The Secretary to Government, Higher Education (D) Department v. Marykutty Sebastian

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931** **WA.No. 2445 of 2009()** **--------------------AGAINST THE JUDGEMENT/ORDER IN WPC.2328/2008 Dated 14/07/2009** **....................** ## **APPELLANTS/RESPONDENTS** **-------------------------** **1. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION(D)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF COLLEGIATE EDUCTION, THIRUVANANTHAPURAM.** ## **3. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM.** **BY SR. GOVERNMENT PLEADER, SRI.BENNY GERVASIS** ## **RESPONDENT/PETITIONER IN W.P.** **--------------------** ## **MARYKUTTY SEBASTIAN, VETTUKATTIL (ILLAM) HOUSE, PALA** **ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------W.A.No.2445 OF 2009** **-----------------------------Dated this the 7[th] day of January, 2010** ## **J U D G M E N T ~~~~~~~~~~~** Balakrishnan Nair, J. The appellants are the respondents in the Writ Petition. The respondent herein was the writ petitioner. The point that arises for decision in this appeal is whether a Lecturer in a private college can count his past service under the Central Government for grant of pension. 2. The brief facts of the case are the following: The respondent's husband, Late.V.J.Sebastian, had worked as Instructor Grade-I in National Discipline Scheme ('N.D.S.' for short) from 25.7.1963 to 10.12.1975. The Scheme was one sponsored by the Central Government and the employees under it were the Central Government employees also. The respondent's husband resigned from the said post on 10.12.1975 and joined St.Thomas Training College, Pala, as Lecturer in Physical Education on 11.12.1975. He retired from W.A.No.2445/2009 2 the College on 30.3.1993. Three years after his retirement, he filed Ext.P2 representation dated 16.3.1996 before the 2[nd] appellant, Director of Collegiate Education, praying, inter alia, that the service rendered by him in N.D.S. may also be reckoned for pension. Soon thereafter, he died on 9.6.1996. Thereafter, the 1[st] respondent herein, who was the widow of Late.V.J.Sebastian, pursued the matter. She approached this Court by filing W.P.(C) No.24723/2003. She claimed that, as per Ext.P4 order, the benefit claimed by her has been granted to a similarly placed employee. This Court by Ext.P5 judgment directed the Government to consider her claim in the light of Ext.P4 Government Order, a copy of which was produced as Ext.P5 in that Writ Petition. The Government, after hearing the 1[st] respondent, rejected her claim by Ext.P6 taking the view that the case of the beneficiary of Ext.P4 is not similar to the case of Sri.P.J.Sebastian. It was also held that appointment under the private colleges does not come within the purview of expression “absorption under government service”. Challenging Ext.P6, the Writ Petition was filed. W.A.No.2445/2009 3 3. The appellants filed a counter affidavit opposing to grant of prayers in the Writ Petition. The learned Single Judge, after hearing both sides, allowed the Writ Petition. The learned Single Judge took the view that the case of the 1[st] respondent is governed by G.O.(P)No.383/89/Fin. dated 29.8.1989, a copy of which is produced as Annexure-I along with the Writ Appeal memorandum. The learned Single Judge also took the view that Ext.P7 produced along with I.A.No.8574/2009 in the Writ Petition (G.O.(P) No.703/2002/Fin. dated 12.11.2002), will have retrospective operation. The contention of the learned Government Pleader that the said order will operate only prospectively was overruled. Based on the said finding, the Writ Petition was allowed. Feeling aggrieved by the said judgment, the present Writ Appeal is filed by the respondents in the Writ Petition. 4. We heard the learned counsel on both sides. The learned senior Government Pleader pointed out that Annexure-I applies when an employee of the Central Government/ Autonomous Body is absorbed in State Government service/ Autonomous Body after a period of deputation. By Ext.P7 W.A.No.2445/2009 4 mentioned above, the said stipulation had been further diluted. Those who were absorbed without a term of deputation will also get the benefits. As per Ext.P7, those who left the service under the Central Government/ Autonomous Body on their own volition for taking up employment under the State Government/State Autonomous Body can also reckon their past service. The learned senior Government Pleader further pointed out that the absorption must be under the State Government or under the State Autonomous Body. Those orders do not govern appointment or absorption in a private college governed by direct payment system. It is pointed out that the learned Single Judge failed to examine the above aspect. 5. The learned counsel for the 1[st] respondent supported the impugned judgment, mainly, relying on Ext.P4. It is pointed out that the finding of the Government that the case of the beneficiary of Ext.P4 is not similar to that of Late.V.J.Sebastian is unsustainable. W.A.No.2445/2009 5 6. We think, the respondent can succeed, if only, she is able to show that her husband's case is covered by any of the provisions of the Kerala Service Rules or any orders issued by the Government. This view finds support from the decision of the Division Bench of this Court in **Babu v. Chief Engineer** [2006(4) KLT SH.77 (Case No.107). In the said decision, it was held as follows: “Pension is payable only on the basis of Rules provided in Part III KSR, taking into account the qualified service as reckonable in terms of the said Rules. No provision in the said Rules enabling counting the service in the Kerala State Electricity Board for the purpose of grant of pension on retirement from Government service, is brought to our notice. The trump card that the appellant possesses is Annexure-A2 Government Order No. G.O. (P) 228/2001/Fin. Dated 02.02.2001 which indicates that the Government intends to add a note to Rule 20 Part III KSRs. Such a note is not yet notified. The said Government Order in its last sentence provides that “The formal amendments to Part III KSRs. will be issued separately”. This Annexure-A2 is not an amendment to the Rules but only an intention to amend the Rule. The formal amendment is not yet incorporated. Even if W.A.No.2445/2009 6 the proposed amendment is incorporated, it will be doubtful whether the service put in by a person in Kerala State Electricity Board can also be brought within the purview of expression 'etc.' appearing in that proposed note.” 7. Annexure-I Government Order dated 29.8.1989 deals with the case of the employees, who are permanently absorbed under the State Government/ State Autonomous Body. Ext.P7 dated 12.11.2002 deals with the case of persons, who took up employment under the State Government after serving for some time under the Central Government/Central Public Sector Undertakings. In other words, they do not cover the case of the respondent's husband, who left Central Government service to join a private college. Unless there is a specific rule or order in favour of his claim for reckoning his past service for pension, his request for taking into account the service under N.D.S., cannot be upheld. His claim can not be proped up on the ground that somebody else has been granted such a benefit. The view taken by the Government that the case of Late.V.J.Sebastian is not similar to case dealt with in Ext.P4 is a plausible view. W.A.No.2445/2009 7 In the result, the Writ Appeal is allowed, the judgment under appeal is reversed and the Writ Petition is dismissed. **(K.BALAKRISHNAN NAIR, JUDGE)** **(C.T.RAVIKUMAR, JUDGE)** ## **ps**