High Court of KeralaSingle Judge2022-04-04Writ petition disposed of; petition allowed in ...

A.C. Antony v. State of Kerala, Kerala State Road Transport Corporation (KSRTC) & Assistant Transport Officer KSRTC, Kalpetta, Wayanad

Case / Petition Number:WP(C) NO. 12512 OF 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2022-04-04
Court Decision / Holding: There will be a direction to the respondents to count the 37 days of leave regularised as per Ext.P5 for grant of minimum pension to the petitioner. The regularization will not enable the petitioner to claim any salary for the period, but shall be limited to securing a minimum pension as ordered above. The respondents shall reconsider the matter in light of these directions and pass fresh orders expeditiously, within two months, with notice to the petitioner. This writ petition is disposed of.
Final Disposition: Writ petition disposed of; petition allowed in part with directions to count 37 days for minimum pension; no salary for that period; two-month deadline for fresh orders.

Parties to the Case

Appellants / Petitioners

A.C. Antony

Respondents

State of Kerala represented by Secretary, Transport Department, Thiruvananthapuram
Kerala State Road Transport Corporation (KSRTC) represented by Chairman and Managing Director, KSRTC, Thiruvananthapuram
Assistant Transport Officer KSRTC, Kalpetta, Wayanad

Legal Representation & Advocates

Counsels for Petitioners

• K. Shibili Naha
• A. Lowsy Sona
• Jayaraman K.

Counsels for Respondents

• Sri. Deepu Thankan, SC

Case Synopsis & Summary

This writ petition by A.C. Antony, a Conductor Grade-I in the Kalpetta KSRTC, challenges the denial of minimum pension by counting only 8 years 11 months 4 days of service, excluding 37 days of regularized leave. Antony sustained injuries in an elephant-attack incident on 8.8.2018 and went on medical leave for about 105 days. After treatment, Ext.P4 fitness certificate dated 21.11.2018 was produced, but he was not allowed to rejoin until 28.12.2018. Ext.P5 regularized 105 days as eligible leave with medical certificate; the 37 days from 21.11.2018 to 27.12.2018 were treated as eligible leave without a medical certificate. The respondents informed him that his qualifying service for minimum pension fell short by 26 days because the 37-day period while he remained out of duty, despite submitting Ext.P4, was not counted. The petitioner argues that provisional service prior to regular appointment should be counted for pension per the court’s ruling in K.L. Francis v. KSRTC (2015 (1) KLT 1051) and notes continuous service for pension purposes given his provisional period (2000–2012) and total tenure exceeds 20 years. He seeks (1) mandamus to count 37 days toward minimum pension, (2) declaration of entitlement to minimum pension under the 2015 precedent, and (3) increment. The respondents insist the 37 days were regularized as leave without medical allowance (LWA) and hence not countable for pension under Rule 26 of Part III KSR, and rely on a KSRTC scheme accepted by the Supreme Court directing representations. The court ultimately allows the petition, directing counting of the 37 days for minimum pension, clarifying no salary for that period, and requiring fresh orders within two months, with the petition disposed of.

Provisions of Law Cited

Rule 26 of Part III Kerala Service Rules (KSR)Right to Information Act (2005)

Legal Doctrines & Maxims

Procedural delay by authorities should not penalize the employee (Additional Chief Secretary, Trivandrum and Ors. v. P.R. Jaysree, 2022 (1) KHC 434)
Provisional service prior to regular appointment can be counted for pension (K.L. Francis v. KSRTC, 2015 (1) KLT 1051)
Leave without medical certificate/regularized LWA cannot be counted as qualifying service under Rule 26 Part III KSR

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the denial of minimum pension by excluding 37 days of leave regularized as per Ext.P5 is illegal and arbitrary. He asserts that the 37-day period was necessitated by the respondents’ delay in processing the fitness certificate and securing Head Office orders, and that the period should be counted toward qualifying service for pension in light of K.L. Francis v. KSRTC (2015 (1) KLT 1051). He argues that his overall continuous service (including provisional service from 2000 to 2012) exceeds 20 years and that the delay in joining due to administrative holdups cannot penalize him for a procedural lapse. He seeks a mandamus to count the 37 days toward minimum pension and, if applicable, an increment, with the court directing fresh orders within two months.

Contentions of Respondents

The respondents submit that the 37 days were regularized as leave without medical allowance (LWA) and cannot be counted as qualifying service under Rule 26 of Part III KSR. They rely on a KSRTC scheme, accepted by the Supreme Court, which requires the petitioner to file a representation to raise entitlement. They point out that 8.8.2018–27.12.2018 included 37 days not supported by medical certificates and treated as LWA; Hence, the period cannot be counted for pension. They also maintain that a retrospective counting would undermine pension rules and that the scheme is to be implemented after due representation and orders from authorities.”},

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
K.L. Francis v. KSRTC	2015 (1) KLT 1051	Positive	Used to support counting provisional service for pension.
Additional Chief Secretary, Trivandrum and Ors. v. P.R. Jaysree	2022 (1) KHC 434	Positive	Cited to justify non-penalization for procedural delay affecting joiner/entitlements.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944 WP(C) NO. 12512 OF 2021** ## **PETITIONER/S:** A.C.ANTONY AGED 56 YEARS S/O.A.V.CHACKO, RESIDING AT ANICKAL, NADAVAYAL P.O., WAYANAD 670 721. BY ADVS. K.SHIBILI NAHA A.LOWSY SONA JAYARAMAN K. ## **RESPONDENTS :** 1 STATE OF KERALA REPRESENTED BY SECRETARY, TRANSPORT DEPARTMENT, THIRUVANANTHAPURAM 695 582 2 KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY CHAIRMAN AND MANAGING DIRECTOR, K.S.R.T.C THIRUVANANTHAPURAM 695 023 3 ASSISTANT TRANSPORT OFFICER K.S.R.T.C., KALPETTA, WAYANAD 673 121. SRI. DEEPU THANKAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 12512 OF 2021** **2** ## **JUDGMENT** The petitioner herein, while working as a Conductor Grade-I in the Kalpetta Depot of the KSRTC, attained superannuation on 28.2.2021. He has approached this Court with this writ petition seeking directions to the respondents 2 and 3 to grant minimum pension to the petitioner after counting the 37 days of leave, which has been regularized as per Ext.P5. ## 2. Brief facts are as under: While functioning as Conductor, on 8.8.218, the petitioner was knocked down by a wild elephant in the Pulpally Forest Range. He suffered serious injuries and proceeded on medical leave as he had to undergo treatment for a prolonged period. Ext.P3 series medical certificates substantiate the said fact. After undergoing treatment for about 105 days, Ext.P4 treatment certificate was issued by the Chief Medical Officer, District Ayurveda Hospital, Kalpetta certifying that the petitioner was fit to join service. Armed with Ext.P4, the petitioner approached the 3rd respondent and submitted the same on **WP(C) NO. 12512 OF 2021** **3** 21.11.2018. However, for reasons best known to the 3rd respondent, the petitioner was not issued an order permitting him to rejoin duty. Finally, on 28.12.2018, after about 142 days of entering into medical leave, the petitioner was permitted to join duty. Immediately thereafter, Ext.P5 order was issued, by which leave for the period from 8.8.2018 to 20.11.2018 (105 days) was regularised as eligible leave with medical certificate. The period from 21.11.2018 to 27.12.2018 (37 days) was treated as eligible leave without medical certificate. 3. Later, the petitioner was informed by the 3rd respondent prior to his superannuation that his eligible service for minimum pension fell short by 26 days. On further enquiry, the petitioner was informed that the 37 days during which the petitioner was not permitted to join duty despite the submission of the fitness certificate, was not counted to his service for the purpose of pension. 4. Being aggrieved, the petitioner approached the 2nd respondent and filed Ext.P6 representation detailing his grievance. However, no action was **WP(C) NO. 12512 OF 2021** **4** taken. 5. Later, the petitioner submitted an application under the RTI Act requesting information as to why the minimum pension was not being granted to the petitioner. In response, the petitioner was informed by Ext.P8 reply that the minimum service required is 9 years and 1 day and the petitioner had only service of 8 years 11 months and 4 days. The petitioner also contends that he was initially employed as an empanelled conductor on a provisional basis and he was regularised in service as per Ext.P2 on 25.4.2012. According to the petitioner, he has put in continuous service of more than 20 years including provisional service from 26.7.2000 to 24.4.2012 and in view of the law laid down by this Court in K.L. Francis v. KSRTC [2015 (1) KLT 1051], the provisional period of service prior to the regular appointment can be counted for the purpose of pension. 6. The petitioner asserts that the denial of pension to the petitioner is illegal and arbitrary and has approached this Court seeking the following reliefs: **WP(C) NO. 12512 OF 2021** **5** 1. Issue a writ of mandamus or any other appropriate writ, order or directions to respondent No.2 & 3 to grant minimum pension to the petitioner counting the 37 days of leave regularized as per Ext.P5. 2. To declare that the petitioner is entitled to minimum pension as per the dictum laid down 2015 (1) KLT 1051 (LB) reckoning the period of his provisional service. 3. To issue direction to the 2nd and 3rd respondent to sanction and disburse increment due to the petitioner in the interest of justice. 7. In the counter affidavit filed by the respondents, it is stated that the judgment relied on by the petitioner and rendered by a Full Bench of this Court has been challenged before the Apex Court and by order dated 02.03.2022, the Hon’ble Court has accepted a scheme furnished by the KSRTC as per which, the petitioner is requested to make a representation before the Corporation raising his entitlement. It is further stated that while the petitioner was working, he was on leave from 8.8.2018 to 27.12.2018 (142 days) for which period, the petitioner submitted a medical certificate only for the period from 8.8.2018 to 20.11.2018 (105 days). Leave from 8.8.2018 to 21.11.2018 was regularised as medical leave and the remaining period of 37 days from **WP(C) NO. 12512 OF 2021** **6** 21.11.2018 to 27.12.2018 was regularised as leave without medical allowance vide Ext.P5 order. As he had no other leave in his credit, the 37 days were regularised as LWA without a medical certificate. In view of the above, 37 days cannot be counted as qualifying service as time passed on leave of all kinds without allowances cannot be counted as per Rule 26 of Part III KSR. 8. A reply affidavit has been filed by the petitioner wherein it is stated that though Ext.P4 fitness certificate dated 21.11.2018 was submitted before the Corporation on the same day, the petitioner was permitted to join duty only on 27.12.2018, 37 days after submission of Ext.P4. It is stated that the delay in the processing of Ext.P4 cannot be attributed to the petitioner. 9. I have considered the submissions advanced and have gone through the records. 10. It is not disputed by the respondents that the petitioner had sustained injuries while he was on service and that he was under treatment for a period of 105 days from 8.8.2018 to 20.11.2018. Ext.P4 is the fitness **WP(C) NO. 12512 OF 2021** **7** certificate issued by the treating doctor and the same is dated 21.11.2018. The specific case of the petitioner is that he had presented Ext.P4 on 21.11.2018 but he was permitted to join duty only on 28.12.2018, after 142 days of entering medical leave. This period includes the 37 days during which he was kept out of service. It is after considering the plight of the petitioner that Ext.P5 order was issued as per which the period during which he was kept out of service was categorised as eligible leave without medical certificate. Though the respondents in their counter assert that no materials have been placed to show that the petitioner had in fact offered to join duty on 21.11.2018, I find no reason to reject the said assertion. Except for producing the fitness certificate before the respondents and offering to rejoin duty, there is nothing much that the petitioner could have done. It was due to the delay on the part of the respondents in considering Ext.P4 fitness certificate and in securing orders from the Head office that the petitioner had to sit out during the period of 37 days after submission of Ext.P4. As held by this Court in Additional Chief Secretary, Tvm and Ors. v. P.R.Jayasree [2022 (1) KHC 434], the petitioner cannot be penalized for the procedural delay **WP(C) NO. 12512 OF 2021** **8** caused by the respondents to get orders from the Head Office and permit the petitioner to join duty. In view of the discussion above, the petitioner is entitled to succeed. There will be a direction to the respondents to count the 37 days of leave regularised as per Ext.P5 for grant of minimum pension to the petitioner. It is made clear that the regularization carried out as above will not enable the petitioner to claim any salary for the said period, but shall be limited to securing a minimum pension as ordered above. The respondents shall reconsider the matter in the light of the directions above and fresh orders shall be passed expeditiously, in any event, within a period of two months, with notice to the petitioner. This writ petition is disposed of. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C) NO. 12512 OF 2021** **9** ## **APPENDIX OF WP(C) 12512/2021** - PETITIONER(S) EXHIBITS : EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 3RD RESPONDENT DATED 26.7.2000. - EXHIBIT P2 TRUE COPY OF THE ORDER APPOINTING THE PETITIONER AS CONDUCTOR GRADE II DT. 25.4.2012 ISSUED BY 3RD RESPONDENT. - EXHIBIT P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 8.8.2018 ISSUED BY THE CHIEF MEDICAL OFFICER, KALPETTA. - EXHIBIT P3(a) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 28.8.2018 ISSUED BY THE CHIEF MEDICAL OFFICER, KALPETTA - EXHIBIT P3(b) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 18.9.2018 ISSUED BY THE CHIEF MEDICAL OFFICER, KALPETTA - EXHIBIT P3(c) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 8.10.2018 ISSUED BY THE CHIEF MEDICAL OFFICER, KALPETTA - EXHIBIT P3(d) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 29.10.2018 ISSUED BY THE CHIEF MEDICAL OFFICER, KALPETTA - EXHIBIT P4 TRUE COPY OF THE FITNESS CERTIFICATE DATED 21.11.2018 ISSUED BY THE CHIEF MEDICAL OFFICER, DISTRICT AYURVEDA HOSPITAL, KALPETTA. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 5.11.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 25.2.2021. **WP(C) NO. 12512 OF 2021** **10** EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE TRANSPORT DEMOCRATIC FEDERATION DATED 26.2.2021 EXHIBIT P8 TRUE COPY OF THE REPLY ISSUED BY THE 2ND RESPONDENT UNDER RIGHT TO INFORMATION ACT DATED 4.5.2021. RESPONDENT(S) EXHIBITS : EXHIBIT R1(a) TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO.78/11/TRN/TVM DATED 22.12.2011.