IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 2772 of 2006(E) PETITIONER: --------------- A.ABDUL RAHUMAN, RETIRED SELECTION GRADE LECTURER, SON OF K.ALIYARUKUNJU, SHIYAS BHAVAN, THAZHAM NORTH, CHATHANOOR.P.O, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. 4. THE VICE CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. R1 AND R2 BY GOVERNMENT PLEADER SMT.T.B.REMANI R3 AND R4 BY ADV.SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. ADV. SRI.S.GOPAKUMARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER OF THE THIRD RESPONDENT U.O.NO.AD.A1.3.1/82 DATED 26TH NOVEMBER 1982. EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 14.9.2000 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P3 TRUE COPY OF THE LETTER NO.AD.A1.3.121/01 DATED 9.1.2001 OF THE THIRD RESPONDENT TO THE SECOND RESPONDENT. EXT.P4 TRUE COPY OF THE LETTER NO.7399/F2/2001/H.EDN. DATED 6.6.2001 ISSUED BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT. EXT.P5 TRUE COPY OF THE LETTER NO.AD.A1.3.475/03 DATED 15.2.2003 ISSUED BY THE THIRD RESPNDENT TO THE PETITIONER. EXT.P6 TRUE COPY OF THE DD NO.078878 DATED 8.5.2003 DRAWN ON THE STATE BANK OF TRAVANCORE, CHATHANOOR BRANCH. EXT.P7 TRUE COPY OF THE LETTER NO.AD.A1.3.487/2003 DATED 11.6.2003 ISSUED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT. EXT.P8 TRUE COPY OF G.O.(P)228/2001 FIN DATED 2.2.2001 ISSUED BY THE FIRST RESPONDENT. EXT.P9 TRUE COPY OF THE CERTIFICATE NO.AD.A1/14394/2001 DATED 8.8.2005 ISSUED BY THE UNIVERSITY OF CALICUT. EXT.P10 TRUE COPY OF THE LETTER NO.AD.A1/3323/2002 DATED 30.11.2005 ISSUED BY THE REGISTRAR, UNIVERSITY OF CALICUT TO DR.S.R.RAVINDRANATH, PRINCIPAL N.S.S.COLLEGE, NILAMEL. EXT.P11 TRUE COPY OF THE REPRESENTATION DATED 27.5.2005 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. EXT.P12 TRUE COPY OF THE LETTER NO.AD.A1.3.309/05 DATED 24.10.2005 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE LETTER DATED 19.4.2002. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 2772 OF 2006 E ------------------------------------------------------ Dated this the 8th January, 2009 JUDGMENT The petitioner retired from service as Selection Grade Lecturer in the Collegiate Education Department, on 30.6.2005. Before being appointed in the Collegiate Education Department with effect from 29.11.1982, the petitioner was in the regular pensionable service in the University of Kerala. He was relieved from the University service with permission to take up appointment as Junior Lecturer in the Government College on 26.11.1982 as per Ext.P1 University order dated 26.11.1982. 2. Contending that the petitioner is entitled to count his period of service in the Kerala University along with the service in the Collegiate Education Department for computing the pensionary benefits, petitioner submitted Ext.P2 representation dated 14.9.2000 before the Director of Collegiate Education. Kerala University took the view, as W.P.(C) NO.2772 OF 2006 :: 2 :: is revealed from Ext.P3 communication dated 9.1.2001 issued by the University to the Director of Collegiate Education, that “University is not liable to remit the pension contribution in respect of the service of the petitioner in the University, on the ground that the petitioner has gone over to the Collegiate Education Department on his own volition for his own benefit”. The University expressed the view in Ext.P3 that if the period of service of the petitioner has to be reckoned for the purpose of pensionary benefits, let the Government collect the required amount of pension contribution from the petitioner. 3. G.O(P)No.228/2001 dated 2.2.2001 (Exhibit P8) was issued by the Government taking into account the representations from employees to count the past service in Municipal/Panchayat/University services for pensionary benefits. The Government order reads as follows: “In the Government Orders read above, Government have issued guidelines for reckoning W.P.(C) NO.2772 OF 2006 :: 3 :: the service rendered in Government of India Departments/Central Autonomous Bodies/State Government Departments/State Autonomous Bodies/Public Sector Undertakings etc. for reckoning pensionary benefits consequent on permanent absorption in State Government Departments/State Autonomous Bodies and vice versa. Prorata Pension is payable in the cases of permanent absorption of Government employees in State/Central Public Undertakings and vice versa. As clarified in the Circular cited, mobility is applicable in the context of deputation followed by permanent absorption and pensionary liability is sharable on pro rata basis according to the length of service with the former employer. But no rule has been framed in respect of State Government employees who later join the Panchayats/Municipal Common Service/ Universities etc. after serving in the Government Department and vice versa on getting appointment by transfer or through direct recruitment by Public Service Commission. Government was receiving representations from employees to count past service in Municipal/Panchayats/University Services for pensionary benefits. Government have examined the matter in detail and are pleased to order that the service if any, put in by Government employees in the Municipal Common Service/Panchayats and Universities prior to their entry in State Government Service including Aided Schools service and vice versa can be reckoned for pensionary benefits and to incorporate a Note W.P.(C) NO.2772 OF 2006 :: 4 :: under Rule 20 Part III KSR to that effect as follows: Note:- Notwithstanding anything contained in the above Rule the past service put in by Government employees/Teachers in Panchayats/ Municipal Common Service/Universities etc. prior to entry in State service and vice versa will be reckoned as qualifying service for pension & DCRG. The amount credited to/creditable to a pension fund for the service rendered by the employee at market rate of interest (@ 10% at present) on compounding basis calculated for the period he worked with the former employer, has to be paid by the former employer in lump at the time of such appointment of the employee to the State service and vice versa. This will not be applicable to appointments to or from Public Sector Undertakings or similar Bodies as they were constituted under Companies Act or by separate legislation of the Central/State Governments.” The benefit of this order will be applicable to the retirements after the date of this order and the Pension cases already settled or pending settlement on administrative reasons will not be considered on any account. The formal amendments to Part III KSR will be issued separately.” 4. The Government issued S.R.O.No.666/08 in G.O. (P)No.269/2008/Fin dated 21.6.2008 by which the Kerala Service Fourth Amendment Rules, 2008 were made. By the W.P.(C) NO.2772 OF 2006 :: 5 :: amendment, a proviso was added to Rule 20 of Part III of the Kerala Service Rules and a note was also introduced there. The proviso and the note are extracted below: “”Provided that the past service put in by Government employees and Aided School/Aided College Teachers in Panchayath/Muncipal Common Service and Universities prior to their entry in State Government Service or Aided School/Aided College Service shall be reckoned as qualifying service for Pension and Death-cum- Retirement Gratuity from Government. Note:-- The amount credited to/creditable to a pension fund for the service rendered by the employee is calculated for the period he worked with the former employer and has to be paid by the former employer in lump at the time of such appointment of the employee to the State Government Service or Aided School/Aided College Service. The amount so credited/creditable is the proportionate pensionary liability based on the previous service; that is, the former employer should remit the Death-cum-Retirement Gratuity/ Service Gratuity and Commuted Value of the entire admissible pension reckoning the commutation factor applicable to the next birthday as on the date of absorption/joining the Government or Aided School/Aided College Service as the case may be. The pensionary liability in such cases shall be remitted either by the former employer or by the employee concerned within two years of joining. No interest shall be charged for delays up to 2 W.P.(C) NO.2772 OF 2006 :: 6 :: years. In the case of remittance beyond two years from the date of joining, simple interest shall be charged. The interest to be charged shall be @ 5% per annum from the date of 2 years after the date of joining till the date of remittance or 31st March, 2009, whichever is earlier and thereafter @ 9% till the date of remittance. The above proviso shall not be applicable for appointments to or from Public Sector Undertakings, Autonomous Bodies or similar bodies, as they are constituted under Companies Act or by separate legislation of the Central/State Government. In the case of prior service in Universities, only such service in any of the following Universities shall be considered for this benefit: (i) Kerala University (ii) Calicut University (iii) Mahatma Gandhi University (iv) Sree Sankara University (v) Kannur University (vi) Cochin University of Science and Technology. (vii) Kerala Agricultural University. This shall apply to all cases in which retirement takes place on or after 2nd day of February, 2001.” 5. On 6.6.2001, the Principal Secretary to the W.P.(C) NO.2772 OF 2006 :: 7 :: Government addressed Ext.P4 letter to the Director of Collegiate Education stating that as per G.O(P) No.228/2001/Fin. dated 2.2.2001 the petitioner would be entitled to reckon his prior service in the University, if the University remits the amount creditable to the pension fund for the service rendered by the petitioner in the University. Ext.P4 also indicates that the Registrar of the Kerala University has stated that the University is not liable to pay the pensionary liabilities. Therefore, the past service of the petitioner in the University cannot be reckoned for pensionary benefits. Ext.P4 would also indicate that the Registrar of the University has to be requested to examine the case in the light of G.O(P)No.228/2001/Fin. 6. On 19.4.2002, the petitioner submitted Ext.R1(a) letter to the Registrar of the University stating that the petitioner was willing to remit the pension contribution. That request was disposed of as per Ext.P5, whereby the petitioner was directed to submit a Demand Draft for W.P.(C) NO.2772 OF 2006 :: 8 :: Rs.36,436/- drawn in favour of the Director of Collegiate Education, Thiruvananthapuram, towards the pension contribution together with interest, for onward transmission to the Directorate. The petitioner submitted the Demand Draft and it was forwarded by the University to the Director of Collegiate Education along with Ext.P7 letter dated 11.6.2003. Reference is made to G.O(P)No.228/02/Fin. dated 2.2.2001 and it is stated that as per the provisions in the G.O, the service of the petitioner could be reckoned as qualifying service for pension and DCRG. It is also stated in Ext.P7 thus: “The pension contribution and interest for the period of service from 29.5.1978 to 26.11.1982 is calculated as Rs.36,436/-. Since the University is not in a position to take up the financial liability for reckoning the service, Sri.Abdul Rahuman volunteered to remit the same to the Government.” 7. On 27.5.2005, a few days before the retirement of the petitioner, he submitted Ext.P11 representation to the University requesting to reimburse the sum of W.P.(C) NO.2772 OF 2006 :: 9 :: Rs.36,436/- which the petitioner had paid to enable him to get pensionary benefits. According to the petitioner, the University was liable to pay the amount and in the peculiar circumstances the petitioner paid the same. 8. Referring to Ext.P11, the University issued Ext.P12 which reads as follows: “The University, for quite sometime, has been adopting a stand not to share the prorata pension benefit in respect of employees who have left the University for better prospects on their own volition, due to severe financial distress. The situation has not been different either in respect of a large number of University employees who have their past service in different State, Government Departments, Public Undertakings etc. Most of them got their previous services reckoned for pensionary benefits by remitting the due prorata pension contribution on their own at the end of protracted correspondences with the offices and unhelpful attitude adopted by them in settling this. It may be noted that vide your letter dated 19.4.2002, you had expressed your willingness to remit the pension contribution on your own and the case was settled accordingly. Therefore your request for reimbursement of the remittance is rejected.” W.P.(C) NO.2772 OF 2006 :: 10 :: 8. The reliefs prayed for by the petitioner in the writ petition are (a) to issue a writ of certiorari to quash Ext.P12 and (b) to issue a writ of mandamus commanding the University to reimburse the pension contribution remitted by the petitioner together with interest at the rate of 10% per annum from 8.5.2003 till the date of payment. 10. The 3rd respondent, Registrar of the University of Kerala, in the counter affidavit filed by him stated that the petitioner had volunteered to remit the pension contribution and made a request to the University to compute the amount payable as pension contribution, as per Ext.R1(a) letter dated 19.4.2002. The University calculated the amount and directed the petitioner to submit a demand draft for the said amount. The demand draft submitted by the petitioner was duly forwarded to the Director of Collegiate Education. The amount was never credited to the KUF Account (Kerala University Fund Account). The University also contended that the petitioner was relieved W.P.(C) NO.2772 OF 2006 :: 11 :: from the University service on his own request for taking up other employment on condition that he would be deemed to have resigned from service, in case he does not rejoin duty within a period of two years. The petitioner did not rejoin duty and continued in the Collegiate Education Service on his own volition. Therefore, the University is not liable to take up the additional commitment with regard to the pensionary benefits. The University also contended that since no amount was credited or drawn from KUF account against the pension contribution, there is no question of reimbursement to the petitioner. 11. The 2nd respondent, the Director of Collegiate Education in his counter affidavit, stated thus : “It is submitted that Government had issued necessary direction as per G.O(P) No.228/2001/Fin. dated 2.2.2001 to reckon the past service of the employees, rendered in Universities/Municipal Common Service/ Panchayath etc. for pensionary benefits. However, ignoring the directions, the petitioner expressed his willingness for remittance and the petitioner remitted the amount by way of a W.P.(C) NO.2772 OF 2006 :: 12 :: D.D. Accordingly his pension was sanctioned reckoning his University Service also. Hence the case is settled one already.” 12. Rule 20 of Part III of Kerala Service Rules, reads as follows: “Local Funds and Trust Funds: - Service paid from a Local Fund does not qualify for pension except under special orders of Government.” 13. As per G.O(P)No.228/2001/Fin. dated 2.2.2001, a Note was sought to be incorporated in Rule 20, Part III of the Kerala Service Rules. No formal amendment was made and no Notification was issued in that regard till 2008. However, as per S.R.O.No.666 of 2008, Kerala Service (Fourth Amendment) Rules, 2008 were made with retrospective effect from 2nd February, 2001. 14. The liability of the University, as per the Note to the proviso to Rule 20 of Part III of the Kerala Service Rules, cannot be disputed. The University was liable to pay W.P.(C) NO.2772 OF 2006 :: 13 :: the prorata contribution to Government. As per the proviso introduced in Rule 20 of Part III of the Kerala Service Rules, it is clear that the past service put in by a Government employee in the University prior to his entry in the State Government Service shall be reckoned as qualifying service for pension and Death-cum-Retirement Gratuity from the Government. The Note therein, introduced as per the Kerala Service Rules (Fourth Amendment) Rules, 2008, which came into force on 2nd February, 2001, would show that the primary liability to credit to a pension fund the proportionate pensionary liability for the service rendered by the employee is on the former employer. The liability of the employer is clearly stated in the Note. However, it is further stated in the Note that the pensionary liability in such cases shall be remitted either by the former employer or by the employee concerned within two years of joining. The question is whether the liability of the University (former employer) would be taken away if the employee remits the amount. The primary liability is on the former W.P.(C) NO.2772 OF 2006 :: 14 :: employer as per the Note to Rule 20. However, the employee is also permitted to remit the amount within two years of joining in the Government Service, in which case, no interest shall be charged. This provision facilitating the employee to remit the amount is to avoid accrual of interest on the amount to be remitted. That does not take away the primary liability of the employer to remit the amount. The University was not prepared to discharge their liability. The petitioner was compelled to pay the amount in order to avail the benefit of getting the full amount of pension reckoning the period of service in the University as well. It is true that a request was made by the petitioner to permit him to remit the amount. The question is whether it would amount to waiver, disentitling the petitioner to claim the amount from the University. The law relating to the payment of pension is a welfare legislation. It is intended to benefit a large number of employees. The liability is cast on the employer to contribute to the pension fund. That liability cannot be shirked by the employer. The employee W.P.(C) NO.2772 OF 2006 :: 15 :: is not at all liable to pay any contribution. The mere fact that on account of the failure on the part of the University to remit the contribution the petitioner had offered to pay the amount, does not mean that he has waived the benefit or that he has taken up for ever the responsibility which the University as per the Rule was bound to discharge. The willingness of the petitioner to pay the amount could not be a disqualification for him. That willingness was made only in the peculiar circumstances when the University was not willing to discharge its legal obligations. Had not the petitioner remitted the amount, the University would have been liable to pay the amount together with interest. It cannot be said that the petitioner has waived his right to get back the amount from the University. To constitute waiver, there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. (Basheshar Nath v. Commissioner of Income Tax: AIR 1959 SC 149.) I am not inclined to accept the contention that Ext.R1(a) letter would foreclose the petitioner from claiming back the amount from the University. W.P.(C) NO.2772 OF 2006 :: 16 :: 15. The Petitioner was entitled to get reimbursement of the amount remitted by him. He made a request for the same. But that was turned down by the University as per Ext.P12. The stand taken by the University is not legal and proper. The University is liable to pay back the amount to the petitioner. Ext.P12 is not legally sustainable. Ext.P12 is, therefore, quashed. The University shall pass appropriate orders granting the request made in Ext.P11 and shall reimburse to the petitioner the amount of Rs.36,436/- remitted by him, within a period of one month from the date of receipt of a copy of the judgment. I am not inclined to grant interest in favour of the petitioner. The Writ Petition is allowed in part, as indicated above. (K.T.SANKARAN) Judge ab/ahz