IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 20419 of 2006(E) -------------------------------------- PETITIONER: ------------------ V.M. ULAHANNAN, ASSISTANT EXECUTIVE ENGINEER (RETD.) (AGRICULTURAL (SOIL) CONSERVATION DEPARTMENT, TRIVANDRUM.) VADALEDATH HOUSE, MATTAKKARA P.O., KOTTAYAM-686 564. BY ADV. SRI.P.K.MUHAMMED RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES (A) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL, REPRESENTED BY SECRETARY, ACCOUNTS GENERAL'S OFFICE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.MUHAMMED FAZIL.M.P. FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).20419/2006-E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT 03/01/2003. EXT.P2: COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT ADDRESSED TO THE 4TH RESPONDENT DATD 06/06/2002. EXT.P3: COPY OF THE PROCEEDINGS OF 4TH RESPONDENT ADDRESSED TO THE 3RD RESPONDENT DATED 19/09/2002. EXT.P4: COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT ADDRESSED TO THE 1ST RESPONDENT DATED 20/06/2003. EXT.P5: COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 16/02/2005. EXT.P6: COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT FIXING PENSION BENEFITS OF PETITIONER DATED 16/10/1998. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // Rs/ P.N.Ravindran, J. ============= W.P(C).No.20419 of 2006 =================== Dated this the 22nd day of July, 2008. JUDGMENT The petitioner who retired from service as Assistant Executive Engineer in the Kerala Public Works Department on 30.9.1998 has filed this Writ Petition challenging Ext.P5 and seeking a writ in the nature of mandamus commanding the respondents to reckon the service of 1 year 11 months and 20 days rendered by him in the Agriculture (Soil Conservation) Department for the purpose of computing his pensionary benefits. The brief facts of the case are as follows: 2. The petitioner was advised for appointment as Overseer in the Agriculture (Soil Conservation) Department as per memo dated 9.5.1967. He joined duty on 5.7.1967. While the petitioner was working as Overseer in the Agricultural (Soil Conservation) Department he was placed under suspension from 25.6.1969 in connection with a vigilance enquiry. While the petitioner was thus under suspension, without the permission of the Government of Kerala and without informing any of his superior officers and in violation of the provisions contained in the Kerala Government Servants' WP(C) 20419/06 -: 2 :- Application for Posts (Private Employment & Government Service) Rules, 1958, hereinafter referred to as the "Rules" for short, he applied for appointment as First Grade Overseer in the Public Works Department. The petitioner was selected and appointed as First Grade Overseer as per letter dated 16.2.1970 and he joined duty on 1.6.1970. In due course of time he was promoted to higher posts and he retired from service on 30.9.1998 as Assistant Executive Engineer. 3. After the petitioner joined duty as First Grade Overseer in the Public Works Department, orders were issued by the Director, Agriculture (Soil Conservation) Department on 28.9.1970 reinstating him in service as Overseer in the Agriculture (Soil Conservation) Department. The order of reinstatement revoking the suspension did not take effect for the reason that the petitioner was working as First Grade Overseer in the Public Works Department. Therefore, the period of suspension from 25.6.1969 to 28.9.1970 was not regularised. 4. After the petitioner retired from service, he submitted a representation dated 27.7.2000 to the Chief Engineer, Irrigation & Administration, requesting that his earlier spell of service from 5.7.1967 to 25.6.1969 (1 year, 11 months and 20 days) in the Agriculture (Soil Conservation) Department may be treated as part of WP(C) 20419/06 -: 3 :- his service counting for pensionary benefits. By Ext.P2 letter dated 6.6.2002, the Chief Engineer, Irrigation and Administration recommended to the Accountant General that the petitioner's prior service in the Agriculture (Soil Conservation) Department may be considered for pensionary benefits. By Ext.P3 letter dated 19.9.2002 the Accountant General informed the Chief Engineer that it is for the Government to take a decision in the matter. The petitioner thereupon submitted Ext.P1 representation dated 3.1.2003 wherein he sought a reconsideration of Ext.P6 by which his pensionary benefits were fixed. The Chief Engineer thereupon sent Ext.P4 letter to the Principal Secretary to Government, Water Resources Department. By Ext.P5 letter dated 16.2.2005, the Government informed the petitioner that his earlier service in the Agriculture (Soil Conservation) Department cannot be reckoned for pensionary benefits, as he joined the Public Works Department violating the Rules. In Ext.P5, the Government also noticed that the petitioner had accepted this position for 28 years and also for a further period of six years after his retirement. Ext.P5 is under challenge in this Writ Petition. 5. I have heard Sri.P.K.Muhammed, the learned counsel appearing for the petitioner and Sri.M.P. Muhammed Fazil, the learned Government Pleader for the respondents. It is evident from the WP(C) 20419/06 -: 4 :- pleadings in the case that it was without following the procedure prescribed in the Rules that the petitioner, who was employed in the Agriculture (Soil Conservation) Department applied for appointment as First Grade Overseer in the Public Works Department. At the time when the petitioner applied, was selected, advised and appointed as First Grade Overseer in the Public Works Department, he was a State Government employee placed under suspension. The petitioner did not disclose to his employer, the State Government or to his superior officers that he wants to apply for appointment to the post of First Grade Overseer in the Public Works Department. The application for appointment to the post of First Grade Overseer was not made in terms of the Rules. The petitioner was placed under suspension on 25.6.1969. He applied for the post of First Grade Overseer while under suspension. After the petitioner was appointed as First Grade Overseer in the Public Works Department, the order of suspension was revoked and he was reinstated in service by order passed on 28.9.1970. However, reinstatement could not be effected for the reason that the petitioner was not available in that Department. Therefore, the period during which the petitioner was placed under suspension (from 25.6.1969 to 28.9.1970) was not regularised. The petitioner did not also claim that his spell of service prior to his WP(C) 20419/06 -: 5 :- suspension in the Agriculture (Soil Conservation) Department from 5.7.1967 to 25.6.1969 should be taken into account for fixing his pensionary benefits. The petitioner who took advantage of the order placing him under suspension and applied for appointment to the post of First Grade Overseer in the Public Works Department without following the procedure prescribed in Rules and joined that department without disclosing the fact that he is under suspension pending vigilance enquiry, is in my opinion, not entitled to claim the benefit of his past service in the Agriculture (Soil Conservation) Department for the purpose of pension. The petitioner was not relieved from the Agricultural (Soil Conservation) Department. He did not report for duty after he was reinstated in service by order passed on 28.9.1970. The period of suspension from 25.6.1969 till 28.9.1970 was not regularised. Further without disclosing the fact that he is a government employee under suspension, he applied for the post of First Grade Overseer in the Public Works Department. Disciplinary action was taken against him on that count and he was again placed under suspension while he was in the Public Works Department during the period from 14.1.1972 to 2.6.1972. It is not disputed that the said period of suspension was regularised as eligible leave as per G.O.(MS) No.53/74.A.D. dated 5.3.1974 and that a penalty of barring of two WP(C) 20419/06 -: 6 :- increments without cumulative effect was also imposed on the petitioner. Thus, if the reliefs prayed for by the petitioner are granted, it will amount to effacing the misconduct on his part for which he was punished. The petitioner who was guilty of wrongful conduct and was found guilty is not in my opinion entitled to claim the benefit of his past service in the Agriculture (Soil Conservation) Department for the purpose of computing the pensionary benefits. The stand taken by the government in Ext.P5 cannot therefore be faulted. I therefore hold that there is no merit in this Writ Petition. The Writ Petition accordingly fails and it is dismissed. No costs. P.N.Ravindran, Judge. ess 25/7