IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(C).No. 15743 of 2004(Y) -------------------------- PETITIONER(S): --------------- DR.V.SURENDRAN, FORMER READER IN EDUCATION (RETIRED), SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,KALADY, RESIDING AT ASWATHI, IDAYKIDAM P.O., KOLLAM DIST. BY ADV. SRI.M.V.THAMBAN SMT.THARA THAMBAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT., GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR (EDUCATION), KOLLAM. 3. THE REGISTRAR, SREE SANKARACHARYA SANSKRIT UNIVERSITY, KALADY, ERNAKULAM DISTRICT. 4. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. 5. THE HEADMASTER, GOVERNMENT HIGH SCHOOL, WEST KOLLAM, KOLLAM. 6. SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.KRISHNAKUMAR MANGOT,SC,SANSKRIT UTY FOR R3 GOVERNMENT PLEADER SRI.P.K.VIJAYAMOHANAN SRI.B.S.KRISHNAN, SENIOR ADVOCATE FOR R3 SRI.K.ANAND, SC, SANSKRIT UTY. FOR R3 SRI.P.K.VIJAYAMOHANAN,SC,SANKARACHA.UTY FOR R3 SRI.GILBERT GEORGE CORREYA,SC,SANKAR.UT FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15743/2004 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF ORDER NO. JRA-81/94/SSUS DATED 08.10.1994 ISSUED BY 3RD RESPONDENT. EXHIBIT P2 : TRUE COPY OF LETTER NO.52096/HSEI/94/G.EDN. DATED 19.10.1994 ISSUED BY THE GOVERNMENT. EXHIBIT P3 : TRUE COPY OF ORDER NO.A3.30216/94 DATED 21.10.1994 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 : TRUE COPY OF ORDER NO.SSUS/ADM/A2/1575/97 DATED 09.06.1997 ISSUED BY 3RD RESPONDENT. EXHIBIT P5 : TRUE COPY OF LETTER DATED 10.06.1997 SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P6 : TRUE COPY OF ORDER NO.D6/14134/97 DATED 19.06.1998 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7 : TRUE COPY OF LETTER NO.PR4/PRELY/145/1/97-98/843 DATED 10.03.1998 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P8 : TRUE COPY OF REPRESENTATION DATED 13.04.1998 SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P9 : TRUE COPY OF LAST PAY CERTIFICATE DATED 17.09.1998 ISSUED BY 3RD RESPONDENT. EXHIBIT P10 : TRUE COPY OF LETTER NO.PR4/PENA/553/T/98-99/457 DATED 27.10.1998 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P11 : TRUE COPY OF LETTER NO. PR4/PENA/553/T/98-99/547 DATED 31.08.1999 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P12 : TRUE COPY OF LETTER NO. PR4/PENA/553/T/98-99/547 DATED 31.08.1999 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P13 : TRUE COPY OF GOVT. ORDER G.O.(RT.) NO.518/99/H.EDN. DATED 17.05.1999. EXHIBIT P14 : TRUE COPY OF REPRESENTATION DATED 21.09.1999 SUBMITTED BY PETITIONER TO 4TH RESPONDENT. EXHIBIT P15 : TRUE COPY OF REPRESENTATION DATED 17.09.2001 SUBMITTED BY PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P16 : TRUE COPY OF REPRESENTATION DATED 16.01.2002 SUBMITTED PETITIONER TO THE HON'BLE MINISTER FOR EDUCATION. EXHIBIT P17 : TRUE COPY OF LETTER DATED 20.06.2002 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P18 : TRUE COPY OF JUDGMENT DATED 17.07.2003 IN OP NO.3510/99 EXHIBIT P19 : TRUE COPY OF GOVT. ORDER GO(RT) NO. 1543/04 DATED 19.04.2004. /TRUE COPY/ P.A. TO JUDGE. CR P.R.RAMACHANDRA MENON, J. --------------------------------------------- WP(C) NO. 15743 OF 2004 ----------------------------------- Dated this the 14th day of December, 2009 J U D G M E N T Whether the salary drawn by the petitioner as a ‘Reader’ in the third respondent/University immediately prior to his voluntary retirement, pursuant to setting aside of all such appointments in the said University by this Court, followed by relieving him to the parent department, could be reckoned for the purpose of fixing the pensionery benefits, is the issue involved herein. 2. The petitioner was originally appointed as ‘UPSA’ on selection by the PSC on 01.10.1974 and subsequently, he was promoted as ‘HSA' with effect from 15.07.1977. While working as HSA, the petitioner was provisionally promoted as ‘HSS Teacher’ with effect from 17.12.1992. While so, he applied for the post of ‘Reader’ in the Sree Sankaracharya University of Sanskrit, Kalady. On selection as Reader, the petitioner was relieved from the post of ‘HSS Teacher’, to join the new post. Accordingly, the Director of Higher Secondary Education relieved the petitioner and after the placement given to him as HSA at GHS West, Kollam ordered by the second respondent, the petitioner was relieved from the said post, to take WPC NO.15743/2004 2 up the appointment in the third respondent/University with effect from 21.10.1994. 3. While so, the appointments effected by the University turned to be a subject matter of challenge before this Court and after considering the rival contentions raised by the parties concerned, this Court set aside all the concerned appointments made by the University; pursuant to which the petitioner was also terminated from the service w.e.f. 09.06.1997. But since the petitioner was retaining his lien in the parent department, the University relieved the petitioner on 09.06.1997, with a direction to report before the second respondent. The petitioner reported for duty before the 2nd respondent on 10.06.1997 and applied for ‘voluntary retirement’ with effect from 09.06.1997. The application submitted in this regard was allowed by the 2nd respondent, as per Ext.P6, permitting the petitioner to have retired voluntarily with effect from 09.06.1997. 4. The Accountant General, Thiruvananthapuram (4th respondent) admitted the pension, reckoning the qualifying service of the petitioner only as ‘20’ years. Taking note of the claim for reckoning the qualifying service as ‘25’ years (reckoning the provisional service as well as the University service), OP 3510/1999 filed by the petitioner before this Court was disposed of, as per Ext.P18 judgment, directing the matter to be WPC NO.15743/2004 3 considered. But in the meanwhile, i.e. during the pendency of the Original Petition, a revised pension proposal was sent to the 4th respondent/ Accountant General, reckoning the qualifying service of the petitioner as ‘25’ years, i.e., 20+5 years giving weightage as per 56(1) of Part III KSR and accordingly, the Accountant General, Thiruvananthapuram, vide order dated 31.10.2001, had revised the pension. Pursuant to Ext.P18 judgment, the matter was considered by the 1st respondent/Government in consultation with the Finance Department and found that the service of the petitioner from 21.10.1994 to 09.06.1997 could be counted for pensionery benefits, since this period was treated as 'deputation' by the Government as stipulated in Ext.P13 Government Order. However, it was made clear, vide Ext.P19, that the request to adopt the last salary drawn by the petitioner as a 'Reader' for the purpose of pensionery benefit was not admissible, because the pay drawn in foreign service by an officer deputed under foreign service conditions in Chapter XI Part I KSR shall not be treated as emoluments for pension, which in turn has been subjected to challenge in this Writ Petition, praying for some incidental reliefs as well. 5. Though the petitioner has approached this Court seeking for various reliefs in this Writ Petition, the learned Counsel for the petitioner submits that almost all the grievances have been got redressed and the only remaining issue is with regard to the claim for granting revised WPC NO.15743/2004 4 pension, reckoning the salary drawn by the petitioner as ‘Reader’ in the third respondent/University immediately prior to the voluntary retirement sanctioned with effect from 09.06.1997. The learned counsel places reliance on Ext.P13 Government Order to contend that the service of the petitioner as ‘Reader’ in the University was liable to be treated as ‘deputation’ for all purposes and as such, the last drawn wages in the post of ‘Reader’ in the University were liable to be reckoned for fixing the pensionary benefits, in view of the stipulations in the ‘Ruling No.1’ under Rule 62 and also in view of the contents of Rule 63 of Part III KSR. 6. It is pointed out from the part of the University that there is no liability to pay any ‘pro rata contribution’ for pension, particularly in view of the fact that the very appointment in the University was set aside by this Court. Referring to the very same position, the learned Government Pleader contends that there was no valid appointment as ‘Reader’ in the University and as such, the said service stated as rendered in the University could not be of any consequence. Pursuant to the directions given by this Court in OP No. 3510/1999 as stated above, the eligibility of the petitioner was considered by the Government and the request was turned down vide Ext.P19. The learned Government Pleader appearing on behalf of the State and the learned Standing Counsel appearing for the WPC NO.15743/2004 5 third respondent/University submit that the idea and understanding of the petitioner as to the scope of Ext.P13 Government Order and also as to the rule position is rather wrong and mis conceived. 7. It is brought to light that the service rendered by the petitioner as ‘Reader’ in the third respondent/University for the period from October, 1994 till 09.06.1997 has very much been reckoned as ‘deputation’ in view of the clear mandate in Ext.P13 Government Order. The only grievance of the petitioner is that, the quantum of pension and pensionary benefits have been fixed by the respondents without any regard to the total emoluments drawn in the University prior to the voluntary retirement from the service and that is all. 8. Obviously, the entire facts and circumstances have been subjected to meticulous analysis by the first respondent who passed Ext.P19 order. The claim of the petitioner, as projected during the course of hearing, was to consider his appointment as a temporary one i.e., under Rule 9 of the KS & SSR and to fix his pension, taking average of the 10 months’ pay drawn by him in the third respondent/University in the scale of Rs.3700-5700 in the post of Reader, if necessary, by relaxing the rules in the KSR. Admittedly, the employment as ‘Reader’ in the University was pursuant to a ‘fresh selection’, which was in no way connected with the WPC NO.15743/2004 6 service under the State/Department. However, in view of the consequences resulted because of the judgment rendered by this Court setting aside all such appointments effected by the University, the requests made by the affected persons in this regard were considered by the Government and it was ordered as per Ext.P13 Government Order, that the period of service rendered by such persons in the third respondent/ University will be treated as ‘deputation’ for the purpose of regularization of such period in the department. The case of the petitioner is that since the said service has been ordered to be treated as ‘deputation’, it shall be reckoned for the purpose of computation of pensionery benefits as well, contending that the term 'emoluments' as it appears under the relevant rules is inclusive of the ‘special pay’ drawn by the petitioner in the post of ‘Reader’ in view of Ruling No. 1 under Rule 62, read with Rule 63 of Part III KSR. 9. In fact, Ext.P13 Government Order was issued by the Government pursuant to the requests given by the aggrieved persons to have the period of service in the University considered for regularizing the absence in the service of the State/Department, as a special case. The said Government Order does never say that the pay drawn by such persons in the respective posts in the University will be treated as WPC NO.15743/2004 7 protected. Similarly, the terminology used under ‘Ruling No. 1’ of Rule 62 of Part III KSR refers to the special pay admissible to persons on deputation from the State service to other State Governments or to the Central Government or from one Government Department to another, to be reckoned as emoluments for the purpose of pension and that the pay drawn in “Foreign service” by an officer deputed under foreign service conditions in Chapter XI Part I KSR is not liable to be treated as emoluments for the purpose of pension. In the latter case, the pay of the persons which they would have drawn, had they continued in the parent department, alone will be treated as emoluments, as made clear by the Apex Court in the decision rendered in Balkrishna Pandey Vs. State of Bihar and others [1996 (2) SCC 282]. This being the position, since the petitioner was working as an ‘HSS Teacher’ (Sanskrit) at the time of joining the service of the University, the emoluments attached to the service in respect of the concerned post in the parent department alone can be reckoned for the fixation of pension and pensionery benefits. No Rule or decision to the contrary has been cited from the part of the petitioner to sustain the contention that he is entitled to have the salary in an 'alien service' protected and counted, for fixing the pension and pensionary benefits. WPC NO.15743/2004 8 In the above facts and circumstances, there is absolutely no merit in the contentions raised from the part of the petitioner. The Writ Petition fails and it is dismissed accordingly. P.R.RAMACHANDRA MENON JUDGE dnc