Sureshan Koilerian v. State of Kerala and Kerala Lok Ayukta

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944 ``` ## **`WP(C) NO. 21060 OF 2017`** ## **`PETITIONERS:`** ``` 1SURESHAN KOILERIAN AGED 62 YEARS, S/O. POKKAYI, RTD. CHIEF ENGINEER, PWD, T.C. NO. 5/2536, GOLF LINKS LANE, KAWDIAR P.O., THIRUVANANTHAPURAM-695 003. BY ADVS. SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT PUBLIC WORKS DEPARTMENT ROOM NO.640, 2ND FLOOR, SOUTH BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001 2KERALA LOK AYUKTA REPRESENTED BY ITS SECRETARY, LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033. ``` ## **`OTHER PRESENT:`** ``` SRI. K.P.HARISH, SR GOVT. PLEADER FOR R1, SMT. RENU D.P, SC FOR KERALA LOK AYUKTA-R2 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C).21060/2017 2 ## J U D G M E N T Dated this the 5[th] day of July, 2022 Shaji P. Chaly, J. This writ petition is filed challenging the order passed by the Kerala Lok Ayukta in Complaint No.1407 of 2014 dated 17.2.2017, whereby the Lok Ayukta dismissed the complaint filed by the petitioner and thus rejected his claim for reckoning the period of his training of one year as qualifying service for pensionary benefits. It is thus challenging the legality and correctness of the said order, writ petition is filed. 2. Brief material facts for disposal of the writ petition are as follows: Petitioner is a retired Chief Engineer having served the Public Works Department for 30 years. Petitioner along with six others was advised by the Kerala Public Service Commission as per Special Recruitment of Scheduled Caste and Scheduled Tribes to the post of Assistant Executive Engineers in the Public Works Department, evident from Exhibit P1 order dated 6.8.1980. 3. It is the case of the petitioner that he joined duty on 20.8.1980 and as per Exhibit P1 order, he has to undergo training W.P(C).21060/2017 3 for a period of one year and on successful completion of training, the candidates appointed thereunder will be on probation for a period of two years on duty with a continuous period of three years. Exhibit P1 order makes it clear that the candidates were appointed thereunder as Assistant Executive Engineers ( Training) in PWD on Rs.750/- per month ie., the minimum of pay of the post of Assistant Executive Engineer, plus usual allowances attached to the post for a period of one year from the date of joining the training. It is also made clear thereunder that appointment is subject to 1) Rule 3(c) of the General Rules, 1958 and (2) liable for termination if any adverse remarks is brought to notice on subsequent verification of character and antecedents. Clauses 5 to 7 in Exhibit P1 order is relevant to the context and they read thus: “5) They will undergo training for a period of one year. On successful completion of training the candidates will be on probation for a period of 2 years on duty within a continuous period of 3 years. 6) During the training period they will be entitled to get Rs.750/P.M. ie. the minimum of the pay, plus usual allowances attached to the post of Assistant Executive Engineer or the pay as contemplated in G.O. MS.285/75/AD2 dated 21-11-1975. 7) The training period will not be counted fro increment in the scale of pay of Assistant Executive Engineer and service W.P(C).21060/2017 4 qualifying for increment will commence from the date of commencement of probation.” 4. Petitioner has not challenged the said provisions contained in Exhibit P1 order before the Government, in Exhibit P2 and P4 representations. Considering Exhibit P2 representation submitted by the petitioner, Government has passed Exhibit P3 order dated 8.2.2011 holding that it was clearly mentioned in Clauses 3 to 7 of Exhibit P1 order that candidates advised by the Public Service Commission for special recruitment is provisionally appointed as Assistant Executive Engineers (Trainee) in PWD for a period of one year from the date of joining and the training period would not be counted for increment in the scale of pay of Assistant Executive Engineer. Therefore, the Government informed the writ petitioner that the period of training attached to the post of Assistant Executive Engineer cannot be reckoned as qualifying service for pensionary benefits. 5. So also, Considering Exhibit P4 representation submitted by the petitioner, as per Exhibit P5 order dated 10.12.2012, Government had informed the writ petitioner that since no special rules exist in PWD regarding reckoning the training period as W.P(C).21060/2017 5 qualifying service for pension, the request of the petitioner cannot be considered. In fact, before the LokAyukta, petitioner has challenged Exhibit P5 Government Order also. 6. LokAyukta, after considering the pros and cons has arrived at the conclusion that the petitioner and six others were provisionally recruited as Assistant Executive Engineers (Training) under Rule 9(a) (1) of the General Rules of Kerala State and Subordinate Service Rules. Further, it was found that the conditions of training period as well as the reckoning of qualifying service are all mentioned in Exhibit P1 appointment order and therefore, it was held that the contentions raised by the writ petitioner cannot be entertained at all. 7. The paramount contention advanced by the writ petitioner in the writ petition is that the petitioner took charge as Assistant Executive Engineer on 20.8.1980 and from the said date onwards he was paid salary and other allowances prescribed for the post of Assistant Executive Engineer and therefore, the training period ought to have been reckoned as qualifying service for fixing the pension. That apart, it is submitted that the petitioner was discharging duties and responsibilities attached to the said post and W.P(C).21060/2017 6 so, in the absence of any special rule, the qualifying service of the petitioner begins on 20.8.1980, when he joined duty. So also, relying upon the terms and conditions contained in Exhibit P1, it is submitted that the petitioner is entitled to reckon the training period as qualifying service for the purpose of calculation of pension. 8. Petitioner has also relied upon a Division Bench judgment of this Court in **Lakshmanan v. State of Kerala [1995 KHC 24]** and submitted that therein the honourable Division Bench has laid down the law that the training period in the Police Department can be reckoned as qualifying service for calculation of pension. 9. We have heard, Sri. Thoufeek Ahamed, learned counsel for the writ petitioner and learned Senior Government Pleader Sri. K.P. Harish for the State of Kerala and perused the pleadings and material on record. 10. On a reading of Exhibit P1 proceedings of the Chief Engineer, General, Building & Roads Division, Trivandrum dated 6.8.1980, it is clear that petitioner is a beneficiary of special drive recruitment made under Rule 9(a)(1) of the General Rules of KS & SSR and is only provisionally appointed as Assistant Executive W.P(C).21060/2017 7 Engineer (Training) in PWD on a stipend basis, which was Rs.750/per month ie., the minimum of the pay, plus usual allowances attached to the post. It is made clear as per clause (5) of Exhibit P1 that petitioner and others so appointed, will undergo training for a period of one year and on successful completion of training, the candidates will be on probation for a period of two years on duty with a continuous period of three years. 11. That apart, clause 7 makes it clear that the training period will not be counted for increment in the scale of pay of Assistant Executive Engineer and service qualifying for increment will commence from the date of commencement of probation. 12. Therefore, on an analysis of Exhibit P1, what we could gather is the one year period of training could not be counted for qualifying service and what would be counted is the period from the commencement of probation. Petitioner was quite aware of the imperative conditions contained in Exhibit P1 however, it was challenged after 30 years thereafter, in the year 2010, and that too after retirement of the petitioner. It was taking into account the legal aspects contained in Exhibit P1 and that the special drive appointments were made provisionally invoking Rule 9(a)(1) of the W.P(C).21060/2017 8 General Rules of KS and SSR, the Lok Ayukta has come to a conclusion that the petitioner is not entitled to get the training period reckoned as qualifying service for calculation of pension. 13. Even though the learned counsel for the petitioner heavily relied upon the judgment in **Lakshmanan** (supra), we are of the considered opinion that the proposition with respect to reckoning of training period as qualifying service was laid down by the Division Bench taking into account the rule position so far as concerning the appointments made to the Police Department. 14. The issue of reckoning training period as qualifying service was considered therein with reference to Rule 2(1) and (6) of the Kerala State and Subordinate Services Rules, 1958 and interpreting the term “duty” employed thereunder; and ultimately reached the conclusion that by virtue of the said provision, the training period had to be reckoned for calculating qualifying service. But as deliberated above, the petitioner was appointed as per Exhibit P1 order in a special drive under Rule 9(a)(1) of General Rules of KS & SSR. Therefore, it can be seen that the evaluation made by the Division Bench in **Lakshmanan** (Supra) to lay down the proposition of reckoning training period as service cannot be applied to W.P(C).21060/2017 9 consider the case projected by the petitioner. 15. It is also interesting to note that the petitioner has never challenged Clause (7), whereby it was made specific and clear that the service qualifying for increment will only commence from the date of commencement of probation, which is only after the one year period of training. That apart, it is clear from Exhibit P1 that the appointment is subject to Rule 3(c) of the General rules, 1958 and liable for termination if any adverse remarks was brought to notice on subsequent verification of character and antecedents. 16. Taking into account all legal and factual circumstances, we have no hesitation to hold that the petitioner has not made out any case of arbitrariness or illegality in the order passed by the Lok Ayukta so as to justify our interference in the said order. Needless to say, the writ petition fails. Accordingly it is dismissed. Sd/- S. Manikumar, Chief Justice Sd/- Shaji P. Chaly, Judge sou. W.P(C).21060/2017 10 ## **`APPENDIX OF WP(C) 21060/2017`** ## `PETITIONER EXHIBITS` ``` EXHIBIT P1TRUE COPY OF ORDER NO.52383/80/EIB DATED 6.8.1980 OF THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT. EXHIBIT P2TRUE COPY OF REPRESENTATION NO.PF6/10 FILED BY PETITIONER DATED 31.08.2010 BEFORE THE 1ST RESPONDENT. EXHIBIT P3TRUE COPY OF LETTER NO. 23776/A1/10/PWD DATED 8.2.11 ISSUED BY THE 1[ST] RESPONDENT TO THE PETITIONER. ``` ``` EXHIBIT P4TRUE COPY OF REPRESENTATION FILED BY PETITIONER DATED 18.10.11 BEFORE THE 1[ST] RESPONDENT. ``` ``` EXHIBIT P4ATRUE COPY OF ENGLISH TRANSLATION OF EXT.P4. EXHIBIT P5TRUE COPY OF LETTER NO.28421/A1/11/PWD DATED 10.12.12 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. EXHIBIT P6TRUE COPY OF ORDER IN C.NO. 1407/2014 OF HON'BLE LOK AYUKTA DATED 17.2.2017. ```