The Tribunal upheld the pension entitlement from 2007, rejecting the State's argument under Rule 120 Kerala Service Rules. The court held no special circumstances justified delayed sanction from 2015 and the Tribunal was justified in allowing the appeal.
The Original Petition filed by the State was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 16TH DAY OF AUGUST 2017/25TH SRAVANA, 1939
OP(KAT).No. 282 of 2017 ()
OA (EKM) 881/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/RESPONDENTS IN O.A.::
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1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 KERALA.
2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695001,KERALA.
3. THE DISTRICT MEDICAL OFFICER(H), DISTRICT MEDICAL OFFICE (H), PATHANAMTHITTA -6789645 KERALA.
4. THE MEDICAL OFFICER IN CHARGE, PRIMARY HEALTH CENTRE,VALLANA-689104,KERALA.
5. ASSISTANT ACCOUNTANT OFFICER, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA,THIRUVANANTHAPURAM-695001,KERALA.
BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH
RESPONDENT/APPLICANT IN O.A.:
--------------------------PONNAMMA KURIAKOSE,AGED 61 YEARS, W/O.VARGHESE THOMAS,KOODATIL HOUSE, PERISSERY.P.O,CHENGANNUR,KERALA-689121.
BY SMT.R.RANJINI
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 16-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(KAT).No. 282 of 2017 ()
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: PHOTOCOPY OF THE O.A.881/15 ALONG WITH ANNEXURES EXHIBIT P2: PHOTOCOPY OF THE MISCELLANEOUS APPLICATION TO ACCEPT MORE DOCUMENT ALONG WITH ANNEXURE EXHIBIT P3: PHOTOCOPY OF THE REPLY STATEMENT OF THE 3RD RESPONDENT IN O.A.ALONG WITH ANNEXURES. EXHIBIT P4: PHOTOCOPY OF THE MISCELLANEOUS APPLICATION TO ACCEPT MORE DOCUMENTS ALONG WITH ANNEXURES EXHIBIT P5: PHOTOCOPY OF THE ORDER DATED 13.07.2016 IN O.A.(EKM)NO.881/2015. RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
P.R.RAMACHANDRA MENON & SHIRCY V., JJ
......................................... O.P.(KAT)NO.282 OF 2017
Dated this the 16th day of August, 2017
J U D G M E N T
P.R.RAMACHANDRA MENON, J
Correctness and sustainability of Ext.P5 order passed by the Tribunal directing payment of pension in respect of the qualifying service of more than 13 years of service rendered as Pharmacist, with effect from the date of superannuation in the year 30.11.2007, after setting aside the order passed by the Accountant General ordering the same to be given only w.e.f. 28.05.2015, is under challenge at the instance of the State/Department.
O.P.(KAT)NO.282 OF 2017 2
about 13 years, she applied for leave without allowance which was granted w.e.f 26.11.1988. After the initial spell of the LWA period, extension was sought for, which was granted; followed by further extensions upto 26.11.2006. The respondent was supposed to join service after expiry of the said tenure, but it is stated that she did not rejoin duty. She has to retire from service on 30.11.2007. Later, after several rounds of proceedings, the period between 26.11.2006 ie, the date of expiry of the leave granted as LWA and the actual date of superannuation, ie., 30.11.2007 was considered and ordered to be treated as 'non duty', however without any forfeiture of the past service. This has been ordered as per Annexure A17 dated 7/1/2015, by virtue of which, the respondent became qualified to get pension and such other benefits for her service rendered already in the Department. After finalisation of the proceedings as above, the respondent submitted an application for granting pension as per Annexure R3(c) dated 28/5/2014. The application was considered and the Accountant General sanctioned pension w.e.f 28.5.2015, as in conformity with Rule 120 of Part III, KSR. The same was
O.P.(KAT)NO.282 OF 2017
3
sought to be challenged by the respondent/applicant by filing
O.A.No.881/2015 with the following prayers:-
“a. Issue an order setting aside A 20 to A-22 as illegal, arbitrary, unsustainable and liable to be interfered with, to the extent of incorrect quantification and calculation of the gratuity and monthly pension sanctioned to the petitioner, and declare the same as not in accordance with law and that the applicant is entitled for more pensionary benefits, on her retirement on 30.11.2007, for the uninterrupted service of 14 years rendered by her, as Pharmacist grade-II in the Health Department.
b. Direct the respondents to re quantify the amount of gratuity and monthly pension fixed as per Annexure A-20 to A-22 and calculate the gratuity and pension payable to the applicant in accordance with law and the schemes applicable to the applicant, including one rank one pension scheme.
c. Direct the respondents to disburse the arrears of pensionary benefits due to the applicant as on 12/2007, till the date of regular payment, with interest at the rate fixed by this Hon'ble court, for the principal amount of arrears of pensionary benefits and interest on the gratuity amount due to the applicant, after quantification in accordance with law.
d. Direct the respondents to pay in future, the monthly pension found due to the applicant, on fresh quantification in accordance with law, continuously and promptly without any fault.
e. issue such other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and also in the interest of justice.
f. Award Cost to the Applicant. ”
far as there was no adverse circumstance with regard to the
service of the petitioner (which was ordered to be reckoned as
per Annexure A17), the pension was sanctioned immediately after the date of superannuation in the year 2007 and that there was absolutely no rhyme or reason to have it sanctioned much belatedly w.e.f 2015. The stand of the Government was that the application for pension was submitted by the
O.P.(KAT)NO.282 OF 2017 4
respondent/applicant only in the year 2014 and as such, there was inordinate delay on her side. This being the position, Rule 120 of part III Kerala Service Rules was attracted and hence the pension was to be sanctioned only with effect from the 'date of the order', by virtue of which the order passed by the Accountant General was perfectly within the four walls of the law and unassailable under any circumstances.
O.P.(KAT)NO.282 OF 2017 5
an application for permission to rejoin duty, but it was not considered. Be that as it may. There cannot be any further dispute with regard to the course pursued by the Department, which ended up as per Annexure A17 dated 7.01.2015. By virtue of the said proceedings no punishment was liable to be imposed upon the respondent/applicant and the prior service could not have been affected under any circumstances, admittedly since, the respondent/applicant started the service way back in the year 1975 and continued at least till 2000. Before applying for and obtaining 'leave without allowance', there was a span of 13 years and two months to her credit, by virtue of which she became qualified to get the pension. There is no dispute in this regard.
Rule 120 of Part III KSR. The said rule reads as follows:
” The preceding Rule applies to ordinary, not to special cases. If, under special circumstances a pension is granted long after an employee has retired, retrospective effect should not be given to it without the special orders of the Government which granted it; in the absence of special orders, such a pension takes effect only from the date of sanction.”
7. The version of the Department, as put forward by the
learned Government Pleader, is that the said Rule is attracted
O.P.(KAT)NO.282 OF 2017 6
to the case in hand and as such, the Tribunal should have been sanctioned the benefit only with effect from 2015 as ordered by the Accountant General ie., after submitting the application by the respondent/applicant. The Tribunal however held that there was no delay on the part of the respondent/applicant in submitting the application for pension, more so since the period between 26.11.2006 and 30.11.2007 was regularised by passing appropriate orders by the Government vide Ext.A17 dated 7.01.2015. This being the position, the application for pension could have been submitted by the applicant only after the said proceedings and it was accordingly that Annexure R3(c) dated 21.05.2015 was submitted. This being the position, there was no delay at all on the part of the respondent/applicant in any manner and it was not open for the Government to have attributed any delay on the part of the applicant to have invoked Rule 120 of part III KSR.
O.P.(KAT)NO.282 OF 2017 7 effect, subject to special orders to be issued by the Government. What was the special circumstance involved herein to have sanctioned the pension long after the retirement, has never been pleaded or substantiated from the part of the Government/Department. This is more so, since the service already rendered by the respondent/applicant (standing to her credit for the period from 1975 to 1988) was of more than '13 years' and she had acquired a vested right of getting pension in accordance with the relevant rules. Absolutely no special circumstance was there to have considered by the Government as a matter of extension of any grace, to sanction the pension and in so far as there was no special circumstances for sanction of pension as envisaged under Rule 120, there was no question of sanctioning such pension with effect from the 'date of passing the order'. The idea and understanding in the petitioner/Government with regard to the scope of Rule 120 is thoroughly wrong and misconceived.
In the said circumstances, the Tribunal was perfectly justified in having passed Ext.P5 order intercepting the
O.P.(KAT)NO.282 OF 2017 8
proceedings and allowing the O.A. We find no tenable ground to call for interference.
The Original Petition fails and the same is dismissed
accordingly.
Sd/- JUDGE
P.R.RAMACHANDRA MENON
Sd/- SHIRCY V. JUDGE
IAP
3 issues framed by the court
Whether Rule 120 of Part III Kerala Service Rules attracted to sanction pension retrospectively when no special circumstances existed.
Whether the delay in filing the pension application was attributable to the employee given the prior regularization of service.
Whether the Kerala Administrative Tribunal correctly allowed the Original Appeal challenging the Accountant General's order on pension.
THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM
THE DISTRICT MEDICAL OFFICER(H), DISTRICT MEDICAL OFFICE (H), PATHANAMTHITTA
THE MEDICAL OFFICER IN CHARGE, PRIMARY HEALTH CENTRE,VALLANA
ASSISTANT ACCOUNTANT OFFICER, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA
PONNAMMA KURIAKOSE
P.R.RAMACHANDRA MENON
SHIRCY V.
As recorded by the court registry
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