Gokulan E.K. v. Agricultural University

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934 WP(C).No. 34870 of 2007 (A) --------------------------- PETITIONER : -------------------- GOKULAN.E.K., KRISHNA KAMAL, 77, PILLAVEEDU NAGAR, KESAVADASAPURAM THIRUVANANTHAPURAM (ASST.EXECUTIVE ENGINEER, (RTD) AGRICULTURAL UNIVERSITY). BY ADVS.DR.K.P.KYLASANATHA PILLAY SRI.K.JITHIN SRI.R.SUDHAKARA MENON SMT.SREEDEVI KYLASANATH RESPONDENT : --------------------- AGRICULTURAL UNIVERSITY, REPRESENTED BY REGISTRAR, VELLANIKKARA P.O. THRISSUR. BY ADV. SRI.RENJITH THAMPAN,SC,KERALA AGRL.UTY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## W.P.(C).NO.34870 OF 2007 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1 : COPY OF ORDER NO.GA(4)21465/75/D.DIS DATED 30.07.1976 - EXT.P2 : COPY OF ORDER NO.A3-4747/76/DPP DATED 4.8.1976 OF DIRECTOR OF PHYSICAL PLANT - EXT.P3 : COPY OF THE REPSRENTATION DATED 18.7.86 SUBMITTED BY THE PETITIONER - EXT.P4 : COPY OF THE REPRESENTATION DATED 02.05.2001 SUBMITTED BY THE PETITIONER - EXT.P5 : COPY OF REPRESENTATION DATED 9.10.2007 SUBMITTED BY PETITIONER BEFORE RESPONDENT - EXT.P6 : COPY OF THE GOVERNMENT ORDER NO.G.O.(P)543/89/FIN DATED 20TH NOVEMBER, 1989 EXT.P7 : COPY OF G.O.(P)3116/989FIN. DATED 15.12.1998 EXT.P8 : COPY OF THE G.O.(P)2357/99/FIN DATED 25TH NOVEMBER, 1999 EXT.P9 : COPY OF THE ORDER NO.GA/B1/7891 DATED 12.9.1996 EXT.P10 : COPY OF JUDGMENT DATED 22ND AUGUST, 2007 IN W.P.(C) 5474/2004 ## RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV ## **A.M.SHAFFIQUE, J ------------------------------------------WP(C) NO.34870 OF 2007 -------------------------------------------Dated this the 12[th] day of June, 2012** ## **JUDGMENT** The petitioner entered the service of the Kerala Agricultural University as Engineering Assistant on provisional basis during 1973. His provisional appointment was regularised in 1976 and was absorbed in the same category. He retired from service on 31.05.2002. It is the case of the petitioner that for computing increments as well as pension, his provisional service during the period from 1973 to 1976 has to be taken into consideration. The petitioner relied upon Ext.P8 Government Order which inter-alia reads as follows : “In the Government Order read as first paper above, orders were issued to reckon the provisional service as Qualifying Service for pensionary benefit from the date of order. It was inter-alia ordered that past cases settled would not be re-opened. Subsequently, the above orders were cancelled vide orders read as 3[rd] paper above consequent on the issuance of G.O cited 2[nd] . Now it has come to the WP(C) NO.34870 OF 2007 **2** notice of Government that certain inconsistencies pertaining to the effective date of orders for reckoning the provisional service for pensionary benefits still persists as clarification sought in the reference cited 4[th] read. 2. Government have examined the case in detail and are pleased to clarify that the provisional service with or without break rendered by the employees upto 30-9-1994 which qualifies for earning increments in terms of Government Decision No.2 under Rule 33 Part I, Kerala Service Rules will be reckoned as Qualifying Service for pension irrespective of dates of retirement after 20-11-1989. The provisional service rendered on or after 1-10-1994 will not be reckoned as qualifying service for pension. The cases of retirement from service during the period from 1-10-1994 to 15-12-1998 and pensionary claims already sanctioned will not be re-opened. 3. The Government Order read 1[st] and 3[rd] paper above stands clarified and modified to the above extent.” WP(C) NO.34870 OF 2007 **3** 2. Government Decision No.2 under Rule 33 Part I KSR during the relevant time read as follows : “Provisional service on regularisation with or without break in the same category or post will be treated as officiating service ab initio, for the limited purpose of granting increments. The provisional service followed by a regular appointment with or without break in the same category or post will also be treated as officiating service ab initio for the limited purpose of granting increments.” 3. On the basis of Ext.P8 it is contended that when Kerala Service Rules applies to the petitioner, as evident from Rule 4 of the Statues Prescribing Conditions of Service Relating to Officers, Teachers and other Employees of Kerala Agricultural University, the petitioner is entitled to the benefit of Ext.P8 Government Order and the provisional service rendered by the petitioner is also to be reckoned as qualifying service for pension, since Decision No.2 of Rule 33 Part I KSR was applicable to the petitioner. 4. The University has filed a statement inter-alia WP(C) NO.34870 OF 2007 **4** contending that as per G.O.(P)543/89/Fin. dated 20.11.1989 the provisional service of an employee with or without break will be reckoned for qualifying service for pensionary benefits w.e.f. 20.11.1989. In the cases which have already settled otherwise will not be reopened. It is also stated that above order was cancelled w.e.f. 01.10.1994 but the past cases already settled on the basis of said order will not be reopened. It is further stated that the request of the petitioner to count the daily wages service cannot be considered as service for pensionary benefits. 5. Having heard the learned counsel for the petitioner, I do not think that any materials had been produced by the respondents in order to deny the benefit of Ext.P8 order to the petitioner. 6. In that view of the matter going by the aforesaid Government Order in Ext.P8 and Decision No.2 under Rule 33 of Part I KSR referred above the petitioner is entitled for the pension taking into consideration his service since 1973. WP(C) NO.34870 OF 2007 **5** It could as well be seen from Ext.P1 that though the petitioner was appointed on daily wages initially he was regularised in service with effect from 12.07.1976. The fact that he was appointed on daily wages and was on provisional basis is not disputed. The counsel for petitioner also relied upon the judgment in **Idicula Abraham v. KSRTC and others (2005 (2) KLJ 602)** in support of the petitioner's case, wherein this Court held that provisional employees prior to 1994 and who were regularised much before 01.10.1994 was entitled to the benefit of the Government Order. (Ext.P8 in this case) 7. The writ petition is allowed with a direction to the respondent to grant increment by reckoning the provisional service of the petitioner in the light of the Government Decision No.2 under Rule 33 of Part I KSR and to re-fix the petitioner's pension by counting provisional service as qualifying service for pension in terms of Ext.P8 and disburse the monetary benefits owing to the petitioner in respect of WP(C) NO.34870 OF 2007 **6** his service on the basis of the said re-fixation within 3 months from the date of receipt of a copy of this judgment. A.M.SHAFFIQUE, JUDGE AV