The State of Kerala & Others v. K. Abdul Rahiman

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942** **WA.No.1836 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 34777/2017(V) OF HIGH COURT OF KERALA DATED 24/1/2018** ## **APPELLANTS/RESPONDENTS IN WP(C):** **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.** **2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM- 695014.** **3 THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE- 673001.** **4 THE ASSISTANT EDUCATIONAL OFFICER, CHEVAYOOR, KOZHIKODE DISTRICT- 673017.** **5 THE ACCOUNTANT GENERAL (A AND E), THIRUVANANTHAPURAM- 695001.** **SRI. A.J. VARGHESE-SR. G.P** ## **RESPONDENT/PETITIONER IN WP(C):** **K.ABDU RAHIMAN, JUNIOR LANGUAGE TEACHER (ARABIC)(RETIRED), ATHMAPRABODHINI L.P.SCHOOL, ELATHUR, P.O.ELATHUR, KOZHIKODE DISTRICT- 673303, RESIDING AT KOLAYIL HOUSE, KODIYATHUR P.O., KOZHIKODE DISTRICT- 673602.** **R1 BY ADV. SRI.P.M.PAREETH** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1836/2019 2 **==> picture [37 x 10] intentionally omitted <==** ## **JUDGMENT** Dated this the 20[th] day of January 2021 ## _**Shaffique, J**_ This appeal has been filed by the State challenging the judgment dated 24.1.2018 in W.P.(C).No.34777/2017. Earlier, by judgment dated 10.1.2020, this Court had dismissed the appeal. But the Government filed a review petition as R.P.No.227/2020 which was allowed as per order dated 27.2.2020. The writ petition has been filed seeking for a direction to compute petitioner's qualifying service for the grant of pension as 22 years 4 months and 26 days, which was allowed by the learned Single Judge. 2. There is no dispute about the fact that the petitioner was having service of 18 years 5 months and 9 days. However, a further addition of 3 years 11 months and 17 days has been made as per Ext.P2 and the total service was calculated as 22 years 4 months and 26 days. The said addition had been made applying Note 3 to Rule 31 of Part III KSR. I.A.No.1/2021 was filed on behalf of the appellants producing three annexures. Annexure A1 is the Government order dated 26.03.2001 by which certain benefits were granted to the teachers who had to be retrenched due to fall in division after W.A.No.1836/2019 3 completing 7 years of service on or before 15.7.1995 and who were not in service against a regular division vacancy as on 14.7.1996. It was ordered that said persons will be absorbed in future vacancies and the period during which they were out of service till the date of deployment will be regularised as eligible leave or leave without allowance. By Annexure A2 order dated 15.03.2003 in respect of the petitioner, the Government observed that the period from 15.7.1992 to 19.11.2001 during which he was out of employment will be regularised as leave without allowance as per Government Order dated 26.3.2001, but subject to the condition that the leave period will not be counted for any service benefits including pension. Based on the aforesaid Government Orders, entries were made in petitioner's service book and the relevant page of which is produced as Annexure A3. Hence, it is argued by the learned Government Pleader that the petitioner is not entitled for additional benefits which had been granted earlier. It is taking note of the aforesaid fact that the pension order Ext.P4 had been issued which indicated that the petitioner's qualifying service is only 18 years. This came to be challenged by the petitioner in the present writ petition, based on Ext.P2 intimation issued by the Senior Accounts Officer/Asst.Accountant General to the Assistant Educational Officer, which indicated that the qualifying service comes to 22 years 4 months and 26 days as on 31.03.2012. W.A.No.1836/2019 4 3. The learned Single Judge, placing reliance on Ext.P2, which is stated to be an undisputed fact, proceeded on the basis that the petitioner's qualifying service is 22 years 4 months and 26 days. In fact, in Ext.P4 pension sanctioning order, the qualifying service was recorded as 18 years. By Ext.P5 letter dated 9.6.2014, the petitioner submitted that his qualifying service as on 31.03.2012 is 22 years 4 months and 26 days. By Ext.P6 dated 12.12.2014 the petitioner was informed that he was not eligible for computing 22 years 4 months and 26 days as qualifying service, whereas at the time when he voluntarily retired, he had only 18 years service which had been correctly calculated. 4. It is apparent from the factual circumstances now brought to our notice that as per Government Order dated 15.3.2003, petitioner was clearly informed that the period between 15.7.1992 to 19.11.2001 will not be reckoned for pension. Learned Government Pleader had a case that though one page of the service book had been produced earlier, the relevant page which is now produced as Annexure A3 had not been produced. 5. Be that as it may, since the factual aspect had been brought to the notice of this Court by filing additional documents, there cannot be any dispute about the fact that the petitioner's qualifying service is only 18 years. In fact, such an issue had been considered by W.A.No.1836/2019 5 this Court in the judgment dated 14.1.2020 in W.A.No.917/2019. After referring to Decision No.8 under Rule 14E and Rule 31 of Part III of Kerala Service Rules, it was held as under: “12. There cannot be any dispute about the fact that the benefit of counting period of break will be allowed in cases where the break was due to reduction of staff strength of the institution. Apparently, this is a case in which petitioner had to go out on account of reduction in staff strength. Therefore, Decision No.8 under Rule 14E squarely applies. Now the question is with reference to Rule 31 Part-III KSR. ## Rule 31 and Note-3 of Part III KSR reads as under; “31. **Interruptions** :- Interruptions in the service of an employee will count for pension provided it is not specifically laid down in these rules or otherwise ordered by competent authority and recorded accordingly in the Service Book: …...Note.3:- In cases where the period of an interruption in service exceeds one year, the benefit of reckoning the period of such interruption in service shall be restricted to the periods he was actually in service prior to the date of the interruption.” 13. It is clearly stated that interruptions in service of an employee will count for pension unless otherwise ordered by competent authority and recorded accordingly in the service book. Note 3 further states that, if the interruption in service exceeds one year, the benefit of reckoning the period of such interruption in service shall be restricted to the period, she was actually in service prior to the date of interruption. In this case it is admitted that the broken period of service was more than 1 year. Even under Rule 31, petitioner is not eligible for counting interruption in service of pension. That apart, even in the service book of the petitioner, it was specifically stated that the said service will not be counted for pension. In the said circumstances, prima facie the Government had committed mistake in issuing Ext.P5 and therefore their request to review the said order, ought to have been entertain by the learned Single Judge. In the review order, learned Single Judge did not consider the said request as well.” W.A.No.1836/2019 6 6. In the light of the aforesaid factual situation, we are of the view that there is justification in computing the petitioner's qualifying service as 18 years for the purpose of computing pension and there is justification on the part of the competent authority in issuing Ext.P4. 7. Learned counsel for the petitioner would submit that after the judgment, the petitioner had been paid arrears of pension and the pension had been computed based on the judgment of the learned Single Judge. In the light of our finding that the petitioner's qualifying service is only 18 years, the judgment of the learned Single Judge is to be set aside. If any additional amount had been paid by way of pension based on the judgment of the learned Single Judge, the petitioner is liable to refund the same. 8. Learned counsel for the petitioner points out that the judgment in _**State of Punjab & Others v. Rafiq Masih (White Washer) & Others**_ [(2015) 4 SCC 334] needs to be applied in the factual situation that has arisen in this case. We don't think that _**Rafiq Masih**_ (supra) can be applied to the facts of this case. The Government had correctly fixed the pension in terms of Ext.P4, which came to be challenged by the petitioner placing reliance on Ext.P2 and without bringing to the notice of the Court the correct factual aspects. Under such circumstances, when the mistake had occurred at the behest of the petitioner, he is liable to refund whatever amount that W.A.No.1836/2019 7 has been received by him in excess of his actual entitlement. Learned counsel for the petitioner submits that the petitioner may be permitted to approach the Government to seek any relaxation. Nothing prevents the petitioner in approaching the Government seeking any relaxation with reference to the refund of any amount received by him in excess of what he is eligible as pensionary benefits. In the above circumstances, the writ appeal is allowed setting aside the judgment of the learned Single Judge and the writ petition stands dismissed. **Sd/-** **A.M.SHAFFIQUE, JUDGE** **Sd/-** **GOPINATH P., JUDGE** kp True copy P.A. To Judge W.A.No.1836/2019 8 ## **APPENDIX** ## **APPELLANT'S EXHIBITS** |**APPELLANT'S EXHIBITS**|| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE GO(P) NO.112/2001/G.EDN DATED**<br>**26.3.2001.**| ||| |**ANNEXURE A2**|**TRUE COPY OF THE GO(P) NO.1018/2003/G.EDN DATED**<br>**15.3.2003**| ||| |**ANNEXURE A3**|**TRUE COPY OF THE PHOTOCOPY OF THE RELEVANT PAGE OF**<br>**THE SERVICE BOOK OF THE WRIT PETITIONER PERTAINING**<br>**TO PAGE NO.19 ENDORSING THE ABOVE GOVERNMENT ORDER**| ||| ## **RESPONDENTS EXHIBITS:** ## **NIL**