Kerala High Court
9.2008. It Is Stated That In Ext.R1(D) ... vs Jagjith Singh And Others : Ilr on 18 November, 1993
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939
WP(C).No. 39931 of 2016
PETITIONER(S)
JYOTHIKUMAR S.,
SREE CHAKRAM BUNGALOW,
VETTAMUKKU, THIRUMALA P.O.,
THIRUVANANTHAPURAM.
BY DR.K.P.SATHEESAN, SENIOR ADVOCATE
ADVS. SRI.P.MOHANDAS (ERNAKULAM)
SRI.S.VIBHEESHANAN
SRI.K.SUDHINKUMAR
RESPONDENT(S):
1. THE DIRECTOR, REGIONAL CANCER CENTRE,
P.O.BOX NO.2417, MEDICAL COLLEGE CAMPUS,
THIRUVANANTHAPURAM- 695 011.
2. THE ADMINISTRATIVE OFFICER,
REGIONAL CANCER CENTRE,
P.O.BOX NO.2417, MEDICAL COLLEGE CAMPUS,
THIRUVANANTHAPURAM - 695 011.
BY SRI.K.JAJU BABU, SENIOR ADVOCATE
ADV. SMT.M.U.VIJAYALAKSHMI, S.C
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-02-2018, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
05/03/2018
WP(C).No. 39931 of 2016 (N)
APPENDIX
PETITIONER(S)' EXHIBITS
EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO
THE PETITIONER BY THE FIRST RESPONDENT DATED 18/11/1993.
EXT.P2 TRUE COPY OF THE ORDER ISSUED BY THE 2ND
RESPONDENT 10/7/1996.
EXT.P3 TRUE COPY OF THE ORDER ISSUED BY THE 2ND
RESPONDENT DATED 24/3/1999.
EXT.P4 TRUE COPY OF THE STATEMENT OF FIXATION OF
SALARY IN THE SCALE OF PAY WITH EFFECT FROM
24/11/1998 DATED 14/11/2000.
EXT.P5 TRUE COPY OF THE ORDER ISSUED BY THE 2ND
RESPONDENT DATED 1/9/2008.
EXT.P6 TRUE CPOY OF THE SERVICE DETAILS OF THE
PETITIONER ISSUED BY THE 2ND RESPONDENT DATED
17/5/2016.
EXT.P7 TRUE COPY OF THE ORDER ISSUED BY THE 2ND
RESPONDENT DATED 9/11/2009.
EXT.P8 TRUE COPY OF THE LETTER WRITTEN BY THE FIRST
RESPONDENT TO THE 2ND RESPONDENT DATED
17/10/2008.
EXT.P9 TRUE COPY OF THE PENSION SANCTION ORDER ISSUED
BY THE 2ND RESPONDENT DATED 10/9/2016.
EXT.P10 TRUE COPY OF THE ORDER NO.9599/ADMN.I/2016/RCC
DATED 15/11/2016 ISSUED BY THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R1(A): COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF EXECUTIVE
COMMITTEE OF RCC DATED 03.05.1993.
EXHIBIT R1(B): COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF EXECUTIVE
COMMITTEE OF RCC DATED 21.02.1995.
EXHIBIT R1(C): COPY OF THE EXTRACT OF THE RESOLUTION OF THE EXECUTIVE
COMMITTEE DATED 14.08.2009.
EXHIBIT R1(D): COPY OF THE GOVERNMENT ORDER G.O(MS)NO.580/2010/H&FWD
DATED 06.09.2010 AND NO.52/SG/2010/ADMN-II/RCC
DATED 09.10.2010.
EXHIBIT R1(E): COPY OF THE NOTIFICATION VIDE NO.1589/SG/2006/ADMN.II/RCC
ISSUED BY THE ADMINISTRATIVE OFFICER OF REGIONAL CANCER
CENTRE.
WP(C).No. 39931 of 2016 (N)
EXHIBIT R1(F): COPY OF THE RANK LIST PREPARED BY THE STAFF SELECTION
COMMITTEE ON 27.09.2007.
EXHIBIT R1(G): COPY OF THE GOVERNMENT ORDERS DATED 26.02.2011, 09.10.2013
AND 21.11.2015 OF THE HEALTH AND FAMILY WELFARE DEPARTMENT.
//TRUE COPY//
P.S.TO JUDGE
Msd.
05/03/2018
P.V.ASHA, J.
W.P.(C) No.39931 of 2016
Dated this the 26th day of February, 2018
JUDGMENT
The petitioner, who retired from service on 31.5.2016 while working as Sergeant in the Regional Cancer Center, has filed this writ petition challenging Ext.P9 order to the extent it denies the benefit of pension reckoning the services rendered by him as Security Guard on scale of pay.
2. The petitioner is an ex-serviceman who joined the Regional Cancer Centre on 24.11.1993 as Security Guard on daily wages. He was paid the consolidated pay on completion of two years from 24.11.1995 onwards. On completion of five years of service he was granted scale pay. While working so the respondents invited applications for the post of Sergeant. The petitioner, who was qualified, applied for the post and was appointed in that post with effect from 1.9.2008 as per Ext.P4 order. While working so he retired from service on 31.5.2015. He submitted a representation requesting for fixing his pension considering his service as Security Guard also. He approached this Court thereafter in WP(C) No.29116 of 2016. On the basis of the direction in the judgment dated 1.9.2016 in that writ petition the 1 st respondent issued Ext.P10 order rejecting his request on the ground W.P.(C) No.39931/16 :2: that the post of Security Guard was not sanctioned and that the petitioner had already joined as Sergeant by the time the said post was sanctioned on 6.9.2010.
3. The petitioner is challenging the order-Ext.P10 and seeking direction to fix his pension reckoning the service from 24.11.1995 onwards.
4. The respondents have filed a counter affidavit stating that on recruitment of the petitioner through Zilla Zainik Board he was paid daily wages. He was granted consolidated pay with effect from 24.11.1995 and scale of pay from 24.11.1998 as per the decision of the executive committee in Exts.R1(a) and R1(b) respectively. It is stated that 12 posts of Security Guards were created on the basis of the order Ext.R1(d) issued by the Government in G.O(Ms) No.580/10/H&FWD dated 6.9.2010. Security Guards who were having 10 years of service were regularized as per that order. Since the petitioner had already got selection as Sergeant on regular basis with effect from 1.9.2008, petitioner is not benefited by Ext.R1(d) order which was issued subsequent to his regular appointment. It is stated that petitioner is eligible for pension only with effect from the date on which he became a regular employee of the respondents that is from 01.09.2008. It is stated that in Ext.R1(d) order Government created W.P.(C) No.39931/16 :3: 12 posts of Security Guard subject to the condition that regularisation would be only with prospective effect. Therefore it is stated that petitioner's service as Security Guard cannot be reckoned for the purpose of pension.
5. I heard the learned Senior Counsel for the petitioner and the learned Standing Counsel for the respondents. The learned Senior Counsel for the petitioner relied on the judgment of the Apex Court in State of Punjab and others vs. Jagjith Singh and others : ILR 2016 (4) Kerala 419 in support of his contention that the service rendered on the scale of pay has to be reckoned for pension.
6. I have considered the contentions raised on both sides. It is seen that even though the petitioner worked as Security Guard, and he was paid wages on the basis of the decision of the executive committee in Exts.R1(a) and R1(b) there is no decision by the executive committee or the Government to reckon the service rendered by the petitioner as Security Guard on regular scale of pay for the purpose of pension. It is not disputed that the post of Security Guard was sanctioned only as per Ext.R1(d) order on 6.9.2010. When the post of Security Guard is sanctioned only in the year 2010, when the petitioner was already in a regular post on the basis of selection as Sergeant from 1.9.2008 onwards, the petitioner cannot have any valid W.P.(C) No.39931/16 :4: claim to get his pension fixed considering the service rendered by him as Security Guard merely on the basis of the fact that he was given scale of pay from 24.11.1998 onwards. In the absence of any decision either by the RCC or by the Government, petitioner cannot have any right to get pension on the basis of the service rendered in the absence of a sanctioned post.
The judgment relied on by the petitioner in State of Punjab and others vs. Jagjith Singh and others (supra) is not applied to the facts of the case, as the said case did not relate to qualifying service for the purpose of pension. Even otherwise the pension can be fixed and sanctioned only in accordance with rules. In the above circumstances, I do not find any reason to interfere with Ext.P10 order.
Accordingly the writ petition is dismissed.
Sd/-
P.V.ASHA JUDGE rkc