Vasanthakumari.K v. Senior Accounts Officer, Office of the Accountant General Kerala; Deputy Director of Education, Kozhikode; District Educational Officer, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942** ## **WP(C).No.13435 OF 2012(D)** ## **PETITIONER:** **VASANTHAKUMARI.K, HSA (RETIRED), VARAPRASADAM, 1C, KARISHMA RESIDENCY, HARI NAGAR, POONKUNNAM, THRISSUR-2.** **BY ADV. SRI.R.K.MURALIDHARAN** ## **RESPONDENTS:** **1 THE SENIOR ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL KERALA, THIRUVANANTHAPURAM-695 001. 2 THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE-673 001. 3 THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE-673 001.** **BY ADV.SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13435 OF 2012(D)** **-2-** ## **JUDGMENT** **Dated this the 15th day of January 2021** The petitioner has approached this Court seeking a direction to the respondents to reckon her qualifying service as being twenty years and not nineteen, as has been recorded in Exts.P2 and P3. 2. The petitioner submits that she retired from the services of P.V.S. High School, Kozhikode, as a High School Assistant on 31.03.2008 and that during the period of her service, in the year 1991, there was a reduction in student strength, consequent to which, she was retrenched on account of the abolition of the post. She says that, thereafter, she was appointed on 01.06.1992 and that she continued without any interruption until 31.03.2008. 3. The petitioner submits that when her application for pension/gratuity/family pension was forwarded to the first respondent, Exts.P2 ## **WP(C).No.13435 OF 2012(D)** **-3-** and P3 have been issued, reducing the period between 15.07.1991 and 31.05.1992. The petitioner contends that, as has been declared by this Court in **Muhammed Kunji v. State of Kerala [2011 (3) KLT 147],** the period when she was retrenched on account of fall of student strength is also countable for the purpose of her pension as qualifying service and, therefore, prays that Exts.P2 and P3, to that extent, be set aside. 4. In response to the afore submissions of the petitioner as made by her learned counselSri.R.K.Muralidharan, the learned Senior Government Pleader – Sri.P.M.Manoj, submitted that while the petitioner was working as an HSA (Malayalam) on 01.06.1988, she was thrown out of service on 15.07.1991 for want of sufficient student strength, but reappointed only on 01.06.1992 in an additional created post for the academic year 1992-1993. He says that, therefore, her net qualifying service is only ## **WP(C).No.13435 OF 2012(D)** **-4-** nineteen years, excluding the period from 15.07.1991 to 31.05.1992 and therefore, that Exts.P2 and P3 are without any error. He concluded his submissions by saying that Rule 31, and the Notes thereunder, in Part III of the Kerala Service Rules (KSR) are only applicable to Government employees and not to the aided school teachers and that, as far as the aided school service is concerned, Government decision No.8, below Rule 14E of Part III KSR is applicable. He, therefore, prayed that this writ petition be dismissed. 5. I have considered the afore submissions and it is indubitable that break in service of the petitioner between 15.07.1991 and 31.05.1992 is admitted. The Government is relying upon decision No.8, below Rule 14E of Part III KSR, which mandates that the benefit of reckoning of the periods of break, as per Note 3 below Rule 31 of Part III KSR, will be allowed in cases where the appointments before break was not **WP(C).No.13435 OF 2012(D)** **-5-** provisional or for a limited period and that the break was due to reduction of staff strength of the institution. When this provision is taken into account, it is obvious that the petitioner was sent out of service on 15.07.1991 for no fault of hers, but solely because of reduction of student strength; and that she was reappointed on 01.06.1992. 6. When the facts of this case are thus analyzed, it has become ineluctable that the ratio in **Muhammed Kunji (supra)** cited by the petitioner would apply in all its force to the petitioner, since this Court has declared that break in service, which occurred due to reduction of staff strength, cannot be excluded for the purpose of computation of pension. This judgment, or its ratio, has not been adverted to by any of the competent Authorities until now; but Exts.P2 and P3 have been issued disallowing the period of break to the petitioner, presumably relying upon the afore mentioned Rule ## **WP(C).No.13435 OF 2012(D)** **-6-** 14E of Part III KSR. However, as I have already said afore, even going by the said Rule, I cannot find how the petitioner can be disentitled to have the period of her break from 15.07.1991 to 31.5.1992 as qualifying service. 7. In the afore circumstances, I am of the firm view that the petitioner is entitled to the relief sought for in this writ petition and that this Court will be justified in allowing it on such terms. In the afore circumstances, I direct the second respondent to immediately rectify Exts. P2 and P3 appropriately, granting the benefit of qualifying service to the petitioner, including the period of break in her service between 15.07.1991 and 31.05.1992, in terms of the ratio in **Muhammed Kunji (supra);** and for such purpose, necessary orders shall be issued, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. **WP(C).No.13435 OF 2012(D)** **-7-** Needless to say, once the afore exercise is completed, the resultant benefits will be disbursed to the petitioner, within a period of two months thereafter. The writ petition is, thus, ordered. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C).No.13435 OF 2012(D)** **-8-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE RELEVANT PAGES OF THE APPLICATION FOR PENSION IN FORM NO.2 DATED 15.10.2007.** **EXHIBIT P2 A TRUE COPY OF THE VERIFICATION REPORT OF THE 1ST RESPONDENT DATED 26.2.2008.** **EXHIBIT P3 A TRUE COPY OF THE COMMUNICATION FROM THE 1ST RESPONDENT.** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE