IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15743 of 2004(Y)
1. DR.V.SURENDRAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DEPUTY DIRECTOR (EDUCATION), KOLLAM.
3. THE REGISTRAR,
4. THE ACCOUNTANT GENERAL,
5. THE HEADMASTER,
6. SECRETARY TO THE GOVERNMENT,
For Petitioner :SRI.M.V.THAMBAN
For Respondent :SRI.KRISHNAKUMAR MANGOT,SC,SANSKRIT UTY
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :14/12/2009
O R D E R
CR
P.R.RAMACHANDRA MENON, J.
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WP(C) NO. 15743 OF 2004
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Dated this the 14th day of December, 2009
J U D G M E N T
Whether the salary drawn by the petitioner as a `Reader’ in the third
respondent/University immediately prior to his voluntary retirement,
pursuant to setting aside of all such appointments in the said University by
this Court, followed by relieving him to the parent department, could be
reckoned for the purpose of fixing the pensionery benefits, is the issue
involved herein.
2. The petitioner was originally appointed as `UPSA’ on selection
by the PSC on 01.10.1974 and subsequently, he was promoted as `HSA’
with effect from 15.07.1977. While working as HSA, the petitioner was
provisionally promoted as `HSS Teacher’ with effect from 17.12.1992.
While so, he applied for the post of `Reader’ in the Sree Sankaracharya
University of Sanskrit, Kalady. On selection as Reader, the petitioner was
relieved from the post of `HSS Teacher’, to join the new post. Accordingly,
the Director of Higher Secondary Education relieved the petitioner and after
the placement given to him as HSA at GHS West, Kollam ordered by the
second respondent, the petitioner was relieved from the said post, to take
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up the appointment in the third respondent/University with effect from
21.10.1994.
3. While so, the appointments effected by the University turned to
be a subject matter of challenge before this Court and after considering the
rival contentions raised by the parties concerned, this Court set aside all
the concerned appointments made by the University; pursuant to which the
petitioner was also terminated from the service w.e.f. 09.06.1997. But
since the petitioner was retaining his lien in the parent department, the
University relieved the petitioner on 09.06.1997, with a direction to report
before the second respondent. The petitioner reported for duty before the
2nd respondent on 10.06.1997 and applied for `voluntary retirement’ with
effect from 09.06.1997. The application submitted in this regard was
allowed by the 2nd respondent, as per Ext.P6, permitting the petitioner to
have retired voluntarily with effect from 09.06.1997.
4. The Accountant General, Thiruvananthapuram (4th
respondent) admitted the pension, reckoning the qualifying service of the
petitioner only as `20′ years. Taking note of the claim for reckoning the
qualifying service as `25′ years (reckoning the provisional service as well
as the University service), OP 3510/1999 filed by the petitioner before this
Court was disposed of, as per Ext.P18 judgment, directing the matter to be
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considered. But in the meanwhile, i.e. during the pendency of the Original
Petition, a revised pension proposal was sent to the 4th respondent/
Accountant General, reckoning the qualifying service of the petitioner as
`25′ years, i.e., 20+5 years giving weightage as per 56(1) of Part III KSR
and accordingly, the Accountant General, Thiruvananthapuram, vide order
dated 31.10.2001, had revised the pension. Pursuant to Ext.P18 judgment,
the matter was considered by the 1st respondent/Government in
consultation with the Finance Department and found that the service of the
petitioner from 21.10.1994 to 09.06.1997 could be counted for pensionery
benefits, since this period was treated as ‘deputation’ by the Government
as stipulated in Ext.P13 Government Order. However, it was made clear,
vide Ext.P19, that the request to adopt the last salary drawn by the
petitioner as a ‘Reader’ for the purpose of pensionery benefit was not
admissible, because the pay drawn in foreign service by an officer deputed
under foreign service conditions in Chapter XI Part I KSR shall not be
treated as emoluments for pension, which in turn has been subjected to
challenge in this Writ Petition, praying for some incidental reliefs as well.
5. Though the petitioner has approached this Court seeking for
various reliefs in this Writ Petition, the learned Counsel for the petitioner
submits that almost all the grievances have been got redressed and the
only remaining issue is with regard to the claim for granting revised
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pension, reckoning the salary drawn by the petitioner as `Reader’ in the
third respondent/University immediately prior to the voluntary retirement
sanctioned with effect from 09.06.1997. The learned counsel places
reliance on Ext.P13 Government Order to contend that the service of the
petitioner as `Reader’ in the University was liable to be treated as
`deputation’ for all purposes and as such, the last drawn wages in the post
of `Reader’ in the University were liable to be reckoned for fixing the
pensionary benefits, in view of the stipulations in the `Ruling No.1′ under
Rule 62 and also in view of the contents of Rule 63 of Part III KSR.
6. It is pointed out from the part of the University that there is no
liability to pay any `pro rata contribution’ for pension, particularly in view of
the fact that the very appointment in the University was set aside by this
Court. Referring to the very same position, the learned Government
Pleader contends that there was no valid appointment as `Reader’ in the
University and as such, the said service stated as rendered in the
University could not be of any consequence. Pursuant to the directions
given by this Court in OP No. 3510/1999 as stated above, the eligibility of
the petitioner was considered by the Government and the request was
turned down vide Ext.P19. The learned Government Pleader appearing on
behalf of the State and the learned Standing Counsel appearing for the
WPC NO.15743/2004 5
third respondent/University submit that the idea and understanding of the
petitioner as to the scope of Ext.P13 Government Order and also as to the
rule position is rather wrong and mis conceived.
7. It is brought to light that the service rendered by the petitioner
as `Reader’ in the third respondent/University for the period from October,
1994 till 09.06.1997 has very much been reckoned as `deputation’ in view
of the clear mandate in Ext.P13 Government Order. The only grievance of
the petitioner is that, the quantum of pension and pensionary benefits have
been fixed by the respondents without any regard to the total emoluments
drawn in the University prior to the voluntary retirement from the service
and that is all.
8. Obviously, the entire facts and circumstances have been
subjected to meticulous analysis by the first respondent who passed
Ext.P19 order. The claim of the petitioner, as projected during the course
of hearing, was to consider his appointment as a temporary one i.e., under
Rule 9 of the KS & SSR and to fix his pension, taking average of the 10
months’ pay drawn by him in the third respondent/University in the scale of
Rs.3700-5700 in the post of Reader, if necessary, by relaxing the rules in
the KSR. Admittedly, the employment as `Reader’ in the University was
pursuant to a `fresh selection’, which was in no way connected with the
WPC NO.15743/2004 6
service under the State/Department. However, in view of the
consequences resulted because of the judgment rendered by this Court
setting aside all such appointments effected by the University, the requests
made by the affected persons in this regard were considered by the
Government and it was ordered as per Ext.P13 Government Order, that the
period of service rendered by such persons in the third respondent/
University will be treated as `deputation’ for the purpose of regularization of
such period in the department. The case of the petitioner is that since the
said service has been ordered to be treated as `deputation’, it shall be
reckoned for the purpose of computation of pensionery benefits as well,
contending that the term ’emoluments’ as it appears under the relevant
rules is inclusive of the `special pay’ drawn by the petitioner in the post of
`Reader’ in view of Ruling No. 1 under Rule 62, read with Rule 63 of Part
III KSR.
9. In fact, Ext.P13 Government Order was issued by the
Government pursuant to the requests given by the aggrieved persons to
have the period of service in the University considered for regularizing the
absence in the service of the State/Department, as a special case. The
said Government Order does never say that the pay drawn by such
persons in the respective posts in the University will be treated as
WPC NO.15743/2004 7
protected. Similarly, the terminology used under `Ruling No. 1′ of Rule 62
of Part III KSR refers to the special pay admissible to persons on
deputation from the State service to other State Governments or to the
Central Government or from one Government Department to another, to be
reckoned as emoluments for the purpose of pension and that the pay
drawn in “Foreign service” by an officer deputed under foreign service
conditions in Chapter XI Part I KSR is not liable to be treated as
emoluments for the purpose of pension. In the latter case, the pay of the
persons which they would have drawn, had they continued in the parent
department, alone will be treated as emoluments, as made clear by the
Apex Court in the decision rendered in Balkrishna Pandey Vs. State of
Bihar and others [1996 (2) SCC 282]. This being the position, since the
petitioner was working as an `HSS Teacher’ (Sanskrit) at the time of joining
the service of the University, the emoluments attached to the service in
respect of the concerned post in the parent department alone can be
reckoned for the fixation of pension and pensionery benefits. No Rule or
decision to the contrary has been cited from the part of the petitioner to
sustain the contention that he is entitled to have the salary in an ‘alien
service’ protected and counted, for fixing the pension and pensionary
benefits.
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In the above facts and circumstances, there is absolutely no merit in
the contentions raised from the part of the petitioner. The Writ Petition fails
and it is dismissed accordingly.
P.R.RAMACHANDRA MENON
JUDGE
dnc