## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941**
**RP.No.29 OF 2020 IN WA. 471/2016**
**AGAINST THE JUDGMENT IN WA NO.471/2016 IN WP(C) NO.32839 OF 2004 OF THE HIGH COURT OF KERALA DATED 01.07.2019**
## **REVIEW PETITIONERS/APPELLANTS/RESPONDENTS 2 & 3:**
- **1 KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY THE SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 001.**
- **2 THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL DIVISION, KARUNAGAPPALLY.**
**BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED**
## **RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENTS 1 & 4:**
- **1 A.ABDUL SHERIEF, VALIYAVILAYIL BUNGALOW, PADINJATTAKKARA P.O., RETIRED SENIOR ASSISTANT, ELECTRICAL SECTION, THEVALAKKARA690 524.**
- **2 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.**
- **3 DIRECTOR, DIRECTORATE OF PANCHAYATH, THIRUVANANTHAPURAM-695 001.**
**BY SR.GP SRI.P.N.SANTHOSH**
**THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06.03.2020, ALONG WITH R.P. NO.137 OF 2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941**
## **RP.No.137 OF 2020 IN WA. 1744/2015**
**AGAINST THE JUDGMENT IN WA NO.1744/2015 IN WP(C) NO.2247 OF 2013 OF THE HIGH COURT OF KERALA DATED 01.07.2019**
## **REVIEW PETITIONERS/APPELLANTS 1,2 & 3/RESPONDENTS 1 TO 3:**
- **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY THE SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.**
- **2 THE CHIEF ENGINEER(HRM), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.**
- **3 THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., CIVIL CIRCLE, KAKKAYAM, KOZHIKODE-673 615.**
- **BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED**
## **RESPONDENTS/RESPONDENTS 1,2&3/PETITIONER & RESPONDENTS 4 & 5:**
- **1 R.V. GEORGE, S/O.VARKEY, RATHAPILLY HOUSE, KUPPAYACODE P.O., KODENCHERRY, KOZHIKODE-673 580.**
- **2 GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.**
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**3 DIRECTOR, DIRECTORATE OF PANCHAYATH, THIRUVANANTHAPURAM-695 001.**
**BY SR.GP SRI.P.N.SANTHOSH**
**THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06.03.2020, ALONG WITH R.P. NO.29 OF 2020,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **O R D E R**
## **K. Vinod Chandran, J.**
**The review has been filed on the ground that** _**Mohammed Basheer v. State of Kerala & Others [2014 (4) KHC 658]**_ **relied on by the Division Bench has been referred to a Full Bench.**
**2. We need to notice the background facts. In R.P. No.29 of 2020, the 1[st] respondent was a person, who had an earlier stint in Panchayat service between 04.07.1973 to 15.09.1980, prior to his entry in the KSEB. In R.P. No.137 of 2020, the 1[st] respondent, who does not appear here, too had a similar stint in the Panchayat service between 09.08.1977 to 21.08.1989. Both the petitioners sought for reckoning of prior service for determining their qualifying pensionable service in KSEB. They relied on Rule 20 of Part III of the Kerala Service Rules [KSR].**
**3. The Division Bench found that the KSEB having adopted the KSR wherever the word 'State**
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**Government' appears, it has to be substituted with**
**'KSEB' as has been held in** _**Abdul Jabbar v. Kerala State Electricity Board [2010 (1) KLT 586]**_ **. The Board relied on the Note to Rule 20 of the KSR to contend that from the date of introduction of the Note, the proviso to Rule 20 shall not be applicable** _**inter alia**_ **to a public sector undertaking; which the KSEB is. The Division Bench took note of the Note in its entirety and found that if the entry into KSEB is prior to the date of introduction of the Note, there could be no application of the exclusion of the applicability of proviso to appointments** _**inter alia**_ **to or from public sector undertakings. In this context,** _**Mohammed Basheer v. State of Kerala**_ **[supra] was relied on.**
**4. We notice** _**Mohammed Basheer v. State of Kerala**_ **, wherein the prior service was in autonomous bodies like KSRTC, KSEB, Khadi and Village Industries Board and so on and so forth. The appointments to all of these bodies were also carried out by the Public Service Commission; as is the case with the State**
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**services. This position is quite the opposite from the facts as available in the present case. When** _**Mohammed Basheer**_ **and also the batch of cases, where there was a reference made to a Full Bench, was concerned with prior service in autonomous bodies, here, the prior service was in the Panchayat service, which was sought to be reckoned for the purpose of pension in the KSEB, wherein the respondents had later service, from which undertaking, they also superannuated.**
**5. In this context, we notice Rule 20 of the KSR in its entirety. Rule 20 as it existed specifically laid down that service paid from the local fund does not qualify for pension, except under special orders of the Government. In this context, Rule 11 of the KSR is also relevant, which speak of the power of the Government to declare, any specified kind of service; in general or in individual cases, to be qualified for pension. It is Rule 11, which was noticed by the Division Bench in the reference order produced as Annexure A2 to find that there is no Government Order**
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**indicating the prior service in autonomous bodies being reckoned for pension; when superannuation is from the later Government service.**
**6. As the Division Bench noticed, Rule 20 has to be considered in the context of the decision in** _**Abdul Jabbar**_ **[supra]. If we look at Rule 20, service paid from a local fund, does not qualify for pension unless there are special orders of the Government. The Proviso to the Rule, indicates certain categories of past service, would qualify for pension and DCRG from Government, if such service was prior to the entry in the State Government.** _**Abdul Jabbar**_ **held that when KSR was adopted by the KSEB, wherever the word 'State Government' came, it has to be substituted with the word 'KSEB'. Hence the Proviso has to be read to indicate that past service** _**inter alia of**_ **the Panchayat Common Service, before entry into KSEB, would be reckoned as qualifying service for pension and DCRG from KSEB. The respondents herein entered service of the KSEB in 1980 and 1989. In the year 2009, a Note was**
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**introduced, which made inapplicable the Proviso, for appointments to or from public sector undertakings and autonomous bodies as also the specified Universities. However, the Note has to be read in its entirety, which includes the second limb after the list of Universities are enumerated. By the second limb of the Note, it was stipulated that when payment towards Prorata pension liability has already been made by a former employer, the case shall not be reopened. It also stipulated that in all other cases, the payment if has become due, but not paid, such payment shall not be made. Hence what was intended by the second limb of the Note was not to upset the applicability of the proviso before the date on which the Note was brought in, ie. 19.11.2009.**
**7. When any person had come into the service of the KSEB with past service in the specified categories mentioned in the Proviso and the former employer had paid the prorata pension, there need not be any reopening of the same. Hence, if KSEB had received any money on that count, it need not be**
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**refunded to the former employer. Likewise it was also provided that if any amount is due, then there was no requirement for such payment to be made after the Note came into effect. This clearly indicates that for those who joined before 19.11.2009, the proviso would be applicable if the prorata pension is paid or not by the former employer.**
**8. We also notice that the KSEB had not only adopted the KSR, but also the subsequent amendments made there to. Hence the Note applies insofar as the respondents are concerned.**
**9. The learned Standing Counsel for the KSEB submits that the Board has specifically issued an order on 18.03.2007 that reckoning of prior service would not be permissible for employees who joined KSEB after 2007. This also would not affect the persons, who joined prior to that.**
**10. We find that even eschewing** _**Mohammed**_
_**Basheer**_ **from consideration, there can be no different view taken in the case of the petitioners, who have**
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**moved from the Panchayat service to KSEB prior to the introduction of the Note in Rule 20 of Part III KSR.**
**In such circumstances, we do not find any reason to review the judgment. We reject the review petitions. No order on costs.**
## **Sd/-**
**K. VINOD CHANDRAN, JUDGE.**
**Sd/-**
**ASHOK MENON, JUDGE.**
**sp/06/03/2020**
**//True Copy//**
**P.A. To Judge**
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## **APPENDIX OF R.P. NO.29 OF 2020**
**PETITIONER'S/S EXHIBITS:**
**ANNEXURE A1 CERTIFIED COPY OF THE JUDGMENT DATED 01.07.2019 IN WA NO.471/2017.**
**ANNEXURE A2**
**TRUE COPY OF THE JUDGMENT DATED 03.09.2019 IN OP(KAT) NOS.394/2018 & OTHERS.**
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## **APPENDIX OF R.P. NO.137 OF 2020**
## **PETITIONER'S/S EXHIBITS:**
|**ANNEXURE A1**|**CERTIFIED COPY OF THE JUDGMENT DATED**|
|---|---|
||**04.07.2019 IN WA NO.1744/2015.**|
|**ANNEXURE A2**|**TRUE COPY OF THE JUDGMENT DATED 01.07.2019 IN**|
||**WA NO.471/2016.**|
|**ANNEXURE A3**|**TRUE COPY OF THE JUDGMENT DATED 03.09.2019 IN**|
||**OP(KAT) NOS.394/2018 & OTHERS.**|
