Case: Valsan P Vs. The State of Kerala and Ors

in such manner as may appear to the Government to be just and equitable: Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders. This amendment shall be deemed to have come into force with effect from 17th December 1958. 11. In that backdrop, having noted that the appellants first spell of pensionable service was under the Central Government and the second spell was under the State Government, it would be apposite to take note of the Government Order dated 12.11.2002 referred by the learned counsel for appellant. The relevant portion of the Government Order dated 12.11.2002 reads as hereunder: Government have examined the matter in detail and are pleased to order that the employees of the State Government Departments who left the former service in Central Government/ Central Public Sector Undertakings on their own volition for taking up appointment is State government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in the State Government Department if the former employer remits the share of proportionate prorate pensionary liability on a service share basis. These Orders will take effect, including monetary effect, only from the date of this order and individual cases otherwise settled will not be re-opened. 12. Though the benefit of reckoning the earlier pensionable service between Central Government and State Government was provided, it was subject to remitting the proportionate pro rata pensionary liability on service share basis between the two employers. However, by a subsequent Government Order dated 06.12.2003, which has reference to the earlier Government Order dated 12.11.2002, the State Government has done away with the proportionate pro rata sharing between the two employers for payment of pensionary benefits. The State Government has notified to bear the pensionary benefits. The relevant portion of the said Government Order dated 06.12.2003 reads as hereunder: Government have examined the matter in detail and in modification of the orders issued in the G.O. 3rd cited are pleased to order that in the case of prior service rendered by Central Government employees in State Government and vice versa, the liability of Pension including gratuity, will be become in full by the central Government/State Government to which the Government servant permanently belongs at the time of retirement and no recovery of proportionate pension will be mode from Central Government/State Government under whom he had served. But in the case of employees who left the former service in the Central Public Sector Undertakings the orders issued in G.O. dt 12.11.02 will stand. 13. In view of the said position, the observation of the High Court that the appellant is free to move the Central Government if he has a case that his service in the Telecom Department is liable to be reckoned is not justified. If the break in service is condoned as sought by the appellant, then the entire relief would be available at the hands of the State Government. Therefore, the solitary moot question for consideration in the instant case is, as to whether the break in service interrupting the service rendered in Telecom Department and the Technical Education Department is condonable. 14. On this aspect, the learned counsel for the appellant has relied on the Government Order dated 24.09.2014 whereunder the condonation of the non-qualifying sandwiched period was provided for, to reckon the qualifying service. The Government Order was made with reference to Rule 29 (a) Part III KSR. The Government Order dated 24.09.2014 reads as hereunder: As per Rule 29(a) Part III Kerala Service Rules, resignation of the Public Service or dismissal or removal from it, entails forfeiture of past service. As per Rule 29(b) of ibid, resignation of an appointment to take up another appointment the service in which counts is not resignation from public service and the break between two appointments should not exceed the joining time admissible under the service rules plus public holidays. 2) Several requests have been received in Government to reckon the prior qualifying service for pension after condoning the non-qualifying sandwiched service as break without forfeiture of past service. 3) Government have examined the matter in detail and are pleased to order that the prior public service shall be reckoned as qualifying service for pension after condoning the sandwiched non qualifying service as break between the two services. A perusal of the Government Order noted above indicates that the benefit sought for by the appellant is provided and the sandwiched non qualifying service as break in the two services is condonable and the prior public service shall be reckoned as qualifying service for pension. The learned counsel for the respondents contended that the High Court was justified in holding that the appellant had retired on 30.06.2006, while the Government Order is dated 24.09.2014 and as such cannot be made applicable retrospectively. We are unable to accede to such contention. In fact, the KAT had taken note of the entire sequence and had rightly noted that the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17.09.2014 against the order dated 25.07.2014 was still pending when the Government Order dated 24.09.2014 was issued. The said Government Order in para 2 has taken note of the several requests received to reckon the prior qualifying service. Further, the main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when the appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. To put the matter in perspective, it is to be noted at the outset that the appellant had worked in the Telecom Department from 05.02.1974 to 31.05.1984 which is pensionable service in usual course if the other requirements were satisfied. The appellant had thereafter worked in the Technical Education Department under the State Government from 31.05.1987, till his retirement on attaining the age of superannuation on 30.06.2006. The said service is also pensionable service. During the interregnum, between 04.06.1984 to 30.05.1987 the appellant worked in SILK which is a State Government Public Sector Undertaking and the service rendered therein is admittedly not pensionable service. The said period of service therefore acts as a disconnect between the two different pensionable service rendered by the appellant and the same needs to be condoned to provide a single block of pensionable service.8. In that background, it is also to be kept in perspective that the case of the appellant is not that the non-pensionable service rendered in SILK is also to be reckoned and the entire service from 05.02.1974 to 30.06.2006 is to be admitted for computing the pensionary benefits as assumed by the High Court.10. The above noted Rule if taken into consideration as a standalone provision, it would settle the issue against the appellant since the break between the two appointments is much more than the joining period and the break itself is due to non-pensionable employment. However, what is required to be examined is the availability of provision to condone such break.13. In view of the said position, the observation of the High Court that the appellant is free to move the Central Government if he has a case that his service in the Telecom Department is liable to be reckoned is not justified. If the break in service is condoned as sought by the appellant, then the entire relief would be available at the hands of the State Government.A perusal of the Government Order noted above indicates that the benefit sought for by the appellant is provided and the sandwiched non qualifying service as break in the two services is condonable and the prior public service shall be reckoned as qualifying service for pension.The learned counsel for the respondents contended that the High Court was justified in holding that the appellant had retired on 30.06.2006, while the Government Order is dated 24.09.2014 and as such cannot be made applicable retrospectively.We are unable to accede to such contention. In fact, the KAT had taken note of the entire sequence and had rightly noted that the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17.09.2014 against the order dated 25.07.2014 was still pending when the Government Order dated 24.09.2014 was issued. The said Government Order in para 2 has taken note of the several requests received to reckon the prior qualifying service. Further, the main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when the appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break.