IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 WA.No. 602 of 2005(A) ------------------------------ AGAINST THE JUDGMENT IN O.P. NO.13802/1998 DATED 18/03/2004. ........................... APPELLANT: RESPONDENT NO.1 IN THE OP --------------------------------------------------------------- STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.SANDESH RAJA.K. RESPONDENTS: PETITIONER AND 2ND RESPONDENT IN THE OP -------------------------------------------------------------------------------------------- 1. C.A.JACOBKUTTY, S/O. ABRAHAM, CHEMPILAYIL, ERAVINALLOOR, PUTHUPPALLY, KOTTAYAM-11. 2. THE RUBBER BOARD, REPRESENTED BY ITS SECRETARY, KOTTAYAM-2. ADV. SRI.V.A.MUHAMMED FOR R1 ADV. SRI.JOSEPH KODIANTHARA FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2008,THE COURT ON 17/09/2008 DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & Thomas P. Joseph, JJ. -------------------------------------- W.A. No. 602 of 2005 --------------------------------------- Dated this the 17th day of September, 2008 Judgment Koshy,J. Whether pensionable service in an aided school can be clubbed with the service in an autonomous body of Central sector for pension is the question to be considered in this case. Respondent/Petitioner retired from the service of the second respondent Rubber Board, an autonomous body in the Central sector, on 31.8.1998. Prior to joining the second respondent, he had service as an aided school teacher from 4.9.1961 to 12.2.1973. His prayer is for a declaration that the said service rendered in the aided school should be counted for the purpose of pension. The second respondent had no objection in counting such service for the purpose of pension if the State Government pays pro rata pension contribution to the second respondent. Petitioner has 11 years, one month and 23 days' service in aided schools, that is, from 1.4.1961 to 30.3.1962 and from 16.7.1962 to 11.2.73. The above service is pensionable. There is no difference between aided school teachers and government teachers with regard to salary and pension. It is not disputed that if he was in the Government service, the service can be clubbed with the service in the W.A.No.602/2005 2 autonomous body like the second respondent. In Ext.P1 dated 31.5.1987 it was ordered by the Government as follows: "2. The question of extending this benefit to the employees of State Government going over to Central Government/Central Autonomous Bodies and State Autonomous Bodies was under the consideration of Government for a long time. Government have examined the matter in detail in consultation with Government of India and are pleased to order that where a State Government employee borne on pensionable establishment (and employees of the States autonomous bodies) is allowed to be absorbed in Government of India/Autonomous Body, the service rendered by him under the Government shall be allowed to be counted towards pension under Government of India/Autonomous Body irrespective of whether the employee was temporary or permanent in Government. The same procedure will be applied in the case of employees of Government of India/Autonomous Bodies who are permanently absorbed under the State Government/State Autonomous Bodies. 3. The Government/Autonomous Body will discharge its pension liability by paying in lump sum as a one-time payment, the pro rata pension/service gratuity, terminal gratuity and Death-cum-Retirement Gratuity for the service up to the date of absorption in the Autonomous Body/Government as the case may be. Lump sum amount of the pro rata pension will be determined with reference to commutation table laid down in Kerala Service Rules, Part III." It was again clarified by Ext.P2 as follows: "The Accountant General in his letter read as third paper above has pointed out that the cases of employees of State Autonomous Bodies getting absorbed under the Central Government have not been covered in the G.O. read as 2nd paper. Since the orders in the said G.O. have been issued after W.A.No.602/2005 3 accepting the Government of India proposal for reckoning the service in such cases also on a reciprocal basis, Government are pleased to order supplying the omission. Accordingly, the G.O. read as second paper above is corrected and modified incorporating the words in the second sentence in second para of the G.O. after the words 'Pensionable establishment' and employees of the State autonomous bodies." Again, by Ext.P3 it was stated as follows: "...... Thus aided school service is treated on a par with Government service in these cases for purposes of pension. Again under the simplified pension rules, qualifying service determined taking into account even periods out of employment and leave without allowances which were not reckoned under the rules before simplification. Having regard to all these facts, Government are pleased that service prior to entry in Government service will be reckoned as qualifying service for purposes of pension under Government, subject to the condition that Government contribution, if any, to their Provident Fund Account in respect of the aided school service shall be refunded to Government." It is also clarified that all government service and aided government service prior to government service shall be reckoned. In Ext.P4 it was stated as follows: "Government have examined the question in detail and are pleased to order that all Government service in pensionable establishments put in by aided school teachers prior to entry in aided school service will be reckoned as qualifying service for purposes of pension under aided school service subject to the condition that termination of prior service under Government should not have been due to dismissal or removal from it for misconduct, insolvency or inefficiency not due to age." W.A.No.602/2005 4 The writ petition was filed when the Government rejected the claim. The learned single Judge considered the matter and ordered as follows: ".......... Pensionable service in pensionable establishments and autonomous bodies can be clubbed with Central service. Aided school service admittedly being a pensionable service, there is absolutely no justification in denying the benefit thereof for the purpose of pension clubbing it with the Central Government service or service in an autonomous body under Central sector. As otherwise, it would amount to violation of the guarantee under Article14 of the Constitution of India, being discriminatory. I set aside the impugned orders. There will be a direction to the first respondent to treat the aided school service of the petitioner as coming under Ext.P1 Government Order and discharge its liability of remission of pro rata pension. Appropriate action shall be taken within a period of three months from the date of production of a copy of the judgment." It is also noticed that as per G.O.(P) No.269/2008/Fin. dated 21.6.1988 published in Gazette dated 24.6.2008, rule 20 of Part 3 of Kerala Service Rules was amended as follows: "Provided that the past service put in by Government employees and Aided School/Aided College Teachers in Panchayath/Municipal 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." By Government order dated 2.2.2001, it was mentioned that past service put in by the Government employees, teachers, municipal common service, universities etc. prior to entering in State service and vice versa will be W.A.No.602/2005 5 reckoned for qualifying service for calculation of DCRG. This will not be applicable for appointments to or from public undertakings constituted under the Companies Act. In that order, it was also stated that this order is not applicable to public sector undertakings constituted under the Companies Act or separate legislation by the State or Central Government. It was stated as follows: "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 count. The formal amendments to Part III KSRs. will be issued separately." Here, the respondent retired from the service of the Rubber Board, an autonomous Central Government body on 31.8.1998 before issuance of Government order dated 2.2.2001. Therefore, the benefits conferred on him cannot be taken away and, therefore, we agree with the views of the learned single Judge. The appeal is dismissed. J.B.Koshy Judge Thomas P. Joseph Judge vaa W.A.No.602/2005 6 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- W.A. No.602/2005 ------------------------------------- Judgment Date:17th September,2008