Valsa P.V. v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942** ## **WP(C).No.16553 OF 2020(T)** ## **PETITIONER:** **VALSA P.V., LOWER PRIMARY SCHOOL ASSISTANT(LPSA), FATHIMA MATHA LOWER PRIMARY SCHOOL(AIDED) PUSHPAGIRI, THRISSUR DISTRICT, K.KUNNU P.O., PIN-680 311.** **SRI.BIJU MARTIN SRI.P.V.PAULSON SRI.M.M.SALIM** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** - **2 THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, IRINJALAKUDA P.O., THRISSUR DISTRICT-680 307.** - **3 THE ASSISTANT EDUCATIONAL OFFICER, CHALAKKUDY, CHALAKUDY P.O., THRISSUR DISTRICT.** - **4 THE MANAGER, FATHIMA MATHA LOWER PRIMARY SCHOOL, PUSHPAGIRY, THRISSUR DISTRICT, K.KUNNU P.O., PIN-680 311.** **SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.16553 OF 2020(T) ## **JUDGMENT** ## **Dated this the 4th day of February 2021** The petitioner says that she is working as a Lower Primary School Assistant (LPSA) in the “Fathima Matha Lower Primary School”, Pushpagiry, Thrissur. She says that while she was working in such capacity, she was thrown out of service on account of division fall between 15.07.1995 to 14.09.1998 and from 12.12.1998 to 31.05.1999. 2. The petitioner says that the afore period, however, was subsequently regularised, treating it as being “non-duty which will not call for any service benefits including pension”. The petitioner says that since she is going to retire from service on 31.05.2021, on attaining the age of superannuation, if these broken spells are not counted for pension, she will put to irreparable harm and prejudice. The petitioner explains that this is because her services had already been approved through Ext.P1, before she had been thrown out of services and therefore, that she is fully entitled to have this period reckoned for pension, even if it is not eligible for counting her service benefits. 3. The petitioner asserts that similar questions have WP(C).No.16553 OF 2020(T) been decided by this Court in **Muhammed Kunhi C.M. v. State of Kerala & others** [2011 (2) KHC 655] as also in **Sabu Mathew & others v. State of Kerala & others** [2017 (5) KHC 120], wherein, it has been held that break in service, which occurred solely due to reduction of staff strength, must be counted for pension. 4. The petitioner thus contend that Ext.P3 order issued by the Government is illegal; and adds that she has already preferred Ext.P4 representation against it, which has yet not been considered. The petitioner, therefore, prays that Ext.P3 order be set aside and Ext.P4 representation be directed to be considered by the Government. 5. In response, the learned Senior Government Pleader - Sri.P.M.Manoj submitted that a counter affidavit has been filed on record wherein the following have been stated: “2. It is submited that, the petitioner is now working as LPSA, FLPS, Pushpagiri under the jurisdiction of Chalakudy AEO. The petitioner was appointed LPSA with effect from 20/06/1991 in the retirement vacancy of Sri. A.K.Kunjuvareed. She is going to retire from the service on 31/05/2021 on Superannuation. The petitioner was thrown out due to division fall. The thrown out period from 15/07/1995 to 14/09/1998 and from 12/12/1998 to 31/05/1999 was regularized as non-duty as per GO(Rt) No. 796/07/G.Edn dated 21/02/2007 and that the said period will not count for any service benefits including pension. The petitioner has 26 years 3 months and 22 days of total service excluding the WP(C).No.16553 OF 2020(T) broken spells service. 3.As per GO(P)No.113/16/Fin dated 05/08/2016 “Regular/Broken spells including leave vacancy of aided school/aided college service of regular Aided School/Aided College Staffs shall not be counted for pension with full time regular Aided School/College Service”. Since the thrown out period of the petitioner for the period from 15/07/1995 to 14/09/1998 and from 12/12/1998 to 31/05/1999 is treated as non-duty of the promotion period. These broken periods cannot be counted for service eligible for pension.” 6. The learned Senior Government Pleader submitted that a subsequent Government Order, bearing No.G.O.(MS) 401/2019/Fin. dated 28.10.2019, has also been produced on record, wherein, the Government has clarified that broken spells of provisional service/leave vacancy service rendered by regular aided school staff/Government employees, in aided schools, prior to their entry in regular service, will not be reckoned as qualifying service with effect from 10.08.2018. The learned Senior Government Pleader, therefore, prayed that this writ petition be dismissed. 7. When I evaluate the afore submissions and examine the Government order dated 28.10.2019 referred to above by the the learned Senior Government Pleader, it is obvious that the Government has only clarified that broken spells of provisional service/leave vacancy service rendered by regular aided school staff or employees in aided schools, WP(C).No.16553 OF 2020(T) prior to their entry in regular service, will not be reckoned as qualifying service. However, the question in this case is not whether the petitioner is entitled to have his prior provisional service reckoned, but if the break in service which she had to suffer while she was in approved regular service should be reckoned for pensionary benefits. 8. The Government, in their counter affidavit only says that as per order dated 05.08.2016, “Regular/Broken spells of aided school teachers cannot be counted for pension with full time regular aided school/college service”. They maintain, therefore, that the thrown out period of the petitioner can be treated only as non-duty and that it cannot be counted for pension. 9. However, going by the Government order dated 28.10.2019, except the spells which are provisional in nature or which have been spent in leave vacancies, the Government has clarified that it will be counted as regular service for all purposes until 10.08.2018. 10. That said, the petitioner 's specific case is that she is entitled to the benefit of the declarations of law by this Court in **Muhammed Kunhi C.M.** (supra) and **Sabu Mathew** (supra) and that these have not been adverted to WP(C).No.16553 OF 2020(T) by the Government while Ext.P3 order had been issued. 11. In any event of the matter, since the petitioner's approval had been granted through Ext.P1 and since she was thrown out of service subsequently only on account of division fall - for which she is not in any manner responsible - I fail to understand how the Government could have taken a view that the same cannot be even counted for pension, though it may not count for service benefits. These aspects are not discernible from Ext.P3 order, which merely says that since the petitioner's service had been regularised only as non-duty for the period from 15.07.1995 to 14.09.1998 and from 12.12.1998 to 31.05.1999, she is not eligible for pension or other retiral benefits either. 12. I am, therefore, of the firm view that the Government must reconsider this matter taking note of **Muhammed Kunhi C.M.** (supra) and **Sabu Mathew** (supra), as also its order dated 28.10.2019 referred above. Resultantly, this writ petition is ordered, setting aside Ext.P3; with a resultant direction to the competent Secretary of the Government to reconsider the claim of the petitioner, adverting to the afore two judgments of this Court, as also to the contents of the Government order WP(C).No.16553 OF 2020(T) dated 28.10.2019 and after affording an opportunity of being heard to her - either physically or through video conferencing - thus culminating in an appropriate decision thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. I direct the Government to treat these directions as being peremptory in nature, since the petitioner is stated to be retiring on 31.05.2021. **Sd/- DEVAN RAMACHANDRAN** Stu **JUDGE** WP(C).No.16553 OF 2020(T) ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 20.06.1991 WITH ENDORSEMENT OF THE AEO DATED 12.09.1991. EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 30.08.2006. EXHIBIT P3 TRUE COPY OF THE GO(RT) NO.796/07/G.EDN DATED 21.02.2007, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 21.07.2020. EXHIBIT P5 TRUE COPY OF THE POSTAL RECEIPT DATED 30.07.2020.**