IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 OP.No. 6928 of 2003(Y) ----------------------------------- PETITIONER(S): ------------------------- 1. C. JEGENDRANATHA VIDYASAGAR, RETIRED ADMINISTRATIVE-CUM-ACCOUNTS OFFIER, DIRECTORATE OF MINING AND GEOLOGY DEPARTMENT, RESIDING AT 'DARSANA', HOUSEN NO.101, A.K.G. NAGAR, PEROORKKADA, THIRUVANANTHAPURAM-695 005. 2. K.V. SADANANDAN, RETIRED DISTRICT EDUCATIONAL OFFIER, RESIDING AT 'SREELAKAM', V.P. THAMPI ROAD, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-43. 3. T.M. SOMAN, JOINT DIRECTOR OF PANCHAYATS, DIRECTORATE OF PANCHAYATS, THIRUVANANTHAPURAM. 4. C.K. NARAYANAN, DEPUTY DIRECTOR OF TREASURIES, KOTTAYAM. 5. P.C. GOPALAN, RETIRED JOINT DIRECTOR OF INDUSTRIES & COMMERCE, RESIDING AT 'CHAITHRAM', T.C.15/1092, VADAKKADU, KUNNUKUZHI, VANCHIYOOR P.O., THIRUVANANTHAPURAM-35. 6. C.K. KUTTAPPAN, RETIRED MEMBER (DEPARTMENTAL), SALES TAX APPELLATE TRIBUNAL, RESIDING AT 'CHAITHRAM',BHAGAVATHI NAGAR, N.C.C. ROAD, PEROORKKADA P.O., THIRUVANANTHAPURAM-5. 7. D. RUPAN, RETIRED JOINT DIRECTOR, IRRIGATION DEPARTMENT, RESIDING AT 'NIKHIL', KOTTUMBOOR, MANAPPURAM, MALAYINKIL P.O., THIRUVANANTHAPURAM-71. OP. NO.6928/2003 8. Y. GNANASEELAN, RETIRED DEPUTY DIRECTOR OF EDUCATION, RESIDING AT T.C.54/1464-01, LEEGARDENS, EDAGRAMOM, KARUMOM P.O., THIRUVANANTHAPURAM-2. 9. G. THULASEEDHARAN, RETIRED DISTRICT EDUCATIONAL OFFICER, RESIDING AT 'KARTHIKA' NEAR ANGAMALI RAILWAY STATION (EAST), ANGAMALI P.O., ERANAKULAM-683 572. BY MR.C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE MR.ELVIN PETER P.J. MR.S.RAMESH MR.P.N.SANTHOSH MR.S.D.ASOKAN MR.T.NAVEEN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MINING & GEOLOGY, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF PANCHAYATS, VIKAS BHAVAN THIRUVANANTHAPURAM. 5. THE DIRECTOR OF TREASURIES, POWER HOUSE ROAD, THIRUVANANTHAPURAM. 6. THE DIRECTOR OF INDUSTRIES & COMMERCES, VIKAS BHAVAN, THIRUVANANTHAPURAM 7. THE CHIEF ENGINEER, IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM. 8. THE SECRETARY, BOARD OF REVENUE (TAXES), THIRUVANANTHAPURAM. SPL. GOVERNMENT PLEADER MR. N.MANOJ KUMAR FOR R1 TO 8 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, ALONG WITH WPC NO. 15119 OF 2004 WPC NO. 6966 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.6928/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION DT. 24.9.92 FILED BY THE IST PETITIONER BEFORE THE GOVT. P2:- COPY OF THE MEMO NO.8152/E1/92 DT. 16.1.93 ISSUED BY THE DIRECTOR OF MINING & GEOLOGY. P3:- COPY OF THE REPRESENTATION DT. 18.6.96 FILED BY THE IST PETITIONER BEFORE THE GOVT. P4:- COPY OF THE ORDER NO.23511/L2/96/ID DT. 7.8.97 ISSUED BY THE GOVT. P5:- COPY OF THE REPRESENTATION DT. 29.11.97 FILED BY THE IST PETITIONER BEFORE THE GOVT. P6:- COPY OF THE ORDER NO.43231/L2/97/ID DT. 25.3.98 ISSUED BY THE GOVT. P7:- COPY OF THE MEMO NO.14270/E1/97 DT. 17.4.93 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY. P8:- COPY OF THE ORDER NO.13265/PEN. B1/98/FIN. DT. 4.4.98 ISSUED BY THE GOVT. P9:- COPY OF THE ORDER G.O.(P) NO. 319/85/FIN. DT. 5TH JUNE, 1985. P10:- COPY OF THE ORDER, G.O.(P) NO.369/87/FIN. DT. 31.3.87. P11:- COPY OF THE ORDER, G.O.(P) NO.298/89/FIN. DT. 17TH JUNE, 1989. P12:- COPY OF THE ORDER, GO(P) NO.361/89/FIN. DT. 10.8.89. P13:- COPY OF THE ORDER, GO(P) MO.383/89/FIN. DT. 29.8.1989. P14:- COPY OF THE ORDER, B.O. NO.424/92 (ESTT.IV/1960/91) DT. 12.3.92 ISSUED BY THE KSE.BOARD. P15:- COPY OF THE ORDER (G.O.(RT) NO.596/69/IND. DT. 11.6.69. P16:- COPY OF THE JUDGMENT DT. 26TH JULY, 1996 IN OP. 3048/90 OF THIS HONOURABLE COURT. P17:- COPY OF THE ORDER, GO(MS) NO.227/75/FIN. DT. 5TH JUNE, 1975. P18:- COPY OF THE ORDER GO(RT) NO.475/96/FIN. DT. 2.2.96. P19:- COPY OF THE ORDE, GO(RT) NO.9548/2000/GAD. DT. 4.12.2000. OP NO. 6928/2003 P20:- COPY OF THE ORDER, GO(P) 228/01/FIN. DT. 2ND FEBRUARY, 2001. P21:- COPY OF THE JUDGMENT DT. 13TH AUGUST, 2002 IN OP. 10540/98 OF THIS HONOURABLE COURT. P22:- COPY OF THE ORDER, GO(P) 703/02/FIN. DT. 12.11.02 ISSUED BY THE GOVT. P23:- COPY OF THE ORDER 81551/PEN.B2/98/FIN. DT. 7.2.03 ISSUED BY THE GOVT. P24:- COPY OF THE ORDER , G.O. DT. 10.1.08 ISSUED BY THE GOVERNMENT. TRUE COPY P.A. TO JUDGE TSS P.N.RAVINDRAN, J. ----------------------------------------------------- O.P.No.6928 of 2003, W.P.(C)Nos. 15119 of 2004 & 6966 of 2006 ------------------------------------------------------ Dated 1st June, 2009 JUDGMENT 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 2.2.2001 proposing to amend Rule 20 of Part III of the Kerala Service Rules. In the said Government order it was O.P.No.6928/2003 & conncected cases 2 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 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 2.2.2001 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 2.2.2001 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 O.P.No.6928/2003 & conncected cases 3 laid down by the Division Bench in the aforesaid decision it has to be held that the Government order dated 2.2.2001 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 21.6.2008 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 DCRG. Therefore, Rule 20 as amended also does not apply to the petitioners' case. Since the proposal set out in the Government order dated 2.2.2001 has been carried out by amending the rule, the Government order dated 2.2.2001 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 O.P.No.6928/2003 & conncected cases 4 petitions cannot be said to be illegal or arbitrary. 4. I however notice that the Government have in Ext.P24 order dated 10.1.2008 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 O.P.No.6928/2003 & conncected cases 5 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 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. P.N.RAVINDRAN Judge TKS