IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WP(C) NO. 18274 OF 2022
PETITIONER:
DR. N. VIJAYAKUMAR
AGED 68 YEARS
S/O G NAGAPPAN NAIR, LECTURER SELECTION GRADE (RE-
DESIGNATED AS ASSOCIATED PROFESSOR) (RETD), IN
RUSSIAN, MAHATMA GANDHI COLLEGE, THIRUVANANTHAPURAM,
RESIDING AT "PARVATHI", MPS-A6, MANGANOORKONAM LANE,
WEST PATTOM, THIRUVANANTHAPURAM-695 004.
BY ADVS.
S.MUHAMMED HANEEFF
M.H.ASIF ALI
RESPONDENTS:
1 STATE OF KERALA,
REP.BY IS SECRETARY TO THE GOVERNMENT, HIGHER
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DIRECTOR OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM, OFFICE OF THE DIRECTOR OF
COLLEGIATE EDUCATION, VIKAS BHAVAN, PALAYAM,
THIRUVANANTHAPURAM-695 033.
3 DEPUTY DIRECTORATE OF COLLEGIATE EDUCATION,
(SOUTH ZONE), ST. THOMAS SHOPPING COMPLEX, NEAR
ORTHODOX BISHOP CHURCH, CROSS JUNCTION, KOLLAM-691
001.
4 ACCOUNTANT GENERAL (A & E ),
INDIAN AUDIT & ACCOUNTS DEPARTMENT, OFFICE OF THE
ACCOUNT GENERAL ( A & E), THIRUVANANTHAPURAM-695
001.
2
W.P.(C)No. 18274 of 2022.
THE PRINCIPAL,
MAHATMA GANDHI COLLEGE, PATTOM
5
P.O.THIRUVANANTHAPURAM-695 004.
6 FOOD CORPORATION OF INDIA,
REPRESENTED BY ITS GENERAL MANAGER (KERALA),
KESAVADASAPURAM, PATTOM PALACE (PO),
THIRUVANANTHPAURAM-695 004.
SMT. PARVATHY .K-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C)No. 18274 of 2022.
JUDGMENT
Dated this the 29th day of June, 2022. The petitioner says that he joined the services of an Aided College affiliated to the Mahatma Gandhi University (M.G.University) as a Lecturer, on 01.11.1985; and retired on the attaining the age of superannuation on 31.03.2007. He says that, he had, prior to the said service, served the Food Corporation of India (FCI) for merely 9 years 6 months and 27 days and therefore, that said period is also deserving to be counted for computation of his pensionary benefits. He asserts that the legal position in this regard has been affirmatively declared by a full Bench of this Court in State of Kerala V. Haridasan [2015 (2) KLT 145(F.B)]; and that, in 4 W.P.(C)No. 18274 of 2022.
fact, taking note of the same, benefits sought for by him have already been granted to another person on the basis of another judgment of this Court, namely Ext.P2. He pointed that the 2nd respondent - Director of Collegiate Education, therefore, correctly forwarded his Service Book with a recommendation for computation of his pensionary benefits including the afore period spent by him in FCI; but that said respondent has returned the Book, vide Ext.P4, citing the reason that Government of Kerala has not issued any order to reckon the prior service of Central Autonomous Bodies along with the Aided College Service and further that benefits of Ext.P2 judgment will be applicable only to the writ petitioner therein.
2. The petitioner asserts that Ext.P4 is illegal and unlawful and thus prays that same be set aside. 5 W.P.(C)No. 18274 of 2022.
3. I have heard Sri.S.Muhammed Haneef - learned counsel for the petitioner; Sri.Jose Kuriakose - learned Standing Counsel for the FCI and Smt.Parvathy Kottol - learned Government Pleader appearing for the official respondents
4. Smt.Parvathy Kottol - learned Government Pleader, submitted that Ext.P4 is irreproachable because the petitioner cannot seek the same benefits as have been obtained by the writ petitioner in Ext.P2 judgment, because it was delivered in the specific facts of the said case. She argued that as long as the petitioner is not able to produce any document to show that his prior service in the FCI has been ordered to be reckoned for the purpose of pensionary benefits by the Government of Kerala, he cannot obtain any relief. She thus prayed that this writ petition be dismissed.
6W.P.(C)No. 18274 of 2022.
5. Sri.Jose Kuriakose - learned Standing Counsel for the FCI, submitted that his client has no role to play in the controversy projected in the case and that it is solely between the petitioner and the official respondents.
6. When I consider the afore submissions and in particular the directions in Ext.P2 judgment, it is manifest that same had been issued based on the declarations of the learned Full Bench in Haridasan (supra). It is also mentioned therein that the contention impelled by the official respondents in the said case was that the benefit of reckoning previous service will be available only if the former employer had remitted the proportionate pro rata pension liability; but this was repelled, as being not tenable, in view of an earlier judgment obtained by the petitioner therein.
7. In the case at hand, there is no contention 7 W.P.(C)No. 18274 of 2022.
raised by the official respondents that the pro rata pension has to be recovered from the previous employee, namely FCI. All which is stated in Ext.P4 is that the Government of Kerala has not issued an order to reckon the prior service in Central Autonomous Bodies, along with Aided Colleges Service and that the declarations in Ext.P2 are applicable only to the petitioner therein.
8. I am afraid that I cannot find favour with Ext.P4 at all because, in Haridasan (supra), the law has been declared unambiguously, which has not been adverted to at all by the Authority who has issued the said order.
9. That apart, in Ext.P2 judgment, this Court had occasion to consider an analogous situation and then proceeded to order that the principle of constructive res- judicata would apply in the case of that petitioner, 8 W.P.(C)No. 18274 of 2022.
because of the earlier judgment he had obtained. Of course, the petitioner has not obtained such a judgment, but in view of Haridasan (supra) the position of law cannot be disregarded.
10. I am, therefore, of the firm view that the matter will require to be reconsidered by the 4 th respondent, for which purpose, Ext.P4 certainly will have to be set aside.
Resultantly, I order this writ petition and set aside Ext.P4; with a consequential direction to the 4 th respondent to reconsider the claim of the petitioner, based on the recommendations made by the 2 nd respondent and after affording him an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon as expeditiously as is possible, within a period of three months from the date 9 W.P.(C)No. 18274 of 2022.
of receipt of a copy of this judgment.
Needless to say, while the afore exercise is completed, the 4th respondent will advert specifically to the declarations in Haridasan (supra) and assess the claim of the petitioner in comparison to that made by the writ petitioner in Ext.P2 judgment and his opinion on the same shall be reflected in the resultant order.
Sd/-
DEVAN RAMACHANDRAN JUDGE Raj/29.06.2022.
10W.P.(C)No. 18274 of 2022.
APPENDIX OF WP(C) 18274/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF GO(P) NO 39/2006/FIN DATED 23.1.2006 Exhibit P2 A TRUE COPY OF THE JUDGMENT DATED 7.2.2020 IN W.A NO 129/2019 ON THE FILE OF THIS HON'BLE COURT Exhibit P3 A TRUE COPY OF THE COMMUNICATION BEARING NO N3/13410/2022/DCE DATED 20.4.2022 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT Exhibit P4 A TRUE COPY OF THE LETTER DATED 20.5.2022 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT