## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 29TH DAY OF MAY 2019 / 8TH JYAISHTA, 1941**
## **WP(C).No. 977 of 2018**
## **PETITIONER/S:**
**1 B.GIRIJA AGED 56, W/O SETHURAJAN, T.C.NO.1108, KESAVAN NAIR ROAD, POOJAPPURA, THIRUVANANTHAPRUAM,(WORKING IN TRAVANCORE DEVASWOM BOARD PRESS, NUMBERING). 2 V.NIRMALA KUMARI AGED 56, W/O MOHANAN PILLAI, VIJAYA VILASAM,CHENCHERI, NALANCHIRA P.O., THIRUVANANTHAPURAM 695015, (WORKING IN TRAVANCORE DEVASWOM BOARD PRESS, BINDING).**
**BY ADV. SRI.D.AJITHKUMAR**
## **RESPONDENT/S:**
**1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, NANTHANCODE,THIRUVANANTHAPURAM-695003. 2 SECRETARY TRAVANCORE DEVASWOM BOARD, NANTHANCODE,THIRUVANANTHAPURAM-695003. 3 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANTHANCODE,THIRUVANANTHAPURAM-695003. 4 CULTURAL DIRECTOR TRAVANCORE DEVASWOM BOARD, NANTHANCODE,THIRUVANANTHAPURAM-695003. BY ADV. SRI.C.K.PAVITHRAN, SC, TDB**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
This writ petition is filed seeking the following
reliefs:
“i. To issue a writ of cretiorari or other appropriate writ order or direction to call for entire records leading to Exhibit P10 order dated 20.7.2017 and quash the same.
ii. To issue a writ of mandamus or any other writ, order or direction directing the respondents to count the petitioners' daily wage employment for the purpose of pensionary benefits.”
2. Heard the learned counsel for the
petitioners and the learned Standing Counsel
appearing for the Travancore Devaswom Board.
3. It is submitted that the first petitioner was working as a daily wage employee in the Devaswom Board Press from 8.6.2005 pursuant to Ext.P1
proceedings. The second petitioner had been working from 16.6.2001 onwards. The petitioners had been appointed as temple employees by Exts.P2 and P8 orders, respectively. Thereafter, by Ext.P3
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proceedings dated 8.2.2013, the petitioners were
appointed on a regular basis in the Travancore Devaswom Board Press. They retired from service on
30.6.2018 and 30.4.2018, respectively. They
submitted a representation seeking the counting of the prior daily wage service put in by them towards pensionary benefits since they do not have the required qualifying service for pension, if their
regular service alone is taken note of. Reliance was
also placed on Exts.P5 and P6 Board orders dated 12.3.2015 and 9.6.2015 respectively, whereby other employees had been granted the benefit, as was sought for by the petitioners. The request was directed to be considered by this Court by the judgment dated 3.9.2015 in W.P.(C) No.13245 of 2013. Thereafter,
the claim of the petitioners had been considered by the Board and Ext.P10 proceedings were issued rejecting such claim. The said order is under challenge.
4. The learned counsel for the petitioners would submit that the contention of the petitioners
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that identically situated persons had been granted the benefit of counting of the prior daily wage service put in by them for pension has not been considered in Ext.P10. It is further contended that a larger bench of this Court in a decision reported in _**Francis v. Kerala State Road Transport Corporation**_ ( _**2015(1) KLT 1051)**_ has considered the claim of employees in the KSRTC and has held that the earlier daily wage service put in by such employees was liable to be considered for pension. It is stated that the Full Bench had referred to all the decisions on the point and had held that the earlier daily wage service rendered by the employee, who had later been granted regular appointment after selection is liable to be taken as qualifying
service, for the purpose of pension. It is further contended that the specific instances pointed out by the petitioners as is evident from Exts.P5 and P6 Board orders, which has been highlighted in the representations preferred by the petitioners have not been considered by the Board.
**WP(C).No. 977 of 2018 5**
5. The learned Standing Counsel appearing for the Devaswom Board would contend that Ext.P10 is a speaking order, which considers the contentions of the petitioners. It is stated that in earlier cases, prior provisional service before 30.9.1994 had been taken into account in the light of Government Decision No.2 under Rule 33 of Part I of KSR. It is stated that in cases, where the prior service was before 30.9.1994, orders granting the benefit of reckoning of such service for pension has been passed by the Board. With regard to Ext.P6 Board order, where the prior daily wage service was from the year 2000 to 2011, it is submitted by the learned Standing Counsel appearing for the respondent that the fact that the Board had committed a mistake and had granted benefits de-hors the Rules to one person, cannot be a ground for the petitioners to claim the same benefit in the absence of any Rule permitting the reckoning of such daily wage service. With reference to the decision of the larger bench reported in _**Francis's Case (Supra),**_ the learned
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Standing Counsel would submit that the said case was specifically an instance, where the prior daily wage service of more than 10 years was followed by a regular appointment through the PSC and it is referring to those specific facts that the larger bench had held that the petitioners in those cases, who were employees of the KSRTC were entitled for counting the said service. It is also contended that
the said decision was rendered specifically taking note of a bipartite settlement entered into between the KSRTC and its workmen providing such a benefit for the workmen. In the instant case, it is contended that the facts are entirely different. The petitioners had been engaged as daily wage workers in
the Devaswom Board Press de-hors the regular
selection procedure. The very regularization in service granted to them was in the nature of a concession. It is therefore contended that the claim
of the petitioners for counting of the earlier service is completely misconceived.
6. I have considered the contentions advanced.
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The claim of the petitioners based on the decision of the larger bench may not be sustainable in the light of the fact that the facts of the said case are entirely different. The larger bench was considering the case of employees of the KSRTC, who had worked as empanelled drivers on daily wages. The daily wage appointments were followed by a due selection process
and a regular appointment after due selection procedure. There was a bipartite settlement entered into between the KSRTC and its workmen specifically providing for counting of the prior service put in by such empanelled drivers and mechanical staff before their regular appointment for the purpose of pension. In the above view of the matter, the finding that the earlier daily wage service was liable to be treated as qualifying service for pension is specific and applicable to the facts of the said case and not in a case, as in the present one, where the petitioners had been regularized in service, taking note of their earlier daily wage service alone.
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order or settlement, on which the petitioners rely to contend that their prior service have to be taken note of for pension. The contention of the petitioners in the representations submitted by them was on the basis of earlier orders passed by the Board themselves. Ext.P5 would reveal that the prior service in that case was from 16.10.1986 to 1.5.1988. It appears that the officer in the said case had been regularized in service before 1994. By Ext.P11 judgment, this Court had considered the claim of persons, who had prior provisional service before 30.9.1994 and had allowed their claim for counting the period as qualifying service for pension, on the strength of Government Decision No.2 under Rule 33 of Part I of KSR. In the present case, the petitioners' daily wage service has started only in 2005 and 2001, respectively.
8. In the above view of the matter, the
contention of the petitioners that the petitioners are entitled to the same benefit as in Ext.P5 is not tenable. However, Ext.P6 is a case of an employee,
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who had daily wage service from the year 2000 to 2011 in the Devaswom Board itself. The petitioners had specifically pointed out the said case of Sri.Chandran Nair, which is covered by Ext.P6 Board order in their representations preferred seeking the benefit. However, Ext.P10 does not state anything about the said order. It is stated in the statement filed on behalf of the Board that there is no provision in the existing Rules to treat the provisional service after 1994 as part of regular service for the purpose of pension. It is stated that the petitioners cannot claim any benefit on the basis of Ext.P6, which is a wrong order.
9. On a consideration of the contentions
advanced on either side, I am of the opinion that the petitioners' claim that they are entitled to treating the prior daily wage service as regular service for the purpose of pension, on the strength of the decision of the larger bench or on the basis of Ext.P11 is not a tenable contention. In case of Ext.P5 order also, it is clear that the earlier
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provisional service was before 30.9.1994 and as such, stands on a different footing than the daily wage service rendered by the petitioners from 2005 and 2001, respectively. However, Ext.P6 is a Board order, in which the provisional service is from the year 2000 to 2011. It is the Board which had, after considering the contentions and the reports, decided to treat the earlier period of provisional service as qualifying service for the purpose of pension. The petitioners had specifically pointed out the case of the employees covered by Ext.P6 in Ext.P7 representation preferred by them. However, Ext.P10 order does not refer to the said contention raised by the petitioners. I am therefore of the opinion that the Board is duty bound to reconsider the matter and to pass a speaking order, after hearing the petitioners with reference to Ext.P6 order as well.
There will accordingly be a direction to the respondent Board to reconsider the issue and to pass an appropriate order after hearing the petitioners as well and taking note of their specific contention in
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Ext.P7 that Ext.P6 is passed with reference to an identically situated person. The orders as directed above, shall be passed within a period of three months from the date of receipt of a copy of this judgment.
The writ petition is ordered accordingly.
## **Sd/-**
**ANU SIVARAMAN**
sab
**JUDGE**
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## **APPENDIX**
**PETITIONER'S/S EXHIBITS: EXHIBIT P1: TRUE COPY OF ORDER OF THE BOARD APPOINTING THE IST TO PETITIONER AS DAILY WAGE EMPLOYEE DATED 8.6.2005. EXHIBIT P2: TRUE COPYOF THE ORDER OF THE 3RD RESPONDENT DATED 24.7.2012. EXHIBIT P3: TRUE COPY OF ORDER ROC.20/07/EST.DATED 8.2.2013. EXHIBTI P4: TRUE COPY OF RELIEVING ORDER DATED 16.2.2013 ISSUED BY THE ASST. DEVASWOM COMMISSIONER, NEYYATTINKARA. EXHIBIT P5: TRUE COPY OF BOARD ORDER DATED 12.3.2015. EXHIBIT P6: TRUE COPY OF ORDER OF THE BOARD DATED 9.6.2015. EXHIBIT P7: TRUE COPY OF REPRESENTATION GIVEN BY IST PETITIONER BEFORE THE BOARD DATED 8.11.2016. EXHIBTI P8: TRUE COPY OF BOARD ORDER DATED 13.1.2011. EXHIBTI P9: TRUE COPY OF REPRESENTATION GIVEN BY 2ND PETITIONER BEFORE THE BOARD DATED 23.5.2017. EXHIBIT P10: TRUE COPY OF BOARD ORDER DATED 20.7.2017. EXHIBIT P11: TRUE COPY OF JUDGMENT IN WPC NO.13245 OF 2013 DATED 3.9.2015.**
