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SUPREME COURT OF INDIA
M.R. SHAH, A.S. BOPANNA, JJ.
VALSAN P. – APPELLANT
VERSUS
THE STATE OF KERALA AND ORS. – RESPONDENTS
CIVIL APPEAL NO. 6292 OF 2021 (ARISING OUT OF SLP(C) NO. 29856 OF 2019)
DECIDED ON : 21-10-2021
Service Law – Pension – Grant of – Condonation of period of break in service – Break between two appointments is much more than joining period and break itself is due to non-pensionable employment – Though benefit of reckoning earlier pensionable service between Central Government and State Government was provided, it was subject to remitting proportionate pro rata pensionary liability on service share basis between two employers – Observation of High Court that appellant is free to move Central Government if he has a case that his service in Telecom Department is liable to be reckoned is not justified – If break in service is condoned as sought by appellant, then entire relief would be available at hands of State Government – Benefit sought for by appellant is provided and sandwiched non-qualifying service as break in two services is condonable and prior public service shall be reckoned as qualifying service for pension – Issue of condoning break (Sandwich period) was claimed immediately on retirement and it was still being agitated – KAT was justified in its conclusion and High Court has erred in setting aside the same – Order passed by High Court set aside and order passed by KAT restored for its implementation. [Rule 29 (b) Part III of Kerala Service Rules] (Paras 10, 12, 13, 14 and 15)
Facts of the case:
Appellant is assailing the order dated 21.05.2019 passed by Division Bench of the High Court of Kerala at Ernakulam in OP (KAT) No.468 of 2017 titled, The State of Kerala and Others Vs. Valsan P. By the said order the learned Division Bench has allowed the OP and set aside the order dated 14.11.2016 passed by the Kerala Administrative Tribunal, Thiruvananthapuram (for short ‘KAT’) in O.A. No.975 of 2015. KAT had through the said order allowed the application granting the benefit of pension by condoning the period of break in service, as being permissible in the circumstance. Solitary moot question for consideration in the instant case is, as to whether the break in service interrupting the service rendered in Telecom Department and the Technical Education Department is condonable.
Findings of Court:
Main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break.
Result : Appeal allowed.
JUDGMENT :
A.S. Bopanna, J.
1. The appellant is before this Court in this appeal, assailing the order dated 21.05.2019 passed by the learned Division Bench of the High Court of Kerala at Ernakulam in OP (KAT) No.468 of 2017 titled, The State of Kerala and Others. Vs. Valsan P. By the said order the learned Division Bench has allowed the OP and set aside the order dated 14.11.2016 passed by the Kerala Administrative Tribunal, Thiruvananthapuram (for short ‘KAT’) in O.A. No.975 of 2015.
The KAT had through the said order allowed the application granting the benefit of pension by condoning the period of break in service, as being permissible in the circumstance.
2. The undisputed facts are that the appellant worked as a Technician in the Telecom Department during the period 05.02.1974 to 31.05.1984. The appellant thereafter joined as an Engineer in Steel Industries Limited, Kerala (for short ‘SILK’) on 04.06.1984. The said SILK is a Public Sector Undertaking (for short ‘PSU’) owned by Government of Kerala. He worked there till 31.05.1987. Subsequent thereto, through the Public Service Commission, the appellant joined the Technical Education Department on 31.05.1987. He served for about 19 years and on attaining the age of superannuation, retired from service on 30.06.2006.
3. The contested issue arose at this point when the appellant made claim for the pensionary benefits by taking into consideration and reckoning the service of 10 years rendered by the appellant between 05.02.1974 to 31.05.1984 in the Telecom Department which was service under the Central Government. The Accountant General, by the communication dated 26.07.2006 however informed that since the break between the Central Service and State Service is nearly three years, unless the same is condoned by the State Government, the Central Service cannot be reckoned as qualifying service for pension. The appellant therefore made a representation dated 23.09.2006 to the Government requesting to condone the said break in service. Though the said request was rejected by the communication dated 12.02.2007, it was by an unreasoned order. On being assailed, the same was set aside and the matter was sent back for reconsideration. On such reconsideration, the request made by the appellant was declined stating that there are no rules for condoning the break in service. It stated that as per rules the break between the two appointments shall not exceed the joining time admissible under service rules. The rule referred to was Rule 29 (b) Part III of Kerala Service Rules (for short ‘KSR’).
4. The appellant however filed a review petition dated 17.09.2014 seeking the State Government to review the decision since ‘SILK’, to which the appellant had joined in the sandwiched period was a fully State owned PSU. Hence, the appellant requested the exercise of power under Rule 39 of Part II of Kerala State and Subordinate Service Rules (for short ‘KS & SSR’). The review petition filed by the appellant was rejected through the intimation dated 21.05.2015 despite the Government order dated 24.09.2014. The appellant who was aggrieved by the rejection of his request approached the KAT in O.A. No.975 of 2015.
5. The KAT on making a detailed analysis of not just the rules but also the series of Government orders which are relevant, held the appellant entitled to the benefit and accordingly allowed the application. The KAT noted that the requirement was that the period of service in ‘SILK’ is to be condoned as a disconnect period to provide continuity of service in the two employments. Thus, giving the benefit of the Government order dated 24.09.2014 the entitlement as claimed was upheld. The High Court on the other hand has declined the relief by proceeding on the basis as if the appellant was seeking to reckon the service rendered by him in ‘SILK’ also as pensionable service. Insofar as service rendered in the Telecom Department it was held that the appellant should approach the Central Government seekin
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