Allowed

Dr. George Justine v. State of Kerala

Kerala HC22 Jan 2016WP(C)/30917/2012

Case brief

AI extract

What is this about?

In a writ petition, a retired lecturer challenged the rejection of his broken short-term service prior to regular appointment, contending it should be reckoned for pension. The Court held the service met statutory conditions for increments provisionally and ordered pension re-computation.

What did the court decide?

Quash Exts.P17 and P20 orders; direct respondents to recompute pensionary benefits reckoning broken spells of service and revise pension with consequential benefits within three months.

Dr. George Justine Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937 WP(C).No. 30917 of 2012 (L) ----------------------------

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PETITIONER: ----------DR.GEORGE JUSTINE.V, S/O.V.V.GEORGE, DEPARTMENT OF ENGLISH, NIRMALA COLLEGE, MUVATTUPUZHA RESIDING AT VETUKALLUMPURATHU, VAZHAKULAM.P.O MUVATTUPUZHA, ERNAKULAM DISTRICT-686670.

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BY ADV. SRI.B.MOHANLAL RESPONDENT(S): --------------

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STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-675 001.

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

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THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, NEAR MAHARAJAS COLLEGE, ERNAKULAM, PIN-682014. 4. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM-695 039. R1-R4 BY ADV. GOVERNMENT PLEADER SRI MANZOOR ALI.K.A THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 30917 of 2012 (L)

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A P P E N D I X

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PETITIONER’S EXHIBITS

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EXT.P1: TRUE COPY OF THE APPROVAL ORDER NO.461/B.III-3/89/A cad. DATED 10.07.1989 ISSUED BY THE MAHATMA GANDHI UNIVERSITY TO THE PETITIONER.

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EXT.P1: TRUE COPY OF THE APPROVAL ORDER NO.461/B.III-3/89/A cad. DATED 10/07/1989 ISSUED BY THE MAHATMA GANDHI UNIVERSITY TO THE PETITIONER.

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EXT.P2: TRUE COPY OF THE ORDER NO.461/B.III-3/89/A cad. DATED 19.12.1989 ISSUED BY THE MAHATMA GANDI UNIVERSITY TO THE PETITIONER.

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EXT.P3: TRUE COPY OF THE ORDER NO.461/B.III-3/90/A cad. DATED 05.02.1990 ISSUED BY THE MAHATMA GANDI UNIVERSITY TO THE PETITIONER.

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EXT.P4: TRUE COPY OF THE ORDER NO.461/B.III-3/90/A cad. DATED 4.12.1990 ISSUED BY THE MAHATMA GANDI UNIVERSITY TO THE PETITIONER.

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EXT.P5: TRUE COPY OF THE ORDER NO.UGC.CELL.II(2) 2735/96 DT.23.3.1996 ISSUED BY THE 2ND RESPONDENT.

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EXT.P6: TRUE COPY OF THE G.O(MS) NO.209/96/H.Edn. DT.24.12.1996 ISSUED BY THE GOVERNMENT.

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EXT.P7: TRUE COPY OF THE ORDER NO.Ac.B.V./2/454/2003 DT.2.8.2003 ISSUED BY THE MAHATMA GANDHI UNIVERSITY TO THE PETITIONER.

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EXT.P8: TRUE COPY OF THE ORDER NO.Ac.B-V/2/917/2005 DT.5.1.2006 ISSUED BY THE MAHATMA GANDHI UNIVERSITY TO THE PETITIONER.

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EXT.P9: TRUE COPY OF THE ORDER NO.M1/28796/2008/Coll.Edn DT.22.07.2008 ISSUED BY THE 2ND RESPONDENT.

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EXT.P10: TRUE COPY OF THE ORDER NO:P-12/2100824130/2/P/08/10/70035980 DT.30.08.2008 ISSUED BY THE 4TH RESPONDENT.

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EXT.P11: TRUE COPY OF THE APPLICATION DT.1.10.2008 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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EXT.P12: TRUE COPY OF THE COMMUNICATION NO.B3/19022/2006/Coll.Edn. DT.17.4.2007 ISSUED BY THE 2ND RESPONDENT TO THE PRINCIPAL.

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EXT.P13: TRUE COPY OF ORDER NO.PR-2100824130/P-12/2/1509062533 DT.9.7.2009.

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EXT.P14: TRUE COPY OF THE APPLICATION DT.7.11.2009 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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EXT.P15: TRUE COPY OF THE APPLICATION DT.28.11.2009 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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EXT.P16: TRUE COPY OF THE ORDER NO.E1-4601/2008 DT.21.7.2010 ISSUED BY THE 2ND RESPONDENT.

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EXT.P17: TRUE COPY OF THE ORDER NO.M1-36868/2010/COLLEGIATE EDUCATION DATED 17/12/2010 ISSUED BY THE 2ND RESPONDENT.

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EXT.P18: TRUE COPY OF THE APPLICATION DT.9.5.2011 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT BY REGISTERED POST AND ITS POSTAL RECEIPT.

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WP(C).No. 36554 of 2008 (B) : 2 :

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EXT.P19: TRUE COPY OF THE REPRESENTATION DT.2.6.2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXT.P20: TRUE COPY OF THE ORDER NO.20657/D1/2011/H.Edn DT.13.07.2011 ISSUED BY THE 1ST RESPONDENT.

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EXT.P21: TRUE COPY OF THE G.O(p) NO.2537/99/Fin. DT.25/11/1999 ISSUED BY THE GOVERNMENT.

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EXT.P22: TRUE COPY OF THE VERIFICATION REPORT NO:P.R.2100824130/P22/2/151267865/346 DT.13.8.2012 ISSUED BY THE 4TH RESPONDENT.

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RESPONDENTS' EXHIBITS

NIL.

/TRUE COPY/

P.S TO JUDGE

P.V ASHA, J.

W.P(C) No.30917 of 2012-L

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Dated this the 22^nd day of January, 2016 JUDGMENT

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The petitioner retired from service while working as Reader/Selection Grade Lecturer in Nirmala College, Muvattupuzha, which is an aided College. His grievance is that the service rendered by him covered by Exts.P1 to P4 orders, is not reckoned as qualifying service for the purpose of pension. The respondent rejected his request for reckoning the aforesaid service for pension on the ground that, the said service was not liable to be reckoned for increments.

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The petitioner was appointed as Lecturer in English in a regular vacancy with effect from 1.4.1989, as per Ext.P4 order. Prior to the regular appointment, he worked as Lecturer/Junior Lecturer in English in Nirmala College, Muvattupuzha and Pavanatma College, Murikkasseri, under the corporate educational agency, Diocese of Kothamangalam for various spells in short term vacancies as follows:

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Nirmala College

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Ext.P1 22.07.1986 – 24.09.1986

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W.P(C) No.30917 of 2012-L 2

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Ext.P2 5.2.87 -28.03.1987, 2.6.87 - 16.07.87 1.6.1988 -19.12.88

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Ext.P3 2.1.1989 – 17.3.1989

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Pavanatma College, Murikkasseri

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Ext.P2 4.1.88 to 30.3.88 Ext.P4 18.3.1989 to 31.3.1989

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All these appointments were approved by the Mahatma Gandhi University, as evident from Exts.P1 to P4 orders.

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Consequent to retirement, the Accountant General admitted the pensionary benefits of the petitioner initially by reckoning the qualifying service for a period of 17 years 11 months and 12 days. In Ext.P13 revised pension payment order, his qualifying service was reckoned as 19 years. On request by the petitioner, later the qualifying service was rectified as 20 years, as per Ext.P16 letter of the Deputy Director of Collegiate Education. But the service rendered by him during different spells between 22.7.1986 and 31.3.1989 was not reckoned. By Ext.P17 letter, the Director of Collegiate Education informed the petitioner that the said service cannot be reckoned for the purpose of pension since it was not reckoned for increments. It was also stated that the Government had in its letter

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W.P(C) No.30917 of 2012-L 3

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No.39495/D1/10/H.Edn. dated 11.11.2010 (Ref.No.3 in that letter) informed that the petitioner was not entitled to get that service rendered between 1986 and 1988 reckoned towards qualifying service for pension, as the same was not reckoned for increments.

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The petitioner approached the Government again by filing Exts.P18 and P19 representations. By Ext.P20, the Government rejected the representations saying that, provisional service of aided college teachers rendered upto 30.09.1994 which qualified for increments alone can be reckoned as qualifying service for pension, as per G.O(P) No.2537/99/Fin. Dated 25.11.1999, reckoned for increment alone can be reckoned for pension subject to the conditions specified in that Government Order. Ext.P21 is the copy of the Government Order -G.O. (P) 2357/99/Fin dated 25.11.1999 which is referred to in Ext.P20 letter of the Government. According to this order, the provisional service with or without break rendered by the employees upto 30.09.1994, which qualifies for earning increments in terms of Government decision No.2 under Rule 33 Part I of the Kerala Service Rules (“K.S.R” for short) will be

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W.P(C) No.30917 of 2012-L 4

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reckoned as qualifying service for pension irrespective of dates of retirement after 20.11.1989. In this case, the petitioner was appointed as against short term vacancies in aided colleges, as given in para 2 above, preceding his regular appointment.

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The respondents have filed a counter affidavit. In paragraph 2 of the counter affidavit it is stated that, as per the Government Order dated 25.11.1999, the provisional service with or without break rendered by the employees upto 30.09.1994 which qualifies for earning increments in terms of the Government decision No.2 under Rule 33 Part I KSR alone would be reckoned as qualifying service for pension. But it is stated that, the Management had not reckoned his broken service in various spells in Nirmala College, Muvattupuzha and Pavanatma College, Murikkassery for the purpose of granting increments and hence such broken service which is not counted for increments cannot be reckoned towards qualifying service for the purpose of pension. At the same time it is stated that, the broken period of service rendered in those colleges during 198688 could be reckoned for the purpose of granting placement under the UGC scheme w.e.f 1.4.1990, on the basis of seaparate

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W.P(C) No.30917 of 2012-L

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orders, governing the same.

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I heard the learned counsel for the petitioner as well as the learned Government Pleader. The learned Government Pleader vehemently opposed the reliefs sought for by the petitioner saying that the service rendered by the petitioner in the colleges were not liable to be reckoned for the purpose of pension. I have considered the pleadings and rival contentions with reference to the relevant Government orders.

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According to the respondents, the service rendered by the petitioner prior to his regular appointment can be reckoned towards qualifying service only if the service rendered by him satisfies the conditions mentioned in Ext.P21 Government order dated 25.11.1999, which in turn provides that the service should be one which satisfies the terms and conditions in Government decision No.2 under Rule 33 Part I K.S.R. Rule 33 deals with granting of increments. In this context, a look at Decision no.2 below Rule 33 Part I KSR (since deleted with effect from 1.10.1994) is necessary. It reads as follows:

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“Govt Decision No.2

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Provisional service on regularisation with or without break in the same category or post will be treated as officiating

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W.P(C) No.30917 of 2012-L 6

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service ab initio for the limited purpose of granting of increments. Provisional service followed by a regular appointment with or without breal in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting of increments.

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The term 'same category' of post for the purpose denotes post satisfying the following conditions:-

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(i) the post should carry same or identical scale of pay,

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(ii) the qualification and method of appointment should be the same and

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(iii) the post should fall in the same service.”

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In this case, the provisional appointment of the petitioner is in aided colleges. The regular appointment of the petitioner is also in aided College. The post on temporary appointment as well as regular appointment is one and the same carrying the same scale of pay. The qualification and method of appointment to the teaching posts in aided colleges is the same for regular as well as temporary appointments. The method of appointment in both the cases is by direct recruitment. The teaching posts continue to be in the same service. Therefore going by decision No.2 under Rule 33 Part III K.S.R, there is nothing which stood in the way of reckoning the service rendered by the petitioner on short spells of service for the purpose of increments. That service

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W.P(C) No.30917 of 2012-L 7

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rendered in different spells during the period from 1986 to 1989 could have been reckoned for the purpose of increments, going by the decision No.2 under Rule 33 Part I K.S.R. In that case it was liable to be counted for the purpose of pension also. The only objection raised by the respondents is that the broken periods of service rendered by the petitioner did not satisfy the terms and conditions in decision No.2 below Rule 33 Part I KSR and hence it cannot be counted for the purpose of increment and in turn towards qualifying service for the purpose of pension.

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In the above circumstances, there is no reason not to count the entire period of service covered by Exts.P1 to P4 orders towards qualifying service of the petitioner for the purpose of pension. The petitioner is therefore entitled to get his pensionary benefits re-computed and re-fixed reckoning the broken spell of service covered by Exts.P1 to P4 orders, towards qualifying service.

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In the above circumstances, I quash Exts.P17 and P20 orders and direct the respondents to recompute the pensionary benefits due to the petitioner, reckoning the broken spells of his appointment covered by Exts.P1 to P4 towards his qualifying

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W.P(C) No.30917 of 2012-L 8

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service along with his service on regular appointment and to refix, sanction and diburse the revised pensionary benefits, along with all consequential benefits including arrears, within a period of 3 months from the date of receipt of a copy of this judgment.

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This Writ Petition is allowed accordingly.

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Sd/- P.V.ASHA Judge

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rtr/

Dr. George Justine v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr. George Justine v. State of Kerala

Case brief

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