IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 24546 of 2004(V) -------------------------- PETITIONER(S): --------------- 1. P.HARIDASAN, LECTURER, SELECTION GRADE (RETD), DEPARTMENT OF COMMERCE, S.N.COLLEGE, KOLLAM, RESIDING AT "BHAVANA" (PADMA NIVAS) KILIKOLLOOR P.O., KOLLAM. 2. S.SUSEELA, LECTURER, SELECTION GRADE (RETD) DEPARTMENT OF CHEMISTRY, S.N.COLLEGE FOR WOMEN, KOLLAM, RESIDING AT "ASWATHI" KC 38/392, AMRUTHAKULAM, MUNDACKAL EAST, KOLLAM. 3. P.N.NARAYANAN, LECTURER, SELECTION GRADE (RETD), DEPARTMENT OF CHEMISTRY, T.K.M.COLLEGE OF ARTS AND SCIENCE, KOLLAM, RESIDING AT "BINDU NIVAS", CHANDANATHOPPU, KOLLAM-11. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY, FINANCE (PENSION B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. 4. UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, THIRUVANANTHAPURAM. ADV. SRI.M.K.CHANDRAMOHAN DAS,SC,KERALA UTY. SPECIAL GOVERNMENT PLEADER MR. N. MANOJ KUMAR FOR R1 TO 3 SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY. FOR R4 SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.10.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CR P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 24546 OF 2004 ----------------------------------- Dated this the 9th day of October, 2009 J U D G M E N T Whether the prior service of the petitioners rendered in the Central Government, before they joined the service under the Collegiate Education Department in Aided Colleges within the State, can be reckoned for the purpose of pension and pensionery benefits, is the issue involved in this Writ Petition. 2. The first petitioner was working as a Selection Grade Lecturer in S.N. College, Kollam under the University of Kerala and after 21 years of continuous service, he got superannuated and came out on 31.03.2002. Prior to the said service, the first petitioner had worked in the Central Government for the period from 29.05.1970 to 13.12.1980, which service was quit by him of his own and joined the service within the State as mentioned above. In the case of the second petitioner, she retired on 31.03.2004 after 23 years of service rendered in the very same College under the same University and prior to the commencement of the said service, she was also in the Central Government service for more than 7 years from 26.05.1973 to 08.10.1980. In the case of the third petitioner, WPC NO. 24546/2004 2 who retired from the service on 31.05.2002 after a continuous period of 24 years in TKM College of Arts and Science in the University of Kerala, he had also more than 5 years of service in the Central Government during the period from 08.09.1972 to 07.12.1976 and further from 08.12.1976 to 28.01.1978. The case of the petitioners is that, as per Ext.P1 Government Order dated 12.11.2002, prior service under the Central Government/Central Public Sector undertaking put in by the State Government employees was ordered as reckonable for the purpose of fixing the pension and pensionary benefits, on condition that the pro rata contribution shall be effected by the concerned Government/Public sector undertaking where such prior service had been rendered. Subsequently, as per Ext.P2 Government Order dated 06.12.2003 it was ordered as follows: “in the case of prior service rendered by Central Government employees in State Government and vice versa, the liability of Pension including gratuity, will be borne in full by the Central Government/State Government to which the Government servant permanently belongs at the time of retirement and no recovery of proportionate pension will be made from Central Government/State Government under whom he had served. But in the case of employees who left the former service in the Central Public Sector Undertakings the orders issued in G.O. dtd. 12.11.2002 will stand”. 3. Pursuant to the above G.O.s, the petitioners herein took up their case before the Government, seeking for the benefits flowing from WPC NO. 24546/2004 3 Ext.P1 and P2, which led to issuance of Ext.P6 dated 22.03.2004, whereby the request was turned down, stating that prior service of the petitioners is not at all reckonable as per the ‘existing Rules/orders’, which in turn has been subjected to challenge on many a ground. 4. The learned counsel for the petitioner submits, with specific reference to Ext.P7 that Section 60 of the Kerala University Act, 1974 prescribing the conditions of service of teachers of Private Colleges clearly stipulates that, notwithstanding anything contained in any law or in any contract or other document, the conditions of service of teachers of Private Colleges, whether appointed before or after the commencement of the said Act, including conditions relating to Pay, Pension, Provident Fund, Gratuity, Insurance and age of retirement, shall be such, as may be prescribed by the Statutes. Now, coming to the Statute, Ext.P8 (the Kerala University First Statutes, 1976) stipulates under Section 5(1) of Chapter II as follows:- Section 5(1) Kerala Service Rules to apply to teachers who retire at the age of 55 years:- The teachers who retire at the age of 55 shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges including family pension and death - cum - retirement gratuity and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of the Kerala Service Rules (as amended from time to time) shall mutatis mutandis apply to such teachers. Thus, going by Ext.P1 and P2, read with Ext.P7 and P8, the petitioners are very much entitled to get the benefits sought for and as WPC NO. 24546/2004 4 such, the stand taken by the Government turning down the claim vide Ext.P6 is not correct or sustainable. 5. The learned Government Pleader, referring to the contents of the Counter affidavit submits that Ext.P1 and P2 Government orders are intended and applicable only in respect of the ‘State Government employees’ and that the petitioners admittedly having rendered service in ‘Private Aided Colleges’ cannot be considered as State Government Employees under any circumstance. Reliance is also placed on the decision rendered by a learned Judge of this Court in WP(C) 14836/2004, whereby a similar claim put forth by the petitioner therein was turned down, observing that, the various orders produced in the said case did not support the contention raised by the petitioner, as none of the said orders did pertain to 'Aided College service'. It is also brought to the notice of this Court that, the said decision has become final by virtue of the dismissal of the Writ Appeal No. 1521/2009 preferred therefrom (as per judgment dated 23.07.2009 declining interference) holding that the appellant was not able to show any Rule or Order which bound the Government to count the service under the Central Government also, for fixing the pensionary benefits. 6. Learned counsel for the petitioners placed a copy of the judgment dated 14.07.2009 in WP(C) No. 2328/2008 passed by the very WPC NO. 24546/2004 5 same learned Judge who pronounced the verdict in WP(C) 14836/2004, wherein exactly similar claim, as involved in the present case, was considered with reference to Ext.P1 and P2 G.O.s (which were produced as Exts. P7 and P8 therein). After discussing the facts and figures, it was held that, by virtue of the above Government Orders, the petitioner was very much entitled to get the benefit to have the prior service counted for fixing the pensionary benefits. Accordingly, the impugned order was set aside and the first respondent/ Government was directed to refix the pensionary benefits extending the benefit of the said Government orders and to pay the arrears within the time stipulated therein. The verdict rendered earlier in WP(C) 14836/2004 was not intercepted by the Division Bench in Writ Appeal No. 1521/2009, holding that in the absence of any Rules/Orders, no benefit could be extended to the petitioners/appellants. This observation does not intend to bar the way of the petitioners herein, who have produced Ext.P1 and P2 Government Orders along with Ext.P7 (Act 17 of 1974) and Ext.P8 University First Statutes to mould their case, substantiating the claim in an equal or more solid State. 7. The learned Government Pleader incidentally pointed out that, the teachers working in ‘Aided Colleges’ cannot be considered as ‘State Government Employees’ and that Ext.P1 and P2 Government Orders are only with respect to the service of the State Government Employees, which WPC NO. 24546/2004 6 cannot be widened, particularly being a matter of ‘concession’. Reliance is also placed on paragraph 4 of the judgment rendered by the Division Bench of this Court in State of Kerala Vs. Philomina [2008 (1) KLT 666], where, a passing observation has been made, that when some concessions are extended by the Government, such concessions will have to be given only on the basis of the parameters prescribed therein and that, it cannot be widened under any circumstance. With regard to the prayers in the instant case, it is not for extension of any concession, but for seeking the benefits directly flowing from Ext.P1 and P2 G.O.s, read in conjunction with Ext.P7 and P8 (University Act and First Statutes) which were considered and relied on by this Court earlier, while passing the verdict in WP(C) 2328/2008. Further, Ext.P1 and P2 Government orders cannot be stated as confined to the ‘State Government Employees’, particularly since the same refer to the benefits as payable to the employees who were having prior service in the “Public Sector undertakings” as well. 8. Service in a Public Sector Undertaking, mostly constituted under the relevant provisions of the Indian Companies Act, 1956 cannot be regarded service rendered in the State/Central Government. The contents of Ext.P1 and P2 G.O.s show that the intention of the Government was not to confine the benefits to the employees who had their service as a Government Employee alone. The position becomes more clear by virtue WPC NO. 24546/2004 7 of Ext.P7 (Act 17 of 1974), read with Ext.P8 University First Statutes, making it crystal-clear that the terms and conditions of service of the teachers working in the Aided Colleges shall be fixed in the same manner as applicable to the similar counter parts in the Government service. This being the position, absolutely no distinction can be made in the case of the petitioners herein, which otherwise will amount to discrimination; more so in view of the dictum laid down by the Apex Court in U. Raghavendra Acharya & others Vs. Karnataka and others [AIR 2006 SC 2145] (paragraph 27). 9. In the above facts and circumstances, the impugned order Ext.P6 is set aside. The first respondent is directed to refix the pension and pensionary benefits payable to the petitioners, granting the benefit of Ext.P1 and P2 Government Orders, read in the light of Ext.P7 and P8 and all the arrears payable thereunder shall be disbursed to them as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. The Writ Petition is allowed. No cost. P.R.RAMACHANDRA MENON JUDGE dnc