Judgment:
Shaffique, J.
1. These appeals are filed by the 1st respondent in writ petitions/State of Kerala challenging judgment in W.P.C.Nos.23638 and 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 and MM Board). The petitioners, along with several others, were regularised in service in the KLD and 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 and 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 and 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 theGovernment 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.
4. Counter affidavit is filed by the 1st respondent wherein paragraph 9 of the counter affidavit filed in W.P.C.No.23638/2009 is relevant which reads as under:
9. It is submitted that Government as per G.O.(MS) No.127/08/AD dated 7.8.2008 have ordered that Since the employer's contribution of the EPF of these 24 persons has been paid by the Board which cannot be recovered now and since the employees are already getting EPF Pension, sanction of Government pension to these categories is not possible and withdrawn the G.O. (MS) No.25/01/AD dated 30.01.2001, sanctioning regularization of the Livestock Inspectors who had worked in the erstwhile Indo-Swiss Project and KLD and MM Board as Inseminators on contract basis from 1971-72 to 1978 in the Kerala Livestock Development Board. Board has completed all the formalities for getting the EPF and gratuity to the petitioners by submitting the respective forms to the EPF authorities. The petitioners were the staff category employees of the Board, they were come under the purview of staff rules and regulations applicable to the employees of the Board. The workers, Staff and Officers of the Board are covered under the Employees Provident Fund and Miscellaneous Provisions Act and Rules 1952 and the Employee's Pension Scheme 1995 as per the Staff Rules and Regulations Part III Rule 69, Under the Employees Provident Fund and Miscellaneous Provisions Act and Rules 1952 and the Employee's Pension Scheme 1995 the employees. A section of staff and officers alone has left out from the purview of pension scheme. It is also become impossible to bring out employees (section wise) from the purview of EPF Act. At the same time it was informed that as an organisation the Board can de-link from EPF scheme in accordance with the section 17(i)(b) of the said Act by implementing full benefits of GPF, Gratuity and pension to all categories of the employees working in the board. It will accumulate a huge financial commitment to the Board/Government. Moreover, the retirement age of the worker category employees in the Board is 58. Implementing Government pension to such category is technically difficult.
5. The learned Single Judge, after detailed consideration of the facts and circumstances of the case, allowed the writ petitions quashing Ext.P15 and a direction was issued to the Government to implement Ext.P4 order and also to pay arrears of pension. It is further mentioned that if the dues are not paid within a period of three months, the State shall be liable to pay interest @ 12% on the arrears of pension with effect from the respective date on which the pension became due to the petitioners.
6. While impugning the aforesaid judgment, Smt.Girija Gopal, the learned Senior Government Pleader, appearing on behalf of the appellants inter alia contended that the learned Single Judge has not properly appreciated the fact situation. It is argued that Ext.P4 had to be interfered with in terms of Ext.P15 on account of the impossibility in carrying out the obligations in terms of Ext.P4. It is submitted that while regularising the petitioners' service from the initial date of their contract appointments, it is clearly indicated that pension and gratuity will be paid as if they are Government employees and in respect of retired persons, the benefit will be extended subject to the condition that they will refund the employer's contribution of EPF. Though the Provident Fund Department have indicated that they are ready to transfer the employers' contribution, it became impractical by virtue of which the Government issued Ext.P15 order dated 07/08/2008. It is submitted that in Ext.P15, it is clearly indicated that the reason for non-settlement of pensionary claims is on account of the fact that the EPF authorities were not agreeable to refund the employer's share to the EPF account of employees or to extend Live Stock Inspectors from the provisions of the scheme. Further, the Managing Director has reported that the financial position of the company is not sound enough to bear the additional expenses. Therefore, on account of pension contribution and revised salary due to petitioners, it is observed that Government pension cannot be sanctioned to retired Live Stock Inspectors as the EPF authorities cannot refund the employers' contribution. Learned Government Pleader argued that when such a condition has been imposed in Ext.P4 which has virtually become impossible, the Government had no other option than to withdraw Ext.P4. It is therefore argued that this is not a case that Government had acted arbitrarily or have taken away any vested right of the petitioners. It is an instance where the conditions imposed in Ext.P4 had become an impossibility as the PF Department did not transfer the employer's contribution as contemplated and therefore there is no justification on the part of the learned Single Judge in quashing Ext.P15.
7. On the other hand, Sri.O.V.Radhakrishnan, learned counsel appearing for the respondents 1 to 8, while supporting the judgment, placed reliance on the statement filed by the PF Department wherein they have stated that they have no objection in transferring the employer's contribution. It is therefore argued that it is not a case of impossibility in performing the condition whereas this is a case in which the Government have taken an arbitrary decision for withdrawing the benefits already granted. The learned counsel also relied upon the judgment in Chengamanad Service Co-op.Bank Ltd. v. Mohanan [2009 (3) KLT 623] to contend that this Court can interfere in the decision of the learned Single Judge only in the event the decision is either arbitrary or perverse. Reliance has been placed on paragraph 4 which reads as under:
"4. We feel that the above contention of the learned counsel is subject to a rider that the Society has no other alternative efficacious remedy under law. But, learned counsel would point out that the remedy under the statute is not efficacious. The right under S.37(2) of the Act is one created by the provisions of the Act. Normally, if a debtor violates the terms of the loan agreement, the remedy of the aggrieved party is to move the competent court, get a decree and execute the same. In this case, for the benefit of the Society, a special right is created and for implementation of that right, remedies are also provided under the Act. If the employer does not act as mandated by S.37(2) of the Act, he can be prosecuted under S.94(5) read with S.95 of the Act. S.95 of the Act provides that for prosecution, sanction of the Registrar is required. S.37(2) of the Act enables the Society to move unilaterally by determining the amount due to it and make a requisition. In certain cases, even if the entire amount legally due is paid, he Society may make further demands and contemplating such a situation, the Legislature provided that prosecution for an offence under S.94(5) can only be with the sanction of the Registrar. A special right is created by the Legislature in favour of the Society, which has to be exercised subject to the limitations therein. So, the appellant cannot complain that the remedy provided under the statute is not efficacious. Further, for recovery of the amount, the usual general remedy is to approach the Arbitrator under S.69 of the Act. The learned Single Judge dismissed the Writ Petition noticing the alternative remedies available to the appellant-Society. In such acase, the Appellate Court can interfere, only, if it is found that the decision of the learned Single Judge to decline jurisdiction under Art.226 of the Constitution of India is arbitrary or perverse. We find it difficult to hold that the learned Single Judge exercised thediscretion illegally or in an arbitrary or perverse manner. Therefore, this appeal is not maintainable, going by the principles governing the appellate remedy available under S.5 of the Kerala High Court Act: see the decision of the Division Bench of this Court in Lakshmanan v. Roy Alexander (1992 (2) KLT 634), wherein it was held as follows:
8. In this connection, we should remember that the exercise of the discretionary jurisdiction, one way or the other, under Art. 226 of the Constitution of India, has many facets and may require consideration from different angles. If, in a particular case, a single Judge has exercised the discretion by adopting any one of the alternatives open to him in disposing of the original petition, it is not sufficient if the appellant urges before the appellate court that the court below or the learned single Judge could have exercised the discretion in some other way. The appellant should be able to convince the appellate court that the single Judge exercised the discretion arbitrarily or perversely to warrant interference in writ appeal. More than three decades ago, delivering the judgment of the Division Bench in Rajalekshmi Motor Service v. Government of Kerala (1960 KLT 85 = AIR 1960 Ker.229 = 1959 KLJ 1425), that great Judge M.S. Menon, J., in his inimitable and majestic style, laid down the law thus:
lyengar, J., did not consider these factors as sufficient to decline interference, and in such a case, whatever may have been our own reactions in similar circumstances, we should not interfere unless we are satisfied that the decision is perverse. It is not contended that such is the case .
In Neelakanta Kartha v. Registrar, Kerala Agricultural University (1978 KLT 408), delivering the judgment of the Bench, Gopalan Nambiar, C.J. candidly stated the law thus:
We cannot certainly rule out what the learned Judge has stated as an unreasonable, much the less an impossible, view. The view appears to us to be certainly a plausible one, and is supported by the dictionary meaning of the term pursuance , which the learned Judge has extracted. In cases and situations where the learned Judge has thumbed in favour of one of two plausibl interpretations, it is a golden rule not to interfere in proceedings under Art.226. The learned Judge having dealt with the matter under Art.226 and taken a view which is certainly plausible, we do not think we would be justified in interfering .
One of us (Paripoornan, J.), delivering the judgment of the Bench in Mayadevi v. Rajan (1985 KLT 376), reiterated the above position in law and observed thus:
The view taken by the learned single Judge is certainly a plausible one. We may also state that even if two views are possible in the matter, it cannot be said that the view adopted by the learned single Judge is perverse . On this reasoning also, no interference is called for in the Writ Appeal. See Neelakanta Kartha v. Registrar (1978 KLT 408) and Rajalakshmi Motor Service v. Government of Kerala (1960 KLT 85 = 1959 KLJ 1425 at p.1430 para.14) .
More recently, in State of Kerala v. Balakrishnan (1992 (1) KLT 420), another Bench of this Court, cited with approval the earlier three decisions and followed the ratio held down in the said cases.
9. In the light of the above four Bench decisions of this Court, it is for the appellants to establish that the decision of the learned single Judge is arbitrary or perverse. The appellants have failed to allege or prove that the decision of the leaned single Judge is arbitrary or perverse, to merit interference in Writ Appeal.
8. Having regard to the aforesaid factual situation, the short issue to be considered in the present writ petition is whether the petitioners are entitled for the benefits flowing from Ext.P4. The learned Single Judge, while considering the case that the Regional Provident Fund Commissioner (Legal), while addressing a letter to the Assistant Provident Commissioner has stated that there is no prohibition in transferring the employer's contribution in respect of the members, if required by the State Government. Further reference has been made to Exts.P13 and P14 by which letters have been issued by the PF Organization to Sri.N.K.Chandran Pilllai and Sri.A.Ahmed, wherein also, reference is made that the PF Organization is willing to transfer the amounts. Learned Single Judge further found that the reasons stated in Ext.P15 that the financial position of the Corporation is not sound enough to bear the additional expenditure in respect of payment of pension contribution and revised salary, cannot be a valid reason for withdrawing Ext.P4. It is found that though there is a confusion that State Government pension will be given to retired personnels, receipt of EPF pension cannot be a ground for denying State Government pension and gratuity which is accrued to the petitioners as per Ext.P4 Government Order. It is held that claim for State Government pension cannot be denied by Ext.P15 as it is violative of the doctrine of legitimate expectation.
9. The first question to be considered is whether there is any breach of promise on the part of the Government in complying with the terms of Ext.P4. This question requires to be considered since the learned Single Judge proceeded on the basis that the petitioners had a legitimate expectation to get Government pension. In fact, the principle of legitimate expectation, under normal circumstances, cannot be made applicable to service jurisprudence as the terms and conditions of the service is based on rules and regulations framed in that regard. Ext.P4 dated 30/04/2001 was only a concession that has been extended to certain group of employees, who were working on a contract arrangement in the ISP. They were regularised in service with effect from 03/04/1978. There was a proposal to regularise their service from the date of their initial appointment which was considered by the Government. Paragraph 4 of Ext.P4 reads as under:
4. Government having examined the issue in detail, are pleased to sanction the regularisation of the services of Livestock Inspectors who had worked in the Indo-Swiss Project as Inseminators on contract appointment from 1971/72 date of their initial appointment on contract basis and subject to the following conditions.
(i) No arrears shall be paid. They will not be eligible for GPF. They will be treated as Government employee in every respect except for GPF and arrears.
(ii) Pension and Gratuity will be paid as if for Government employees. In the case of retired personnel also the same benefit will be extended subject to the condition that they will refund the employer's contribution of EPF.
(iii) Government/Board shall make pension contribution for the respective period of service.
10. Ext.P4 had been superseded by Ext.P15 order dated 07/08/2008 wherein the following has been stated:
But the pensionary benefits in respect of retired Livestock Inspectors are not settled till date. The reason for the non-settlement of pensionary claims pointed out by the Managing Director, Kerala State Livestock Development Board is that the EPF authorities were not agreeable to refund the employer's share to the EPF account of employees or to exempt Livestock Inspectors from the provisions of the scheme. The Managing Director has also reported that the financial position of the company is not sound enough to bear the additional expenditure in respect of the payment of pension contribution and revised salary on account of retrospective regularization of Livestock Inspectors.
Meanwhile, Sri.A.Karim and 4 other Livestock Inspectors (Rtd.), Kerala State Livestock Development Board have filed an OP No.6885/03 before the Hon'ble High Court of Kerala praying to direct the respondents to implement the pension scheme ordered as per GO(MS) No.25/01/AD dated 30/01/2001 and to disburse the monthly pension due to petitioners. The Hon'ble Court as per the judgment dated 16.02.06 directed Government to take appropriate action in accordance with law in the matter.
Government pension cannot be sanctioned to the retired Livestock Inspectors as the EPF authorities has not agreed to refund the employer's contribution which is one of the conditions laid down in the Government Order dated 30.01.01. Hence Government have rejected the request of the petitioners vide G.O(Rt) No.499/07/AD dated 27.03.07 (and also as per erratum issued vide G.O(Rt) No.1356/07/AD dated 24/7/2007).
Since the employer's contribution of the EPF of these 24 persons has been paid by Kerala Livestock Development Board (which cannot be recovered now) and since the employees are already getting EPF Pension, sanction of Government Pension to these categories is not possible.
In the circumstances, the G.O.(MS) No.25/01/AD dated 30/01/2001 issued sanctioning regularization of the Livestock Inspectors who had worked in the erstwhile Indo-Swiss Project and KLD and MM Board as Inseminators on contract basis from 1971-72 to 1978 in the Kerala Livestock Development Board is hereby withdrawn.
11. One reason stated in Ext.P15 is that EPF authorities were not agreeable to refund the employer's share to the EPF account of employees. If this is a fact, necessarily, the Government is justified in withdrawing Ext.P4. Though the financial difficulty of the Board is also mentioned, this was the only reason stated for withdrawing Ext.P4 order. The learned Single Judge had relied upon certain materials to form a conclusion that EPF authorities have not taken such a view. In fact, the EPF authorities were parties to the present proceedings as respondents 3 and 4. They have not filed any counter affidavit in the case. Relief No.(iv) in W.P.C.No.31569/2009 was for a direction to respondent 3 and 4 to transfer the employer's contribution to EPF in respect of the petitioners. Grant of pension in terms of Ext.P4 had become very complex on account of various factors. This has been highlighted by the 1st respondent in the counter affidavit. In order to enable the petitioners to get pension from the Government, various formalities have to be complied with, which is narrated in paragraph 9 of the counter affidavit in W.P.C.No.31569/2009 which reads as under:
9. It is submitted that Exhibit P13 G.O.was issued only because it is not possible to fulfill the conditions in Exhibit P4 G.O. It is not violative of Art.14 or Art.16(1) of the Constitution of India. The attention of this Honourable court is invited to letter No.KR/12211/Enf.1(5)/2002 dated 23 July 2002 by Assistant Provident Fund Commissioner, which has been marked as Exhibit P6(20). In Exhibit P6(20) letter, it has been noted that establishment is not inclined to implement GPF to livestock inspectors and it has been pointed out that there is no statutory provision to permit a covered establishment to deny Provident Fund benefit to employees. In other words, it would be illegal to deny GPF to the employees when they are taken out of the purview of the EPF Act. Exhibit P6(20) then goes on to suggest that consequent upon ensuring that full benefit of GPF, pension and gratuity is extended to all the employees, establishment can seek exemption under Section 17(1)(b) of the EPF Act. Thus it follows from Exhibit P6(20) that in order to seek the benefit of Section 17(1)(b) of the EPF Act, all employees of the establishment, ie, the 2nd respondent have to be provided GPF, pension and gratuity. Exhibit P4 relates only to a certain class of employees ie, livestock inspector in whose case subject to certain conditions regularization was granted and there was no proposal before the 1st respondent to provide these benefits to all the employees of the 2nd respondent. Moreover in Exhibit P4, the Government had sought to exempt the livestock inspectors from receiving GPF, which the EPF authorities have stated is not legally sustainable. It is submitted that Exhibit P13 is the result of a considered decision and cannot be characterized as unreasonable, arbitrary and ultra vires Article 14 and 16(1), 21 and 300A of the Constitution.
12. Taking into account the aforesaid factual situation, we are of the view that this is not an instance where a mandamus could be issued after quashing Ext.P15. Ext.P15 had been issued under certain special circumstances by which it has become impossible for the Government to comply with the conditions issued in Ext.P4. Therefore, there was no other alternative than to revoke Ext.P4. This cannot be treated as a legitimate right to get Government pension. It is trite that legitimate expectation is not a legal right. It is an expectation of benefits, relief or remedy that may ordinarily follow promise or established practice. It should be legitimate, that is, reasonable, logical and valid (Ram Parvesh Singh and Others v. State of Bihar and Others [2006 (8) SCC 381]. In the case on hand, Ext.P4 was conditional and therefore the learned Single Judge was not justified in forming an opinion that the petitioners had a legitimate expectation which ought to have been granted by the Government.
13. Under such circumstances, we are of the view that the learned Single Judge had not appreciated the factual circumstances involved in the matter in the proper perspective. There was no material for the learned Single Judge to have directed the Government to grant pension to the petitioners especially on account of the fact that the conditions in Ext.P4 had not been complied with. The Government had undertaken to pay Government pension only on certain conditions, which admittedly had not been complied with even today. Under such circumstances, the learned Single Judge had committed clear error of law in directing payment of Government pension to the petitioners.
13. In the light of the above factual scenario, the only direction that could have been granted is to direct respondents 3 and 4 to remit the employer's contribution of the writ petitioners to the Board and if the said contribution is deposited, appropriate direction could be issued in the matter. Until such time, we are of the view that Ext.P15 order has to be kept in abeyance.
Accordingly, the writ appeals are allowed. Judgment dated 07/11/2014 of the learned Single Judge is set aside and the writ petitions are disposed of with the following directions:
i) That respondents 3 and 4 shall remit employer's contribution with reference to the petitioners to the Board within a period of one month from the date of receipt of a copy of this judgment.
ii) On receipt of the said amount, Government/Board shall make pension contribution for the respective period of service and the pension shall be paid accordingly.
iii) Ext.P15 shall be kept in abeyance until the aforesaid period of one month and if the contribution is not remitted by the EPF Organisation as stated above, Ext.P15 order shall apply and the petitioners shall be entitled only for the benefit mentioned in Ext.P15.