High Court of KeralaDivision Bench2019-07-05Writ Appeals dismissed; impugned judgments conf...

State of Kerala and others vs Lissy Joseph and others (WA No.1858 of 2018 against WP(C) No.35521/2017)

Case / Petition Number:WA.No.1858 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran, J.
V. G. Arun, J.
Judgment Date: 2019-07-05
Court Decision / Holding: WA Nos. 1858 of 2018 and connected appeals are dismissed; the impugned judgments are affirmed in substance. The court holds that provisional service post-resignation may be counted as qualifying service, while past provisional service prior to resignation is generally not countable for pension. The Deputy Director of Education is directed to verify records and issue separate orders in individual cases where claims are rejected, clearly stating the reasons. The parties shall bear their own costs.
Final Disposition: Writ Appeals dismissed; impugned judgments confirmed in general; provisional service post-resignation may be counted as qualifying service; past provisional service prior to resignation typically not countable; costs awarded.

Parties to the Case

Appellants / Petitioners

The State of Kerala represented by the Secretary to Government, Finance Department, Government Secretariat, Thiruvananthapuram
The Secretary to Government, Education Department, Government Secretariat, Thiruvananthapuram
Director of Public Instructions, DPI Office, Thiruvananthapuram
The Accountant General (A and E), Kerala, Thiruvananthapuram
The Deputy Director of Education, Kottayam
The Assistant Educational Officer, Pala, Kottayam District

Respondents

LISSY JOSEPH W/O.MATHEW, LPSA (RETIRED), LITTLE FLOWER L.P.SCHOOL, MUVATTUPUZHA, ERNAKULAM DISTRICT
SOPHIAMMA CHERIAN, W/O.LATE MATHEW JACOB, UPSA(RETIRED), ST.LITTLE TERESAS H.S., VAZHAKKULAM, ERNAKULAM DISTRICT
FRANCIS JOSEPH, S/O.JOSEPH, RETIRED HEADMASTER, IYPE MEMORIAL H.S., KALOOR, MUVATTUPUZHA, ERNAKULAM DISTRICT
VERONICA.K.M., W/O.LAMBAL MATHEW, UPSA(RETIRED), ST.LITTLE TERESAS H.S., VAZHAKULAM, VAZHAKULAM P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT
ANIE JOSEPH, W/O.SEBASTIAN JOSEPH, HSA(ENGLISH), ST.MARY'S HSS, MURIKKASSERY, IDUKKI DISTRICT

Legal Representation & Advocates

Counsels for Petitioners

• Sri. A.J. Varghese, Senior Government Pleader

Counsels for Respondents

• Adv. Paulson Thomas

Case Synopsis & Summary

The batch judgment of the Kerala High Court addresses whether provisional service rendered in leave vacancies can be reckoned as qualifying service for pension when an employee later joins regular service and serves till superannuation. The bench (K. Vinod Chandran and V.G. Arun, JJ.) consolidates various connected writ appeals challenging the pension reckoning under Kerala Service Rules (KSR) and related statutes. A key issue is whether period of provisional service, including that in leave vacancies, can be counted for pension under Rule 14E KSR, and to what extent past service before resignation can be included. The court reviews decisions like Alizuamma and Havvaumma, distinguishes some authorities, and clarifies that Rule 14E enables counting of provisional service only to the extent of actual service spent in leave vacancies, not the entire span before resignation. It also considers Rule 62 XIV.C KER (forfeiture on resignation) and Rule 29 Part III KSR (breaks between appointments) to determine the admissibility of prior service as qualifying service. The judgment ultimately holds that provisional service post-resignation may be counted as qualifying service, while past provisional service prior to resignation is generally disentitled, with directions for verification and individual orders. The writ appeals are dismissed with costs, affirming the impugned judgments in most respects, subject to the noted reservations in two appeals.

Provisions of Law Cited

Kerala Service Rules, 1956 (KSR)Rule 14E, Kerala Service Rules, 1956 (KSR)Rule 31, Kerala Service Rules, 1956 (KSR)Rule 29, Part III, Kerala Service Rules (KSR)Rule 62, Chapter XIV.C, Kerala Establishment Rules (KER)Kerala Service Rules, 1956 (KSR) note under Rule 29

Legal Doctrines & Maxims

Provisional service counted for pension only to the extent of actual service spent in leave vacancies under Rule 14E KSR
Forfeiture of past service on resignation under Rule 62 XIV.C KER
Break in service not exceeding joining time admissible under Rule 29 Part III KSR for resignation to a regular service
Note under Rule 29 clarifies the nature of breaks and the necessity of the subsequent appointment being a regular permanent service

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that, under Rule 62 XIV.C KER, and particularly Rule 29 Part III KSR, past provisional service acquired during a leave vacancy cannot be counted as pension-qualifying service once the employee resigns to take up another appointment, especially where the new appointment is not in a regular service. It relies on Havvaumma and the Karala decisions (Pathumma Beevi, Varghese) to argue forfeiture of previous service; it also emphasizes that Rule 14E enables counting only for actual service in leave vacancies, not the entire pre-resignation span. It urges verification of Ext.P1 appointment records and notes that even provisional service after resignation may be counted.

Contentions of Respondents

The petitioners argue that provisional service in leave vacancies ought to count toward qualifying service for pension, consistent with Rule 14E KSR, and that Rule 29 Part III should permit counting where breaks are within admissible joining time. They rely on Alizuamma to claim broader counting; they seek retrospective inclusion of past provisional periods as qualifying service, arguing the entries in service books and actual practice support such counting; they request orders in their favour with reasons for rejection if denied.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Alizuamma v. Accounts Officer, Office of the Accountant General	2013 (4) KLT 53	Distinguished	The court notes Alizuamma does not propound a proposition different from Rule 14E and distinguishes its application in this context.
State of Kerala v. Havvaumma K.V. and others	W.A. No. 914 of 2014; 29.11.2017	Positive	Havvaumma is cited to discuss application of Rule 62 XIV.C KER and Rule 29 Part III KSR in the context of resignation and provisional service.
V. K. Pathumma Beevi v. State of Kerala	2007 (4) KHC 738	Overruled	Earlier decisions denying the claim are not followed; the present bench takes a different approach.
State of Kerala v. E. K. Varghese	2016(1) KHC 35	Overruled	Earlier decision denied the claim; the court does not follow this ratio in the present case.
State of Kerala v. Havvaumma K.V. and others	WA 914 of 2014 (and related decisions)	Positive	Used to frame the discussion on forgoing or counting past provisional service in context of resignation and pension.
W.A. No. 1235 of 2018 and connected cases	—	Positive	Referenced as controlling authority for the judgment rendered on 04.07.2019.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **WA.No.1858 of 2018** **AGAINST THE JUDGMENT IN WP(C) NO.35521/2017 OF THE HIGH COURT OF KERALA DATED 17.11.2017** ## **APPELLANTS/RESPONDENTS 1 TO 6:** **1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001.** - **3 DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM-682 030.** - **4 DEPUTY DIRECTOR OF EDUCATION, IDUKKI DISTRICT, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THODUPUZHA-685 021.** - **5 THE ASSISTANT EDUCATIONAL OFFICER, MUVATTUPUIZHA-686 667.** - **6 THE ACCOUNTANT GENERAL (A AND E), KERALA, THIRUVANANTHAPURAM-695 001.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** ## **RESPONDENTS/PETITIONERS:** - **1 LISSY JOSEPH W/O.MATHEW, LPSA (RETIRED), LITTLE FLOWER L.P.SCHOOL, MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT PANAMDANAM HOUSE, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT PIN686669.** WA.No.1858 of 2018 2 **2 SOPHIAMMA CHERIAN, W/O.LATE MATHEW JACOB, UPSA(RETIRED), ST.LITTLE TERESAS H.S., VAZHAKKULAM, ERNAKULAM DISTRICT, RESIDING AT KALLUMKAL HOUSE, VAZHAKULAM P.O., PIN-686 670.** **3 FRANCIS JOSEPH, S/O.JOSEPH, RETIRED HEADMASTER, IYPE MEMORIAL H.S., KALOOR, MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT PUTHUPARAMBIL HOUSE, KUMARAMANGAAM P.O., THODUPUZHA, PIN-685 608.** - **4 VERONICA.K.M.,** **W/O.LAMBAL MATHEW, UPSA(RETIRED), ST.LITTLE TERESAS H.S., VAZHAKULAM, VAZHAKULAM P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT VATTAKKUZHIYIL HOUSE, THAZHAVAMKUNNU P.O., ERNAKULAM DISTRICT, PIN-686 668.** - **5 ANIE JOSEPH, W/O.SEBASTIAN JOSEPH, HSA(ENGLISH), ST.MARY'S HSS, MURIKKASSERY, RESIDING AT MEDAKKAL HOUSE, MURIKKASSERY P.O., IDUKKI DISTRICT-685 604.** ## **BY ADV.SRI.PAULSON THOMAS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.21/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **WA.No.21 of 2019** **AGAINST THE JUDGMENT IN WP(C) NO.2936/2018 OF THE HIGH COURT OF KERALA DATED 06.02.2018** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 DIRECTOR OF PUBLIC INSTRUCTIONS, DPI OFFICE, THIRUVANANTHAPURAM -695006.** - **4 THE ACCOUNTANT GENERAL (A AND E). KERALA, THIRUVANANTHAPURAM, PIN-695039.** - **5 THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM, OFFICE OF DDE, VAYASSKARAKUNU, KOTTAYAM, PIN-686001.** - **6 THE ASSISTANT EDUCATIONAL OFFICER, AEO OFFICE, PALA P.O., KOTTAYAM DISTRICT, PIN-686501. BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** WA.No.1858 of 2018 4 ## **RESPONDENTS/PETITIONERS:** - **1 REMA B NAIR HEADMISTRESS (RETIRED), NSS HIGHER SECONDARY SCHOOL, KIDANGOOR, RESIDING AT PARIPPIL, POOVARANY P.O., KOTTAYAM, PIN-686577.** - **2 SR.CICILY JOSEPH, LPSA(RETIRED), ST.GEORGE L.P.SCHOOL, MUTHOLY, KOTTAYAM DISTRICT, RESIDING AT ST.JOSEPH'S CARMELITE CONVENT, MUTHOLY P.O.-686573, KOTTAYAM DISTRICT.** ## **BY ADV. SRI.SIJI ANTONY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **WA.No.74 of 2019** **AGAINST THE JUDGMENT IN WP(C) NO.37011/2017 OF THE HIGH COURT OF KERALA DATED 05.12.2017** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.** - **3 ASSISTANT EDUCATIONAL OFFICER, KOOTHATTUKULAM-682051.** - **4 DEPUTY DIRECTOR OF EDUCATION, IDUKKI, THODUPUZHA-685584.** - **5 ASSISTANT EDUCATIONAL OFFICER, THODUPUZHA-685002.** - **6 DISTRICT EDUCATIONAL OFFICER, THODUPUZHA-685002.** - **7 THE ACCOUNTANT GENERAL (A AND E) KERALA, THIRUVANANTHAPURAM-695001.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** WA.No.1858 of 2018 6 ## **RESPONDENTS/PETITIONERS:** - **1 BABU MATHEW, S/O.ULAHANNAN, HEADMASTER (RETIRED), ST.GEORGE L.P.S., MUTHOLAPURAM, RESIDING AT DONVILLA, KATTAKKAYAM, KUMARAKAM NORTH P.O., PALLICHIRA, KOTTAYAM-686563.** - **2 LISSY JOSEPH, W/O.PAULOSE, HEADMISTRESS, ST.RITHAS H.S., PAINKULAM, MYLACOMPU P.O., THODUPUZHA, RESIDING AT PADINJARAYIL HOUSE, MYLACOMPU P.O., THODUPUZHA-685608.** - **3 SR.ELCY GEORGE, D/O.IYPE GEORGE, HSA, ST.RITHAS H.S., PAINKULAM, MYLACOMPU P.O., THODUPUZHA, NOW RESIDING AT S.H.CONVENT, MYLACOMPU P.O., THODUPUZHA-685608.** - **4 MARIAM UMMA C.M., W/O.T.M.MYTHEEN, FULL TIME ARABIC TEACHER (RETIRED), ST.JOSEPH'S L.P.SCHOOL, ELAMDESAM, THODUPUZHA, RESIDING AT THEKKUMKATTIL HOUSE, MUDAVOOR P.O., ERNAKULAM-686669.** ## **BY ADV. SRI.PAULSON THOMAS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 7 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **WA.No.113 of 2019** **AGAINST THE JUDGMENT IN WP(C) 41122/2017 OF THE HIGH COURT OF KERALA DATED 09.01.2018** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695001.** - **3 DEPUTY DIRECTOR OF EDUCATION IDUKKI, THODUPUZHA-685505.** - **4 ASSISTANT EDUCATIONAL OFFICER THODUPUZHA-685001.** - **5 THE ACCOUNTANT GENERAL (A E) KERALA, THIRUVANANTHAPURAM-695001.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** ## **RESPONDENTS/PETITIONERS:** **1 WILSON MATHEW S/O.MATHACHAN, HEADMASTER (RETIRED) ST.THOMAS L.P.S., KOLADY, THODUPUZHA, RESIDING AT PURACKAL HOUSE, MRALA.P.O., THODUPUZHA.** WA.No.1858 of 2018 8 ## **2 ROSELY VARGHESE,** **W/O.FRANCIS JOHN, HSA (HINDI), ST.GEORGE'S H.S., UDUMBANNOOR, THODUPUZHA, IDUKKI, RESIDING AT VADAKKEDATH HOUSE, KAVAKKAD.P.O-686668.** ## **3 OMANA.K.M** **W/O.KURIAN PAUL, HSA(N.S.),** **ST.GEORGE'S H.S.UDUMBANNOOR, THODUPUZHA, IDUKKI, RESIDING AT SASTHAMKUNNEL HOUSE, UDUMBANNOOR.P.O., THODUPUZHA, IDUKKI.** - **4 LAMBAI MATHEW** **S/O.V.M.MATHEW, HEADMASTER, ST.JOSEPH'S L.P.S.ELEMDESOM, THODUPUZHA, IDUKKI DISTRICT, RESIDING AT VATTAKKUZHIYIL HOUSE, THAZHAVAMKUNNU.P.O-686668.** ## **BY ADV. SRI.PAULSON THOMAS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 9 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **WA.No.138 of 2019** **AGAINST THE JUDGMENT IN WP(C) NO.40180/2017 OF THE HIGH COURT OF KERALA DATED 13.12.2017** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.** - **3 REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOTTAYAM-686001.** - **4 DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM-686001.** - **5 ASSISTANT EDUCATION OFFICER, KOOTHATTUKULAM-682051.** - **6 DEPUTY DIRECTOR OF EDUCATION, IDUKKI, THODUPUZHA-685581.** - **7 THE ACCOUNTANT GENERAL (A AND E), KERALA, THIRUVANANTHAPURAM-695001.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** WA.No.1858 of 2018 10 ## **RESPONDENTS/PETITIONERS:** - **1 MATHEW STEPHEN S/O.STEPHEN, PRINCIPAL (RETIRED), ST.JOSEPHS H.S.S, KARIMANNOOR, IDUKKI.** - **2 A.T.JOSE,** **S/O.THOMAS, HSA(RETIRED), C.M.S.H.S., MECHAL, KOTTAYAM, RESIDING AT ARAKKAL HOUSE, VELLAMTHANAM, THATTAKKUZHA.P.O, THODUPUZHA-685581.** - **3 LEELAMMA JOSEPH W/O DOMINIC.K.M, L.P.S.A(RETIRED),** **ST.PETER S L.P.SCHOOL, ELANJI, KOOTHATTUKULAM, RESIDING AT KOOVAPPARAYIL HOUSE, MUTHOLAPURAM.P.O.** - **4 JOY.P.T,** **S/O.THOMAS, HEADMASTER, ST.SEBASTIANS H.S, PURAPPUZHA, THODUPUZHA,IDUKKI, RESIDING AT PADINJARAYIL HOUSE, KARIMANNOOR.P.O, THODUPUZHA-685 581.** - **5 THOMAS.P.J, PATHIYIL, S/O.JOSEPH, H.S.A, ST.MARYS H.S.S, MANKULAM, IDUKKI, RESIDING AT PATHIYIL HOUSE, MANKULAM.P.O-685565.** **BY ADV.SRI.PAULSON THOMAS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 11 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **WA.No.199 of 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) NO.28641/2017 OF THE HIGH COURT OF KERALA DATED 20.10.2017** ## **APPELLANTS/RESPONDENTS 1 TO 4:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY TO**| ||**GOVERNMENT, FINANCE DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM**| ||**PIN 695 001.**| |**2**|**THE SECRETARY TO GOVERNMENT,**| ||**EDUCATION DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM -695 001.**| |**3**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**THIRUVANANTHAPURAM,**| ||**PIN 695 001.**| |**4**|**THE ACCOUNTANT GENERAL (A AND E), KERALA**| ||**THIRUVANANTHAPURAM,**| ||**PIN 695 001.**| **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** WA.No.1858 of 2018 12 ## **RESPONDENT/PETITIONER:** **NACHI.M.M.** **L.P.S TEACHEER (RETIRED), S.D P.A.L.P SCHOOL, MALLA, RESIDING AT VALIVAKATTIL HOUSE, MULLARINGAD P.O., THODUPUZHA, IDUKKI DISTRICT PIN 685 607.** **BY ADV. SRI.SIJI ANTONY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 13 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **WA.No.757 of 2019** **AGAINST THE JUDGMENT IN WP(C) NO.37495/2017 OF THE HIGH COURT OF KERALA DATED 08.12.2017** ## **APPELLANTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM-695001.** **2 THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA AT THIRUVALLA-689101.** **3 THE ACCOUNTANT GENERAL (A AND E), THIRUVANANTHAPURAM-695001.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** ## **RESPONDENT/PETITIONER:** **LAILA.M.M. W/O.ABDUL SALIM, KADUVAKUZHIYIL HOUSE, KANGAZHA.P.O, KOTTAYAM DISTRICT-689473.** **BY ADV. SHRI.ESM.KABEER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 14 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **WA.No.1178 of 2019** **AGAINST THE JUDGMENT IN WP(C) NO.21546/2017 OF THE HIGH COURT OF KERALA DATED 25.09.2017** ## **APPELLANTS/RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2 THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **3 THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY P.O., THIRUVANANTHAPURAM - 695 014.** **4 THE ACCOUNTANT GENERAL (A AND E), KERALA, THIRUVANANTHAPURAM - 695 039.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** ## **RESPONDENT/PETITIONER:** **JETTY JOSEPH, W/O.N.M.JOSEPH (LATE), HSA (MATHEMATICS) (RETIRED) ST.MARYS G.H.S. KURAVILANGAD, RESIDING AT MUNDAPPILLY HOUSE, MANNAKANAD P.O., KOTTAYAM DISTRICT - 686 633.** ## **BY ADV. SRI.SIJI ANTONY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 15 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **WA.No.1248 of 2019** **AGAINST THE JUDGMENT IN WP(C) NO.3432/2018 OF THE HIGH COURT OF KERALA DATED 01.02.2018** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 DEPUTY DIRECTOR OF EDUCATION KANNUR - 670 001.** - **3 DISTRICT EDUCATION OFFICER THALASSERY, THALASSERY P.O., KANNUR DISTRICT - 670 101.** - **4 THE ACCOUNTANT GENERAL (A AND E) KERALA, THIRUVANANTHAPURAM - 695 039. BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** ## **RESPONDENTS/PETITIONERS:** - **1 HARINDRAN PUTHIYAPURAYIL KOVVAN U.P.S.A. (RETIRED), KOODALI, HIGHER SECONDARY SCHOOL, KOODALI P.O., KANNUR DISTRICT- 670 592, RESIDING AT SREEHARSHAM, KOODALI P.O., KANNUR DISTRICT - 670 592.** WA.No.1858 of 2018 16 **2 REMADEVI C. H.S.A. (RETIRED) KOODALI HIGHER SECONDARY SCHOOL, KOODALI P.O., KANNUR DISTRICT - 670 592 RESIDING AT NEELAMBARI P.O., KIZHUNNA, KANNUR DISTRICT - 670 007.** **3 M.INDIRA H.S.A (RETIRED), KOODALI HIGHER SECONDARY SCHOOL, KOODALI P.O., KANNUR DISTRICT - 670 592 RESIDING AT WHITE HOUSE P.O., EACHOOR, KANNUR DISTRICT - 670 591.** **BY.ADV. SRI.P.M. PAREETH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 17 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **WA.No.1910 of 2018** **AGAINST THE JUDGMENT IN WP(C) NO.1159/2018 OF THE HIGH COURT OF KERALA DATED 11.01.2018** ## **APPELLANTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE SECRETARY TO GOVERNMENT EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **3 THE DIRECTOR OF HIGHER SECONDARY EDUCATION H.S.E.DIRECTORATE, THIRUVANANTHAPURAM-695 001** - **4 THE ACCOUNTANT GENERAL (A AND E) KERALA, THIRUVANANTHAPURAM-695 039** - **5 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 001** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** WA.No.1858 of 2018 18 ## **RESPONDENT/PETITIONER:** **SOOSAMMA THOMAS** **H.S.S TEACHER (HINDI)(RETIRED), ST.MARYS GHSS, PALA-686575, RESIDING AT VATTOTH HOUSE, MEENACHIL P.O., PALAKKAD,PALA-686577** ## **BY ADV. SRI.SIJI ANTONY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 19 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **WA.No.2119 of 2018** **AGAINST THE JUDGMENT IN WP(C) NO.40139/2017 OF THE HIGH COURT OF KERALA DATED 13.12.2017** ## **APPELLANTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHI, THIRUVANANTHAPURAM - 695 001.** **3 THE DEPUTY DIRECTOR EDUCATION PATHANAMTHITTA - 689 001.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** ## **RESPONDENT/PETITIONER:** **RAJU DANIEL, HEADMASTER (RETD), ST. PETERS U.P SCHOOL, KODUMON, RESIDING AT KAITHAVANA HOUSE, CHANDANAPPALLY P. O, PATHANAMTHITTA - 689648.** **BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ SMT.RIYA RAYMOL IYPE SRI.VARUN C.VIJAY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH WA NO.1858/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1858 of 2018 20 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The issue raised in these appeals are similar to the issue raised in another batch of Writ Appeals of the Government from a common judgment of the learned Single Judge, which we dismissed yesterday [04.07.2019]. The issue in all the Writ Appeals is whether the provisional service, for eg:- service in a leave vacancy, in an aided School can be added on for reckoning the qualifying service for pension; when the incumbent later joins a regular service and continues there till his/her superannuation.** **2. The learned Single Judge in the judgment impugned in the batch of appeals distinguished** _**Alizuamma v. Accounts Officer, Office of the Accountant General [2013 (4) KLT 53]**_ **. We already found that** _**Alizuamma**_ **[cited supra] does not propound a different proposition from Rule 14E of the Kerala Service Rules, 1956 [for brevity, 'the** WA.No.1858 of 2018 21 **KSR']. Rule 14E was found to be enabling such provisional service to be reckoned for the purpose of computing qualifying service for pension also going by Decision No.8(ii) under Rule 14E of the KSR.** _**Alizuamma**_ **only rejected the contention of the appellant therein that the entire span of years within which the provisional service was carried out for different periods, has to be included under Rule 31 of the KSR. Rule 31 was interpreted to be applicable only to regular service. The Division Bench itself found Rule 14E, enabling provisional service to be counted in reckoning qualifying service for pension, but only the actual service spent on a leave vacancy or otherwise.** ## **3. The learned Government Pleader has a** **different contention with respect to Writ Appeal Nos.2119 of 2018 and 1178 of 2019, as far as reckoning of provisional service claimed by the respondents therein for the purpose of determining** WA.No.1858 of 2018 22 **qualifying service, which we shall deal with separately. In W.A. No. 2119 of 2018, it is pointed out that the writ petitioner seeks inclusion of 4 years, 7 months and 7 days as qualifying service which is said to be a provisional service under another management of an aided school. The claim made by the petitioner, as is seen from writ petition, is from 20.07.1987 to 26.02.1992. The learned Government Pleader specifically points out that Ext.P1 appointment order does not indicate that appointment to be provisional. The appointment has been made from 20.07.1987 FN and it could only be a permanent appointment. If it was a permanent appointment then the cessation of service, from 26.02.1992 as claimed by the petitioner could only be a resignation or termination otherwise, in which event Rule 62 Chapter XIV.C KER would stand against the petitioner.** **4. The learned Government Pleader also** WA.No.1858 of 2018 23 **relies on the judgment of a Division Bench of this Court in** _**State of Kerala and others Vs. Havvaumma K.V. and others dated 29.11.2017 [in W.A. No.914 of 2014]**_ **wherein the effect of Rule 62 Chapter XIVC KER and Rule 29 Part III KSR was elaborately considered. Therein a teacher, who had different periods of service in leave vacancies, had during the validity of the leave vacancy from 01.02.1989 to 31.01.1994 resigned from the provisional service on 30.06.1989. Later, after about 6 years she was appointed on regular basis in an aided school on 01.07.1996. She claimed the various periods of provisional service in leave vacancies prior to 26.03.1996 reckoning her qualifying service for pension.** **5. The Division Bench specifically referred to two decisions of this Court in** _**V. K. Pathumma Beevi Vs. State of Kerala [2007 (4) KHC 738] and State of Kerala Vs. E. K. Varghese**_ WA.No.1858 of 2018 24 _**[2016(1) KHC 35]**_ **to deny the claim. It was found that Rule 62 XIV.C KER disables a person from claiming past service prior to resignation, since the consequence of resignation is forfeiture of such service. When resignation itself is premature, Rule 29 Part III KSR does not come to aid such person, since it only permits resignation on the ground of a fresh appointment in service, which is not reckoned as resignation from public service, if the break in service does not exceed the joining time admissible under the Service Rules plus public holidays. The intention of Rule 29 Part III KSR is to protect the service of a person who resigns from service for the purpose of accepting another appointment in a pensionable service; which benefit cannot be conferred on the persons who resigned from service; however extenuating and genuine the reasons may be.** **6. In W.A. No.2119 of 2018 the respondent** WA.No.1858 of 2018 25 **specifically refers to the entries in the Service Book, copy of which is produced along with the Writ Petition. It is the contention that the entries in the service book clearly indicate that earlier service was provisional service. However the learned Senior Government Pleader took strong exception to the reference to Service Book, especially when there could be such entries made, to help a teacher by the Head Master or Head Mistress [who makes the endorsements in the service book]; even if it is counter signed by the Assistant Education Officer.** **7. We hence hold on the basis of the aforesaid decisions if the writ petitioner had resigned from service definitely she would not be entitled to reckon her past service for the purpose of pension. We hence in the above case direct the Deputy Director of Education to verify on the basis of the records relating to Ext.P1 appointment order** WA.No.1858 of 2018 26 **and the reasons for cessation of service on 26.02.1992 to determine as to whether the past service has to be reckoned for the purpose of qualifying service. The Deputy Director of Education shall issue separate order in the case of the petitioner, if her claim is rejected clearly indicating the reasons for such refusal. It is also made clear that any service she had after 26.02.1992, even if it was provisional, shall be reckoned as qualifying service.** **8. Writ Appeal No. 1178 of 2019 is also distinguished by the learned Senior Government Pleader on the aspect of pre-resignation service. Therein admittedly the writ petitioner was under permanent service during the period from 29.08.1983 to 19.10.1992, on which later date she resigned. The petitioner then joined a leave vacancy in an aided school at her native place w.e.f. 20.10.1992 to 17.12.1992. Later, she joined regular service in** WA.No.1858 of 2018 27 **another school under the same management w.e.f. 01.06.1998. The respondent's contention herein is specifically that Rule 29 Part III KSR enables her past pre-resignation service to be reckoned for the purpose of pension since she joined in an approved leave vacancy on the very next day of her resignation. We cannot accept the said submission going by the decisions referred.** **9. As we noticed in** _**Havvaumma's case**_ **[cited supra], the question was whether the resignation from a leave vacancy would result in forfeiture of pre-resignation service as per Rule 62 Chapter XIV.C KER. Here the resignation was from permanent service itself and the reason projected is for joining in a leave vacancy at the teacher's native place. Rule 62 Chapter XIV.C KER will have application in so far as forfeiture is a direct consequence of such resignation. Rule 29 Part III KSR according to us culls out the specific instance** WA.No.1858 of 2018 28 **of resignation for the purpose of taking up another appointment; which appointment has to be to a regular service, wherein the prior service could be reckoned as qualifying service. It is also to be observed that Note under Rule 29 specifically speaks of the break between two appointments, not exceeding the joining time; which again points to the fact that the subsequent appointment, which was the cause of resignation, should be a regular permanent service. There cannot also be any joining time in filling up a leave vacancy. In the said circumstances, going by the decisions above referred, we have to hold that respondent, by operation of Rule 62 Chapter XIV.C. K.E.R., is disentitled to add the period from 29.08.1983 to 19.10.1992 for the purpose of reckoning qualifying service. Any provisional service post resignation shall be entitled to be counted as qualifying service.** WA.No.1858 of 2018 29 **We hence reject the Writ Appeals following our judgment in W.A. No.1235 of 2018 and connected cases dated 04.07.2019 with the reservation as above in two appeals with respect to the specific periods above mentioned. The parties shall bear** **their respective costs.** **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **Sd/-** **V.G. ARUN, JUDGE.** **sp/kmd/05/04/19** **//True Copy//** **P.A. To Judge**