IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 29114 of 2006(N) -------------------------- PETITIONER(S): --------------------- K.K. SUGATHAN (RETD. HEADMASTER, S.N.M. HIGH SCHOOL, CHAZHUR), THRISSUR, KARIPPARA HOUSE, P.O. KIZHAKKUMURI,PERINGOTTUKARA, TRICHUR DIST., PIN-680 571. BY ADV. SRI.P.NARAYANAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (A) DEPARTMENT,GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, TRICHUR-3. 4. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, TRICHUR-20. 5. ACCOUNTANT GENERAL (A & E), THIRUVANANTHAPURAM. R1 TO 5 BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3.11.2011 , THE COURT ON 03/11/2011 DELIVERED THE FOLLOWING: VK WP(C).No. 29114 of 2006(N) -------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF DEGREE CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 25.11.1965 CONFERRING B.A. DEGREE TO THE PETITIONER. EXT.P2. COPY OF SERVICE DATA OF THE PETITIONER EXT.P3. COPY OF REPRESENTATION PREFERRED BY THE PETITIONER N 6.7.1979 EXT.P4. COPY OF GOVT. CIRCULAR NO.20887/J2/78/G.EDN. DATED 15.9.1988. XT.P5. COPY OF LETTER ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT AND COPY FORWARDED TO THE PETITIONER VIDE LETTER NO.62190/B2/89/GE. DT. 29.9.1989. EXT.P6. COPY OF LETTER BEARING NO.F3-39156/88 DATED 25.1.1990 ISSUED BY THE 3RD RESPONDENT TO THE DY. SECRETARY TO THE 1ST RESPONDENT. EXT.P7. COPY of the LETTER ISSUED BY THE 3RD RESPONDENT BEARING NO.D3/30075/93 DATED 17.01.2004 TO THE 1ST RESPONDENT. EXT.P8. COPY OF GOVT. ORDER NO.G.O. (RT) 3825/69/EDN. DATED 6.11.1969. EXT.P9. COPY OF ORDER NO.43121/A1/94 EDN. DT. 14.12.1994 EXT.P10. COPY OF REJECTION REVISION BY THE 1ST RESPONDENT AGAINST THE REVIEW PETITION FILED BY THE PETITIONER DT. 12.10.1995. EXT.P11. COPY OF REPRESENTATION FINALLY PREFERRED BY THE PETITIONER BEFORE THE MINISTER FOR EDUCATION DT. 27.9.98. EXT.P12. COPY OF JUDGMENT DT. 14.11.2005 IN O.P. 30966/99 OF THIS HON'BLE COURT. EXT.P13. COPY OF GOVT. ORDER NO.G.O. (RT) NO.3509/06/G.EDN. DT. 10.8.2006. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK S.SIRI JAGAN.J ----------------------------------- WP(C)NO. 29114 OF 2006 ----------------------------------- Dated this the 3rd day of November, 2011 J U D G M E N T The petitioner is a retired headmaster of an aided school. He originally entered service as a Middle School Assistant with effect from 9-6-1953 in a leave vacancy. He was relieved and re-appointed in the same school for various spells. Subsequently, he was appointed on permanent basis. He availed of leave for undergoing higher studies, and when he sought for extension of leave to pursue the studies, the same was denied, consequent to which the petitioner was forced to resign from service with effect from 25-6- 1964. After acquiring B.A and B.Ed. degree, he got re-appointment in the same school as High School Assistant and joined duty on 3-1- 1968. After retirement, the petitioner sought condonation of break in service between 26-6-1964 to 2-1-1968. and reckoning of his pre-resignation service also for the purpose of retirement benefits. According to the petitioner, such condonation of break and reckoning of pre-resignation service are allowed by Ext. P4 Government Circular . Since, although by Exts.P4, P6 & P7 the third respondent recommended to the Government sanctioning of the petitioner's claim in the light of Ext. P4, the same was not granted . The petitioner filed O.P.No.30966/99, in which, by Ext.P12 judgment, this Court directed the respondent to consider the claim of the petitioner in the light of Ext.P4 Circular and Exts.P6 and P7 recommendations of the third respondent . But the Government, by Ext. P13, order rejected the claim on the ground that “as per Rule 29(b) of Part III of Kerala Service Rules, resignation of an appointment to take up another appointment, the service in which counts, is not resignation from public service, if the break between the two appointments does not exceed the joining time admissible under the service rules.” According to the Government, since the break in service exceeds the joining time admissible, the petitioner is not entitled to count the pre-resignation service as qualifying service for the purpose of retirement benefits. The petitioner submits that Ext. P13 is unsustainable in view of Ext.P4 Government Circular on the same subject. Counsel for the petitioner points out that in Ext. P12 judgment, the Government has been directed to consider the claim of the petitioner in the light of Exts.P4, P6 & P7, and no such consideration is apparent on the face of Ext. P13. The petitioner therefore seeks the following reliefs: “i. Call for the records connected with the issuance of Ext.P13 and quash the original of the same by the issuance of writ of certiorari or to set aside the same by appropriate proceedings: ii. issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondent authorities to reconsider the claim of the petitioner to condone the interrupted break in service of the petitioner in the light of Exts. P4, P6, P7 and P8 and to reckon the pre-resignation period of his service of 10 years 11 months and 4 days to revise and refix the pension of the petitioner and to disburse all the consequential benefits to him with retrospective effect from 31.5.1988 and to direct the 5th respondent to revise and re-fix the pension of the petitioner with retrospective effect of it's entitlement; iii. issue appropriate writ order or direction declaring that the petitioner is entitled to be reconsidered his claim for reckoning the qualified service period prior to his resignation for entitlement to revision and refixation of his pension in the light of Exts. P4, P6, P7 and P8 and to direct the concerned respondents to disburse the monetary benefits flow from it with retrospective effect to the petitioner forthwith; iv. issue another writ or mandamus directing the 1st respondent to reconsider the claim of the petitioner in the light of Ext.P4 untrammeled by Ext.P13 and to grant the petitioner the service benefit of his pre- resignation period of 10 years 11 months and 4 days so as to reckon for revision and refixation of pension of the petitioner with retrospective effect; v. issue another writ of mandamus or any other writ, or appropriate direction, directing the respondents to take immediate necessary effective favourable steps to grant the petitioner his service benefit of his pre- resignation period of 10 years 11 months and 4 days in the light of Ext.P4 so as to revise and refix his pension with retrospective effect.” 2. A counter affidavit has been filed by the first respondent supporting Ext. P13 order on the same reasons stated in Ext.P13. 3. I have considered the rival contentions in detail. 4. In Ext. P4 it is stated thus. “ The question of issuing some guidelines for condonation of break in service of aided school teachers whose pension is governed by the rules in Chapter XXVII-B Kerala Education Rule has been engaging the attention of Government. On the basis of the recommendation of the Director of Public Instruction and as advised by the Financed Department , the following guidelines are prescribed for condoning breaks for processing the pension papers of the teachers of the category mentioned above. 1. Request for condonation of breaks in service prior to 1-10- 1964 alone will be entertained. 2. The maximum period of break that will be condoned may be limited to 5 years either in a single spell or at different spells. In cases where the prior service is only for short periods, it is not advisable to condone breaks upto 5 years for the benefit of a few months or days. In cases where the break exceeds one year the break need be condoned only if the service to be reckoned is one year or more. 3. The cases in which condonation is granted will be for the purpose of pension and gratuity. 4. The period of breaks for which there is no entry in the service book regarding its reason, will also be treated as resignation and these can also be considered for condonation. All the sections of General Education Department are requested to follow the above guidelines while considering cases of condonation of breaks in service of XIV-C opted teachers for the purpose of sanction of pension.” 5. It is not disputed before me that as per Ext. P4 Circular ,the petitioner is entitled to have break in service for the period between 26-6-1964 and 3-1-1968 condoned and the pre-resignation service counted for the purpose of retirement benefits. It is after considering Rule 29(b) referred to in Ext. P13 order that Ext. P4 Government Circular has been issued. I do not find any reason for the Government to deny the benefits of Ext. P4 Government circular to the petitioner alone when others similarly situated have been given the same benefit. 6. Accordingly, Ext. P13 is quashed . It is declared that the petitioner is entitled to the benefit of Ext. P4 . Consequently the petitioner is entitled to have his service prior to 26-6-1964 also reckoned as qualifying service for the purpose of retirement benefits. Orders granting arrears of retirement benefits taking into account the pre-resignation of the petitioner also as qualifying service shall be passed and arrears of retirement benefits paid to the petitioner as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S.Siri Jagan, Judge, MM