Dr. Malathy M.R. v. Deputy Director of Collegiate Education, Ernakulam; Director of Collegiate Education, Thiruvananthapuram; State of Kerala; Accountant General (A&E), Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **WP(C).No.14207 OF 2013(A)** ## **PETITIONER/S:** **DR. MALATHY M.R., LECTURER, SELECTION GRADE [RETD], DEPARTMENT OF BOTANY, ST.PETER'S COLLEGE, KOLENCHERRY, ERNAKULAM DISTRICT, RESIDING AT 'PARAYATHU HOUSE', EDATHALA P.O., POOKKATTUPADY-683 561.** **BY ADV. SRI.S.MUHAMMED HANEEFF** ## **RESPONDENT/S:** - **1 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM - 682 011.** - **2 DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM - 695 001.** - **3 STATE OF KERALA, REP. BY ITS SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **4 ACCOUNTANT GENERAL [A&E], KERALA, THIRUVANANTHAPURAM -695 039.** - **R1 TO R4 BY SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.14207 of 2013** **2** ## **JUDGMENT** This writ petition is filed by a Lecturer, seeking to declare that the approved broken service from 02.11.1983 to 18.08.1984, 18.09.1989 to 31.08.1990 and 04.08.1993 to 31.05.1997 is entitled to be reckoned for the purpose of pension and other benefits, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner entered in service as Junior Lecturer with effect from 02.11.1983 and continued up to 18.08.1994 in a leave vacancy and thereafter reappointed in other leave vacancies from 18.09.1989 to 31.08.1990 and from 04.08.1993 to 31.05.1997. Thereafter, petitioner was appointed in a substantive vacancy with effect from 01.06.1997. According to the petitioner, all the said vacancies were approved by the Mahatma Gandhi University. The respondents, taking into consideration her approved service as specified above, granted pension and other benefits after the retirement as per Ext.P9, and an amount of Rs.10,33,766/- was sanctioned as commuted value and an amount of Rs.19,404/- as pension amount. However, petitioner received Ext.P10 letter, stating that there **W.P.(C)No.14207 of 2013** **3** is revision of pension due to change in qualifying service as directed by the 2[nd] respondent, and accordingly, her commuted value of pension is reduced to Rs.9,35,331/- and pension is reduced to Rs.17,556/and other consequential deductions are also made. Therefore, according to the petitioner, Ext.P10 order is _per se_ illegal and is issued without any notice to the petitioner, and without taking into account the above specified approved broken service as per Exts.P1 to P3. 3. A detailed counter affidavit is filed by the 2[nd] respondent, justifying the stand adopted in Ext.P10 on the basis that Government decision No.2 under Rule 33 of K.S.R Part-I will be reckoned as qualifying service for pensionary benefits. However, in the case of the petitioner, her provisional service has not fulfilled the terms of the Government decision No.2 specified above for granting increment. Therefore, petitioner is not entitled to get pensionary benefits reckoning the service rendered from 02.11.1983 to 18.08.1984 and 31.08.1990 to 04.08.1993, since they were purely on provisional basis. 4. The 4[th] respondent has also filed a statement, justifying the stand adopted by the Government. **W.P.(C)No.14207 of 2013** **4** 5. I have considered the rival submissions made across the Bar. In fact, this issue raised by the petitioner is covered by a Division Bench judgment of this Court in ' _**Shameer Ali v. Deputy Director of Collegiate Education**_ ' [2018 (3) KLT 925], wherein the prior services rendered by Lecturers in Aided Private Colleges was taken into account, and held that, while determining pensionary benefits consequent to superannuation/retirement from Government Colleges, it is subject to the six specific conditions mentioned in Rule 14E(b) of Part III K.S.R., and held as follows in paragraph 3: _“_ _**3** . The learned Single Judge, of course, has, in the judgments impugned, noticed and adhered to the provisions of Rule 14E, Part III of the K.S.R., and since an effective exposition on the issues herein twirl on the interpretation to be adopted to this Rule, we deem it appropriate to extract Rule 14E of the K.S.R. as under:_ _“14E. (a) Aided School Service put in by Government employees prior to entry in Government service qualifies. Takes effect from 24th January 1968._ _(b) Aided private college service, both teaching and non-teaching, of Government employees prior to their entry in Government service shall qualify for pensionary benefits, subject to the following conditions, namely:-_ _(i) The actual period of regular full time service rendered from the date of actual introduction of Direct Payment System in the aided private college shall be counted._ **W.P.(C)No.14207 of 2013** **5** _(ii) Service rendered prior to the introduction of Direct Payment System in any aided private college shall be counted only for the period of those incumbents who have been paid salary under grant-in-aid scheme introduced with effect from 1965._ _(iii) In cases of resignation of the appointment in private college service for the purpose of taking up appointment in Government, break, if any, between the private college service and the Government service shall not exceed the joining time admissible under the service rules, plus public holidays. Service prior to resignation for other purposes shall not be counted._ _(iv) The Government contribution if any, to their Provident Fund Account in respect of their aided private college service shall be refunded to Government._ _(v) The Management's share of contribution if any in Provident Fund Account in respect of aided private college staff shall be credited to Government. In such cases, a certificate in the following form shall be recorded in the Service Book by the Head of Institution in which the incumbent had worked duly countersigned by the Head of the Department._ _“Certified that the Governments'/Managements' share of contribution with interest thereon which should otherwise have gone to the employee has not been/shall not be paid to him/her but has been/shall be credited to Government.”_ _The certificate regarding the crediting of Managers' contribution is not necessary when contributions are to be paid back to the Management under rules._ _(vi) For counting the aided private college service, a certificate in the following form shall be recorded in the Service Book by the Head of the Institution in which the incumbent had worked duly countersigned by the Head of the Department._ _“Service has been verified with reference to the initial records such as attendance registers, acquittance rolls, pay bills etc., and is_ **W.P.(C)No.14207 of 2013** **6** _qualifying for pension.”_ _(c) Regular full time Government service of aided private college staff and aided private school staff prior to their entry in aided private college service and aided private school service shall be counted for pension for such service.”_ 6. Petitioner has no case that the private college service rendered by the petitioner was regular full time service from the date of actual introduction of Direct Payment System. However, learned counsel for the petitioner submitted that the said provision is to be read harmoniously along with Rule 5 of Part II Kerala State & Subordinate Services Rules, 1958 (for short, 'the Rules, 1958'), and especially, Notes (1) and (2) thereto, where it is stipulated that, “(1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies; and (2) The vacancies on account of leave and deputation with a duration of less than six months shall be treated as vacancies of short duration, provided, such vacancies with a duration of three months to six months should not be treated as vacancies of short duration, if the vacancies are likely to last long or new vacancies are likely to arise”. 7. However, in my considered opinion, the provisions of Rule 5 of the Rules, 1958 deals with **W.P.(C)No.14207 of 2013** **7** method of recruitment, and the notes referred to above are dealing with the substantive vacancies, which has nothing to do with the benefits of the broken spells of service, as is claimed by the petitioner in the writ petition. On a reading of the Division Bench judgment of this Court in ' _**Shameer Ali**_ ' ( _supra_ ), it is clear that the issue raised by the petitioner is covered thereunder. In that view of the matter, I do not think petitioner has made out any case justifying interference of this Court with Ext.P10 order and the reliefs sought for by the petitioner. The writ petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-05.11.2019** **W.P.(C)No.14207 of 2013** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE ST.PETERS COLLEGE TRUST, KOLENCHERRY DT. 02.11.1983.** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE ST.PETERS COLLEGE TRUST, KOLENCHERRY DATED 18.09.1989.** **EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE ST.PETERS COLLEGE TRUST, KOLENCHERRY DT. 04.08.1993.** **EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE ST.PETERS COLLEGE TRUST, KOLENCHERRY DT. 01.06.1997.** **EXHIBIT P5 A TRUE COPY OF THE ORDER NO.275/B2/84/ACAD DT. 7.6.1984 OF THE MAHATMA GANDHI UNIVERSITY.** **EXHIBIT P6 A TRUE COPY OF THE ORDER NO.262/84/B7/ACAD DT. 01.07.1995 OF THE MAHATMA GANDHI UNIVERSITY. EXHIBIT P7 A TRUE COPY OF THE ORDER NO.262/94/B7/ACAD DT. 16.04.1998 OF THE MAHATMA GANDHI UNIVERSITY. EXHIBIT P8 A TRUE COPY OF THE ORDER NO.1939/AC.BV/4/3009/ACAD. DT. 05.05.2009 ISSUED BY THE MAHATMA GANDHI UNIVERSITY. EXHIBIT P9 A TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DT. 05.09.2012. EXHIBIT P10 A TRUE COPY OF THE LETTER NO.PR 2101285009/P-1/4/1512176747 DT. 19.12.2012 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION NO.AC.BV/4/231/2004 DT. 31.07.2007 OF THE MAHATMA GANDHI UNIVERSITY.** ## **RESPONDENTS' EXHIBITS: NIL**