IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 WA.No. 1771 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.24476/2007 DATED 19/02/2008 .................... APPELLANTS/RESPONDENTS 1 TO 4 IN THE W.P.(C).: ----------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PRINICPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. BY SR. GOVERNMENT PLEADER SRI.BENNY GERVACIS RESPONDENTS/PETITIONER & 5TH RESPONDENT IN THE W.P.(C).: ------------------------------------------------------------------------------------------------ 1. ANNIE LOUKOSE, LECTURER SELECTION GRADE (UNDER VOLUNTARY RETIREMENT), DEPARTMENT OF MATHEMATICS, BCM COLLEGE, KOTTAYAM, NEW RESIDING AT 1800 E.M. 1092 APT II 602 MISSOURT CITY TX 77459, USA. 2. THE PRINCIPAL, BCM COLLEGE, KOTTAYAM. BY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B. KOSHY & THOMAS P.JOSEPH, JJ. ------------------------------------------------------------ W.A.NO: 1771 of 2008 ----------------------------------------------------------- Dated this the 5th September2008. JUDGMENT Koshy, J. The petitioner was Lecturer, Selection Grade, in the Department of Mathematics at B.E.M.College, Kottayam. She was regularly appointed in the permanent post in 9.1.1985. But in 1982 she was employed in a leave vacancy for four months. So she had four months temporary service. If that service is also counted she will be having more than 20 years eligible service for getting retiral benefits. She made a request for voluntary retirement. That was accepted on the understanding that counting the entire period, she will be entitled to pension. It was not granted on the ground that the above services during leave vacancy cannot be reckoned as completing 20 years of service. If prior service is not counted, there is shortage of 81 days to complete 20 years. The learned Govt. Pleader submitted that it was a provisional service and it was a service on leave vacancy. The learned Judge observed as follows:- “Admittedly, it was because of the mistake committed by both the petitioner and the department, (if there is such a mistake) that the petitioner was allowed to retire before completing 20 years of service. Without completing 20 years of service, the respondents could not have validly allowed the petitioner to retire from service. In the above circumstances, I am of the opinion that for enabling the petitioner to draw pension, provisional service for the period from 21.8.1982 to 17.12.1982 can be reckoned as service to complete 20 years of service. Accordingly, I direct respondents 1 to 4 to sanction and disburse retirement W.A.1771/08 2 benefits due to the petitioner in accordance with the above directions within a period of two months from the date of receipt of a copy of this judgment. I make it abundantly clear that this direction is as a very special case because for the peculiar facts and circumstances obtaining only for the purpose of enabling the petitioner to complete 20 years of service, and the same shall not be treated as law on the subject of treating provisional service as service counting for pension.” 2. The learned Judge has exercised the discretionary jurisdiction under Art.226 of the Constitution of India. The only change is that instead of provisional service it can be stated as earlier service. Earlier service was a service on leave vacancy. The learned Judge has made it clear that it is applicable to the petitioner only as the peculiar facts of the case. Considering the above circumstances we are not granting the relief prayed for. Writ appeal is dismissed. J.B.KOSHY Judge THOMAS P. JOSEPH Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: