IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 6928 of 2003(Y)
1. C. JEGENDRANATHA VIDYASAGAR, RETIRED
... Petitioner
2. K.V. SADANANDAN, RETIRED DISTRICT
3. T.M. SOMAN, JOINT DIRECTOR OF
4. C.K. NARAYANAN, DEPUTY DIRECTOR OF
5. P.C. GOPALAN, RETIRED JOINT DIRECTOR
6. C.K. KUTTAPPAN, RETIRED MEMBER
7. D. RUPAN, RETIRED JOINT DIRECTOR,
8. Y. GNANASEELAN, RETIRED DEPUTY
9. G. THULASEEDHARAN, RETIRED DISTRICT
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF MINING & GEOLOGY,
3. THE DIRECTOR OF PUBLIC INSTRUCTION,
4. THE DIRECTOR OF PANCHAYATS, VIKAS BHAVAN
5. THE DIRECTOR OF TREASURIES,
6. THE DIRECTOR OF INDUSTRIES & COMMERCES,
7. THE CHIEF ENGINEER, IRRIGATION
8. THE SECRETARY, BOARD OF REVENUE
For Petitioner :SRI.C.P.SUDHAKARA PRASAD (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :01/06/2009
O R D E R
P.N.RAVINDRAN, J.
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O.P.No.6928 of 2003,
W.P.(C)Nos. 15119 of 2004 & 6966 of 2006
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Dated 1st June, 2009
JUDGMENT
Heard Sri.P.N.Mohanan and Sri.S.Ramesh Babu, the
learned counsel appearing for the petitioners, Sri.Ashok M.Cheriyan,
the learned Standing Counsel appearing for the Kerala State Electricity
Board and Sri.N.Manoj Kumar, the learned Special Government
Pleader appearing for the State of Kerala. Common questions arise in
these writ petitions. They were therefore heard together and are
being disposed of by this common judgment.
2. The petitioners are pensioners. Some of them entered
service initially in the State Government, later served in the Kerala
State Electricity Board and again went back to State service. Some of
them joined the Kerala State Electricity Board and thereafter went
over to State service. The dispute raised in these writ petitions is
whether the service rendered by the petitioners in the Kerala State
Electricity Board can be reckoned for the purpose of grant of
pensionary benefits. The State Government had issued G.O.(P)
No.228/2001/Fin. dated 2.2.2001 proposing to amend Rule 20 of Part
III of the Kerala Service Rules. In the said Government order it was
O.P.No.6928/2003 & conncected cases 2
stipulated that the service if any, put in by Government employees in
the Municipal Common Service/Panchayaths/Universities prior to their
entry in State Government service including Aided Schools service and
vice versa can be reckoned for pensionary benefits. The Government
also decided to incorporate a note under Rule 20 of Part III of the
Kerala Service Rules. It was also ordered that the formal
amendments to Part III of the Kerala Service Rules will be issued
separately. After the aforesaid Government order was issued, some of
the Government servants who had served for a short spell of time in
the Kerala State Electricity Board filed a writ petition in this Court
contending that the service rendered by them in the Kerala State
Electricity Board before joining the State Government service has to be
reckoned for the purpose of grant of pension.
3. A Division Bench of this Court in Babu.P.K. v. Chief
Engineer, Kerala State Electricity Board (2007 (1) KLJ 35) held
that the Government order dated 2.2.2001 cannot operate since the
field is occupied by a statutory rule and the statutory rule has not been
amended. It was also held that even if Government order dated
2.2.2001 is applied, it cannot govern the service rendered by
Government servants in the Kerala State Electricity Board. I am
bound by the decision of the Division Bench and applying the dictum
O.P.No.6928/2003 & conncected cases 3
laid down by the Division Bench in the aforesaid decision it has to be
held that the Government order dated 2.2.2001 cannot govern the
petitioners. Further, Rule 20 of Part III of the Kerala Service Rules has
been amended by G.O.(P)No.269/2008/Fin. dated 21.6.2008 by
incorporating a proviso and a note. The Proviso to Rule 20 of Part III of
the Kerala Service Rules reads as follows:
“Provided that the past service put in by
Government employees and Aided School/Aided
College Teachers in Panchayath/Municipal
Common Service and Universities prior to their
entry in State Government Service or Aided
School/Aided College Service shall be reckoned as
qualifying service for Pension and Death-cum-
Retirement Gratuity from Government.”
On the terms of the proviso to Rule 20, it cannot be stated that the
service rendered by Government servants in the Kerala State
Electricity Board has to be reckoned as qualified service for pension
and DCRG. Therefore, Rule 20 as amended also does not apply to the
petitioners’ case. Since the proposal set out in the Government order
dated 2.2.2001 has been carried out by amending the rule, the
Government order dated 2.2.2001 can no longer be relied upon. Even
if it is relied upon, as held by the Division Bench it does not govern the
service rendered by Government servants in the Kerala State
Electricity Board. Therefore, the orders impugned in these writ
O.P.No.6928/2003 & conncected cases 4
petitions cannot be said to be illegal or arbitrary.
4. I however notice that the Government have in Ext.P24
order dated 10.1.2008 produced along with I.A.No.5127 of 2009 in
O.P.No.6928 of 2003, granted pensionary benefits to one
Sri.J.Muhammed Basheer who retired as Under Secretary to
Government taking into account the service rendered by him in the
Kerala State Road Transport Corporation as well as in the Kerala State
Housing Board. Rule 10 of Part III of the Kerala Service Rules states
that 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. Rule 11 of Part III
of the Kerala Service Rules reads as follows:
“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.”
5. Ext.P24 order discloses that it has been issued invoking
the power of the Government under sub rule (2) of Rule 11 of Part III
of the Kerala Service Rules . It was invoking the said power that the
Government permitted Sri.J.Muhammed Basheer to reckon as
qualifying service for pensionary benefits, the service rendered by him
O.P.No.6928/2003 & conncected cases 5
in the Kerala State Road Transport Corporation and Kerala State
Housing Board. Ext.P24 also discloses that the beneficiary of the said
order was also directed to pay the share of pension contribution that
the KSRTC and Kerala State Housing Board would have had to pay if
such service were to be made pensionable. Therefore, notwithstanding
the fact that I have declined to interfere with the orders impugned in
these writ petitions, I direct that in the event of the petitioners filing
appropriate representations under Rule 11(2) of Part III of the Kerala
Service Rules before the Government, the Government shall consider
the same and take a decision thereon in accordance with law. Final
orders in the matter shall be passed, if the petitioners move the
Government, within six months from the date on which the
representations are received from the petitioners.
The writ petitions are disposed of with the above
observation.
P.N.RAVINDRAN
Judge
TKS