE 1ST
RESPONDENT
Exhibit P3 TRUE COPY OF THE KERALA PUBLIC SERVICE
COMMISSION REGULATIONS 1957 ISSUED BY THE
2ND RESPONDENT
Exhibit P4 TRUE CCOPY OF THE RESOLUTION DATED
08.12.2014 ISSUED BY THE 2ND RESPONDENT
Exhibit P5 TRUE COPY OF THE LETTER TO CHIEF MINISTER
Exhibit P6 TRUE COPY OF GO(MS) NO. 25/2013 DATED 31-
01-2013 ISSUED BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF HIGHER EDUCATION (F)
Exhibit P7 TRUE COPY OF G.O(P) NO. 23/2017/GAD DATED
21-08-2017 ISSUED BY THE PRINCIPAL
SECRETARY TO GOVERNMENT, GENERAL
ADMINISTRATION (SPECIAL -E) DEPARTMENT
Exhibit P8 TRUECOPY OF THE JUDGMENT OF THIS HON'BE
COURT DATED 16-11-2019 IN WP(C) NO.
Exhibit P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT DATED 22-05-2019 IN WP(C)
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Exhibit P10 TRUE COPY OF GO(RT) NO. 76/2020/GAD DATED
04-01-2020 ISSUED BY THE 1ST RESPONDENT
Exhibit P11 TRUE COPY OF LETTER NO.SPL.E1/86/2019/GAD
DATED 22-08-2019 SENT BY THE 1ST
RESPONDENT TO THE 3RD RESPONDENT
Exhibit P12 TRUE COPY OF GO(MS) NO.102/2019/GAD DATED
27-05-2019 ISSUED BY THE 1ST RESPONDENT
Exhibit P13 TRUE COPY OF GO(RT) NO. 6354/2009/GAD
DATED 07-09-2009 ISSUED BY THE 1ST
RESPONDENT
Exhibit P14 TRUE COPY OF GO(MS)NO.103/2019/GAD DATED
28-05-2019 ISSUED BY THE 1ST RESPONDENT
Exhibit P15 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT DATED 06-10-2022 IN WP(C) NO.
Exhibit P16 TRUE COPY OF G.O. (MS) NO. 163/2023/GAD
DATED 13-10-2023 ISSUED BY THE 1ST
RESPONDENT
RESPONDENT EXHIBITS
Exhibit R1(a) TRUE COPY OF THE G.O(MS)NO.88/2021/GAD
DATED 12-02-2021
