Dr. Nakulan. K.V vs Sree Sankaracharya University Of ...
2022 Latest Caselaw 6024 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944

                             WP(C) NO. 28836 OF 2021

PETITIONER:

               DR. NAKULAN. K.V.
               AGED 61 YEARS
               PROFESSOR (RTD) URUDU DEPARTMENT, REGIONAL CENTRE, SREE
               SANKARACHARYA UNIVERSITY OF SANSKRIT, KOYILANDY, RESIDING AT
               KANDOTH VALAPPIL, KAKKOTH, IRIVERY P.O., MOVANCHERY, KANNUR-
               670613.

               BY ADV JOSHI N.THOMAS



RESPONDENTS:

     1         SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
               P.O. KALADY, ERNAKULAM DISTRICT-683574, REPRESENTED BY ITS
               REGISTRAR.

     2         THE DIRECTOR,
               SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REGIONAL CENTRE,
               KOYILANDY, KOZHIKODE DISTRICT, PIN-673620.

     3         STATE OF KERALA,
               REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695001.

     4         UNION OF INDIA,
               REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF
               EDUCATION, DR. RAJENDRA PRASAD ROAD, NEW DELHI-110011.

     5         THE DIRECTOR OF COLLEGIATE EDUCATION,
               VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.

     6         THE DEPUTY COMMISSIONER,
               KENDRIYA VIDYALAYA SANGHATAN, REGIONAL OFFICE, KADAVANTHRA
               P.O., NEAR RAJIV GANDHI INDOOR STADIUM, KOCHI-682020.

     7         THE PRINCIPAL,
               KENDRIYA VIDYALAYA, P.O.DISTRICT HOSPITAL, KANNUR-670017.

     8         THE ACCOUNTANT GENERAL (A & E), KERALA,
               CANTONMENT, STATION ROAD, STATUE PALAYAM, THIRUVANANTHAPURAM-
               695001.
 WP(C) NO. 28836 OF 2021

                                        2



  *ADDL R9   STATE OF KERALA,
             REPRESENTED BY THE SECRETARY FINANCE (EXPENDITURE), GOVERNMENT
             SECRETARIAT, THIRUVANANTHAPURAM-695001


             *(ADDL R9 IS IMPLEADED AS PER ORDER DATED 21.03.2022 IN IA
             01/2022 IN WP(C) 28836/2021.)

             BY ADVS.
             DINESH MATHEW J.MURICKEN
             MANU S., ASG OF INDIA



OTHER PRESENT:

             SRI DINESH MATHEW J MURICKEN - SC; SMT ANIMA M - GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2022,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 28836 OF 2021

                                       3




                               JUDGMENT

Even though the petitioner only seeks that his prior services in

the Kendriya Vidyalaya Sangathan (KVS), before he joined the

services of the 1st respondent - University, be counted for the

purpose of his pension, the acme question impelled is whether the

"KVS" is a Central Government Autonomous Institution or a Central

Public Sector Undertaking.

2. This issue has now come up for consideration because the

petitioner says that he had served the "KVS", before joining the 1st

respondent on 22.12.1998. According to him, at the time when he

joined in the University, the Kerala Service Rules (KSR) provided that

such services will also be eligible for being accounted for the purpose

of Pension. He says that, subsequently, amendments were brought

into the KSR and executive orders issued, confining such benefit only

to Central Government Service and not to the services under Central

Autonomous Bodies/Central Public Sector Undertakings.

3. The petitioner says that such amendments were made

through Ext.P15 order dated 30.03.2018 and argues that this is

illegal and unlawful, since it causes a hostile discrimination. As an

alternative submission, the petitioner contends that, in spite of

Ext.P15, his prior service in the "KVS" is still liable to be reckoned for

the purpose of Pension, because said institution is neither a Central WP(C) NO. 28836 OF 2021

Autonomous Body nor a Central Public Sector Undertaking.

4. Shri.Joshi N.Thomas - learned counsel for the petitioner,

commenced submissions arguing that the "KVS" is, in fact, a

registered Society, operating under the provisions of the Societies

Registration Act, 1860. He submitted that his client has filed

pleadings on record to aver that the "KVS" is wholly under the

control of Government of India and therefore, that it has to be

construed as a State within the meaning of Article 12 of the

Constitution of India.

5. Shri.Joshi N.Thomas relied upon the judgment of the Hon'ble

Supreme Court in Ajay Hasia & Others v. Khalid Mujib

Sehravardi & Others [(1981) 1 SCC 722] in substantiation and

thus reiteratingly submitted that the "KVS" cannot be construed as

either being a Central Autonomous Institution or a Central Public

Sector undertaking, so as to take away the services rendered by his

client under it from the purview of Rule 11 of Part III KSR.

6. After asserting as afore, Sri.Joshi N. Thomas, then

submitted that Ext.P15, to the extent to which it creates a

classification between two categories of identically placed persons,

is unconstitutional and in any event of the matter, cannot obtain

justification of an intelligible differentia, to obtain any reasonable

objective. He, thus prayed that either Ext.P15 be set aside, or that 1 st WP(C) NO. 28836 OF 2021

respondent be directed to reconsider the matter, taking note of the

fact that 'KVS' is not a Central Autonomous Body or Central Public

Sector Undertaking (PSU).

7. In response, the learned Government Pleader -

Smt.M.Anima, relied upon the counter affidavit filed by the 3 rd

respondent - State, saying that 'KVS' is a Central Autonomous Body

and therefore, that the services rendered by the petitioner under it

would stand excluded for the purpose of computing his pension,

going by Ext.P15 Government Order. She submitted that, Ext.P15

Order was issued because it was found that Rule 11 of Part III KSR

was inconsistent with the Central Rules and that there was no

reciprocal obligation created for payment of pension in the case of

employees working under it. She added that, the amendments

brought to the KSR, particularly Note 2 to Rule 11 of Part III thereof,

were necessitated because of the afore reason, especially since there

are no Central Government Rules which sanctions pension liability

between Central Government and Central Public Sector Undertaking

and hence that the previous services in such Public Sector

Undertakings are not even counted for pensionary benefits along

with the Central Government service. She explained that, it is in such

circumstances, that the Government brought out the modification

that only prior services under the Central Government be reckoned WP(C) NO. 28836 OF 2021

as qualifying service, through Government Order bearing No.G.O.

(P)No.608/2010/Fin. dated 22.10.2010, which has been now

incorporated as Note 2 below Rule 11 of Part III KSR. She thus,

prayed that this writ petition be dismissed.

8. Smt.Nayana Varghese - learned counsel representing

Sri.Dinesh Menon - learned Standing Counsel for the 1 st respondent

University, submitted that her client could not have issued any order

other than Exts.P9 and P11, since they are governed by Ext.P15

order. She submitted that, therefore, as long as Ext.P15 is in force,

the petitioner cannot assail Exts.P9 and P11; and thus prayed that

this writ petition be dismissed as against her client.

9. As I have stated in the prefatory paragraphs of this

judgment, there are two major issues involved in this case, but

primarily as to what is the real nature of the 'KVS'. The adjunct

question is whether Ext.P15 Government Order can be found to be

unconstitutional or otherwise.

10. As far as the nature of the 'KVS' is concerned, the 1 st

respondent - University, through Ext.P9, appears to have taken a

stand that it is a Central Autonomous Body/Central Public Sector

Undertaking and therefore, that the rigour of Ext.P15, as also the

Note 2 to Rule 11 of Part III KSR would apply.

11. In affirmation, the 3rd respondent has filed a counter WP(C) NO. 28836 OF 2021

affidavit asserting that 'KVS' is a Central Autonomous entity.

12. However, the petitioner has filed a reply affidavit

explaining the true nature of the 'KVS', stating that it is a Society,

controlled exclusively by the Government and under its complete

financial supervision.

13. Therefore, the question certainly arises as to whether

'KVS' is to be construed to be a part of a Central Government

department, as has been contended by the petitioner; but this has not

been considered by any of the Authorities in its proper perspective in

their pleadings available on record.

14. In such perspective, I am certain that this is an aspect

which requires to be considered specifically by the Government and

for that reason, I do not think that this Court will now require to

assess the validity of Ext.P15 order, or that of the statutory provisions

contained in Rule 11 of Part III KSR.

15. To paraphrase, the petitioner must certainly be given

liberty to approach the competent Authority of the Government, who

will thereupon, evaluate the nature and constitution of the 'KVS' to

decide whether it would be outside the purview and rigour of the

Central Autonomous Bodies or Central Public Sector Undertakings;

and if it is so found, certainly, notwithstanding Ext.P15 order, the

petitioner would be entitled to relief, as has been sought for by him. WP(C) NO. 28836 OF 2021

Resultantly, leaving open the contention regarding the validity

of Ext.P15 to be pursued by the petitioner appropriately in future if it

becomes so necessary, I order this writ petition to the limited extent

of leaving liberty to the petitioner to approach the Government

through an appropriate representation detailing the nature of the

'KVS' and seeking the benefits as has been sought for by him in this

writ petition.

If the afore representation is made within a period of one month

from the date of receipt of a copy of this judgment, the competent

Authority of the Government will consider the same and decide

whether the prior service of the petitioner, spent by him in the 'KVS',

would become eligible for being counted, along with his services in

the 1st respondent, for pension.

Needless to say, if the Government is to find in favour of the

petitioner, then he will be at liberty to produce the said document

before the 1st respondent, who shall thereupon, withdraw Ext.P9 and

issue appropriate orders fixing his pension in terms of law, without

any avoidable delay thereafter.

The afore exercise shall be completed by the competent

Authority of the Government, after affording an opportunity of being

heard to the petitioner and necessary orders on his representation -

to be made in terms of the afore liberty - shall be issued, as WP(C) NO. 28836 OF 2021

expeditiously as is possible but not later than four months from the

date of receipt of a copy of this judgment.

SD/-

DEVAN RAMACHANDRAN JUDGE MC/rp WP(C) NO. 28836 OF 2021

APPENDIX OF WP(C) 28836/2021

PETITIONER EXHIBITS

Exhibit P1 COPY OF SERVICE CERTIFICATE NO.AD/A1/8481/SSUS/2021 DATED 10.11.2021 ISSUED BY THE 1ST RESPONDENT.

Exhibit P2 COPY OF MEMORANDUM NO.F2-ESTT/19/89/KVS(HR) 2620 DATED 21.12.1989 ISSUED BY THE ASST. COMMISSIONER.

Exhibit P3 COPY OF F1-33/97-KVS/BGR/12949 DATED 22.8.97 ISSUED BY THE ADMINISTRATIVE OFFICER.

Exhibit P4 COPY OF RELIEVING ORDER NO.111-A/3/97-98/KVKAN DATED 26.8.97 ISSUED BY 7TH RESPONDENT SCHOOL.

Exhibit P5 LETTER NO.GE 23/E/CELL.NO.75/4 DATED 3.4.01 ISSUED BY THE 8TH RESPONDENT.

Exhibit P6 REPRESENTATION DATED 25.5.2020 OF THE PETITIONER SUBMITTED TO THE 1ST RESPONDENT UNIVERSITY.

Exhibit P7 COPY OF REPRESENTATION DATED 28.5.2020 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT THROUGH PROPER CHANNEL.

Exhibit P8 COPY OF REPRESENTATION DATED 29.5.2020 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.

Exhibit P9 COPY OF LETTER ADAI/245/SSUS/2019 (SUB FILE) DATED 27.7.2020 ISSUED BY THE 1ST RESPONDENT.

Exhibit P9(A) TRUE ENGLISH TRANSLATION TO EXT.P9.

Exhibit P10 COPY OF LETTER AD.A1(245) S.S.U.S./2019 KALADY DATED 22.3.2021.

Exhibit P10(A) TRUE ENGLISH TRANSLATION OF EXT.P10.

Exhibit P11 COPY OF LETTER AD.A1/245/SSUS/2019 DATED 17.9.2021 ISSUED BY THE 1ST RESPONDENT.

Exhibit P11(A) TRUE ENGLISH TRANSLATION OF EXT.P11.

Exhibit P12 COPY OF GO(P) NO.369/87/FIN. DATED TRIVANDRUM 31ST MARCH 1987 ISSUED IN THE 3RD RESPONDENT.

WP(C) NO. 28836 OF 2021

Exhibit P13 COPY OF GO (P) NO.703/2002/FIN DATED THIRUVANANTHAPURAM 12TH NOVEMBER, 2002 ISSUED BY THE 3RD RESPONDENT.

Exhibit P14 COPY OF GO (P) NO.212/09/FIN DATED THIRUVANANTHAPURAM 3.6.2009 ISSUED BY THE 3RD RESPONDENT.

Exhibit P15 COPY OF GO (P) NO.53/2018/FIN. DATED THIRUVANANTHAPURAM 30.3.2018 ISSUED BY THE 3RD RESPONDENT.

Exhibit P16 TRUE COPY OF JUDGMENT DATED 24.10.2007 IN WPC NO.12109 OF 2007 (N)

RESPONDENT EXHIBITS

EXHIBIT R3A A TRUE COPY OF OG GO(P)NO.651-2003-FIN DATED 6.12.2003

EXCHIBIT R3(B) TRUE COPY OF SRO NO.415-2018 IN GO(P)NO.93-2018 FIN DATED 16.6.2018 RULE 20 PART 3 KSR