V.I.Chacko vs State Of Kerala
2021 Latest Caselaw 14619 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
     WEDNESDAY, THE 14TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                        WP(C) NO. 9596 OF 2021
PETITIONER:

          V.I.CHACKO
          ASSOCIATE PROFESSOR (RTD.).,
          DEPARTMENT OF COMMERCE, ST.THOMAS COLLEGE, RANNI,
          PATHANAMTHITTA DISTRICT, RESIDING AT MALEL
          VALIAPARAMPIL, MUNDAPUZHA,       RANNI P.O.,
          PATHANAMTHITTA DISTRICT-689 672.

          BY ADVS.
          SIJI ANTONY
          P.M.JOSEPH
          P.S.SAJEEV (CHIRAYIL)



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
          GOVERNMENT, FINANCE DEPARTMENT,
          GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN-695 001.

    2     THE SECRETARY TO GOVERNMENT,
          HIGHER EDUCATION DEPARTMENT,
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

    3     THE DIRECTOR OF COLLEGIATE EDUCATION,
          VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN-695 001.

    4     THE ACCOUNTANT GENERAL (A & E), KERALA,
          THIRUVANANTHAPURAM, PIN-695 001.

    5     THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
          DIRECTORATE OF COLLEGIATE EDUCATION,
          KOTTAYAM-686 601.

    6     MAHATMA GANDHI UNIVERSITY,
          PRIYADARSHINI HILLS, ATHIRAMPUZHA (PO),
          KOTTAYAM, PIN-686 560,
          REPRESENTED BY ITS REGISTRAR.
 WP(C) NO. 9596 OF 2021
                                 2

     7    STATE OF KERALA,
          REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
          GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN-695 001.

          SRI.B.HARISH KUMAR


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   07.07.2021,   THE   COURT   ON   14.07.2021   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 9596 OF 2021
                                       3


                                JUDGMENT

Petitioner in the instant case by making averments in

paragraphs 6 and 7, has sought the following reliefs, which

reads as under:

1) issue a writ of certiorari or any other appropriate writ, direction or order, quashing Exhibit-P1 amendment in Part III KSR;

2) issue a writ or direction or order, setting aside the Insertion of regular full time in Clause (1) of Sub Clause (b) of Rule 14E in KSR Part III and declaration of retrospectivity w.e.f. 30.07.1979 as per Sub Clause (2) of Exhibit-P1 notification;

3) issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents 1 to 5 to sanction the revised pensionary benefits to the petitioner reckoning 28 years 9 months and 4 days: (28Y09M04D) of service as submitted in Exhibit-P4(d) pension proposal and to revise Ext.P4(e) to that effect;

4) issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents to disburse the arrears of denied pensionary benefits to the petitioner with interest;

5) declare insertion of Clause (b) in Rule 14E of, Part III, KSR with retrospective effect from 30.07.1979 as per G.O.(P) No. 366/2009/Fin. dated 28.08.2009 by Ext.P1 S.R.O Kerala Service (3rd Amendment) Rules 2009 as ultra-virus;

6) grant such other and necessary orders which are deem fit and proper to secure the ends of justice. "

2. It was submitted that the relief as sought before

this Court is covered by the judgment of this Court dated WP(C) NO. 9596 OF 2021

18.03.2021 rendered in W.P.(C).No.1033/2020 and other

connected writ petitions Ext.P10. At this stage

Sri.B.Harishkumar, learned Government Pleader raised

objection qua maintainability of the writ petition on the

premise that the petitioner had earlier filed a writ petition

bearing No.29350/2017 with the following prayers:

"(I) To call for records relating to Exhibits P1 to P7 and to issue of writ of mandamus directing the respondents to count the leave vacancy for a period of 3 years 9 months and 4 days approved by Exhibits P1 to P3 for all pensionery benefits.

(ii) To issue a direction to the 1st respondent to consider and dispose of Exhibit P4 representation in view of the principle adopted in W.P.(C) No: 30167/2016 dated 14-08-2017.

(iii) Any other reliefs also may be granted in order to meet out justice considering the circumstances of the case."

3. This Court vide judgment dated 20.10.2017

dismissed the writ petition whereby the relief of broken spell

of aided college service rendered prior to regular appointment

was declined. In such circumstances, the present writ petition

would be hit by doctrine akin to res-judicata. WP(C) NO. 9596 OF 2021

4. Learned counsel for the petitioner submitted that

detailed reasons have been assigned in paragraphs 6 and 7 as

in the earlier round of litigation there was no challenge to the

notification Ext.P1 dated 28.08.2009 which no longer subsists

in view of the judgment by this Court Ext.P10.

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

appraised the paper book.

6. This Court in the earlier round of litigation had

made the following relevant observation:

2. The question regarding the admissibility of pensionary benefits for the period during which the aided college teachers rendered service in broken spells on leave vacancies have already been considered by me in my judgment dated 16.09.2016 in W.P(c).No.29356/2016 and connected cases wherein it was held that in view of the provisions contained in Rule 14E(b) of Part III KSR, the broken spells of aided college service rendered prior to regular appointment in the aided colleges/schools cannot be reckoned for the purpose of pension in view of the specific provision which reads as W.P(C) No.29350 of 2017-P 2 follows:

""14E. xxxxxx xxxxxxx xxxxxxxxx xxxxxxxxx xxxxxxxx xxxxxxx xxxxxx xx (b) Aided private college service, both teaching and non-teaching, of Government employees prior to their entry in Government service shall qualify for pensionary benefits, subject to the following conditions, WP(C) NO. 9596 OF 2021

namely:-- i)The actual period of regular full time service rendered from the date of actual introduction of Direct Payment System in the aided private college shall be counted. ii)Service rendered prior to the introduction of Direct Payment System in any aided private college shall be counted only for the period of those incumbents who have been paid salary under grant-in-aid scheme introduced with effect from 1965. iii)In cases of resignation of the appointment in private college service for the purpose of taking up appointment in Government, break, if any, between the private college service and the Government service shall not exceed the joining time admissible under the service rules, plus public holidays. Service prior to resignation for other purposes shall not be counted. iv)The Government contribution if any, to their Provident Fund Account in respect of their aided private college service shall be refunded to Government. v)The Management's share of contribution if any in Provident Fund Account in respect of aided private college staff shall be credited to Government. In such cases, a certificate in the following form shall be recorded in the Service Book by the Head of Institution in which the incumbent had worked duly countersigned by the Head of the Department. "Certified that the Governments'/Managements' share of contribution with interest thereon which should otherwise have gone to the employee has not been/shall not be paid to him/her but has been/shall be credited to Government." The certificate regarding the crediting of Managers' contribution is not necessary when contributions are to be paid back to the Management under rules. vi)For counting the aided private college service, a certificate in the following form shall be recorded in the Service Book by the WP(C) NO. 9596 OF 2021

Head of the Institution in which the incumbent had worked duly countersigned by the Head of the Department. "Service has been verified with reference to the initial records such as attendance registers, acquittance rolls, pay bills etc., and is qualifying for pension."

By notification Ext.P1 amendment has been caused to

Rule 14E of Part III of the Kerala Service Rules. This Court

after due consideration of the matter granted the relief in all

the similarly situated employees by striking out the expression

'regular' in clause (i) of clause (b) of Rule 14E, Part III, KSR

and its applicability with effect from 30.07.1979 with further

direction to be made applicable with effect from the date of

notification ie., 28.08.2009. It was also held that there was no

fault on the part of the petitioner therein for rendering service

against leave vacancy and on absorption on permanent basis

rendering ineligible to claim pensionary benefits on

retirement. I do not find that there is any of the ingredients of

Section 11 of CPC to bring the case within the realm of

doctrine akin to res judicata. The relief as sought for is

covered by the judgment of this Court Ext.P10. This writ

petition is allowed in the same terms as in Ext.P10 and the WP(C) NO. 9596 OF 2021

respondents are directed to take follow up within two months

from the date of receipt of copy of the judgment.

Sd/-

AMIT RAWAL JUDGE nak WP(C) NO. 9596 OF 2021

APPENDIX OF WP(C) 9596/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF NOTIFICATION OF GO(P) NO.366/2009/FIN DATED 28.08.2009 AS PER SRO 755/2009 ISSUED AND PUBLISHED BY THE 1ST RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE ORDER GO(P) NO.66/2016/FIN DATED 09.05.2016 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER GO(P) 113/16/FIN DATED 05.08.2016 OF THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER BY THE MANAGER OF ST.THOMAS COLLEGE, RANNI DATED 28.06.1988.

EXHIBIT P4 A TRUE COPY OF THE PROCEEDINGS NO.UO 317/B1-3/ACAD/88 DATED 14.10.1988 ISSUED BY THE 6TH RESPONDENT.

EXHIBIT P4 B TRUE COPY OF THE PROCEEDINGS NO.AC.B1.3/1080/92 DATED 25.05.1995 ISSUED BY THE 6TH RESPONDENT.

EXHIBIT P4 C TRUE COPY OF THE PROCEEDINGS NO.AC.B1.3/1080/92 DATED 07.04.1993 ISSUED BY THE 6TH RESPONDENT.

EXHIBIT P4 D TRUE COPY OF THE PENSION PROPOSAL OF THE PETITIONER DATED NIL.

EXHIBIT P4 E TRUE COPY OF THE VERIFICATION REPORT VR NO.2101777420 DATED 27.04.2017 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT P4 F TRUE COPY OF THE INTIMATION SLIP WITH PPO NO.111776811 DATED 27.04.2017 ISSUED BY THE 4TH RESPONDENT.

WP(C) NO. 9596 OF 2021

EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WA NO.2559/2017 DATED 04.02.2021 OF THIS HON'BLE COURT.

EXHIBIT P6 TRUE COPY OF GO(P) NO.670/79/FIN DATED 30.07.1979.

EXHIBIT P7 TRUE COPY OF THE GO(MS) NO.191/77/G.EDN DATED 05.12.1977.

EXHIBIT P8 TRUE COPY OF THE GO(P) 2357/99/FIN DATED 25.11.1999.

EXHIBIT P9 TRUE COPY OF THE GO(MS) NO.401/2019/FIN DATED 28.10.2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN WPC NO.1033/2020 DATED 18.03.2021 (SUMAYAMMA GEORGE VS. STATE OF KERALA AND CONNECTED CASES) OF THIS HON'BLE COURT.

EXHIBIT P11 TRUE COPY OF THE GO(P) NO.128/2018/FIN.

DATED 10.08.2018 AS PER SRO 572/2018 ISSUED AND PUBLISHED BY THE 1ST RESPONDENT.