State of Kerala and Others v. Smitha R.S. and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN &** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 22ND DAY OF MARCH 2018 / 1ST CHAITHRA, 1940** **AGAINST THE ORDER/JUDGMENT IN OA 1289/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **PETITIONER(S)/RESPONDENTS 1 TO 3 IN O.A** **1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HOME (H) DEPARTMENT, THIRUVANANTHAPURAM, KERALA-695 001.** **2 THE STATE POLICE CHIEF POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, KERALA-695 014.** **3 THE DISTRICT POLICE CHIEF OFFICE OF THE DISTRICT POLICE CHIEF, CITY POLICE OFFICE, THIRUVANANTHAPURAM, KERALA-695 004.** **BY ADV.GOVERNMENT PLEADER SRI A J VARGHESE** ## **RESPONDENT(S)/RESPONDENTS 4 & 5 IN OA:** ## **1. SMITHA R.S.** **D/O SARADHAMONY, GEETHANJALI, PERUMKULANGARA, NEYYAR DAM P.O., THIRUVANANTHAPURAM-695 572., PRESENTLY WORKING AS LOWER DIVISION TYPIST, PERMANENT EMPLOYMENT NO. 727558, DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM CITY, KERALA-695 014.** **2. KERLA STATE PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, KERALA-695 004.** ## **3. THE DISTRICT OFFICER** **DISTRICT OFFICE, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, KERALA-695 004.** **R BY SMT.SURYA BINOY** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 22-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **kkj** **OP(KAT).No. 113 of 2018 (Z)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**EXHIBIT P1**|**A TRUE COPY OF THE ORIGINAL APPLICATION ALONG**| |---|---| ||**WITH ANNEXURES A1 TO A12 ALONG WITH MISCELLANEOUS APPLICATION**| |**ANNEXURE A1:**|**TRUE COPY OF THE RANK LIST PUBLISHED BY THE KERALA PUBLIC**| ||**SERVICE COMMISSION R/L NO.194/12/DOT ON 17.05.2012.**| |**ANNEXURE A2:**|**TRUE COPY OF THE ORDER OF THIS HONOURABLE TRIBUNAL DATED**| ||**27.05.2013 IN O.A.NO.407/2013.**| |**ANNEXURE A3;**|**TRUE COPY OF THE NOTIFICATION NO.DTESSS(1)21/2012 DATED**| ||**01.11.2013**| |**ANNEXURE A4:**|**TRUE COPY OF THE ADVICE ISSUED BY THE KERALA PUBLIC SERVICE**| ||**COMMISSION DATED 12.12.2013**| |**ANNEXURE A5:**|**TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT POLICE CHIEF**| ||**THIRUVANANTHAPURAM CITY DATED 04.02.2014**| |**ANNEXURE A6:**|**TRUE COPY OF THE ORDER DATED 21.02.2014 OF THE DISTRICT POLICE**| |**CHIEF**|| |**ANNEXURE A7:**|**TRUE COPY OF THE ORDER CC NO.1393/2015 DATED 17.11.2015**| |**ANNEXURE A8:**|**TRUE COPY OF THE LETTER DATED 02.06.2014 OF KERALA PUBLIC**| ||**SERVICE COMMISSION**| |**ANNEXURE A9:**|**TRUE COPY OF THE SUBMISSION MADE BY THE APPLICANTS THROUGH**| ||**SALES ADMINISTRATIVE ASSISTANT OF THE 3RD RESPONDENT DATED**| ||**06.06.2014**| |**ANNEXURE A10:**|**TRUE COPY OF THE ORDER DATED 20.10.2015 OF THE THIRD**| ||**RESPONDENT**| |**ANNEXURE A11:**|**TRUE COPY THE ORDER DATED 07.03.2015 ISSUED BY THE DEPARTMENT**| ||**OF POLICE REGULARISING THE SERVICE OF FIVE PERSONS APPOINTED**| ||**AS LD TYPIST IN THE CITY POLICE OFFICE.**| |**ANNEXURE A13:**|**TRUE COPY OF THE FINALIZED SENIORITY LIST OF TYPISTS AS ON**| ||**31.12.2015 ISSUED BY THE POLICE HEADQUARTERS.**| |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT FILED BY THE**| ||**FIRST PETITIONER DATED 26.10.2016**| |**EXHIBIT P3**|**TRUE COPY OF THE REPLY STATEMENT FILED BY THE**| ||**SECOND PETITIONER DATED 09.05.2016 ALONG WITH**| ||**ANNEXURES R2(A) TO R2(D).**| |**ANNEXURE R2(A):**|**TRUE COPY OF THE RANK LIST NO.194/12/DOT DATED 17.05.2012**| |**ANNEXURE R2(B):**|**TRUE COPY OF THE LETTER NO.CO NO.174/2014/TC DATED 21.02.2014**| |**ANNEXURE R2(C):**|**TRUE COPY OF THE GOVERNMENT LETTER NO.99297/H2/2015/HOME DATED**| ||**03.10.2015**| |**EXHIBIT P4**|**TRUE COPY OF ORDER DATED 11.10.2017 IN OS (EKM) 1289/2015.**| ## **RESPONDENTS' EXHIBITS** **NIL** **// TRUE COPY //** **PA TO JUDGE** **K.SURENDRA MOHAN & ANNIE JOHN, JJ. --------------------------------------------O.P.(KAT) No.113 of 2018 ---------------------------------------------Dated this the 22[nd ] day of March, 2018** ## **J U D G M E N T** ## Surendra Mohan, J. The State and respondents 2 and 3 in O.A.(Ekm) No.1289 of 2015 of the Kerala Administrative Tribunal, Thiruvananthapuram (KAT for short) are before us challenging exhibit P4 order dated 11.10.2017. As per the impugned order, the Original Application filed by the first respondent has been allowed. 2. The first respondent is a person who was advised for appointment as a Lower Division Typist on 12.12.2013. She joined duty on 21.02.2014. The State introduced the National Pension System with effect from 01.04.2013. As per the said system, incumbents appointed after the said date were to remit contributions to the pension Scheme. According to the first respondent, she was included in Annexure A1 rank list as rank No.64 drawn up by the Kerala Public Service Commission (PSC for short). Her inclusion in -:2:- ## O.P.(KAT) No.113 of 2018 the rank list was described as provisional for the reason that the Certificate produced by her was issued by the Indira Gandhi National Open University (IGNOU for short) which was not considered to be equivalent to the qualification of KGTE Type Writing and Word Processing. 3. The first respondent therefore approached the KAT by filing O.A.No.407 of 2013. The said Original Application was finally disposed of by annexure A2 order directing the PSC to take a final decision in the matter within two months. Thereafter, as per annexure A3 notification dated 01.11.2013, the PSC made the inclusion of the first respondent in annexure A1 main list absolute. Thereafter, she was advised for appointment by Annexure A4 memo. Accordingly, she was appointed as per Annexure A5 order of the District Police Chief, Thiruvananthapuram City and she joined duty on 21.02.2014. Her service was also regularised as per annexure A7. 4. According to the first respondent, had she been advised at the turn applicable to her ranking in the main list ## -:3:- ## O.P.(KAT) No.113 of 2018 she would have been appointed on an earlier date. Her appointment was delayed only for the reason that her inclusion in the rank list was made provisional by Annexure A8 letter dated 02.06.2014. The PSC had corrected the said mistake and had fixed her date of earliest effective advice as 26.12.2012. Therefore, she contended that she was entitled to seniority and other benefits on the basis of the said date. She claimed seniority with effect from the said date, as provided under Rule 27 of the Kerala State & Subordinate Service Rules, 1959. She also claimed that she was entitled to be included in the Statutory Pension Scheme, taking into account the fact that her earliest date of effective advice was 26.12.2012. The said claim was rejected by annexure A10. It was challenging annexure A10 that she had approached the KAT. 5. Though the petitioners had contested the claim of the first respondent by filing reply statements contending that an alteration in the date of effective advice cannot and does not confer any benefit on her for the reason that, she -:4:- ## O.P.(KAT) No.113 of 2018 becomes part of the service only on joining duty, which in the present case was 21.02.2014. Admittedly, the National Pension System had been brought into force with effect from 01.04.2013. Therefore, she was not entitled to be included in the Statutory Pension Scheme. 6. The KAT considered the respective contentions and took note of the fact that persons who had been ranked below her in Annexure A1 Main list had been granted the benefit of the Statutory Pension Scheme for the reason that they had been advised and had joined duty on earlier dates. Though the first respondent had been placed as senior to the said persons, they had been given the benefit of Statutory Pension Scheme while the same was denied to her. This was found to be unjust and therefore the Original Application has been allowed and a direction to treat the date of 26.12.2012 as the date of effective advice of the first respondent for the limited purpose of extending the benefit of the Statutory Pension Scheme has been issued. It is aggrieved by the said direction that the petitioners are -:5:- ## O.P.(KAT) No.113 of 2018 before us. 7. According to the learned Government Pleader Sri.A.J.Varghese, the KAT has omitted to take note of the fact that the date of advice of the PSC is of no consequence in so far as a claim for eligibility to service benefits of an incumbent is concerned. The claim for service benefits would arise only on a person joining Government service. In view of the above, the fact that the date of effective advice of the first respondent had been revised to an earlier date cannot and does not confer a right on her to claim any service benefits. Admittedly, she joined duty only on 21.02.2014. The National Pension System by which the Contributory Pension Scheme was introduced, came into effect on 01.04.2013. In view of the above, it is contended that the KAT ought to have rejected the claim of the first respondent. The counsel also places reliance on a Full Bench decision of this Court in **State of Kerala v. Ponnamma** [2005(4) KLT 987(FB)] to contend that, inclusion of a person in a rank list prepared by the PSC or -:6:- ## O.P.(KAT) No.113 of 2018 the issue of an advice could not confer any right on the said person. 8. This Original Petition comes up before us for admission. We have considered the relevant contentions advanced before us, anxiously. It is not in dispute that, the first respondent had been included in Annexure A1 rank list as rank No.64. But she was not advised at her turn for the reason that, her ranking was termed as “provisional”. The reason for treating her inclusion in the rank list as provisional was that her qualification had not been considered to be equivalent to what was stipulated by the notification. She had approached the KAT with O.A.No.407 of 2013 challenging the action of the PSC. As already noticed above, pursuant to the direction issued by the KAT, the PSC took a decision and treated her inclusion in the rank list as absolute. It is not in dispute that it was due to the consequent time lag that she had not been advised on an earlier date. Therefore, there cannot be any doubt that, the delay in the advice and appointment of the first ## -:7:- ## O.P.(KAT) No.113 of 2018 respondent was caused not due to any fault on her part. As a result of the delay that occurred in advising and appointing the first respondent, her juniors were advised and appointed on earlier dates. They have also been included in the Statutory Pension Scheme, without any obligation to contribute any amount as per the National Pension System. 9. Later on, as per annexure A8, her earliest date of effective advice has been fixed as 26.12.2012 by the PSC. Going by the said date, it is clear that, had she been appointed when her turn arose, she would have been included in the Statutory Pension Scheme like the persons who were ranked below her. Pursuant to the correction of the date of effective advice of the first respondent, she has been ranked senior to rank numbers 69, 92 and 115 who had been appointed before her. However, she has not been granted the benefit of inclusion in the Statutory Pension Scheme. The KAT has therefore directed her to be so included and for the said limited purpose, it has been ## -:8:- ## O.P.(KAT) No.113 of 2018 directed that she should be treated as a person who had joined duty before 31.03.2013. The said direction has been issued considering the fact that an injustice had been meted out to her for no fault of hers, consequent to the wrong decision of the PSC to treat her inclusion in the rank list only as provisional. Since her juniors had been given the benefit of inclusion in the Statutory Pension Scheme, there was no justification for denying the said benefit to her. The KAT has therefore only restored to her what was wrongfully denied in the circumstances noted by us above. We have gone through the judgment of the KAT. We find no infirmity therein warranting an interference by us. For the foregoing reasons, this Original Petition fails and is accordingly dismissed. ## Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **ANNIE JOHN JUDGE** kkj