The main legal point established in the judgment is that statutory provisions supersede executive orders, and the omission of specific entities from statutory rules can be decisive in determining eligibility for pensionary benefits based on prior service.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. The short issue in this case is the eligibility of the respondent-applicant who retired from the Commercial Taxes Department as Inspecting Assistant Commissioner on 31/10/2013 to reckon his prior service with the Rubber Board, a public sector autonomous body under Government of India, for pro rata pensionary benefits. The Kerala Administrative Tribunal (KAT) answered in favour of the respondent-applicant. It is challenging this order that the State has come up with this original petition.

2. The respondent-applicant joined the Commercial Taxes Department as Assistant Sales Tax Officers on 30/10/1991. He had worked in the Rubber Board from 9/2/1984 to 29/10/1991. Thus, he had 7 years, 8 months and 21 days service in the Rubber Board.

3. Under Rule 11 of Chapter II, Part III of the Kerala Service Rules (KSR), the Government is competent to declare that any specified kind of service rendered shall qualify for pension. The Government of Kerala as early as on 31/3/1987 issued an executive order that the Government employees who had prior service in Government of India/Autonomous Body, are allowed to count former service towards pension. Under note-2 to Rule 11 of Part III KSR, this benefit was statutorily recognised with effect from 12/11/2002. Thereafter, an amendment was brought on 22/11/2010 omitting Central Public Sector Undertakings from the ambit of note-2; it is appropriate to refer note-2 as stands now:

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 on their own volition for taking up appointment in State Government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in State Government Departments. In the case of prior service rendered by Central Government Employees in State Government and vice versa, the liability of pension including gratuity, will be borne in full by the Central Government/State Government to which the Government servant permanently belongs at the time of retirement and no recovery of proportionate pension will be made from Central Government/State Government under whom he had served.

It is also appropriate to refer the gazette notifying the amendment which reads thus:

2. The symbol and words omitted by G.O. (P) 608/2010/Fin. dated 22-11-2010 published as SRO No. 1125/2010 in Kerala Gazette Extraordinary No. 2765 dated 03-12-2010. The amendment shall be deemed to have come into force on 12th November 2002. Omitted words ran as follows:

“Central Public Sector Undertakings”

4. The above amendment was brought into effect from 12/11/2002, that means, no employee will be entitled to claim for pension reckoning past service if he has retired with effect from 12/11/2002. There is no challenge against the amendment.

5. The learned State Attorney appearing for the petitioners submitted that the status of the Government employee is governed by the extant rules and there are no rights outside these rules. He placed reliance on the judgment of the Apex Court in Civil Appeal No. 9746/2011 and connected case, dated 20/5/2022 [See State of Himachal Pradesh and Others vs. Raj Kumar and Others, 2022 Live Law (SC) 502] and the judgment of the Apex Court in Roshan Lal Tandon and Another vs. Union of India and Another, 1967 KHC 764.

6. The learned State Attorney further placed reliance on the judgment of the Apex Court in Deokinandan Prasad vs. State of Bihar and Others, 1971 KHC 559 to buttress his argument that right to pension flows from rules and not from the order granting pension. Per contra, the learned counsel for the respondent-applicant pla