Kerala High Court
The State Of Kerala vs The State Of Kerala on 20 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942
WA.No.1836 OF 2019
AGAINST THE JUDGMENT IN WP(C) 34777/2017(V) OF HIGH COURT OF
KERALA DATED 24/1/2018
APPELLANTS/RESPONDENTS IN WP(C):
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM- 695014.
3 THE DEPUTY DIRECTOR OF EDUCATION,
KOZHIKODE- 673001.
4 THE ASSISTANT EDUCATIONAL OFFICER,
CHEVAYOOR, KOZHIKODE DISTRICT- 673017.
5 THE ACCOUNTANT GENERAL (A AND E),
THIRUVANANTHAPURAM- 695001.
SRI. A.J. VARGHESE-SR. G.P
RESPONDENT/PETITIONER IN WP(C):
K.ABDU RAHIMAN,
JUNIOR LANGUAGE TEACHER (ARABIC)(RETIRED),
ATHMAPRABODHINI L.P.SCHOOL, ELATHUR, P.O.ELATHUR,
KOZHIKODE DISTRICT- 673303, RESIDING AT KOLAYIL
HOUSE, KODIYATHUR P.O., KOZHIKODE DISTRICT- 673602.
R1 BY ADV. SRI.P.M.PAREETH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.1836/2019
2
"CR"
JUDGMENT
Dated this the 20th day of January 2021
Shaffique, J
This appeal has been filed by the State challenging the judgment
dated 24.1.2018 in W.P.(C).No.34777/2017. Earlier, by judgment dated
10.1.2020, this Court had dismissed the appeal. But the Government
filed a review petition as R.P.No.227/2020 which was allowed as per
order dated 27.2.2020. The writ petition has been filed seeking for a
direction to compute petitioner's qualifying service for the grant of
pension as 22 years 4 months and 26 days, which was allowed by the
learned Single Judge.
2. There is no dispute about the fact that the petitioner was
having service of 18 years 5 months and 9 days. However, a further
addition of 3 years 11 months and 17 days has been made as per
Ext.P2 and the total service was calculated as 22 years 4 months and
26 days. The said addition had been made applying Note 3 to Rule 31
of Part III KSR. I.A.No.1/2021 was filed on behalf of the appellants
producing three annexures. Annexure A1 is the Government order
dated 26.03.2001 by which certain benefits were granted to the
teachers who had to be retrenched due to fall in division after
W.A.No.1836/2019
completing 7 years of service on or before 15.7.1995 and who were
not in service against a regular division vacancy as on 14.7.1996. It
was ordered that said persons will be absorbed in future vacancies and
the period during which they were out of service till the date of
deployment will be regularised as eligible leave or leave without
allowance. By Annexure A2 order dated 15.03.2003 in respect of the
petitioner, the Government observed that the period from 15.7.1992 to
19.11.2001 during which he was out of employment will be regularised
as leave without allowance as per Government Order dated 26.3.2001,
but subject to the condition that the leave period will not be counted
for any service benefits including pension. Based on the aforesaid
Government Orders, entries were made in petitioner's service book
and the relevant page of which is produced as Annexure A3. Hence, it
is argued by the learned Government Pleader that the petitioner is not
entitled for additional benefits which had been granted earlier. It is
taking note of the aforesaid fact that the pension order Ext.P4 had
been issued which indicated that the petitioner's qualifying service is
only 18 years. This came to be challenged by the petitioner in the
present writ petition, based on Ext.P2 intimation issued by the Senior
Accounts Officer/Asst.Accountant General to the Assistant Educational
Officer, which indicated that the qualifying service comes to 22 years 4
months and 26 days as on 31.03.2012.
W.A.No.1836/2019
3. The learned Single Judge, placing reliance on Ext.P2, which
is stated to be an undisputed fact, proceeded on the basis that the
petitioner's qualifying service is 22 years 4 months and 26 days. In
fact, in Ext.P4 pension sanctioning order, the qualifying service was
recorded as 18 years. By Ext.P5 letter dated 9.6.2014, the petitioner
submitted that his qualifying service as on 31.03.2012 is 22 years 4
months and 26 days. By Ext.P6 dated 12.12.2014 the petitioner was
informed that he was not eligible for computing 22 years 4 months and
26 days as qualifying service, whereas at the time when he voluntarily
retired, he had only 18 years service which had been correctly
calculated.
4. It is apparent from the factual circumstances now brought
to our notice that as per Government Order dated 15.3.2003,
petitioner was clearly informed that the period between 15.7.1992 to
19.11.2001 will not be reckoned for pension. Learned Government
Pleader had a case that though one page of the service book had been
produced earlier, the relevant page which is now produced as
Annexure A3 had not been produced.
5. Be that as it may, since the factual aspect had been
brought to the notice of this Court by filing additional documents, there
cannot be any dispute about the fact that the petitioner's qualifying
service is only 18 years. In fact, such an issue had been considered by
W.A.No.1836/2019
this Court in the judgment dated 14.1.2020 in W.A.No.917/2019. After
referring to Decision No.8 under Rule 14E and Rule 31 of Part III of
Kerala Service Rules, it was held as under:
"12. There cannot be any dispute about the fact
that the benefit of counting period of break will be
allowed in cases where the break was due to reduction
of staff strength of the institution. Apparently, this is a
case in which petitioner had to go out on account of
reduction in staff strength. Therefore, Decision No.8
under Rule 14E squarely applies. Now the question is
with reference to Rule 31 Part-III KSR.
Rule 31 and Note-3 of Part III KSR reads as
under;
"31. Interruptions:- Interruptions in the service of an employee
will count for pension provided it is not specifically laid down in
these rules or otherwise ordered by competent authority and
recorded accordingly in the Service Book:
......Note.3:- In cases where the period of an interruption in
service exceeds one year, the benefit of reckoning the period of
such interruption in service shall be restricted to the periods he
was actually in service prior to the date of the interruption."
13. It is clearly stated that interruptions in
service of an employee will count for pension unless
otherwise ordered by competent authority and
recorded accordingly in the service book. Note 3
further states that, if the interruption in service
exceeds one year, the benefit of reckoning the period
of such interruption in service shall be restricted to the
period, she was actually in service prior to the date of
interruption. In this case it is admitted that the broken
period of service was more than 1 year. Even under
Rule 31, petitioner is not eligible for counting
interruption in service of pension. That apart, even in
the service book of the petitioner, it was specifically
stated that the said service will not be counted for
pension. In the said circumstances, prima facie the
Government had committed mistake in issuing Ext.P5
and therefore their request to review the said order,
ought to have been entertain by the learned Single
Judge. In the review order, learned Single Judge did
not consider the said request as well."
W.A.No.1836/2019
6. In the light of the aforesaid factual situation, we are of the
view that there is justification in computing the petitioner's qualifying
service as 18 years for the purpose of computing pension and there is
justification on the part of the competent authority in issuing Ext.P4.
7. Learned counsel for the petitioner would submit that after
the judgment, the petitioner had been paid arrears of pension and the
pension had been computed based on the judgment of the learned
Single Judge. In the light of our finding that the petitioner's qualifying
service is only 18 years, the judgment of the learned Single Judge is to
be set aside. If any additional amount had been paid by way of
pension based on the judgment of the learned Single Judge, the
petitioner is liable to refund the same.
8. Learned counsel for the petitioner points out that the
judgment in State of Punjab & Others v. Rafiq Masih (White
Washer) & Others [(2015) 4 SCC 334] needs to be applied in the
factual situation that has arisen in this case. We don't think that
Rafiq Masih (supra) can be applied to the facts of this case. The
Government had correctly fixed the pension in terms of Ext.P4, which
came to be challenged by the petitioner placing reliance on Ext.P2 and
without bringing to the notice of the Court the correct factual aspects.
Under such circumstances, when the mistake had occurred at the
behest of the petitioner, he is liable to refund whatever amount that
W.A.No.1836/2019
has been received by him in excess of his actual entitlement. Learned
counsel for the petitioner submits that the petitioner may be permitted
to approach the Government to seek any relaxation. Nothing prevents
the petitioner in approaching the Government seeking any relaxation
with reference to the refund of any amount received by him in excess
of what he is eligible as pensionary benefits.
In the above circumstances, the writ appeal is allowed setting
aside the judgment of the learned Single Judge and the writ petition
stands dismissed.
Sd/-
A.M.SHAFFIQUE, JUDGE
Sd/-
GOPINATH P., JUDGE
kp True copy
P.A. To Judge
W.A.No.1836/2019
APPENDIX
APPELLANT'S EXHIBITS
ANNEXURE A1 TRUE COPY OF THE GO(P) NO.112/2001/G.EDN DATED
26.3.2001.
ANNEXURE A2 TRUE COPY OF THE GO(P) NO.1018/2003/G.EDN DATED
15.3.2003
ANNEXURE A3 TRUE COPY OF THE PHOTOCOPY OF THE RELEVANT PAGE OF
THE SERVICE BOOK OF THE WRIT PETITIONER PERTAINING
TO PAGE NO.19 ENDORSING THE ABOVE GOVERNMENT ORDER
RESPONDENTS EXHIBITS: NIL
