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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. SURESH KUMAR, C.S. SUDHA, JJ.
STATE OF KERALA – Appellant
Versus
SUSHAMA S. ASSOCIATE PROFESSOR (RETIRED) – Respondent
W.A. No. 1460 of 2022
Decided On : 04-01-2023
Employment and Service matter - Appointment - Appointed as Lecturer - Pensionary benefits - Petitioner was appointed as Lecturer in a private college affiliated to University of Calicut (the University) - College is covered by Direct Payment Scheme of State Government - Appointment of petitioner was against a vacancy that arose by reason of grant of leave without allowance to a regular teacher in college - Ext.P1 is order of appointment of petitioner - Appointment of petitioner was approved by University as also Directorate of Collegiate Education with effect from, date on which petitioner joined duty pursuant to appointment - While petitioner was working as such, a regular vacancy arose in college on and appointment of petitioner was consequently shifted by management to that vacancy - Later, petitioner was placed as Senior Scale Lecturer with effect and as selection grade lecturer with effect - Whether appointment of petitioner against the vacancy that arose by reason of grant of leave without allowance to a regular incumbent, can be regarded as an appointment made against a substantive vacancy - Whether service rendered by petitioner in leave vacancy preceding her absorption without break in the regular establishment, shall qualify for pensionary benefits It is seen that later Rule 14E(b) of Part III KSR itself was under challenge in a batch of writ petitions before court to extent it stipulated that only regular service rendered by teachers in private aided colleges, prior to the regular service rendered by them in aided/Government colleges, would be reckoned for purpose of computation of their pensionary benefits.
Findings of the Court:
It is seen that later Rule 14E(b) of Part III KSR itself was under challenge in a batch of writ petitions before court to extent it stipulated that only regular service rendered by teachers in private aided colleges, prior to regular service rendered by them in aided/Government colleges, would be reckoned for purpose of computation of their pensionary benefits - Though learned Single Judge allowed writ petitions by striking down the expression “regular” in clause (i) of Rule 14E of Part III KSR, decision in writ petitions was reversed by Division Bench in State of Kerala vs. Sumayamma George, 2022 (1) KLT 426, holding that going by scheme of KSR, it is occupancy of a post together with a lien thereto either limited or absolute that entitles lien holder to pensionary benefits attached to that post and that a person appointed in a leave vacancy does not obtain any lien to post, he merely officiates or occupies that post till original incumbent returns after leave - In light of discussion aforesaid, Court hold that service rendered by petitioner in leave vacancy preceding her absorption without break in the regular establishment, shall not qualify for pensionary benefits.
Result: Writ Appeal is allowed.
JUDGMENT :
P.B. SURESH KUMAR, J.
1. This appeal is directed against the judgment dated 07.06.2022 in W.P. (C) No. 19394 of 2019. Respondents 1 to 5 in the writ petition are the appellants. Parties and documents are referred to in this judgment for convenience, as they appear in the writ petition.
2. The petitioner was appointed as Lecturer in a private college affiliated to the University of Calicut (the University) on 02.02.1994. The college is covered by the Direct Payment Scheme of the State Government. The appointment of the petitioner was against a vacancy that arose by reason of the grant of leave without allowance to a regular teacher in the college. Ext.P1 is the order of appointment of the petitioner. The appointment of the petitioner was approved by the University as also the Directorate of Collegiate Education with effect from 04.02.1994, the date on which the petitioner joined duty pursuant to the appointment. While the petitioner was working as such, a regular vacancy arose in the college on 01.04.1997 and the appointment of the petitioner was consequently shifted by the management to that vacancy. Later, the petitioner was placed as Senior Scale Lecturer with effect from 04.02.1999 and as selection grade lecturer with effect from 04.02.2004. The placements aforesaid of the petitioner were also approved by the University and the Directorate of Collegiate Education. While so, the petitioner retired from service on 30.03.2019.
3. In Ext.P9 verification report issued by the office of the Accountant General (A&E) in connection with the sanctioning of pensionary benefits to the petitioner, the qualifying service of the petitioner was, however, shown as 22 years excluding the period between 04.02.1994 and 31.03.1997 during which the petitioner had worked in the leave vacancy. According to the petitioner, the said period is also liable to be reckoned as qualifying service for grant of pensionary benefits to her. The petitioner, therefore, preferred a representation before the Director of Collegiate Education for appropriate orders for reckoning the service rendered by her in the leave vacancy also as qualifying service. The said representation was rejected as per Ext.P14 communication informing the petitioner that she is not entitled to reckon the said period as qualifying service. The writ petition was instituted, in the above background, challenging Ext.P9 verification report to the extent it provides that the qualifying service of the petitioner for pension would be only 22 years, and Ext.P14 communication. The case set out by the petitioner in the writ petition is that insofar as the service rendered by her in the leave vacancy has been reckoned for granting increments as also for placements in the senior scale and selection grade, she is entitled to reckon the said period for the purpose of pensionary benefits as well. The learned Single Judge took the view that the nature of vacancy in which the petitioner was initially appointed would not be of any consequence in the matter of fixing her qualifying service for pension inasmuch as the placements of the petitioner in the senior scale as also in the selection grade, reckoning the period during which she had worked in the leave vacancy, were approved by the Director of Collegiate Education. Consequently, the writ petition was allowed at the admission stage itself quashing Ext.P9 verification report to the extent to which it was challenged as also Ext.P14 communication and directing the official respondents to issue fresh orders sanctioning pensionary benefits to the petitioner. The State and its officials are aggrieved by the said decision of the learned Single Judge and hence, this appeal.
4. Heard the learned Government Pleader as also the learned counsel for the petitioner.
5. It was submitted by the learned Government Pleader that the entitlement of pension for teachers of private colleges is regulated by the Rules contained in Part III of the Kerala Service Rules (KSR)
Service rendered by petitioner in leave vacancy preceding her absorption without break in regular establishment, shall not qualify for pensionary benefits
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Only regular full-time service qualifies for pension; leave vacancy service does not count under the amended rules effective at the time of retirement.
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....
Pension eligibility cannot be claimed without meeting statutory service requirements and timely judicial action against employment decisions.
Past temporary services of employees must be considered for pension calculation under the Bihar Pension Rules, ensuring fair treatment and preventing undue hardship.
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An officiating principal with requisite qualifications and long service is entitled to pension benefits, regardless of the nature of their appointment.
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