IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 WP(C).No. 16428 of 2005(E) ----------------------------------------- PETITIONER(S): ------------------------ V.M.UMMER, RTD.PEON, VEVUKKATTU HOUSE THAIKKATTUKARA P.O. ALUVA. BY ADV. MR.DEEPU THANKAN RESPONDENT(S): ------------------------------ STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. N.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16428/2005 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER ISSUED BY THE SPECIAL OFFICER DTD. 22/06/1970. EXT.P2: COPY OF THE PROCEEDINGS OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM, DTD. 4/07/1996. EXT.P3: COPY OF THE ORDER DTD. 5/12/2005. EXT.P4: COPY OF LETTER OF COCHIN UNIVERSITY DTD. 12/03/2003. EXT.P5: COPY OF THE ORDER DTD. 15/04/2005. EXT.P6: COPY OF REVISION DTD. 25/03/2005. EXT.P7: COPY OF THE GOVT.ORDER DTD. 2/02/2001. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. =================== W.P.(C) No.16428 of 2005 ===================== Dated this the 6th day of February, 2009. JUDGMENT The petitioner is a pensioner. He entered service as Peon in the Kerala Judicial Ministerial Subordinate Service on 4.3.1972 and retired from service on 31.12.1999 on attaining the age of superannuation. Prior to his appointment as Peon in the Kerala Judicial Ministerial Subordinate Service he had served as a Full-time Menial in the E.M. Government High School, Fort Kochi during the period from 1.12.1969 to 28.2.1970 and from 2.3.1970 to 31.3.1970. He had also worked as Peon in the Office of the Special Officer appointed by the State Government for the purpose of setting up the Cochin University of Science and Technology, during the period from 22.6.1970 to 31.7.1971. 2. It appears that reckoning the petitioner's provisional service as Full-time Menial in the E.M. Government High School, Fort Kochi and as Peon in the Office of the Special Officer for Cochin University, higher grade was granted to him on completion of 25 years of service as per Ext.P2 order dated 4.7.1996. However, his provisional service in E.M. WP(C) 16428/05 -: 2 :- Government High School, Fort Kochi for two spells and in the Office of the Special Officer for Cochin University was not reckoned for the purpose of computation of pension. More than one year after retirement from service, the petitioner submitted a representation dated 22.4.2001 before the Government praying that his past service as Full-time Menial in E.M. Government High School, Fort Kochi and as Peon in the Office of the Special Officer for Cochin University may be reckoned for the purpose of pension. By Ext.P3 order dated 5.12.2002, the Government accepted the petitioner's request in part and granted sanction to reckon the provisional service rendered by him for the period from 1.12.1969 to 28.2.1970 and from 2.3.1970 to 31.3.1970 as Full-time Menial in the E.M. Government High School, Fort Kochi as service qualifying for pension. The petitioner's request to count his provisional service as Peon in the Office of the Special Officer for Cochin University during the period from 22.6.1970 to 31.7.2001 was however declined relying on Ext.P7 Government order dated 2.2.2001. By Ext.P7, the Government ordered that service in autonomous bodies and Universities will be reckoned for the purpose of payment of pension after retirement from service. However, it was ordered that the order will have only prospective operation and will be limited in its operation to persons retiring from service after 2.2.2001. 3. The petitioner did not challenge Ext.P3. Instead, one year later, he submitted a representation dated 23.12.2003 to the Government WP(C) 16428/05 -: 3 :- enclosing with it Ext.P4 certificate issued by the Registrar, Cochin University of Science and Technology to the effect that the petitioner's service in the Office of the Special Officer for the Cochin University cannot be considered as service in the Cochin University. The representation submitted by the petitioner was rejected by the Government and the rejection was communicated to him by Ext.P5 letter dated 15.4.2005 wherein he was informed that the post of Special Officer was created for a specific period and cannot be reckoned as part of any Government department. This Writ Petition was thereupon filed on 31.5.2005 challenging Ext.P5 and seeking the following reliefs: “i) issue a writ of certiorari, order or direction, calling for the records leading to exhibit P5 and quash the same. ii) issue a writ of mandamus or any other appropriate writ or direction directing the respondent to compute the period, from 22.6.1970 to 31.7.1971, the petitioner worked as provisional basis in the office of the Special Officer appointed by the Government for the formation of Cochin University, for the purpose of pensionary benefits. iii) issue a writ of mandamus or any other writ, order or direction declaring that the petitioner is entitled for the benefit of Rule 60 (b) of Part I KSR and he should have been permitted to continue his service till he attaining 60 years. iv) issue a writ of mandamus or any other writ, order or direction, directing to grant him all the monetary benefits for the above said period including for the pensionary benefits and as he retired he is entitled for all the monetary benefits for those periods.” WP(C) 16428/05 -: 4 :- 4. The petitioner contends that in view of Ext.P4 certificate, the stand taken by the Government in Ext.P3 that his service as Peon in the Office of the Special Officer for Cochin University is university service cannot be sustained. He contends that his provisional service in the Office of the Special Officer for Cochin University was not reckoned for the purpose of grant of pensionary benefits for the reason that the said service is University service and also for the reason that as he retired from service before 2.2.2001, the date of Ext.P7 Government order, the said period of service cannot be reckoned for the purpose of pension. The learned counsel appearing for the petitioner contended that Ext.P7 has no application to the case on hand and that the provisional service rendered by the petitioner in the Office of the Special Officer for Cochin University during the period from 22.6.1970 to 31.7.1971, has to be treated as Government service. The petitioner has a further contention that he was entitled to continue in service till he attained the age of 60 years in terms of Rule 60(b) of Part I of the Kerala Service Rules, hereinafter referred to as the “K.S.R.” for short. 5. The respondents have filed a counter affidavit resisting the Writ Petition. They contend that the service rendered by the petitioner in the Office of the Special Officer for Cochin University cannot be reckoned as Government service, that the service rendered by him in the Office of the Special Officer for Cochin University is University service prior to the date of Ext.P7 Government order and therefore the petitioner cannot claim or WP(C) 16428/05 -: 5 :- be granted pension for the said spell of service. They also contended that the petitioner was not in service on 7.4.1970 and therefore he is not entitled to rely on Rule 60(b) of Part I of the K.S.R. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In Government decision No.2 under Rule 33 of Part I of the K.S.R. it was stated that the provisional service on regularisation with or without break in the same category or post will be treated as officiating service ab initio for the limited purpose of granting of increments and that the provisional service followed by a regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting of increments. I shall for the purpose of easy reference extract Government decision No.2 under Rule 33 in full. “GOVERNMENT DECISION NO.2 Provisional service on regularisation with or without break in the same category or post will be treated as officiating service ab initio for the limited purpose of granting of increments. Provisional service followed by a regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting of increments. The term 'same category' of post for the purpose denotes post satisfying the following conditions:- (i) The posts should carry the same or identical scale of pay. (ii) The qualification and method of appointment WP(C) 16428/05 -: 6 :- should be the same, and (iii) The post should fall in the same service. The above decision shall be deemed to have come into force with effect from 1.11.1956 but the monetary benefit thereof will be admissible only with effect from 24.7.1967.” 7. Going by Government decision No.2 under Rule 33 of Part I K.S.R, a person appointed on a regular basis after rendering provisional service, with or without break in the same category or post is entitled to have the provisional service reckoned for the limited purpose of grant of increments. This is however, subject to the condition that the provisional service should have been in the same category of post, the posts should carry the same or identical scale of pay, the qualification and method of appointment should be the same and the posts should fall in the same service. The provisional service rendered by the petitioner was in the E.M. Government High School, Fort Kochi as Full-time Menial during the period from 1.12.1969 to 28.2.1970 and from 2.3.1970 to 31.3.1970. Later during the period from 22.6.1970 to 31.7.1971 he had also served as Peon on provisional basis in the Office of the Special Officer for Cochin University. The petitioner has not produced any material to show that the post of Full-time Menial and the post of Peon in the Office of the Special Officer for Cochin University carried the same or identical scale of pay as Peon in the Kerala Judicial Ministerial Subordinate Service. He has also not produced any material to show that the qualifications and WP(C) 16428/05 -: 7 :- method of appointment were the same. On the pleadings, it is evident that the post of Full-time Menial in the E.M. Government High School, Fort Kochi, the post of Peon in the Office of the Special Officer for Cochin University and the post of Peon in the Kerala Judicial Ministerial Subordinate Service were not in the same service. Therefore, going by Government decision No.2, the petitioner was not entitled to have the provisional service rendered by him as Peon in the Kerala Judicial Ministerial Subordinate Service reckoned for the purpose of grant of increments. However, the Government gave him the said benefit by Ext.P2 order issued on 4.7.1996. The petitioner was in my opinion, not entitled to have his provisional service prior to his regular appointment as Peon in the Kerala Judicial Ministerial Subordinate Service reckoned for the purpose of grant of increments. 8. Government decision No.2 under Rule 33 of Part I K.S.R. was deleted from with effect from 1.10.1994. Thereafter, the Government issued G.O.(P) No.2357/99/Fin. dated 25.11.1999 wherein it was ordered as follows: “Government have examined the case in detail and are pleased to clarify that the provisional service with or without break rendered by the employees upto 30.9.1994 which qualifies for earning increments in terms of Government Decision No.2 under Rule 33 Part I Kerala Service Rules will be reckoned as qualifying service for pension irrespective of dates of retirement after 20.11.1989. The provisional service rendered on or after WP(C) 16428/05 -: 8 :- 1.10.1994 will not be reckoned as qualifying service for pension. The cases of retirement from service during the period from 1.10.1994 to 15.12.1998 and pensionary claims already sanctioned will not be re-opened.” 9. A reading of the Government order dated 25.11.1999 discloses that provisional service with or without break rendered by the employees upto 30.9.1994 which qualifies for earning increments in terms of Government decision No.2 under Rule 33 of Part I of the K.S.R. will be reckoned as qualifying service for pension irrespective of the date of retirement after 20.11.1989. The petitioner admittedly retired from service on 31.12.1990. However, in order to be eligible for the benefit of the Government order dated 25.11.1999, on the terms of the aforesaid Government order, the provisional service rendered by him should be one which qualifies for earning increments. In the view that I have taken, the petitioner was not entitled to have the provisional service rendered by him before regular appointment, reckoned for the purpose of grant of increments though it was wrongly reckoned for the purpose of grant of increments and also for higher grade. On the terms of Government decision No.2 under Rule 33 of Part I K.S.R. and the Government order dated 25.11.1999 the provisional service which the petitioner had rendered was not service which qualified for grant of pension. However on a wrong understanding of Government decision No.2 under Rule 33, the Government granted the petitioner pensionary benefits in respect of one spell of provisional service. What the petitioner seeks is that the WP(C) 16428/05 -: 9 :- another spell of provisional service should also be reckoned for the purpose of pension. In my opinion, as the petitioner does not fulfill the conditions stipulated in Government decision No.2 under Rule 33 of Part I of the K.S.R., the provisional service rendered by him cannot be reckoned for the purpose of pension. There is hence no merit in the challenge to Ext.P5. 10. The petitioner has a further case that he was entitled to continue in service till he attained the age of 60 years. He relies on Rule 60(b) of Part I K.S.R. On the terms of Rule 60(6) only last grade servants in service as on 7.4.1970 are entitled to continue in service till they attain the age of 60 years. The petitioner was admittedly not in service on 7.4.1970. His second spell of provisional service as Full-time Menial in the E.M. Government High School, Fort Kochi came to an end on 31.3.1970. He was appointed as Peon in the Office of the Special officer for Cochin University only on 22.6.1970. Therefore, it is clear that the petitioner was not in service as on 7.4.1970. The petitioner cannot therefore rely on Rule 60(b) of the K.S.R. to claim continuance in service till he attained of age of 60 years. For the reasons stated above, I hold that there is no merit in this Writ Petition. The Writ Petition fails and is accordingly dismissed. It is however clarified that as the Government have in Ext.P3 decided to grant the petitioner pensionary benefits reckoning his provisional service in the E.M. Government High School, Fort Kochi, I am not interfering with the WP(C) 16428/05 -: 10 :- same since the petitioner has been enjoying the benefit of Ext.P3 Government order for the past several years. P.N.Ravindran, Judge. ess 27/2