IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 OP.No. 17762 of 1999(M) ----------------------- PETITIONER: ------------ M.C.CATHERINE, (H.S.A. RETIRED), CHENNAMKARA HOUSE, PACHA CHEKKIDIKADU P.O., EDATHUA, ALAPPUZHA DISTRICT. BY ADV. SRI.VIJU ABRAHAM RESPONDENTS: ------------- 1. THE ACCOUNTANT GENERAL KERALA, THIRUVANANTHAPURAM. 2. ACCOUNTS OFFICER, OFFICE OF THE ACOUNTANT GENERAL, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE HEAD MISTRESS, ST. MARY'S H.S. EDATHUA. BY SENIOR GOVERNMENT PLEADER, SMT. M.R.SREELATHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/01/2008, ALONG WITH OP NO. 17763 OF 1999 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.17762/1999 ORDER ON CMP NO.29074/1999 IN OP NO.17762/1999 DISMISSED Sd/- 18.1.2008 S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE SANCTION ORDER NO.PR.10/PEN.A/1069/AM/98- 99/1002 DATED 10.2.99 ISSUED BY THE 2ND RESPONDENT. EXT. P2: COPY OF THE GOVERNMENT ORDER G.O.(P)NO.3116/98/FIN. DATED 15.12.1998. EXT. P3: COPY OF THE REPRESENTATION DATED 15.3.99 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT. P4: COPY OF THE ORDER DATED 2.9.99 NO.PR10/PEN./1069/AH/98- 99/1046 ISSUED BY THE 1ST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= O.P. Nos. 17762 of 1999(M) & 17763 of 1999(M) ======================= Dated this the 18th day of January, 2008 JUDGMENT Petitioners in these two original petitions are retired teachers of aided schools. Prior to entering regular service they had broken periods of provisional service. They want the same also to be reckoned for the purpose of fixation of retirement benefits. After filing of the original petition they obtained interim orders from this Court directing the Accountant General to consider the petitioners' representation in this regard. Pursuant to such interim orders, the 2nd respondent has considered the matter and passed identical orders which are Ext.P4 in both original petitions, rejecting the representations filed by the petitioners on the ground that as per Government of Kerala decision No.8 of Rule 14 E of Part III of KSRs periods of break will count as qualifying service only if the appointment prior to the break was not for a limited period and the break was due to reduction of staff strength of the institution. Petitioners have O.P. Nos. 17762/1999/M & 17763/1999/M -2- subsequently amended the original petitions incorporating challenge against Ext.P4 also. Their contention now is that the government decision referred to in Ext.P4 has come into force only subsequent to the petitioner putting in the broken periods of service and therefore, the same cannot be applied for the purpose of fixation of pension of the petitioners. They also relied on the decision of Supreme Court in K.C.Arora v. State of Haryana (AIR 1987 SC 1858). 2. I have considered the rival contentions in detail. The government decision no.8 under rule 14 E of Part III of KSR reads thus: "8.(i) The benefit of counting periods of break as per Note 3 below Rule 31, Part III, Kerala Service Rules will be allowed in cases where the appointment before the break was not provisional or for limited period and the break was due to reduction of staff strength of the institution." 3. It is not disputed before me that a break in the petitioners' service prior to their entering regular service was not on account of reduction of staff strength of the institution but only because they were appointed provisionally for a limited period. A Government servant enters with the implied condition that he would be bound by all subsequent changes in the service O.P. Nos. 17762/1999/M & 17763/1999/M -3- rules applicable to him. The same applies to all persons to whom those rules are made applicable including aided school teachers who are paid from the coffers of the state. Therefore, I do not find any merit in the contention of the petitioners that since government decision no. 8 referred to above came into force after their broken periods of service, the same cannot be applied to the petitioner's case. The decision of the Supreme Court referred to is also not applicable to the present situation. That was a case where pursuant to a government order, the petitioners in that case accepted appointment on the assumption that that service would also be computed for the period of pension which government order was later changed. That is a case to which the principles of promissory estoppal is applicable and cannot be equated with the petitioners' case. In the above circumstances, I do not find any merit in these two original petitions and accordingly, the same are dismissed. S.SIRI JAGAN, JUDGE jp O.P. Nos. 17762/1999/M & 17763/1999/M -4-