IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 2328 of 2008(B) ------------------------------------- PETITIONER(S): ---------------------- MARYKUTTY SEBASTIAN, VETTUKATTIL (ILLAM) HOUSE, PALA. BY ADV. MR.SHAJI THOMAS PORKKATTIL MR.BINU PAUL MR.T.V.VINU RESPONDENT(S): ------------------------ 1. SECRETARY TO GOVERNMENT, HIGHER EDUCATION (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2328/2008-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(MS)NO.210/76/G.EDN. DATED 30/10/1976 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P2: COPY OF THE REPRESENTATION DATED 16/03/1996 SUBMITTED BY THE PETITIONER'S HUSBAND. EXT.P3: COPY OF THE ORDER DATED 17/04/1990 OF THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT. EXT.P4: COPY OF THE G.O.(RT)NO.2990/89/FIN. DATED 22/06/1989. EXT.P5: COPY OF THE JUDGMENT DATED 24/11/2006 IN WP(C) NO. 24723/2003 OF THIS HONOURABLE COURT. EXT.P6: COPY OF THE GOVERNMENT ORDER G.O.(RT)NO.1138/2007/H.EDN. DATED 15/06/2007 ISSUED BY THE 1ST RESPONDENT. EXT.P7: COPY OF THE CERTIFICATE DATED 04/03/1993 ISSUED BY THE PRINCIPAL, ST.THOMAS TRAINING COLLEGE, PALA. EXT.P7 (IN IA.8574/2009): COPY OF THE GO(P)NO.703/2002/FIN DATED 12/11/2002. EXT.P8: COPY OF THE GO(P).651/03/FINANCE DATED 06/12/2003. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.SIRI JAGAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.2328/2008-B ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 14th day of July, 2009 J U D G M E N T The petitioner is the widow of late Professor V.J.Sebastian who retired as a Senior Grade Lecturer from St.Thomas Training College, Pala on 30/03/1993. Before joining the Aided College service on 11/12/1975, he had put in more than 12 years of service as Instructor Grade-I in National Discipline Scheme ('N.D.S' for short), which is established under the Central Government. The Government of Kerala decided to absorb N.D.S Instructors to the State Government service. The Government also directed that their service in N.D.S would be counted for pension in the State service. Sebastian resigned from N.D.S on 10/12/1975 to join Aided College service on 11/12/1975. However, the pensionary benefits of late Shri V.J.Sebastian were fixed without taking into account the 12 years of service in N.D.S. In spite of repeated requests from Sebastian the respondents did not react favourably. While so Sebastian died on 09/06/1996. The petitioner was thereafter receiving family pension. According to the petitioner, if her husband's qualifying service is fixed taking into account the 12 years of service in N.D.S also, his pension W.P.(C). No.2328/2008 -:2:- and other terminal benefits is to be revised and refixed. Consequently, the family pension due to the petitioner is also liable to be revised and refixed. Petitioner's claim in this regard was finally rejected by Ext.P6. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs:- i. a writ of certiorari or any other writ, order or direction quashing Ext.P6 order as the same is illegal, arbitrary and offends Article 14 of the Constitution of India. ii. a writ of mandamus or any other writ, order or direction commanding the 1st respondent to treat the case of the petitioner as similar to the case of Prof.V.K.Madhavan Nair, the incumbent covered under Ext.P4 G.O and extend the same benefit to the petitioner also. iii. a writ of mandamus or any other writ, order or direction commanding the 1st and the 2nd respondent to forward the particulars of the past service of petitioner's husband as N.D.S Instructor Grade-I for the period 25/07/1963 to 10/12/1975 to the 3rd respondent for counting the past service of 12 years for the purpose of revising the pension and other terminal benefits due to the petitioner's husband and to revise the family pension payable to the petitioner. iv. any other writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case and to allow the petition. 2. The learned Government Pleader with the help of a counter affidavit filed on behalf of the second respondent would strongly dispute the claim of the petitioner. According to the second respondent, Shri V.J.Sebastian resigned from the N.D.S on W.P.(C). No.2328/2008 -:3:- 10/12/1975 much before the N.D.S was handed over to the State service. The learned Government Pleader contends that only those persons who continued in N.D.S and was absorbed in the State service are eligible for reckoning their service in the N.D.S for the purpose of the computation of their retirement benefits. 3. With the help of Exts.P7 and P8 Government Orders produced by the petitioner along with I.A.No.8574/2009, the petitioner would contend that by virtue of those orders, the retirement benefits of the petitioner's husband have to be recomputed taking into account the N.D.S service also. The counsel for the petitioner would also submit that the petitioner is prepared to remit the pro rata pensionary liability payable by the Central Government for that purpose as provided in Ext.P7 for persons who have on their own volition left the former service for taking up appointment in the State Government Department. 4. In answer to the same, the learned Government Pleader would contend that, that also is not possible since on account of resignation of petitioner from N.D.S he is not entitled to retirement benefits from the Central Government and, only if he is entitled to retirement benefits from the Central Government that period can be W.P.(C). No.2328/2008 -:4:- counted for the purpose of pension from the State Government. 5. I have considered the rival contentions in detail. In Ext.P7, G.O.(P).No.703/2002/Fin., dated 12/11/2002, the Government has ordered thus:- “Government have examined the matter in detail and are pleased to order that the employees of the State Government Departments who left the former service in Central Government/Central Public Sector Undertakings on their own volition for taking up appointment in State Government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in the State Government Department if the former employer remits the share of proportionate prorata pensionary liability on a service-share basis.” 6. I do not think that I can read into Ext.P7 a condition that the petitioner's husband ought to have been eligible for pension under the Central Government also. All that Ext.P7 says is that he should have left the service of the Central Government for taking up appointment in the State Government Department. Here, admittedly, the petitioner resigned from N.D.S on 10/12/1975 and entered service in the Aided College on 11/12/1975. From the same it is evident that the petitioner's husband on his own volition left the N.D.S service for taking up employment in the Aided College service. That being so, I am of opinion that the petitioner's husband was entitled to benefits of Ext.P7. W.P.(C). No.2328/2008 -:5:- 7. However, the learned Government Pleader points out that in Ext.P7, it is specifically stated that Ext.P7 would take effect only from the date of that order and individual cases otherwise settled will not be re-opened. But I find that Ext.P7 is a clarification of an earlier order, namely, G.O.(P).No.383/89/Fin dated 29/08/1989, the operative portion of which reads thus:- “When an employee of the State Government/State Autonomous Body, borne on Pensionable Establishment is allowed to be absorbed in the Government of India/Autonomous Body, the service rendered by him under the State Government/State Autonomous Body shall be allowed to be counted towards pension under the Government of India/Autonomous Body irrespective of whether the employee was temporary or permanent in the Government/Autonomous Body. The same procedure will be applied in the case of employees of Government of India/Autonomous Bodies who are permanently absorbed under the State Government/State Autonomous Bodies. The Government/Autonomous Body, will discharge its pension liability by paying in lump sum, as a one time payment, the pro rata pension/service gratuity, terminal gratuity and death-cum-retirement gratuity for the service upto the date of absorption in the Autonomous Body/Government as the case may be. Lump sum amount of the pro rata pension will be determined with reference to the commutation table laid down in Kerala Service Rules, Part III.” 8. I am of opinion that the petitioner's husband was entitled to the benefit of that Government Order read with Ext.P7 in which W.P.(C). No.2328/2008 -:6:- case his N.D.S service is liable to be counted for pension from the State Government. In the above circumstances, I quash Ext.P6 order and direct the first respondent that the retirement benefits of Professor V.J.Sebastian be refixed reckoning his service in N.D.S also in accordance with the above said two Government Orders. Orders in this regard shall be passed and arrears due to the petitioner disbursed as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of the judgment. The writ petition is disposed of as above. (S.SIRI JAGAN, JUDGE) ms