Raveendran Pillai S. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** **WP(C) NO. 18584 OF 2021** ## **PETITIONER:** RAVEENDRAN PILLAI S. AGED 56 YEARS S/O.SUKUMARA PILLAI, OFFICE ATTENDANT, GRADE-IV (RETD.), (PEN 181782), V.H.S.S., KARAVARAM, THIRUVANANTHAPURAM DISTRICT. RESIDING AT KUNNICHAN VILAKKATHU VEEDU, KULLARNKODE, KALLAMBALAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN- 695 605. BY ADVS. R.RANJITH M.T.SURESHKUMAR SANTHAN V.NAIR MANJUSHA K DARSAN SOMANATH ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 THE DISTRICT EDUCATIONAL OFFICER 160, AYILAM RD., ATTINGAL, THIRUVANANTHAPURAM DISTRICT, PIN - 695 101. 3 THE MANAGER, KARAVARAM VOCATIONAL HIGHER SECONDARY SCHOOL, KARAVARAM, THIRUVANANTHAPURAM, PIN - 695 605. 4 THE ACCOUNTANT GENERAL INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM, PIN - 696 039. W.P.(C)No.18584/2021 2 5 SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. BY ADV SMT.M.R.SREELETHA, SPL.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2021, THE COURT ON 28/2/2022 DELIVERED THE FOLLOWING: W.P.(C)No.18584/2021 3 **JUDGMENT** The petitioner was appointed as Full Time Menial in the school managed by the 3[rd] respondent on 22/8/1987. The appointment was duly approved by the 2[nd] respondent -DEO by Ext.P1. Later, due to want of sufficient student strength, the petitioner's service was brought to an end with effect from 15/7/1990. Thereafter, he was re-engaged on different spells spanning to few months every year, commencing from 1987. Thus during the period 1987 to 1999, he was engaged on 13 occasions till 2000, on leave vacancy spanning long period. Thus inclusive of break in service and thereafter by continuous service from 1-12-2000 till 30/4/2021, the petitioner had put in 30 years 11 months and 14 days service to his credit. In the meanwhile, the pay of the petitioner has been fixed in the higher grade duly calculating the service rendered by him by Ext.P2 dated 25/8/2006. By Ext.P3, selection grade was granted to him reckoning the entire length of service. By Ext.P4 order dated 16/6/2017, he was granted 4[th] grade with effect from 22/5/2017. Later annual increment was also granted to him by Ext.P6 order. By Ext.P6, Departmental Authorities was addressed to grant him pension reckoning his total length of service as 30 years 11 months and 14 days. Ext.P7 is the Employment data sheet available from SPARK(Service and Payroll Administrative Repository for Kerala). His employment is categorized as regular and date of joining in Government service as office attendant Grade-II is 22/8/1987 in Ext.P7. 2. While so, verification report dated 1/2/2021 was forwarded to the Deputy Director of Education by the 4[th] respondent Accountant General by making it clear W.P.(C)No.18584/2021 4 that broken service as well as leave vacancy service cannot be taken into account for the purpose of pension. The above verification report is Ext.P8. Contending that he was appointed towards a regular vacancy, that he was not provisionally appointed and that he has put in 30 years 11 months and 14 days service, inclusive of break in service caused by the shortage of students, his entire length of service is liable to be taken into consideration and that Ext.P8 is not legally sustainable, the writ petition is filed. The relief sought in the writ petition was to declare that the petitioner is entitled to get pensionary benefits duly taking into account the total length of service as 30 years 11 months and 14 days. Another prayer was to quash Ext.P8. 3. The respondent appeared and filed a counter affidavit. In the counter affidavit, the 4[th] respondent had stated that the question of reckoning the broken service in leave vacancy in the aided schools as qualifying service for pension was recently examined by the High Court in various writ petitions and by common judgment dated 14/8/2017 in W.P.(C) No.30167/2016 and connected cases, The High court had ordered to consider the prior broken/leave vacancy services as qualifying service for pension, as per the then existed provision in Rule 14 E(a) of Part IIII of KSR. High Court had also observed that the Government has the authority to amend the Rules, but only with prospective effect. Accordingly, the Government had amended the Rule with effect from 10/8/2018 by GO. (P)No.128/2018/Fin.dated 10/8/2018 read with GO(MS)No.401/2019/Fin.dated 28/10/2019 produced as Exts.P9 and P10 . The statutory Rules came into force with effect from 10/8/2018 and only the broken/leave vacancy services rendered in W.P.(C)No.18584/2021 5 aided schools prior to regular appointment of those officials who have retired from service on or after 10/8/2018 will not be reckoned as qualifying service for pension. Since the petitioner retired after 10/8/2018 i.e., on 30/4/2021 he is not entitled for the benefits. 4. Traversing and denying the above contentions in the counter affidavit, in the reply affidavit filed by the petitioner it was asserted that the above G.Os produced as Exts.P9 and P10 does not apply to the facts of the case by virtue of explanatory note in Exts.P9 as well as Ext.P10, which is different from the facts of the case. In the reply affidavit, it was contended that Ext.P9 read with its Explanatory note would show that the above notifications had no applications to the facts of the case. 5. Explanatory notes to Ext.P9 states that , considering the judgment of this court in the writ petitions, by G.O.(P)21/2018/Fin.dated 16/2/2018 and G.O. (P)No.47/2018/Fin.dated 21/3/2018 it was directed that regular service of aided school/college employees, prior to their regular service shall be reckoned as qualifying service up to 1/6/2016. It was stated that, The Government had decided to place corresponding provision as sub-rule(d) in Rule 14E of Part III of the KSR. Accordingly, Ext.P9 was issued to amend Part III of the KSR. 6. Ext.P10 states that by virtue of G.O(P)No.47/2018/Fin. dated 21/3/2018, Government had ordered that broken spells of provisional service/leave vacancy service rendered by regular aided school staff/Government employees, in aided schools prior to their entry into regular service shall not be reckoned as qualifying service with effect from 1/6/2016. In the light of the judgment of this Court in W.P.(C)No.18584/2021 6 W.A.No.1235/2018 and connected cases, direction was issued to the Government Departments concerned that those who retire prior to the issuance of the amendment (those who retired before 1/8/2018) are eligible to reckon the broken/leave vacancy period for pensionary benefits. To clarify the doubts that have been raised regarding reckoning of broken spells of aided school service, Government has clarified that the broken spells of provisional service/leave vacancy service rendered by regular aided school staff/Government employees in aided schools prior to their entry in regular service shall not be reckoned as qualifying service with effect from 10/8/2018. 7. The learned counsel for the petitioner clarified that the above G.Os forcefully apply in the case of broken period of service prior to their date of appointment. To supplement his contention, the learned counsel for the petitioner relied on the decision reported in **Muhammed Kunhi C.M. v. State of Kerala and Others(2011(2) KHC 655).** On the other hand, the learned Government Pleader relied on the decision reported in **W.A.No.978/2021** wherein the Division Bench has referred to this issue. 8. A perusal of the above Division Bench decision shows that service that was once considered for inclusion in the qualifying service for pension was the provisional service envisaged under Rule 9(a)(i) of the KS & SSR. It was held that, although such provisional service, that is rendered against a post that the incumbent holds temporarily, on account of his not being eligible to occupy the sanctioned post on regular basis, would not ordinarily qualify for the grant of pensionary benefits, it is within the discretion of the Government to include such W.P.(C)No.18584/2021 7 service for pensionary benefits. 8. The documents produced along with the writ petition shows that the petitioner was appointed and approval was granted to his appointment by virtue of Ext.P1 order of the DEO dated 2/11/1988. In that , the petitioner is referred in list A and his appointment as Full Time Menial with effect 22/8/1987 was approved as a probationer in the newly created post during 1987 to 1988. Precisely his appointment by Ext.P1 was, as a probationary, towards a sanctioned post. It was not a provisional appointment as such. Hence, he was regularly appointed towards a sanctioned post. Ext.P2 is the statement of fixation of pay in the higher grade. It is true that subsequently, the petitioner could not be engaged regularly but his service during the period after 14/7/1990 till 30/11/2000 appears to be of broken service during various spells. The claim of the petitioner in the writ petition that, he was thrown out of service with effect from 15/7/1994 for want of sufficient student strength, is not at all disputed. Thereafter, he was regularly appointed with effect from 1/12/2020 till his retirement on attainment of age of superannuation. Exts.P1 to P6 documents clearly show that his qualifying service was treated as reckoning the entire period commencing from 22/8/1987 and the type of employment was regular employment. 9. Having considered this aspect, I do not find that Ext.P9 and P10 will stand in the way of the petitioner being granted the benefits, since his leave was subsequent to his regular appointment and not prior to his regular appointment. In the light of the above, I find that Ext.P8 is not legally sustainable and is liable to be W.P.(C)No.18584/2021 8 set aside. 10. Having regard to the entire facts, the right of the petitioner to claim service benefits by virtue of Ext.P1, till his retirement, reckoning the entire length of service is liable to be declared. Hence, the writ petition is liable to be allowed. Accordingly, the writ petition stands allowed. Ext.P8 stands quashed and it is declared that the petitioner is entitled for pension having due regard to his permanent appointment with effect from 22/8/1987. Accordingly fresh orders in place of Ext.P8 shall be issued by the 4[th] respondent. The writ petition is allowed to the above extent. Sd/- **SUNIL THOMAS JUDGE** dpk W.P.(C)No.18584/2021 9 ## **APPENDIX OF WP(C) 18584/2021** ## PETITIONER EXHIBITS |Exhibit P1|TRUE PHOTOSTAT COPY OF THE COMMUNICATION| |---|---| ||DATED 2/11/1988 ISSUED BY THE 2ND RESPONDENT| ||TO THE 3RD RESPONDENT, INFORMING THE APPROVAL| ||OF APPOINTMENT OF THE PETITIONER WITH TYPED| ||COPY.| |Exhibit P2|TRUE PHOTOSTAT COPY OF THE STATEMENT OF| ||FIXATION OF PAY OF THE PETITIONER ISSUED BY| ||THE 2ND RESPONDENT ON 25/8/2006.| |Exhibit P3|TRUE PHOTOSTAT COPY OF THE STATEMENT OF| ||FIXATION F PAY OF THE PETITIONER IN THE| ||SELECTION GRADE.| |Exhibit P4|TRUE PHOTOSTAT COPY OF THE ORDER| ||NO.B5/3297/2017/K.DIS. DATED 16/6/2017 PASSED| ||BY THE 2ND RESPONDENT.| |Exhibit P5|TRUE PHOTOSTAT COPY OF THE ORDER| ||NO.B5/2586/2020/L.DIS. DATED 7/8/2020 PASSED| ||ON BEHALF OF THE 2ND RESPONDENT.| |Exhibit P6|TRUE PHOTOSTAT COPY OF THE SERVICE DETAILS OF| ||THE PETITIONER GIVEN IN FORM 2B.| |Exhibit P7|TRUE PHOTOSTAT COPY OF THE EMPLOYMENT DATA| ||SHEET OF THE PETITIONER WHICH IS AVAILABLE IN| ||SERVICE AND PAYROLL ADMINISTRATIVE REPOSITORY| ||FOR KERALA (SPARK).| |Exhibit P8|TRUE PHOTOSTAT COPY OF THE VERIFICATION| ||REPORT DATED 1/2/2021 ISSUED ON BEHALF OF THE| ||4TH RESPONDENT. (REPLACED)| |Exhibit P9|TRUE PHOTOSTAT COPY OF THE GO (P) NO-| ||128/2018/FIN DATED 10.8.2018| |Exhibit P10|TRUE PHOTOSTAT COPY OF GO (MS) NO-401/2019| ||/FIN DATED 28.10.2019| |EXT.P8:|: COPY OF THE VERIFICATION REPORT NO. PR 2102065646| |DATED 15/6/2021 ISSUED BY THE INDIAN ACCOUNTS OFICER INDIAN AUDIT AND|| |ACCOUNTS DEPARTMENT||