IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 WA.No. 1956 of 2006(A) ---------------------- AGAINST THE JUDGEMENT IN WPC.37055/2004 Dated 26/06/2006 .................... APPELLANT/PETITIONER: --------------------------- M.A.ABOOBACKER, S/O.LATE ALIKUNJU, AGED 53 YEARS, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETEIS (GENERAL) KANAYANNUR, COCHIN-16. BY ADV. SRI.V.A.MUHAMMED RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, TRIVANDRUM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM. 4. THE ACCOUNTANT GENERAL (A& E) KERALA, TRIVANDRUM. R1 TO R4 BY SENIOR GOVT. PLEADER, SRI. BENNY GERVASIS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, CJ. & P.N.Ravindran, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1956 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2010 JUDGMENT Ravindran, J. The appellant is the petitioner in WP(C) No.37055 of 2004. By judgment delivered on 26.06.2006, the learned single Judge dismissed the writ petition. Hence this Writ Appeal. 2. The appellant initially entered service as Lower Division Clerk in Government Polytechnic, Kalamassery on 23.01.1979. He resigned from service on 02.02.1981 to take up employment as Junior Clerk in Ernakulam Agricultural Land Development Bank Ltd. He joined duty in the said bank which is a co-operative society on 02.02.1981. He resigned that employment also on 06.07.1981 to take up employment in Government service and on 07.07.1981 he joined duty as Lower Division Clerk in the Stationery Department. He thereafter sought transfer to other departments and ultimately ended up in the Co-operation Department, from where he WA No.1956 of 2006 -:2:- retired as Assistant Registrar(General) on 28.02.2006. 3. While in service, pursuant to the implementation of the 1997 pay revision order, the pay of the appellant was revised and refixed at Rs.3,900/- with effect from 01.03.1997. The pay was fixed taking into account his service prior to 07.07.1981 as Lower Division Clerk in Government Polytechnic, Kalamassery and as Junior Clerk in Ernakulam Agricultural Land Development Bank Ltd. In other words, the petitioner was treated to have been in Government service from 23.01.1979. An audit objection was raised and Ext.P1 order was issued to the effect that the appellant's service can be reckoned only with effect from 07.07.1981 when he joined duty as Lower Division Clerk in the Stationery Department. Thereupon, the Registrar of Co- operative Societies issued Ext.P2 letter calling upon the appellant to refund the excess salary drawn by him. The appellant objected it by filing Ext.P3 representation dated 20.04.2002. He thereafter moved this Court by filing WP(C) No.22505 of 2003. By Ext.P4 judgment delivered on 15.07.2003, the learned single Judge directed the Government to consider his representation. WA No.1956 of 2006 -:3:- The Government considered it and passed Ext.P8 order dated 16.10.2004. The said order was communicated to the appellant by the Registrar of Co-operative Societies along with Ext.P7 letter. The instant writ appeal was thereupon filed challenging Exts.P1, P2 and P8. In the writ petition it was contended that the pre-resignation service rendered by the appellant ought to have been reckoned as service for the purpose of pay revision. 4. The State of Kerala filed a counter affidavit resisting the writ petition. It was contended that the appellant had worked as Junior Clerk in a co-operative society after resigning from Government Polytechnic, Kalamassery, that he resigned that employment and joined service as Lower Division Clerk in the Stationery Department on 07.07.1981. It was contended that the service rendered by the appellant prior to 2.2.1981 and thereafter in the co-operative society cannot be reckoned for any service benefit. The appellant thereafter produced Exts.P10 to P12 Government orders whereby the Government had ordered that pre-resignation service rendered by aided school teachers can also be reckoned as service for the purpose of computing WA No.1956 of 2006 -:4:- terminal benefits. The learned single Judge after hearing both sides held that the view taken by the Government cannot be faulted. It was held that as the appellant had resigned the Government service to take up employment in a co-operative society, the pre-resignation service cannot be reckoned for grant of service benefits. 5. We have considered the rival submissions made at the Bar by Sri.V.A.Muhammed, the learned counsel appearing for the appellant and Sri.Benny Gervasis, the learned senior Government Pleader appearing for the official respondents. We have also gone through the pleadings and the materials on record. Relying on Exts.P10 to P12 the learned counsel for the appellant contended that the appellant is similarly situate as the beneficiaries of the said Government orders and that he has been discriminated against in the matter of reckoning of pre-resignation service for the purpose of service benefits. Per contra, the learned Government Pleader submitted that the appellant had resigned from government service and it was after his resignation that he joined service as Junior Clerk in a WA No.1956 of 2006 -:5:- co-operative society and after resigning that employment he joined as Lower Division Clerk in the Stationery Department. Relying on Rule 29 of Part III KSR, the learned Government Pleader contended that as the appellant had resigned from Government service while employed in Government Polytechnic, Kalamassery it entitles forfeiture of his past service, that after such resignation the appellant had joined a co-operative society which is not a pensionable establishment, that it was after resigning from the co-operative society that he took up employment in Government service again on 07.07.1981 and therefore his service from 07.07.1981 alone can be reckoned for grant of service benefits. It was further contended that the appellant's case is not similar to the case of the beneficiaries of Exts.P10 to P12 orders and therefore he cannot rely on those documents to contend that his pre-resignation service should be reckoned for the grant of service benefits. 6. It is not in dispute that appellant had resigned from service on 02.02.1981 to take up employment in a co-operative society. In view of Rule 29 of Part III KSR the said resignation WA No.1956 of 2006 -:6:- entailed forfeiture of past service. In other words, the service rendered by the appellant from 23.01.1979 to 02.02.1981 stood effaced. The co-operative society which the appellant joined on 02.02.1981 after resigning from Government service was not then a pensionable establishment. A pension scheme was introduced in co-operative societies only in the year 1994. The appellant resigned from the co-operative society on 06.07.1981 and again joined Government service on 07.07.1981. From this it can be seen that between his initial appointment and subsequent appointment in Government service, he had worked for about 5 months in a co-operative society which is not a pensionable establishment. Therefore, the appellant cannot be said to be similarly placed as the beneficiaries of Exts.P10 to P12 Government orders, who had worked as teachers in aided schools. Their pre and post resignation service was in the same school and in same category of post. The appellant cannot, therefore, claim that the benefits given to them people should be extended to him also. Further Exts.P10 to P12 orders were issued, invoking the powers of the Government under rule 39 of WA No.1956 of 2006 -:7:- Part III, KS & SSR. The appellant, who is not similarly placed as the beneficiaries of those orders, cannot contend that the same benefits should have been extended to him. In view of Rule 29 of Part III KSR and the admitted fact that the appellant had rendered service in a co-operative society after his resignation from Government service, we are of the considered opinion that the decision of the Government in Ext.P8 does not merit interference. The appellant can, in our opinion, claim service benefits only for the service rendered by him from 07.07.1981. We accordingly hold that there is no merit in the writ appeal. The Writ Appeal fails and is dismissed. J.Chelameswar, Chief Justice. P.N.Ravindran, Judge. ttb WA No.1956 of 2006 -:8:-