Central Administrative Tribunal - Ernakulam
K.V. Kunhikannan vs Director General on 12 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00288/2015
Thursday, this the 12th day of January, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
K.V. Kunhikannan, aged 61 years, S/o. M. Kottan,
Devi House, Ballimogaru, Koruvayalu, Post Kudlu,
Kasaragod 671 124, (Assistant Administrative Officer, (Retired),
(ICAR - Central Plantation Crops Research Institute,
Kasaragod). ... Applicant
(By Advocate : Mr. P.V. Mohanan)
Versus
1. Director General, Indian Council of
Agriculture Research, Krishi Bhavan,
Dr. Rajendra Prasad Road, New Delhi - 110 001.
2. The Director, Central Plantation Crops Research
Institute, Kasaragod, Post Kudlu - 671 124.
3. The Secretary, Indian Council Agriculture Research,
Krishi Bhavan, Dr. Rajendra Prasad Road,
New Delhi - 110 001. ... Respondents
(By Advocate : M/s. Varghese & Jacob)
This application having been heard on 11.01.2017, the Tribunal on
12.01.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicant is aggrieved by refusal of the respondents to grant pensionary benefits on account of the pendency of a case before the Hon'ble High Court in connection with the genuinity of the caste certificate he had relied on for securing his initial appointment under the respondents.
2. Applicant was initially appointed as Junior Clerk under respondent No.2 in the Central Plantation Crops Research Institute, Kasaragod - an establishment under respondent No. 1. While working as Assistant Administrative Officer with a total salary of Rs. 54,411/-he retired on superannuation on 31.10.2014 after rendering 36 years of qualifying service. He states that neither any departmental proceedings nor judicial proceedings were contemplated/pending against him at the time of his retirement and that after retirement also no proceedings with the sanction of the President had been initiated against him under Rule 9 of CCS (Pension) Rules, 1972. No proceedings had been contemplated or initiated against him under Rule 69 of CCS (Pension) Rules also. Therefore, according to the applicant he is entitled to get full pension, DCRG and other terminal benefits as a matter of course.
3. According to the applicant when he was working as Assistant under respondent No. 2 on the basis of an anonymous complaint before the Government alleging that he and his family members do not belong to 'Moger' community which is a Schedule Caste, the District Collector without notice to the applicant submitted a report to the Government in 1992. The Government entrusted the Director, Kerala Institute for Research, Training and Development Studies of SC & STs (KIRTADS) to conduct an inquiry into the caste status of the applicant. According to the applicant KIRTADS without conducting any anthropological inquiry submitted a report on 18.9.1993 that he and his siblings belong to 'Mukayan' community not 'Moger' community. Based on the report of KIRTADS the State Government issued GO (Rt.) No. 603/1993, dated 3.12.1993 ordering that the applicant and his family members do not belong to 'Moger' community and directed to take punitive action against him and other family members. Aggrieved by the aforesaid GO applicant filed OP No. 724/1994 before the High Court of Kerala which was disposed of by judgment dated 26.6.1996 setting aside the aforesaid GO and directing the Government to pass final orders after considering the explanation of the applicant, uninfluenced by the report of KIRTADS. A scrutiny committee constituted by the Government rejected the claim of the applicant without conducting anthropological investigation and study of the customs, rites, ceremonies, genealogical traits, affinity test etc. The order dated 30.1.1999 of the scrutiny committee was set aside by the High Court in OP No. 20867/1999 by Annexure A6 judgment dated 22.12.2005 holding that the scrutiny committee lacks jurisdiction and directed to take appropriate action in accordance with law without prejudice to the reports of KIRTADS. Thereafter, the applicant submitted a detailed explanation before the scrutiny committee constituted under the Kerala (SC&ST) Regulation of Issue of Community Certificate Act, 1996. The said committee by Annexure A7 proceedings dated 31.1.2011 held that applicant does not belong to SC ('Moger' community) but belongs to 'Mukayan' community in the OBC list. Annexure A7 was challenged by the applicant in WP(C) No. 5746/2011 before the High Court of Kerala. In that case the High Court passed interim order dated 23.2.2011 staying the termination of service of the applicant and the said interim order was extended vide Annexure A8 order dated 19.8.2011 until further orders. Accordingly, applicant continued in service till he was superannuated on 31.10.2014. Therefore, the applicant prays for relief as under:-
'i. To direct the respondents to sanction and disburse Full Pension, Death Cum Retirement Gratuity and other terminal benefits by reckoning the qualifying service from 9.1.1978 to 31.10.2014 and by reckoning the average emolument at the time of superannuation on 31.10.2014 and disburse the pensionary benefits from 1.11.2014 with 9% interest from the date of due till the date of actual disbursement.
ii. To direct the respondents not to withhold Pension, DCRG and other terminal benefits.
iii. Any other appropriate order or direction as this Hon'ble Tribunal deem fit in the interest of justice.'
4. Respondents more or less agree to the facts of this case as narrated in the pleadings in the OA. According to them applicant was initially appointed as Junior Clerk reserved for SC in December, 1977 and joined duty on 9.1.1978 under respondent No. 2. Thereafter, he was promoted to the post of Senior Clerk on 21.2.1983 and to the post of Assistant from 28.8.1989 against the quotas reserved for SC. While so the respondent No. 2 received Annexure R2(b) order dated 3.12.1993 from Secretary, SC & STs Development (E) Department, Government of Kerala in which it was directed :
'Sri. K.V. Kunhikannan and his family except his wife do not belong to Moger community which is included in the Mukayan community classified under OBC. The benefits illegally enjoyed by Sri. Kunhikannan on having been in SC community shall be stopped and the financial benefits illegally enjoyed by him shall be recovered. If Sri Kunhikannan is appointed against the quota reserved for SC candidate under CPCRI, Kasaragod, disciplinary action against him shall be taken and a real SC candidate appointed.' The applicant was placed under suspension and Annexure R2(d) show cause notice was served to him. But as the operation and implementation of Annexure R2(b) order was stayed by the High Court in Annexure R2(e) order the order of suspension was revoked and show cause notice was cancelled. OP No. 724/1994 on the file of the High Court was disposed of with a direction to treat Annexure R2(b) as a show cause notice and to file his explanation before the State Government. Thereafter in the light of Annexure A6 order of the High Court, the State Government constituted a scrutiny committee for verification of SC/ST claims. During the pendency of the above caste dispute a written test for the post of Superintendent (reserved for SC) was held at CPCRI, Kasaragod during 1995 and the applicant was allowed to attend the written test provisionally. Since his caste status was under litigation the result of his test was put in a sealed cover by the DPC. Consequent to the recommendations of the DPC meeting held on 23.10.2008 he was promoted to the post of Assistant Administrative Officer (unreserved) with effect from 21.10.2008 subject to the outcome of the dispute pending before the Government of Kerala as the scrutiny committee appointed by the Government of Kerala found the applicant not belonging to SC. Applicant approached the High Court and the Court stayed the operation and implementation of the proceedings of the scrutiny committee in WP(C) and the stay was extended until further orders vide Annexure A8. Thereafter, as per instructions of the DoP&T to furnish information regarding false caste certificates, information relating to the applicant was forwarded to the 1st respondent vide Annexure R2(f). As per Annexure R2(g) memorandum dated 10.1.2013 of the DoP&T the caste case of the applicant was forwarded to 1 st respondent. As the applicant had to superannuate on 31.10.2014 Annexure A1 formal retirement notice was issued to him. The 1st respondent instructed to take action as per the directions of the Hon'ble High Court and accordingly, Annexure A2 note was issued to the applicant directing to get appropriate orders from the Hon'ble High Court to process his pensionary benefits. In response to Annexure A2 applicant submitted Annexures A3 & A4 representations. According to the respondents though respondent No. 2 initiated disciplinary action against the applicant, the same has been stayed by the Hon'ble High Court and the caste caste is still pending before the High Court.
5. Heard Shri P.V. Mohanan, learned counsel appearing for the applicant and the Senior Standing Counsel of respondent No. 1. Perused the record.
6. The facts of this case are not in dispute. The only question to be decided is whether the applicant can be denied pension and other retiral benefits merely on the ground that the dispute relating to his caste status -
ie. whether he is a member of the Scheduled Caste or not - is pending before the Hon'ble High Court of Kerala in a Writ Petition. No doubt, the controversy regarding his caste status is a vital question touching upon his entitlement to the employment secured by him on the strength of the the cast certificate in a post reserved for Scheduled Caste under respondent No. 2. The controversy regarding his caste arose when the State Government conducted inquiry on the basis of a complaint that he does not belong to scheduled caste. It has to be noted that this issue has cropped up when the applicant remained in service for some time after he secured three promotions. The State Government issued Annexure R2(b) order only in 1993 i.e. nearly after 12 years of the applicant's initial appointment as Junior Clerk. The subsequent promotions he earned as Senior Clerk and Assistant were also against the quotas reserved for Scheduled Caste. Applicant challenged Annexure R2(b) order of the State Government in OP No. 724 of 1994. Subsequently the State Government constituted a scrutiny committee which also found that applicant does not belong to Scheduled Caste against which also he filed OP No. 20687 of 1999 in the High Court. Complying with the decision of the High Court in that case the State Government again constituted a statutory scrutiny committee which also found that the applicant does not belong to Scheduled Caste. He again challenged the decision of the scrutiny committee before the High Court in OP No. 5746 of 2011 and the High Court stayed the operation of the decision(proceedings) of the committee. Respondents admit that during the course of the caste dispute the applicant took part in written test for the post of Superintendent (reserved for Scheduled Caste) and as the litigation relating to his caste status was pending the result of the DPC was put in a sealed cover. Respondents further admit that in a meeting of the DPC held on 23.10.2006 applicant was promoted to the post of Assistant Administrative Officer (unreserved) subject to the outcome of the dispute regarding his caste status.
7. Though respondents had initiated disciplinary proceedings and placed him under suspension the applicant soon after received Annexure R2(b) order issued by the State Government, due to the stay order of the High Court of Kerala against Annexure R2(b) the show cause notice issued to the applicant was withdrawn and the order placing him under suspension also was revoked.
8. Thus one can see that despite the controversy relating to his caste status continued to be under a series of litigation in the High Court of Kerala, the applicant remained in active service and had earned promotions without any disciplinary proceedings or other judicial proceedings initiated against him. It appears that the respondents do not have any complaint regarding the service the applicant had rendered from his initial appointment till his retirement.
9. According to the applicant as the service put in by him under the respondents do not suffer from any vitiating circumstances dis-entitling him from his pensionary rights, he is entitled to payment of full pension and other retiral benefits. It is worth noting that the applicant has not been given even a provisional pension. Applicant states that he has undergone a heart surgery in August, 2011 and is still on medication. It is well settled position that pension is not a bounty but a right of a Government servant [see State of Kerala & Ors. v. M. Padmanabhan Nair - (1985) 1 SCC 429; Dr. Uma Agrawal v. State of U.P. & Anr. - (1999) 3 SCC 438]. Pension has been given a constitutional recognition by including the term 'pension' in the definition clause under Article 366 (17) of the Constitution of India. In State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr. - (2013) 12 SCC 210 the apex court held that pension is a constitutional right as it comes within the meaning of 'property' the right to which earlier was a fundamental right protected under Article 19(1)(f) and 31(1) of the Constitution of India. The apex court in State of West Bengal v. Haresh C. Banerjee & Ors. - (2006) 7 SCC 651 held that even after the repeal of Articles 19(1)(f) and 31(1) of the Constitution pension remains a constitutional right under Article 300A of the Constitution. In the constitution bench decision D.S. Nakara & Ors. v. Union of India - (1983) 1 SCC 305 - which is a locus classicus - the apex court held that the discernible purpose underlying the pension scheme or a statue introducing the pension scheme must inform interpretative process on the touch stone of directive principles of State policy contained in Articles 38(1), 39(d)(e), 41 and 42 in the light of the preamble of the constitution which guarantees the dignity of the individuals. It was also observed by the constitution bench that Article 41 obligates the State within the limits of its economic capacity and development to make effective provision for securing the right to work, education and to provide assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want.
10. The constitutional ethos and norms like maintaining the dignity of individuals and public assistance by the State during old age are squarely applicable to the superannuated government employees who have rendered service devoting the prime time of their life for the government. If a retired person is deprived of pension without the authority of law that will certainly affect his right to life protected under Article 21 of the Constitution of India. If he is deprived of his meager livelihood of pension during his old age, he will be denied of the dignity which again is guaranteed in the preamble of the Constitution of India. Hence it is imperative that any adjudication relating to pension requires the interpretative process in consonance with the constitutional principles.
11. Apart from being a property which under Article 300A of the Constitution of India cannot be deprived of save by the authority of law, adjudications on pensioner's grievances shall be informed of the interpretative process using the constitutional tools of the directive principles of State policy contained in Article 41 whereby the State has has obligation to provide assistance in the case of old age and in other cases of undeserved want. Thus it goes without saying that pension cannot be withheld unless the law authorises to do so. The laws governing pension in the statutory shape of CCS (Pension) Rules, 1972 is applicable in the case of the applicant also. It provides for withholding pension and gratuity only under two circumstances i.e. under Rule 9 and Rule 69. In both the provisions a departmental proceedings or judicial proceedings should be pending against the Government employee. In the instant case no departmental proceedings are pending and no judicial proceedings have been initiated against the applicant. What is pending before the High Court is a Writ Petition filed by the applicant against the decision of the scrutiny committee set up by the State Government for determining his caste status. Hon'ble High Court had issued an interim order against the proceedings of the scrutiny committee and the same is in operation as the case before the High Court is pending even after the applicant's retirement on superannuation.
12. Thus, it is clear from the foregoing discussion that applicant has rendered qualifying service for pension from 9.1.1978 to 31.10.2014 except for the period of suspension which was subsequently revoked and the disciplinary proceedings initiated were also dropped by the respondents consequent to the order of stay from the Hon'ble Court and that no proceedings whether departmental / judicial are pending against him.
13. Looking this case from another angle it appears to this Tribunal that this being a case where the applicant has rendered his continuous service qualifying himself for pension and pensionary benefits and yet on account of the controversy regarding his caste status which has not yet reached its finality so far the respondents deny his constitutional right of pension without an authority of law, where the principle of Quantum meruit can be employed.
14. Quantum meruit is a well known principle of law. Black's law dictionary (fifth edition) gives the meaning to the term Quantum meruit as follows:
'Expression 'quantum meruit' means 'as much as he deserves' and it is an expression that describes the extent of liability on a contract implied by law. Nardi & Co., Inc. v. Allabastro, 20 III. App.3d 323, 314 N.E.2d 367, 370. An equitable doctrine, based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby; under those circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even absent a specific contract therefor. Swiftships, Inc. v. Burdin, La.App., 338 So.2d 1193, 1195. Essential elements of recovery under quantum meruit are: (1) valuable services were rendered or materials furnished, (2) for person sought to be charged, (3) which services and materials were accepted by person sought to be charged, used and enjoyed by him, and (4) under such circumstances as reasonably notified person sought to be charged that plaintiff, in performing such services, was expected to be paid by person sought to be charged....' This Tribunal is of the view that the legal principle of Quantum meruit is applicable in this case because pension and pensionary rights are the fruits of the service the applicant had rendered to the respondents which had acquired the character of a constitutional right. Going by the definition of the word pension in Article 366 (17) of the Constitution of India the term 'pension' includes gratuity and sums payable with or without interest thereon or any other addition thereto of subscription to provident fund also. Therefore, this Tribunal holds that the applicant is entitled to receive pension and pensionary benefits subject to the outcome of the Writ Petition filed by him in the High Court of Kerala which is pending even now.
15. In the result the OA is allowed to the extent of directing the respondents to sanction and disburse full pension, DCRG and other retirement benefits of the applicant by reckoning his qualifying service from 9.1.1978 to 31.10.2014 and to disburse those benefits with arrears from 1.11.2014 and continue payment of pension till the final outcome of the Writ Petition now pending before the Hon'ble High Court of Kerala. Ordered accordingly. It is made clear that for this purpose, the applicant shall execute a bond undertaking to repay the above retirement benefits including pension so received by him if the final outcome of WP(C) No. 5746 of 2011 pending before the Hon'ble High Court goes against him. The above exercise shall be completed by the respondents within two months from the date of receipt of a copy of this order.
16. The Original Application is disposed of as above. Parties shall suffer their own costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER b� SAb�