State of Kerala and Others v. Jose Cyriac

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 ``` ## **`OP(KAT) NO. 25 OF 2016`** ``` AGAINST THE ORDER IN OA 194/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`PETITIONER/S:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY, FINANCE (PENSION)DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, KERALA - 695 001. 2THE ACCOUNTANT GENERAL AE KERALA OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM, KERALA - 695 001. 3THE SECRETARY TO GOVERNMENT OF KERALA TAXES DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, KERALA - 695 001. 4THE COMMISSIONER OF COMMERCIAL TAXES KARAMANA P.O., THIRUVANANTHAPURAM,KERALA - 695 002. BY ADVS. GOVERNMENT PLEADER ADVOCATE GENERAL OFFICE KERALA SHRI.N.MANOJ KUMAR, STATE ATTORNEY() ``` **OP (KAT) 25/2016** -:2:- ## **`RESPONDENT/S:`** ``` JOSE CYRIAC RETIRED INSPECTING ASSISTANT COMMISSIONER(INTELLIGENCE), COMMERCIAL TAXES, MAZHUVANCHERILHOUSE, MALLOOSSERY P.O., KOTTAYAM, KERALA -686 041, MOBILE - 917034170738. ``` ``` BY ADVS. R.REJI KUMAR P.R.JAYAKRISHNAN(J-92) ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 24.01.2024, THE COURT ON 31/1/2024 DELIVERED THE FOLLOWING: ``` **OP (KAT) 25/2016** ## -:3:- ## **`A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.`** ``` ----------------------------------------- O.P.(KAT).No.25/2016 “C.R.” ``` ``` ----------------------------------------- ``` ``` Dated this the 31[st] day of January, 2024 ``` ## **J U D G M E N T** ``` A.Muhamed Mustaque, J. ``` ``` The short issue in this case is the eligibility of the respondent-applicant who retired from the Commercial Taxes Department as Inspecting Assistant Commissioner on 31/10/2013 to reckon his prior service with the Rubber Board, a public sector autonomous body under Government of India, for pro rata pensionary benefits. The Kerala Administrative Tribunal (KAT) answered in favour of the respondent-applicant. It is challenging this order that the State has come up with this original petition. ``` ``` 2. The respondent-applicant joined the Commercial Taxes Department as Assistant Sales Tax Officers on 30/10/1991. He had worked in the Rubber Board from 9/2/1984 to ``` **OP (KAT) 25/2016** ## -:4:- ``` 29/10/1991. Thus, he had 7 years, 8 months and 21 days service in the Rubber Board. ``` ``` 3. Under Rule 11 of Chapter II, Part III of the Kerala Service Rules (KSR), the Government is competent to declare that any specified kind of service rendered shall qualify for pension. The Government of Kerala as early as on 31/3/1987 issued an executive order that the Government employees who had prior service in Government of India/Autonomous Body, are allowed to count former service towards pension. Under note-2 to Rule 11 of Part III KSR, this benefit was statutorily recognised with effect from 12/11/2002. Thereafter, an amendment was brought on 22/11/2010 omitting Central Public Sector Undertakings from the ambit of note-2; it is appropriate to refer note-2 as stands now: ``` ``` Temporary employees of the Government of India on deputation to the State Government who are subsequently absorbed in the service of the State Government will be allowed to count for pension the period of their continuous temporary service under the Government of India immediately preceding the service under the State Government (vide also Rule 61). Employees of State Government Departments who left the former service in Central Government on their own volition for taking up appointment in State Government Departments will be allowed to reckon ``` ## **OP (KAT) 25/2016** ## -:5:- ``` their prior service for all pensionary benefits along with the service in State Government Departments. In the case of prior service rendered by Central Government Employees in State Government and vice versa, the liability of pension including gratuity, will be borne in full by the Central Government/State Government to which the Government servant permanently belongs at the time of retirement and no recovery of proportionate pension will be made from Central Government/State Government under whom he had served. ``` ``` It is also appropriate to refer the gazette notifying the amendment which reads thus: ``` ``` 2. The symbol and words omitted by G.O. (P)608/2010/Fin. dated 22-11-2010 published as SRO No.1125/2010 in Kerala Gazette Extraordinary No.2765 dated 03-12-2010. The amendment shall be deemed to have come into force on 12th November 2002. Omitted words ran as follows:- ``` ``` *Central Public Sector Undertakings" ``` ``` 4. The above amendment was brought into effect from 12/11/2002, that means, no employee will be entitled to claim for pension reckoning past service if he has retired with effect from 12/11/2002. There is no challenge against the amendment. ``` ``` 5. The learned State Attorney appearing for the petitioners submitted that the status of the Government employee is governed by the extant rules and there are no rights outside ``` **OP (KAT) 25/2016** ## -:6:- ``` these rules. He placed reliance on the judgment of the Apex Court in Civil Appeal No.9746/2011 and connected case, dated 20/5/2022 {See State of Himachal Pradesh & Ors. v. Raj Kumar & Ors. [2022 LiveLaw (SC) 502]} and the judgment of the Apex Court in Roshan Lal Tandon and Another v. Union of India and Another [1967 KHC 764]. ``` ``` 6. The learned State Attorney further placed reliance on the judgment of the Apex Court in Deokinandan Prasad v. State of Bihar and Others [1971 KHC 559] to buttress his argument that right to pension flows from rules and not from the order granting pension. Per contra, the learned counsel for the respondent- applicant placing reliance on the Full Bench judgment of this Court in Jayakumar S. and Others v. State of Kerala and Others [2021 (5) KHC 157], particularly, referring to para 18, submits that when there is a reciprocal agreement, the Government servant is entitled to reckon past service in Central Government/Autonomous Body as qualifying service. It is to be noted that in the above judgment, the Full Bench considered an issue at the instance of the Government employees to claim ``` **OP (KAT) 25/2016** ## -:7:- ``` reckoning their prior service rendered in statutory Corporation and Autonomous Body as qualifying service for pension. It is in that context, by referring to various government orders, the Full Bench held that prior service in statutory Corporation/Autonomous Bodies, normally will not qualify for pension except under special orders from the Government. In this case, the executive orders originally stood was incorporated in the statutory provision. That means, executive order no longer holds the field. Statutory rules have been amended by omitting Central Public Sector undertaking. That omission is decisive in the matter. If through a statutory rule such Public Sector Undertaking is excluded, the respondent cannot now rely upon an earlier Government order issued much prior to the statutory rule. The further argument of the learned counsel for the respondent was that the Central Public Sector Undertaking alone was excluded and not autonomous statutory body. We are not able to accept this argument. The unamended provision only refers to Central Public Sector Undertakings. If the argument of the learned counsel for the respondent is accepted, there is no provision in the unamended Section to include an autonomous ``` **OP (KAT) 25/2016** ## -:8:- ``` body like the Rubber Board. The learned counsel for the respondent, referring to KSR submits that if KSR is silent about autonomous body, then the executive order would come into the aid of the respondent. As we already noted, executive orders were passed in the year 1987 and thereafter, the statute governs the matter from 2002 onwards. Therefore, executive orders ceased to have any force after 2002 onwards as executive orders have been replaced by statutory provisions. Thus, as law stands, on the date of retirement, the respondent was not entitled to reckon his past service with the Rubber Board. In that view of the matter, we find the Tribunal erred by directing to reckon prior service in Rubber Board as qualifying service for pension in the State Government. Thus, the impugned order is set aside. The original petition is disposed of. ``` ``` Sd/- ``` ``` A.MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- ``` ``` SHOBA ANNAMMA EAPEN, JUDGE ``` ``` ms ``` **OP (KAT) 25/2016** ## -:9:- ## **`APPENDIX OF OP(KAT) 25/2016`** ``` PETITIONER ANNEXURES ``` ``` EXT.P-1: A TRUE COPY OF THE OA NO.194/2015 ALONG WITH ITS ANNEXURES ANNEXURE A1TRUE COPY OF THE COVERING LETTER NO 2/41/96/EST DATED 30.9.1996 ACCOMPANYING D.D ANNEXURETRUE COPY OF THE ACKNOWLEDGMENT OF THE AMOUNT FORWARDED TO THE 2ND RESPONDENT BY THE HEAD OF THE OFFICE NO K2/652/96 DATED 5.12.1996 ANNEXURE A3TRUE COPY OF THE COMMUNICATION ISSUED BY ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL (A&E) NO PO3/4/2101312076/101320780 DATED NIL NOV 2013 ANNEXURE A4TRUE COPY OF THE LETTER NO 39124/PEN.B4/09/FIN DATED29.8.2009 ISSUED BY THE UNDER SECRETARY FINANCE (PENSIONB) DEPARTMENT ANNEXURE A5TRUE COPY OF THE ORDER GO(P)369/87/FIN DATED 31.3.1987 ISSUED BY THE FINANCE (PENSION B) DEPARTMENT ANNEXURE A6TRUE COPY OF THE ORDER GO(P) 651/03/FIN DATED 6.12.2003 ISSUED BY FINANCE (PENSION B) DEPARTMENT ANNEXURE A7TRUE COPY OF THE REQUEST DATED 15.3.2011 SENT BY THE APPLICANT TO THE ACCOUNT GENERAL KERALA (A&E) ANNEXURE A8TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT DATED 2.12.2013 WITH AN ENDORSEMENT DATED 5.12.2013 ANNEXURE A9TRUE COPY OF THE LETTER NO PO3/04/2101312076/1013207804/789 DATED 26.9.2014 SENT BY THE SENIOR ACCOUNTS OFFICER, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL KERALA (A&E) ``` **OP (KAT) 25/2016** ## -:10:- ``` ANNEXURE A10TRUE COPY OF THE LETTER NO 107703/PWCA3/13/FIN DATED 1.12.2014 SENT BY THE ADDITIONAL CHIEF SECRETARY (FINANCE) TO THE APPLICANT EXT.P-2: TRUE COPY OF THE REPLY STATEMENT FILED BY THE IST PETITIONER/IST RESPONDENT EXT.P-3: A TRUE COPY OF THE ORDER DATED 23.7.2015 PASSED BY THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL IN OA NO.194/2015 ```