High Court of KeralaDivision Bench2018-10-05OP(KAT).173/2018 disposed of with liberty to th...

V. P. Kunhalan v. State of Kerala and Others

Case / Petition Number:OP(KAT).173/2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
A. M. Babu
Judgment Date: 2018-10-05
Court Decision / Holding: The Original Petition is disposed of with liberty to the petitioner to file a representation before the 1st respondent under Annexure-3 within three weeks from the date of receipt of this judgment. The 1st respondent shall consider the representation as expeditiously as possible, within six months from the date of its receipt. The order in T.A.449/2014 is set aside to enable such consideration. It is clarified that the court has not expressed any opinion on the merits or entitlement of the petitioner for pension.
Final Disposition: OP(KAT).173/2018 disposed of with liberty to the petitioner to submit Annexure-3 representation to the 1st respondent within three weeks; the 1st respondent to consider within six months; TA order set aside for such consideration; no express observation on merits or entitlement to pension.

Parties to the Case

Appellants / Petitioners

V. P. Kunhalan

Respondents

State of Kerala
Director of Panchayath, Thiruvananthapuram
Deputy Director of Panchayath, Malappuram
Secretary, Mampad Grama Panchayath

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Sankarankutty Nair
• Sri Shankar V.

Counsels for Respondents

• Sri Antony Mukkath

Case Synopsis & Summary

This Original Petition challenges the Kerala Administrative Tribunal’s order in T.A.449/2014 (renumbered from W.P.(C)31645/2004) and seeks pension revision on the basis of provisional service. The petitioner, V. P. Kunhalan, a retired U.D. Clerk of Mampad Grama Panchayath, argued that his pension should be refixed by counting the period of provisional service in similar posts with the same pay scale, prior to his regularisation, and that he should receive the entire arrears and increments. The Tribunal, relying on a Full Bench decision in State of Kerala v. Ponnamma, held that provisional service rendered before 1.10.1994 which is followed by regular appointment would be reckonable only for increments, not for pension; it found no material to prove that provisional service before 1.10.1994 could be counted for pension. The petitioner later produced Annexure-3, a Government Order (G.O. No. 2357/99/Fin, dated 25.11.1999), which states that provisional service up to 30.9.1994 qualifies for earning increments and also for pension irrespective of retirement date, but Annexure-3 was not placed before the Tribunal. The High Court notes this and disposes of the petition by granting liberty to the petitioner to submit a representation under Annexure-3; the 1st respondent is directed to consider it expeditiously, within six months of receipt, and the order in TA 449/2014 is set aside to enable such consideration. It is clarified that no observations are made on merits.

Provisions of Law Cited

Rule 33, Part-III of Kerala Service RulesG.O.(P) No.2357/99/FIN. dated 25.11.1999

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that his pension should be revised by reckoning the period of provisional service in similar posts at the same pay scale prior to regularisation, and that he should receive the arrears and increments. He relied on Annexure-3 (G.O. No.2357/99/Fin, dated 25.11.1999) to argue that provisional service up to 30.9.1994 qualifies for pension irrespective of retirement date; representation under Annexure-3 was sought within a short period after the Tribunal’s order.

Contentions of Respondents

The respondents rely on the Full Bench decision in State of Kerala v. Ponnamma, which held provisional service prior to 1.10.1994 followed by regular appointment would be reckonable only for increments, not for pension. They note Annexure-3 was not placed before the Tribunal and maintain that the pension claim cannot be allowed on the basis of provisional service before 1.10.1994. They urge that the Tribunal’s findings be sustained and contend that Annexure-3 should be properly examined in light of the Government order.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Ponnamma	2015 (4) KLT 987	Positive	Full Bench decision relied upon by the Tribunal; the court treats the principle as applicable, i.e., provisional service prior to 1.10.1994 reckonable only for increments, not for pension, and upholds the tribunal’s reliance on it.
W.A. No. 3208/2000	W.A.No.3208/2000	Mentioned Only	Exhibit P1 references a judgment in this appeal; it is cited but the present judgment does not discuss or apply its principles.

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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 C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** ## **OP(KAT).No. 173 of 2018** **TA 449/2014 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT IN OA:** **V.P. KUNHALAN AGED 67 YEARS, U.D. CLERK (RETIRED), MAMPAD GRAMA PANCHAYATH, RESIDING AT CHOLAYIL HOUSE, PANNIPARA,MALAPPURAM DISTRICT, PIN:676 541.** **BY SRI.P.SANKARANKUTTY NAIR SRI.SHANKAR V.** ## **RESPONDENTS/RESPONDENTS IN OA** - **1 STATE OF KERALA** - **REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT,THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR OF PANCHAYATH THIRUVANANTHAPURAM-695 001.** - **3 THE DEPUTY DIRECTOR OF PANCHAYATH MALAPPURAM-676 505.** - **4 THE SECRETARY MAMPAD GRAMA PANCHAYATH, MAMPAD, MALAPPURAM DISTRICT-676 542.** ## **GP- SRI ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 05.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(KAT).173/2018** 2 ## JUDGMENT Ravikumar, J. 1. This Original Petition is filed challenging the order passed by the Kerala Administrative Tribunal in T.A.449/2014. The petitioner filed W.P.(C).31645/2014 before this Court seeking the following reliefs : (i) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents to revise the pension of the petitioner considering his length of service as a provisional employee in the similar posts having same scale of pay, before his service was regularised and to pay the petitioner the revised pension with the entire arrears and increments forthwith. (ii) Declare that the petitioner is entitled to refix his pension and also he is entitled for arrears and increments taking into consideration his length of service as a provisional employee in the similar posts having same scale of pay, forthwith. 2. Subsequent to the constitution of the Kerala Administrative Tribunal, the said OP was transferred to the Tribunal and consequently it was renumbered as T.A.449/2014 and it is **OP(KAT).173/2018** 3 its consideration that culminated in the impugned order. No reply statement was filed by the respondents, before the Tribunal. 3. The Tribunal considered the tenability of the contentions raised by the petitioner herein as also his entitlement to the reliefs sought for. After such consideration the Tribunal dismissed the T.A. relying on the Full Bench decision in State of Kerala v. Ponnamma (2015 (4) KLT 987). Going by the said decision, the provisional services which were rendered prior to 1.10.1994 followed by regular appointment alone would be reckoned for granting increment. The above extracted prayers in the T.A. Would reveal that prayer of the petitioner herein is to reckon the said period for the purpose of pension. No material was produced before the Tribunal to support his contention that the said provisional service rendered prior to 1.10.1994 and followed by a regular appointment prior to 1.10.1994 could be reckoned for the purpose of pension provided the appointee joined the post prior to 1.10.1994. **OP(KAT).173/2018** 4 4. Along with the Original Petition the petitioner has produced G.O.(P).2357/99/Fin dated 25.11.1999, marked as Annexure-3. It is to be noted that the said document was not at all produced before the Tribunal. As per Ext.P3, it was ordered that provisional service with or without break rendered upto 30.9.1994 which qualifies for earning increment in terms of decision No.2 under Rule 33, Part-III of Kerala Service Rules would be reckoned as qualifying service for pension irrespective of dates of retirement after 20.11.1989. It is also made clear therein that provisional service rendered on or after 1.10.1994 would not be reckoned as qualifying service for pension solely in the light of Annexure-3. Since Annexure-3 G.O was not produced before the Tribunal and no reply statement was filed by the respondents, the Tribunal had no opportunity to peruse the same while rendering the impugned order. In such circumstances, we cannot hold that the Tribunal had erred in rejecting the prayer of the petitioner. But at the same time, we are of the view that this Original Petition can be **OP(KAT).173/2018** 5 ## disposed of taking note of the following aspects. 5. In paragraph 2 of the Original Petition, the petitioner has narrated the details of his temporary service from 1971 to 1981. It would reveal that he had actually rendered provisional service for a period of 794 days. He rendered temporary service during the following period, as detailed below : ||Post|Duration|No.of working days| |---|---|---|---| |1|Lower Division Clerk Forest Range Office, Karulai|29.6.1970 to 8.6.1971|346 days| |2|Lower Division Clerk Office of the Food Inspector, Manjeri|20.4.1974 to 19.7.1974|91 days| |3|Lower Division Clerk Malabar Special Police Malappuram|3.6.1975 to 30.8.1975|89 days| |4|Village Extension Officer, Grade II, Wandoor Block|3.5.1979 to 30.7.1979|89 days| |5|Lower Division Clerk Ponnani Municipality|1.6.1981 to 26.11.1981|179 days| ## 6. It is true that the petitioner had not submitted any **OP(KAT).173/2018** 6 representation for reckoning the provisional service for the purpose of increment even after his entry in regular service. At the same time it is evident that the prayer of the petitioner is that the said service should be reckoned for the purpose of pension. There cannot be any doubt with respect to the decision that service which was not reckoned for the purpose of increment would not be counted as qualifying service for the purpose of pension. It is in the said circumstances that Annexure-3 would assume relevance. If decision No.2 under Rule 33 of Part-III of KSR was in force the said provisional service could have been reckoned only for the purpose of granting increment and not for any other purpose. It is only after the issuance of Annexure-3 that such service was reckoned for the purpose of granting pension. The entitlement of the petitioner for pension based on the said provisional service was not at all looked into, with reference to Annexure-3, by the official respondents. 7. In the above circumstances this Original Petition is disposed of with liberty to the petitioner to prefer a representation **OP(KAT).173/2018** 7 before the 1[st] respondent in the light of Annexure-3. Such a representation shall be preferred, if he desirous to do so, within a period of three weeks from the date of receipt of a copy of this judgment. In case of receipt of such a representation the first respondent shall consider the same, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of such representation. The order in T.A is set aside to enable such consideration. It is made clear that we have not made any observation touching the merits or entitlement of the petitioner for pension. Sd/- C.T.RAVIKUMAR Judge Sd/A.M.BABU Judge Mrcs/5.10. /True copy/ P.S.To Judge **OP(KAT).173/2018** 8 ## **APPENDIX** ## **EXHIBITS:** **ANNEXURE 1** **TRUE COPY OF THE T.A.NO.449 OF 2014 [WRIT PETITION NO:31645 OF 2004] DATED 26.10.2004.** **EXHIBIT P1 IN T.A** **TRUE COPY OF THE JUDGMENT DATED 3.6.2003 OF THIS HON'BLE COURT IN W.A.NO.3208/2000.** - **EXHIBIT P2 IN T.A. TRUE COPY FO THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 29.1.2003.** - **EXHIBIT P3 IN T.A. TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 1.3.2004.** **EXHIBIT P4 IN T.A. TRUE COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER FROM THE 3RD RESPONDENT DATED 26.3.2004.** - **EXHIBIT P5 IN T.A. TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 16.4.2004.** **ANNEXURE 2 TRUE COPY OF THE ORDER DATED 13.7.2017 IN T.A.NO.449/2014 [WPC NO.31645/2004 OF HON'BLE HIGH COURT OF KERALA].** - **ANNEXURE 3: TRUE COPY OF THE GOVERNMENT ORDER G.O.(P) NO.2357/99/FIN. DATED 25.11.1999.** TRUE COPY P.S. TO JUDGE