V. SUKUMARAN versus STATE OF KERALA & ANR. on 26 August 2020

1. Pension is succour for post-retirement period. It is not a bountypayable at will, but a social welfare measure as a post-retiremententitlement to maintain the dignity of the employee. The appellant hasBbeen claiming his entitlement for the last almost 13 years butunsuccessfully, despite having worked with Government departments invarious capacities for about 32 years.

The Facts:

C2. The controversy emanates from the appellant having workedin these different capacities with two different departments from time totime, albeit continuously. The appellant joined respondent No. 2,Department of Fisheries of the State Government of Kerala as a CasualLabour Roll (for short ‘CLR’) worker on 7.7.1976 in a then pilot projecton Pearl Culture, at Vizhinjam, Thiruvananthapuram. He worked uptoD29.11.1983 rendering 7 years, 4 months and 23 days of service as aCLR worker whereupon the District Officer, Kerala Public ServiceCommission (for short ‘KPSC’) advised him to join the RevenueDepartment, Kannur District as Lower Division Clerk (for short ‘LDC’)on his participation in a direct recruitment process. He accordinglyEreported for duty on 30.11.1983. On having rendered a few years ofservice, the appellant sought an inter-departmental transfer from theRevenue Department back to the Fisheries Department and returned toThiruvananthapuram and joined on 18.9.1987 on probation of two yearswith the service being subsequently regularised on 18.9.1989. Theappellant earned his promotion as Upper Division Clerk (Higher Grade)F(for short ‘UDC’) from which post he retired on attaining the age ofsuperannuation on 31.12.2008. The total service rendered by the appellantwas about 25 years, but excluding the service as CLR.

Developments:

3. In order to ameliorate the financial remuneration for CLR andGSeasonal Labour Roll (for short ‘SLR’) posts, the State Governmentpassed a slew of Government Orders (for short ‘G.O.’) from time totime and that is what gave hope and cause of action to the appellant ashe sought the benefits under the same.

4. Some CLR workers were aggrieved by their non-regularisationHof service, despite a G.O. dated 4.11.1989, which had provided for their

absorption as SLR workers if they had rendered 240 days a year ofservice in the Fisheries Department prior to 16.9.1985. On these personsapproaching the High Court, the State Government was asked to addressthe issue and on such examination G.O. dated 20.8.1993 was issuedcreating 29 SLR posts in the Fisheries Department for absorption of theexisting CLR workers. A G.O. was also issued on 31.3.2001 subsequentlynoting that these 29 SLR posts were created for such of the CLR workerswho had completed 500 days of work before 1.4.1987, and simultaneously27 employees in the Fisheries Department, who had worked for the past20 years and had also completed 8 years as SLR workers were orderedto be permanently absorbed with consequent pensionary and providentfund benefits. Subsequently, the service and wage conditions of the SLRworkers of the Fisheries Department were brought at par with those inthe Agriculture and Animal Husbandry Department with effect from31.3.2001 in pursuance of the G.O. dated 13.7.2006. It was, however,also stipulated that no new appointments would be made in the FisheriesDepartment in the CLR/SLR/HR categories.

5. Another significant development was the issuance of G.O. dated21.8.2006 to the effect that the Pension (Gratuity) Rules of the SLRWorkers/Permanent Labourers of Fisheries Department (hereinafterreferred to as the ‘Pension Rules’) were framed to grant pension tothese workers and bringing them at par with those working in theAgriculture and Animal Husbandry Department. The Pension Rules werebrought with retrospective effect from 31.3.2001. These Pension Ruleswere to apply to all those SLR workers/Permanent Labourers ofDepartmental Hatcheries/Farms in the Fisheries Department, who werestill in service as well as who had not completed 60 years of age as onthat date. Significantly, Rule 4(f)(iii) of the Pension Rules, inter alia,defined that 200 days or more work in a calendar year during the periodof service spent as casual labourer in the departmental farms prior topermanency would be treated as one year qualifying for pension. Thelegal significance was that service rendered as a casual labourer of acertain number of days was equated with one year of permanent servicefor purposes of pension qualification.

The Cause of the Appellant:

6. In view of the aforesaid developments, the appellant made arepresentation dated 27.11.2006 to the Assistant Director of the FisheriesDepartment for passing orders to treat his period of CLR service of AB

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Amore than 7 years as qualifying service for pension. In effect what theappellant claimed was that he should be treated at par with the otherCLR service workers having worked in the Department for the requisiteperiod of time. A plea of parity was, thus, raised.

7. The appellant, in this representation also made a request to beBprovided with service details of other such workers, and obtained requisiteinformation which showed that the appellant’s name featured at the 2[nd]place out of 6 persons in order of starting of the casual service on theaforementioned pilot project. Thus, he was very senior. Thisrepresentation received favourable consideration by respondent No. 2,Department of Fisheries with a recommendation being made by theCDirector. In the meantime, another G.O. dated 19.1.2007 was also issuedclarifying that the casual service period of farm labourers would becounted for calculating qualifying service for pension and requiring allpension claims to be settled accordingly with prospective effect.However, the State Government/respondent No. 1 finally did not acceptDthe recommendation of the Fisheries Department and rejected therepresentation of the appellant vide letter dated 16.5.2007 as accordingto the State Government the benefit could not be extended to the appellantsince he was appointed by the KPSC and had not been absorbed in theFisheries Department from the CLR service. If one may say, the otherCLR employees who went through the process of regularisation, thus,Egained the benefit which was sought to be denied to the appellant whocame through a regular employment process through the KPSC.

8. The aforesaid, thus, gave rise to the cause for the appellant tofile writ petition, being WP(C) No. 22931/2007, against the respondentspertaining to the quantum of pensionary benefits he was to receive atFthe time of retirement with the prayer that his service as a CLR workerfrom 7.7.1976 to 29.11.1983 be counted as 8 years of[1] qualifying servicefor pension. The claim was predicated on the following grounds:

a.29 SLR posts were created to regularise those CLR workerswho had completed 500 days of work, and had the appellantGcontinued in service of the Fisheries Department, he wouldhave found a place in one of those 29 posts having worked for1678 days.

1 Sir, appellant has calculated qualifying service to be 8 years calculating on the basisHof the 200 days a year criteria per Rule 4(f)(iii) of the Pension Rules.

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b. The G.O. dated 21.8.2006 provided for 200 or more days ofwork in a calendar year during the period of service as CLRworker prior to the permanency, calculated as equivalent toone year regular service qualifying for pension and, thus, theappellant was entitled to 8 years of qualifying service of pensionon account of his service as CLR worker.

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c. The details sought and disclosed vis-a-vis the other casualworkers vide letter dated 4.12.2006 showed that the appellantwas second senior most person and the first person had gothis CLR service regularised as SLR worker with pension beinggranted to him accordingly.

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d. The rejection by the State Government of the recommendationof the Fisheries Department was wrongful.

e. The appellant would be entitled to his maximum pensionableservice only if the CLR service was regularised as qualifyingservice on parity with his co-workers and had he continued toDwork in the Fisheries Department, he would have undoubtedlybeen regularised.

9. Appellant also placed reliance on Rule 13, Part III of the KeralaService Rules (for short ‘Service Rules’), which come to his aid, andread as under:

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“13. Work establishment employees absorbed in regularestablishment will be allowed to count 50 per cent of the workestablishment service for purposes of pension.

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10. The writ petition was sought to be resisted on the ground thatthe benefit of G.O. dated 21.8.2006 was available only to those CLRworkers who were regularised as SLR workers and none of the G.O.swould govern the appellant. The benefit of Rule 4(f)(iii) of the PensionRules was pleaded to be not extendable to the appellant and all thesewould have applied had he continued to work as a CLR worker for theFisheries Department. The appellant was, however, appointed by theKPSC and not absorbed in the department from the CLR service andfor this the rules of pension were entirely different as under Part II ofthe Service Rules.

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A11. We may note the stand of the appellant in respect of theaforesaid was that insofar as 29 SLR posts were concerned, only 27workers in the Fisheries Department were absorbed and, thus, he wouldhave been easily absorbed against the two remaining posts, more so onaccount of his seniority.BThe View of the High Court:

12. The learned Single Judge dismissed the writ petition by theorder dated 16.1.2009 primarily on the ground that the appointment ofthe appellant to the Revenue Department was in pursuance of his selectionby the KPSC and, thus, he could not compare himself with the CLRCworkers, who had obtained regularisation as SLR workers and weregoverned by various G.O.s. The appellant had not been absorbed in theFisheries Department from the category of CLR workers. There wasno G.O. or provision under the relevant rules for counting the period ofservice as CLR worker of persons like the appellant who securedappointment through the KPSC as an LDC. No declaration had beenDmade under Rule 11 of the Service Rules in Part III and in the absenceof such declaration the appellant could not take the benefit of the G.O.s.The relevant portion of the Rule reads as under:

“11. Notwithstanding the provisions of Rule 10, the GovernmentmayE

(1) declare that any specified kind of service rendered shall qualifyfor pension; and

(2) in individual cases, and subject to such conditions as they maythink fit to impose in each case, allow service rendered by an employeeto count for pension.F

xxxx xxxxxxxx xxxxxxxx”

13. The appellant being naturally aggrieved preferred an appeal,being W.A. No. 892/2009, which endeavour was also unsuccessful asthe said appeal was dismissed by the impugned order dated 3.6.2009.GOnce again, the basis was the same as the reasoning of the learnedSingle Judge that CLR service was not provided as qualifying servicefor the purposes of grant of pension in cases like the appellant, whojoined the Revenue Department in pursuance of a recruitment processof the KPSC and was only transferred to the Fisheries Department byan inter-departmental transfer at his own request.H

Arguments:

14. The arguments before us have been in the same compass aswhat has been specified aforesaid. The appellant pleads that he must beentitled for service rendered by him of 1678 days as CLR worker of andthat the true intention of the G.O. dated 20.8.1993 should be given effectto, being a decision taken in the interest of the workers. The grounds setout hereinabove for the claim of the appellant in para 8 were, onceagain, repeated before us.

15. Learned counsel for the appellant also sought to emphasisethat pension is a right vested in a Government servant and is not a bountypayable at the will and pleasure of the Government as also that pensionis a social welfare measure and a post retirement entitlement; somethingwith which we began our order. (D.S. Nakara and Ors. v. Union ofIndia[2] U.P. Raghavendra Acharya & Ors. v. State of Karnataka &Ors.[3]; Deokinandan Prasad v. The State of Bihar & Ors.[4]).

16. On the other hand, it was contended on behalf of therespondents, once again, that the appellant could not be treated at parwith those CLR workers, who were absorbed as SLR workers videG.O. dated 20.8.1993 as the concept of regularisation of long andcontinuous service giving benefit to casual employees could not be equatedwith a casual employee getting a permanent job through KPSC. Theappellant had been enjoying the benefits as a direct recruit to a higherpost since 1983, which were not available to his other original co-workerstill 2001 when they were regularised by the G.O. dated 31.3.2001. Hadthe inter-departmental transfer to the Fisheries Department not havetaken place, the appellant in any case would not have been in a positionto lay a claim.

Conclusion:

17. We have given our thoughtful consideration to the controversybefore us, albeit in a limited contour. Leave was granted in this matteron 23.4.2010 but the matter has seen its fate of hearing only after adecade despite hearing being expedited when leave was granted!

18. We are unable to accept the rationale and reasoning of thelearned Single Judge and the Division Bench of the High Court in thegiven facts and circumstances of the case.

2 (1983) 1 SCC 3053 (2006) 9 SCC 6304 1971(2) SCC 330

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A19. We begin by, once again, emphasising that the pensionaryprovisions must be given a liberal construction as a social welfaremeasure. This does not imply that something can be given contrary torules, but the very basis for grant of such pension must be kept in mind,i.e., to facilitate a retired Government employee to live with dignity in hiswinter of life and, thus, such benefit should not be unreasonably deniedBto an employee, more so on technicalities.

20. While looking into the facts and circumstances of the case,there is no dispute about the time period spent by the appellant as a CLRworker and his being at serial No. 2 for grant of pensionary benefits inthe list of details of CLR workers had he continued as one. The appellantCwas able to advance his career by going through a process of directrecruitment by the KPSC successfully. It is not a case of someunreasonable or improper benefit being extended to the appellant butthat he competed against others and was successfully recruited.

21. It is also not in dispute that he was transferred to the FisheriesDDepartment albeit at his own request and demitted office from thereafter earning promotion. To say that the appellant would be denied thebenefit of the period spent as CLR worker for his pensionary benefitwould be to treat his case as inferior one to the case of other CLRworkers, who never went through a system of recruitment forEregularisation but were regularised in the Fisheries Department to providebetter working conditions and monetary benefits to the employees. Canit really be said that a regularly recruited person like the appellant shouldnot get the benefit which the other people who were CLR workerswould get, having spent more than 7 years in that capacity? The answer,in our view, is in the negative, as it would amount to whittling away longFyears of service as a CLR worker of 1678 days (7 years 4 months and23 days).

22. Had the respondents not issued the G.O.s, no doubt the appellantwould have no claim. The claim of the appellant arises from the G.O.s,which are beneficial efforts for the CLR workers to improve the conditionsGof working along with monetary benefits. The appellant did work for theaforesaid long period of time as a CLR worker and should, thus, beentitled to the same on parity vis-à-vis other CLR workers. The appellantwas at serial No.2 in the aforementioned list and would have been soabsorbed when 29 posts were created. In fact, only 27 posts out ofHthese were filled in. It is thus not even a case where no post existed or that it would affect anybody else, or that the Government would becompelled to create a post for the appellant. In fact, in terms of the G.O.dated 21.8.2006 an equalisation has been given of 200 days of work asa CLR worker to one year’s regular service for the purposes of pension.While one would commend such effort by the State Government, it wouldbe very unreasonable to deny this to the appellant in view of the aforesaidfacts.

23. What also weighs with us is that the appellant is being deprivedof the maximum pensionable service which would be permissible to himif his period of CLR service is recognised as qualifying service andthere is no reason to deny the same to him when other CLR workershave got this benefit at the time of their absorption and subsequentregularisation as SLR workers and who would have, by virtue of joiningat a later point of time, rendered less service. We also feel that Rule 13of the Service Rules would possibly come to the aid of the rationale weseek to adopt as on absorption in the establishment, such persons aregiven the benefit of counting 50 per cent of their earlier work serviceprior to absorption for the purposes of pension.

24. We are, thus, of the view that for all the aforesaid reasons, theappellant is entitled to succeed in the present appeal and the impugnedorders are liable to be set aside. We also find that the rejection of therecommendation of the Fisheries Department, respondent No. 2, byrespondent No. 1 was consequently improper and unsustainable. Thebenefit of the service rendered as a CLR worker would, thus, be liableto be counted for determining the pensionary benefits of the appellant atpar with other CLR workers and the pension be accordingly calculated.The arrears of pension be remitted to the appellant within a maximumperiod of eight (8) weeks from today with admissible interest as applicableto outstanding pension amounts.

25. The appeal is accordingly allowed with costs throughout.

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