IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WP(C).No. 5349 of 2009(K) ------------------------- PETITIONER(S): --------------- 1. B.GOPALAKRISHNAN NAIR BHARATHY VILAS, VATTIYOORKAVU PO THIRUVANANTHAPURAM. 2. BABY CHERIAN, 2-RAJALEKSHMI NAGAR PATTOM PO, THIRUVANANTHAPURAM. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.M.CHANDRA BOSE SRI.A.RAJASIMHAN DR.ABRAHAM P.MEACHINKARA RESPONDENT(S): --------------- 1. REGISTRAR OF THE CO-OPERATIVE SOCIETIES, STATUE PO, THIRUVANANTHAPURAM. 2. STAE CO-OPERATIVE UNION REPRESENTED BY ITS SECRETARY SAHAKARANA BHAVAN, OTTUKUZHY,THIUVANANTHAPURAM. 3. SECRETARY TO GOVERNMENT DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT STATUE, THIRUVANANTHAPURAM. ADV. SRI.C.P.MOHAMMED NIAS FOR R2 MR.P.NANDAKUMAR, GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.5349/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF APPROVAL ORDER DATED 06/09/97. P2 : COPY OF REGULATIONS. P3 : COPY OF LETTER DATED 12/08/98. P4 : COPY OF JUDGMENT IN WP NO.25124/03. P5 : COPY OF LETTER DATE DATED 07/09/05. P6 : COPY OF APPEAL. P7 : COPY OF AFFIDAVIT. P8 : COPY OF G.O.(Rt.) NO.782/08/CO-OP. DATED 03/12/2008. P9 : COPY OF CIRCULAR, G. (3) 18642/71 DATED 08/06/1971. P10 : COPY OF CERTIFICATE DATED 30/04/1991. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.5349 of 2009 (K) --------------------------------- Dated, this the 22nd day of July, 2010 J U D G M E N T The petitioners joined the services of the 2nd respondent as Co-operative Education Instructors with effect from 10/07/1962 and 01/05/1962 respectively. They earned promotions and retired from service on 31/03/1991 and 31/05/1991 respectively. 2. With effect from 01/07/1990, a self generating Pension Scheme was introduced, the Regulations of which approved by the Government is Ext.P2. Clause 9 of Ext.P2 provides for 'qualifying service' and sub clause (iii) thereof provides that the period during which there was no contribution of Provident Fund by the employer in respect of any of the employees, shall not be computed for the length of qualifying service for the purpose of pension. It is stated that the employer’s contribution in respect of the petitioners were paid only for the period subsequent to 01/10/1974. Therefore, excluding their previous service, qualifying service of the petitioners was reckoned from 01/10/1974, and on that basis, pension was WP(C) No.5349/2009 -2- sanctioned to the petitioners @ Rs.1402/- & Rs.704/- respectively. 3. They made representations for reckoning their previous service also as qualifying service, as a result of which, finally, from out of the education fund, required amount was apportioned with the sanction of the Government and employer's Provident Fund contribution for the period prior to 01/10/1974 was also remitted. Accordingly, their pension was revised with effect from 01/12/2001 and was fixed @ Rs.2390/- and Rs.1472/- respectively. According to the petitioners, now that Employer’s Provident Fund contribution for the whole period of their service has been paid, and they have been paid pension reckoning their entire service as qualifying service only with effect from 01/12/2001, and that arrears on that basis should be paid for the whole period. This claim made by them has been finally rejected by Ext.P8 order dated 03/12/2008. 4. The contention advanced by the respondents is that the petitioners became employees of the 2nd respondent only subsequent to 01/10/1974 and that prior to the said date, they were being paid from the education grant extended by the Government. It is also stated that arrears for the period prior to WP(C) No.5349/2009 -3- 01/10/1974 was paid by the 2nd respondent from out of its own resources with a condition that the petitioners will not be entitled to arrears. 5. In my view, the petitioners are entitled to succeed. Even if it is assumed that during the period prior to 01/10/1974 they were not employees of the 2nd respondent and that the employer's Provident Fund contribution for the said period was not paid at that stage, pursuant to Ext.P3 and the sanction granted by the Government, amount for Employer's contribution covering the entire period has since been paid. If that be so, the ground for exclusion of the period of non-payment as contemplated in clause 9(iii) of Ext.P2 Regulations ceases to exist, insofar as the petitioners are concerned. Consequently, they are entitled to have the entire qualifying service reckoned and on that basis, they ought to have been paid pension subsequent to the month of their retirement, since the Scheme was implemented with effect from 01/07/1990. 6. Admittedly, their initial payment of pension was without reckoning the period of service rendered by the petitioners prior to 01/10/1974. If that be so, the petitioners are entitled to have the WP(C) No.5349/2009 -4- amount of their pensionary benefits revised reckoning their service for the period prior to 01/10/1974, and on that basis, they are entitled to be paid arrears also. Therefore, this writ petition is disposed of directing the 2nd respondent to take necessary steps for requantifying the amount due to the petitioners in the manner as directed above. This shall be done as expeditiously as possible, at any rate, within three months of receipt of a copy of this judgment. In order to enable the 2nd respondent to do so, Ext.P8 order will stand set aside. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg