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2014 Supreme(Ker) 184
High Court of Kerala
ALEXANDER THOMAS, J.
Babu M. Poulose Assistant Engineer (Electrical Section)
Versus
The Kerala State Electricity Board, represented by its Secretary & Others
W.P. (C) Nos. 9102 & 31995 of 2006
Decided on : 18-03-2014
For the Petitioner:P.C. Sasidharan, E.S. Ashraf, Advocates.
For the Respondents: R1 -R3, Pulikool Abubacker, SC, KSEB, R4, I. Sheela Devi, S.K. Balachandran, Mathews K. Philip, Senior Counsels, BSNL.
Headnote:
Kerala Service Rules - Part III Rule 11 Note 2 - Pension - Benefits of - Prior service - Counting of - Findings of - Held, Respondent-Board decided to make applicable K.S.R.and K.S. & S.S.R. and amendments from time to time to employees of Board automatically unless otherwise decided by Full Board except in cases which they are governed by some of the rules of the Kerala State Electricity Board referred to in Ext.P10 - Impugned clause (1) of Ext.P7 Board Order dated 1.9.2005 is in conflict with statutory provision in Note 2 of R11 of Part III K.S.R. as amended by S.R.O. No.96/2006, Court have no hesitation to hold that impugned clause (1) of Board Order dated 1.9.2005 is ultra vires - As ordered by Government of India and Government of Kerala, as far as an employee of Government of India department, who, on his own volition leaves that employment to take up a regular employment in a Department under Government of Kerala or under respondent Electricity Board is concerned, full pensionary liability pertaining to that employee has to be borne by employer/organisation to which employee permanently belongs at time of retirement and no recovery of proportionate pension will be made from Central Government/State Government under whom he has served earlier - Insistence for payment of pro-rata pension liability is only in a case where former employer happens to be a Central Public Sector undertaking - No provisions by way of orders of Full Board have been shown to me to establish that Full Board of Electricity Board has taken any decision expressly making inapplicable aforementioned provisions of S.R.O. No.96/2006
1. The petitioners in the above two Writ Petitions have initially commenced the service in the Posts & Telegraphs Department (P&T Department) of the Government of India and had applied for appointment as Sub Engineer in the Kerala State Electricity Board through the selection by Kerala Public Service Commission. Upon such selection, they were offered appointment in the Kerala State Electricity Board and they had on their own volition left the service of the P&T Department of the Government of India and had joined the service of Kerala State Electricity Board. It is their case that their prior service in the P&T Department of the Government of India is liable to be counted for the purpose of reckoning pensionable service at the time of their retirement from the Kerala State Electricity Board and also that they are entitled for weightage for this prior service, for regulating their pay, in terms of the long time settlement arrived at by the Kerala State Electricity Board with effect from 8.2.1995. The respondent-Electricity Board objects to the grant of such relief on the ground that the petitioners had failed to produce relevant documents and materials from the P&T Department of Government of India to show that their erstwhile employer had given consent/no objection before they had applied to the Kerala Public Service Commission for the latter appointment in the Kerala State Electricity Board. The primary objection of the Electricity Board in the matter of the prayer for reckoning the prior service in the Government of India as pensionable service under the Electricity Board is that as per the impugned Board order dated 1.9.2005 [Ext.P7 in W.P.(C). No.31995/2006 and Ext.P3 in W.P. (C).No.9102/2006], the reckoning of such prior service as pensionable service in the Board can be granted only on realisation of pro-rata pension liability from the Departments of the Government of India/Central autonomous body concerned and further that in case the former employer is not willing to pay such pro-rata contribution, then the employee concerned cannot be permitted to pay such amount from their own pockets to the respondent-Board.
2. The petitioner in W.P.(C).No.31995/2006 had served in the P&T Department of the Government of India for the period from 6.9.1978 to 13.7.1989 (around ten years and ten months) and had joined the regular service of the respondent-Board as Sub Engineer on 15.7.1989 pursuant to selection by the Kerala Public Service Commission. The petitioner in W.P.(C).No. 9102/2006 had service in the P&T Department of the Government of India for the period from 13.7.1982 to 25.11.1989 (around seven-and-a-half years) and had joined the regular service of the respondent-Board as Sub Engineer from 25.11.1989. Both the petitioners had furnished the relevant service certificates from the P&T Department of the Government of India to the respondent-Board. It is also admitted by them that both had left the service of the Government of India on their own volition so as to take up regular employment under the respondent-Board. While processing their claims, the respondent-Board directed them, as evident from Ext.P3 dated 19.12.2003 in W.P.(C).No. 31995/2006, to produce documentary proof to show that their applications for recruitment in the respondent-Board was routed through their former employer and with their permission. The petitioners made attempt to get such materials from the P&T Department of the Government of India and as evident from Ext.P5 dated 1.10.2003 [produced in W.P. (C).No.31995/2006] the authorities of the Department of Posts of Government of India had duly informed that such records are no longer available with them at that distance of time presumably due to destruction of records. The sheet anchor of defence of the respondent-Board is on the basis of the aforementioned impugned Ext.P7 Board order dated 1.9.2005, which according to them, mandates that the benefit of counting the prior service as pensionabl
