EPS 95 Latest Update on Higher Pension Cases in Supreme Court
Pension is succour for post-retirement period. It is not a bounty payable at will, but a social welfare measure as a post-retirement entitlement to maintain the dignity of the employee………...
We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, 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 his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3984 OF 2010
V. SUKUMARAN …Appellant
Versus
STATE OF KERALA & ANR. …Respondents
JUDGMENT
SANJAY KISHAN KAUL, J.
1. Pension is succour for post-retirement period. It is not a bounty payable at will, but a social welfare measure as a post-retirement entitlement to maintain the dignity of the employee. The appellant has been claiming his entitlement for the last almost 13 years but unsuccessfully, despite having worked with Government departments in various capacities for about 32 years.
The Facts:
2. The controversy emanates from the appellant having worked in these different capacities with two different departments from time to time, albeit continuously. The appellant joined respondent No. 2, Department of Fisheries of the State Government of Kerala as a Casual Labour Roll (for short ‘CLR’) worker on 7.7.1976 in a then pilot project on Pearl Culture, at Vizhinjam, Thiruvananthapuram. He worked upto 29.11.1983 rendering 7 years, 4 months and 23 days of service as a CLR worker whereupon the District Officer, Kerala Public Service Commission (for short ‘KPSC’) advised him to join the Revenue Department, Kannur District as Lower Division Clerk (for short ‘LDC’) on his participation in a direct recruitment process. He accordingly reported for duty on 30.11.1983. On having rendered a few years of service, the appellant sought an inter-departmental transfer from the Revenue Department back to the Fisheries Department and returned to Thiruvananthapuram and joined on 18.9.1987 on probation of two years with the service being subsequently regularised on 18.9.1989. The appellant earned his promotion as Upper Division Clerk (Higher Grade) (for short ‘UDC’) from which post he retired on attaining the age of superannuation on 31.12.2008. The total service rendered by the appellant was about 25 years, but excluding the service as CLR.
Developments:
3. In order to ameliorate the financial remuneration for CLR and Seasonal Labour Roll (for short ‘SLR’) posts, the State Government passed a slew of Government Orders (for short ‘G.O.’) from time to time and that is what gave hope and cause of action to the appellant as he sought the benefits under the same.
4. Some CLR workers were aggrieved by their non-regularisation of 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 of service in the Fisheries Department prior to 16.9.1985. On these persons approaching the High Court, the State Government was asked to address the issue and on such examination G.O. dated 20.8.1993 was issued creating 29 SLR posts in the Fisheries Department for absorption of the existing CLR workers. A G.O. was also issued on 31.3.2001 subsequently noting that these 29 SLR posts were created for such of the CLR workers who had completed 500 days of work before 1.4.1987, and simultaneously 27 employees in the Fisheries Department, who had worked for the past 20 years and had also completed 8 years as SLR workers were ordered to be permanently absorbed with consequent pensionary and provident fund benefits. Subsequently, the service and wage conditions of the SLR workers of the Fisheries Department were brought at par with those in the Agriculture and Animal Husbandry Department with effect from 31.3.2001 in pursuance of the G.O. dated 13.7.2006. It was, however, also stipulated that no new appointments would be made in the Fisheries Department in the CLR/SLR/HR categories.
5. Another significant development was the issuance of G.O. dated 21.8.2006 to the effect that the Pension (Gratuity) Rules of the SLR Workers/Permanent Labourers of Fisheries Department hereinafter
referred to as the ‘Pension Rules’) were framed to grant pension to these workers and bringing them at par with those working in the Agriculture and Animal Husbandry Department. The Pension Rules were brought with retrospective effect from 31.3.2001. These Pension Rules were to apply to all those SLR workers/Permanent Labourers of Departmental Hatcheries/Farms in the Fisheries Department, who were still in service as well as who had not completed 60 years of age as on that 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 period of service spent as casual labourer in the departmental farms prior to permanency would be treated as one year qualifying for pension. The legal significance was that service rendered as a casual labourer of a certain number of days was equated with one year of permanent service for purposes of pension qualification.
The Cause of the Appellant:
6. In view of the aforesaid developments, the appellant made a representation dated 27.11.2006 to the Assistant Director of the Fisheries Department for passing orders to treat his period of CLR service of more than 7 years as qualifying service for pension. In effect what the appellant claimed was that he should be treated at par with the other CLR service workers having worked in the Department for the requisite period of time. A plea of parity was, thus, raised.
7. The appellant, in this representation also made a request to be provided with service details of other such workers, and obtained requisite information which showed that the appellant’s name featured at the 2nd place out of 6 persons in order of starting of the casual service on the aforementioned pilot project. Thus, he was very senior. This representation received favourable consideration by respondent No. 2, Department of Fisheries with a recommendation being made by the Director. In the meantime, another G.O. dated 19.1.2007 was also issued clarifying that the casual service period of farm labourers would be counted for calculating qualifying service for pension and requiring all pension claims to be settled accordingly with prospective effect. However, the State Government/respondent No. 1 finally did not accept the recommendation of the Fisheries Department and rejected the representation of the appellant vide letter dated 16.5.2007 as according to the State Government the benefit could not be extended to the appellant since he was appointed by the KPSC and had not been absorbed in the Fisheries Department from the CLR service. If one may say, the other CLR employees who went through the process of regularisation, thus, gained the benefit which was sought to be denied to the appellant who came through a regular employment process through the KPSC. 8. The aforesaid, thus, gave rise to the cause for the appellant to file writ petition, being WP(C) No. 22931/2007, against the respondents pertaining to the quantum of pensionary benefits he was to receive at the time of retirement with the prayer that his service as a CLR worker from 7.7.1976 to 29.11.1983 be counted as 8 years of 1
qualifying service for pension.. The claim was predicated on the following grounds:
