R Rajagopal v. State of Kerala & Director of Collegiate Education

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938 WA.No. 2149 of 2015 IN WP(C).30930/2014 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 30930/2014 of HIGH COURT OF KERALA DATED 29-07-2015 --------- ## APPELLANT/PETITIONER: ---------------------------- R RAJAGOPAL S/O.P.K.RAMAKRISHNAN, AZHAKATHUPUTHEN VEEDU, NALLILA P.O., KOLLAM DISTRICT-691515, RETIRED ASSOCIATE PROFESSOR, S.N.COLLEGE, KOLLAM. BY ADV. SRI.M.S.RADHAKRISHNAN NAIR ## RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE STATE OF KERALA REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM-695001. BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2016, ALONG WITH WA. 2157/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V., JJ.** -----------------------------------------------W. A. Nos.2149 & 2157 of 2015 -----------------------------------------------Dated this the 31[st] day of October, 2016 ## **JUDGMENT** ## **Antony Dominic, J.** 1. aThese appeals are filed by the petitioners in W.P. (C) Nos.30930 of 2014 and 284 of 2015 respectively. The appellants who were Associate Professors in the S.N. College, Kollam and D.B. College, Sasthamcotta, claimed that the broken provisional service rendered by them should also be reckoned for the purposes of pension. By the common judgment under appeal, the learned single Judge negatived the claim. It is therefore, these appeals are filed. 2. We heard the learned counsel appearing for the appellants and the learned Government Pleader appearing for the respondents. 3. Prior to his entry into service on a regular basis, the appellant in W.A. No.2149 of 2015 rendered provisional W. A. Nos.2149 & 2157 of 2015 -2- service as a Junior Lecturer for the period from 16.10.1985 to 20.12.1985 and 01.01.1988 to 30.06.1988. Insofar as the appellant in W.A. No.2157 of 2015 is concerned, she also rendered provisional service during the period from 01.06.1982 to 14.10.1983, 15.10.1983 to 31.07.1985 and 01.08.1985 to 16.09.1985. Thereafter, they continued in service on regular basis; earned promotions and while working as Associate Professors reached the age of superannuation on 30.06.2013 and 31.03.2013 respectively and retired. The claim in the writ petition was that the provisional service rendered by them during the aforesaid period should also be reckoned for pensionary benefits. In the judgment under appeal, the learned single Judge rejected the claim primarily on the ground of delay. 4. Having considered the rival submissions made before us, we find that the claim now raised before us is sought to be supported by referring to Government Order dated 25.11.1999, a copy of which is produced as Ext.P7 in W. A. Nos.2149 & 2157 of 2015 -3- W.A. No.2149 of 2015. Paragraph No.2 of the said order reads thus: “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 up to 30.09.1994 which qualifies for earning increments in terms of Govt. 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 20.11.89. 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.” A reading of para 2 of the Government Order would show that provisional service rendered up to 30.09.1994, which qualifies for earning increments in terms of the Government Decision No.2 under Rule 33 of Part I KSR, alone will be reckoned as qualifying service for pension. 5. Therefore, we have to now examine whether the provisional service rendered by the appellants would qualify for increments in terms of Government Decision No.2 under W. A. Nos.2149 & 2157 of 2015 -4- Rule 33 of Part I KSR. Government Decision No.2, reads thus: ## **“GOVERNMENT DECISION No.2** 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 of increments. Provisional service followed by a regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting of increments. The term 'same category' of post for the purpose denotes post satisfying the following conditions:— - (i)The posts should carry the same or identical scale of pay, - (ii)The qualification and method of appointment should be the same, and - (iii)The post should fall in the same service. The above decision shall be deemed to have come into force with effect from 1-11-1956 but the monetary benefit thereof will be admissible only with effect from 24-7-1967.” 6. Insofar as the appellants herein are concerned, the appellant in W.A. No.2149 of 2015 commenced his regular W. A. Nos.2149 & 2157 of 2015 -5- service on 01.07.1988 and the appellant in W.A. No.2157 of 2015 commenced regular service from 03.07.1992. A reading of Government Decision No.2 would show provisional service followed by regular service without break would qualify for increments. If that be so, the service rendered by the appellants, would also qualify for increments. If the service qualify for increments such service will also qualify to be reckoned as qualifying service for pension. In such circumstances, the conclusion is inevitable that the provisional service rendered by the appellants, would qualify to be reckoned as qualifying service for their pensionary benefits. 7. Insofar as the delay on the part of the appellants are concerned in the light of the judgments of the Apex Court in **M.R. Gupta v. Union of India [(1995) 5 SCC 628]** and **Union of India v. Tarsem Singh [2009 (1) KLT 101 (SC)]** , we have to necessarily overrule that plea of the learned Government Pleader on the ground that it is a W. A. Nos.2149 & 2157 of 2015 -6- continuing wrong and therefore, the appellants cannot be non-suited on the ground of delay. For all these reasons, the judgment under appeal is set aside. The appeals are disposed of directing that the provisional service rendered by the appellants shall be reckoned as qualifying service for fixing their pensionary benefits. But however, their entitlements for monetary benefits shall only be with prospective effect, namely, from the date of this judgment. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **SHIRCY V. JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. A. Nos.2149 & 2157 of 2015 -7-