IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WP(C).No. 26217 of 2007(U) --------------------------------------- PETITIONER(S): ------------------------ E.P.ANTONY, S/O.E.L.PAILY, AGED 74 YEARS LECTURER (RETIRED), ST.PAUL'S COLLEGE, KALAMASSERY, RESIDING AT ETTUTIRITHIL HOUSE, EDAPPALLY P.O., COCHIN 682 024. BY ADVS. MR.M.R.HARIRAJ SMT.REKHA VASUDEVAN MR.SURAJ.S MR.P.A.KUMARAN SMT.VINEETHA B. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER MR.A.J.VARGHESE FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26217/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(P) NO.93/76/H.EDN. DT. 20.6.76. P2:- COPY OF THE LETTER NO.13289/DJ/82/H.EDN., DT. 20.11.82 ISSUED FOR THE IST RESPONDENT. P3:- COPY OF THE LETTER NO.G4-8799/99 DT. 3.1.2000 ISSUED BY THE DEPUTY DIRECTOR OF CLEEGIATE EDUCATION. P4:- COPY OF THE LETTER DT. 6.10.2000 ISSUED FOR THE 2ND RESPONDENT. P5:- COPY OF THE LETTER DT. 24.10.2000. P6:- COPY OF THE JUDGMENT IN OP. 35430/2000 DT. 15.1.01 OF THIS HONOURABLE COURT. P7:- COPY OF THE JUDGMENT DT. 24.7.01 IN WA. 909/01 ON THE FILE OF THIS HONOURABLE COURT. P8:- COPY OF THE ORDER NO.A1.3168/21/2000/COLL.EDN. DT. 17.10.01 OF THE 2ND RESPONDENT. P9:- COPY OF THE JUDGMENT DT. 4.1.07 IN OP. NO.33420/01 OF THIS HONOURABLE COURT. P10:- COPY OF THE ORDER NO.M1/3168/2000/COLL. EDN. DT. 28.6.07 ISSUED BY THE 2ND RESPONDENT. TRUE COPY P.A. TO JUDGE TSS T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.26217/2007-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of June, 2009 J U D G M E N T The substantial relief sought for in the writ petition is to quash Ext.P10 and for a direction to the respondents to grant and disburse pension to the petitioner for his service as Private College Teacher from 01/07/1965 with all consequential benefits including arrears of pension and other monetary benefits. 2. The petitioner commenced his service on 01/07/1965 as Lecturer, St.Pauls College, Kalamassery. On 11/06/1975, he was appointed as a Member of Kerala Public Service Commission. He had 9 years, 11 months and 11 days of qualifying service, which will be considered as 10 years of qualifying service under Rule 57 of Part III K.S.R 3. Ext.P1 is a scheme framed by the Government for grant of retirement benefits to the teaching and non-teaching staff of Private Colleges and Private Polytechnic teachers. The petitioner relies upon paragraph 2(a) of the said Government Order which states that retirement benefits will be allowed to the staff of the Private Colleges who had retired prior to 01/04/1976. Initially, his request was rejected by Ext.P2 stating that W.P.(C). No.26217/2007 -:2:- he is not having ten years of service. The petitioner had been pursuing the matter thereafter which is evidenced by Exts.P3, P4 and P5. 4. In the light of the delay that arose in considering his claim, he had approached this Court by filing O.P.No.35430/2000, which was dismissed on the ground of delay and latches which is evidenced by Ext.P6 judgment. In the writ appeal filed by him, the same was reversed and, the second respondent, the Director of Collegiate Education was directed to take a decision in the matter. Again, by Ext.P8, his claim was rejected stating that the claim is applicable to aided Private College teachers only with effect from 01/04/1976 and as the petitioner was relieved prior to 01/04/1976, he was not eligible for pension. This order was challenged in O.P.No.33420/2001. Therein, the stand taken by the respondents was that the scheme applies only to those persons who retired from the private Colleges after attaining the age of 60 and not to those persons who retired earlier. This Court, in O.P.No.33420/2001, held that in view of Rule 57 of Part III, K.S.R, the objection that the petitioner does not have 10 years' qualifying service cannot be sustained and the matter was directed to be reconsidered afresh. 5. In Ext.P10 order, the view taken by the Government is that, the Government Order will apply only to persons who retired at the age of 60 W.P.(C). No.26217/2007 -:3:- and that the petitioner had not superannuated from private aided college service, and therefore, he is not eligible to get the benefit of the said G.O. and that pension cannot be granted for his private aided College service from 01/07/1965 to 11/06/1975. 6. This is under challenge in this writ petition. The Government has filed a counter affidavit disputing the claim raised by the petitioner. 7. The learned counsel for the petitioner submitted that going by paragraph 2(a) of Ext.P1, the retirement benefits will be allowed to the staff of Private Colleges who had retired prior to 01/04/1976. True, that there is a second limb therein concerning persons who retired at the age of 60 from Private Colleges/Arabic Colleges from the date of introduction of the scheme of direct payment and before 01/04/1976. But, the said clause is not the general one applicable to persons like the petitioner. That has to be read apart from the first limb of the general clause 2(a). It is further submitted that the reasons stated in Ext.P10 cannot be supported at all since in the judgment Ext.P9, there is a clear finding in favour of the petitioner to the effect that Rule 57 of Part III, K.S.R will apply in the case of the petitioner and therefore, he is having 10 years' of qualifying service. 8. The scheme Ext.P1 shows that the retirement benefits will be allowed to staff of the Private Colleges who retired prior to 01/04/1976. W.P.(C). No.26217/2007 -:4:- The date of deemed retirement of the petitioner is 11/06/1975. Ext.P1 is dated 26/06/1976. The two limbs of paragraph 2(a) of Ext.P1 applies (i) to those who had retired prior to 01/04/1976 and (ii) to those who had retired at the age of 60 years from the Colleges from the date of introduction of the scheme of direct payment but before 01/04/1976. With regard to the said category of pensioners, they are governed by the latter clauses contained in the said para itself and they will have to fulfil other conditions also. Therefore, the assumption that the claim of the petitioner cannot be admitted due to the stipulation in the G.O that the retirement benefits will be given to those who retired at the age of 60 is plainly untenable. A reading of Ext.P1 does not show that it will apply only to persons who retired from service at the age of 60 alone. 9. Then, the question is whether as on the date of superannuation, he should have been in the service of Private Aided College. It is evident from Ext.P2 G.O. letter addressed to the petitioner that the petitioner should be deemed to have retired from service of the College on 11/06/1975 as per K.P.S.C (Composition and Conditions of service of Members and Staff) Regulation 1957. Therefore, the Government itself had understood that he is a person who should be deemed to have retired from service on 11/06/1975. Therefore, the further reason stated in Ext.P10 that the W.P.(C). No.26217/2007 -:5:- petitioner had not superannuated from Private Aided College service also cannot be sustained. 10. In paragraph (2) of the counter affidavit, the contention taken is that Rule 57 of Part III, K.S.R is not applicable to the petitioner. As already pointed out earlier in Ext.P9 judgment, such a contention was overruled. Lastly, it is pointed out in the counter affidavit, by relying upon the judgment in O.P.No.35430/2000, that it is a belated claim. In fact, the said judgment was reversed by the Division Bench as per Ext.P7. Therefore, the reasoning brought by the learned Single Judge in Ext.P6, judgment in O.P.No.35430/2000, cannot be relied upon since that judgment was set aside by the Division Bench while rendering Ext.P7 judgment. Hence, what is in force is the judgment rendered by the Division Bench itself. 11. In the light of the above, and going by paragraph 2(a) of Ext.P1, it is clear that the petitioner will be deemed to have retired from service prior to 01/04/1976 and is eligible for retirement benefits. 12. The learned Government Pleader then submitted that in the light of the fact that the petitioner had claimed benefit only at a later point of time, he will be entitled for disbursement of benefits only from the date of this judgment. The learned counsel for the petitioner pointed out that such an argument cannot be accepted. The liability to pay pension arises on W.P.(C). No.26217/2007 -:6:- the retirement of an employee. Here, Ext.P1 scheme has been brought down to pay retirement benefits to the staff of Private Colleges who have retired from service prior to 01/04/1976. Obviously, he will get the benefit from the date of Ext.P1 itself. The aspect of delay has already been noticed in the judgment rendered by the Division Bench in Ext.P7 and hence, the argument that there is a considerable delay and therefore, he is entitled for the benefits only from the date of this judgment cannot be sustained. 13. Ext.P10 is therefore, quashed. It is declared that the petitioner is entitled for grant of pension counting his service as 10 years but only at the admissible rates. Fresh appropriate proceedings shall be issued by the respondents herein sanctioning pension along with the arrears at the rates applicable to him from time to time, within four months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms