Kerala High Court
Dr. Susan Mathews vs State Of Kerala on 16 June, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P(C).Nos.9864 &
10634 of 2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942
WP(C).No.9864 OF 2020(G)
PETITIONERS:
1 DR. SUSAN MATHEWS,
AGED 47 YEARS
D/O. RAJAN J MATHEWS, 5C, HEERA HAVEN,
ULLOOR-AAKULAM ROAD, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM-695 011.
2 DR.ASHA ARJUNAN,
AGED 48 YEARS
D/O. V.ARJUNAN, USHES, NO.13, TILAK NAGAR,
PAROTTUKONAM, NALANCHIRA.P.O.,
THIRUVANANTHAPURAM-695 015.
3 DR. C.T.KAINICKAL,
AGED 46 YEARS,
S/O.K.J.THOMMACHAN, KAINICKAL HOUSE,
VAZHAKKULAM P.O,
MOOVATTUPUZHA, ERNAKULAM DISTRICT-686670.
BY ADV. SMT.SURYA BINOY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO THE DEPARTMENT OF
HEALTH AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2 SECRETARY
DEPARTMENT OF FINANCE, GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001.
3 REGIONAL CANCER CENTRE
REPRESENTED BY ITS DIRECTOR,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.
4 THE DIRECTOR
REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM-695 011.
W.P(C).Nos.9864 &
10634 of 2020 2
ADDL.5 SURAJ.L.S,
LAB TECHNICIAN,
R.C.C, THIRUVANANTHAPURAM,
AGED 34 YEARS, S/O.SURENDRAN S,
RESIDING AT T.C.30/596,
SARALA BHAVAN, PETTAH P.O,
THIRUVANANTHAPURAM-695 024.
ADDL.6 SHINOJ P.,
STAFF NURSE, R.C.C,
THIRUVANANTHAPURAM,
AGED 30 YEARS, S/O.RAVI K.,
RESIDING AT KMLRA 65-3,
KUMARAPURAM MOSQUE LANE,
MEDICAL COLLEGE P.O,
THIRUVANANTHAPURAM - 695 011.
ADDL.7 ANEES K.N,
RADIATION TECHNOLOGIST,
R.C.C, THIRUVANANTHAPURAM,
AGED 30 YEARS, S/O.CHERIYA ABDUL MAJEED,
RESIDING AT KUNHIPALLY,
KUTTALI P.O, KANNUR - 670 005.
R3-4 BY ADV. SRI.ATHUL SHAJI
R5 BY ADV. SRI.J.G.SYAMNATH
SRI.SUNIL KUMAR KURIAKOSE, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.06.2020 ALONG WITH W.P(C).NO.10634/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P(C).Nos.9864 &
10634 of 2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942
WP(C).No.10634 OF 2020(D)
PETITIONER:
DOCTORS ASSOCIATION OF REGIONAL CANCER CENTRE,
REPRESENTED BY ITS PRESIDENT, DR.VENUGOPAL.M.,
REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417,
THIRUVANANTHAPURAM-695011.
BY ADVS.
SRI.R.T.PRADEEP
SMT.M.BINDUDAS
SRI.K.C.HARISH
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 HEALTH AND FAMILY WELFARE DEPARTMENT,
REPRESENTED BY ITS PRINCIPAL SECRETARY, GOVERNMENT
OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.
3 REGIONAL CANCER CENTRE,
REPRESENTED BY ITS DIRECTOR, P.O.BOX NO.2417,
MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011.
4 DIRECTOR,
REGIONAL CANCER CENTRE, P.O.BOX NO.2417, MEDICAL
COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011.
5 PRINCIPAL ACCOUNTANT GENERAL (A & E),
OFFICE OF ACCOUNTANT GENERAL,
THIRUVANANTHAPURAM-695001.
R3-4 BY ADV. SRI.ATHUL SHAJI, SC, REGIONAL CANCER
CENTRE (RCC)
SRI.SUNIL KUMAR KURIAKOSE, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.06.2020 ALONG WITH WP(C).NO.9864/2020, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P(C).Nos.9864 &
10634 of 2020 4
P.V.ASHA, J.
-----------------------------------------------------
W.P(c) Nos.9864 of 2020-G
and
10634 of 2020-D
----------------------------------------------------
Dated this the 16th June, 2020
JUDGMENT
The petitioners in both these cases are aggrieved by the withdrawal of the facility to opt for National Pension System (NPS) consequent to the issuance of Ext.P11 Government Order dated 17.03.2020. The petitioners in W.P(c) Nos.9864 of 2020 are Additional Doctors in Regional Cancer Centre (RCC) and petitioner in W.P.(C) No.10634 of 2020-D is an association of Doctors in RCC. The documents referred to in this judgment are as described in W.P(C).No.9864/2020.
2. The petitioners point out that a pension scheme was introduced in RCC, with the sanction of Government. Those who were in service between 26.02.2011 and 31.03.2013 were made eligible for pension on conditions stipulated therein. It is stated that after the Draft Pension Rules were issued by the RCC, Government had issued Ext.P4 order on 15.11.2015, providing the employees an opportunity to opt for NPS irrespective of their eligibility for pension under the Pension Scheme. Thereafter RCC Employees' Pension Rules, W.P(C).Nos.9864 & 10634 of 2020 5 2016 were framed incorporating the said provision in Rule 4 of Chapter 2. Petitioners submit that they had accordingly submitted their option to come under NPS, as they found it more feasible. The petitioners point out that despite direction in Ext P10 judgment in W.P(C).No.36516/2007 for implementation of all the provisions in the 2016 Pension Rules, the respondents are now withdrawing the rights conferred on them in those rules by issuing Ext P11 Government Order on 17.03.2020 for implementation of only one pension and withdrawing the provisions for pension under NPS. It is their complaint that their right to have the benefit of NPS is deprived of without even giving them an opportunity of hearing and by imposing REPS on the employees. According to the petitioners, the present scheme runs counter to the provisions contained in Pension Fund Regulatory and Development Authority Act, 2013 (PFRDA Act) and PFRDA Regulations thereof. Relying on the actuarial report dated 31.12.2016, the petitioners point out that the present scheme is not at all viable.
3. In the circumstances, I am of the view that it is only appropriate that the Government considers the grievance of the petitioners before Ext.P11 order issued by Government is implemented.
The Writ Petitions are therefore disposed of directing the 1 st respondent to take a decision on the grievance raised by the petitioners after affording an opportunity of hearing to the petitioners as well as the affected parties. The petitioners would also be free to furnish all the documents in support of their W.P(C).Nos.9864 & 10634 of 2020 6 contentions, including the actuarial report, copy of the Writ Petition, etc, for consideration of the Government. Orders shall be passed by the Government thereafter, considering all the contentions and the same shall be communicated to the petitioners within a period of three months from the date of receipt of a copy of this judgment. Till such time, implementation of Ext.P11 Government order dated 17.03.2020 shall be kept in abeyance.
Sd/-
(P.V.ASHA, JUDGE) rtr/ W.P(C).Nos.9864 & 10634 of 2020 7 APPENDIX IN WPC.9864/2020 PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF GO (MS) NO.411/2013/H&FWD DATED 09.10.2013.
EXHIBIT P2 DRAFT RCC EMPLOYEES' PENSION RULES, 2014.
EXHIBIT P3 TRUE COPY OF THE FILE NOTINGS OF THE 4TH RESPONDENT DEPARTMENT RECEIVED UNDER RTI PERTAINING TO THE APPROVAL OF DRAFT RULES INCLUDING A NOTE PREPARED BY THE ADDL. SECRETARY TO THE DEPARTMENT OF FINANCE.
EXHIBIT P4 TRUE COPY OF (4) GO (MS) NO.267/2015/H&FWD DATED 21.11.2015.
EXHIBIT P5 TRUE COPY OF THE RCC EMPLOYEES' PENSION RULES, 2016.
EXHIBIT P6 TRUE COPY OF THE OPTION FORM SUBMITTED BY THE 2ND PETITIONER DATED 02.11.2016 EXHIBIT P7 TRUE COPY OF THE LETTER DATED 19.08.2016 WRITTEN BY THE 3RD RESPONDENT REQUESTING THE 1ST RESPONDENT TO IMPLEMENT NPS AT RCC.
EXHIBIT P8 TRUE COPY OF THE ACTUARIAL REPORT PREPARED BY LIC DATED 18.03.2017.
EXHIBIT P9 TRUE COPY OF ACTUARIAL VALUATION REPORT COMMISSIONED BY THE 3RD RESPONDENT DATED 23.01.2018.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 21.08.2019 IN WP(C).36516 OF 2017.
EXHIBIT P11 TRUE COPY OF GO (MS) NO.53/2020/H&FWD DATED 17.03.2020.
EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 04.05.2020.
EXHIBIT P13 TRUE COPY OF THE INFORMATION OBTAINED UNDER RTI DATED 27.01.2020.
W.P(C).Nos.9864 & 10634 of 2020 8 APPENDIX IN WPC.10634/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE G.O.(MS)NO.133/2011/H&FWD DATED 26.2.2011.
EXHIBIT P2 TRUE COPY OF THE G.O.(MS)NO.411/2013/H&FWD DATED 9.10.2013.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION OF PETITIONER BEFORE THE FINANCE MINISTER DATED 11.2.2015.
EXHIBIT P4 TRUE COPY OF THE REPORT OF ADDITIONAL CHIEF SECRETARY (FINANCE) DATED 10.8.2015.
EXHIBIT P5 TRUE COPY OF THE G.O.(MS)NO.267/2015/H&FWD DATED 21.11.2015.
EXHIBIT P6 TRUE COPY OF THE REGIONAL CANCER CENTRE EMPLOYEES PENSION SCHEME RULES 2015.
EXHIBIT P7 TRUE COPY OF THE CIRCULAR DATED 18.3.2016 INVITING OPTIONS FROM EMPLOYEES FALLING WITHIN THE RELEVANT PERIOD AS BETWEEN R.E.P.S. AND N.P.S. EXHIBIT P8 TRUE COPY OF THE CIRCULAR DATED 8.7.2016 BY 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION NIL DATED BY PETITIONER BEFORE 4TH RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE ACTUARIAL VALUATION REPORT OF REPS SCHME AS ON 31.12.2016.
EXHIBIT P11 TRUE COPY OF THE FORWARDING NOTE DATED 23.1.2018 FROM 3RD RESPONDENT TO 2ND RESPONDENT.
W.P(C).Nos.9864 & 10634 of 2020 9 EXHIBIT P12 TRUE COPY OF THE LETTER DATED 7.5.2018 BY PRINCIPAL SECRETARY TO 4TH RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 21.8.2019 IN WPC.NO.36516/2017.
EXHIBIT P14 TRUE COPY OF THE G.O.(MS)NO.53/2020/H&FWD DATED 17.3.2020.
W.P(C).Nos.9864 & 10634 of 2020 10