IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 WP(C).No. 8787 of 2004(U) ---------------------------------------- PETITIONER(S): ------------------------- G. SAMUELKUTTY, S/O. GEEVARGHESE, AGED 59 YEARS, HEADMASTER (RETD.) G.W.L.P.SCHOOL, ANTHAMON, KALAYAPURAM AND RESIDING AT ELLUMVILA HOUSE, KALAYAPURA P.O., KOTTARAKKARA. BY ADV. MR.N.UNNIKRISHNAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A & E) KERALA, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 5. THE ASSISTANT EDUCATION OFFICER, KULAKADA, KOLLAM DISTRICT. R1 TO R5 BY SPL.GOVERNMENT PLEADER MR.N.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON 11/11/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.8787/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE FORM NO.2 PENSION BOOK. P2:- COPY OF THE REPRESENTATION DTD. 24.2.04 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 8787 of 2004-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2009. JUDGMENT The plea raised by the petitioner herein is that the extended period of service obtained by him in terms of Rule 60© of Part I K.S.R., is liable to be counted for the purpose of grant of pension and other service benefits. 2. Learned Govt. Pleader submitted that the issue is covered against the petitioner in the light of the decision of a Division Bench of this Court in State of Kerala v. Prof D. Gopalakrishna Pillai and others (2009 (2) KHC 168). 3. The petitioner was an aided school teacher from 1.6.1966 to 31.5.1972. He joined the Government service as a teacher with effect from 1.6.1972 and retired on attaining the age of superannuation, with effect from 31.3.2000. He was due for retirement on 1.8.1999 on completion of 33 years of age, but continued upto 31.3.2000 till the end of the academic year. It is pointed out that he was sanctioned the pensionary benefits counting the period of service only upto 31.7.1999. Reliance is placed on the decision of a Full Bench of this Court in Accountant General v. Neelakantan Nair (2003 (3) KLT 525 (FB) in support of the plea. wpc 8787/2004 2 4. In Accountant General's case (supra), the Full Bench held that the teachers who are entitled to continue in service under Rule 60(c) of Part I K.S.R., are entitled for the benefit of salary and pay revision benefits. 5. In the counter affidavit filed by the respondents, the stand taken is that the date of superannuation of the petitioner is 31.7.1999 and he could have continued only upto 31.7.1999. The extended period cannot be reckoned for service benefits like pension. It is pointed out that the decision of the Full Bench referred to above, will not apply to the petitioner’s case. 6. Learned counsel for the petitioner relied upon an earlier decision of a Division Bench of this Court in Sirajudeen v. Director of Public Instruction (1994 (1) KLT 361). Therein, the teacher was allowed to continue in terms of Rule 60(c) of Part I K.S.R., but during the above period, he died. It was held that the legal heirs are entitled to the benefit of appointment under the dying in harness scheme. 7. In the above decision, the question was considered in the light of Clause 9 of the Govt. Order providing for appointment under the dying in harness scheme, wherein it was specified that employment assistance shall not be available to dependent of Government servant who is allowed to continue in service beyond superannuation either by extension of service or wpc 8787/2004 3 by re-employment and in whose case the death takes place after the normal date of retirement on superannuation. It was held that “the words ‘continue in service’ used in Rule 60(c) of Part I KSR cannot be equated with the words ‘extension of service’ used in clause (9) of the Government Order. It was further held that “if we read clause (9) in entirely, it is clear that what is contemplated by the words ‘by extension of service or by re- employment’ is an individual order of extension of service or of re- employment passed by the Government in that behalf. Clause (9) when it uses the words ‘by extension of service or by re-employment’ was not intended to cover cases where there is statutory postponement of the date of superannuation as in Rule 60 (c) of Part I K.S.R.” Relying upon the above decision, learned counsel for the petitioner submitted that the said aspect has not been considered by the Division Bench in State of Kerala’s case (2009 (2) KHC 168). It is submitted that the words “continue in service” have to be given due importance. 8. Learned Govt. Pleader made two submissions. It is submitted that even going by G.O.(P) 360/86/Fin dated 15.5.1986 in the case of teaching staff of the educational institutions (including Principals of Colleges) who are allowed to continue beyond the age of 55 years till the end of the academic year, their extended service will not count for pension. As per the wpc 8787/2004 4 amendment introduced in Rule 60(c) of Part I K.S.R., it is made clear that the extended period of service will not count as qualifying service and the pay received during the said period will not be reckoned for computing average emoluments of pensionary benefits or commuted value of pension. This amendment is given effect to from 15.5.1986, the date of the Govt. Order. It was held thus in para 6 of the judgment in State of Kerala’s case (supra): “If the amendments are valid, the petitioners are not entitled to count the service rendered by them between the date they areached the age of superannuation and 31.3.1997. They are also not eligible to reckon the revised salary they received for the month of March 1997, for the purpose of computing the terminal benefits. A subordinate legislation can be impugned on various grounds. Those grounds have been succinctly stated by a Division Bench of this Court in Pankajakshy v. George Mathew, 1987 (2) 123.” The above dictum will apply here, evidently. If so, the petitioner cannot succeed. 9. Herein, learned counsel for the petitioner has raised an argument that the denial of benefit will put him to real hardship, as the Government has required the service of the person and salary has also been disbursed. It is therefore submitted that there is no valid reason for denying the benefit of wpc 8787/2004 5 service upto the date of actual retirement. 10. In the light of the view taken by the Division Bench in State of Kerala’s case (2009 (2) KHC 168), the petitioner cannot be heard to submit that the period will have to be counted for the purpose of pension. The amendment is valid and effective from 15.5.1986. There is no challenge regarding the amended provisions of Rule 60(c) of Part I K.S.R., herein. In fact, the Division Bench in the above case, was of the view that the amendments were valid also. The question was considered whether the petitioners had a vested right to count the said service for the purpose of grant of pension. This was also answered in para 7 of the judgment, against the petitioners. It was held thus para 7: “The executive order G.O.(P) 360/86/Fin. Dated 15.5.1986 also provided that the extended period cannot be counted for pension. That means, the teachers were treated as retired on the date of superannuation and the terminal benefits were being granted to them accordingly. So, the claim that they were enjoying a vested right regarding these matters, is plainly untenable. At any rate, the service was never counted for pensionary benefits after 15.5.1986. Now because of the observations of the Full Bench, since certain disputes arose, the Rule has been amended with retrospective effect from 15.5.1986. Therefore, the claim of the petitioner that it was a vested right and the right in this regard accrued to them long ago, wpc 8787/2004 6 cannot be accepted. So, the decisions cited concerning divesting of vested rights, by retrospective amendment to the Rules, can have no application to the facts of this case. Accordingly, the challenge raised against the amendments, mainly, based on the existence of a vested right in this regard cannot be accepted.” 11. The arguments based on Sirajudeen's case (1994 (1) KLT 361), cannot also be supported. Clause 9 of Ext.P1 Government Order considered therein excluded the benefit of employment assistance to dependents of employees who continued in service by extension of service or re- employment. It was held that the words 'continue in service' in Rule 60(c) cannot be equated with extension of service in Clause 9. It is in that context it was held that rule 60(c) statutorily postpones the date of superannuation. The said view is not contrary to the view taken in State of Kerala's case (2009 (2) KHC 168). In that view of the matter, the petitioner is not entitled to succeed in this writ petition and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/