IMPORTANT POINT
Exception clause, normally a part of the enacting section unlike a proviso which follows an enacting part; has to be strictly interpreted and cannot be assumed but be proved.

JUDGMENT

K.S. Radhakrishnan, J. —

1.Leave granted.

2.The question that falls for our consideration in this case is whether the respondent who was in service as on 07.04.1970 as a full time menial in an aided school is entitled to get the benefit of Rule 60(b) Part-I Kerala Service Rules, (KSR for short) so as to continue in government service upto 60 years of age.

3.The respondents entered service in an aided school on 25.06.1968 and worked as a full time menial upto 09.04.1976. He resigned from the post and joined as a Peon in the Tribal Welfare Department of the Government of Kerala on 10.04.1976. Respondent had raised a claim that he was entitled to continue in service up to 60 years of age as per Rule 60(b) Part-I KSR since he was working as a full time menial in an aided school as on 07.04.1970 and continued to be in the last grade till he attained the age of 55 years. His claim was rejected by the Department vide order No.E-49227/ 2001.

4.Feeling aggrieved by that order he preferred a writ petition O.P.No.29317/2001 before the Kerala High Court. Learned Single Judge of the Kerala High Court on 25.05.2006 allowed the writ petition holding that had he remained in the aided school service he would have continued upto 60 years of age, hence he was entitled to the benefit of Rule 60(b) Part-I KSR. Learned single judge gave a direction to allow the respondent to continue in service till he attained 60 years of age and to settle his pension and other benefits accordingly. State of Kerala and Others preferred writ appeal no.35 of 2007 before the Division Bench of the Kerala High Court and the appeal was dismissed on 15th January, 2007 at the admission stage. Feeling aggrieved by that judgment this appeal has been preferred by the State of Kerala and their officers.

5.Mr. G. Prakash, learned counsel appearing for the State of Kerala submitted that the High Court has committed a grave error in holding that the respondent who was working as a full time menial in an aided school as on 07.04.1970 was entitled to get the benefit of Rule 60(b) of Part-I KSR. Counsel submitted that the service in an aided school has not been included in the last grade service as defined in GO(P)82/66/PD dated 08.03.1966 and as per the government decision no.1 under Rule 14 in Part-III KSR the said period can be counted only for pensionary benefits but does not confer any right to the incumbent to continue in service upto 60 years of age. Consequently, provisional pension has already been sanctioned to the respondent considering his regular service till he attained the age of 55 years under Rule 3A Part-III KSR.

6.Ms. Beena Madhavan, learned counsel appearing for respondent submitted that the service put in by the respondent in the aided school from 25.06.1968 to 09.04.1976 should be taken into consideration for the purpose of granting benefit under Rule 60(b) of Part-I KSR. Learned counsel submitted as per Rule 29(b) of Part-III KSR past service would be counted if a person resigns from a service to join another service. Learned counsel also referred to Rule 14E of KSR Part-III and submitted that the aided school service put in by the government employee prior to his entry in service would qualify not only for the purpose of pension, but also for continuity in service upto 60 years of age. Learned counsel, therefore, submitted that respondent had satisfied all the criteria for claiming the benefit of Rule 60(b) Part-I KSR and the High Court has rightly granted the benefit.

7.The primary question that arises for consideration is whether the respondent who was in service of an aided school as on 07.04.1970 was entitled to continue in service till he attained 60 years of age as per clause ‘b’ of Rule 60 of Part-I KSR.

8.KSR was introduced by the Government of Kerala under the proviso to Article 309 of the Constitution of India with effect from 01.11.1959 and these rules are deemed to have been made under the Kerala Public Service Act (Act 19 of 1968). KSR contains