Allowed

Varkey.a.P.@Varkey Philipose, v. State of Kerala

Kerala HC1 Dec 2023WP(C)/19611/2019

Case brief

AI extract

What is this about?

This petition challenged the cancellation of pension orders granted to non-journalist retirees under the Kerala scheme due to financial crisis. The court held the cancellation arbitrary, set aside the impugned order, and directed the competent authority to reconsider the cases within four months, allowing for contribution adjustments.

What did the court decide?

Set aside Ext.P11; driven to competent authority to reconsider case of petitioners adverting to Ext.P10 within four months; liberty granted to alter contribution amount.

Varkey.a.P.@Varkey Philipose, Vs State of… — Pension and Retirement Benefits | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945

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WP(C) NO. 19611 OF 2019

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PETITIONERS :-

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1 VARKEY.A.P.@VARKEY PHILIPOSE, AGED 61 YEARS, S/O.PHILIPOSE, AREKATTIL HOUSE, ARPOOKARA EAST.P.O., KOTTAYAM – 686008.

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2 RAJU K JOSEPH, AGED 61 YEARS S/O.JOSEPH ACHENKUNJU, KUNNATH HOUSE, THURUTHY.P.O., CHANGANACHERRY, KOTTAYAM – 686535.

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3 THOMAS K THOMAS,, AGED 60 YEARS S/O.K.J.THOMAS, KOCHUVEETTIL HOUSE, KUDAMALOOR.P.O., KOTTAYAM-686017.

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4 JIMMY JACOB,, AGED 61 YEARS S/O.L.M.JACOB, LACHUNTHARA HOUSE, MADAPPALLY.P.O., CHANGANACHERRY, KOTTAYAM-686546.

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5 SAMUEL.M.C., AGED 62 YEARS S/O.M.M.SAMUEL, COTTACKAL, THUTHOOTTI JN., KUMARANELLOOR.P.O., KOTTAYAM-16.

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6 SUNNY.P.O., AGED 62 YEARS S/O.P.C.POTHEN, PUTHENPARAMBIL HOUSE, MALLOOSSERY.P.O., KOTTAYAM.

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7 M.M.JOSEPH, AGED 66 YEARS S/O.MATHAI MATHAI, MUKALEL HOUSE, ATHIRAMPUZHA.P.O., KOTTAYAM.

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8 JOY JOSEPH, AGED 67 YEARS S/O.POTHEN JOSEPH, KOCHUPANDICHERRY, MARIATHURUTHU.P.O., KOTTAYAM-686017.

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9 K.C.CHACKO, AGED 64 YEARS S/O.VARGHESE, THADATHILPARAMBIL HOUSE, RUBBER BOARD.P.O., THALAPPADY, KUMARAMKODU, PUTHUPPALLY, KOTTAYAM.

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10 T.S.SIVADAS, AGED 66 YEARS S/O.LAKSHMANAN, THOPPILVEEDU, VELLOOR.P.O.,

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WP(C) NO. 19611 OF 2019

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PARIYATHUKUNNU, PAMPADI, KOTTAYAM.

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11 T.J.JOSEPH, AGED 65 YEARS S/O.OUSEPH, KOTTARATHIL, MANNANAM.P.O., KOTTAYAM.

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12 P.J.JOY, AGED 68 YEARS S/O.P.U.JOSEPH, PUTHOOR HOUSE, KUMARANELLOOR.P.O., KOTTAYAM.

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13 KURIAN.A C., AGED 66 YEARS S/O.CHANDY, AREKKATTIL, ARPOOKARA (E).P.O., KOTTAYAM-8.

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14 GEORGE KURIAN, AGED 63 YEARS S/O.K.J.KURIAN, THURUTHYPARAMBIL, KANAKKARY.P.O., KOTTAYAM-686032.

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15 AUGUSTINE V.V., AGED 66 YEARS S/O.V.P.VARKEY, VARICKASSERIL, KARIMANNOOR.P.O., THODUPUZHA, IDUKKI-685581.

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16 ANTONY.N.J, AGED 67 YEARS S/O.JOSEPH, NELLANIKATTU, KARIMANNOOR, IDUKKI-685581.

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17 V.P.THOMAS, AGED 66 YEARS S/O.THOMMY PHILIPOSE, VADAKKEPARAMBIL HOUSE, PONGANPARA, PUTHUPPALLY.P.O., KOTTAYAM.

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18 JOSE M.M., AGED 69 YEARS S/O.LATE M.C.MANI, MANAKUNNEL HOUSE, MARIYATHURUTHU.P.O., KOTTAYAM-686017.

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19 T.M.LALAPPAN, AGED 63 YEARS S/O.MATHEW, PAYYANATTU HOSE, VILLOONI.P.O., ARPOOKARA, KOTTAYAM-686001.

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20 GEORGE MATHEW, AGED 59 YEARS S/O.T.J.MATHEW, THOMPUNKAL HOUSE, ATHIRAMPUZHA.P.O., KOTTAYAM-686562.

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21 JOHN.T.L., AGED 54 YEARS S/O.LUKOSE, THADATHIL HOUSE, MEMURI.P.O., KOTTAYAM.

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WP(C) NO. 19611 OF 2019

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22 CHACKO VARGHESE, AGED 71 YEARS S/O.VARGHESE, PERUMALIL (CALSA BHAVAN), AMANAKARA.P.O., RAMAPURAM,KOTTAYAM-686576.

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23 JOSEPH PHILIP, AGED 69 YEARS S/O.PHILIP, PALAMATTOM HOUSE, MUTHOLI.P.O., KOTTAYAM.

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24 KURIAN.K.S., AGED 67 YEARS S/O.DEVASIA, KIZHAKEKUMBALAVELIL HOUSE, KURIANADU.P.O., MONIPPALLI, KOTTAYAM.

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25 JOJO JOSEPH, AGED 47 YEARS S/O.JOSEPH, ARACKAL HOUSE, THURUTHY.P.O., CHANGANACHERRY-686535.

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26 KUNJACHAN JOSEPH, AGED 55 YEARS S/O.JOSEPH, KALAPURAKAL HOUSE, GANDHI NAGAR.P.O., KOTTAYAM-686008.

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27 JOSE MATHEW, AGED 52 YEARS S/O.MATHEW KURIAN, POTTAMMEL HOUSE, NAZARETH HILL.P.O., KARUVILANGAD.P.O., KOTTAYAM-686633.

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28 JOHN.P.T., AGED 53 YEARS S/O.P.M.THOMAS, PARANGANATTU, VILLOONNI.P.O., ARPOOKARA, KOTTAYAM-686008.

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29 MATHEW.P.J., AGED 58 YEARS S/O.P.P.THOMAS, PLAMMOOTTIL PUTHENPURACKAL, PUTHENANGADI, KOTTAYAM-1.

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30 JOHNSON.V.J., AGED 55 YEARS S/O.V.M.JOSEPH,VARAKIL HOUSE, Y.M.J ROAD, MAMANGALAM, PALARIVATTOM.P.O., ERNAKULAM.

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31 K.J.THOMAS, AGED 69 YEARS S/O.K.V.JOSEPH, KALLUVETTAMKUZHIYIL, KURISUMMOODU.P.O., CHANGANACHERRY.

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32 K.S.SALU, AGED 58 YEARS S/O.P.T.SKARIA, KUNNINPURATHU HOUSE, CHENGALAM S.P.O., KOTTAYAM-686022.

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WP(C) NO. 19611 OF 2019

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4

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33 K.K.JAMES, AGED 68 YEARS S/O.K.C.KURIAN, KUNNATHUKUZHY HOUSE, VILLOONNI.P.O., ARPOOKARA, KOTTAYAM.

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34 XAVIER JACOB, AGED 58 YEARS S/O.P.X.JACOB, PUTHENPARAMBIL HOUSE, PATTITHANAM.P.O., ETTUMANOOR, KOTTAYAM.

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35 VARGHESE C.D., AGED 52 YEARS S/O.DOMINIC, CHEMPOTHINAMKUZHIYIL, SANTHIPURAM.P.O., KARUKACHAL, KOTTAYAM-686545.

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36 P.J.JAMES, AGED 61 YEARS S/O.K.J.KOHN, PULIMOOTTIL, THADATHIPARAMBU HOUSE, VELLOOR.P.O., PAMPADY, KOTTAYAM-686501.

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37 FRANCIS MATHEW, AGED 48 YEARS S/O.P.M.MATHEW, PINAMARUKIL HOUSE, PAIKA, POOVARANY.P.O., KOTTAYAM-686577.

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38 ANTONY JOHN.C, AGED 62 YEARS S/O.C.L.ANTONY, CHAKKALAKKAL HOUSE, NEAR DHARMASASTHA TEMPLE, PALACHUVADU, KAKKANAD.P.O., ERNAKULAM-682030.

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39 JOSEKUTTY, AGED 69 YEARS S/O.VARKEY, MANIYAMKERIL HOUSE, KILIROOR NORTH.P.O., KOTTAYAM-686020.

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40 JOSE.K.V., AGED 68 YEARS S/O.K.P.VARKEY, KODOPARAMBIL HOUSE, KAIPPUZHA.P.O., NEAR PILLAKKAVALA, KOTTAYAM.

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41 JACOB M.V., AGED 59 YEARS S/O.JOSEPH VARGHESE, MUPPATHIL CHIRA (CHENNAD), JILLA COURT WARD, ALLEPPEY-688013.

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42 ALOYSHIOUS.P.R., AGED 70 YEARS S/O.RAPHAL, POOVANPARAMBIL HOUSE, SOUTH PARAVOOR.P.O., UDAYAMPEROOR, ERNAKULAM.

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43 SIMON PLACKAL, AGED 58 YEARS S/O.P.O.DEVASI, T.C.2873(1), OPPOSITE D.G.132 A, MEDICAL COLLEGE.P.O., ULLOOR GARDENS, ULLOOR.P.O., THIRUVANANTHAPURAM-695001.

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WP(C) NO. 19611 OF 2019

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44 KERALA NON JOURNALIST PENSIONERS ASSOCIATION REG.NO.ER 98/08, ERNAKULAM, KOCHI-17, REP. BY THE GENERAL SECRETARY, P.D.SIVARAMAN, K.N.J.P.A, ASRAMAM LANE, KOCHI-17.

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BY ADVS.
THAMPAN THOMAS
B.V.JOY SANKAR
R.RAJASREE (CHUTTIMATTATHIL)

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RESPONDENTS :-

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, THIRUVANANTHAPURAM-695001.

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2 THE SECRETARY, INFORMATION AND PUBLIC RELATIONS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695001.

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3 THE MANAGING COMMITTEE, THE KERALA NON JOURNALIST PENSION SCHEME, REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM-695001.

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4 THE DIRECTOR, INFORMATION AND PUBLIC RELATION DEPARTMENT (H), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.

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5 REGIONAL DEPUTY DIRECTOR, INFORMATION PUBLIC RELATIONS DEPARTMENT, KOTTAYAM-686002.

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BY SRI.P.S.APPU, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 19611 OF 2019

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JUDGMENT

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The petitioners, who are stated to have been working as non journalists in Rashtra Deepika Malayalam Daily News Paper, say that they were enrolled in the “Non-Journalist Pension Scheme”, namely Ext.P1 - which is evident from Exts.P3 to P8 Pass Books issued to some of them; and who were, in fact, served with Ext.P10 order, granting the benefit of pension thereunder, consequent to their voluntary retirement, on account of severe financial crisis faced by the said institution.

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The petitioners say that, however, for apparently no reason, but with confutative intent, Government, thereafter issued Ext.P11, cancelling Ext.P10; and assert that this has been done solely for the reason that political dispensation had changed in the administration in the meanwhile. They thus pray that Ext.P11 be set aside and the Authorities be directed to implement Ext.P10 without any avoidable delay.

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Sri.Thampan Thomas, learned counsel appearing for the petitioners, pointed out that, though in Ext.P11, it is stated that persons who have retired from service voluntarily will not

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WP(C) NO. 19611 OF 2019

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come within the ambit of Ext.P1 order, Ext.P14 would establish to the contrary, in which, persons identically situated as the petitioners have been given such benefits. He added that this clearly amounts to discrimination; and that, in any event, Ext.P11 could not have been issued after his clients were admitted to the “Scheme” and after being allowed to remit the contribution under it. He, therefore, reiteratingly prayed that Ext.P11 be set aside.

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In response, the learned Government Pleader, Sri.P.S.Appu, made submissions relying upon the counter affidavit filed on behalf of the State, saying that Ext.P10 was issued in colourable exercise of power because, the case of the petitioners was never placed before the Pension Committee. He then argued that it was only based on the request of an Association that the then Hon’ble Chief Minister of Kerala took initiative to issue Ext.P10 order and that this was done, invoking clause 22 of the ‘Scheme’, wherein, amendments are possible in certain circumstances. He pointed that Ext.P10 was issued prior to a general election, but that it was not implemented on account of such event; and that, after the results were published and new dispensation was put in place, it was decided,

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WP(C) NO. 19611 OF 2019

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on 15.05.2018, to place the case of the petitioner before the Pension Management Committee again. He pointed out that, however, said Committee found that applicants were neither members of the Scheme, nor had they superannuated from service, thus being disentitled to be granted pension thereunder. He, therefore, prayed that this Writ Petition be dismissed.

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I have evaluated the afore rival submissions, juxtaposed by various materials on record.

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Before I move forward, I must record that paragraph 4 of the counter affidavit of the Government concedes that, in the year 2012, certain persons mentioned therein were given pension, but that this was offered as a “special case” and as per the decision of Pension Management Committee. It is also virtually without dispute therein that such persons were either those who had been born prior to the cut off date, or who had availed voluntary retirement; and every such exception has been explained as being “a special case”.

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In such perspective, when one bears in mind that Clause 22 of the Scheme provides the Committee, or the Authorities under the Scheme, the power to modify it in exceptional circumstances, it is without doubt – as is expressly

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WP(C) NO. 19611 OF 2019

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admitted – that it was this which was invoked by the Government, while issuing Ext.P10 order.

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However, on account of change of circumstances thereafter, Ext.P11 was issued, virtually finding fault with the earlier decision mentioned in Ext.P10; and for this purpose, there are two reasons stated, namely that case of the petitioners was not considered by the Pension Committee; and secondly that they had not superannuated from service, but had retired availed voluntary retirement, without having been members of the “Pension Scheme”.

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Factually, I must say that there is some contradiction in the afore statements in Ext.P11 because, as rightly pointed out by Sri.Thampan Thomas - learned counsel for the petitioners, many of the petitioners, if not all, were already enrolled with the “Pension Scheme”, as is manifest from Exts.P3 to P8; and say that they were also allowed to make remittances under it, as per its terms.

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That apart, Ext.P1 only says that a non-journalist, with 10 years service and who is a member of the Pension Board for such period, will be entitled to pension when he ‘either retired or where his institution or establishment is closed down’.

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WP(C) NO. 19611 OF 2019

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In the case at hand, the petitioners retired voluntarily and they say that this was because their establishment faced extreme financial crisis, thus being on the verge of closure . It are perhaps these factors that were considered by the Government when Ext.P10 was issued because, it is evident therefrom that petitioners were also directed to pay an upfront payment of Rs.18,000/- per head into the Corpus. This is presumably because they had not remitted the contribution for 10 years, as is mandated therein, because, by then, they had voluntarily retired. However, these aspects have not been considered at all in Ext.P11, but a decision has been taken to cancel Ext.P10, as if it was done in an irregular manner; but without adverting to the fact that Clause 22 of the “Scheme” provides for alteration in extenuating circumstances.

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That being said, further case of the petitioners that the precedent cited by them, namely Ext.P14, would also help them, has not been considered in Ext.P11; though, as I have already said above, the counter pleadings on record say that they were “special cases”.

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Obviously, therefore, this Court cannot find favour with Ext.P11 and the matter will certainly have to be

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WP(C) NO. 19611 OF 2019

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reconsidered by the competent Authority in terms of law.

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Resultantly, I order this writ petition and set aside Ext.P11; with a consequential direction to the competent Committee of the “Pension Scheme” to reconsider the case of the petitioners, adverting to Ext.P10 and to my observations above, as also to the averments in the counter affidavit filed on behalf of respondent No.2; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment.

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I make it clear that, if the Committee is to find in favour of the petitioners, then they will also be at liberty to alter the amount of contribution to be made by them, taking note of the changed circumstances today and efflux of time.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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SMA

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WP(C) NO. 19611 OF 2019

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PETITIONER EXHIBITS :-

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`ExHIBIT P1`	`TRUE COPY` `STATE NON-` `DATED 04.02`	`OF O` `JOU` `.20`	`RDERS AND RULES OF THE “KERALA` `RNALIST PENSION SCHEME, 2000,` `00.`
`EXHIBIT P2`	`TRUE COPY` `DATED 22.11`	`OF` `.20`	`CIRCULAR NO.2907/E2/12/1 & P R` `12 OF THE 4TH RESPONDENT.`
`EXHIBIT P3`	`TRUE COPY` `PETITIONER.`	`OF`	`THE PASSBOOK ISSUED TO 3RD`
`EXHIBIT P4`	`TRUE COPY` `PETITIONER.`	`OF`	`THE PASSBOOK ISSUED TO 7TH`
`EXHIBIT P5`	`TRUE COPY` `PETITIONER.`	`OF`	`THE PASSBOOK ISSUED TO 13TH`
`EXHIBIT P6`	`TRUE COPY` `PETITIONER.`	`OF`	`THE PASSBOOK ISSUED TO 28TH`
`EXHIBIT P7`	`TRUE COPY` `PETITIONER.`	`OF`	`THE PASSBOOK ISSUED TO 29TH`
`EXHIBIT P8`	`TRUE COPY` `PETITIONER.`	`OF`	`THE PASSBOOK ISSUED TO 33RD`
`EXHIBIT P9`	`TRUE COPY` `DATED 7.2.2`	`OF` `011`	`THE MEMORANDUM NO.4597/CM/2011` `.`
`EXHIBIT P10`	`TRUE COPY` `RESPONDENT`	`OF` `DAT`	`THE ORDER ISSUED BY THE 3RD` `ED 4.3.2016.`
`EXHIBIT P11`	`TRUE COPY` `DATED 14.1.`	`OF T` `201`	`HE ORDER OF THE 2ND RESPONDENT` `9.`
`EXHIBIT P12`	`TRUE COPY` `RESPONDENT`	`OF` `DAT`	`THE COMMUNICATION OF THE 4TH` `ED 19.10.2012.`
`EXHIBIT P13`	`TRUE COPY` `JOURNALIST`	`O` `PEN`	`F THE MINUTES OF THE NON-` `SION COMMITTEE MEETING CHAIRED`

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WP(C) NO. 19611 OF 2019

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BY THE HON'BLE CHIEF MINISTER HELD ON
16.5.2012.

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EXHIBIT P14TRUE COPY OF THE INFORMATION RECEIVED BY ONE
OF THE PETITIONER ISSUED BY THE PUBLIC
INFORMATION OFFICE, I & P R DATED 30.4.2011.

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EXHIBIT P15TRUE COPY OF THE ORDER ISSUED BY THE 4TH
RESPONDENT DATED NIL, SUBSEQUENT TO THE
DECISION IN EXT.P13 MINUTES.

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EXHIBIT P16TRUE COPY OF THE LETTER DATED 18.5.2018.

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Exhibit P-17TRUE COPY OF AN EXTRACT OF THE MEMBERSHIP
REGISTER DATED NIL.

Varkey.a.P.@Varkey Philipose, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Varkey.a.P.@Varkey Philipose, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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