Sajeev Joseph v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA,** ## **1943** **WA NO. 146 OF 2020** **AGAINST THE JUDGMENT DATED 26.07.2019 IN WP(C) No.693/2019 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER IN THE WRIT PETITION(CIVIL):** **SAJEEV JOSEPH AGED 56 YEARS S/O. P. D. JOSEPH, PUTHENPARAMBIL, MARIA NIVAS, KADAVANCHIRA NORTH, THRIKKUDITHANAM P. O., CHANGANACHERRY, PIN - 686 105.** **BY ADVS. SRI.P.CHANDRASEKHAR SRI.K.K.MOHAMED RAVUF SRI.D.SREEKANTH SHRI. ANOOP KRISHNA** ## **RESPONDENTS/RESPONDENTS IN THE WRIT PETITION (CIVIL):** **1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2 THE ACCOUNTS OFFICER (PENSION) DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** - **3 THE ACCOUNTANT GENERAL** - **(A & E) KERALA, THIRUVANANTHAPURAM.** :2: W.A.No146 of 2020 - **4 THE PRINCIPAL** **ST. ALOSIUS COLLEGE, EDATHUA, ALAPPUZHA, PIN - 689 573.** **BY SENIOR GOVERNMENT PLEADER SRI.PREMCHAND R NAIR** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: W.A.No146 of 2020 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The petitioner in WP(C).No.693 of 2019 is the appellant before us, aggrieved by the judgment dated 26.07.2019 of the learned Single Judge. 2. The brief facts necessary for disposal of the Writ Appeal are as follows: The appellant retired as an Associate Professor from the St. Alosius College, Edathua, Alappuzha on 31.03.2018. He was initially appointed as provisional Lecturer English in the said college for the period from 05.01.1988 to 31.03.1988. The said appointment was duly approved by the Syndicate of the Mahatma Gandhi University by Ext.P2 order dated 15.04.1988. The next spell of appointment of the appellant was for a period from 02.06.1988 to 30.08.1988, which spell of appointment was also approved by the Syndicate of the University. The appellant was, thereafter, again appointed for the period 31.08.1988 to 07.10.1988 as it borne out by Ext.P4 appointment order and the said :4: W.A.No146 of 2020 appointment was also approved by Ext.P6 order dated 08.12.1988. Thereafter, he was again appointed for the period from 04.01.1989 to 31.05.1993 by Ext.P5 appointment order to a leave vacancy of Sri.Eapen Kurian P.E, Lecturer in English in the said college. The said appointment was also approved by Ext.P7 order dated 16.03.1989. Thereafter, with effect from 01.06.1993, the appellant was appointed to a regular retirement vacancy consequent to the retirement of Sri.K.V.Joseph, Selection Grade Lecturer with effect from 01.06.1993. The said appointment of the appellant was also approved by Ext.P9 order dated 08.08.1994. 3. In the Writ Petition, the appellant/writ petitioner was aggrieved by the finding of the office of the Accountant General while admitting the pensionary benefits due to the appellant that the net qualifying service of the appellant was only 25 years, counting his regular pensionable service from 01.06.1993 to 31.03.2018. The appellant, therefore, preferred Ext.P11 representation pointing out that he had broken spells of service from 05.01.1988 onwards, and in particular, that the service rendered in the leave vacancy from 04.01.1989 to 31.05.1993 was immediately followed by the regular appointment with effect from 01.06.1993. While the appellant claimed continuous regular service from 05.01.1998 onwards for the purpose of :5: W.A.No146 of 2020 pensionary benefits, the alternate contention was that at the very least the service from 04.01.1989 ought to count for such pensionary benefits since the service from that date onwards was continuous and uninterrupted till the date of retirement. 4. The representation preferred by the appellant did not find favour with the Accounts Officer under the Director of Collegiate Education, who by Ext.P12 communication informed the appellant that inasmuch as the various spells of service rendered by the appellant, prior to his regular appointment with effect from 01.06.1993, were against leave vacancies, his claim for reckoning the said service for the purposes of pension could not be accepted. In the Writ Petition, the appellant impugned Ext.P12 communication, _inter alia,_ on the contention that inasmuch his past broken spells of service had been reckoned for the purposes of sanctioning increments in terms of the Mahatma Gandhi University Statutes, there was no justification for excluding the said broken spells of service for the purposes of pensionary benefits. 5. The learned Single Judge, who considered the matter relied on the decision of a Division Bench of this Court in _**Shameer Ali v. Deputy Director of Collegiate Education [2018 (3) KLT 925],**_ and :6: W.A.No146 of 2020 found that, merely because the broken spells of service claimed by the appellant were reckoned for the purposes of increment, it did not follow that the said spells of service could be reckoned for the purposes of pensionary benefits. In particular, reference was made to the provisions of Rule 14E (b) of Part III Kerala Service Rules (hereinafter referred to as 'the KSR'), which the learned Judge found applicable to the case of the appellant. The learned Judge found that the appellant did not satisfy the conditions under the said Rule for the broken spells of service to qualify for pensionary benefits. The Writ Petition was, therefore, dismissed following the judgment of the Division Bench referred above. 6. Before us, it is the submission of Sri.Mohamed Ravuf, the learned counsel for the appellant that although the provisions of Rule 14E Part III KSR have not been specifically challenged in the Writ Petition, the said Rule, to the extent it denies a benefit similar to that extended to aided school service followed by regular service in aided schools, to service rendered in aided colleges, is discriminatory, and hence, unconstitutional. It is further pointed out with reference to the various Government Orders in vogue as also the judgment dated 13.09.2021 in WP(C).No.1873 of 2015, that service similar to that rendered by the appellant in the aided college have been reckoned for :7: W.A.No146 of 2020 the purposes of sanctioning various service benefits such as Senior Grade placement etc. The contention essentially is that the said broken spells of service rendered by the appellant at least from 04.01.1989 should be reckoned for the purposes of pensionary benefits as well. The learned counsel also relied on Ext.P13 judgment that was rendered by the very same Single Judge, who rendered the impugned judgment, to point out that on an earlier occasion the learned Judge had held that the similar broken spells of service followed by regular service could be reckoned for the purposes of pensionary benefits. 7. We have heard Sri.Mohamed Ravuf, the learned counsel for the appellant and Sri.Premchand R. Nair, the learned Government Pleader appearing for the respondents 1 to 3. 8. On a consideration of the rival submissions, we find that the service conditions of teachers appointed in private colleges under the Mahatma Gandhi University are essentially governed by the provisions of the Mahatma Gandhi University Act, 1985 read with the Mahatma Gandhi University Statutes, 1997. Section 99 of the Mahatma Gandhi University Act, 1985 clearly mandates that, notwithstanding the commencement of the Mahatma Gandhi University Act, the Statutes and Ordinances made under the Kerala University Act, 1974 that are in :8: W.A.No146 of 2020 force on the date of commencement of the former Act shall, in so far as they are not inconsistent with the provisions of the former Act, continue to be in force in respect of the areas covered under the said Act until they are replaced by the Statutes and Ordinances to be made under the former Act. Sub Section 4 of Section 99 further makes it clear that the provisions of Sections 4 and 23 of the Interpretation & General Clauses Act, 1125 shall also apply in the context of the Mahatma Gandhi University Act, 1985. Part B of Chapter 45 of the Mahatma Gandhi University Statutes, 1997 deals with conditions of service of teachers in private colleges. Statute 24 under the said Chapter, which deals with increments, provides that a private college teacher thrown out of service for want of vacancy and again reappointed after a break in the same post or in another post carrying the same time scale of pay can count his prior service for the purposes of increment under Rule 33(a) read with Rule 12 (35) (b) of Part I of the KSR. Statute 42 under the same Chapter that deals with application of the KSR to the teacher provides only that the Rules contained in Parts I and II of the KSR for the time being in force except those specified in the said Statute will so far as may be applied to teachers of private colleges under the University as well. It is relevant to note in this context that a reference to Part III of the KSR is conspicuously absent in Statute 42 of Chapter 45 of the Mahatma Gandhi University Statutes, 1997. :9: W.A.No146 of 2020 9. On a reading of the statutory provisions under the Kerala University Act, 1974 together with the Mahatma Gandhi University Act, 1995 and the Mahatma Gandhi University Statutes, 1997, in the backdrop of Section 23 of the Travancore Cochin Interpretation & General Clauses Act, 1125 that is specifically made applicable to the interpretation of the Mahatma Gandhi University Act, 1985, we find that the provisions of Part III KSR would apply to determine the pensionary benefits due to the teachers in the private colleges under the Mahatma Gandhi University. The said inference can be drawn from a perusal of Statute 5 under Chapter II of the Kerala University First Statutes in respect of pension, Provident fund, Gratuity, insurance and age of retirement of teachers of private colleges, 1976. We must, therefore, proceed on the assumption that the provisions of Rule 14E in Part III KSR will determine the eligibility of the appellant to count the broken spells of service rendered in the college for the purposes of pensionary benefits. We might in this context usefully refer to the judgment of the Division Bench of this Court in _**Shameer Ali (supra)**_ where while dealing with an identical issue of reckoning of prior service rendered in aided private colleges while determining pensionary benefits consequent to superannuation/retirement from Government/aided colleges, the Division Bench found that unless the :10: W.A.No146 of 2020 teacher in question satisfied the six specific conditions mentioned in Rule 14E (b) of Part III KSR, the prior service rendered in the aided private colleges prior to entering into regular service in the same college, could not be reckoned for the purposes of pension. On the facts of the case before us, we have not been shown any material that would suggest that the appellant satisfied the conditions mentioned in Clauses I to VI under Rule 14E (b) of Part III KSR. Under such circumstances, we see no reason to interfere with the judgment of the learned Single Judge, which we affirm inasmuch as it has merely followed the judgment of the Divisions Bench of this Court in _**Shameer Ali (supra)**_ . The Writ Appeal is dismissed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns