N.A.KRISHNAKUMAR v. THE KERALA STATE CO-OPERATIVE EMPLOYEES'

BY ADV. SRI.K.RAMAKUMAR SRI.T.RAMPRASAD UNNI RESPONDENT: ------------- THE KERALA STATE CO-OPERATIVE EMPLOYEES' PENSION BOARD, P.B.NO.85, KALA NIVAS, TC NO.27/156, 157 CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-1. BY ADV.SRI.P.V.MOHANAN, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24002/2007 PETITIONER'S EXHIBITS: APPENDIX EXT. P1: COPY OF LAWYER'S NOTICE DATED 4.5.2007 SENT ON BEHALF OF THE PETITIONER TO THE RESPONDENT. EXT. P2: COPY OF REPLY DATED 25.5.07 SENT BY THE RESPONDENT TO EXT.P1. EXT. P3: COPY OF THE PROVISIONAL PENSION ORDER OF THE PETITIONER. JP /TRUE COPY/ P.S.TO JUDGE THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.24002 of 2007-G = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of March, 2008. JUDGMENT “CR”

Going by the counter affidavit of the first respondent, the petitioner, born on 27-5-1956, joined its service on 7-3-1979 and voluntarily retired on 30-9-2000.

Clause 21 of the Pension Scheme contained in G.O. (P)No.44/1995 dated 14-3-1995 provided that a retiring pension shall be granted to an employee who retired voluntarily after completing a minimum of 20 years of qualifying service. That was the provision that governed the parties while the petitioner retired.

Thereafter, on 7-3-2001, as per G.O.(P) WP(C)24002/2007 -: 2 :- No.53/2001, Clause 21 of G.O.(P)No.44/1995 was amended to include a further condition to the effect that retiring pension shall be granted to an employee who retired voluntarily “after completing a minimum of twenty years of qualifying service on attaining the age of 50 years.” That amendment is stated to have been brought in with effect from 1- 4-1998.

Section 80A of the Kerala Co-operative Societies Act, 1969 provides for framing a Self Financing Pension Scheme. By sub-section (1) of that section, the Government may, by notification in the Gazette, frame a Self Financing Pension Scheme. Section 80A is a self-contained code and it does not authorize amendment to the scheme retrospectively. Therefore, the amendment made as per G.O.(P)No.53/2001 by including the condition that the incumbent ought to have also crossed the age limit of 50 years, cannot apply to those who had, as a matter of fact, applied for and were granted voluntary retirement before 7-3-2001, the date of that notification. The WP(C)24002/2007 -: 3 :- petitioner being such a person, his entitlement has, therefore, to be determined with reference to G.O.(P).44/1995 without reference to G.O.(P) No.53/2001.

For the aforesaid reasons, the refusal to extend to the petitioner, retiring pension, is unsustainable.