STATE OF KERALA Vs. K. KARIM AND ORS.

JUDGEMENT

(1.) These appeals are filed by the 1st respondent in writ petitions/State of Kerala challenging judgment in W.P.C. Nos. 23638 & 31569 of 2009. The writ petitions were filed by respondents 1 to 8 herein challenging Ext. P15 Government Order dated 07/08/2008 (in W.P.C. No. 23638/2009), for a direction to the Government to implement Ext. P4 Government Order dated 30/01/2001, for a further direction to settle and disburse State Government pension and Gratuity admissible to the petitioners in terms of Ext. P4 Government Order dated 30/01/2001, to pay the arrears of pension with interest, for a direction to respondents 3 and 4 to transfer the employer's contribution of EPF in respect of the petitioners, to the 1st respondent, and for a direction to the 2nd respondent to transfer the employer's contribution to the 1st respondent to enable the petitioners to receive pension immediately. W.P.C. No. 31569/2009 is filed seeking similar reliefs. Ext. P13 dated 07/08/2008 is the impugned order, which is Ext. P15 in W.P.C. No. 23638/2009. For easy reference, the documents as exhibited in W.P.C. No. 23638/2009 are referred, unless otherwise stated.

(2.) The facts involved in these writ petitions would disclose that the petitioners retired from the service of Kerala Live Stock Development Board on different dates. They were initially recruited as Inseminators in the Indo -Swiss Project (ISP) under the Animal Husbandry Department during 1971 -72 on contract basis. Later the ISP was merged with the Kerala Live Stock Development and Milk Marketing Board (KLD & MM Board). The petitioners, along with several others, were regularised in service in the KLD & MM Board with effect from 03/04/1978. They were deputed to undergo Live Stock Assistants Training Course conducted by the Kerala Agricultural University. They successfully completed the training and were appointed as Live Stock Assistants as per order dated 01/04/1984. Thereafter, the KLD & MM Board was reconstituted as the Kerala Live Stock Development Board Ltd. (hereinafter referred to as 'the Board'). In the meantime, certain original petitions were filed before this Court by certain persons who were working on contract basis in the Board. The Original Petitions were disposed of directing the Government to consider the question of regularisation. Pursuant to the said judgment, Government issued order dated 13/06/1997 regularising the service of 24 contract employees in their respective posts. According to the petitioners, since they were working on contract basis in ISP and later were appointed as Live Stock Assistants in the Board effective from 01/04/1984, they were also to be similarly placed as that of others who were regularised in service. They filed several representations before the Government seeking regularisation. Petitioners' service were regularised by the Board on 03/04/1978. But the contract period from 1971 to 02/04/1978 in the erstwhile ISP and KLD & MM Board Ltd. was treated as "pay contract". On the recommendation of the Managing Director of the Board to regularise the Live Stock Inspectors who had worked in ISP during 1971 -72 to 1978 from the date of their initial appointment, Government, as per Ext. P4 order dated 30/01/2001, regularised the service of Live Stock Inspectors who had worked in ISP from the dates of their initial appointment on contract basis on condition that no arrears shall be paid and they will not be eligible for GPF. For the purpose of GPF and arrears, it is stated that they will be treated as Government employees in every respect except for GPF and arrears. Pension and Gratuity will be paid as if they are Government employees. The benefit was extended to retired persons as well. Certain persons, who were covered by Ext. P4 Government Order filed O.P. No. 6885/2003 seeking to implement the Government Order and disburse their pension and other retiral benefits. By judgment dated 16/02/2006, this Court directed the 1st respondent to take appropriate action in accordance with law. The Government, by Ext. P8, has taken a decision that the Government pension cannot be sanctioned to the retired Live Stock Inspectors since the EPF authorities have not agreed to refund the employee's contribution of EPF which is one of the conditions laid down in the Government Order dated 30/01/2009. Another order was issued on 24/07/2007, by which the word 'employee's contribution' in Ext. P8 was corrected as 'employer's contribution'. The petitioners, relied upon the statement filed by the EPF organisation in Contempt Petition (Civil) No. 306/2007, wherein it was stated that there was no prohibition in transferring the employer's contribution in respect of the live members, if required by the State Government, to grant the State Government pension for eligible members. It is further submitted that petitioners 1 and 7 were informed by the 4th respondent that they have no objection in transferring the employer's share of provident fund pension contribution along with interest to the State Government, if the State Government is prepared to accept the same treating the said petitioners as State Government employees. However, the complaint of the petitioners is that, by Ext. P15 Government Order dated 07/08/2008, the Government have withdrawn Ext. P4 Government Order dated 30/01/2001. Petitioners contend that Ext. P15 is arbitrary and illegal in so far as they have been denied State Government pension and gratuity, which is a right accrued on them in terms of Ext. P4 Government Order and hence Ext. P15 may be quashed.

(3.) In the counter affidavit filed by respondents 2 and 3, it is stated that the petitioners were working on contract basis which has to be renewed from year to year, until they were regularised in the Board on 03/04/1978. The period of work from 1971 -1978 was treated as 'on contract basis'. It is stated that, as per Ext. P4 Government Order, petitioners will be treated as Government employees in every respect except for GPF and arrears. Pension and Gratuity will be paid as if for Government employees. It is mentioned that, in case of retired personnel also, the same benefit will be extended subject to the condition that they will refund the employer's contribution to the EPF. It is stated that a major hurdle for implementing the Government Order is the de -linking of EPF of Live Stock Inspectors and to receive back management contribution given to the EPF account of Live Stock Inspectors. Each unit of the Board has separate EPF numbers and the individuals have separate EPF numbers when they work in each unit. During the said period, Board was having 14 units scattered all over Kerala and most of the Live Stock Inspectors were working in most of the units since they were transferable employees. Since the EPF contribution of the employees have been regulated from the units scattered all over Kerala with the regional offices of EPF scheme and interest at varying rates over the years deducting loans are involved, the quantification of the amount remitted by the Board with interest applicable for each period could be known and calculated only with the assistance of the employees and EPF authorities. Further, continuance of the EPF scheme was not necessary since it has been declared that they are not eligible for EPF. Therefore the primary task of knowing the exact management contribution with interest and refund of that amount was attended by addressing the EPF authorities with whom the contribution are resting over the years. Though steps were taken to get the details of EPF authorities by issuing various letters, there was no favourable reply from the EPF Department.