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

2. The undisputed facts are that the appellant worked as a Technician in the Telecom Department during the period 05.02.1974 to 31.05.1984. The appellant thereafter joined as an Engineer in Steel Industries Limited, Kerala (for short SILK) on 04.06.1984. The said SILK is a Public Sector Undertaking (for short PSU) owned by Government of Kerala. He worked there till 31.05.1987. Subsequent thereto, through the Public Service Commission, the appellant joined the Technical Education Department on 31.05.1987. He served for about 19 years and on attaining the age of superannuation, retired from service on 30.06.2006.3. The contested issue arose at this point when the appellant made claim for the pensionary benefits by taking into consideration and reckoning the service of 10 years rendered by the appellant between 05.02.1974 to 31.05.1984 in the Telecom Department which was service under the Central Government. The Accountant General, by the communication dated 26.07.2006 however informed that since the break between the Central Service and State Service is nearly three years, unless the same is condoned by the State Government, the Central Service cannot be reckoned as qualifying service for pension. The appellant therefore made a representation dated 23.09.2006 to the Government requesting to condone the said break in service. Though the said request was rejected by the communication dated 12.02.2007, it was by an unreasoned order. On being assailed, the same was set aside and the matter was sent back for reconsideration. On such reconsideration, the request made by the appellant was declined stating that there are no rules for condoning the break in service. It stated that as per rules the break between the two appointments shall not exceed the joining time admissible under service rules. The rule referred to was Rule 29 (b) Part III of Kerala Service Rules (for short KSR).4. The appellant however filed a review petition dated 17.09.2014 seeking the State Government to review the decision since SILK, to which the appellant had joined in the sandwiched period was a fully State-owned PSU. Hence, the appellant requested the exercise of power under Rule 39 of Part II of Kerala State and Subordinate Service Rules (for short KS & SSR). The review petition filed by the appellant was rejected through the intimation dated 21.05.2015 despite the Government order dated 24.09.2014. The appellant who was aggrieved by the rejection of his request approached the KAT in O.A. No.975 of 2015.5. The KAT on making a detailed analysis of not just the rules but also the series of Government orders which are relevant, held the appellant entitled to the benefit and accordingly allowed the application. The KAT noted that the requirement was that the period of service in SILK is to be condoned as a disconnect period to provide continuity of service in the two employments. Thus, giving the benefit of the Government order dated 24.09.2014 the entitlement as claimed was upheld. The High Court on the other hand has declined the relief by proceeding on the basis as if the appellant was seeking to reckon the service rendered by him in SILK also as pensionable service. Insofar as service rendered in the Telecom Department it was held that the appellant should approach the Central Government seeking to reckon the same. The High Court, therefore without addressing the real issue has set aside the order passed by the KAT. The appellant thus claiming to be aggrieved has filed this appeal.

Reasoning:
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.