IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 25653 of 2004(D) -------------------------------------- PETITIONER: ------------ K. JAYAPRAKASH, EXECUTIVE ENGINEER (RETD.) FLAT NO.FF 9/220, P.T. CHACKO NAGAR, ULLOOR, THIRUVANANTHAPURAM-695 011. BY ADV. SRI.S.RAMESH BABU RESPONDENTS: ----------------------- 1. KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-1. 2. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.NANDAKUMAR FOR R2 ADV. SRI.A.JAYASANKAR, SC KSHB, TVM FOR R.1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).25653/2004-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SUBMISSION DATED 15/01/1990. EXT.P2: COPY OF THE G.O.(F).533/87/FIN, DATED 19/06/1987. EXT.P3: COPY OF THE COMMUNICATION DATED 26/02/1990. EXT.P4: COPY OF THE COMMUNICATION DATED 16/03/1992. EXT.P5: COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE BOARD MEETING HELD ON 22/01/1999. EXT.P6: COPY OF THE ORDER OF THE GOVERNMENT IN G.O.Rt.NO.35/2000/HSG. DATED 28/06/2000. EXT.P7: COPY OF THE COMMUNICATION BY THE SHB DATED 12/08/2002. EXT.P8: COPY OF THE REPLY DATED 10/03/2003. EXT.P9: COPY OF THE G.O. DATED 12/11/2002. EXT.P10: COPY OF THE LETTER DATED 21/05/2003. EXT.P11: COPY OF THE REPLY DATED 04/08/2003. EXT.P12: COPY OF THE AG.O.(P).NO.651/03/FIN. DATED 06/12/2003. EXT.P13: COPY OF THE COMMUNICATION DATED 07/05/2004. EXT.P14: COPY OF THE ORDER DATED 03/01/2005. EXT.P15: COPY OF THE ORDER DATED 06/03/2006. EXT.P16: COPY OF THE ORDER DATED 29/09/2006. EXT.P17: COPY OF THE ORDER DATED 02/08/2007. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE PENSION REGULATION . EXT.R1(b): COPY OF THE ORDER DATED 01/04/1982. EXT.R1(c): COPY OF THE GOVERNMENT ORDER DATED 30/12/1978. W.P.(C).25653/2004-D EXT.R1(d): COPY OF THE EXTRACT OF THE REMARKS OF DEPUTY DIRECTOR OF LOCAL FUND AUDIT. EXT.R1(e): COPY OF THE RECEIPT NO.498784 DATED 05/03/1999. EXT.R1(f): COPY OF THE EXTRACT OF THE REMARKS OF DEPUTY DIRECTOR OF LOCAL FUND AUDIT DATED 05/12/03. EXT.R1(g): COPY OF LETTER DATED 22/05/03. EXT.R1(h): COPY OF THE LETTER DATED 04/03/03. EXT.R1(i): COPY OF THE ORDER DATED 03/01/2005. EXT.R1(J): COPY OF THE ORDER DATED 18/01/2005. EXT.R1(k): COPY OF THE ORDER DATED 21/05/2005. // TRUE COPY // P.A. TO JUDGE Rs/ P.N.Ravindran, J. =============== W.P(C).No.25653 of 2004 =================== Dated this the 8th day of August, 2008. JUDGMENT The petitioner retired from service on 31.5.2003 while he was working as Executive Engineer in the Kerala State Housing Board, hereinafter referred to as the "Board" for short. The petitioner was formerly an employee of the Department of Posts & Telecommunications of the Government of India. The dispute involved in this Writ Petition is whether the service rendered by the petitioner in the Department of Posts & Telecommunications can be reckoned for the purpose of pension on his retirement from the service of the Board. The brief facts of the case are as follows: 2. The petitioner entered service as Time Scale Clerk in the Department of Posts and Telecommunications on 28.11.1968. While in service in that Department, he applied for appointment as Assistant Engineer in the Board. He was selected by the Kerala Public Service Commission and advised for appointment in the said post. An order of appointment followed. The petitioner thereupon resigned from the service of the Department of Posts & Telecommunications on 26.2.1981 and joined duty as Assistant Engineer in the Board on 27.2.1981. While the petitioner was in the service of the Department of Posts & WP(C) 25653/04 -: 2 :- Telecommunications, he had subscribed to the General Provident Fund. After he joined service in the Board, the money lying to his credit in the General Provident Fund account was transferred to his General Provident Fund account in the Board. He was promoted as Assistant Executive Engineer on 23.5.1986 and later as Executive Engineer. When the petitioner joined service in the Board, there was no pension scheme in existence. Pension scheme was introduced in the Board on 27.5.1989. The petitioner thereupon submitted Ext.P1 representation dated 15.1.1990 to the Secretary of the Board, requesting that his service from 28.11.1968 to 26.2.1981 in the Department of Posts & Telecommunications may be reckoned for the purpose of fixing his terminal benefits and that steps may be taken to collect the share of pension contribution from his former employer. By Ext.P3 letter dated 26.2.1990, the Secretary of the Board addressed the Chief General Manager, Telecommunications, Kerala Circle, Trivandrum in the matter. The Department of Telecommunications thereupon sent Ext.P4 letter dated 16.3.1992 stating that the said department has decided to grant pensionary benefits amounting to Rs.19,969/- to the petitioner. To facilitate disbursement, the Board was called upon to issue two certificates, namely, a certificate to the effect that the service of the petitioner in the Board is permanent and pensionable and another certificate confirming the full settlement of the liability dischargeable by the Department of Posts & Telecommunications for the period of service WP(C) 25653/04 -: 3 :- rendered by the petitioner in that department. 3. While matters stood thus, two other employees of the Board namely, Sri.M.Krishnan and Sri.Theodore Machado, who were Executive Engineer and Assistant Engineer respectively, retired from service. Sri.M.Krishnan was formerly employed in the Central Public Works Department and Sri.Theodore Machado was employed in the State Public Works Department. After Sri.M.Krishnan retired, the Board decided at its meeting held on 22.1.1999 to treat the service rendered by him in the Central Public Works Department during the period from 8.1.1965 to 2.4.1982 as service qualifying for pensionary benefits after receiving from him the share of pension contribution with penal interest till the date of remittance. Ext.P5 is the decision taken by the Board in that regard. Relying on Ext.P5, the past service rendered by Sri.Theodore Machado in the State Public Works Department was also reckoned as service qualifying for pensionary benefits. Ext.P6 is the order issued by the State Government in that regard on 28.6.2000. 4. When there was no progress in the matter even after the receipt of Ext.P4 letter from the Department of Telecommunications, the petitioner submitted a representation dated 12.8.2002 to the Secretary of the Board. The Secretary of the Board thereupon sent Ext.P7 letter addressed to the State Government. The State Government in turn sent Ext.P8 letter stating that the petitioner's request may be allowed subject to the conditions specified in the government order dated 12.11.2002, a WP(C) 25653/04 -: 4 :- copy of which is produced as Ext.P9. In the meanwhile, the Bharat Sanchar Nigam Limited (BSNL for short) was incorporated with effect from 1.10.2000 and the functions of the Department of Telecommunications was taken over by the BSNL. The Secretary of the Board thereupon sent Ext.P10 letter to the General Manager, BSNL, Thiruvananthapuram referring to Ext.P4 and Ext.P8 and requested him to forward a revised statement of the share of proportionate prorata liability in terms of Ext.P9 government order. By Ext.P11 letter dated 4.8.2003, the BSNL informed the Secretary of the Board that with effect from 1.4.1987, the practice of sharing pension liability between the Central/State Government has been dispensed with. 5. The petitioner had in the meanwhile retired from service on 31.5.2003 and his terminal benefits were thereafter fixed by Ext.P14 order dated 3.1.2005. The State Government had in the meanwhile issued Ext.P12 government order dated 6.12.2003 whereby it was ordered that the liability to pay pension reckoning the past service in the Central/State Government will be that of the government concerned and that no recovery of the proportionate share of pension contribution will be made from the Central/State Government under whom the pensioner had formerly served. Shortly after Ext.P12 order was issued, by Ext.P13 letter dated 7.5.2004, the Secretary of the Board informed the petitioner that as Ext.P12 government order has not been implemented in the Board and as the Board is in acute financial crisis, his request to reckon WP(C) 25653/04 -: 5 :- the past service in the Department of Posts & Telecommunications for the purpose of pension cannot be entertained. This Writ Petition was thereupon filed seeking the following reliefs: "a. issue a writ of certiorari calling for the records leading upto Ext.P13 and quash the same. b. issue a writ of mandamus commanding the 1st respondent to reckon the petitioner's service in the Central Government under P & T department from 28.11.1968 to 26.2.1981 for the purpose of pensionary benefits and to disburse such pensionary benefits with interest thereon within a time to be fixed by this Hon'ble Court. c. issue a writ of mandamus commanding the 1st respondent to sanction and disburse the commuted value of pension, gratuity under the Payment of Gratuity Act, arrears of pension from June 2003, leave surrender benefits, salary for the month of May 2003 with interest thereon at 12% per annum from 1.6.2003 till the date of actual payment." 6. I have heard Sri.S.Ramesh Babu, the learned counsel appearing for the petitioner and Sri.A.Jayasankar, the learned Standing Counsel appearing for the Board. The learned counsel for the petitioner, besides contesting the validity of the stand taken by the Board in Ext.P13 submitted that the petitioner is prepared to pay the share of contribution payable by the Department of Posts & Telecommunications, so as to enable him to receive pension taking into account his past service for the period from 28.11.1968 to 26.2.1981 in the Department of Posts & Telecommunications. The learned counsel contended that the stand WP(C) 25653/04 -: 6 :- taken by the Board in Ext.P13 was without reference to the stipulations in Ext.P12. Per contra, the learned Standing Counsel for the Board contended that the petitioner's service in the Department of Posts & Telecommunications cannot be reckoned for the purpose of pension as Ext.P12 has not been implemented in the Board. It was also contended that the petitioner will be entitled to the benefits flowing from Ext.P9 only if the former employer remits their share of the proportionate prorata pensionary liability with the Board. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In view of Exts.P5 and P6 wherein the benefit of past service in the Central Public Works Department and the State Public Works Department was extended to two other Engineers in the service of the Board, the Board is bound to reckon the service rendered by the petitioner in the Department of Posts & Telecommunications for the period from 28.11.1968 to 26.2.1981 for grant of pensionary benefits. Exts.P3, P4, P8 and P10 also establish the petitioner's entitlement. The only question that remains for consideration is whether in view of the stand taken by the BSNL in Ext.P11 and by the State Government in Ext.P12 that sharing of pension liability between the Central and State Governments has been dispensed with, the petitioner is entitled to claim the benefit of past service for the purpose of pension. 8. The fact that employees of the Central Government who go over to State Government service or to autonomous bodies or public WP(C) 25653/04 -: 7 :- undertakings are entitled to have their earlier service in the Central Government reckoned for the purpose of pensionary benefits is not in dispute. The only dispute is centered on the question whether it is the former employer or the later employer who is liable to contribute. Going by Ext.P8 and P10, the liability to pay pension taking into account the past service rendered by the petitioner in the Department of Posts & Telecommunications was that of former employer, namely, the Department of Posts & Telecommunications. Though initially the Department of Posts & Telecommunications had agreed to pay their share of contribution and Ext.P4 letter was issued on 16.3.1992, later in Ext.P11, the BSNL took the stand that in view of the decision taken by the Government of India, on and after 1.4.1987, they are not liable to share the proportionate prorata pension liability. The State Government also accepted the said stand and issued Ext.P12 government order dated 6.12.2003 whereby, the liability to pay pension was to be met entirely by the establishment from which the employee retires. Thus, the Board became liable to pay pension in the case of the petitioner taking into account his past service in the Department of Posts & Telecommunications. The Board was bound by and had adopted the earlier orders governing the field. The stand now taken by the Board is that Ext.P12 has not been adopted and therefore, the petitioner's request cannot be considered. In short, the contention of the Board is that though the service rendered by the petitioner in the Department of Posts WP(C) 25653/04 -: 8 :- & Telecommunications can be reckoned for the purpose of fixing his pensionary benefits, unless the former employer pays the proportionate prorata share of pension liability, the Board cannot accede to the petitioner's request. The learned counsel for the petitioner submits that if that is the only objection, the petitioner is prepared to remit the share of contribution payable by the Department of Telecommunications/BSNL if the Board is prepared to accept the same in lieu of payment by the Department of Posts & Telecommunications/BSNL. Reliance is placed on the decision of the Board evidenced by Ext.P5 in support of the said submission. As the entitlement of the petitioner to have his service in the Department of Posts & Telecommunications reckoned for the purpose of pension is not in dispute, I am of the opinion that in the facts and circumstances of this case, the ends of justice would be met if the petitioner is directed to pay the pension contribution payable by the Department of Posts & Telecommunications/BSNL to the Board together with interest thereon as was done by the Board in the case of Sri.M.Krishnan. The Board shall within two months from today determine the share of contribution that would have been payable by the Department of Posts & Telecommunications/BSNL to it, so as to enable the petitioner to have his service from 28.11.1968 to 26.2.1981 reckoned for the purpose of pension after his retirement from the service of the Board. It will be open to the Board to levy and demand interest also on the said share of contribution, as was done in the case of WP(C) 25653/04 -: 9 :- Sri.M.Krishnan referred to in Ext.P5. After the amount payable by the petitioner is thus determined, the Board shall communicate the same by registered post to the petitioner. The petitioner shall within one month of receipt of the said communication, remit the said amount to the Board. The Board shall within one month thereafter pass orders reviewing Ext.P14 and refix the pensionary benefits payable to the petitioner. The monetary benefits upon such refixation shall be paid within three months thereafter. Needless to say, if the petitioner does not comply with the demand made by the Board and fails to pay the contribution demanded from him, he would not be entitled to get his past service in the Department of Posts & Telecommunications reckoned for pensionary benefits. The Writ Petition is disposed of as above. No costs. P.N.Ravindran, Judge. ess 13/8