Sajeev Mathew S/O P.D. Joseph v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941** ## **WP(C).No.693 of 2019** ## **PETITIONER:** **SAJEEV MATHEW S/O. P.D.JOSEPH, PUTHENPARAMBIL, MARIA NIVAS, KADAVANCHIRA NORTH, THRIKKUDITHANAM (PO), CHANGANACHERRY,PIN-686 105. (CORRECTED) (SAJEEV JOSEPH, S/O P.D JOSEPH, PUTHENPARAMBIL, MARIA NIVAS, KADAVANCHIRA NORTH, THRIKKUDITHANAM PO, CHANGANACHERRY, PIN-686105. PETITIONER'S NAME AND ADDRESS IS CORRECTED AS PER ORDER DATED 18/03/2019 IN IA.NO.01/2019)** ## **BY ADVS.** **SRI.P.CHANDRASEKHAR SMT.V.A.HARITHA SRI.D.SREEKANTH SRI.K.ARJUN VENUGOPAL SRI.R.NANDAGOPAL SRI.SIDHARTH B PRASAD** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 004** - **2 THE ACCOUNTS OFFICER (PENSION) DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-695 004** - **3 THE ACCOUNT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM-695 036** - **4 THE PRINCIPAL, ST.ALOSIUS COLLEGE, EDATHUA, ALAPPUZHA-689 573** WP(C).No.693 of 2019 2 **BY ADV.** **SMT.NISHA BOSE, SR GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.693 of 2019 3 ## **JUDGMENT** The petitioner who retired from service while working as an Associate Professor from an aided college has filed this Writ Petition seeking a direction to reckon her past broken/unbroken service in aided private college prior to her appointment in St. Alosius College, Eduthua for the purpose of pension. According to petitioner she joined as Junior Lecturer in a maternity leave vacancy based on Ext.P1 order of appointment which was approved. Thereafter she was again appointed against another maternity leave vacancy from 02.06.1988 to 30.08.1988 which was also approved. The petitioner was thereafter appointed against another leave vacancy on 04.01.1989 to 31.05.1993; that appointment was also approved. Thereafter the petitioner was appointed as per Ext.P5 order in St. Alosius College, Eduthua on 04.01.1998. That appointment was against a retirement vacancy and petitioner continued with approval till her retirement. In the meanwhile she was given placement as Senior Grade Lecturer and Selection Grade Lecturer and was redesignated as Assistant Professor and thereafter she got placement as Associate Professor with effect from 01.01.2006. Petitioner therefore, claims that entire service rendered by the petitioner with approval is liable to be reckoned as qualifying service for the WP(C).No.693 of 2019 4 purpose of pensionery benefits. The petitioner also relies on Ext.P13 judgment in W.P.(c).No30917 of 2012 in which this Court had directed the respondents to reckon the provisional service rendered by the petitioner thereon as that was prior to 01.10.1994. The petitioner also relies on Ext.P14 judgment, **State of Kerala & others v. M.Daisy** [2012 (3) KLT 366] which also provides reckoning provisional service rendered prior to 01.06.1993. 2. The second respondent has filed a counter affidavit stating that broken service of the petitioner from the 05.01.1988 to 31.03.1988, 02.06.1988. to 30.08.1988, 31.08.1988 to 07.10 1988 and 04.01.1989 to 31.05.1993 were all against leave vacancies. It is pointed out that as per Rule 14E(b) of Part III KSR the provisional service rendered by aided college teachers prior to their regular appointment would not be reckoned towards qualifying service. Rule 14E(b) of part III KSR reads as follows: _“(b) Aided private college service, both teaching and nonteaching, of Government employees prior to their entry in Government service shall qualify for pensionary benefits, subject to the following conditions, namely:-_ _(i) The actual period of regular full time service rendered from the date of actual introduction of Direct Payment System_ WP(C).No.693 of 2019 5 ## _in the aided private college shall be counted._ _(ii) Service rendered prior to the introduction of Direct Payment System in any aided private college shall be counted only for the period of those incumbents who have been paid salary under grant-in-aid scheme introduced with effect from 1965._ _(iii) In cases of resignation of the appointment in private college service for the purpose of taking up appointment in Government, break, if any, between the private college service and the Government service shall not exceed the joining time admissible under the service rules, plus public holidays. Service prior to resignation for other purposes shall not be counted._ _(iv) The Government contribution if any, to their Provident Fund Account in respect of their aided private college service shall be refunded to Government._ _(v) The Management's share of contribution if any in Provident Fund Account in respect of aided private college staff shall be credited to Government. In such cases, a certificate in the following form shall be recorded in the Service Book by the Head of Institution in which the incumbent had worked duly countersigned by the Head of the Department._ _“Certified that the Governments'/Managements' share of contribution with interest thereon which should otherwise have gone to the employee has not been / shall not be paid to him /_ WP(C).No.693 of 2019 6 ## _her but has been / shall be credited to Government.”_ _The certificate regarding the crediting of Managers' contribution is not necessary when contributions are to be paid back to the Management under rules._ _(vi) For counting the aided private college service, a certificate in the following form shall be recorded in the Service Book by the Head of the Institution in which the incumbent had worked duly countersigned by the Head of the Department._ _“Service has been verified with reference to the initial records such as attendance registers, acquittance rolls, pay bills etc., and is qualifying for pension.” ”_ This issue was elaborately considered in the judgment dated 16.09.2017 in W.P.(C) No.29356/16 & connected cases. The circumstances under which Ext.P13 judgment happened to be rendered also has been explained in it. Therefore, the judgments relied on by the petitioner which were rendered without taking note of statutory provision contained in Rule 14E(b) of part III KSR can no longer be applicable when the issue with respect to the provisional service and reckoning of the same towards qualifying services is already considered by this Court. The judgment in W.P(C) No.29356 of 2016 and connected cases have already been affirmed in **Shameer Ali. v. Deputy Director of Collegiate** WP(C).No.693 of 2019 7 **Education** [2018 (3) KLT 925]. The issue raised by the petitioner is squarely covered by those judgments. The Writ Petition is dismissed accordingly. SCS **Sd/P.V.ASHA JUDGE** WP(C).No.693 of 2019 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 05.01.1998** **EXHIBIT P2 A TRUE COY OF THE U.O.NO.341/EI-1/ACAD/88 DATED 15.04.1998 OF THE MAHATMA GANDHI UNIVERSITY GRANTING APPROVAL TO THE APPOINTMENT OF THE PETITIONER EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 02.06.1988 OF THE MANAGER, ST.ALOSIUS COLLEGE, EDATHUA** - **EXHIBIT P4 A TRUE COPY OF THE ORDER OF THE MANAGER ST.ALOSIUS COLLEGE, EDATHUA** - **EXHIBIT P5 A TRUE COPY OF THE APPOINTMENT ORDER DATED 04.01.1998 ISSUED BY THE MANAGER, ST.ALOSIUS COLLEGE, EDATHUA** - **EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 08.12.1988 EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 16.03.1989 EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 31.05.1993 OF THE MANAGER, ST.ALOSIUS COLLEGE, EDATHUA** - **EXHIBIT P9 A TRUE COPY OF ORDER DATED 08.08.1994 OF MAHATMA GANDHI UNIVERSITY** - **EXHIBIT P10 A TRUE COPY OF THE LETTER NO.PR.21017 89299/P-7/5/1017368466 DATED 04.10.2017 FROM THE 3RD RESPONDENT TO THE 2ND RESPONDENT** - **EXHIBIT P11 A TRUE COPY OF THE PETITION DATED 23.10.2017 TO THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM** - **EXHIBIT P12 A TRUE COPY OF THE LETTER NO.N.2/230518/2017/COLL.EDN. DATED 09.11.2017** WP(C).No.693 of 2019 9 **EXHIBIT P13** ## **EXHIBIT P14** **TRUE COPY OF THE JUDGMENT DATED 22-01-2016 IN W.P.C.NO.30917 OF 2012.** **TRUE COPY OF THE JUDGMENT OF FULL BENCH OF THIS HONOURABLE COURT IN STATE OF KERALA & OTHERS Vs.M.DAISY(2012(3) KLT 366) DATED 13.04.2014.** //TRUE COPY// PA TO JUDGE