OP (CAT) No.277 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** ## **OP (CAT).No.277 OF 2019** **AGAINST THE ORDER IN O.A.498/2019 DATED 11-07-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/ RESPONDENTS 2 TO 4:** **1 EMPLOYEES STATE INSURANCE CORPORATION, REPRESENTED BY ITS DIRECTOR GENERAL, PANCHDEEP BHAVAN, CIG ROD, NEW DELHI 110 002. 2 DEPUTY DIRECTOR (ADMIN), ESIC, PANCHDEEP BHAVAN, CIG MARG, NEW DELHI 110 001. 3 THE MEDICAL SUPERINTENDENT, ESIC HOSPITAL, EZHUKONE, KOLLAM DISTRICT 691 505.** **[PETITIONERS ARE REPRESENTED BY THEIR AUTHORIZED SIGNATORY, SOCIAL SECURITY OFFICER (LEGAL), ESI CORPORATION, SUB REGIONAL OFFICE, ERNAKULAM]** **BY ADV. SRI.T.V.AJAYAKUMAR** ## **RESPONDENTS/APPLICANT & RESPONDENTS 1, 5 & 6:** **1 LILLYKUTTY Y., AGED 60 YEARS, D/O. N. YOHANNAN, HOSPITAL ATTENDANT, ESIC HOSPITAL, EZHUKONE, RESIDING AT PUTHUMANGALATHU KIZHAKKATHIL VENGA, SASHTHAMCOTTA (PO), MYNAGAPPALLY 690 521, PERMANENT ADDRESS LILLYMANDIRAM, MANAKKARA, SASTHAMCOTTA, KOLLAM 690 521.** **2 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, SHRAM SHAKTI BHAWAN, RFI MARG, NEW DELHI 110 001.** **- 2 -** **O.P(CAT).277 of 2019** **3 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **4 THE DIRECTOR OF INSURANCE MEDICAL SERVICES, THYCAUD, THIRUVANANTHAPURAM 695 001.** **R1 BY ADV. SRI. V.SAJITH KUMAR. R2 BY ADV. SRI.P.VIJAYAKUMAR, ASG OF INDIA. R3-R4 BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH. ADV. SRI.P.V.MOHANAN,** _**AMICUS CURIAE**_ **.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 29.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P(CAT).277 of 2019** ## **- 3 -** ## **“C.R.”** **K.Vinod Chandran & V.G.Arun, JJ. ----------------------------------O.P(CAT) No.277 of 2019 ----------------------------------Dated this the 29[th] day of November, 2019** ## **JUDGMENT** **K.Vinod Chandran,J:** **The claim of the 1st respondent-applicant before the Tribunal was for minimum pension considering her service to be reckoned of 9 years, 7 months and 10 days under the Employees' State Insurance Corporation ['ESI Corporation' for brevity]. The Tribunal allowed the claim on the basis of two Office Memorandums ['OMs' for brevity] issued, which were extracted in the order. We find that both the OMs were with respect to casual labourers with temporary status, which is not the prior service the applicant herein had with the State Government. The Tribunal allowed the claim without any further reasoning on the finding that the OMs cover the issue of the applicant. We are afraid, they do not. But, we proceed to consider the claim on the basis of the Central Civil Services (Pension) Rules, 1972 ['Pension Rules' for brevity]. We also requested Sri.P.V.Mohanan, learned Counsel, to assist us in the matter.** **- 4 -** **O.P(CAT).277 of 2019** **2. Sri.T.V.Ajayakumar, learned Standing Counsel for the ESI Corporation would take us through Rule 49(3) of the Pension Rules to contend that the Rule is very clear insofar as permitting fraction of an year equal to three months and above to be treated as a completed one half-year. Government of India's decision as per D.O.No.28(15)/83-PU dated 13.10.1983 is also pointed out, which is as under:** **(2) Three months and above but less than six months treated as one-half year.- The intention of sub-rule (3) of Rule 489 is that, the period of three months and above but less than six months would be treated as a completed one-half year and reckoned as qualifying service for determining of pension. The period of nine months would, therefore, be two half years”.** **There is no scope for any doubt that if there is more than 9 years and 3 months, then the qualifying service would be reckoned as 9½ years and if there is 9 years and 9 months, the service rendered would be treated as 10 years. In the first instance, there is no scope for sanctioning minimum pension, which can be done in the second instance. There would then be difference in the computation of gratuity; a retiree with no entitlement for pension getting more amounts as gratuity.** **- 5 -** **O.P(CAT).277 of 2019** ## **3. The learned Counsel for the 1[st]** **respondent-applicant Sri.V.Sajithkumar, however, would submit that the 1[st] respondent had total 9 years, 7 months and 10 days service as Full-time Sweeper and then as Nursing Orderly in the ESI Corporation. Further, she had 111 days service as a Part-time Sweeper in the ESI Hospital, Ezhukone, starting from 01.07.2009, which was later taken over by the ESI Corporation. It is argued that the State Government reckons such part-time contingency service as qualifying service for pension upto 50%; and if 55 days; half of 111, are added on to the 9 years, 7 months and 10 days, the 1[st] respondent-applicant would have rendered service of more than 9 years and 9 months, which could be treated as 10 years for the purpose of grant of minimum pension. It is also argued that Rule 49(3) of the Pension Rules only prescribes that a period of three months and above would be taken as one-half year and in the circumstance of there being period extending six months, it should be taken as a full half year.** **4. Sri.P.V.Mohanan, learned** _**Amicus Curiae**_ **, placed a decision of the Hon'ble Supreme Court in** _**Union of India v**_ **.** _**Gandiba Behera**_ **[** _**2019 SCC OnLine SC 1444**_ **] to refute the contention of the 1[st] respondent that the period in excess of six months cannot be taken as two blocks of a period** **- 6 -** **O.P(CAT).277 of 2019** **exceeding three months. However, it is pointed out that the purpose of reckoning of one-half year in Rule 49 is for the purpose of determining the gratuity payable in the case of persons having less than 10 years service; which comes to one-half month's pay for every completed half year. Reference is made to Rule 14 of the Pension Rules to argue that continuous service rendered under the State Government in an officiating or temporary capacity, if any, followed without interruption by substantive appointment would qualify such service for reckoning for pension. The Government of India, Dept. of Per.& A.R., Letter No.3(20)/Pen.(A)/79 dated 31.03.1982 is pointed out to support the said contention. It is also pointed out that Rule 14A of Kerala Service Rules [“KSR” for brevity], Part III provides for 50% service in contingent employment to be reckoned for the purpose of pension. The period spent as a Part-time Sweeper would have been reckoned for the purpose of pension, if the applicant had continued in the State Government service. On absorption in the Central Government, without any option, necessarily the said benefit has to be granted to her. It is argued that the State Government and the Central Government have agreed to such terms and the liability for that period would be shared by the State Government.** **- 7 -** **O.P(CAT).277 of 2019** **5. On facts, it has to be noticed that the 1[st] respondent-applicant was appointed as a Part-time Sweeper in the ESI Hospital, Ezhukone on 01.07.2009, at which point it was under the State Government. The applicant was conferred with a full-time status on 21.10.2009. On 22.10.2009, she was also promoted as Hospital Assistant Grade-II. On 20.04.2010, the ESI Corporation took over the hospital and with such taking over, absorbed the employees also. On 19.12.2011, by Annexure A5 the applicant was promoted as Nursing Orderly and retired on 31.05.2019. She, thus, rendered regular service of 9 years, 7 months and 11 days; falling short of the minimum qualifying service for pension; of 10 years. Whether the part-time service can be reckoned for the purpose of pension, is the vexed issue.** **6. At the outset we have to notice that in** _**Gandiba Behera**_ **(supra) the Hon'ble Supreme Court categorically negatived the contention that any service beyond six months ought to be computed as twice the period of one half year in two tranches. It was held that sub-rule (3) of Rule 49 only permits service of more than three months in a fraction of an year, to be treated as a half year. So the three month service has to be there in both fractions. The contention so raised by the learned Counsel for the 1[st] respondent-applicant has, hence, to be negatived.** **- 8 -** **O.P(CAT).277 of 2019** **7. The next argument to be looked at is based on Rule 14(3). Therein, it is stated that when a State Government servant is permanently transferred to a service or post to which the CCS Pension Rules apply, the continuous service under the State Government in any officiating or temporary capacity, followed without interruption by a substantive appointment, would be reckoned for the purpose of qualifying service. The decision of the Central Government referred to by the learned** _**Amicus Curiae**_ **elaborates on the decision taken in consultation with the State Governments** _**“that proportionate pensionary liability in respect of temporary service rendered under the Central Government and State Governments to the extent such service would have qualified for grant of pension under the rules of the respective Government, will be shared by the Governments concerned, on a service share basis, so that the Government servants are allowed the benefit of counting their qualifying service both under the Central Government and the State Governments for grant of pension by the Government from where they eventually retire”(sic).**_ **Reading the Rule and the decision jointly taken by the Union and the State, both refer to temporary and officiating services, pertinently, which stands against the claim raised here.** **- 9 -** **O.P(CAT).277 of 2019** **8. It is an admitted fact that under Rule 14A KSR Part III, contingent employees absorbed in regular establishment would be allowed to count 50% of the contingency service for the purpose of pension in the State Government. The Rule also specifies that in cases of retirement on or after 01.04.1968, the entire full-time contingency service would be counted for pension. Hence, contingency service referred to in the main body of the Rule definitely takes in part-time service also. However, what is pertinent is, as rightly pointed out by the learned Standing Counsel, a part-time contingent service is not a service in an officiating or temporary capacity. The rule under the CCS (Pension) Rules is also not adoption of any pensionable service rendered under the State, as pensionable service with the Centre. Relevant here is Government of India, Ministry of Finance O.M.No.F.12(1)E.V/68 dated 14.05.1968. It says that though under Article 368 of the CSR the periods of service paid from contingencies do not count as qualifying service for pension, in some cases it has been decided that half the service, paid from contingencies will be allowed to count for pension at the time of absorption in regular employment. This is, however, subject to five conditions, one of which is that** _**“service paid from contingencies**_ **- 10 -** **O.P(CAT).277 of 2019** _**should have been a job involving whole-time employment (and not part-time for a portion of the day)”(sic)**_ **. In such circumstance, the part-time contingency service rendered under the State Government cannot be counted as qualifying service; neither the entire period nor half of the said period. The petitioner's contention that half of the 111 days service of part-time employment should be reckoned cannot, hence, be entertained.** **9. Though we have to allow the Original Petition, dismissing the O.A. rejecting the 1[st] respondent/applicant's claim, before we leave with the matter we would make certain observations for consideration of the Central Government. Rule 49(3) speaks of three months and above service in the fraction of an year to be treated as a completed one half-year only in the context of the gratuity payable to a person who does not have qualifying service of 10 years for pension. The gratuity entitled to a person who does not have minimum qualifying service as per Rule 49(1) is at the rate of half-month's emoluments for every completed six monthly period of qualifying service and the 'qualifying service' as defined in Rule 3(q) is 10 years for the purpose of minimum pension. The rules as available in the KSR for the State permits every fraction of an year to be reckoned as whole year for the purpose of granting** **- 11 -** **O.P(CAT).277 of 2019** **minimum pension. When a period of three months and above has been reckoned for the purpose of treating it as one-half year, we are of the opinion that any period above six months could also be reckoned as one year at least for the purpose of granting pension. A welfare State would definitely protect the interest of its employees by such a measure. We cannot, however, import our opinion to grant a relief in violation of the Rules. We say this only to prompt the Central Government to have a re-think on the above issue.** **10. However, the above directions would not help the 1[st] respondent-applicant; but we notice that Rule 88 of the CCS Pension Rules permits a Ministry or Department of the Government, in a fit case, when it is found that the operation of the rules would cause undue hardship in any particular case, dispense with or relax the requirement of that rule to that extent by recording reasons. We notice the decision of the Hon'ble Supreme Court in** _**Union of India and Ors**_ **.** _**v**_ **.** _**The Registrar and Anr**_ **. in** _**Civil Appeal - Nos.13675 13676 of 2012**_ **dated 24.11.2015. There, the incumbent who had nine years and two months service was granted regular pension by the Union of India. The applicant would be free to move the Ministry or the Government of India and in such a circumstance, the** **- 12 -** **O.P(CAT).277 of 2019** **authority would look into the issue without being fettered by our judgment.** **11. We record our deepest appreciation for the exhaustive effort taken by the** _**Amicus Curiae**_ **Sri.P.V.Mohanan, to analyse the provisions so as to assist us and arrive at a correct interpretation of the Rules.** **12. A copy of this judgment shall be forwarded to The Principal Secretary, Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioner's Welfare, Lok Nayak Bhawan, Khan Market, New Delhi – 110 003.** **Ordered accordingly. Parties are left to bear** **their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** ## **vku/-** **- 13 -** **O.P(CAT).277 of 2019** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF O.A. 498/19 DATED 3.7.2019 FILED BY THE 1ST RESPONDENT BEFORE THE HONBLE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM ALONG WITH ANNEXURES.** - **EXHIBIT P1 (A1)** - **A TRUE COPY OF THE ORDER NO. 545/A/20/14/CHE/2012 (ADMN) (137) DATED 04.06.2019 ISSUED ON BEHALF OF THE 4TH RESPONDENT IN OA.** - **EXHIBIT P1 (A2) A TRUE COPY OF THE ORDER NO.G.O.(MS)NO.2/2010/LBR DATED 01.01.2010 ISSUED BY THE 5TH RESPONDENT IN OA.** - **EXHIBIT P1 (A3) A TRUE COPY OF THE GOVERNMENT ORDER G.O. (MS) NO.138/09/LBR DATED 15.10.2019 ISSUED BY THE 5TH RESPONDENT IN OA.** - **EXHIBIT P1 (A4) A TRUE COPY OF THE LETTER DATED 27.02.2012 ISSUED BY THE 2ND RESPLENDENT IN OA TO THE 4TH RESPONDENT IN OA.** - **EXHIBIT P1 (A5) A TRUE COPY OF THE PROCEEDINGS NO.Z11(03)/2010/MEDVI/INT.CELL DATED 19.12.2011.** - **EXHIBIT P1 (A6) A TRUE COPY OF THE REPRESENTATION DATED 21.03.2019 SUBMITTED BY THE APPLICATION TO THE MEDICAL SUPERINTENDENT, ESIC EZHUKONE.** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11.07.2019 OF THE CAT ERNAKULAM BENCH IN OA 498/19.** **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 27.05.2019 ISSUED BY THE ESIC HEADQUARTERS.** **[TRUE COPY]**