IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 34129 of 2006(K) ------------------------------------ PETITIONER(S): ------------------------ N.T.PRABHAKARAN, "PRABHANIKETAN", SOUTH ARYAD, ALAPPUZHA, (RETD.ADMINISTRATIVE OFFICER, ICAR). BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV. MR.S.SUJIN RESPONDENT(S): ---------------------------- 1. THE ADDITIONAL SECRETARY TO THE GOVERNMENT CO-OPERATIVE (A) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE REGISTRAR, CO-OPERATIVE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARY, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.V.TEKCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34129/2006 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER DT. 16.11.99 IN OA. NO.233/97 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. P2:- COPY OF THE JUDGMENT DT. 26.2.03 IN OP. NO.11273/2000 OF THIS HONOURABLE COURT. P3:- COPY OF THE JUDGMENT DT. 7.7.05 IN WPC. NO.245123/03 OF THIS HONOURABLE COURT. P4:- COPY OF THE ORDER GO(RT) NO.26/06/CO-OP. DT. 17.1.06. P5:- COPY OF THE PROCEEDINGS NO.E(1) 1831/72 DT. 25.9.72 OF THE JT. REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), TRIVANDRUM. P6:- COPY OF THE LETTER NO.P&E(1)-CIR 1/64 DT. 5.12.70 OF THE PROFESSIONAL & EXECUTIVE EMPLOYMENT EXCHANGE, TRIVANDRUM. P7:- COPY OF THE MEMORANDUM NO.F4(15)/70-ESTT. DT. 13.1.71 OF THE DIRECTOR, CPCRI , KASARAGOD. P8:- COPY OF THE LETTER NO.E1/22944/79 DT. 30.9.79 OF THE REGISTRAR OF CO- OPERATIVE SOCIETIES , TRIVANDRUM. P9:- COPY OF THE FORWARDING LETTER NO.F7(31)/89/ESTT. VOL (IV) DT. 6.6.89 OF THE DIRECTOR, CPCRI, KASARAGOD. P10:- COPY OF THE FORWARDING LETTER NO.FE(31) 98-ESTT DT. 1.11.89 OF THE DIRECTOR, CPCRI, KASARAGOD. P11:- COPY OF THE JUDGMENT DT. 30.10.92 IN OP. NO.2201/92 OF THIS HONOURABLE COURT. P12:- COPY OF THE LETTER NO. EA. (5) 1044/92 DT. 24.12.92 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. /TRUE COPY/ P.S. TO JUDGE tss [CR] P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 34129 OF 2006 ......................................................................... Dated this the 19th February, 2009 J U D G M E N T Denial of pension to the petitioner in respect of the 14 years' of service under the State Government prior to his leaving the same for joining the better employment under the I.C.A.R. (not a party to the present proceedings.) is the issue involved in this case. 2. The petitioner joined the Kerala Judicial Subordinate Service as L.D.Clerk on 10.10.1958 and after continuing there till 13.10.1969, he came to the Co-operative Department as L.D.Clerk on 14.10.1969 by way of inter departmental transfer, where he worked till 11.09.1972. While so, the petitioner who had registered his name with the Professional and Executive Employment Exchange, Thiruvananthapuram, as borne by Ext. P6 proceedings produced along with the reply affidavit, was sponsored by the said 'Exchange' for selection and appointment W.P.(C) No. 34129 OF 2006 2 as Office Assistant in a much higher scale of pay under the I.C.A.R.. On successful completion of the selection process, the petitioner was offered employment in the I.C.A.R. , pursuant to which he was relieved from the post of L.D. Clerk in the Co- operative Department on 11.09.1972 A.N. on tendering resignation. The petitioner joined the service of I.C.A.R. as Office Assistant on the very next day, thus without any break in service. Later, the petitioner came out from the service of the I.C.A.R. on voluntary retirement w.e.f. 30.04.1993. Since the service benefits including timely promotions and the retirement benefits reckoning the service of the petitioner rendered under the State Government were denied to him, the petitioner was constrained to approach the Central Administrative Tribunal, Ernakulam by filing O.A.No.233 of 1997 which was allowed by the Tribunal vide Ext. P1 order. 3. As per Ext. P1 order, the Tribunal had directed the I.C.A.R. and the concerned respondents to consider the case of the petitioner for promotion to the post of Administrative Officer by conducting a review by the Departmental Promotion W.P.(C) No. 34129 OF 2006 3 Committee (DPC) in accordance with the rules and if recommended by the Committee, to give all consequential benefits of notional promotion with effect from the date the juniors of the petitioner were promoted on the basis of the recommendations of the DPC held on 13.07.1987. It was further directed to consider the case of the petitioner for promotion as Senior Administrative Officer, if promoted as Administrative Officer on the recommendations of the DPC and to give all consequential benefits attached to the promoted posts. Over and above the said reliefs, the said respondents were also directed to recommend 14 years' of service rendered by the petitioner under the State Government to re-calculate the pensionary benefits notwithstanding the fact whether contribution from the State Government had been received or not. 4. Aggrieved by the above verdict, the I.C.A.R. and others (except the State and Registrar of Co-operative Societies, Thiruvananthapuram) challenged the same by filing O.P. No.11273 of 2000. After considering the relevant facts and circumstances, the order passed by the Central Administrative W.P.(C) No. 34129 OF 2006 4 Tribunal vide Ext.P1 was confirmed by a Division Bench of this Court vide Ext.P2, with regard to the right for being considered for promotion. But with regard to the claim for reckoning 14 years' of service rendered by the petitioner under the State Government and to re-calculate the pensionary benefits payable by the I.C.A.R. , the liability cast upon the I.C.A.R. was intercepted, making it clear that the employee (the petitioner herein) would be permitted to seek his remedy before the appropriate authority. The representation filed by the petitioner in furtherance to Ext. P2 verdict was left unattended by the State, which made the petitioner to approach this Court by filing W.P.(C) 24613 of 2003. 5. After hearing both the sides, this Court vide Ext. P3 judgment directed the respondent/State to consider the representation of the petitioner, particularly in the light of Rule 29(b) of Part III K.S.R., after affording an opportunity of hearing to the petitioner and to pass final orders therein within the specified time. It was accordingly that the first respondent passed Ext. P4 order stating that the petitioner is not entitled to W.P.(C) No. 34129 OF 2006 5 get the benefit. It is pointed out in Ext.P4 that the relevant Government Order, G.O.(P) No.369/87/Fin dated 31.03.1987 would be applicable only to those State Government Employees who were absorbed in Government of India/Autonomous Bodies and not to persons like the petitioner, who had voluntarily resigned from the post; sustainability of which is questioned in the present writ petition. 6. In response to the counter affidavit filed by respondent Nos. 2 and 3 sustaining the action of the State and justifying Ext. P4, the petitioner has filed a reply affidavit producing copies of the relevant documents showing that he had actually registered his name for better employment with the Professional and Executive Employment Exchange, Thiruvananthapuram; that his name had been sponsored by the said Employment Exchange to the I.C.A.R.; that there was no necessity for him to submit any application through proper channel i.e., through the State Government, which is stated as an infringement as to the proper course by the State in their counter affidavit. The petitioner asserts that his resignation squarely comes within the ambit of W.P.(C) No. 34129 OF 2006 6 Rule 29(b) of Part III K.S.R. and hence that it will not result in forfeiture of the past service as envisaged in Rule 29(a). The petitioner submits that the scope of Rule 29(b) of Part III K.S.R. has not been discussed anywhere in Ext. P4 order despite the specific direction given by this court vide Ext.P3. 7. The learned Senior Counsel points out that all the requisite measures have been satisfied in the case of the petitioner in so far as he has served the State Government for 14 years till 11.09.1972; that he resigned from the State Service only for taking up better employment; that he joined the said better job under the I.C.A.R with effect from 12.09.1972 and hence that his resignation cannot have any adverse consequence. But the crucial question to be considered in the instant case is whether the petitioner's case actually comes within the purview of Rule 29(b) of Part III K.S.R. For the purpose of convenience of reference, Rule 29 of Part III K.S.R is extracted hereunder: “29. Resignation and Dismissals- (a) Resignation of the Public Service or dismissal W.P.(C) No. 34129 OF 2006 7 or removal from it, entails forfeiture of past service. (b) Resignation of an appointment to take up another appointment the service in which counts (emphasis is supplied) is not resignation from public service. Note:- The break between the two appointments should not exceed the joining time admissible under the service rules plus the public holidays. ” 8. Obviously, Rule 29(b) will be attracted only if it is a resignation to take up another appointment “the service in which counts”; lest it should entail forfeiture of past service, as envisaged under Rule 29(a) of Part III K.S.R. In other words, the service in which the employee joins after the resignation should be such service in which counts, as qualifying service for the purpose of pension. 9. Rule 10 of Part III K.S.R says that the service of an employee does not qualify for pension unless he is appointed, his duties regulated and paid by the Government or under conditions determined by the Government. W.P.(C) No. 34129 OF 2006 8 Rule 11 stipulates that: Notwithstanding the provisions of Rule 10, the Government may, (1) declare that any specified kind of service rendered shall qualify for pension; and (2) in individual cases, and subject to such conditions as they may think fit to impose in each case, allow service rendered by an employee to count for pension.” 10. Now the question is whether the service under the I.C.A.R where the petitioner joined after tendering his resignation under the State Government is a “service in which counts” as contemplated in Rule 29(b) of Part III K.S.R. Though vide Ext.P1 order, the Central Administrative Tribunal granted the benefit of pension in favour of the petitioner, such portion with regard to the pension was set aside by a Division Bench of this Court vide Ext.P2 judgment holding that there was no liability for the I.C.A.R. to reckon the period of service rendered by the petitioner under the State Government and to grant pension. There was no need, necessity or occasion for the Division Bench to consider the scope of Rule 29(b) of Part III K.S.R. as the petitioner was given liberty to pursue his claim for pension in respect of the service rendered under the Government of Kerala W.P.(C) No. 34129 OF 2006 9 before other appropriate authority. But since the service rendered by the petitioner is held as not countable in I.C.A.R. by the Division Bench vide Ext.P2 judgment, it is no more open to contend that the petitioner after resignation from the State service took up another appointment (I.C.A.R.) “ the service in which counts ” as provided in Rule 29(b) so as to attract the same. This being the position, the reliance placed on Rule 29(b) by the petitioner is rather misconceived. 11. In the above circumstances, it is declared that the petitioner is not entitled to get the benefit of Rule 29(b) and as a natural consequence his resignation entails in forfeiture of the past service as contemplated under Rule 29(a) of Part III K.S.R. As such, the Writ Petition fails and it is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk