IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WA.No. 207 of 2006(A) --------------------- AGINST JUDGMENT DATED 19.8.2005 IN OP NO.18636/1998 APPELLANT(S): RESPONDENTS: -------------------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY THE MANAGING DIRECTOR, THIRUVANANTHAPURAM. BY ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC RESPONDENT(S): PETITIONER: -------------------------- M.A. ABOOBACKER, S/O. HYDROSE, MEPPALLI HOUSE, PUDUVASSERY, NEDUMBASSERY P.O., ERNAKULAM DISTRICT. ADV. SRI.K.S.AJAYAGOSH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- W.A.No.207 of 2006 -------------------------------------- Dated this the 20th day of November, 2008. JUDGMENT Koshy, J. Respondent in this case was selected by the Kerala Public Service Commission (for short, 'the PSC') for recruitment to the post of driver in the appellant Kerala State Road Transport Corporation (for short, 'K.S.R.T.C.). He was initially appointed as a reserve driver on 28.5.1973 on daily wage basis and was regularised with effect from 7.5.1976 and he retired from service on 28.2.1990. He approached this Court for counting the provisional service from 28.5.1973 to 6.5.1976 the period in which he continued in service as a temporary driver, for seniority and also for getting leave period as qualifying service. Learned Single Judge allowed both the prayers and directed to dispose of the matter in accordance with a Division Bench judgment of this Court in W.A.No.1066 of 2003. At the time of admission of appeal it was admitted that the question of counting of leave period is accepted and the only question left for consideration in Writ Appeal is to decide whether the provisional service from 28.5.1973 to 6.5.1976 can be counted for service/pensionary benefits. It is not disputed that there is no regulation or rule in the K.S.R.T.C. during the relevant time for regulating the pension. There was a conciliation settlement regarding WA No.207/2006 2 pension. In the absence of rules, K.S.R.T.C. was also adopting the Government Rules. Ext.P3 is one of such rules issued on 20.11.1989 wherein the Government Order stated as follows:- “Accordingly, after considering the various aspects of the matter, Government are pleased to order that the provisional service of an employee, with or without break will be reckoned for Qualifying Service for pensionary benefits. This order will take effect from the date of this order. Cases already settled otherwise will not be re-opened.” The above order was modified in the year 1994 only. Since the petitioner retired from service when Ext.P3 is in force, he is entitled to count the provisional service also for the purpose of calculating qualifying service for pension. We further note that as per the conciliation settlement entered, employees of the K.S.R.T.C. were entitled to count the period of their service prior to regular appointment as qualifying service if such service is before 1.10.1994. This matter was also noticed and considered by a Division Bench of this Court (to which one of us (J.B.Koshy, J.) was a party) in Idicula Abraham v. K.S.R.T.C. & Others (2005(2) KLJ 602). Respondent was selected by the PSC, entered into service though on temporary basis and was working till he was regularised. WA No.207/2006 3 His provisional service was also after selection by P.S.C. On the basis of Ext.P3 Government Order, conciliation settlement and for the reasons stated in the Division Bench judgment in W.A.No.1066 of 2003 and in Idicula's case (supra), he is entitled to count the provisional service rendered prior to 1.10.1994 as qualifying service for the purpose of pensionary benefits. Hence we see no reason to interfere with judgment under appeal. Writ Appeal is dismissed. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks