Ashok Bhushan, Ag.CJ.

This Larger Bench has been constituted on a reference made by a three Judge Bench by referring order dated 15.2.2014, in which the correctness of a Full Bench decision in District Transport Officer v. Kunchan (2009 (3) KLT 954(FB)) has been doubted. By the said reference order, these five Writ Petitions and two Writ Appeals have been referred to Larger Bench.

2. W.P(C).No.31599 of 2009 is being treated as the leading Writ Petition. It is sufficient to refer to the facts and pleadings in the leading Writ Petition for answering the reference and deciding all these cases. The brief facts giving rise to W.P(C).No.31599 of 2009 are:

The petitioner joined the service of the Kerala State Road Transport Corporation (hereinafter referred to as 'KSRTC') as empanelled Driver on daily wage at Adoor Depot in February, 1995. He continued as such till his selection by the Kerala Public Service Commission (hereinafter referred to as 'PSC') and consequent appointment as reserve Driver on the basis of advice memo dated 22.6.2000. The petitioner was appointed as reserve Driver in pay scale of Rs.3,000-6,685/-with effect from 19.7.2000. He became Driver Grade-II with effect from 28.5.2001. He continued in service till 31.12.2007, when he attained the age of superannuation. His service, after regular appointment, was only 7 years 5 months and 13 days. According to the Kerala Service Rules, Part III, minimum qualifying service for pension is ten years. The KSRTC has adopted the Kerala Service Rules, Part III for its employees. A memorandum of settlement was entered between the KSRTC through its Chairman and Managing Director and the Kerala State Road Transport Employees Association dated 13.4.1999. The said agreement was also approved by the Government of Kerala by G.O(MS) No.9/99-TRAN dated 9.4.1999. The memorandum of settlement contained various clauses covering scales of pay, dearness allowance, house rent allowance, medical reimbursement, special allowance, travelling allowance and several other subjects including pension. Annexure-IV to the settlement contained different categories of posts divided in 11 sections totalling 161. Thus, the settlement covered 161 categories of posts (learned counsel for the KSRTC placed before the Court a copy of the agreement dated 13.4.1999 for perusal of the Court). As noted above, the agreement contained clause XXIII-Pension. For the purpose of pension, daily wage period of Conductors, drivers and mechanical staff before their regular appointment was to count subject to condition as mentioned in clause XXIII-3.

3. The petitioner, after retirement, has submitted a representation to the Chairman and Managing Director of the KSRTC requesting to add provisional service rendered by him before his regular service. In the representation he placed reliance on a Division Bench judgment of this Court in Idicula Abraham v. K.S.R.T.C (2005(2) KLJ 602). It was stated that the judgment of the Idicula Abraham's case (supra) has been implemented, hence he is also entitled to count his provisional service for pension and pensionary benefits. The petitioner filed W.P(C).No.26795 of 2008 seeking a declaration that he is entitled to count his qualifying service for pension. This Court by judgment dated 16.7.2005 disposed of the Writ Petition directing to take decision on the representation submitted by the petitioner for pensionary benefits. In pursuance of the above judgment, an order dated 14.10.2009 was issued by the KSRTC rejecting the claim of the petitioner to count his daily wage service prior to his regular appointment. It was stated that though in the wage revision settlement 1997 it was provided that daily wage period shall be taken into account for pension, the same is applicable to those who got appointment through the Employment Exchange. Challenging the decision of the KSRTC, the Writ Petition was filed by the petitioner praying for the following reliefs:

"i) call for the records leadin