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

IN THE SUPREME COURT OF INDIA

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.
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 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. ↑ 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 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 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 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 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 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 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 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 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 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.