A former Consumer Disputes Redressal Forum member challenged the appointment cut-off for retirement benefits under a newly introduced scheme. The court upheld the cut-off, accepted financial constraints as a valid consideration, and dismissed the writ appeal without costs.
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.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 21ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 WA NO. 1109 OF 2021
AGAINST THE JUDGMENT IN WP(C) 6746/2019 OF HIGH COURT OF KERALA
APPELLANT/S:
RAJESWARY K. AGED 45 YEARS W/O ANIL PRABHA, KAPPACHERY HOUSE, PATTUVAM POST, KANNUR, PRESENTLY RESIDING AT KIZHAKKEPURATH HOUSE, KORATTY SOUTH P.O.ERNAKULAM DISTRICT, PIN-680 308.
BY ADVS. K.N.CHANDRABABU MEENA.A. VINOD RAVINDRANATH M.R.MINI ASHWIN SATHYANATH K.C.KIRAN
RESPONDENT/S:
OTHER PRESENT:
SRI.T.KRISHNANUNNI(SR) FOR APPELLANT, SRI. TEK CHAND, SR GP FOR R1 AND R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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C. R.
J U D G M E N T
S. Manikumar, C. J.
Instant writ appeal has been filed challenging the judgment in W. P. (C) No. 6746 of 2019 dated 14.01.2021, whereby, a learned Single Judge dismissed the writ petition.
hereunder:-
The appellant is the petitioner in the writ petition and an Advocate practicing in the High Court of Kerala and other Subordinate Courts in Kerala.
According to the appellant, in response to the Government notification dated 22.01.2001, the petitioner applied for the post of a member of the District Consumer Forum at Kannur.
As per Ext. P1 dated 05.02.2002, she was appointed as a member of Consumer Disputes Redressal Forum at Kannur. The term of appointment was for a period of 5 years from the date of appointment. She completed the term of 5 years of service as a
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member and relieved from duty on 11.02.2007.
Appellant has contended that on the basis of several representations submitted before the Government by the members of various statutory commissions, monthly retirement benefit was granted vide Ext. P3 G. O. (P) No. 175/2016/Fin. dated 28.11.2016.
Appellant applied for the retirement benefit, as provided under Ext. P3. The application was forwarded to the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, represented by its Secretary, and the Registrar, the 3rd respondent, vide Ext. P4. However, the 3rd respondent rejected the said application submitted by the petitioner vide Ext. P5 dated 20.04.2018, on the ground that the above referred Government Order does not have retrospective effect to grant monthly pension benefit.
Appellant has further contended that the limitation prescribed under Ext. P3 in the matter of fixing eligibility is absolutely ultravires and illegal.
Limitation prescribed under Ext. P3 amounts to illegal
classification, discriminatory and is violative Article 14, 16 and 21 of the Constitution of India.
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Challenging Exts. P3 and P5, W. P. (C) No. 6746 of 2019 was
filed.
retirement benefit to Non-Governmental members, appointed as
members of Statutory Commissions, is as follows:-
“KERALA GOVERNMENT
SUMMARY
Department of Finance-Retirement Benefit Granted to NonGovernmental Members Appointed as Members of Statutory Commissions-Issuing the order
Finance (Welfare Wing) Department
Sa. u.(printing) No.175/2016/Eco. Thiruvananthapuram, 2016 November 28
The government has received a number of applications seeking retirement benefits for non-government officials who are appointed as members of the Statutory Commissions. The Government examines the matter in detail and, on the basis of this, grants retirement benefits to non-government officers appointed as members of the Statutory Commissions subject to the following rates and conditions.
ORDER
| EligibilityTerm of Service | Monthlyretirement benefit |
|---|---|
| Since 2years and within 3years | Rs. 7000/- |
| Since 3years and within 4years | Rs. 8000/- |
| Since 4years and within 5years | Rs. 9000/- |
| Fiveyears and above | Rs. 10,000/- |
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By order of the Governor Dr. KM Abraham
Additional Chief Secretary (Finance)”
“ Kerala State Consumer Dispute Resolution Commission, Thiruvananthapuram
Number-F.856/17 Dated 20/4/2018
From
Secretary and Registrar
To
Rajeswary K., Kizhakkepurath house, Koratty South P.O. Emakulam-680308
Sub: C.D.R.C -About applying for your pension benefit. Ref: Letter No.31/7/2017 /A.397/2017 from Kannur District Forum
Non-Governmental Members appointed on or after January 1, 2006 are eligible for Pension Benefit under G.O. No. 175/2016 dated 28/11/2016 of the Department of Finance. It is stated that your application for appointment dated 11/02/2002 cannot be considered and as it is clearly stated that the monthly
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retirement benefit does not have retrospective effect. The pension book and the consent form are included herewith.
Secretary and Registrar”
5. Writ petition was filed for the following reliefs:-
“i. Issue writ of certiorari or such other Writ, direction or order quashing the limitation prescribed as 01.01.2006 as the date of appointment for eligibility to get pension to the member of the statutory Commission as illegal, ultra virus, discriminatory and arbitrary.
ii. Issue a writ of mandamus or any appropriate writ, order or direction commanding the respondents to grant monthly retirement benefit to the petitioner, taking in to account of period of service rendered by the petitioner as a member of Consumer Dispute Redressal Forum at Kannur with effect from 11.02.2007.”
“5. By Exhibit P3, Government Order, Government introduced a new scheme to the members of the Statutory
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Commissions who have no prior Government Service. Accordingly, they are eligible for monthly retirement benefits at the rates prescribed in the G.O. according to their service terms in the Commissions. In the Government Order, it is specifically stated that only those persons who are appointed on or after 01.01.2016 in Statutory Commissions will be eligible for monthly retirement benefits. The G.O was issued on 28.11.2016; after taking into account of numerous representation for granting retirement benefits from members of Statutory Commissions who were appointed from the Government Service and who did not enjoy any service retirements benefits. While issuing Exhibit P3 Government Order, due care was given to incorporate service terms of members of Statutory Commissions. Extending the benefit beyond the period provided in the order would create huge financial liability and administrative burden to the State.
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Government, for various sections of the society, such as Welfare Pension. Welfare Board Pension, Old age pension considering the welfare of the people of the State as a whole. These pension schemes cannot be equated with the Statutory/Contributory Pension given to the Government employees selected on prescribed norms and retiring after duly approved Government Service. Hence, the retirement benefits sanctioned by Exhibit P3 Government Order cannot be equated with service pension benefits.
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distinction between continuance of an exiting scheme in its liberalized form and introduction of a wholly new scheme: in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing a cut-off-date would ordinarily violate the principle of equality in treatment unless there is a strong rationale discernible for so doing and the same can be supported on the ground that it will subserve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the date of their retirement, the availability of records of every retiree, etc.”
the Hon'ble Apex Court, a learned Single Judge dismissed the writ petition as hereunder:-
“14. The question of sustainability of cut-off date in the matter of extending service benefits including retirement benefits, has been clearly answered by the Hon'ble Apex Court in the judgment in D. S. Nakara and others (supra). The Hon'ble Apex Court held that when an existing Scheme is modified introducing more benefits, then in such cases, the new benefits should be made available to all employees enjoying the benefit of
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the Scheme ordinarily. However, when a new Scheme is introduced, the governmental authorities have a right to consider various aspects including the financial burden on the public exchequer and availability of funds and fix a cut-off date for beneficiaries.
“10. Nakara's judgment (AIR 1983 SC 130) has itself drawn a distinction between an existing scheme and a new scheme. Where an existing scheme is revised or liberalised all those who are governed by the said scheme must ordinarily receive the benefit of such revision or liberalisation and if the State desires to deny it to a group thereof, it must justify its action on the touchstone of Article 14 and must show that a certain group is denied the benefit of revision/liberalisation on sound reason and not entirely on the whim and caprice of the State. The underlying principle is that when the State decides to revise and liberalise an existing pension scheme with a view to augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-off line which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduces an entirely new scheme which has no connection with the existing scheme, different considerations enter the decision making process. One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would
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throw, the employer would have to decide upon the extent of applicability of the scheme. That is why in Nakara's case this Court drew a distinction between continuance of an existing scheme in its liberalised form and introduction of a wholly new scheme; in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing a cutoff date would ordinarily violate the principle of equality in treatment unless there is a strong rationale discernible for so doing and the same can be supported on the ground that it will subserve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact-situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. It must be realised that in the case of an employee governed by the CPF scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara's case (AIR 1983 SC 130) drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly
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emphasised by this Court in Krishena's case (AIR 1990 SC 1782) (supra).”
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others (supra), this Court held that there cannot be a cut-off date to divide a homogenous group. In the said case, the Management of Canara Bank introduced a pension scheme for employees who were in service of the bank on or after 01.01.1986. As regards employees who were compulsorily retired, the Scheme provided that only employees compulsorily retired on or after 01.11.1993 would be eligible for pension at a rate not less than 2/3rd. The petitioner therein was an employee who was compulsorily retired before 01.11.1993. This Court held that after fixing a cut-off date 01.01.1986 for introduction of the pension scheme, the bank authorities were not justified in dividing the employees who were compulsorily retired before and after 01.11.1993 and it amounts to division of a homogenous group, which has no rational or nexus with the object sought to be achieved. It is in such circumstances that this Court held that the cut-off date of 01.11.1993 is arbitrary and discriminatory. The said judgment would not be of any help to the petitioners.
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introduces an entirely new Scheme which has no connection with any existing Scheme, different considerations enter the decision making process and one such consideration may be the financial implications of the Scheme and the extent of capacity of the employer to bear the burden. Therefore, it is evident that when introducing a new Scheme, the Government is at liberty to fix a cut-off date even if the new Scheme is made retrospectively operational.
For the aforesaid reasons, this Court finds no merits in the contentions of the petitioners. These writ petitions are accordingly dismissed.”
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State of Manipur and Others [AIR 2019 SC 3338] and other decisions in Mohammad Basheer A. v. State of Kerala and Others [2015 (1) KLT SN 118] and Avirah C. A. and Others v. Board of Directors of the Canara Bank and Others [2017 (1) KLT SN 18] .
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of the Consumer Disputes Redressal Forum at Kannur, pension scheme was not in vogue. Government have made it clear that statutory commissions were established in Kerala from 1996 onwards and members have been appointed. Hundreds of such members have retired. It is further contended that as regards Consumer Disputes Redressal Forums, there are 14 such forums. Extending pension to the retired members would be a financial burden to the State exchequer.
(i) In State of Rajasthan and another v. Amrit Lal Gandhi
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and Others reported in [(1997) 2 SCC 342] , at paragraphs 16 and 17, Hon'ble Apex Court held thus:-
“16. Applying the ratio of the aforesaid decisions to the present case, we find no justification for the High Court having substituted the date of 1.1.1986 in lieu of 1.1.1990. It is evident that for introducing a pension scheme, which envisaged financial implications, approval of the Rajasthan Government was required. In the letter of 16.4.1991, written to the ViceChancellors of different universities of Rajasthan, it was stated as follows:
"As per the direction in regard to the aforesaid subject, the State Government has decided to introduce Pension Scheme in the Universities of the State w.e.f. 1.1.1990. In this regard the State Legislature has passed University Pension Rules and General Provident Fund Rules. Therefore, by enclosing a copy of University Pension Regulations and General Provident Fund Regulations with this letter, it is requested that by obtaining approval of the competent body or syndicate of the University, these Regulations be implemented in the University together and necessary information regarding implementation be intimated."
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the justification of the cut-off date of 1.1.1990 was "wholly economic". It cannot be said that the paying capacity is not a relevant or valid consideration while fixing the cut-off date. The University could, in 1991, validly frame Pension Regulations to be made applicable prospectively. It, however, chose to give them limited retrospectively so as to cover a larger number of employees by taking into account the financial impact of giving retrospective operation to the Pension Regulations. It was decided that employees retiring on or after 1.1.1990 would be able to exercise the option of getting either pension or provident fund. Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1.1.1986 for 1.1.1990.”
(ii) In State of Punjan and Others v. Amar Nath Goyal and Others reported in [(2005) 6 SCC 754] , at paragraphs 26 and 37, Hon'ble Apex Court held thus:-
“26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government / State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any
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policy decision touching the administration of the Government, at the Centre or at the State level.
xxxxxxx
(iii) In Government of Andhra Pradesh and Others v. N. Subbarayudu and others reported in [(2008) 14 SCC 702] , at paragraphs 5 to 9, the Hon'ble Apex Court held thus:-
“5. In a catena of decisions of this Court it has been held that the cut off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab & Ors. Vs. Amar Nath Goyal & Ors., (2005) 6 SCC 754).
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Case (supra), as observed in para 29 of the decision of this Court in State of Punjab & Ors. vs. Amar Nath Goyal & Ors. (supra).
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Laxmi Devi [2008 (2) JT 639], the Court must maintain judicial restraint in matters relating to the legislative or executive domain.”
As decisions considered squarely apply to the case on hand, submissions made, and decisions relied on by the learned counsel for the appellant are inappropriate. We are of the view that the appellant
has not made out a case for interference.
Writ appeal is dismissed. No costs.
Sd/S. MANIKUMAR CHIEF JUSTICE
Sd/SHAJI P. CHALY JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
1 issue framed by the court
Was the appointment cut-off date for retirement benefits under a new scheme for non-governmental members of statutory commissions discriminatory or invalid?
Colour shows how this judgement treated each authority
D. S. Nakara and others v. Union of IndiaApplied¶121
[(1983) 1 SCC 305] · Who else cites this
All India Reserve Bank Retired Officers Association and others v. Union of India and othersDistinguished¶111
[1992 Supp (1) SCC 664] · Who else cites this
All Manipur Pensioners Association by its Secretary v. State of Manipur and OthersDistinguished¶113
[AIR 2019 SC 3338] · Who else cites this
Mohammad Basheer A. v. State of Kerala and OthersDistinguished¶113
[2015 (1) KLT SN 118]
Avirah C. A. and Others v. Board of Directors of the Canara Bank and OthersDistinguished¶113
[2017 (1) KLT SN 18]
State of Rajasthan and another v. Amrit Lal Gandhi and OthersApplied¶125
[(1997) 2 SCC 342] · Who else cites this
State of Punjan and Others v. Amar Nath Goyal and OthersApplied¶131
[(2005) 6 SCC 754] · Who else cites this
Government of Andhra Pradesh and Others v. N. Subbarayudu and othersApplied¶137
[(2008) 14 SCC 702] · Who else cites this
RAJESWARY K.
STATE OF KERALA
THE PRINCIPAL SECRETARY FOOD, CIVIL SUPPLIES & CONSUMER AFFAIRS (C) DEPARTMENT
KERALA STATE CONSUMER REDRESSAL COMMISSION THIRUVANANTHAPURAM
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
