V. Gopalan v. Kendriya Vidyalaya Sangathan & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B. RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 28TH DAY OF JANUARY 2014/8TH MAGHA, 1935** ## **WP(C).No. 10246 of 2007 (Z)** **----------------------------** ## **PETITIONER :** **--------------------** **V. GOPALAN, S/O. LATE K. RAMAN NAIR AGED 64, RETIRED VICE PRINCIPAL, KENDRIYA VIDYALAYA PURANATTUKARA, THRISSUR, RESIDING AT 31/211/4, GOKULAM, PANAMANA LANE, GURUVAYUR ROAD POONKUNNAM P.O., THRISSUR-2.** **BY SENIOR ADVOCATE SMT. SUMATHI DANDAPANI BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENT(S) :** **----------------------------** **1. COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN 18 - INSTITUTIONAL AREA, SHAHEED JEET SINGH MARG NEW DELHI-16.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** ## **4. UNION OF INDIA,** ## **REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF HUMAN RESOURCES DEVELOPMENT, NEW DELHI.** **R1 BY ADV. SRI.V.V.ASHOKAN, SC R2 & R3 BY SR. GOVT. PLEADER SRI. P.M. JOSEPH R4 BY ADVS. SRI.P.PARAMESWARAN NAIR, ASGI SRI.JOBY CYRIAC, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 10246 of 2007 (Z)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : COPY OF THE MEMORANDUM F.4-18/96-KVS (ESTT-1) DATED 9.12.2003 ISSUED BY THE SENIOR ADMINISTRATIVE OFFICER (E).** - **EXT.P2 COPY OF THE CERTIFICATE OF SERVICE OF THE PETITIONER AS A HIGH SCHOOL ASSISTANT IN MALABAR CHRISTIAN COLLEGE HIGH SCHOOL, CALICUT.** **EXT.P3 COPY OF THE REPRESENTATION DATED 23.10.2003 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** **EXT.P4 COPY OF THE APPEAL MEMORANDUM IN O.A NO. 284/2004 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM.** **EXT.P5 COPY OF THE OFFICE MEMORANDUM OF MINISTRY OF HOME AFFAIRS.** **EXT.P6 COPY OF THE CIRCULAR NO. F.18 (MISC.) PS/87-88/KVS P & I, DT. 22.10.90.** **EXT.P7 COPY OF THE CIRCULAR NO. F.9-3/99/2000/KCS/AUDIT DATED 17.11.99 ISSUED BY KVS.** **EXT.P8 COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS IN OA 284/2004 BEFORE THE CAT, ERNAKULAM. EXT.P9 COPY OF THE REJOINDER FILED IN OA 284/2004 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM.** **EXT.P10 COPY OF THE ARGUMENT NOTES IN OA 284/2004 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM. EXT.P11 COPY OF THE JUDGMENT DATED 18.1.2007 IN OA NO. 284/2004 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** **“C.R.”** ## **THOTTATHIL B. RADHAKRISHNAN & A. MUHAMED MUSTAQUE, JJ.** --------------------------------------------------- ## **W.P.(C) No. 10246 of 2007** --------------------------------------------------Dated this the 28[th] day of January, 2014. ## **JUDGMENT** ## Thottathil B. Radhakrishnan, J. - 1.This is a petition invoking Articles 226 & 227 of the Constitution of India, filed challenging the decision of the Central Administrative Tribunal, Ernakulam – 'Tribunal', for short. - 2.Heard the learned senior counsel for the petitioner and the learned counsel for the respondent, Kendriya Vidyalaya Sangathan. - 3.After serving an aided school in the State of Kerala, petitioner joined as a teacher in the Kendriya Vidyalaya Sangathan – 'KVS', for short. He applied for VRS and voluntarily retired on 05.10.1996. On 23.10.2003, he represented to KVS that his prior service in the aided school W.P.(C) 10246/07 2 should also be counted for the purpose of determining his length of service for the purpose of pension. That was not acceded to. Petitioner moved the Tribunal. Applying the ratio of a decision of this Court in Jacob Kutty v. State of Kerala [2004 (2) KLT 190], the Tribunal held that the prior service in the aided school was eligible to be counted to determine the length of service for the purpose of pension. However, the Tribunal refused relief to the petitioner stating that there was delay in making the request. Hence, this writ petition. - 4.The learned senior counsel appearing for the petitioner making reference to the decision of the Honourable Supreme Court in Devakinandan Prasad v. State of Bihar [(1971) 2 SCC 330], argued that delay cannot be pitted against such a claim because it stands on a continuing cause of action. The learned counsel for KVS argued that there is culpable delay and it should be taken that no request for counting the past service was made at any time after the petitioner entered service in KVS. He also referred to the decision of the Apex Court in Appeal (Civil) No.1251 W.P.(C) 10246/07 3 of 2008 [K.V. Sangathan & Anr. v. Raghunandan Bhargava & Ors] to say that pro-rata contribution has to be made by the prior employer, in this case, the State Government, on behalf of the aided school, even if the reliefs sought for by the petitioner were to be granted. - 5.To a query by us, we are told that there is nothing on record to show that there was any disciplinary proceedings at any point of time. 6.What an employee gets on voluntary retirement includes everything to which he is entitled to in terms of the laws on account of such voluntary retirement, unless there is express exclusion by clear terms. No such exclusion is seen. The pension payable on the basis of the length of service is one of the components of such entitlements. That includes pension determined by reckoning the eligible length of service. Once the ratio of Devakinandan Prasad (supra) is applied, the prior service in the aided school will also have to be counted. If that were so, length of service, counting the prior service in the aided school, is to be W.P.(C) 10246/07 4 reckoned to determine the total length of service to arrive at the eligible pension of the petitioner. Pension is property for him in terms of Article 300A of the Constitution. That being so, it cannot be deprived except under an authority granted by the legislative process. This position is well settled. See for support, State of Jharkand v. Jitendra Kumar Srivastava [2013 (3) KLT 782 (SC)]. - 7.Now, there is no requirement for any person to opt to a particular scheme or opt out of a particular scheme for the purpose of counting the past service. It is the legitimate entitlement in terms of the Constitution and the laws. Therefore, the fact that the petitioner had not exercised any option in that regard is of no consequence. - 8.Had the petitioner not availed voluntary retirement, he could have continued in service till the day of superannuation, which, we are told, would have been sometime in 2005. In 2004, he was before the Tribunal. Pension and eligibility to it gives rise to continuing and successful causes of action which would run and could generate even now, as W.P.(C) 10246/07 5 independent causes of action. Therefore, there is no question of any quantity of pension being lost applying the doctrine of acquiescence, delay, limitation, sit back etc. This is more so because, deprivation of pension, or any portion thereof, is deprivation of, not only property, but legitimate dues in terms of social welfare measures; kindled, ignited and kept burning; in terms of the 'Socialist Welfare State' content of the Constitution of India. 9.Hence, ends of justice require that the petitioner is allowed relief to have the prior services in the aided school counted for the purpose of determining the length of service to reach at the amount of pension. However, having taken VRS in October 1996 and having raised the issue of counting of prior service for the purpose of pension only in October 2003, we would take it that he would be entitled to interest on delayed payment of pension only from the date on which the judicial authority finds that he is eligible to such relief. The Tribunal having dismissed his original application, he is entitled to any relief by way of interest only if there is further delay in release of that amounts. W.P.(C) 10246/07 6 10.State Government is liable to be directed to make pro-rata contribution as found by the Honourable Supreme Court in K.V.Sangathan & Anr. (supra). In the result, this writ petition is ordered as follows: (1) The impugned order of the Tribunal is set aside to the extent it holds that the petitioner is not entitled to relief on account of the delay in making the application for counting the past service. (2) It is ordered that KVS shall count the past service of the petitioner in the aided school for determining the total length of service for the purpose of pension and shall consequently revise his pension with effect from the date of his voluntary retirement from service, i.e., 05.10.1996. (3) The arrears due on the aforesaid count, including for the month of January, 2014 will be released on or before 31.03.2014. If there is further delay in release of such funds, the amount so due will carry interest at the rate of 6% per annum from 01.04.2014, till date of payment. KVS shall not wait for making such disbursement, notwithstanding any delay on the part of the State Government in pouring its contribution W.P.(C) 10246/07 7 which is due to KVS. (4) Respondents 2 and 3 are directed to make available to KVS the pro-rata contribution due towards the pension component of the petitioner on or before 31.3.2014. Any delay in making such payment to KVS will be satisfied with interest at 12% per annum thereon from 01.04.2014. (5) Parties will suffer their respective costs. **THOTTATHIL B. RADHAKRISHNAN JUDGE** **A. MUHAMED MUSTAQUE JUDGE** DMR/-