IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WA.No. 1268 of 2008 --------------------- AGAINST THE JUDGEMENT IN OP.26691/2002 Dated 18/03/2008 .................... APPELLANT/PETITIONER: -------------- P.SYAMALAN, S/O.V.BABU, AGED 56, VIMALA NIVAS, C-15, DHARMAGIRI HOUSING COLONY, NEAR S.N.COLLEGE, THOTTADA, KANNUR, NOW RESIDING AT KANNURE AUTO, X-RAY JUNCTION, CHERTHALA (RETIRED CHARGEMAN (TYRES), KSRTC DEPOT, CHERTHALA) BY ADV. SRI.K.S.AJAYAGHOSH RESPONDENT(S)/RESPONDENTS: --------------- 1. THE MANAGING DIRECTOR, M/S.KERALA STATE ROAD TRANSPORT CORPORATION, CHIEF OFFICE, THIRUVANANTHAPURAM. 2. THE DISTRICT TRANSPORT OFFICER, K.S.R.T.C DEPOT, CHERTHALA. BY SRI.V.V.NANDAGOPAL NAMBIAR, SC FOR KSRTC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.NO.1268/2008 ------------------------------ Dated this, the 14th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. He was an employee of the Kerala State Road Transport Corporation (for short “KSRTC”). He joined the service of the KSRTC as Work Assistant on 6.2.1974. He retired from service on 30.6.2001. Before joining the KSRTC, he had worked as Instructor in the Government I.T.I., Kannur from 4.3.1970 to 5.2.1974. The appellant claimed pension from the KSRTC, reckoning the aforementioned period of provisional service under the Government. That claim was rejected by the competent authority of the KSRTC by Ext.P5 communication dated 5.8.2002. So, challenging Ext.P5 and seeking consequential reliefs, the Original Petition was filed. The respondents filed a counter affidavit, opposing the prayers in the Original Petition. The learned Single Judge, after hearing both sides, dismissed WA No.1268/2008 - 2 - the O.P. Hence this appeal. 2. The learned counsel for the appellant submitted that in view of sub-clause (1) of clause XXIII of Ext.P6 long term settlement concluded between the management and workmen of the KSRTC on 13.4.1999, the provisions of the Kerala Service Rules concerning pension are applicable to the employees of the KSRTC. Sub-clause (2) of clause XXIII of the said settlement says that previous service under the State Government before joining the Corporation will qualify for pension, provided the break between Government service and KSRTC service does not exceed three months. Even assuming the service mentioned in sub-clause (2) of clause XXIII is regular service, the appellant submits, in view of G.O.(P) No.2357/99/Fin dated 25.11.1999, the provisional service rendered before 1.10.1994, which qualify for increments in terms of Government decision No.2 under Rule 33 of Part I, Kerala Service Rules, can be reckoned as qualifying service. The said Government order is applicable to the KSRTC employees also, it is submitted. The learned standing counsel for the KSRTC supported the judgment under appeal. WA No.1268/2008 - 3 - 3. Sub-clauses (1) and (2) of clause XXIII of Ext.P6 settlement read as follows: “1. Pension will be paid as per the provisions of Kerala Service Rules followed by the Government from time to time. 2. Service under State Government prior to joining the Corporation will qualify for pension provided the break between Government service and KSRTC service shall not exceed three months.” The relevant portion of the Government order dated 25.11.1999 mentioned above, which is relied on by the appellant, reads as follows: “2. Government have examined the case in detail and are pleased to clarify that the above provisional service with or without break rendered by the employees up to 30.09.1994 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 01.10.1994 will not be reckoned as qualifying service WA No.1268/2008 - 4 - for pension. The cases of retirement from service during the period from 01.10.1994 to 15.12.1998 and pensionary claims already sanctioned will not be re- opened.” 4. Government decision No.2 under Rule 33 of Part I, Kerala Service Rules, which was repealed with effect from 1.10.1994 by G.O.(P) 540/94/Fin dated 30.9.1994 reads as follows: “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 should be the same, and (iii) The post should fall in the same service. The above decision shall be deemed to have WA No.1268/2008 - 5 - come into force with effect from 1.11.1956 but the monetary benefit thereof will be admissible only with effect from 24.7.1967.” Going by decision No.2 quoted above, the service rendered by the appellant could be counted, if only he has served in a post having identical scale of pay for which the qualification and method of appointment are the same and they come under the same service. These pre-requisites cannot be attributed to the posts of Instructor in the Government I.T.I and Work Assistant in the KSRTC. In view of the above position, the claim of the appellant that his provisional service should be reckoned for pension in the KSRTC cannot be accepted. In the result, the Writ Appeal fails and it is dismissed. K. Balakrishnan Nair, Judge. C.T.Ravikumar, Judge. nm.