State of Kerala and others v. V.P. Kunhalan

## **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. FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944 OP(KAT) NO. 65 OF 2022** **AGAINST THE ORDER IN OA (EKM) 1205/2020 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN O.A.(EKM):** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF LOCAL SELF GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001 2 THE DIRECTOR OF PANCHAYATH THIRUVANANTHAPURAM, PIN - 695001 3 THE DEPUTY DIRECTOR OF PANCHAYAT MALAPPURAM, PIN - 676505 4 THE ACCOUNTANT GENERAL INIDIAN AUDIT AND ACCOUNTS DEPARTMENT THIRUVANANTHAPURAM, PIN - 695001 BY SR. GOVERNMENT PLEADER SRI.ANTONY MUKKATH ## **RESPONDENT/APPLICANT IN O.A(EKM):** V.P.KUNHALAN S/O LATE KOMU U D CLERK (RETIRED) MAMPAD GRAMA PANCHAYATH RESIDING AT CHOLAYIL HOUSE PANIPARA, MALAPPURAM, PIN - 676541 BY ADV. SANDESH RAJA K THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON 29.7.2022 DELIVERED THE FOLLOWING: OP(KAT).65 of 2022 :2: ## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ------------------------------------------------------------------** OP(KAT).65 of 2022 -------------------------------------------Dated this the 29[th] day of July, 2022 ## **JUDGMENT** ## Mohammed Nias.C.P. J. The State and its officials have filed the original petition being aggrieved by the order in OA (EKM)No.1205 of 2020 of the Kerala Administrative Tribunal (KAT), Ernakulam, directing the State to revise the pensionary benefits of the respondent / applicant reckoning the 794 days of provisional service rendered by him as qualifying service for pension and also to disburse all consequential benefits with interest at the rate of 6% per annum till payment. 2. The brief facts leading to the filing of the original petition are as follows:- The petitioner retired as a U.D.Clerk in the Panchayat service on 31.7.2003. Earlier, he was regularly appointed on 7.4.1982 as L.D. Clerk under Panchayat Common Service. Prior to that he worked in various departments on different spells on temporary basis from 29.6.1979 till 26.9.1981, totalling 794 days. The petitioner, contending that the prior temporary appointment qualifies for OP(KAT).65 of 2022 :3: increment under Rule 33 Note 1 of Part 1 KSR and also in accordance with the Government Order dated 25.11.1999, Annexure A1, filed representation for counting the said period put in as provisional service for the purpose of pension, but was turned down by the petitioners. The applicant filed WP(C)No.36645 of 2004 before this Court, which was later transferred to the KAT and renumbered as T.A. No.449 of 2014, was dismissed by the Tribunal by Annexure A6 order dated 13.7.2017 holding that the provisional service if at all it is applicable, is only for the limited purpose of granting of increments and the same does not render such service as qualifying service for pension. Annexure A6 order was challenged by the applicant before this Court in OP(KAT) 173 of 2018, which was disposed of by judgment dated 5.10.2018 giving liberty to the applicant to file a representation before the Government pointing out his grievances in the light of Annexure A1 order and the Government was directed to consider the same. Accordingly, the petitioner submitted a representation, but was rejected by Annexure A8 order dated 13.3.2020 taking the view that the conditions stipulated for counting such provisional service are absent in the case of the applicant going by the Government decision No.2 under Rule 33 Part 1 KSR. The said order of the Government, Annexure A8 was challenged before the Tribunal, also praying for a declaration that 794 days of provisional service rendered by him before 1.10.1994 will count for increment, higher grade and pension. The Tribunal by OP(KAT).65 of 2022 :4: its order held that as per Annexure A1 order, though the applicant was not sanctioned the increments while in service, the same will not dis-entitle him from reckoning such provisional service for pension as it qualifies for increment. The Tribunal held that the conditions mentioned in decision No.2 under Rule 33 Part 1 KSR is fulfilled as the applicant worked in the same scale of pay and had the qualification for the post and that such service was also Government service. Accordingly, the Tribunal allowed the O.A directing to revise the pensionary benefits of the applicant reckoning the period of 794 days as qualifying service for pension and also to grant all consequential benefits arising from the said declaration. The State and its official are in appeal against the said order of the Tribunal. 3. Heard Sri.Antony Mukkath, the learned Senior Government counsel for the petitioners and Sri.Sandesh Raja, the learned counsel for the respondents. 4. The learned Government Pleader submits that the petitioner's provisional service cannot be counted for pension as the same was not even counted for the purpose of increment while the applicant was in service. He further submits that three specific conditions had to be met under decision No.2 under Rule 33 Part 1 KSR. It is the further argument of the learned Government Pleader that the Panchayat employees had been treated as Government OP(KAT).65 of 2022 :5: employees only from 3.2.1987 and therefore the provisional service of the applicant cannot be counted as by the provisional service was not followed by Government service since at the time of joining Panchayat service the latter was not treated as Government service. It became Government service only with effect from 3.2.1987. It is also argued that the respondent had not raised any claim for increment while he was in service and in the absence of the same counting for increment, there was no question of such service being counted for the purpose of grant of pension. 5. The learned counsel for the respondents Sri.Sandesh Raja however argues that the provisional service rendered by the applicant should also be treated as Government service. He relied on the judgment of the Supreme Court in **State of Gujarat and another v. Raman Lal Keshav Lal Soni and others** (1983 KHC 368) and the decision of this Court in **Satheesan v. State of Kerala** (1991 KHC 452) for the said proposition. He also argues that there is no case for the petitioners before the Tribunal that the provisional service rendered by the applicant was not part of the Government service and the same is being raised by the first time in this original petition and therefore such a contention on behalf of the Government should not be accepted. To resolve the controversy it is apposite to extract Government decision No.2 under Rule 33 Part 1 KSR:- OP(KAT).65 of 2022 :6: ## “ **GOVERNMENT DECISION No.2** Provisional service on regularisation with or without break in the same category or post will be treated as officiating service _ab initio_ for the limited purpose of granting of increments. Provisional service followed by a regular appointment with or without break in the **same category of post** will also be treated as officiating service _ab initio_ for the limited purpose of granting of increments.” 6. It is seen from the above that the three conditions are to be met if the benefit of the above decision is made applicable. The 'same category' in the above decision has to be understood as (i) the posts should carry the same or identical scale of pay (ii) the qualification and method should be same and (iii) the post should fall in the same service. Even if these three conditions are met, the same is limited for the purpose of grant of increment and the said period will not be reckoned as qualifying service for pension. Going by the case of the petitioner it cannot be said that the third condition mentioned above is complied and therefore the petitioner cannot be granted the increments much less the pension. No claim was made by the applicant while he was in service for claiming increments as per the said decision. It was the specific case of the Government before the Tribunal and at every stage that the applicant is not entitled to the benefit of decision No.2 under Rule 33 Part 1 KSR. Even otherwise, for the provisional service to be OP(KAT).65 of 2022 :7: reckoned in time of Rule 33 Part I KSR it has to be of the same category as the regular service. The petitioner rendered service only as Bill Collector in Panchayat service and his prior service was as Clerk. We are in complete agreement with the stand of the Government and we accordingly hold that applicant is not entitled to the benefit of decision No.2 under Rule 33 Part 1 KSR. 7. As regards the other contention raised that the provisional service put in by the applicant cannot be reckoned towards Government service, it is clear from Annexure IV that, by the Government Order dated 3.2.1987 the Government declared that the Panchayat employees of the State (except contingent employees) will be treated as in full time Government service from the date of order. There was no challenge to the said Government Order by the applicant and we also do not think that the Government had committed any error in passing an order on 3.2.1987 specifying that the Panchayat employees would be treated as in Government service from the date of the order. The decisions relied on by the learned counsel for the respondent are not applicable to the facts of the case as in the instant case the Government itself has passed an order on 3.2.1987 treating the Panchayat employees as Government service from that date possibly taking cue from the law laid down by the constitutional Bench in **Raman Lal Keshav Lal Soni and others** (supra). Though it is true OP(KAT).65 of 2022 :8: that this contention was not raised before the Tribunal, this question is relevant for deciding the case for determining whether the applicant is entitled to the benefit of decision No.2 under Rule 33 Part 1 KSR as the provisional service rendered by the applicant was not followed by a Government service. Accordingly, the stand of the Government has to be accepted and we do so. Further on a perusal of the Kerala Panchayat Act 1960, Kerala Panchayat Common Services Rules, 1997 as well as the Government Order dated 3.2.1987, we hold that the claim of the applicant that his provisional service should be reckoned towards Government service cannot be accepted. In the light of our findings as above OP(KAT) is allowed. Sd/- ## **A.K.JAYASANKARAN NAMBIAR, JUDGE** Sd/- ## **MOHAMMED NIAS C.P., JUDGE** dlk 26.7.2022 OP(KAT).65 of 2022 :9: ## **APPENDIX OF OP(KAT) 65/2022** ## PETITIONERS ANNEXURES |Annexure A1|TRUE COPY OF THE GO(P) NO. 2357/99/FIN| |---|---| ||DATED 25.11.1999.| |Annexure A2|TRUE COPY OF THE REPRESENTATION DATED| ||29.01.2003 SUBMITTED BY THE APPLICANT TO| ||THE 3RD RESPONDENT.| |Annexure A3|TRUE COPY OF THE REPRESENTATION DATED| ||01.03.2004 SUBMITTED BY THE APPLICANT TO| ||THE 3RD RESPONDENT.| |Annexure A4|TRUE COPY OF THE LETTER NO. D8.1186/03| ||DATED 26.03.2004 ISSUED BY THE 3RD| ||RESPONDENT| |Annexure A5|TRUE COPY OF THE LETTER NO. A3-216/04| ||DATED 16.04.2004 ISSUED BY THE SECRETARY,| ||MAMPAD GRAMA PANCHAYATH.| |Annexure A6|TRUE COPY OF THE ORDER OF THE TRIBUNAL IN| ||TA NO. 449/2014 IN WP(C) NO. 31645/2004| ||DATED 13.07.2017 FILED BY THE APPELLANT.| |Annexure A7|TRUE COPY OF THE JUDGMENT IN OP(KAT) NO.| ||173/2018 DATED 05.10.2018 FILED BY THE| ||APPELLANT.| |Annexure A8|TRUE COPY OF THE GO(MS) NO. 613/2020/LSGD| ||DATED 13.03.2020.| |Annexure R3(a)|TRUE COPY OF THE LETTER DATED 23.09.2019.| |Exhibit P1|TRUE COPY OF THE O.A. (EKM) NO. 1205/2020| ||ALONG WITH ANNEXURES| |Exhibit P2|REPLY STATEMENT FILED BY THE THIRD| ||RESPONDENT.| |Exhibit P3|TRUE COPY OF THE ORDER DATED 27.09.2021| ||IN OA(EKM) NO. 1205/2020| |Annexure V|A PHOTOCOPY OF THE NOTIFICATION DATED| ||02.12.2019 PUBLISHING THE KERALA| ||MUNICIPALITY AMENDMENT ACT, 2019.| |Annexure I|A PHOTOCOPY OF THE GOVERNMENT ORDER G.O.| ||(P) NO. 3116/98/FIN DATED 15.12.1998.| |Annexure II|A PHOTOCOPY OF THE GOVERNMENT ORDER G.O.| ||(P) NO. 543/89/FIN DATED 20.11.1989.| |Annexure III|A PHOTOCOPY OF THE GOVERNMENT ORDER G.O.| ||(P) NO. 2357/19/FIN DATED 25.11.1999.| |Annexure IV|A PHOTOCOPY OF THE GOVERNMENT ORDER G.O.| OP(KAT).65 of 2022 :10: (MS) NO. 25/87/LAD DATED 03.02.1987. Annexure V A PHOTOCOPY OF THE NOTIFICATION DATED 02.12.2019 PUBLISHING THE KERALA MUNICIPALITY AMENDMENT ACT, 2019.