IMPORTANT POINTS
When pension is payable, normally the employee has to be appointed and his duties should be regulated and paid by the Government in terms of Rule 10. Apparently, this is a case in which the petitioner was working outside State of Kerala and therefore under normal circumstances that service cannot be reckoned unless there is a rule which prescribes otherwise. In fact, Note 1 and 2 of Rule 11 are exceptions in that regard, which we are not concerned. Note 2 in fact relates to service under the Central Government and in certain events it will be reckoned for computing pension once he become an employee in the State. That is not the situation here. Aided school teachers' service are also to be reckoned for the purpose of computing pension. But it should be within the State.

JUDGMENT :

Shaffique, J.

The appeal is filed against the judgment dated 24.7.2017 in W.P. (C).No.33859/2009. The writ petitioner had approached this Court challenging Ext.P8 by which her request for considering her previous service in a private college in the State of Andhra Pradesh to be tagged along with the service rendered by her in a private college in the State of Kerala, came to be rejected on the ground that there is no provision to reckon the previous service in a private college in another State, along with State Service.

2. The learned Single Judge however placing reliance on an earlier judgment in W.P.(C).No.37176/2003 decided on 12.3.2007 (O.Indira Devi Amma v. State of Kerala and Others), allowed the writ petition and directed the respondents to reckon petitioner's service in the State of Andhra Pradesh as qualifying service for the purpose of pension and retiral benefits.

3. In the counter affidavit filed by the Government, it was specifically stated that in so far as the petitioner was working as Junior Lecturer at St.Treasas College, Eluru, Andhra Pradesh from 21.7.1969 to 20.11.1979 and the said service cannot be treated as continuous service in the State of Kerala where she was employed from 21.11.1979 at Providence Women' College, Kozhikode, the pension rules does not permit grant of computation of pensionary benefits on the basis of service in an outside State. It is argued that the learned Single was not justified in placing reliance upon the judgment in W.P. (C).No.37176/2003.

4. On the other hand, learned counsel for the writ petitioner/respondent herein submits that in so far as the judgment in W.P.(C).No.37176/2003 has become final, the Government is bound to comply the same principle with reference to the petitioner as well and therefore the learned Single Judge was justified in issuing the aforesaid direction. That apart, it is submitted that as per Rule 11 of Part III KSR the Government can in individual cases, and subject to such conditions as they may think fit to impose in each, allow service rendered by an employee to count for pension. Such an exercise has not been done by the Government while issuing Ext.P8.

5. There is no dispute about the fact that in terms of Rule 10 of Part III KSR, the service of an employee does not qualify for a pension unless he is appointed, his duties regulated and paid by the Government or under conditions determined by the Government. Rule 10 reads as under:

“10. The service of an employee does not qualify for pension unless he is appointed, his duties regulated, and paid by the Government or under conditions determined by the Government.”

6. Rule 11 is relied upon by the counsel for writ petitioner which reads as under:

“11.Notwithstanding the provisions of Rule 10, the Government may,

(1) declare that any specified kind of service rendered shall qualify for pension; and

(2) in individual cases, and subject to such conditions as they may think fit to impose in each case, allow service rendered by an employee to count for pension.

Note 1. Service rendered under Governor's Household prior to 18th September 1963 will qualify for pension in the case of an employee absorbed therefrom in a post in the Governor's Secretariat, on the certificate of the Secretary, Governor's Household, Raj Bhavan or the Secretary to Governor as the case may be, as to the correctness of such service.

Note 2. Temporary employees of the Government of India on deputation to the State Government who are subsequently absorbed in the service of the State Government will be allowed to count for pension the period of their continuous temporary service under the Government of India immediately preceding the service under the State Government (vide also Rule 61), (Employees of State Government Departments who left the former service in Central Government/Central Public Sector Undertakings on their own volition for taking up appointment in State Government Departments will be allowed to reckon their prior servic