IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 WP(C).No. 34419 of 2009(V) ----------------------------------- PETITIONER(S): --------------- T.K.SUSEELAN, ASSISTANT ENGINEER (RTD), 33/2940, MARAPPANAMKODE HOUSE, PAROPPADY P.O., MARIKUNNU, KOZHIKODE-673012. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER & SECRETARY (FINANCE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM. 4. THE CHIEF ENGINEER, P.W.D.NATIONAL HIGHWAYS, THIRUVANANTHAPURAM. 5. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695023. SRI. SPL. GOVERNMENT PLEADER(FINANCE) MR. MANOJ KUMAR FOR R1-4 SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34419 of 2009 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF APPOINTMENT ORDER IN FAVOUR OF THE PETITIONER DTD 9.10.79 IN KSRTC ON THE BASIS OF PSC ADVICE. EXT.P2: COPY OF EXTRACT OF PAGES 6 & 25 OF PETITIONER'S SERVICE BOOK. EXT.P3: COPY OF ORDER DTD 31.3.1987 UNDER SECRETARY TO GOVERNMENT. EXT.P4: COPY OF LETTER DTD 11.12.1987 FROM COMMISSIONER & SECRETARY (FINANCE) TRIVANDRUM TO CHIEF ENGINEER. EXT.P5: COPY OF ORDER OF THE ACCOUNTS OFFICER, INDIAN AUDIT & ACCOUNTS DEPARTMENT, THIRUVANANTHAPURAM. EXT.P6: COPY OF LETTER DTD 8.1.2009 FROM CHIEF ENGINEER, PWD, NATIONAL HIGHWAY, TVM, TO GENERAL MANAGER, KSRTC. EXT.P7: COPY OF LETTER DTD 15.1.2009 FROM THE PETITIONER TO GL. MANAGER KSRTC TVM. EXT.P8: COPY OF LETTER DTD 28.5.2009 FROM CHAIRMAN AND MANAGING DIRECTOR KSRTC TO CHIEF ENGINEER, PWD N. HIGHWAYS, TVM. EXT.P9: COPY OF LETTER DTD 17.6.2009 FROM CHIEF ENGINEER, PWD, N.H. TO PETITIONER. EXT.P10: COPY OF LETTER DTD 27.6.2009 FROM PETITIONER TO CHIEF ENGINEER. EXT.P11: COPY OF LETTER FROM CHIEF ENGINEER. EXT.P12: COPY OF LETTER DATED 30.10.2009 FROM PRL.SECRETARY TO GOVT. TO CHIEF ENGINEER, N.H. TVM. EXT.P13: COPY OF G.O.(P)193/2004/FIN DATED 20.04.2004. EXT.P14: COPY OF G.O.(P) 188/2008/FIN DTD 25.04.2008. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.34419 OF 2009 --------------------------------------- Dated this the 1st day of March, 2011 JUDGMENT After putting in about 8 years of service in the Kerala State Road Transport Corporation, the petitioner was appointed by direct recruitment as Assistant Engineer in the Public Works Department of the Government of Kerala. He joined on 1.12.1986 and retired from service on 30.11.2008. But, his service in the KSRTC was not counted for retirement benefits. His claim for the same was rejected by Ext.P12 order. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “(i) to call for the entire records leading upto Exhibit P12 and to quash the same by the issuance of a writ of certiorari or any other writ, direction or order; (ii) to issue a writ of mandamus compelling the respondents to reckon the entire regular service of the petitioner from 9.10.1979 to 30.11.1986 in K.S.R.T.C. along with his service from 1.12.1986 to 30.11.2008 for the grant of full pension to the petitioner” 2. The learned Government Pleader submits that the question as to whether the service put in by Government W.P.(C)No.34419/09 2 employees under autonomous bodies like Kerala State Electricity Board and Kerala State Road Transport Corporation can be counted for pension in the state service has been considered by a learned single Judge of this Court in W.P.(C) No.15119/2004 and answered the same in the negative. Therefore, according to the learned Government Pleader, the petitioner is not entitled to the reliefs prayed for. 3. I have considered the rival contentions in detail. The judgment in W.P.(C)No.15119/2004 reads as follows: ““Heard Sri. P.N. Mohanan and Sri. S. Ramesh Babu, the learned counsel appearing for the petitioners, Sri. Ashok M. Cheriyan, the learned Standing Counsel appearing for the Kerala State Electricity Board and Sri. N. Manoj Kumar, the learned Special Government Pleader appearing for the State of Kerala. Common questions arise in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. 2. The petitioners are pensioners. Some of them entered service initially in the State Government, later served in the Kerala State Electricity Board and again went back to State service. Some of them joined the Kerala State Electricity Board and thereafter went over to State service. The dispute raised in these writ petitions is whether the service rendered by the petitioners in the Kerala State Electricity Board can be reckoned for the purpose of grant of pensionary benefits. The State Government had issued G.O. (P) No.228/2001/Fin. Dated 02.02.2001 proposing to amend Rule 20 of Part III of the Kerala Service Rules. In the said Government order it was stipulated that the service if any, put in by Government employees in the Municipal Common Service/Panchayaths/Universities prior to their entry in State Government service including Aided W.P.(C)No.34419/09 3 Schools service and vice versa can be reckoned for pensionary benefits. The Government also decided to incorporate a note under Rule 20 of Part III of the Kerala Service Rules. It was also ordered that the formal amendments to Part III of the Kerala Service Rules will be issued separately. After the aforesaid Government order was issued, some of the Government servants who had served for a short spell of time in the Kerala State Electricity Board filed a writ petition in this Court contending that the service rendered by them in the Kerala State Electricity Board before joining the State Government service has to be reckoned for the purpose of grant of pension. 3. A Division Bench of this Court in Babu.P.K. V. Chief Engineer, Kerala State Electricity Board (2007 (1) KLJ 35) held that the Government order dated 02.02.2001 cannot operate since the field is occupied by a statutory rule and the statutory rule has not been amended. It was also held that even if Government order dated 02.02.2001 is applied, it cannot govern the service rendered by Government servants in the Kerala State Electricity Board. I am bound by the decision of the Division Bench and applying the dictum laid down by the Division Bench in the aforesaid decision it has to be held that the Government order dated 02.02.2001 cannot govern the petitioners. Further, Rule 20 of Part III of the Kerala Service Rules has been amended by G.O. (P) No.269/2008/Fin. Dated 21.06.2008 by incorporating a Proviso and a note. The Proviso to Rule 20 of Part III of the Kerala Service Rules reads 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.” On the terms of the proviso to Rule 20, it cannot be stated that the service rendered by Government servants in the Kerala State Electricity Board has to be reckoned as qualified service for pension and W.P.(C)No.34419/09 4 DCRG. Therefore, Rule 20 as amended also does not apply to the petitioners' case. Since the proposal set out in the Government order dated 02.02.2001 has been carried out by amending the rule, the Government order dated 02.02.2001 can no longer be relied upon. Even if it is relied upon, as held by the Division Bench it does not govern the service rendered by Government servants in the Kerala State Electricity Board. Therefore, the orders impugned in these writ petitions cannot be said to be illegal or arbitrary. 4. I however notice that the Government have in Ext. P24 order dated 10.01.2008 produced along with I.A.No.5127 of 2009 in O.P. No. 6928 of 2003, granted pensionary benefits to one Sri. J. Muhammed Basheer who retired as Under Secretary to Government taking into account the service rendered by him in the Kerala State Road Transport Corporation as well as in the Kerala State Housing Board. Rule 10 of Part III of the Kerala Service Rules states 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. Rule 11 of Part III of the Kerala Service Rules reads as follows. “11. 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.” 5. Ext. P24 order discloses that it has been issued invoking the power of the Government under sub rule (2) of Rule 11 of Part III of the Kerala Service Rules. It was invoking the said power that the Government permitted Sri. J. Muhammed Basheer to reckon as qualifying service for pensionary benefits, the service rendered by him in the Kerala State Road Transport Corporation and Kerala State Housing Board. Ext. P24 also discloses that the beneficiary of the said order was also directed to pay the share of pension contribution that the KSRTC and Kerala State W.P.(C)No.34419/09 5 Housing Board would have had to pay if such service were to be made pensionable. Therefore, notwithstanding the fact that I have declined to interfere with the orders impugned in these writ petitions, I direct that in the event of the petitioners filing appropriate representations under Rule 11 (2) of Part III of the Kerala Service Rules before the Government, the Government shall consider the same and take a decision thereon in accordance with law. Final orders in the matter shall be passed, if the petitioners move the Government, within six months from the date on which the representations are received from the petitioners. The writ petitions are disposed of with the above observation”. 4. I am in respectful agreement with the conclusion reached by the learned single Judge. Therefore, the petitioner cannot now as of right claim counting of his KSRTC service for the purpose grant of pension from the Government service. But, since in the above said judgment, permission was granted to the petitioner therein to file a petition under sub Rule 2 of Rule 11 of Part III of Kerala Service Rules, I am satisfied that the petitioner can also be given that benefit. Accordingly, while declining to interfere with the orders impugned in this writ petition, I direct that in the event of the petitioner filing an appropriate representation under Rule 11(2) of Part III of Kerala Service Rules before the Government, the Government shall consider the same and take a decision thereon in accordance with law. In such event, final orders in the matter W.P.(C)No.34419/09 6 shall be passed by the Government within six months from the date on which the representation is received by the Government from the petitioner. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.34419/09 7