V. Sukumaran vs State Of Kerala . on 26 August, 2020

Supreme Court of India

V. Sukumaran vs State Of Kerala . on 26 August, 2020

Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, Ajay Rastogi

                                                                          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
Signature Not Verified

unsuccessfully, despite having worked with Government departments in
Digitally signed by
ASHA SUNDRIYAL
Date: 2020.08.26
19:24:06 IST
Reason:

various capacities for about 32 years.

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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

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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

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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
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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

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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
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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 of1 qualifying service for

pension.. The claim was predicated on the following grounds:

a. 29 SLR posts were created to regularise those CLR workers

who had completed 500 days of work, and had the appellant

continued in service of the Fisheries Department, he would

have found a place in one of those 29 posts having worked

for 1678 days.

b. The G.O. dated 21.8.2006 provided for 200 or more days of

work in a calendar year during the period of service as CLR

worker prior to the permanency, calculated as equivalent to

one year regular service qualifying for pension and, thus, the

appellant was entitled to 8 years of qualifying service of

pension on account of his service as CLR worker.

c. The details sought and disclosed vis-a-vis the other casual

workers vide letter dated 4.12.2006 showed that the

appellant was second senior most person and the first person

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

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had got his CLR service regularised as SLR worker with

pension being granted to him accordingly.

d. The rejection by the State Government of the

recommendation of the Fisheries Department was wrongful.
e. The appellant would be entitled to his maximum

pensionable service only if the CLR service was regularised

as qualifying service on parity with his co-workers and had

he continued to work in the Fisheries Department, he would

have undoubtedly been regularised.

9. Appellant also placed reliance on Rule 13, Part III of the Kerala

Service Rules (for short ‘Service Rules’), which come to his aid, and read

as under:

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

      xxxx          xxxx        xxxx         xxxx         xxxx”


The Respondent’s Stand:

10. The writ petition was sought to be resisted on the ground that the

benefit of G.O. dated 21.8.2006 was available only to those CLR workers

who were regularised as SLR workers and none of the G.O.s would

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govern the appellant. The benefit of Rule 4(f)(iii) of the Pension Rules

was pleaded to be not extendable to the appellant and all these would

have applied had he continued to work as a CLR worker for the Fisheries

Department. The appellant was, however, appointed by the KPSC and

not absorbed in the department from the CLR service and for this the

rules of pension were entirely different as under Part II of the Service

Rules.

11. We may note the stand of the appellant in respect of the aforesaid

was that insofar as 29 SLR posts were concerned, only 27 workers in the

Fisheries Department were absorbed and, thus, he would have been easily

absorbed against the two remaining posts, more so on account of his

seniority.

The View of the High Court:

12. The learned Single Judge dismissed the writ petition by the order

dated 16.1.2009 primarily on the ground that the appointment of the

appellant to the Revenue Department was in pursuance of his selection

by the KPSC and, thus, he could not compare himself with the CLR

workers, who had obtained regularisation as SLR workers and were

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governed by various G.O.s. The appellant had not been absorbed in the

Fisheries Department from the category of CLR workers. There was no

G.O. or provision under the relevant rules for counting the period of

service as CLR worker of persons like the appellant who secured

appointment through the KPSC as an LDC. No declaration had been

made under Rule 11 of the Service Rules in Part III and in the absence of

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 Government
may

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

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

xxxx xxxx xxxx xxxx xxxx”

13. The appellant being naturally aggrieved preferred an appeal, being

W.A. No. 892/2009, which endeavour was also unsuccessful as the said

appeal was dismissed by the impugned order dated 3.6.2009. Once

again, the basis was the same as the reasoning of the learned Single Judge

that CLR service was not provided as qualifying service for the purposes
10
of grant of pension in cases like the appellant, who joined the Revenue

Department in pursuance of a recruitment process of the KPSC and was

only transferred to the Fisheries Department by an inter-departmental

transfer at his own request.

Arguments:

14. The arguments before us have been in the same compass as what

has been specified aforesaid. The appellant pleads that he must be

entitled for service rendered by him of 1678 days as CLR worker of and

that the true intention of the G.O. dated 20.8.1993 should be given effect

to, being a decision taken in the interest of the workers. The grounds set

out hereinabove for the claim of the appellant in para 8 were, once again,

repeated before us.

15. Learned counsel for the appellant also sought to emphasise that

pension is a right vested in a Government servant and is not a bounty

payable at the will and pleasure of the Government as also that pension is

a social welfare measure and a post retirement entitlement; something

with which we began our order. (; D.S. Nakara and Ors. v. Union of

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India2 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 the respondents,

once again, that the appellant could not be treated at par with those CLR

workers, who were absorbed as SLR workers vide G.O. dated 20.8.1993

as the concept of regularisation of long and continuous service giving

benefit to casual employees could not be equated with a casual employee

getting a permanent job through KPSC. The appellant had been enjoying

the benefits as a direct recruit to a higher post since 1983, which were not

available to his other original co-workers till 2001 when they were

regularised by the G.O. dated 31.3.2001. Had the inter-departmental

transfer to the Fisheries Department not have taken place, the appellant in

any case would not have been in a position to lay a claim.

Conclusion:

17. We have given our thoughtful consideration to the controversy

before us, albeit in a limited contour. Leave was granted in this matter on

2 (1983) 1 SCC 305
3 (2006) 9 SCC 630
4 1971(2) SCC 330

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23.4.2010 but the matter has seen its fate of hearing only after a decade

despite hearing being expedited when leave was granted!

18. We are unable to accept the rationale and reasoning of the learned

Single Judge and the Division Bench of the High Court in the given facts

and circumstances of the case.

19. 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.

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 CLR worker

and his being at serial No. 2 for grant of pensionary benefits in the list of

details of CLR workers had he continued as one. The appellant was able

to advance his career by going through a process of direct recruitment by

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the KPSC successfully. It is not a case of some unreasonable or improper

benefit being extended to the appellant but that he competed against

others and was successfully recruited.

21. It is also not in dispute that he was transferred to the Fisheries

Department albeit at his own request and demitted office from there after

earning promotion. To say that the appellant would be denied the benefit

of the period spent as CLR worker for his pensionary benefit would be to

treat his case as inferior one to the case of other CLR workers, who never

went through a system of recruitment for regularisation but were

regularised in the Fisheries Department to provide better working

conditions and monetary benefits to the employees. Can it really be said

that a regularly recruited person like the appellant should not get the

benefit which the other people who were CLR workers would 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 long years of service

as a CLR worker of 1678 days (7 years 4 months and 23 days).

22. Had the respondents not issued the G.O.s, no doubt the appellant

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would 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

conditions of working along with monetary benefits. The appellant did

work for the aforesaid long period of time as a CLR worker and should,

thus, be entitled to the same on parity vis-à-vis other CLR workers. The

appellant was at serial No.2 in the aforementioned list and would have

been so absorbed when 29 posts were created. In fact, only 27 posts out

of these 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 be

compelled 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 as a

CLR worker to one year’s regular service for the purposes of pension.

While one would commend such effort by the State Government, it

would be very unreasonable to deny this to the appellant in view of the

aforesaid facts.

23. What also weighs with us is that the appellant is being deprived of

the maximum pensionable service which would be permissible to him if

his period of CLR service is recognised as qualifying service and there is

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no reason to deny the same to him when other CLR workers have got this

benefit at the time of their absorption and subsequent regularisation as

SLR workers and who would have, by virtue of joining at a later point

of time, rendered less service. We also feel that Rule 13 of the Service

Rules would possibly come to the aid of the rationale we seek to adopt as

on absorption in the establishment, such persons are given the benefit of

counting 50 per cent of their earlier work service prior to absorption for

the purposes of pension.

24. We are, thus, of the view that for all the aforesaid reasons, the

appellant is entitled to succeed in the present appeal and the impugned

orders are liable to be set aside. We also find that the rejection of the

recommendation of the Fisheries Department, respondent No. 2, by

respondent No. 1 was consequently improper and unsustainable. The

benefit of the service rendered as a CLR worker would, thus, be liable to

be counted for determining the pensionary benefits of the appellant at par

with other CLR workers and the pension be accordingly calculated. The

arrears of pension be remitted to the appellant within a maximum period

of eight (8) weeks from today with admissible interest as applicable to

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outstanding pension amounts.

25. The appeal is accordingly allowed with costs throughout.

………………………………J.

[Sanjay Kishan Kaul]

………………………………J.

[Ajay Rastogi)

………………………………J.

[Aniruddha Bose)
New Delhi.

August 26, 2020.

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