IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 9TH DAY OF NOVEMBER 2011/18TH KARTHIKA 1933 WP(C).No. 4417 of 2011 (B) -------------------------- PETITIONER: ------------------ K.MANOHARAN, TRACTOR DRIVER(RETIRED), M.L.BHAVAN, PANAVILACODE, MULLOOR.P.O -695521, VIZHINJAM,THIRUVANANTHAPURAM. BY ADVS.SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI RESPONDENTS: ----------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, AGRICULTURAL FARM DEPARTMENT, THIRUVANANTHAPURAM,PIN-695OO1. 2. ACCOUNTANT GENERAL, INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANT GENERAL,(A&E), THIRUVANANTHAPURAM, PIN:695039. 3. DIRECTOR OF AGRICULTURAL DEPARTMENT, VELLAYANI,THIRUVANANTHAPURAM,PIN:695001. BY GOVERNMENT PLEADER SMT.C.K.SHERIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STK WP(C).No. 4417 of 2011 APPENDIX PETITIONER'S EXHIBITS: P1: A TRUE COPY OF THE ORDER DATED 01.11.2003 OF THE 1ST RESPONDENT GRANTING HIGHER GRADE. P2: A TRUE COPY OF THE PENSION SANCTIONED ORDER DATED 22.03.2010 OF THE 2ND RESPONDENT. P3: A TRUE COPY OF THE PETITION DATED 22.03.2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P4: A TRUE COPY OF THE ORDER DATED 27.01.2011 OF THE GOVERNMENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P A TO JUDGE STK C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C) No.4417 of 2011 ------------------------------------------- Dated this the 9th day of November, 2011 J U D G M E N T ---------------------- Petitioner joined service of the Agricultural Department as 'Watchman' on 5.1.1993 and retired from service on 31.3.2010 as 'Tractor Driver'. He got 17 years continuous service in the Department. Before appointment in the Agricultural Department he was employed as CLR worker in the Harbour Engineering Department, for the periods from 1.11.1977 to 4.1.1993 (3332 days). While in the service of the Agricultural Department, the petitioner was sanctioned with Higher Grade under Ext.P1 special order, reckoning the CLR service rendered in the Harbour Engineering Department for 3332 days. After retirement of the petitioner while sanctioning pension, the service rendered in the Agricultural Department alone was reckoned as qualifying service. According to the petitioner, the contingent service rendered by him as CLR worker also W.P.(C).4417/2011 -2- should have been reckoned as qualifying service for the purpose of pension. The petitioner submitted Ext.P3 representation before the Government seeking rectification. Considering Ext.P3 the Government have issued Ext.P4, rejecting the claim stating that the period of CLR service was reckoned for higher grade only as a special case and since the petitioner was not absorbed into regular service while continuing as CLR worker, he is not entitled for reckoning such service as qualifying service for the purpose of pension. 2. Sri. P.N.Mohanan, learned counsel for the petitioner pointed out that the petitioner had quit CLR service on 4.1.1993 and joined as Watchman in the Agricultural Department on the very next day, i.e on 5.1.1993 without any brake. Referring to Rule 29 of Part III KSR, it is contended that the resignation made for taking up another appointment will not be counted as resignation from public service. Hence it is contended that the previous contingent service also need be treated as qualifying service. He relied on a decision of this court in W.P.(C).4417/2011 -3- Prabhakaran Vs. Additional Secretary (2009(2) KLT SN 28 (C.No.32). It is held that Rule 29B will be attracted only if it is a resignation to take up another appointment. But it is stated that, the service in which the employee joins after the resignation should be such service to which it is accountable as qualifying service. Referring to Rule 10 of Part III it is observed that, service of an employee does not qualify for pension unless he is appointed to his duty regulated or his condition determined by the Government. According to the learned counsel, the principle underlying in Rule 29 which envisages that resignation for taking up another appointment will not be treated as resignation, need be adopted and brought into effect for deciding the qualifying service. Hence the decision taken in Ext.P4 is not sustainable, is the contention. 3. In the counter affidavit of 2nd respondent it is stated that as per GO(MS) 61/89/PW&T dt.21.6.1989 and clarification letter No.26374/B1/P9/PW&T dt.23.1.1990, the CLR service can be counted only if the regular is insufficient to have the minimum of 10 years service for the purpose of W.P.(C).4417/2011 -4- sanctioning pension. It is stated that, since the petitioner has got service of 17 years service in the Agricultural Department the previous CLR service cannot be added to the qualifying service for the purpose of pension. Further contention is that the special order through which the higher grade was considered will not entitle the petitioner for computation of CLR service as qualifying service. 4. In a separate counter affidavit filed on behalf of 1st respondent it is contended that the case at hand is not an absorption of a worker from an establishment as contemplated under Rule 12 and 13 of Part III KSR. Only in the cases if the regular service is insufficient to have the minimum qualifying service of 10 years, the previous CLR service of such worker will be reckoned as qualifying service. 5. Smt.C.K.Sherin, learned Senior Government Pleader contended that, the benefit as contemplated under Rule 12 and 13 cannot be extended in the case at hand since it is not an absorption from the contingent service. Sri.P.N.Mohanan, per contra contended that the W.P.(C).4417/2011 -5- Government decision appended to Rule 13 envisages that the benefit will be also admissible in the case of pensioners who have been recruited to public service from the work establishment. But in the case at hand the contingent service rendered by the petitioner in another department cannot be taken for consideration under the benefit engisaged in the Government decision mentioned therein. 6. Eventhough the provisions under Rule 29 makes it clear that resignation if any submitted for the purpose of taking up another appointment could not be considered as resignation, the petitioner could not point out any provision enabling counting of the previous contingent service as qualifying service for sanctioning pension. Unless any such specific provision enabling reckoning of qualifying service is provided in the relevant Rules I am not in a position to hold that the principles underlying under Rule 29 can be imported for reckoning qualifying service for the purpose of determining pension. 7. Under the above mentioned circumstances I do not find any illegality in the decision taken in Ext.P4. W.P.(C).4417/2011 -6- Therefore the writ petition deserves no merit, and the same is accordingly dismissed. 8. Learned counsel for the petitioner points out the provisions of Rule 11 of Part III KSR and seeks leave to approach the Government for taking decision in favour of counting the contingent service as qualifying service for the purpose of pension. It is left open to the petitioner to the petitioner to seek such remedy if any available under Rule 11 before the appropriate authority. It is made clear that if the competent authority is entertaining any such application such authority will be at liberty to decide the issue untramelled by any of the findings contained in this judgment. Sd/- C.K.ABDUL REHIM, JUDGE. okb True copy P.A to Judge