High Court dismissed a writ appeal filed by the State of Kerala against a Division Bench judgment which had upheld a Single Judge's order setting aside Government orders that excluded break service from pension reckoning.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941
WA.No.166 OF 2019
AGAINST THE JUDGMENT IN WP(C) 8191/2018(Y) OF HIGH COURT OF KERALA DATED 19/3/2018
APPELLANTS/RESPONDENTS IN WP(C):
1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.
2 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM- 695014.
4 ASSISTANT EDUCATIONAL OFFICER, KOYILANDI- 673305.
5 ACCOUNTANT GENERAL (A AND E), KERALA, THIRUVANANTHAPURAM- 695001.
BY SPL.GOVERNMENT PLEADER SRI.A.J.VARGHESE
RESPONDENT/PETITIONER IN WP(C):
HAMZA.P.PERUNGADAN, S/O.HIDRU, PERUNGADAN HOUSE, ANCHACHAVIDI P.O., KALIKAVU (VIA), MALAPPURAM- 676525.
R1 BY ADV. SMT.M.VISHNUPRIYA R1 BY ADV. SRI.M.A.FAYAZ R1 BY ADV. SMT.C.B.ABHINAVA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.166/2019
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J U D G M E N T
Dated this the 25th day of November 2019
S.Manikumar, C.J.
Judgment dated 19/03/2018 in W.P.(C) No.8191/18 is assailed on various grounds. Learned Special Government Pleader Sri.A.J.Varghese fairly submitted that the issue in the instant case is covered by a decision of the Hon'ble Division Bench of this Court in W.A. No.1235/2018.
“1. The question arising in these appeals against the common judgment in the writ petitions is limited. The limited question is, as to whether provisional service in an aided school, on leave vacancy can be counted for pension when the said incumbent later joins regular service in an aided college or an aided school. The learned Single Judge found the same to be permissible. The learned Single Judge is said to have distinguished a Division Bench judgment in Alizuamma v. Accounts Officer, Office of the Accountant General [2013 (4) KLT 53]. The learned Senior Government Pleader submits that the issue is squarely covered by the Division Bench decision of this Court which categorically held that no claim for treating the period of service in a leave
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vacancy, for the purpose of pension, can be entertained. The Government Orders set aside by the learned Single Judge ought to have been sustained, is the contention. “
hereunder:
“26. In the above circumstances, the G.O.(P) No.66/16/Fin dated 9.5.2016 (Ext P8) and G.O.(P) No.113/16/Fin dated 5.8.2016 (Ext.P9) to the extent those orders relate to any kind of service in aided Schools, rendered prior to the regular service in aided Schools or aided colleges and to the extent it is given retrospective effect are set aside.
27. There shall be a direction to the competent among the respondents to re-fix/recompute the pension and pensionary benefits of the petitioners, disregarding the orders Exts.P8 and P9, and sanction and disburse the same to the petitioners along with all consequential benefits, within a period of 3 months from the date of receipt of a copy of the judgment. “
and a Hon'ble Division Bench has sustained the above said order. Upon setting aside the Government order, Government have also issued a revised order extending the benefit of provisional service/broken service of Aided School Teachers, retired before
10/8/2018. For brevity, GO(Ms) No.401/2019/Fin dated 28/10/2019 is extracted.
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“GOVERNMENT OF KERALA
Abstract
Reckoning of aided school service for pension- Clarification Orders issued.
FINANCE (PENSION - B) DEPARTMENT
G.O(Ms)No.401/2019/Fin Dated,Thiruvananthapuram, 28/10/2019.
Read:-l) G.O (P) No: 47/2018/Fin dated 21.03.2018.
2) G.O(P) No. 128/2018/Fin dated 10.08.2018, SRO-572/18 dated 13.08.2018.
3) Judgement of the Hon’ble High Court dated 14/08/2017 in WP(C)30167/2016 filed by Sri.Sabu Mathew & Others
4) Judgement dated 04/07/2019 in WA 1235 of 2018 and 20 connected cases
5) Letter no.Pl/Unit-4/FID 2101787036/0484 dated 23/10/2019 from the AG(A&E), Thiruvananthapuram
6) D.O letter no.311563/Pen-B2/26/2016/FIN dated 15.10.2019.
ORDER
As per order read 1st above, Government ordered that the broken spells of provisional service/leave vacancy service rendered by regular aided college staff or regular aided school staff/Government employees, prior to their entry in regular service shall not be reckoned as qualifying service w.e.f. 01.06.2016.
As per order read 2nd above amendment has been made in rule 14E of Part III KSR to the effect that only regular full time aided school service rendered after the introduction of Direct Payment System in aided school shall be reckoned for pension. The writ appeal filed by Government restricting the above provision up to 01.06.2016 was dismissed by Hon'ble High Court in a common judgement dated 04/07/2019 in WA 1235 of 2018 and 20 connected cases read above. The
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AG(A&E) has informed that CC(C)of 2018 in WP(C)30167/2016 has been filed in the High Court by Sri. Sabu Mathew & another alleging non compliance of the judgement dated 14/08/2017. Direction was issued to the Head of Departments concerned that those who retire prior to the issuance of the aforesaid amendment (ie: retired before 01.08.2018) are eligible to reckon the broken/leave vacancy period for pensionary benefits. But certain doubts has been raised regarding reckoning of broken spells of aided school service.
Government after examining the matter are pleased to clarify that "the broken spells of provisional service/leave vacancy service rendered by regular aided school staff/Government employees, in aided schools prior to their entry in regular service shall not be reckoned as qualifying service w.e.f 10.08.2018."
The judgement of the Hon'ble High Court thus stands complied with.
(By Order of the Governor)
SANJEEV KAUSHIK IAS PRINCIPAL SECRETARY(FINANCE).”
In the above said circumstances, nothing survives to be
considered in the present appeal. Writ appeal is, therefore, dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
A.M.SHAFFIQUE
JUDGE
Rp
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APPENDIX
APPELLANT'S EXHIBITS: NIL
RESPONDENT'S EXHIBITS:
ANNEXURE R1(a) PHOTOCOPY OF THE JUDGMENT IN W.A.NO.1235/2018. ANNEXURE R1(b) PHOTOCOPY OF THE JUDGMENT IN W.P. (C)34298/2018. ANNEXURE R1(c) PHOTOCOPY OF G.O(MS) NO.401/2019/FIN DATED 28.10.2019. True Copy PS to Judge
Rp
State of Kerala, represented by Secretary to the Government, Finance Department
Hamza.P.Perungadan
S.Manikumar
A.M.Shaffique
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
