IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 WP(C).No. 1063 of 2006(B) -------------------------------------- PETITIONER(S): ----------------------- K. SARASWATHY DEVI, AGED 56 YEARS, W/O. SETHUMADHAVAN, KUNNATHERI HOUSE, KUTTUMOKKU, CHEROOR, RAMAVARMAPURAM (PO), TRICHUR. BY ADV. MR.U.BALAGANGADHARAN RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. THE HIGH SCHOOL, MUNDUR, REPRESENTED BY ITS MANAGER, P.O. MUNDUR, PALAKKAD DIST. 5. THE PRINCIPAL, GOVT. VICTORIA GIRLS H.S. SCHOOL, CHITTUR. 6. THE ACCOUNTANT GENERAL, TRIVANDRUM. R1 TO R3 & R6 BY GOVERNMENT PLEADER MR.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1063/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER DTD. 24.5.1982 ISSUED BY THE HEAD MASTER TO THE PETITIONER. P2:- COPY OF THE LETTER DTD. 2.4.1982 ISSUED BY THE HEAD MASTER TO THE PETITIONER. P3:- COPY OF THE GO(MS) 81/80/G.EDN. DTD. 17.6.80 ISSUED BY THE DEPARTMENT OF GENERAL EDUCATION (D). P4:- COPY OF THE REPRESENTATION DTD. 24.4.1988 SUBMITTED BY THE PETITIONER. P5:- COPY OF THE MEMORANDUM OF VERIFICATION OF SERVICE OF THE PETITIONER. P6:- COPY OF THE LETTER DTD. 25.11.05 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 1063 of 2006-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2009. JUDGMENT The petitioner retired from service as H.S.A. from Govt. High School, Chittoor on 31.5.2005 on attaining superannuation. For non payment of pension and other terminal benefits, this writ petition has been filed. 2. There are two objections as regards the petitioner which resulted in the present predicament. One is regarding the non reckoning of the aided school service and the other is regarding non reckoning of the period during which the petitioner underwent the Language Teachers Training Course (Malayalam). 3. The petitioner commenced her service as a P.D. Teacher with effect from 21,8,1978 to 31.3.1979 against a leave vacancy. She was again appointed against a regular vacancy on 6.6.1979. These appointments have been approved also. Subsequently, the petitioner was appointed through Public Service Commission and accordingly she joined service on 26.2.1982 in the Government School after resigning from the school of the 4th respondent. 4. It appears that the aided school service and the training period wpc 1063/2006 2 were reckoned for the purpose of higher grade and the benefits were thus disbursed to the petitioner. But when the pension papers were finalised, an objection was raised as per Ext.P6. 5. The contentions of the petitioner are two fold: That the aided school service is liable to be reckoned under Rule 14E of Part III K.S.R. which provides that aided school service put in by Government employees prior to entry in Government service qualifies for pension. Going by Government Decision No.3, any break between the aided school service and the Government service should not exceed the joining time admissible under the service rules plus public holidays. Herein, admittedly the break in service is more than the said period. Learned counsel for the petitioner submits that in the light of G.O. (Ms) No.215/83/G.Edn. dated 13.12.1983, specific orders of Government is necessary for condonation of break where the period of break exceeds the admissible joining time plus public holidays. It is therefore submitted that the delay in the matter is liable to be condoned. 6. The first respondent has filed a counter affidavit in the matter. In para 3 of the counter affidavit it is pointed out that in the light of the interim order passed by this Court in I.A. No.2048/2006, the third respondent has submitted the pension proposal on 15.3.2006 to the Accountant General (A wpc 1063/2006 3 & E), Thiruvananthapuram excluding the pre-resignation service and leave without allowance period on private affairs, i.e. 6.6.1979 to 30.6.1981 and 1.7.1988 to 22.8.1988 respectively. Her pensionary benefits are sanctioned by the Accountant General as per letter dated 4.4.2006 wherein the pre- resignation period is not reckoned as qualifying service. It is the contention of the first respondent that the petitioner had undergone the L.T.T. Training (Malayalam) with effect from 1.7.1981 to 25.2.1982 at her own ill and there is no evidence to show that she was selected on departmental quota. 7. In the light of the above averments contained in the counter affidavit, learned counsel for the petitioner submitted that the petitioner may be given an opportunity to move the Government with an appropriate representation, as according the learned counsel, Ext.P8 and other relevant Govt. Orders will enable the petitioner to count the aided school service and the training period for the purpose of sanctioning pension. In that view of the matter, I am not entering any finding on the merits of the matter. Going by Ext.P6, in the light of the objections now raised, the pensionary benefits will be disbursed to the petitioner only after regularising the period and refund of the amount paid towards higher grade benefits. It is the case of the petitioner that it will work out hardship to the petitioner at this stage if the petitioner is called upon to refund the higher grade benefits which wpc 1063/2006 4 were allowed from time to time. Learned counsel for the petitioner relied upon various decisions of the Supreme Court to contend that the direction to refund the benefits already disbursed, after retirement, cannot be justified. Regarding this aspect also, the petitioner will be allowed to take up the matter with the Government. 8. Therefore, if the petitioner files an appropriate representation within one month, the same will be considered after hearing the petitioner and appropriate orders will be passed in accordance with law, within a period of five months thereafter. In the meanwhile, the petitioner will not be asked to refund any amount. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/