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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
RAVEENDRAN PILLAI S. S/O SUKUMARA PILLAI – Respondent
W.A. No. 944 of 2022
Decided On : 05-01-2023
Kerala Education Rules - Rule 3 - Kerala Service Rules - Rule 14E(a) and 11 - Employment and Service matter - Appointed as Full Time Menial - Pensionary benefits - Petitioner was appointed as Full Time Menial in an aided school namely, Karavaram Vocational Higher Secondary School (the School) - He was thrown out from service for want of requisite students' strength - Though petitioner was reappointed in a few leave vacancies in School thereafter and he had worked in such vacancies, he was appointed in a substantive vacancy in School only - Petitioner retired from service thereafter - In Ext.P8 verification report issued by office of Accountant General (A&E) in connection with sanctioning of pensionary benefits to petitioner, qualifying service of petitioner was shown only as 23 years, excluding interruptions and service rendered in leave vacancies - It is stated by petitioner that if said periods are also reckoned, his qualifying service for pension would be 30 years 11 months and 14 days - Whether services rendered by petitioner in leave vacancies and the interruptions in his service are liable to be reckoned as qualifying service for pension - Increments and placements in higher grades are governed by different set of rules, and merely for reason that service rendered in leave vacancies are reckoned for purpose of grant of increments or for placements in higher grades, it cannot be said that same shall be reckoned for purpose of grant of pensionary benefits as well - A similar argument advanced in the context of service rendered in leave vacancies in aided colleges was repelled by the Division Bench of this Court in Shameer Ali (supra).
Findings of the Court:
It is evident from said provision that interruption in service will count for pension only if regular service before interruption is eligible to be reckoned as qualifying service for pension and period of such interruption is condoned by an order regularising same - Petitioner has no case that period of interruption in his service is one that could be condoned by an order of regularisation, or interruption has been condoned - Instead, he relies on decision No. 8 below Rule 14E of Part III KSR to contend that since appointment before interruption was not provisional, and since break was due to reduction of staff strength of institution, same is liable to be treated as qualifying service - But, it is seen that since Rule 31 including Note 3 to said rule as referred to in said ruling has been substituted with effect, Government decision No. 8 below Rule 14E of Part III KSR was also deleted in terms of very same amendment - In other words, said provision was not in existence at time when petitioner retired from service - Aforesaid argument of petitioner is also therefore without any substance.
Result: Writ Appeal is allowed
JUDGMENT :
P.B. SURESH KUMAR, J.
1. This appeal is directed against the judgment dated 28.02.2022 in W.P. (C) No. 18584 of 2021. Respondents 1, 2, 4 and 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 Full Time Menial in an aided school namely, Karavaram Vocational Higher Secondary School (the School) on 22.08.1987. He was thrown out from service on 15.07.1990 for want of requisite students' strength. Though the petitioner was reappointed in a few leave vacancies in the School thereafter and he had worked in such vacancies, he was appointed in a substantive vacancy in the School only on 01.12.2000. The petitioner retired from service thereafter on 30.04.2021. In Ext.P8 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 shown only as 23 years, excluding the interruptions and the service rendered in leave vacancies. According to the petitioner, the interruptions and the service rendered by him in leave vacancies are also liable to be reckoned as qualifying service for grant of pensionary benefits. It is stated by the petitioner that if the said periods are also reckoned, his qualifying service for pension would be 30 years 11 months and 14 days. The writ petition, in the circumstances, was instituted challenging Ext.P8 verification report insofar as it limits his qualifying service for pension to 23 years, and seeking a declaration that his qualifying service for pension would be 30 years 11 months and 14 days.
3. A counter affidavit was filed in the writ petition on behalf of the State mainly contending that in light of the amendments made to Rule 14E(a) of Part III of the Kerala Service Rules (KSR) in terms of G.O. (P) No. 128/2018/Fin dated 10.08.2018 and G.O. (MS) No. 401/2019/Fin dated 28.10.2019, the interruptions and the service rendered by the petitioner in leave vacancies are not liable to be reckoned as qualifying service for pension.
4. It is seen that as far as the services rendered by the petitioner in leave vacancies are concerned, the learned Single Judge took the view that insofar as the said services have been rendered after the regular appointment of the petitioner, the same is liable to be reckoned as qualifying service. The learned Single Judge did not consider the claim of the petitioner as regards interruptions in his service. Nevertheless, the writ petition was allowed as prayed for. The State and its officials are aggrieved by the said decision of the learned Single Judge and hence, this appeal.
5. Heard the learned Government Pleader as also the learned counsel for the petitioner.
6. It was submitted by the learned Government Pleader that the entitlement of the petitioner for pension is regulated by the Rules contained in Part III KSR as amended from time to time and there is no provision in Part III KSR which enables the petitioner to reckon the interruptions in service as also the services rendered in leave vacancies, as qualifying service for pension. It was pointed out that Rule 14E of Part III KSR on the other hand, specifically provides that only regular full time aided school service shall qualify for pensionary benefits, indicating clearly that service in a leave vacancy is not liable to be reckoned for grant of pensionary benefits. It was also argued by the learned Government Pleader that interruptions in the service of the petitioner are governed by Rule 31 of Part III KSR and the case of the petitioner does not fall within the scope of the said provision.
7. Per contra, the learned counsel for the petitioner contended that inasmuch as the petitioner has been granted increments and time bound higher grades, reckoning the services rendered by him in leave vacancies, it cannot be said that the said service cannot be reckoned a
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