IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 28219 of 2007(H) -------------------------- PETITIONER(S): --------------- SUHARA BEEVI.O.A., 'DIYA', KOTTATHARA, MORARJI ROAD, VAZHAKKALA, KOCHI - 682 030. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.PRAMJI PAUL VAZHAPPILLY RESPONDENT(S): --------------- 1. THE KERALA TODDY WORKERS' WELFARE FUND BOARD, REPRESENTED BY THE CHIEF WELFARE FUND INSPECTOR, ULLOOR, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. ADV. SRI.K.D.BABU,SC,KTWWFB(TODDY WORKERS WE FOR R1 GOVERNMENT PLEADER SMT.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON 11/06/2009 DELIVERED THE FOLLOWING: W.P.(C).No. 28219/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.2.3.02 BY R1. P2. COPY OF THE ORDER DTD.17.1.2003 BY R1. P3. COPY OF THE REPRESENTATION DTD.19.6.06 TO R1. P4. COPY OF THE REPRESENTATION DTD.10.2.07. P5. COPY OF THE LETTER DTD.9.7.07 BY R1. P6. COPY OF THE GOVT. LETTER DTD.6.6.07. P7. COPY OF THE CIRCULAR DTD.8.6.02. P8. COPY OF THE ORDER DTD.2.11.05 OF R1. P9. COPY OF THE REPLY AFFIDAVIT DTD.8.6.08 OF THE PETITIONER IN W.P. (C).No. 28219/07 AND ITS EXHIBITS RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE LETTER DTD.16.10.06 TO R2. B. COPY OF THE CIRCULAR DTD.8.6.02. C. COPY OF THE MEMO DTD.23.3.05. D. COPY OF THE REPLY DTD.30.3.05. E. COPY OF THE INTIMATION DTD.4.5.05 FROM R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.28219 of 2007 ================== Dated this the 11th day of June, 2009 J U D G M E N T The petitioner was an employee of the Kerala Toddy Workers' Welfare Fund Board. She has started her service as a Lower Division Clerk on 17.5.1978. Subsequently, she got promotions and she retired voluntarily from service on 1.6.2005 as a Senior Superintendent. Her normal date of retirement was 30.11.2005. According to her, she is entitled to pension for a qualifying service of 27 years 6 months and 13 days, which has to be rounded off as 28 years. However, her qualifying service for pension was fixed as 27 years and her pension was computed accordingly. For this purpose, the period of leave without allowances availed of by her for the period from 1.7.2001 to 28.9.2001 without medical certificate and the period from the date of voluntary retirement to the normal date of retirement, which, according to the petitioner, are liable to be counted under Rule 26 and Rule 56 (vii) of Part III of the Kerala Service Rules, respectively, have been excluded. The petitioner's contention is that those periods cannot be excluded in view of Rule 88 Part 1 of KSR read with Rule 26 of Part III of KSR and Rule 56 (vii) of Part III of KSR. According to the petitioner, under Rule 26 of Part III of KSR the time passed on leave on all kinds with or without allowances will count as qualifying service unless otherwise specified. The leave without allowances for the period w.p.c.28219/07 2 from 1.7.2001 to 28.9.2001 on medical grounds, but without medical certificate has been granted to the petitioner under Rule 88 of Part 1 of KSR. Under Rule 88, leave without allowances can be granted to any officer on special circumstances when no other leave by rule is admissible or when other leave is admissible but the officer concerned applies in writhing for the grant of leave without allowances. According to the petitioner, leave without allowances has been granted to the petitioner under Rule 88 without any other condition in the order granting leave putting any restriction regarding counting of leave period for service benefits. Therefore, according to the petitioner, that leave could not have been excluded for the purpose of calculating the qualifying service of the petitioner. The petitioner's further contention is that when, under Rule 56 (vii) of Part III of KSR, a person who has retired voluntarily from service is entitled to get increase of qualifying service, subject to a maximum of five years, by a weightage period, for the period from the date of actual retirement till the date of superannuation, provided the total number of qualifying service would not exceed 33 years by adding that weightage. The petitioner, therefore, submits that both the above periods are liable to be computed for the purpose of fixing the petitioner's qualifying service, in which case, the petitioner is entitled to a qualifying service of 28 years, whereas her qualifying service has been fixed as 27 years, w.p.c.28219/07 3 which is illegal. The petitioner, therefore, seeks the following reliefs: “i) to quash Exts.P5 and P6 by issuing a writ of certiorari or any other appropriate writ order or direction. ii) to issue a writ of mandamus or appropriate writ, order or direction commanding the respondents to count the periods from 1.7.2001 to 28.9.2001 and from 1.6.2005 to 30.11.2005 towards qualifying service and to grant pension and other retiral benefits for 28 years of qualifying service, with arrears.” 2. Counter affidavits have been filed by both the respondents separately. Their common case appears to be that as far as leave period is concerned, in view of Ext.P7 circular, the leave period has been declared as non-reckonable for any service benefit including pension. Therefore, that leave period cannot counted. As far as weightage under Rule 56 (vii) of Part III of KSR is concerned, the contention in the counter affidavits of both is that the service of the petitioner was not totally satisfactory and, therefore, in exercise of powers under Rule 59 of Part III of KSR, the said period has been directed to be excluded for the purpose of computing pension. 3. In answer to the above contentions, the petitioner would contend that Ext.P7 circular cannot govern the issue. Ext.P7 is only a circular, that too, dated 8.6.2002, which has not been made retrospective. The leave was sanctioned to the petitioner by Ext.P1 on 2.3.2002, ie. before the circular came into force. Therefore, even if that circular is sustainable as law, the leave of the petitioner granted without any stipulation that it will not be counted for service benefits w.p.c.28219/07 4 including pension, the same cannot be excluded from the qualifying service of the petitioner. The petitioner also contends that in any event, Ext.P7 is only a circular, which cannot override the provisions of the KSR. The petitioner points out that as per the Government decision under Rule 26 of Part III of KSR, the Government has to lay down the grounds on which the period of leave will be treated as non-qualifying by general or a special orders issued from time to time. Ext.P7 is neither a general or special order issued by the Government under law, but is only a circular and, therefore, Ext.P7 cannot govern the issue. The petitioner particularly points out that Ext.P1, which is the leave sanctioning order, does not contain any stipulation that the leave would not be counted as qualifying service. The petitioner also points out that the leave period has been counted for all other service benefits like increments and time bound higher grade promotion. 4. Regarding weightage under Rule 56(vii), the counsel for the petitioner would contend that it is idle for the respondents now to contend that the petitioner's service was not totally satisfactory. He brings my attention to Ext.P8 order, wherein the 1st respondent had sanctioned pension to the petitioner. The counsel argues that in Ext.P8 the 1st respondent had categorically stated that he was satisfied with the service of the petitioner as thoroughly satisfactory and on that basis, pension has been granted. He also submits that Rule 59 of Part w.p.c.28219/07 5 III of KSR cannot be invoked for the purpose of reducing qualifying service in so far it relates to only reduction of pension. Therefore, Rule 59 can be invoked only for the purpose of reducing the amount of pension and not reducing the qualifying service is the contention raised. The counsel also contends that Rule 59 can be invoked only after issue of a notice and hearing to the petitioner as provided under clause 3 of Ruling No.1 under Rule 59. In this case, the petitioner had not been granted any notice or hearing. Further, he points out that no order has been served on the petitioner under Rule 59. 5. I have considered the rival contentions in detail. 6. After considering the contentions of both sides, I am satisfied that the petitioner is entitled to succeed on both counts. Ext.P1 is the order by which leave for the period from 1.7.2001 to 28.9.2001 was sanctioned to the petitioner. There is no stipulation therein that the said leave period would not be counted for any service benefits including pension. Rule 88 of Part I KSR reads thus: “88. Leave without allowances:- (i) Leave without allowances may be granted to any officer in special circumstances- (a) When no other leave is by rule admissible, or (b) When other leave is admissible but the officer concerned applies in writing for the grant of leave without allowances (ii) Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion.” The leave had been granted to the petitioner under the above rule. w.p.c.28219/07 6 Rule 26 of Part III of KSR reads thus: “26. Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified.” GOVERNMENT DECISION The authority competent to declare a spell of leave as non- qualifying for pension will be the Government and the grounds on which the periods of leave will be treated as non-qualifying, will be laid down by general or special orders issued from time to time. This decision takes effect from 27.6.1974. (G.O(P) 32/77/Fin. dated 22.1.1977.” Therefore, the leave under Rule 88 being a leave to which Rule 26 is applicable unless the Government specifies that such leave would not count for pension, the leave period cannot be excluded from the qualifying service. The respondents have not been able to point out any general or special order issued by the Government specifying that such leave period would not be counted as qualifying service for pension. Ext.P7 circular cannot govern the issue for two reasons. First is that the same has been issued subsequent to sanctioning of the leave to the petitioner and the same has not been made retrospective. Since a person takes leave being aware of the consequences of that leave as per the law obtaining on that date, the benefits arising from that leave cannot be taken away subsequently by imposing new conditions, that too, by a circular. Secondly, Ext.P7 is not a Government order as contemplated under the Government Decision under Rule 26 of Part III of KSR. The Decision under Rule 26 w.p.c.28219/07 7 specifically stipulates that the grounds on which the period of leave to be treated as non-qualifying have to be laid down by the Government by a general or special order. Ext.P7 is neither a general or special order of any kind. Further, the fact that the leave period has been reckoned for all other service benefits like increment and time bound higher grade promotion has not been denied by the respondents. Therefore, by invoking Ext.P7, the petitioner cannot be denied the benefit of qualifying service taking into account the leave period also. 7. Now I shall consider the contention regarding the eligibility for weightage under Rule 56(vii) of Part III of KSR, which reads thus: “56. A retiring pension is granted to an employee who retires voluntarily after 20 years of qualifying service subject to the following conditions: xxx xxx xxx (vii) The actual periods of qualifying service as on the intended date of retirement of the Government Servant shall be increased by a period not exceeding 5 years subject to the conditions that the total qualifying service after allowing the weightage shall not exceed 30 years in cases of retirements prior to 1.7.1978 and 33 years in respect of retirements occurring on or after 1.7.1978 and the weightage shall not exceed the difference between the age of superannuation and that as on the date on which the voluntary retirement becomes effective. Faction, if any, in the qualifying service so arrived at shall be rounded to the nearest completed year, that is, faction of less than half year shall be ignored and half year and above shall be rounded to the next completed year.” 8. Going by the above rule, clearly the petitioner is entitled to have the period of from 1.6.2005, ie. the date of her voluntarily retirement, till 30.11.2005 which is her date of superannuation reckoned as qualifying service for pension. The objection now raised by the respondents is that since the petitioner's service was not totally w.p.c.28219/07 8 satisfactory, the respondents have decided not to give weightage under Rule 56(vii). They also rely on Rule 59. In Ext.P8 which is the pension sanctioning order issued by the 1st respondent, the 1st respondent has specifically stated thus: “The Undersigned after having satisfied herself that the service of Smt.O.A.Suhara Beevi is thoroughly satisfactory hereby accord sanction for the payment of the following revised pensionary benefits to her.” After having sanctioned pension holding that the petitioner's service was thoroughly satisfactory, I am at a loss to understand how the 1st respondent can now take the stand take the stand that because the petitioner's service was not thoroughly satisfactory, weightage under Rule 56(vii) was not given to the petitioner. Even otherwise, under Rule 56(vii) of Part III KSR does not depend on whether the service was totally satisfactory or not. No such condition is attached to Rule 56. There are other provisions in Part III of KSR, whereby the respondents are competent to reduce pension if the service of the petitioner is not totally satisfactory. But those provisions cannot be invoked for the purpose of denying benefits under Rule 56 (vii) for calculating qualifying service for pension. The Rules contain specific provisions for calculating qualifying service and qualifying service has to be calculated on the basis of those provisions only. There is no provision therein to deny weightage under Rule 56 (vii) on the ground that the service was not thoroughly satisfactory. w.p.c.28219/07 9 9. Rule 59 is totally inapplicable for more than one reasons. First of all, Rule 59 applies only for reducing pension and not for reducing qualifying service. Secondly, for reducing pension under Rule 59, there must be a specific order to that effect. The respondents have no case that any order has been passed by them under Rule 59. Even otherwise, clause 3 of Ruling No.1 under Rule 59 specifically stipulates that before passing any order under Rule 59, the person affected shall be given an opportunity of being heard to satisfy the principles of natural justice. Not even a notice has been issued to the petitioner by the respondents either under Rule 59 or otherwise before denying the benefit of Rule 56(vii) on the ground that the service is not thoroughly satisfactory. Therefore, on all counts, there is no justification whatsoever on the part of the respondents in denying the petitioner the benefit of reckoning qualifying service taking into account the periods from 1.7.2001 to 28.9.2001 and from 1.6.2005 to 30.11.2005. 10. It is not disputed before me that if those periods are also counted as qualifying service, the total qualifying service of the petitioner would be 27 years 6 months and 13 days, which, as per Rule 57 of part III of KSR, has to be rounded off as 28 years. Exts.P5 and P6 are therefore quashed. It is declared that the petitioner's qualifying service for pension is 28 years. The petitioner is entitled to have her w.p.c.28219/07 10 pension revised for 28 years of qualifying service and orders in this regard shall be passed and arrears of pension and other retirement benefits disbursed to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge