IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 19TH DAY OF NOVEMBER 2012/28TH KARTHIKA 1934 WP(C).No. 1525 of 2009 (F) PETITIONER: V.K.PADMINI, TC 16/1784,USHAS THYCAUD, THIRUVANANTHAPURAM (LECTURER SETECTION GRADE (RTD) CHRISTIAN COLLEGE, KATTAKKADA,TRIVANDRUM. BY ADVS.SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: 1. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.T.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 1525 of 2009 (F) APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL, CHRISTIAN COLLEGE , KATTAKKADA TO THE PETITIONER. EXZT.P2. COPY OF THE CERTIFICATE DATED 31.1.2002 ISSUED BY THE PRINCIPAL, V.V.VANNIAPERUMAL COLLEGE FOR WOMEN, VIRUDHUNAGAR TO THE PETITIONER. EXT.P3. COPY OF THE ORDER NO.AC.FV/9844/2002 DATED 5.9.2003. EXT.P4. COPY OF THE STATEMENT DATED 13.7.1978 OF TH UGC SCALES 0F PAY 1977. EXT.P5. COPY OF THE PETITION DATED 19.3.2008 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P6. COPY OF THE JUDGMENT DATED 12.3.2007 OF THIS HON'BLE COURT IN W.P. (C) NO.37176/2003. EXT.P7. COPY OF THE G.O. (RT) NO.1449/2007/H.EDN. DATED 28.7.2007. EXT.P8. COPY OF THE LETTER NO.F-1-6/90/(PS CELL) DATED 29.1.1990 of the UGC. EXT.P9. COPY OF THE ORDER NO.9220/D1/08/H.EDN. DATED 11.11.2008 EXT.P10. COPY OF THE PENSION PAYMENT ORDER SANCTION TO THE PETITIONER BY THE STATE GOVERNMENT. EXT.P11. COPY OF THE REPRESENTATION DATED 23.6.1999 SUBMITTED BY THE PETITIONER BEFORE THE HON'BE MINISTER FOR EDUCATION, GOVERNMENT OF KERALA. EXT.P12. COPY OF TE PETITION DATED 12.3.2007 FILED BY THE PETITIONER BEFORE THE DIRECTOR OF COLLEGIATE EDUCATION. EXT.P13. COPY OF THE PETITION DATED 29.4.2007 FILED BY THE PETITIONER BEFORE THE DY. DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. EXT.P14. COPY OF THE LETTER NO.C4 (C6) 2417/04/PEN DATED 17.5.2007 OF THE DIRECTOR, COLLEGIATE EDUCATION. RESPONDENT'S EXHIBIT : NIKL / TRUE COPY / P.A. TO JUDGE VK P.R. RAMACHANDRA MENON J. W.P. (C) No. 1525 of 2009 Dated, this the 19th day of November, 2012 JUDGMENT
The issue involved in this case is whether the service of the petitioner rendered elsewhere in the State of Tamil Nadu is liable to be counted for granting pension in the State of Kerala.
2. The petitioner was appointed as Lecturer in Physics in V.V. Vanniaperumal College for Women under Madhurai Kamaraj University in the State of Tamil Nadu and she worked there from 07.07.1971 to 18.10.1979. Thereafter, she got selection and appointment as Lecturer in the Christian College, Kattakada under the Kerala University and she worked there till her retirement on 31.03.2004, attaining the age of superannuation. It is contended that, though service of the petitioner in the State of Tamil Nadu was reckoned for the purpose of granting selection grade, the same was never reckoned for the purpose of granting pension. The petitioner preferred a request in this regard, but the same was rejected as per Ext. P9 communication dated 11.11.2008, which is under challenge in this writ petition.
3. The learned counsel for the petitioner submits that, exactly similar issue had come up for consideration before this Court in W.P.(C) No. 37176 of 2003 and after hearing both the sides, a learned Judge of this Court, as per Ext. P6 judgment, held that since the service rendered by the concerned petitioner in the State of Tamil Nadu had been reckoned for granting selection grade, the said service was liable to be reckoned for granting pensionary benefits as well. It is also pointed out that, Ext. P6 judgment has been given effect to by the Government, as per Ext. P7 G.O. dated 28.07.2007, whereby sanction was accorded to reckon the previous service rendered outside the State of Kerala for fixing pension. This being the position, Ext. P9 is liable to be intercepted by this Court, lest the petitioner should be discriminated, submits the learned counsel for the petitioner.
4. The learned Government Pleader submits, with reference to the counter affidavit filed on behalf of the respondents 1 and 2, that the idea and understanding of the petitioner is per se wrong and misconceived. Specific reference is made to Rule 10 Part III KSR, which defines the 'qualifying service' for granting pension. By virtue of the said Rule position, only the service rendered in the State of Kerala is liable to be reckoned and hence Ext. P6 judgment passed by this Court is not an authority on the point, more so, when the relevant Rule was not brought to the notice of the Court. The learned Government Pleader further submits that, mere reckoning of prior service outside the State for granting UGC benefits, by itself, will not make the petitioner eligible for having the same reckoned for pension, which has necessarily be in conformity with the relevant Rules. Reliance is also sought to be placed on the decision rendered by the Apex Court in Municipal Corporation of Delhi Vs. Gurnam Kaur [(1989) 1 SCC 101] (Paragraph 11)
5. The learned counsel for the petitioner submits in reply, that the State has not chosen to challenge Ext. P6 and on the other hand implemented Ext. P6 vide Ext. P7 order. This being the position, the dictum laid down by the Apex Court in Maharaj Krishan Bhatt and another Vs State of Jammu and Kashmir and others (2008 (9) SCC 24) comes to play, whereby it is held that, once a judgment had attained finality, it could not be termed as wrong and its benefit ought to have been extended to other similarly situated persons. It is hence contended that the benefit is liable to be accorded to the petitioner; otherwise she would stand discriminated, submits the learned counsel for the petitioner.
6. True, there is a decision rendered by this Court as per Ext. P6 enabling the writ petitioner therein to have the service rendered in the State of Tamil Nadu to be reckoned for granting pension. Question is whether the said decision is in conformity with the relevant Rule. Rule 10 of Part III KSR reads as follows :
"10. 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."
Even a plain reading of the said Rule clearly suggests that pension is contemplated to be paid only in respect of the appointment given by the State; for which payment has also been effected by the State in respect of the service rendered in the State. Admittedly, the service rendered by the petitioner outside the State was under one of the Universities in the State of Tamil Nadu. Service rendered by the petitioner elsewhere in similarly situated colleges may be countable for granting other benefits; but the question is whether such service is liable to be reckoned for computing 'pensionary benefits'.
7. It is settled law, by a catena of decisions that 'pension' is being paid in respect of the service already rendered by an employee. The liability to pay pension is vested upon the employer, in respect of the benefit/service already received by the employer from the employee. Admittedly, the service rendered by the petitioner in the State of Kerala is only from 24.10.1979 till 31.03.2004 and nothing is produced or proved with respect to the service rendered by the petitioner in the State of Tamil Nadu.
8. Since there is no obscurity in the Rule specifying the qualifying service, there cannot be any doubt, that the service rendered by the petitioner elsewhere, particularly, outside the State of Kerala is not liable to be reckoned for computing pension. Coming to the applicability of Ext. P6 judgment, as mentioned hereinbefore, the relevant Rule specifying the qualifying service was not brought to the notice of the Court when the matter was considered and decided. If a decision comes to be rendered without any regard to the relevant provisions of law, it will not get the sanctity of a binding judicial precedent, though it is of course an inter-parte judgment and binding on the parties, so long as it is not challenged. In this context paragraph 11 of the decision rendered by the Apex Court in (1989) 1 SCC 101 (cited supra) is relevant, which reads as follows :
11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P. J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn., explains the concept of sub silentio at p. 153 in these words :
"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio."
It is also settled law, that a judgment rendered contrary to the relevant provisions of law is liable to be treated as 'per incurium'. This being the position, this Court finds it difficult to accept the proposition mooted by the petitioner.
9. The next question is whether the matter is liable to be referred to the Division Bench. This Court finds that Ext. P6 came to be passed for the reason that Rule 10 of Part III KSR was not brought to the notice of the learned Judge. In view of the law declared by the Apex Court in the decision cited supra, Ext. P6 judgment cannot be treated as a binding precedent and is liable to be treated as 'per incurium'. In the said circumstances, this Court can safely arrive at a conclusion that there is no need to have the matter referred to Division Bench.
10. With regard to the proposition mooted by the learned counsel for the petitioner that the petitioner alone is being discriminated, as the Government has chosen to implement Ext. P6 judgment by passing Ext. P7 order and that the petitioner is also entitled to have similar benefits, this Court is of the firm view that any order passed without authority cannot be directed to be implemented by issuance of a writ of mandamus, which otherwise will only cause the mistake to be perpetuated further. This is quite not possible, as made clear by the Apex Court in Chandigrah Administration and Another Vs. Jagjit Sngh (AIR 1995 SC 705).
11. It is also relevant to note that some Government Orders have been issued, so as to facilitate reckoning of the service rendered by a Central Government employee or an employee of the Central Government PSU to be reckoned for the purpose of pension and such other benefits, once he comes to the State Government/State Government PSU and vice versa; subject to satisfaction of the relevant terms, particularly as to the payment of 'pro-rata contribution' by the Government/employer under whom the service was rendered earlier. Coming to the instant case, no such instance is pointed out, whereby the 'pro-rata pension contribution' is proposed or agreed to be effected by the employer in Tamil Nadu or by the Tamil Nadu State Government. In respect of the service rendered to the employer/authorities under the Government in Tamil Nadu, how could it be the liability of the Government of Kerala, is a matter which has not been explained by the petitioner. This Court finds that the State of Kerala has no such duty or burden to enshoulder any such liability or to extend any such benefit to the petitioner; which otherwise can extend only undue favours to the petitioner, resulting in drainage of public money.
12. It is also relevant to note that the petitioner did not have any such claim earlier and she has come up with the writ petition only after about 3 years of her retirement from service. True, fixation of pension and payment may give rise to a recurring cause of action, but the issue herein is referable to the cause of action originated for the first time when the petitioner started drawing her pension, immediately after her retirement. Viewed in the said circumstances, it cannot but be held that the cause of action has also become state and the writ petition is liable to be dismissed on this score as well.
In the said circumstances, this Court finds that there is absolutely no merit or bonafides in the writ petition. Interference is declined and the writ petition is dismissed accordingly.
sd/ P. R. RAMACHANDRA MENON, (JUDGE) kmd