Service Law; Yatheendranath T.M. Vs. State [Kerala High Court, 26-05-2016]

Rule 20 of Part III KSR – Prior Service – Petitioner who is working as a Senior Assistant in the Kerala State Electricity Board – Writ petition aggrieved by the refusal of the Board to reckon his service under the State Govt. and under the Kerala Agricultural University towards qualifying service for pension – Held, Proviso to Rule 20 does not prohibit the Board from taking a decision to make the rule applicable to the employees of the Board, as in the case of other provisions in KSR or in taking a decision to count such service as in the case of Govt. employees. It only says Rule 20 as such is not applicable in a case where appointment is to or from a public sector undertaking. The reason for the same is also provided therein i.e, those public sector undertakings are constituted under the Companies Act or by separate Legislations of the Central/State Governments. The proviso does not stand in the way of the Board in counting the prior service rendered by the board employees in Universities or Panchayat or Municipal Common Service. At any rate, it does not in any way affect the decision already taken by the Board, to count the prior service as qualifying service.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.V. ASHA J.

W.P.(C) No.33440 of 2011

Dated this the 26 th day of May, 2016

PETITIONER(S)

YATHEENDRANATH T.M., WORKING AS SENIOR ASSISTANT, OFFICE OF THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD, NALLALAM, KOZHIKODE, PIN- 673 027.

BY ADVS.SRI.BABU CHERUKARA SRIJEEMON JOHN SRI.S.RUSSEL SRI.V.R.ARUN

RESPONDENT(S)

1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM- 695 001.

2. SECRETARY TO THE GOVERNMENT, ELECTRICITY DEPARTMENT, SECRETARIAT, TRIVANDRUM- 695 001.

3. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, TRIVANDRUM- 695 004.

4. SECRETARY, DEPARTMENT OF FOREST SECRETARIAT, TRIVANDRUM- 695 001.

5. KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY THE REGISTRAR, MANNUTHYU P.O., PIN- 680 651.

R1 & R2 BY SR. GOVERNMENT PLEADER SRI.E.M.ABDUL KHADIR R3 BY ADV. SRI.K.S.ANIL, S.C R5 BY SRI.K.P.MUJEEB, S.C.

J U D G M E N T

The petitioner who is working as a Senior Assistant in the Kerala State Electricity Board (hereinafter referred to as ‘the Board’) has filed this writ petition aggrieved by the refusal of the Board to reckon his service under the State Govt. and under the Kerala Agricultural University (‘the University’ for short), towards qualifying service for pension.

2. Petitioner entered the service under the Board on 15.02.1999. Prior to this, he worked as L.D Clerk in the Department of Forest under the Government of Kerala for the period from 05.12.1995 to 11.08.1998 and thereafter in the Kerala Agricultural University as Assistant Grade-II for the period from 12.08.1998 to 12.02.1999. In order to reckon the service rendered under the State Government and thereafter in the University towards qualifying service for the purpose of pension, the petitioner submitted a representation before the Board. But the 3 rd respondent rejected the same, as per Ext.P5, saying that there is a break due to the non-reckonable service in the University which cannot be condoned. The petitioner thereupon approached the Government by submitting Ext.P7 representation requesting for a direction to the Board to reckon the prior service. Government also rejected the same as per Ext.P9, saying that the prior service rendered by the petitioner in the University can be treated only as a break in service and on account of that, the service rendered by him in the Forest Department also cannot be reckoned towards qualifying service due to the intervening break caused by the service in the University.

3. Petitioner relies on Ext.P4 order passed by the Board on 01.09.2005, by which the Board had accorded sanction to count the prior service rendered by the Board employees on certain conditions. According to the petitioner, he is entitled to get his prior service counted for pension in the light of Ext.P4 as well as Rule 20 of part III KSR.

4. The Board as well as the Government have filed counter affidavits. In the counter affidavit filed by the 3 rd respondent, it is stated that there is no provision to reckon the prior service rendered by petitioner in the University. The counter affidavit does not refer to Ext.P4. Referring to Rule 20 of Part-III KSR, as amended as per Gazette Notification dated 24.06.2008 published as per SRO No.666/2008, it is stated that there is a specific prohibition under the proviso to Rule 20, in counting prior service rendered in Universities, as it is specifically provided that the proviso shall not be applicable for appointments to and from public sector undertaking, autonomous bodies or similar bodies and therefore the service rendered in University cannot be reckoned as qualifying service. Therefore, according to the Board there is a specific prohibition in Rule 20 against counting the service rendered by the petitioner who is appointed in a public sector undertaking.

5. Heard Adv.Shri.Babu Cherukara appearing for the petitioner, Adv.Shri.K.S.Anil appearing for the Board and the learned Government Pleader.

6. Ext.P4 is an order passed by the Board after consideration of the representations received from the Board employees who had prior service in other institutions. The Board in its meeting held on 22.08.2005 considered the representations and took the decision to count the past service rendered by the Board employees in the Kerala State Public Sector undertakings/autonomous bodies for the purpose of pension and pensionary benefits under the Board. Relevant portion of Ext.P4 Board Order dated 1.9.2005 reads as follows:

“A number of representations from the Board employees who have prior service elsewhere are pending disposal of the Board for want of clarification. On detailed examination of the cases, the Board in its meeting held on 22.08.2005 decided to accord sanction to the following:-

(a) continue to count the prior service of the departments of Govt./central autonomous body —–xxxx—-

(b) continue to count the past service rendered by the Board employee under the Kerala State Govt Departments for the purpose of pension in the Board without insisting the Kerala State Govt Departments to pay the pro-rata pension liability to the Board;

(c) count the past service rendered by the Board employee under Public Sector undertaking/Autonomous bodies for the purpose of pension in the Board subject to realization of the pro-rata pension liability from the Kerala State Public Sector undertaking/Autonomous bodies”.

It is not disputed that provisions under the KSR are made applicable to the Board employees, as the same is adopted by them. Rule 11 of Part-III KSR reads as follows:

“11. Notwithstanding the provisions of Rule 10, the Government may, (1) declare that any specified kind of service rendered shall qualify for pension; and

(2) in individual cases, and subject to such conditions as they may think fit to impose in each case, allow service rendered by an employee to count for pension.

7. Therefore, Ext.P4 order can only be an order passed by the Board in exercise of its power under Rule 11 of Part III KSR which enables the Board to declare any specified kind of service as qualifying service for pension. Even assuming that under Rule 20 of Part III KSR, the prior service rendered by the Board employees cannot be reckoned towards the qualifying service, in view of the amendment effected in the year 2008, as alleged by the Board, that does not take away the benefit of the decision taken by the Board as per Ext.P4 under Rule 11.

8. The contention of the Board is that benefit of Ext.P4 order is not available to petitioner since his service under the State Govt. is followed by service in University just before his entry in the Board. When the Board has in Ext.P4 decided to count the prior service in Central, State and Autonomous Bodies, there is no reason for not counting the service in the Kerala Agricultural University. There is no reason for excluding the University from the purview of of Ext.P4, when it is a body corporate established under the provisions of Kerala Agricultural University Act, 1971, having perpetual succession and common seal. It cannot be said that the Kerala Agricultural University does not come within the meaning of the term ‘autonomous body’. The meaning of the word ‘autonomous’ as given in dictionary. com is: self-governing; independent; subject to its own laws only. Therefore there is no justification for the Board to deny the benefit of clause iv of Ext P4 order to the petitioner and to issue orders reckoning the service rendered by him both under the Govt and the University, towards qualifying service for pension and pensionary benefits.

9. The contention that the Board cannot reckon the prior service on account of prohibition contained in the proviso to rule 20 of Part III KSR is baseless. Rule 20 of Part III was amended in the year 2008 providing that the past service put in by the Government employees and Aided School/Aided College Teachers in Panchayath/Municipal Common Service and Universities prior to their entry in State Government Service or Aided School/Aided College Service shall be reckoned as qualifying service for pension and Death-cum-Retirement Gratuity from Government. Therefore service rendered in a University can be reckoned for pension in the case of Government employees/aided School and College teachers who entered service subsequent to service in University or Panchayat or Municipal Common Service Rules. It is true that there is a proviso to this Rule which provides that the provisions contained therein will not apply in the cases of appointments of a Govt. servant or an aided school/college employee from or to public sector undertakings. That does not mean that the Board, which is a public sector undertaking cannot adopt or implement the provisions contained in Rule 20. In fact that proviso to Rule 20 does not prohibit the Board from taking a decision to make the rule applicable to the employees of the Board, as in the case of other provisions in KSR or in taking a decision to count such service as in the case of Govt. employees. As can be seen from the proviso itself. It only says Rule 20 as such is not applicable in a case where appointment is to or from a public sector undertaking. The reason for the same is also provided therein i.e, those public sector undertakings are constituted under the Companies Act or by separate Legislations of the Central/State Governments.

10. The proviso does not stand in the way of the Board in counting the prior service rendered by the board employees in Universities or Panchayat or Municipal Common Service. At any rate, it does not in any way affect the decision already taken by the Board as per Ext.P4 Board order, to count the prior service as qualifying service.

11. In view of Ext.P4, rejection of the request of petitioner on the ground that there is break in service on account of his service rendered in the Agricultural University is absolutely unsustainable. The petitioner has rendered service in the Agricultural University in continuation of his service in the Forest Department under the State Government immediately before he joined the Board.

12. Under these circumstances, Ext.P9 order is unsustainable and the same is quashed. It is declared that the service rendered by the petitioner from 05.12.1995 to 02.02.1999 in the Forest Department under the State Government and thereafter in the Kerala Agricultural University is liable to be reckoned towards qualifying service for the purpose of pension. The respondents shall take all necessary steps for counting the service rendered by petitioner in the Forest Department as well as University in terms of Ext P4, towards his qualifying service for pension.

Accordingly, the writ petition is allowed.