Kerala High Court
Jose Sebastian vs The State Of Kerala on 25 November, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941
WP(C).No.19213 OF 2019(B)
PETITIONER/S:
JOSE SEBASTIAN,
AGED 61 YEARS,
RETIRED LOWER DIVISION CLERK,
ST. MARY'S HIGH SCHOOL, ARAKUZHA,
RESIDING AT KAPYARUMALAYIL HOUSE, MEMADANGU P.O.,
ARAKUZHA, MUVATTUPUZHA, ERNAKULAM DISTRICT.
BY ADV. SRI.JOSE J.MATHEIKEL
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2 THE DEPUTY DIRECTOR OF EDUCATION,
ERNAKULAM-682 030.
3 THE DISTRICT EDUCATIONAL OFFICER,
MUVATTUPUZHA, PIN-686 661.
4 THE ACCOUNTANT GENERAL (A & E),
THIRUVANANTHAPURAM, PIN-696 039.
R1 TO R4 - SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.19213 of 2019 2
JUDGMENT
Petitioner is a retired Lower Division Clerk (L.D.C) from St. Mary's High School, Arakuzha, Ernakulam District, seeking to quash Exts.P6 and P9 Verification Report and the Government Order dated 19.06.2017 and 29.05.2019 respectively, declining part pension to the petitioner on the ground that the application submitted by the petitioner seeking pension is after three years, which is against the provisions contained under the Kerala Service Rules. Brief material facts for the disposal of the writ petition are as follows:
2. Petitioner retired from service on superannuation on 31.01.2014. According to the petitioner, on 09.12.2013, petitioner submitted an application seeking pension. On 01.07.2014, the pension papers were returned by the 2nd respondent, directing re-fixation of pay and refund of excess amount. Thereupon, petitioner approached this Court by filing W.P.(C) No.30105 of 2014, whereby Ext.P3 judgment was rendered along with other connected cases, directing the Deputy Director of Education, Ernakulam to re-compute the amount payable to the petitioner taking into account the 1st, 2nd and 3rd Time Bound W.P.(C)No.19213 of 2019 3 Higher Grades, based on the observations in the judgment and determine whether any excess amounts have been paid to the petitioner, and if so determine the amount, if any, that has been paid to the petitioner in excess for the purposes of recovery of the same from the retirement benefits that are due and payable to the petitioner within a period of two months from the date of receipt of a copy of the judgment.
3. Thereafter, Ext.P6 Verification Report dated 19.06.2017 was issued by the Accounts Officer in the Office of the Accountant General, limiting the pension from 06.05.2017. Thereupon, petitioner submitted Ext.P7 application dated 21.08.2017, seeking authorisation of pension, and thereafter submitted Ext.P8 application dated 28.11.2018 before the Deputy Director of Education, Ernakulam, since there was delay in issuing necessary orders. While so, the Government have issued Ext.P9 order dated 29.05.2019, declining the extension sought for by he petitioner for considering the payment of pension effective from the date of retirement on the ground that the petitioner has not submitted the application within the time prescribed under law.
4. A detailed counter affidavit is filed by the District Educational Officer, Muvattupuzha, justifying W.P.(C)No.19213 of 2019 4 the stand adopted by the Government, and also pointing out that, in accordance with Rule 110 of Part-III Kerala Service Rules (K.S.R), a Government servant is liable to submit his pension proposal at least one year prior to his date of retirement, and as per Rule 120 Part-III K.S.R., special sanction from Government is required in cases where pension application is submitted after three years. It is also pointed out that, as per Rule 135 of Part-III K.S.R., if the pension is not claimed within three years of retirement, the same will be lost and such pension shall be given only under strict instructions.
Therefore, according to the 3rd respondent, the Government have taken a decision in accordance with law, and therefore, no interference is warranted to Ext.P9 order.
5. I have heard learned counsel for the petitioner and the learned Senior Government Pleader, and perused the pleadings and the documents on record.
6. Apparently, pension was declined to the petitioner on and with effect from 01.02.2014, i.e., the immediate day after the retirement of the petitioner, basically on the ground that petitioner has not submitted the application in terms of Rule 110 of W.P.(C)No.19213 of 2019 5 Part-III K.S.R. Rule 110 stipulates that, every Government employee shall submit a formal application for pension in Form II, and Gazetted Government employees shall send their applications direct to the Audit Officer and non-gazetted employees to the head of office. The said Rule also stipulates that, every Government employee should submit his formal application for pension at least one year in advance of the date of his anticipated retirement. However, three exceptions are carved out from the main Rule as per the provisos. They are as follows:
"(i) in cases in which the date of retirement cannot be foreseen one year in advance, the application shall be submitted immediately after the date of retirement is settled; and
(ii) a Government employee proceeding on leave preparatory to retirement in excess of one year, shall submit the application at the time of proceeding on such leave; and
(iii) when a Government employee dies without making a formal application before his retirement, the authority competent to sanction pension may relax the provision of this rule and sanction pension or gratuity due to the Government employee from the date of retirement up to and inclusive of the date of his death as if he had made a formal application for the same before retirement".
7. True, the case of the petitioner is not coming under any of the exceptions carved out to Rule 110 specified above. However, petitioner has a clear case W.P.(C)No.19213 of 2019 6 that even though petitioner has not submitted the application one year before the date of retirement, an application was submitted on 09.12.2013. This is not under much dispute, especially when the said aspects were taken note of in Ext.P3 judgment rendered by this Court on 18.08.2016. However, as per Rule 120 of Part- III K.S.R., 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; and in the absence of special orders, such a pension takes effect only from the date of sanction.
8. It was relying upon the said Rule, petitioner has submitted Ext.P7 application before the State Government, however, the same was declined as per Ext.P9 order, assigning the reason that the application submitted by the petitioner is after three years from the date of retirement, and by virtue of Rule 135 of Part-III K.S.R., petitioner is not entitled to get the pension, and it was thereupon that the pension was directed to be paid after the period of three years. Rule 135 deals with Lapses and Forfeiture, which stipulates that, if a pension remains undrawn for more than three years, the pension ceases to be payable. W.P.(C)No.19213 of 2019 7
9. Learned counsel for the petitioner submitted that, in Ext.P9 order, the application submitted by the petitioner on 09.12.2013, i.e., before the retirement of the petitioner, was overlooked by the State Government and was under the impression that petitioner has applied for the pension only after three years from the date of retirement. In fact, the return of the defective application submitted by the petitioner on 01.07.2014 is virtually an admitted fact, directing re- fixation of pay and re-fund of excess amount. Learned counsel for the petitioner has submitted that the provisions of Part-III K.S.R discussed above are absolutely procedural in nature and the same have nothing to do with the substantive rights of the petitioner to secure pension in accordance with the provisions of Part-III K.S.R.
10. In that context, I am reminded of Article 300A of the Constitution, dealing with right to property, introduced on and with effect from 20.06.1979, which stipulates that, no person shall be deprived of his property save by authority of law. In my considered opinion, the authority of law prescribed thereunder is in respect of a substantive law i.e., taking away the right, to a property in a manner known to law. Which W.P.(C)No.19213 of 2019 8 thus also means, the deprivation shall be of the property and not on the basis of a procedure prescribed to have a disqualification for the claim. So also, property prescribed thereunder can be any property including movable and immovable, to which a citizen has a right.
11. It is also evident from the pleadings put forth by the petitioner and the counter affidavit filed by the 3rd respondent that at least prior to the retirement, petitioner has submitted an application which was returned on 01.07.2014. The Government while considering special sanction sought for by the petitioner under Rule 120 of Part-III K.S.R., overlooked the application submitted by the petitioner and was under the belief that without submitting any application, petitioner has sought for special sanction on 21.08.2017. In my considered opinion, even though there is delay on the part of the petitioner to submit the application and also seek for special sanction, the substantive right of a pensioner cannot be taken away, especially of a person retired as a Lower Division Clerk from a school, which will seriously affect the retired life of that person, on the basis of certain procedural formalities prescribed under Part-III K.S.R. W.P.(C)No.19213 of 2019 9
12. It is well settled that the pension is a deferred payment of salary to protect the interest of an employee after his retirement, and therefore, it is a substantive right of that employee to get the deferred payment on retirement. I am also of the opinion that a time period of three years is prescribed under Rule 135, Part-III K.S.R only with the intention to regulate the receipt of application and make the payment at the earliest to the petitioner, and therefore, that provision is to be treated as one incorporated to the advantage of a pensioner and not to his detriment. So much so, if Rule 135 is ascribed with any other interpretation, it will interfere with the fundamental right guaranteed under Article 21 of the Constitution of India, seriously affecting the life and liberty of a pensioner. That apart, if such a stringent view is adopted by the Government to Rule 135, Government is simply overlooking its bounden duty enshrined under Article 38 of the Constitution of India to secure a social order for the promotion of welfare of the people. This is more so, since Article 39 of the Constitution imbibes the State with a duty to direct its policy towards securing an adequate means of livelihood to the citizens.
W.P.(C)No.19213 of 2019 10
13. Therefore, I am of the considered view, petitioner is entitled to succeed in this writ petition. Accordingly, this writ petition is allowed and there will be a direction to the respondents to take necessary steps to pay pension to the petitioner on and with effect from 01.02.2014 to the date up to which the pension was declined to the petitioner, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment.
Sd/-
SHAJI P.CHALY JUDGE St/-26.11.2019 W.P.(C)No.19213 of 2019 11 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PENSION PROPOSAL NO.152/13-14 DATED 9.12.2013.
EXHIBIT P2 TRUE COPY OF LETTER NO.D3/20638/13 DATED 1/7/2014 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 18/8/2016 IN WPC NO.30105 OF 2014.
EXHIBIT P4 TRUE COPY OF THE LETTER NO.D3/20638/2013 DATED 21.12.2016 ISSUED BY SECOND RESPONDENT.
EXHIBIT P5 TRUE COPY OF LETTER NO.167/16-17 DATED 16.1.2017 SUBMITTED BY HEADMISTRESS.
EXHIBIT P6 TRUE COPY OF VERIFICATION REPORT NO.PR 210783165/P-1/2/1017350963 DATED 19.06.2017 BY 4TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF APPLICATION DATED 21.08.2017 SUBMITTED BY PETITIONER.
EXHIBIT P8 TRUE COPY OF REPRESENTATION DATED 28.11.2018 SUBMITTED BY PETITIONER BEFORE THE SECOND RESPONDENT.
EXHIBIT P9 TRUE COPY OF GOVERNMENT LETTER NO.N2/68/2019 DATED 29.05.2019.
RESPONDENTS' EXHIBITS: NIL