IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 OP.No. 24121 of 2002(V) ----------------------- PETITIONER(S): --------------- 1. M.KUNHIKANARAN, RTD.SANSKRIT TEACHER, E.V.U.P.SCHOOL, TUNERI, KOZHIKODE DISTRICT, RESIDING AT MOYANKOTTU HOUSE, NARIPPATTA (VIA)KALLACHI, KOZHIKODE DISTRICT. 2. K.P.JANU, TRD., SANSKRIT TEACHER, KACHERI U.P.SCHOOL NADAPURAM, RESIDING AT USHUS, KOTENCHERRY, VIA.PURAMERI, KOZHIKODE DISTRICT. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL SMT.K.V.RESHMI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATION DEPARTMENT, SECRETRIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. ASST.EDUCATIONAL OFFICER, NADAPURAM, KOZHIKODE DISTRICT. 4. THE ACCOUNTANT GENERAL (A &E), KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. K.R. DEEPA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO.24121/2002. ----------------------------------------------------------------- EXT.P1 TRUE COPY OF GOVT. OPRDER DT. 2-6-1989. EXT.P2 ORDER DT. 22-8-1989. EXT.P3 GOVT. ORDER DT. 15-3-1995. EXT.P4 COMMUTATION PAYMENT ORDER DT. 12-6-2001. EXT.P5 LETTER DT. 20-1-2002. EXT.P6 REPORT DT. 3-8-2001. EXT.P7 REPRESENTATION DT. 5-12-2001. EXT.P8 LETTER DT. 17-7-2002. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 24121 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 8th January, 2009. J U D G M E N T The petitioners are retired Sanskrit Teachers in an aided U.P. School. The 1st petitioner was appointed as a part-time Sanskrit Teacher on 3-8-1970. He possessed only SSLC with Sanskrit as one of the languages. At that time, the qualification prescribed for appointment of Sanskrit Teacher was SSLC with TTC in Sanskrit. Therefore, the 1st petitioner's appointment was approved as under- qualified. With effect from 15-7-1975, the post of part-time Sanskrit Teacher held by the 1st petitioner was converted into full time and petitioner's appointment as full-time Sanskrit Teacher was approved as under-qualified with effect from 15-7-1975. While so, the Government issued Ext. P1 Government Order, whereby the teachers who were allowed to continue as under-qualified Sanskrit Teachers were given permanent exemption from attending inservice course for the purpose of obtaining qualifications and that their services were directed to be regularised from their date of appointment. Accordingly, by Ext. P2 order, the 1st petitioner's appointment was approved as full-time Sanskrit Teacher with effect from 1-6-1989 onwards. The 1st petitioner subsequently retired from service on 31-3- 2001. However, for the purpose of computation of retirement benefits his service with effect from 1-6-1989 alone was reckoned as qualifying service. The period of service between 3-8-1970 and 31-5- 1989 was excluded for the purpose of computing retirement benefits. 2. The 2nd the petitioner was appointed as a part-time Sanskrit Teacher on 21-6-1971. Her appointment was also approved only as under-qualified. The post was converted as full-time Sanskrit Teacher with effect from 21-8-1978. Subsequently, the 2nd petitioner passed TTC in Sanskrit also in March, 1981. She retired from service on 3-8-1970. In her case, her service from March, 1981 onwards only O.P. No. 24121/2002 -: 2 :- was reckoned as qualifying service for the purpose of computation of pension. The period from 21-6-1971 till February, 1981 was excluded for the computation of her retirement benefits. It is under the above circumstances, the petitioners have approached this Court for the following reliefs: “i) Issue a writ of certiorari quashing/setting aside Ext. P5. ii) a writ of mandamus to the respondents to revise, refix and disburse all pensionary benefits to the petitioners, by reckoning 50% of the part-time service and entire full time service as qualifying service for pension. iii) a writ of mandamus to the respondents to sanction and disburse the arrears of terminal benefits, with interest.” 3. According to the petitioners, 50% of the part-time service is reckonable for the purpose of computation of pension, which has been recognised in Ext. P3 Government Order. Further, the question as to whether unqualified service is reckonable for retirement benefits as qualifying service has been considered by a Division Bench of this Court in State of Kerala and another v. M. Mohammed Haneefa, ILR 2005 (4) Kerala 382, wherein the Division Bench held that under-qualified service, if duly approved should also be computed for the purpose of pensionary benefits. 4. Learned Government Pleader opposes the prayers in the original petition. She points out that as far as the 1st petitioner is concerned, as is clear from Ext. P2, the manager had issued orders appointing the 1st the petitioner as full-time Sanskrit Teacher only from 1-6-1989 onwards, which only has been approved and therefore the 1st petitioner is entitled to get his service reckoned as qualifying service only with effect from 1-6-1989. She further points out that earlier, as per the Government Orders on the subject, under-qualified service was reckonable for pension only till 31-3-1967 and only by O.P. No. 24121/2002 -: 3 :- Ext. P1 order, the under-qualified teachers were directed to be regularised in service from the date of appointment. 5. I have considered the rival contentions in detail. 6. I do not find any merit in the contention of the learned Government Pleader in respect of the 1st petitioner. It is true that in Ext. P2 order, it is mentioned that the 1st petitioner was appointed by the manager as a full-time Sanskrit Teacher from 1-6-1989 onwards. But, it is not disputed before me that even prior to 1-6-1989 also, the 1st petitioner was actually appointed as Sanskrit Teacher and such appointment had also been approved although as underqualified. The entire under-qualified service of the 1st petitioner from 3-8-1970 to 31- 5-1989 was duly approved by the educational authorities. By Ext. P2 order, the 1st petitioner was approved as fully qualified Sanskrit Teacher from 1-6-1989 onwards. But, in Ext. P1, the Government had directed regularisation of such teachers from the date of appointment. In fact, even that aspect has no relevance in view of the Division Bench decision in M. Mohammed Haneefa's case (supra). In that case, the facts were exactly identical. Sri. Mohammed Haneefa, the petitioner in that case, was appointed on 8-8-1973 on which date he did not have the training qualification prescribed for appointment. Therefore, on the close of every academic year, he was relieved and reappointed again on the commencement of the following academic year until 14-7-1976 when he was deputed for B.Ed. Course which he completed on 31-3-1977. Thereafter, he was regularly appointed, as having passed B.Ed. Degree on 15-7-1977. He retired from service on 31-3-1999. While reckoning the qualifying service for the purpose of his retirement benefits including pension, the service put in by him until 15-7-1977 was excluded. The Division Bench held it to be incorrect in view of the provisions of Chapter XXVII-B of the Kerala O.P. No. 24121/2002 -: 4 :- Education Rules read with the provisions of the KSR as detailed in the judgment. In this case also, the under-qualified service of both petitioners were duly approved by the educational authorities and therefore they had approved service with effect from their date of appointment. That being so, their appointment from the original date of appointment itself has to be considered as regular service. By virtue of the decision in Mohammed Haneefa's case, such under- qualified service are also liable to be reckoned for the purpose of computation of retirement benefits. The 50% of the part-time service and the entire full-time service, though under-qualified, of the petitioners are also liable to be reckoned for the purpose of retirement benefits. In the above circumstances, the respondents are directed to pass revised orders re-computing retirement benefits of the petitioners in accordance with the above findings. Orders shall be passed and arrears of retirement benefits disbursed to the petitioners, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The original petition is allowed as above. S. Siri Jagan, Judge. Tds/