IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 4408 of 2008(Y) ----------------------------------- PETITIONER: ------------------ GOPALAKRISHNAN K.V., (RETD WATCHMAN, GURUVAYOOR DEVASWOM), KOZHIKODAN HOUSE, P.O.NEDUPUZHA, TRISSUR DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENTS: ---------------------- 1. GURUVAYOOR DEVASWOM REPRESENTED BY ITS ADMINISTRATOR, GURUVAYOOR. 2. ADMINISTRATOR, GURUVAYOOR DEVASWOM, GURUVAYOOR. 3. DEPUTY DIRECTOR OF LOCAL FUND AUDIT (GURUVAYOOR DEVASWOM), OFFICE OF THE LOCAL FUND AUDIT, DEVASWOM BUILDINGS, GURUVAYOOR. BY ADV. SRI.V.KRISHNA MENON FOR R1 & 2 BY GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, ALONG WITH WPC NO. 8159 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4408/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE REF. B1-6718/83 DT. 20.4.84 OF THE 2ND RESPONDENT. EXT.P2:- COPY OF THE PROCEEDINGS REF. B1-6301/85 DT. 23.9.95 OF 2ND RESPONDENT. EXT.P3:- COPY OF THE PROCEEDING S NO.A3-2318/02 DT. 9.10.02. EXT.P4;- COPY OF THE CIRCULAR DT. 20.9.07 OF 2ND RESPONDENT. EXT.P5:- COPY OF THE REPRESENTATION DT. 4.10. 07 OF PETITIONER. EXT.P6:- COPY OF THE ORDER DT. 20.1.08 OF THE 2ND RESPONDENT. EXT.P7:- COPY OF THE JUDGMENT DT. 2.2.07 IN WP.C NO.33329/06. /TRUE COPY/ P.S. TO JUDGE tss V.GIRI, J. ------------------------- W.P.(C).Nos.4408 of 2008 & 8159 of 2008 ------------------------- Dated this the 8th day of July, 2008. JUDGMENT Common issues are involved in these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. I will refer to W.P.(C). No.4408/08 and the decision taken thereon will be applicable to the case of the petitioner in W.P.(C).Nos.8159/08 as well. 2. The petitioner started service in the Guruvayoor Devaswom, 1st respondent, from 22.4.1983 as a scavenger. According to the petitioner, though there was a due process of selection, prior to his appointment, he, along with others, was nevertheless selected as a NMR worker. The petitioner was included, along with others, in the seniority list of NMR Workers, working as Sweepers/Scavengers as evidenced by Ext.P1. 3. While so, by Ext.P2 order dated 23.9.1985, the petitioner and others were appointed on a regular basis in the scale of pay of Rs.280-400 as Scavenger (The petitioner in W.P.(C).NO.4408/08 & con.case :: 2 :: the other writ petition was appointed as a Sweeper). Both the posts are borne in the same service. The petitioner submits that there is no reason why they were regularly appointed only on 23.9.1985, ignoring their prior service from 22.4.1983 to 23.9.1985, nor was there any break in service. Therefore, the petitioner and others took up the matter before the Devaswom Board and by decision No.43 dated 31.10.1990 the Devaswom Committee decided that the NMR service of those employees, whose appointment as NMR worker was followed by a regular service, could be reckoned as qualifying service for pension and gratuity, without any benefit of increments or arrears of pay or seniority. Though the Board has taken a decision as early as on 31.10.1990, the proceedings evidencing the same came to be issued only as per Ext.P3 dated 9.10.2002. By Ext.P3, it is declared that the petitioner will be treated as regularised in service with effect from 22.04.1983, i.e. the date on which he commenced NMR service. The petitioner retired from service on 31.01.2008. But then, it was found that his retiral benefits are being W.P.(C).NO.4408/08 & con.case :: 3 :: calculated by reckoning his service as having commenced only with effect from the date of regular appointment i.e, 23.9.1985, ignoring the service from 22.4.1983 to 23.9.1984. Ext.P3 has been challenged in this writ petition. 4. A counter affidavit has been filed on behalf of the respondents 1 and 2. It is contended that the Devaswom Managing Committee has decided to reckon NMR service of the petitioner from 22.4.1983 to 23.9.1984 for pensionary benefits on the basis of G.O.(P) No.543/89/Fin dated 20.11.1989. But, by a subsequent Government Order, G.O.(P) No.3116/98/Fin dated 15.12.1998, the earlier Government Order has been cancelled with effect from 1.10.1994 and therefore, it was ordered that the provisional service, with or without break, rendered by the employees upto 30.09.1994 would be treated as 'qualifying service' for the limited purpose of granting increments, subject to the condition stated therein. In other words, according to the Devaswom, the earlier provisional service would not be counted as part of the qualifying service for the purpose of W.P.(C).NO.4408/08 & con.case :: 4 :: pension. It was taking note of the subsequent order of 1998 that the 1st respondent decided that the earlier decision taken as evidenced by Ext.P3 cannot be given effect to, in the matter of calculating the qualifying service for pension and other retiral benefits, insofar as the petitioner is concerned. 5. A reply affidavit has been filed by the petitioner. 6. I heard Smt.P.V.Asha, learned counsel for the petitioners, Sri.V.Krishna Menon, learned standing counsel for Guruvayoor Devaswom and Smt.T.B.Remani, learned Government Pleader. 7. The fact that the Devaswom itself had decided to treat the commencement of the regular service, insofar as the petitioner is concerned, as 22.4.1983, i.e. the date on which he commenced NMR service, is not disputed. In fact, Ext.P3, which is issued in 2002 had only given effect to a decision which was taken by the Managing Committee as per Resolution No.43 dated 31.10.1990. If that be so, then the commencement of regular service, as noted in Ext.P3, will have to be given effect to and the qualifying W.P.(C).NO.4408/08 & con.case :: 5 :: service rendered by the petitioner, for the purpose of pension and other retiral benefits will have to include the service from 22.4.1983 onwards. 8. The reason stated by the 1st respondent for not giving effect to Ext.P3 does not seem to be sustainable. Firstly, when the Devaswom Committee took a decision on 31.10.1990 to treat the NMR service of the petitioner and 24 others as part of the regular service, it was a decision, which was in consonance with G.O.(P) No.543/89/Fin dated 20.11.1989. It is true that the said Government Order was subsequently cancelled as per G.O.(P)No.3116/98/Fin dated 15.12.1998 and such cancellation was effected with effect from 1.10.1994. In other words, a decision taken by the Managing Committee as early as on 31.10.1990 was not open to an attack or a review, merely on the basis of the Government Order dated 15.12.1998, which even otherwise was given effect to only from 1.10.1994. Therefore, a rethinking on the part of the Devaswom, as was apparently purported to be done in not giving effect to Ext.P3, does not W.P.(C).NO.4408/08 & con.case :: 6 :: seem to be warranted by G.O.(P)No.3116/98/Fin dated 15.12.1998. 9. Though Ext.P3 is dated 9.10.2002, it only gave effect to the decision taken by the Managing Committee as early as on 31.10.1990. In my view, while issuing Ext.P3, all that the 1st respondent has done, was to give effect to a decision which was validly taken on 31.10.1990. 10. I am also in agreement with the submission made by the learned counsel for the petitioners that the 1st respondent would have exercised the power under Rule 11 of Part III of the Kerala Service Rules, when it adopted Resolution No.43 dated 31.10.1990 in deciding to treat the NMR service of the petitioner and 24 others, as part of the qualifying service for pension and other retiral benefits. It was a valid decision. Issuance of G.O.(P) No.3116/98/Fin dated 15.12.1998 should not, in any manner, have any impact on the decision taken on 31.10.1990. 11. If that be so, Ext.P3 is to be given effect to and the NMR service rendered by the petitioner is to be treated as part of the W.P.(C).NO.4408/08 & con.case :: 7 :: qualifying service for pension and other retiral benefits. But, it is made clear that it shall not have any other impact. In the result, the writ petitions are allowed. It is declared that the services rendered by the petitioners as NMR service {from 22.4.1983 to 23.9.1984 in the case of the petitioner in W.P.(C)No.4408/08 and from 18.1.1983 to 23.9.1985 in the case of the petitioner in W.P.(C)No.8159/08} shall be treated as qualifying service for pension and other retiral benefits due to the petitioners. Accordingly, such benefits shall be re-computed and consequential revised orders shall be passed within two months from the date of receipt of a copy of this judgment. Sd/- (V.GIRI) JUDGE sk/ //true copy//