Kerala High Court
Dr.K.N.Balakrishnan Nair vs State Of Kerala on 5 August, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940
WP(C).No. 2228 of 2017
PETITIONER:
DR.K.N.BALAKRISHNAN NAIR,
AGED 82 YEARS, PROFESSOR (RETD),
ATHURASRAMOM N.S.S. HOMEO MEDICAL COLLEGE,
RESIDING AT 'TAPAS', PERUNNA,
CHENGANACHERY.
BY ADV.SRI.P.M.MOHAMMED SHIRAZ
RESPONDENT(S):
1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVT. OF KERALA,
DEPARTMENT OF HEALTH & FAMILY WELFARE,
GOVT. SECRETARIAT, TRIVANDRUM-695 004.
2. THE SECRETARY TO GOVT. OF KERALA,
DEPARTMENT OF HEALTH AND FAMILY WELFARE (J),
GOVT. SECRETARIAT, TRIVANDRUM-695 004.
R1 & R2 BY GOVERNMENT PLEADER SRI.RON BASTIAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 30-05-2018,THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
6/6/2018
WP(C).No. 2228 of 2017 (C)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1- TRUE PHOTOCOPY OF G.O.(RT) NO.2324/2003/H & FWD
DATED 05/08/2003.
EXHIBIT P2- TRUE PHOTOCOPY OF G.O.(MS) NO.36/94/H & FWD
DATED 21/02/1994.
EXHIBIT P3- TRUE PHOTOCOPY OF G.O.(MS) NO.72/2014/H & FWD
DATED 04/03/2014.
EXHIBIT P4- TRUE PHOTOCOPY OF G.O.(P) NO.93/76/H.EDN
DATED 26/06/1976.
EXHIBIT P5- TRUE PHOTOCOPY OF REPRESENTATION DATED 14/01/2009
OF PETITIONER AND SIMILARLY PLACED PENSIONERS.
EXHIBIT P6- TRUE PHOTOCOPY OF JUDGMENT DATED 01/06/2009 IN
W.P.(C) NO.14966/2009.
EXHIBIT P7- TRUE PHOTOCOPY OF G.O.(RT) NO.3787/2009/H & FWD
DATED 29/12/2009 OF 1ST RESPONDENT.
EXHIBIT P8- TRUE PHOTOCOPY OF JUDGMENT DATED 06/08/2014 IN
W.P.(C)NO.9699/2010.
EXHIBIT P9- TRUE PHOTOCOPY OF G.O.(RT)NO.797/2015/H & FWD
DATED 09/03/2015.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
6/6/2018
P.V.ASHA J.
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W.P.(C).No.2228 of 2017
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Dated this the 30th day of May, 2018
JUDGMENT
The petitioner, who is presently aged 83 years, retired from service on 23.02.1995, while working as Professor & Head of Anatomy Department in Athurasramam N.S.S. Homoeo Medical College, Changanachery, is aggrieved by the denial of pension to him.
2. Petitioner joined as a Tutor in Athurasramam N.S.S. Homoeo College in 1964 and continued there till his retirement on 23.02.1995. In the meanwhile, the Homoeo College had become Homoeo Medical College with affiliation to Kerala University on 30.03.1983. Even though, steps were taken for implementation of the direct payment system in the College, on account of W.P.(C).No.2228 of 2017 2 certain disputes between the Management and Government, it was introduced there only with effect from 01.11.1995, after eight months of the retirement of the petitioner. Therefore, all those who were in service as on 01.11.1995 or in other words those who retired after 01.11.1995, got pensionary benefits. Petitioner submits that there are only 14 employees who retired from the College before the introduction of the direct payment system and that as at present several of them are no more.
3. Petitioner had been submitting applications requesting for granting him pension, extending the benefit of the direct payment system. He had submitted Ext.P5 representation, along with others similarly situated, requesting to count their service from the date of affiliation of the College to the University and to sanction pensionary benefits as in the case of Vaidyaratnam Ayurveda College, Ollur and Ayurveda College, Kottakkal. Even though, petitioner W.P.(C).No.2228 of 2017 3 had, along with certain others, filed W.P.(C) No.14966/2009 and this Court directed to consider their representation as per Ext.P6 judgment, their representation was rejected as per Ext.P7 order saying that direct payment system was introduced in the College only on 01.11.1995. It was also stated that as per Clause 18 and 20 of the agreement entered into by the Management with the Government, Government is not liable to any claims for the period prior to November, 1995 and it is for the Educational Agency to discharge the liabilities in respect of Vaidyaratnam Ayurveda College, Ollur and Ayurveda College, Kottakkal. It was stated that those Colleges were receiving cent percent grant-in-aid for meeting the salary under the grant-in-aid scheme introduced in 1965 and in the case of the college where petitioner worked, no such grant-in-aid was given.
4. Aggrieved by Ext.P7, petitioner approached this Court in W.P.(C) No.9699/2010 and this Court W.P.(C).No.2228 of 2017 4 found that the staff of Vaidyaratnam P.S. Warrier Ayurveda College, Kottakkal got pension reckoning their services from 01.04.1972, the date from which the College was affiliated to the University of Calicut. Seeing that pensionary benefits were extended to the staff of such Colleges, reckoning service from the date on which the Institution was affiliated, this Court found no justification for not extending the benefits to the staff in petitioner's College. Therefore, after setting aside Ext.P7 order, Government was directed to reconsider the same. Ext.P9 order was passed thereafter again rejecting the representation submitted by the petitioner. It was stated that pension was granted to the staff of the other Colleges as a one time measure, with the approval of the Cabinet. It was stated that as per Clause No.35(a) of the terms and conditions under which the direct payment system (DPS) was introduced, Institution would include Colleges, Hospitals, W.P.(C).No.2228 of 2017 5 Laboratories and Libraries. Because of this, the Hospital and College were treated as a single unit under a wrong notion and pension was sanctioned accordingly and the orders were ratified by Government as a one time measure. It was stated that since the petitioner retired from the College before the introduction of the direct payment system, he was not entitled to the pensionary benefits.
5. Petitioner has produced Ext.P2 order issued in the case of Vaidyaratnam P.S. Warrier Ayurveda College, Kottakkal on 21.02.1994., Ext.P3 order issued on 04.03.2013 by Government in the case of Vaidyaratnam Ayurveda College and Hospital, ratifying the pension scheme in Vaidyaratnam Ayurveda College, Ollur w.e.f. 01.07.1985 and the Hospital w.e.f. 01.04.1996. Petitioner has also referred to the pension granted to aided colleges on introduction of the direct payment system even in the case of staff who retired prior to the date of Ext.P4. This writ W.P.(C).No.2228 of 2017 6 petition is filed challenging the denial of the pensionary benefits to the petitioner as discriminatory and illegal.
6. Respondents filed a counter affidavit reiterating that petitioner is not entitled to pension since he retired from service prior to 01.11.1995 on completion of 60 years before direct payment system was introduced. It is stated that in the case of certain employees of the College, Government had sanctioned pension even though they retired from service before 01.11.1995 seeing that they were forced to leave employment on attaining 55 years and were unable to continue in service till they attained 60 years. But in the case of petitioner he continued in service till he attained the age of 60 years, though he left the service before direct payment system was introduced. It is stated that Government is not liable to make payment for the period prior to 01.11.1995. It is further stated that service of W.P.(C).No.2228 of 2017 7 teaching and non-teaching staff of Vaidyaratnam P.S. Warrier Ayurveda College and Kerala Ayurvedic Studies and Research Society, Kottakkal had started functioning even before 01.07.1982. The pension was sanctioned under Rules in Part III of KSR to the Staff of that College as per order dated 21.02.1994 w.e.f. 01.07.1982 reckoning the service of the staff from 01.04.1972. It is stated that the prior service was reckoned in their case by virtue of DPS agreement or by virtue of Government orders. Therefore petitioner is not liable to get the benefit in the absence of any such agreement or order.
7. The petitioner has filed a reply affidavit pointing out that the Ext.P9 order was issued in violation of the directions contained in Ext.P8 judgment in which it was specifically directed to reconsider the case of the petitioner observing that there was no justification for not extending the benefit to the petitioner.
W.P.(C).No.2228 of 20178
8. According to the learned Government Pleader, the case of the petitioner stands on a different footing than that of the staff of the other Colleges.
9. Heard the learned counsel for the petitioner as well as the learned Government Pleader.
10. It is seen that by Ext.P8 judgment, this Court had directed the respondents to reconsider the claim of the petitioner after observing in paragraph 4 as follows:
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