Sainubabeevi M. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 7[TH] DAY OF JUNE 2024 / 17TH JYAISHTA, 1946** **WP(C) NO. 25564 OF 2021** ## **PETITIONER:** **SAINUBABEEVI. M AGED 57 YEARS RETIRED L.G ARABIC TEACHER, ADINADU SOUTH MUSLIM LOWER PRIMARY SCHOOL, KARUNAGAPPALLY SUB DISTRICT, KOLLAM R/O XX/473 KUNNEL VADAKKATHIL, ADINADU SOUTH, KATTILKADAV P.O., KOLLAM-690542.** **BY ADVS. P.RAVEENDRAN B.BIPIN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM-695001.** - **2 THE ACCOUNTANT GENERAL INDIAN AUDIT AND ACCOUNTS DEPARTMENT, ACCOUNTANT GENERAL OFFICE, THIRUVANANTHAPURAM-695039.** - **3 THE ASSISTANT EDUCATION OFFICER OFFICE OF THE ASSISTANT EDUCATION OFFICER, KARUNAGAPPALLY, KOLLAM-690518.** - **4 THE SUB TREASURY OFFICER, KARUNAGAPPALLY, KOLLAM-690518.** **BY SRI.BIJOY CHANDRAN, SR. GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.25564 of 2021 = = = = = = = = = = = = = = = = = = Dated this the 7[th ] day of June, 2024** ## **J U D G M E N T** Petitioner was appointed as a Junior Arabic Teacher in the A.S.M. LPS, Karunagappally, on 13.06.1984. The appointment was in the leave vacancy of one Abdul Latheef. Since the leave was extended continuously on three occasions, the petitioner continued as such. The appointments were duly approved by the authorities as per Exts.P1 to P4 orders. 2. On 03.06.2004, the said Abdul Latheef resigned from service. On 04.06.2004, the petitioner was appointed to the post. The petitioner retired from the services on 30.04.2020. The grievance of the petitioner is that, the authorities are not reckoning her past continuous service from 13.06.1984 to 03.06.2004, for pension, by relying on Ext.P11 G.O. No.401 dated 28.10.2019, which provided that service in leave vacancy shall not be reckoned as qualifying service with effect W.P.(C) No.25564 of 2021 -: 2 :- from 10.08.2018. 3. I have heard Sri.P.Raveendran, learned counsel for the petitioner and Sri.Bijoy Chandran, the learned Senior Government Pleader. 4. According to the learned counsel for the petitioner, Rule 10 of Chapter XXVII.A KER provides that, for computing the length of service for calculating pension and gratuity, “continuous service” shall be reckoned as qualifying service. In _Manager, S.N.M. Higher Secondary School v. State of Kerala 2024 (2) KLT 407_ , a Division Bench of this Court has held that, even if the initial appointment is in a leave vacancy which was followed by appointment in a regular vacancy, if there is no break in service, it will be considered as “continuous service”. Therefore, the service of the petitioner from 13.06.1984 till his date of retirement has to be treated as “continuous service” for the purpose of Rule 10 of Chapter XXVII.A KER, the service W.P.(C) No.25564 of 2021 -: 3 :- being unbroken, it is argued. 5. Chapter XXVII.B Rule 3 provides that, the provisions of Part III KSR, as amended from time to time, shall mutatis mutandis apply in matters of retirement benefits including family pension and deathcum-retirement benefits. The provision reads thus :- _“3. The rules on retirement benefits including family pension and death cum-retirement benefits and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III, Kerala Service Rules as amended from time to time shall mutatis mutandis apply to the teachers governed by the rules in this Chapter.”_ In the light thereof, with regard to pensionary benefits payable to the petitioner, the provisions of Part III KSR are applicable. The decision of the Division Bench relied on by the learned counsel for the petitioner dealt with an issue of seniority in service. It was not a matter of pensionary benefits falling within Rule 3 of Chapter XXVII.B and Part III KSR. W.P.(C) No.25564 of 2021 -: 4 :- 6. Rule 14E of Part III KSR provides for reckoning of only the period of “regular full time service” for fixing pensionary benefits. The Rule 14E, was substituted with effect from 13.08.2018. The earlier provision did not provide for “regular full time” service. Referring to the earlier provision this Court had in _Sabu Mathew and Others v. State of Kerala and Others 2017 (5) KHC 120_ held that, irrespective of the nature of appointment and the services rendered, the prior service of teachers in aided schools are liable to be reckoned. At paragraph 29 of the judgment it was held that matters regarding pension and pensionary benefits would be governed by the rules/orders in force at the time of retirement of the teacher. The said judgment was upheld by a Division Bench. It is thereafter that the Rule was substituted with effect from 10.08.2018, specifying that, only “regular full time service” shall be reckoned for pension. W.P.(C) No.25564 of 2021 -: 5 :- 7. As was noticed, the petitioner retired on 30.04.2020 when the substituted Rule 14E of Part III KSR was in force. In the light of Rule 14E of Part III KSR, the prior service of the petitioner in the leave vacancy is not liable to be reckoned for the purpose of pension. Ext.P11 Government Order can only be understood to be in conformity with Rule 14E KSR as it stands. A similar view was taken by a Division Bench of this Court in _State of Kerala v. Raveendran Pillai S. 2023 (1) KHC 235_ . In the light of the above, the claim of the petitioner for reckoning his prior services in the leave vacancy, for the purpose of pension, is bound to fail. Writ petition fails and is dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 25564/2021** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF THE ORDER APPOINTING THE**|**A TRUE COPY OF THE ORDER APPOINTING THE**| |---|---|---| ||**PETITIONER WITH EFFECT FROM 13.06.1984 BY THE**|| ||**MANAGER ADINADU SOUTH MUSLIM LOWER**|**PRIMARY**| ||**SCHOOL,**<br>**ALONG**<br>**WITH**<br>**THE**|**APPROVAL**| ||**NO.KDIS9476/84 DATED 22.11.1984 **|**BY THE**| ||**ASSISTANT EDUCATION OFFICER, KARUNAGAPPALLI**|| ||**SUB DISTRICT.**|| |**Exhibit P2**|**A TRUE COPY OF THE RE APPOINTMENT**|**OF THE**| ||**PETITIONER DATED 04.06.1989 BY THE**|**MANAGER**| ||**ADINADU SOUTH MUSLIM LOWER PRIMARY**|**SCHOOL,**| ||**ALONG WITH THE APPROVAL BY THE AEO,**|| ||**KARUNAGAPPALLI**<br>**SUB**|**DISTRICT**| ||**NO.P8978/89/K.DIS. DATED 10.11.1989.**|| |**Exhibit P3**|**A TRUE COPY OF THE RE APPOINTMENT**|**OF THE**| ||**PETITIONER DATED 04.06.1994 BY THE**|**MANAGER**| ||**ADINADU SOUTH MUSLIM LOWER PRIMARY**|**SCHOOL,**| ||**KARUNAGAPPALLI ALONG WITH THE APPROVAL BY THE**|| ||**AEO, KARUNAGAPPALI SUB DISTRICT **|**NO.F-**| ||**971/2000/K.DIS DATED 21.02.2000.**|| |**Exhibit P4**|**A TRUE COPY OF THE RE APPOINTMENT**|**OF THE**| ||**PETITIONER DATED 04.06.1999 BY THE**|**MANAGER**| ||**ADINADU SOUTH MUSLIM LOWER PRIMARY**|**SCHOOL,**| ||**KARUNAGAPPALLI ALONG WITH THE APPROVAL BY THE**|| ||**AEO, KARUNAGAPPALLI NO.F-3835/99/KDIS DATED**|| ||**22.02.2000.**|| |**Exhibit P5**|**A TRUE COPY OF THE PERMANENT APPOINTMENT OF**|| ||**THE PETITIONER DATED 04.06.2004 **|**BY THE**| ||**MANAGER ADINADU SOUTH MUSLIM LOWER**|**PRIMARY**| ||**SCHOOL, KARUNAGAPPALLY ALONG WITH THE**|| ||**APPROVAL BY THE AEO DATED 09.09.2004.**|| |**Exhibit P6**|**A TRUE COPY OF THE STATEMENT OF FIXATION OF**|| ||**PAY IN THE 18 YEARS SENIOR GRADE APPROVED BY**|| ||**THE AEO AS PER ORDER NO.F 531/03/K.DIS DATED**|| ||**24.02.2003.**|| **Exhibit P7 A TRUE COPY OF THE STATEMENT OF FIXATION OF PAY IN THE 23F-5099/07/K-DIS DATED 19.11.2007 23 YEARS SENIOR GRADE APPROVED AS PER ORDER NO.F.53/03/K.DIS DATED 24.02.2003 OF THE AEO, KARUNAGAPPALLY.** APPENDIX- **WP(C) 25564/2021** -2- |**Exhibit P8**|**A TRUE COPY OF THE VERIFICATION REPORT ISSUED**| |---|---| ||**BY THE SECOND RESPONDENT TO THE THIRD**| ||**RESPONDENT NO.PR102054624 DATED 26.06.2020.**| |**Exhibit P9**|**A**<br>**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**LETTER**| ||**NO.F1/4/2102054624/0283 DATED 16.12.2020 BY**| ||**THE SECOND RESPONDENT.**| |**Exhibit P10**|**A TRUE COPY OF THE COMMUNICATION**| ||**NO.B/410/2021 DATED 10.08.2021 BY THE THIRD**| ||**RESPONDENT.**| |**Exhibit P11**|**A TRUE COPY OF THE GO(P)NO.401/2019/FIN DATED**| ||**28.10.2019.**| |**Exhibit P12**|**A TRUE COPY OF THE REPRESENTATION BY THE**| ||**PETITIONER BEFORE THE SECOND RESPONDENT DATED**| ||**15.10.2020.**| |**Exhibit P13**|**A TRUE COPY OF THE REVISION PETITION FILED BY**| ||**THE PETITIONER TO THE FIRST RESPONDENT DATED**| ||**09.11.2021.**| -----