IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 SA.No. 502 of 1999(B) --------------------- AS.48/1993 of DISTRICT & SESSIONS COURT,KOZHIKODE OS.382/1989 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S)/RESPONDENTS/PLAINTIFFS: -------------- 1. STATE OF KERALA REP. BY CHIEF SECRETARY TO THE GOVERNMENTOF KERALA. 2. THE DIRECTOR OF EMPLOYMENT, TRIVANDRUM. 3. THE DIVISIONAL EMPLOYMENT OFFICER, KOZHIKODE. BY GOVERNMENT PLEADER SRI. RAVIKRISHNAN RESPONDENT(S)/APPELLANTS/PLAINTIFFS: --------------- 1. K. KRISHNANKUTTY NAIR (DIED), MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 2. M. KAMALAKSHI AMMA, W/O. LATE K. K. KRISHNANKUTTY NAIR MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 3. M. VELAYUDHAN, S/O. LATE K. K. KRISHNANKUTTY NAIR MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. *4. C. SREEDHARAN, S/O. LATE K. K. KRISHNANKUTTY NAIR ( * DIED) MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 5. C. RAMAKRISHNAN, S/O. LATE K. K. KRISHNANKUTTY NAIR MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 6. C. CHANDRAMATHY, D/O.LATE K. K. KRISHNANKUTTY NAIR MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 7. M.N. SWARNA KUMARI, D/O.LATE K. K. KRISHNANKUTTY NAIR MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 8. M.N. PADMAVATHY, D/O. LATE K. KRISHNANKUTTY NAIR, MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 9. M.N. PREMACHANDRAN, S/O. LATE K. KRISHNANKUTTY NAIR, MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 10. M. SOBHANA, D/O. LATE K. KRISHNANKUTTY NAIR, MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. 11. M. SYAMALA, D/O. LATE K. KRISHNANKUTTY NAIR, MANGOLI NILAM HOUSE, PANTHEERANKAVU AMSOM AND DESOM, KOZHIKODE TALUK. R2 IS RECORDED AS THE LR OF DECEASED R4 AS PER ORDER DTD 29.10.2009 AS PER MEMO DTD 29.7.2009 C.F. 4449/09 ADV. SRI.K.P.BALASUBRAMANYAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. ........................................... S.A.NO.502 OF 1999 ............................................. Dated this the 10th day of August, 2011. JUDGMENT This appeal is by the State against the decree granted by the lower appellate court in O.S.No.382/1989 before the Sub Court, Kozhikode. 2. The suit was one for money. The plaintiff was admittedly an employee under the Central Government who after the State re-organisation Act was transferred to the State Government service. According to the plaintiff, as per the terms of the State Re-organisation Act, the employees similarly placed have allowed to exercise their option, either to come over to Kerala Service rules or to be continued to be governed by the rules by which they were governed on 31.10.1956. The plaintiff had not submitted option to come over to Kerala Service Rules. So he was entitled to continue in service till he attains the age of 58 and that he could not have been asked to retire at the age of 55 years. His grievance is that he is made to retire at the age of 55 S.A.NO.502 OF 1999 : 2 : though he is entitled to continue till the age of 58 years. Therefore, he made a claim for salary for a period of 3years from 30.4.1980 and the consequential increase in other emolument and pension. 3. The suit was resisted by the defendants. They pointed that the plaintiff had exercised the necessary option and the change over to the Kerala Service Rules is automatic and therefore the plaintiff became a State Government Employee and had to retire at the age of 55 years. It is also contended that the plaintiff had been transferred to State Government service at his choice due to the State Re-organisation Act and so his allegation that he could have continued up to 58 years is totally unfounded and baseless. He was given all pensionary benefits under the Government of Kerala. The claim for salary beyond the retirement of the plaintiff is not maintainable since he was not in service through under the State Government. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of testimony of PW1 and S.A.NO.502 OF 1999 : 3 : the documents marked as Extgs.A1 to A4 from his side. The defendants examined as DW1. The trial court accepted the plea of the State Government and dismissed the suit. The plaintiff carried the matter in appeal as A.S.No.48/1993 before the District Court, Kozhikode. The District Court found that there was no option exercised by the plaintiff to come over to the State service nor had the State obtained any permission from the Central Government Act which is required under the relevant law and therefore the plaintiff was entitled to continue in service until he attains the age of 58 years. Holding so the judgment and decree were reversed and the suit was decreed. 5. Notice is seen issued on the following questions of law. 1. Is the suit maintainable in the light of judgments in O.P.Nos.1353/80 and 6354/85 and W.A.No.363/86? 2. In the light of memorandum dated 11.5.1957 of the Central Government whether permission for each case under the provisions of proviso to Section 115(7) of State Re-organisation Act is necessary? S.A.NO.502 OF 1999 : 4 : 3. Is not the deceased plaintiff estopped from claiming benefits under the central rules after receiving the benefits of State Service Rules? 6. The learned Government Pleader pointed out that the change over to the State Government service is automatic and having received all the retirement benefits when he retired at the age of 55 he cannot be heard to say that he is entitled to continue up to 58 years of age. According to the learned Government Pleader, the lower appellate court was not justified in coming to the conclusion that he can continue in service at the age of 58 years since he has not exercised option. Accordingly it is pointed out that the judgment and decree of the lower appellate court are unsustainable in law. 7. The learned counsel for the respondents on the other hand pointed out that the the lower appellate court has taken note of the law and the precedents on the point. It has come to the conclusion that the plaintiff is entitled to continue in service at the age of 58 as there was no evidence that he has exercised the option to come over to the State S.A.NO.502 OF 1999 : 5 : service or that there was no evidence to show that required sanction has been obtained from the Central Government. Accordingly, it is contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court. 8. After having heard the learned counsel on both sides and having perused the records, it is felt that the learned counsel for the respondents is well justified in his submissions. 9. When the grievance of the plaintiff was not being attended to by the State, the plaintiff approached this Court by filing O.P.No.1353/1980 which was disposed of by this Court by judgment dated 23.3.1983. The contention of the State there was that the petitioner therein who was the plaintiff in the suit had opted to change over from the non- contributory family pension scheme under Rule 80 of Part III of Kerala Service Rules to the contributory Family Pension Scheme under Rule 90 of Part III of Kerala Service Rules. That, the State Government contended is an indication of the fact that the plaintiff has opted to come S.A.NO.502 OF 1999 : 6 : over to the State service rules. Unfortunately that contention was repelled by this Court while disposing of the original petition and the court has come to the conclusion that the plaintiff had not exercised his option to be governed by the Kerala Service Rules. 10. DW1 on behalf of the State has clearly stated that there is nothing to show that the plaintiff in the suit has opted to be governed by the Kerala Service Rules and he also had admitted that there is nothing on record to show that permission of the Central Government has taken as required under the relevant law. The lower appellate court has considered the principles laid down in Paiaralal v. State of Punjab (1997 (6) SCC 771) and also the principles laid down in the decision reported in Gurcharan Das Vaid v. State of Punjab (AIR 1972 SC 1640). The lower appellate court has come to the conclusion going by the proviso to Section 115(7) of the State Re-organisation Act, 1956 that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) or sub section (2) shall not be S.A.NO.502 OF 1999 : 7 : varied to his disadvantage except with the previous approval of the Central Government. As already noticed that the State Government has no case that such an approval has been obtained and the claim of the State Government that he should deem to have opted by virtue of the provisions under the non contributory family scheme was repelled by this court. There is nothing to show that the lower appellate court is erred in coming to the conclusion that the plaintiff is entitled to continue in service till he attains the age of 58 years. There is no merit in this appeal and it is liable to be dismissed. I do so. There is no order as to costs. Sd/= P. BHAVADASAN, JUDGE. cl S.A.NO.502 OF 1999 : 8 : P. BHAVADASAN, J. ........................................... S.A.NO.502 OF 1999 ............................................. 10th day of August, 2011. JUDGMENT