Kerala High Court

State Of Kerala vs E.B. Mohammed Hussain on 21 May, 2025

Author: Anil K. Narendran

Bench: Anil K. Narendran

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W.A.No.2126 of 2018            1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

                               &

         THE HONOURABLE MR. JUSTICE P. V. BALAKRISHNAN

 WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947

                      WA NO. 2126 OF 2018

        AGAINST THE JUDGMENT DATED IN WP(C) NO.10439 OF 2017

OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS 1 TO 4 AND 6TH RESPONDENT IN WP(C):

    1      STATE OF KERALA
           R/BY THE SECRETARY TO GOVERNMENT, FINANCE
           (PENSION-B) DEPARTMENT, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM

    2      THE DIRECTOR OF PUBLIC INSTRUCTION,
           JAGATHY, THIRUVANANTHAPURAM.

    3      THE DEPUTY DIRECTOR OF
           EDUCATION, THRISSUR.

    4      THE ASSISTANT EDUCATIONAL OFFICER,
           KODUNGALLUR, THRISSUR DISTRICT

    5      THE ACCOUNTANT GENERAL
           THIRUVANANTHAPURAM


           BY SMT.NISHA BOSE, SR.G.P


RESPONDENTS/PETITIONER & 5TH RESPONDENT IN WP(C):

    1      E.B. MOHAMMED HUSSAIN
           URDU TEACHER, PAPPINIVATTOM A.M.U.P.SCHOOL, P.O.
           MATHILAKAM, THRISSUR DISTRICT- 680 685. RESIDING
                                                       2025:KER:34818
W.A.No.2126 of 2018                2

            AT ELLATHUPARAMBIL HOUSE, P.O. KOOLIMUTTAM,
            THRISSUR DISTRICT- 680 691

    2       MANAGER
            PAPPINIVATTOM, A.M. U.P. SCHOOL, P.O.,
            MATHILAKAM., THRISSUR DISTRICT 680 685



OTHER PRESENT:

            SMT. NISHA BOSE, SR. GP


     THIS     WRIT   APPEAL    HAVING    BEEN   FINALLY   HEARD    ON
21.05.2025,    THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                        2025:KER:34818
W.A.No.2126 of 2018               3

                            JUDGMENT

Anil K. Narendran, J.

The official respondents in W.P.(C)No.10439 of 2017 have

filed this writ appeal, invoking the provisions under Section 5(i) of

the Kerala High Court, 1958 challenging the judgment of the

learned Single Judge dated 18.09.2017 in that writ petition, which

was one filed by the 1st respondent herein, who retired as Urdu

Full Time Teacher, seeking a writ of certiorari to quash Ext.P2

verification report dated 23.02.2017 issued by the 5 th appellant

herein, to the extent it did not reckon his broken period of service

as qualifying service for pension; a writ of certiorari to quash

Clause 5(ii) of Ext.P3 Government order dated 09.05.2016, which

stipulates that the provisional aided school/college service of

regular full-time aided school staff prior to entry in regular aided

school service shall not be counted for pension with full time

regular aided school service; and a writ of mandamus

commanding the 5th appellant herein to reckon the broken period

of service of the petitioner as qualifying service for pension and to

revise his pensionary benefits reckoning the total qualifying

service as 21 years, within a time frame. That writ petition was 2025:KER:34818

disposed of by the judgment dated 18.09.2017, taking note of the

judgment dated 14.08.2017 in W.P(C)No.30167 of 2016. The

judgment of the learned Single Judge reads thus:

"The petitioner, who is a retired Urdu Full Time Teacher, has filed this writ petition challenging the order Exts.P3 by which Government ordered that broken spells of service rendered by teachers in aided schools prior to their entry in regular service in aided school would not be counted for the purpose of pension.

2. I have considered similar cases and held that the order Ext.P3, to the extent it relates to counting of aided school service prior to regular service, is illegal. The case of the petitioner would also be governed by paragraphs 1 to 28 of the judgment dated 14.8.2017 in WP(C) No.30167 of 2016.

The pensionary benefits due to the petitioner shall therefore be refixed in the light of the directions contained in that judgment. Respondents shall take appropriate steps, for granting the pensionary benefits due to the petitioner, within a period of three months from the date of receipt of a copy of the judgment."

2. This writ appeal was one filed along with C.M.Appl.No.1

of 2018 for condonation of filing delay of 362 days. The said

C.M.Appl was allowed by the order dated 26.02.2021. Notice was

ordered to respondents 1 and 2 by speed post.

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3. Heard the learned Senior Government Pleader for the

appellants-respondents 1 to 4 and 6 and the learned counsel for

the 1st respondent-writ petitioner. Despite service of notice, none

appears for the 2nd respondent Manager of the School.

4. During the course of arguments, it is pointed out by the

learned Senior Government Pleader and also the learned counsel

for the 1st respondent-writ petitioner that the issue raised in this

writ appeal is covered by the judgment of the Division Bench in

State of Kerala and others v. Sabu Mathew and others

[2019 (3) KHC 972]. The said decision is one rendered in

W.A.No.1235 of 2018, arising out of the judgment in W.P.(C)

No.30167 of 2016 and also the connected writ appeals.

Paragraphs 2 to 5 of the said decision read thus;

"2. We notice from the impugned judgment that there were two sets of writ petitions; (i) retired aided school teachers who had earlier worked in aided schools in broken spells on leave vacancies; and (ii) retired teachers of private colleges, obviously under the direct payment agreement, who also likewise worked in aided schools as leave substitutes. They asserted that the Kerala Service Rules by Rule 14E provided for counting of such broken service even in leave vacancies.

3. We find from a reading of the judgment in Alizuamma v. Accounts Officer, Office of the Accountant General [2013 (4) KHC 313] that there was no reason to have 2025:KER:34818

distinguished the said judgment of the Division Bench which was authored by one of us [K.Vinod Chandran,J.]. Therein, the teacher was appointed regularly as Upper Primary School Assistant ["UPSA" for short] in an aided school in 1981 and had about 17 years regular service when she retired in 1998. Prior to joining regular service, she had service of various broken periods in aided schools, between 1974 and 1981. The teacher claimed that since she had broken spells of service within a period of 7 years, the entire 7 years have to be reckoned for the purpose of pension. Hence, the teacher claimed for 24 years qualifying service while the Government granted only 20 years. Government took 17 years regular service and computed the period of actual service on leave vacancies. Obviously in the said case the period of leave vacancy, was reckoned for the purpose of pension.

4. Again, the Government seems to be labouring under a misapprehension that the Division Bench found that there can be no claim entertained for treating the service in leave vacancies as qualifying service for pension. The Division Bench specifically found that under Rule 31 of Kerala Service Rules ["KSR" for brevity] Part III, there could be no reckoning of the period spent in a leave vacancy for qualifying service. This was since Rule 31 spoke of interruptions in service, which service contemplated was found to be regular service. However, the Division Bench itself referred to Rule 14E of Part III KSR, by which aided school service put in by Government employees, prior to entry in Government service, qualifies for pension. 5. We also notice paragraph 4 of the aforesaid decision, which 2025:KER:34818

found a distinction insofar as Rule 31 and Rule 14E. Reliance can also be placed on Government Decision No.8 under Rule 14E, which was extracted by the Division Bench and which is as follows:

"8(i) The benefit of counting periods of break as per Note 3 below R.31, Part III, Kerala Service Rules will be allowed in cases where the appointment before the break was not provisional or for limited period and the break was due to reduction of staff strength of the institution.

(ii) In cases covered by (i) above the actual period of service excluding the periods of break will be reckoned for qualifying service.

(iii) In cases covered by (i) above the certificate that termination of appointment was due to reduction of staff strength of the institution should be countersigned by the pension sanctioning authority or Head of the Departments".

Government Decision No.8(i) extracted above specifically referred to Note 3 below Rule 31 and again reckoned only regular service, even if there was a break. For example, due to reduction of staff strength in the institution. However Decision No.8(ii) specifically spoke of cases not covered by

(i) in which the actual period of service excluding the periods of break would be reckoned for qualifying service. This is what was granted by the Government to the teacher in Alizuamma [2013 (4) KHC 313] and also allowed by the learned Single Judge in the common judgment. We, hence, find no reason to interfere with the impugned judgment on the ground that the learned Single Judge could not have distinguished Alizuamma [2013 (4) KHC 313]. We find 2025:KER:34818

that Alizuamma [2013 (4) KHC 313] also advanced the same proposition."

5. Having considered the submissions made at the Bar, in

the light of the law laid down by the Division Bench in Sabu

Mathew [2019 (3) KHC 972], we find no merits in this writ

appeal. The writ appeal fails and the same is accordingly

dismissed.

The submission made by the learned Senior Government

Pleader that all pensioners, who retired from service, prior to the

amendment made to Rule 14E of Part III Kerala Service Rules have

already been disbursed with terminal benefits taking note of the

law laid down by the Division Bench in Sabu Mathew [2019 (3)

KHC 972] is recorded.