Point of law: Service that was once considered for inclusion in the qualifying service for pension was the provisional service envisaged under Rule 9 (a) (i) of the KS&SSR - Although such provisional service, that is rendered against a post that the incumbent holds temporarily, on account of his not being eligible to occupy the sanctioned post on regular basis, would not ordinarily qualify for the grant of pensionary benefits, it is within the discretion of the Government to include such service for pensionary benefits.

JUDGMENT :

A.K. Jayasankaran Nambiar, J.

The State of Kerala is the appellant in all these appeals, aggrieved by the common judgment dated 18.03.2021 of the learned single judge in W.P(C) No.1033/2020 and connected cases and the subsequent judgments of the learned single judge following the former judgment. The short issue that was adjudicated by the learned single judge was the validity of an amendment effected to Rule 14E (b) of Part III Kerala Service Rules [KSR], to the extent it stipulated that only regular service rendered by teachers in private aided colleges in the State, prior to the regular service rendered by them in the aided/government colleges from where they superannuated, would be reckoned for the purposes of computation of their pensionary benefits. The brief facts necessary for disposal of these writ appeals are as follows:

The writ petitioners were all persons who had rendered service in leave vacancies in various private aided colleges in the State, prior to commencing regular service in the establishment from which they subsequently retired on superannuation. In their writ petitions, they were aggrieved by the stand of the respective authorities of the State government, based on the amendments effected to Rule 14E (b) of Part III KSR in 2009, that they could not reckon the prior service rendered by them in leave vacancies in private aided colleges in the state, for the purposes of computing their pensionary benefits. The writ petitioners pointed out that while the erstwhile provisions of Part III KSR, that was made applicable to them through the relevant provisions of the University statutes that governed their conditions of service and pensionary benefits, clearly provided for reckoning their regular service in the establishment from which they retired on superannuation, for the purposes of pensionary benefits, various government orders issued by the State Government from time to time had permitted the addition of prior service rendered in aided private colleges in the State, to the former, for the purposes of determining their entitlement to pensionary benefits. They contended, therefore, that the impugned amendment that was effected in 2009, purportedly to provide a statutory footing to the executive orders aforementioned, ran counter to the said objective and was ultra vires the Kerala Service Rules framed by the State Government pursuant to the power granted under Article 309 of the Constitution.

2. Through the counter affidavits filed on behalf of the State government in the writ petitions, it was pointed out that the impugned amendment to Rule 14E (b) of Part III KSR was effected so as to give a statutory basis to the Government Orders that had earlier held the field and, in that sense, there was no substantial change effected to the conditions of service of the teachers concerned. Reference has been made to the earlier and subsequent Government orders issued in this connection and also to the judgment of a Division Bench of this Court in Shameer Ali v. Deputy Director of Collegiate Education – [2018 (3) KLT 925], wherein this Court had held that while aided school service put in by government college employees prior to their entry in government service had to be reckoned for the purposes of pensionary benefits, it would nevertheless be subject to the six specific conditions mentioned in Rule 14E of Part III KSR.

3. The learned single judge who considered the issue found that the impugned amendment, to the extent it included the word ‘regular’ to qualify the prior service rendered by teachers in aided colleges, prior to their service in the aided college from which they retired on superannuation, for the purposes of pensionary benefits, went against the stated objective of the amendment that it only gave effect to the executive orders that held the field till then. The learned judge found that the earlier government orders had not qualified the service that was eligible for being counted for pensionary p