IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 WP(C).No. 28108 of 2006(U) ---------------------------------- PETITIONER(S): ------------------- C.M.MUHAMMED KUNHI, LPSA ARDBIC (RTD.), PULEEPPI MAPPILA L.P. SCHOOL, P.O.KANNADIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. ASSISTANT EDUCATIONAL OFFICER, PAPPINISSERY, KANNUR DISTRICT. 4. HEADMASTER, PULEEPPI MAPPILA L.P.SCHOOL, P.O.KANNADIPARAMBA, KANNUR DISTRICT. R1-3 BY GOVT. PLEADER SRI.MOHAMMED FAZIL M.P. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 28108/2006(U) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPRESENTATION DATED 20/03/2003 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR EDUCATION. P2: COPY OF THE LETTER DATED 21/06/2004 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. P3: COPY OF THE G.O.(MS)NO.104/69 DATED 06/03/69. P4: COPY OF THE G.O.(MS)NO.69/76/G.EDN. DATED 26/04/76. P5: COPY OF THE LETTER DATED 31/06/2006 ISSUED BY THE THIRD RESPONDENT TO THE FOURTH RESPONDENT. P6: COPY OF THE LETTER DATED 25/08/2006 ISSUED BY THE FOURTH RESPONDENT TOT HE THIRD RESPONDENT. P7: COPY OF THE LETTER NO.A/555/06 DATED 03/10/06 ISSUED BY THE THIRD RESPONDENT TO THE FOURTH RESPONDENT. P8: COPY OF THE RELEVANT PORTION OF THE PENSION PAYMENT ORDER DATED 09/08/2003. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.28108/2006-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of February, 2011 J U D G M E N T In this writ petition, the petitioner is aggrieved by Ext.P2 order as well as Ext.P7 consequential order passed by the Assistant Educational Officer. 2. By Ext.P2 order, the Government found that the period during which the petitioner was remaining outside cannot be reckoned for the purpose of pension. 3. The service particulars of the petitioner show the following:- He retired from service on superannuation as L.P.S.A (Arabic) from Puleeppi Mappila L.P. School, P.O. Kannadiparamba, Kannur District on 30/04/2003. By reckoning his total qualifying service as 25 years 9 months and 14 days, he was granted pensionary benefits rounding to 26 years. The petitioner entered regular service as L.P.S.A (Arabic) in Athayakkunnu Mappila L.P.S on 24/07/1969 and worked upto 20/10/1974 and then, from 21/10/1974 to 29/01/1976 he was in Puleeppi Mappila L.P.School and was retrenched for want of vacancy consequent on reduction of staff strength. Even though he was W.P.(C). No.28108/2006 -:2:- granted benefit of protection, it was cancelled on 29/04/1976. Thereafter, he rejoined duty on 30/07/1984 in the same school and continued till the date of retirement. 4. The issue that is raised herein is the non- reckoning of the period of service from 30/04/1976 to 29/07/1984 for the purpose of pension under the provisions of Part III K.S.R. 5. The contentions of the petitioner are mainly that going by Rule 3 of Chapter XXVII B of K.E.R all the provisions of Part III K.S.R. are made applicable to aided school service. Rule 31 Part III K.S.R allows interruptions in service to be counted for pension. It is further pointed out that Government Decision No.8 under Rule 14E of Part III K.S.R allows reckoning of the period if break occurred is due to reduction of staff strength. It is in these circumstances, the petitioner contends for the position that the rejection of claim by the Government, as per Ext.P2, cannot be justified. 6. The third respondent has filed a counter affidavit in the matter wherein, it is stated in W.P.(C). No.28108/2006 -:3:- paragraph (3) that the petitioner was thrown out from service on 14/07/1975 due to reduction in staff strength as per Staff Fixation Order for the year 1975- 76. He was not eligible for protection as per the standing Government Order in force for that year. He rejoined duty on 30/07/1984 in Puleeppi Mappila L.P.School. 7. Therefore, the sole question is whether the view taken in Ext.P2 is correct. The relevant Rules are Rule 3 of Chapter XXVII B of K.E.R., Rule 31 of Part III K.S.R and Government Decision No.8 under Rule 14E of Part III K.S.R. which are extracted below:- Rule 3 of Chapter XXVII B of K.E.R. ` The rules on retirement benefits including family pension and death-cum- retirement benefits and all the conditions for the grant of these benefit applicable to Government Servants as laid down in Part III, Kerala Service Rules as amended from time to time shall mutatis-mutandis apply to the teachers governed by the rules in this Chapter. W.P.(C). No.28108/2006 -:4:- Rule 31 of Part III K.S.R Interruptions.- Interruptions in the service of an employee will count for pension provided it is not specifically laid down in these rules or otherwise ordered by competent authority and recorded accordingly in the Service Book. Government Decision No.8 under Rule 14E of Part III K.S.R. 8. (i) The benefit of counting periods of break as per Note 3 below Rule 31, Part III, Kerala Service Rules will be allowed in cases where the appointment before the break was not provisional or for limited period and the break was due to reduction of staff strength of the institution. (ii) In cases not covered by (i) above the actual period of service excluding the periods of break will be reckoned for qualifying service. (iii) In cases covered by (i) above the certificate that termination of appointment W.P.(C). No.28108/2006 -:5:- was due to reduction of staff strength of the institution should be countersigned by the pension sanctioning authority, or Head of the Departments. 8. Evidently, the Rules under Part III K.S.R will squarely apply to Aided School Teachers in the light of Rule 3 of Chapter XXVII B of K.E.R. It is specified therein that all the Rules on retirement benefits including family pension and death-cum-retirement benefits and all the conditions for the grant of these benefit applicable to Government Servants as laid down in Part III, Kerala Service Rules will apply to the teachers governed by the rules as amended from time to time. Therefore, there cannot be any doubt that if the conditions provided under Rules 14E and 31 Part III K.S.R and the Government Decision under the Rules apply to the facts of the petitioner then he is entitled for the benefit. 9. The learned Government Pleader submitted that in the light of the Government Decision No.2 under Rule 14E Part III, K.S.R., the petitioner is not entitled for the benefit. But the same was deleted as per W.P.(C). No.28108/2006 -:6:- G.O.(P).No.649/85/Fin, dated 22/8/1985 with effect from 17/07/1984. Evidently, Government Decision No.8 was introduced with effect from 17/07/1984. In the light of the Government Decision No.8, it has to be found out whether the break in service occurred was due to reduction of staff strength in the school. The said aspect is clear from the averments of the petitioner as well as the averments from the counter affidavit filed by the Assistant Educational Officer. The third respondent-Assistant Educational Officer in paragraph (3) of the counter affidavit has stated that the petitioner was thrown out from service on 14/07/1975 due to reduction in the staff strength as per Staff Fixation Order for the year 1975-76. Therefore, the conditions provided under Government Decision No.8 squarely are attracted to the case of the petitioner. Then what remains is to find out whether Rule 31 Part III K.S.R will apply or not, wherein the interruption of service will have to be counted for pension. The provisions of Note 3 alone is retained after the amendments. Note 3 provides as follows:- W.P.(C). No.28108/2006 -:7:- Note 3.- In cases where the period of an interruption in service exceeds one year, the benefit of reckoning the period of such interruption in service shall be restricted to the periods he was actually in service prior to the date of the interruption. 10. Evidently, the main body of Rule 31 Part III K.S.R will apply in the light of the fact that there is no prohibition under the Rules not to count the interrupted service of an employee. As far as the case of the petitioner is concerned, there was no order contrary during the period of his service also. 11. In that view of the matter, there cannot be any doubt that the Government Decision No.8 under Rule 14E Part III K.S.R along with Rule 31 of Part III K.S.R will apply to the case of the petitioner. If that is so, the view taken by the Government in Ext.P2 cannot be supported. What is mentioned therein is that period during which he was remaining outside without protection cannot be reckoned. There is no such specification in Rule 14E and the Government Decision No.8. Therefore, Ext.P2 is quashed. Necessary action W.P.(C). No.28108/2006 -:8:- will be taken by the Assistant Educational Officer to pass appropriate orders on his request for reckoning the period from 30/04/1976 to 29/07/1984 as qualifying service for pension and revised orders will be passed. Appropriate action will be taken to reckon the period of service prior to the break in service (claimed as 6 years 9 months and 6 days) after verifying the particulars. The order will be passed within a period of two months from the date of receipt of a copy of this Judgment. After the order is passed, appropriate sanction will be obtained for revising the terminal benefits and arrears will also be disbursed accordingly without delay. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms