P.V.Narayanan vs State Of Kerala
2021 Latest Caselaw 14606 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
     WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                        WP(C) NO. 439 OF 2021
PETITIONERS:

    1     P.V.NARAYANAN
          AGED 65 YEARS
          S/O. LATE KUNHAMBU, PUTHIYAVEETTIL HOUSE,
          ACHAMTHURUTHU P.O., CHERUVATHUR, KASARAGOD DISTRICT.

    2     P.P.SREEDHARAN
          PUTHIYAPURAYIL HOUSE, MANIYAT P.O., TRIKARIPUR,
          KASARAGOD DISTRICT.

    3     C.K.KRISHNAN
          VALIYAVEETTIL, CHATHAMATH P.O., NILESWARAM,
          KASARAGOD DISTRICT.

    4     M.KUNHIRAMAN
          KARIMKUZHI, KANKOLE P.O., PAYYANNUR, KANNUR DISTRICT.

    5     M.KUNHAMBU
          MALIYERI HOUSE, CHATHAMATH P.O., NILESWARAM,
          KASARAGOD DISTRICT.

    6     N.V.KUNHIKRISHNAN
          PADINJARANKUVVAL, NILESWARAM, KASARAGOD DISTRICT.

    7     N.V.RAJU
          S/O. ANANTHANPILLAI, KOTTARACHAL HOUSE,
          OZHINJAVALAPPU P.O., KASARAGOD DISTRICT.

          BY ADV M.SASINDRAN



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY TO GOVERNMENT,
          DEPARTMENT OF AGRICULTURE, SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.

    2     KERALA AGRICULTURAL UNIVERSITY
          VELLANIKARA, THRISSUR-680 656
          REPRESENTED BY ITS REGISTRAR.
 WP(C) NO. 439 OF 2021
                                  2


     3     THE ASSOCIATE DIRECTOR
           REGIONAL AGRICULTURAL RESEARCH CENTRE PILICODE,
           PILICODE, KASARAGOD DISTRICT-671 121.

           BY ADV SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL
           UNIVERSITY



           GP SRI B HARISH KUMAR




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   14.07.2021,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 439 OF 2021
                                   3



                              JUDGMENT

Petitioners 7 in number have approached this Court seeking

quashing of order Ext.P7 dated 08.12.2020 whereby benefit of

leave surrender sought by them has been declined with a further

direction to release the amount of leave surrender by declaring

them eligible for entitlement. In support of the aforementioned

prayer, it is alleged that all the petitioners were permanent

workers of Coconut Seed Farm, Nileswaram since 12.03.1975.

While continuing permanent workers there it was decided by the

Government to transfer the said farm to the Kerala Agricultural

university vide order dated 19.11.1994 (Ext.P1). As per the policy

decision of the Government to establish a College of Agriculture

in Kasaragode District under the Kerala Agricultural University

and as far as the labours were concerned they were ordered to

be transferred to the Agricultural University. Director of

Agriculture in this regard passed an order dated 09.01.1995 as

evidenced from Ext.P2. After the completion of the pollination

work university was reluctant to permit the petitioners to join the

service of the University and process for appointment of fresh WP(C) NO. 439 OF 2021

hands by inviting application of 08.09.2000 was initiated giving

cause to the petitioners to approach this Court in

O.P.Nos.33176/2000 and 33611/2000 respectively. The

aforementioned OPs were disposed of by this Court vide

judgment dated 1.06.2004 clarifying that University was to

absorb the petitioners as permanent labourers until then there

shall be no recruitment of casual labours. The aforementioned

matter was taken up by the respondents vide W.A.No.1726/2004.

2. The Division Bench of this Court vide judgment dated

11.01.2007 dismissed the writ appeal preferred by the University

by holding that the Agricultural University enjoyed the privilege

as granted in Ext.P1. Vide order dated 17.09.2009 petitioners

were appointed as labourers by the University and thereafter the

appointment order was issued on 31.08.2011 Ext.P3. A dispute

arose with regard to the payment of pensionary benefits and the

petitioners in the meantime had retired after having been taken

over and absorbed in the University. The matter reached this

Hon'ble Court in W.P.(C).No.13824/2012.

3. Learned counsel appearing on behalf of petitioners WP(C) NO. 439 OF 2021

submits that the stand of the University of having not absorbing

the petitioners and according the status of the permanent

labourer was deprecated and it was held that they have been

absorbed and not reckoning the pensionary benefits of the prior

service of the petitioners was also not appreciated and held to be

arbitrary and it was further held that they are entitled to get all

the service benefits as if they were continuing in the service of

former employee without any break. The aforementioned

judgment had attained finality. However, vide impugned

communication Ext.P7 respondents have declined to grant the

relief of leave surrender to the petitioners and the contractual

employees and this is what the stand taken in the counter

affidavit.

4. On the other hand, Sri. Robson Paul learned counsel

appearing on behalf of the University opposed the writ petition

and submitted that the status of the petitioners were contractual

employees. The contractual employees were not entitled to the

benefit of leave surrender but did not deny the judgment Ext.P4

whereby the petitioners were accorded the status of the

permanent employee and entitled to payment of the entire WP(C) NO. 439 OF 2021

service benefits.

5. I have heard the learned counsel for the parties and

appraised the paper book.

6. The factum that the petitioners were earlier the

employees of the Coconut Seed Farm and were absorbed by the

University and ultimately issued appointment letters in 2011 in

pursuance to the order of Government in 2009 and had

superannuated. The dispute with regard to the payment of

pensionary benefits was pondered by this Court in the judgment

Ext.P4 and in paragraph 11 to 13 which are extracted herein

below:

"11. In view of the proposition laid down by this Court, in the above decision, I hasten to hold that when a State Autonomous Body or Public Sector Undertaking is transferred to or absorbed by another Autonomous Body or Public Sector Undertaking, by the policy decision of the Government, the employees, who were employed under the former employer, are entitled to get all pensionary benefits, reckoning their entire service, under both employers, as if no such transfer or absorption was made to the latter employer. Put it differently, they are entitled to get all service benefits, as if they were continuing in the service of the former employer, without any break.

12. In the above view of the matter, the exclusion of previous service rendered by them in the Coconut Seed WP(C) NO. 439 OF 2021

Farm, before the transfer of the Coconut Seed Farm to the 1 st respondent University, for counting their pension, is illegal and arbitrary.

13. Consequently, Ext.P8, in so far as it excludes the previous service of the petitioners for reckoning pensionary benefits, will stand set aside and it is made clear that the petitioners are entitled to get reckoned their entire service under the 1 st respondent University and the Department of Agriculture, for pensionary benefits. In the light of the above declaration, Exts.P7, P8, P10, P12 and P13 to the extent it goes against the declaration made above, will also stand quashed. The 1 st respondent University is directed to grant pension to the petitioners on their retirement reckoning their entire service, as declared above."

Petitioners have been declared to be permanent absorbed

employees and held entitled to pension on the retirement by

reckoning the entire service. Pension benefits is always

admissible to permanent employees and not to contractual

employees. The respondents have totally volte faced from the

dictum aforementioned by treating them contractual employee.

In my view such an attempt is not only contumacious but an

attempt to over-reach the order of this Court which is not

appreciated by this Court. They cannot be accorded the benefit of

contractual employees in view of the judgment which has WP(C) NO. 439 OF 2021

attained the finality. Impugned order Ext.P7 is bereft of any

reasoning and is reflection of non-application of mind not

considering the judgment of this Court. Accordingly, the same is

set aside, writ petition is allowed. Petitioners are entitled to

benefits of leave surrender. Respondents are directed to calculate

the same and disburse to the petitioners preferably within a

period of three months from receipt of the certified copy of this

judgment. In case the amount is not released within a period of

three months, respondents will be liable to pay interest @ 10%.

Sd/-

AMIT RAWAL JUDGE nak WP(C) NO. 439 OF 2021

APPENDIX OF WP(C) 439/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE G.O.(MS).NO.407/AD.TVM DATED 19.11.1994 OF THE GOVERNMENT OF KERALA.

EXHIBIT P2 TRUE COPY OF THE ORDER NO.TP(3)-27980/94 DATED 9.1.1995 ISSUED BY DIRECTOR OF AGRICULTURE.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.B1/1707/2009 DATED 31.8.2011 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 28.10.2015 IN WPC NO.13824/2012.

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO.B1/3501/2018 DATED 21.5.2019 IZSSUED BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 25.11.2020 IN WPC NO.21782/2020 ISSUED BY THIS HON'BLE COURT.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.G.A/F2/8971/2016 DATED 8.12.2020 ISSUED BY THE 2ND RESPONDENT UNIVERSITY.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 16.12.2020 IN WPC NO.21782/2020.

RESPONDENTS EXHIBITS

EXHIBIT R2(A)          UNIVERSTIY ORDER

NO.GA/F2/439970/1994(I),DTD:17.09.2008

EXHIBIT R2(B) TERMINAL SURRENDER DETAILS OF THE PETITIONERS