IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 20889 of 2007(J) ---------------------------------------- PETITIONER(S): ----------------------- P.R.SUNANDAKUTTY, SELECTION GRADE LECTURER(RETD), MORNING STAR HOME SCIENCE COLLEGE, ANGAMALY, RESIDING AT KAIPPILLY MANA, KIDANGOOR P.O., ANGAMALY VIA., ERNAKULAM DISTRICT. BY ADV.MR.P.C.SASIDHARAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. 4. THE PRINCIPAL, MORNING STAR HOME SCIENCE COLLEGE, ANGAMALY, ERNAKULAM DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER MR.DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.20889/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER ISSUED BY THE GOVERNMENT DTD. 15.1.81. P2:- COPY OF THE ORDER ISSUED BY THE UNIVERSITY DTD. 11.8.82. P3:- COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION DTD. 15.6.93. P4:- COPY OF THE PENSION SANCTIONING ORDER ISSUED BY THE ACCOUNTANT GENERAL (A&E) KERALA DTD. 25.7.05. P5:- COPY OF THE LETTER ADDRESSED BY THE PRINCIPAL OF THE COLLEGE TOP THE DIRECTOR OF COLLEGIATE EDUCATION. P6:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR OF EDUCATION DTD. 6.10.05. P7:- COPY OF THE COMMUNICATION ISSUED BY THE DEPUTY DIRECTOR TO THE DIRECTOR OF COLLEGIATE EDUCATION DTD, 14.11.05. P8:- COPY OF THE LETTER ISSUED BY THE ACCOUNTANT GENERAL TO SMT.LEELAMMA JOHN DTD. 29.8.03. P9:- COPY OF THE PROCEEDINGS ISSUED BY THE ACCOUNTANT GENERAL DTD. 1.1.98. P10:- COPY OF THE PROCEEDINGS ISSUED BY THE ACCOUNTANT GENERAL DTD. 21.11.96. P11:- COPY OF THE ORDER ADMITTING PENSIONARY BENEFIT DTD. 4.6.03. P12:- COPY OF THE COMMUNICATION ADDRESSED BY THE U.G.C. TO THE PRINCIPAL OF THE COLLEGE DTD. 12.1971. P13:- COPY OF THE COMMUNICATION ADDRESSED BY THE U.G.C. TO THE PRINCIPAL OF THE COLLEGE DTD. 14.7.72. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE LETTER NO.12918/F3/07/H.EDN. DTD. 10.8.0.7. TRUE COPY P.S. TO JUDGE tss ANTONY DOMINIC,J. --------------------- W.P.(C).No.20889 OF 2007 ------------------------ Dated this the 15th day of September, 2009. JUDGMENT In 1974, petitioner was appointed as a Junior Lecturer in the Morning Star Home Science College, Angamaly, of which 4th respondent is the Principal. The College came under the Direct Payment System with effect from 1.11.1980. During her service, reckoning her service from 30.9.1974, she was also placed in the senior scale and also selection Grade. Subsequently, on attaining the age of superannuation, petitioner retired from service with effect from 31.3.2005. 2. It is stated that, on retirement, while forwarding the papers relating to the terminal benefits, college authorities reckoned the petitioner's service only from 1.11.1980, ie., the period from which the college came under the Direct Payment System. On that basis, as per WP(c).No.20889/07 2 Ext.P4, pension was sanctioned to the petitioner. It is stated that on realizing that the qualifying period of service from 30.9.1974 to 31.10.1980 has not been reckoned by mistake, the Principal took up the matter with the 2nd respondent as per Ext.P5. There was no reply to Ext.P5 and the petitioner also represented to the 3rd respondent by Ext.P6. The 3rd respondent forwarded the representation to the 2nd respondent as per Ext.P7 for appropriate action. Even thereafter response was not forthcoming and it is in this background the writ petition was filed mainly praying that the respondents should be directed to revise the terminal benefits of the petitioner reckoning her service from 30.9.1974 when she commenced service. 3. Along with the counter affidavit filed by the 2nd respondent, he has produced Ext.R2(a) communication issued by the Additional Chief Secretary to Government, to the 2nd respondent on 10.8.2007, stating that since the College did not come under the Grant-in-Aid Scheme prior to 1.11.1980, WP(c).No.20889/07 3 the period of service rendered by the petitioner from 30.9.1974 to 31.10.1980 cannot be reckoned for pensionary benefits. The first respondent has filed a counter affidavit in which also it is stated that in the case of the petitioner the service was approved by the University as per Ext.P2 only with effect from 1.11.1980. It is stated that the conferment of Senior Scale and Selection Grade reckoning the petitioner's service from 30.9.1974 was a mistake occurred due to oversight. It is also their contention that in terms of paragraph 32 of the Direct Payment Agreement, the Government shall not be liable for any claim of the teaching and non-teaching staff of the institution towards pay and allowances, Provident Fund, Gratuity or any other amount whatsoever in respect of any period prior to 1.11.1980. 4. Petitioner has filed a reply affidavit. Along with the reply affidavit, petitioner has produced Exts.P8 to P11 proceedings of the Accountant General sanctioning terminal benefits of Smt. Leelamma John, Sister Loyola C.S.N, Sister WP(c).No.20889/07 4 Sophia C.S.N and Sister Isbell CSN. It is specifically stated that in the case of these persons, who were also Lecturers in the same college, their services prior to 1.11.1980 have been counted and pensionary benefits granted on that basis. None has a case that prior to 1.11.1980, when the Direct Payment Agreement was executed, the college was not affiliated to the Kerala University. Subsequent to the introduction of Direct Payment System, the Kerala University First Statutes, 1976 in respect of pension, provident fund, gratuity, insurance and age of retirement of teachers of private colleges, was framed and published by SRO 377/1976. Statute 5(1) occurring in Chapter II of the Fist Statutes, 1976 referred to above provides that the teachers who retired at the age of 55 shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges, including family pension and DCRG and that all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part-III of the Kerala Service Rules(as WP(c).No.20889/07 5 amended from time to time) shall mutatis mutandis apply to such teachers. This position continued until 1985, when the M.G. University Act 1985 came into force. Section 99(2) of the M.G. University Act provided that notwithstanding anything contained in the Act, all Statutes and Ordinances made under the Kerala University Act, 1974 and in force on the date of the commencement of the Act shall, in so far as they are not inconsistent with the provisions of the M.G. University Act will continue to be in force until they are replaced by the Statutes and Ordinances to be made under this Act. Exercising the powers conferred under Section 99 of the M.G.University Act enabling the creation of First Statutes and Ordinances, the M.G. University First Statutes were framed in 1997. Chapter 45-B of the M.G. University First Statutes, 1997 provides the conditions of service of teachers in Private Colleges. Statute 42 providing for application of KSR provides as under. 42. Application of the Kerala Service Rules to the teachers.(1) Subject to the provisions of the Act, and the Statutes, the rules contained in WP(c).No.20889/07 6 Parts I and II of the Kerala Service Rules for the time being in force, except those mentioned below, shall, so far as may be, apply to teachers of private colleges. (2) All orders, Government decisions, rulings and notifications issued by Government with reference to any provision in Parts I and II of the Kerala Service Rules which are applicable to the teachers of private colleges, shall also so far as may be apply to them subjects to such modification as the context may require.” 5. Therefore, once the Direct Payment Agreement has been signed by the Management of the petitioner's College, they came to be covered by the aforesaid Statute framed by the Kerala University and later, the M.G University Statutes 1997. Service for the purpose of pension has to be the full qualifying service unless otherwise restricted in the University Statutes itself. There is no provision in any of the Statutes referred to above excluding the service rendered by a teacher prior to the date on which Direct Payment Agreement was signed. If that be so, there is no reason for me to hold that the service rendered by the Petitioner prior to 1.11.1980 is not liable to be reckoned for counting the qualifying service of the WP(c).No.20889/07 7 petitioner. 6. True there is a contention by the counsel for the petitioner that the period prior to 1.11.1980 is not covered by the Grant in Aid Code. Here, again unless there is any provision in the Statute excluding such service there is no reason not to reckon the same. Added to all this is the fact that similar teachers retired from the very same college of the petitioner have been granted pensionary benefits reckoning the service rendered by them prior to the signing of the Direct Payment Agreement. Nobody has a case that the same was a mistake. Of course it is the case of the respondent that conferment of senior scale and selection grade was a mistake. But, till date no steps have been taken to rectify the alleged mistake and therefore I am not in a position to accept the story of mistake, at this distance of time and to deprive the petitioner of the benefits she entitled otherwise. Accordingly, the writ petition stands allowed and the respondents are directed to revise the terminal benefits due to WP(c).No.20889/07 8 the petitioner reckoning the service from 30.9.1974 and grant her all benefits. This shall be done as expeditiously as possible and at any rate within 8 weeks from the date of production of a copy of the judgment. (ANTONY DOMINIC) JUDGE vi/