Kerala High Court
K. Abdu Rahiman vs State Of Kerala on 8 June, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 24TH DAY OF JANUARY 2018 / 4TH MAGHA, 1939
WP(C).No. 34777 of 2017
PETITIONER:
K. ABDU RAHIMAN,
JUNIOR LANGUAGE TEACHER(ARABIC)(RETIRED)
ATHMAPRABODHINI L.P SCHOOL, ELATHUR,
P.O.ELATHUR, KOZHIKODE DISTRICT - 673303,
RESIDING AT KOLAYIL HOUSE, KODIYATHUR PO,
KOZHIKODE DISTRICT - 673602.
BY ADVS.SRI.P.M.PAREETH
SRI.MOHAMMED SHAMEEL
SRI.AASHIQUE AKTHAR HAJJIGOTHI
RESPONDENT(S):
1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.695001.
2. DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM - 695014.
3. DEPUTY DIRECTOR OF EDUCATION,
KOZHIKODE - 673001.
4. ASSISTANT EDUCATIONAL OFFICER,
CHEVAYOOR, KOZHIKODE - 673017.
5. ACCOUNTANT GENERAL (A & E),
THIRUVANANTHAPURAM - 695001.
BY GOVERNMENT PLEADER SMT.RENJITHA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24-01-2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
mbr/
WP(C).No. 34777 of 2017 (V)
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE
SERVICE BOOK OF THE PETITIONER.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE LETTER DATED 8.6.2012
ISSUED BY THE OFFICE OF THE 5TH RESPONDENT.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE ORDER DATED 2.7.2012
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE AUTHORIZATION OF
PENSION, GRATUITY AND COMMUTED VALUE OF
PENSION DATED 29.11.2013.
EXHIBIT P5 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 9.6.2014
SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.
EXHIBIT P6 A TRUE PHOTOCOPY OF THE LETTER DATED 12.12.2014
ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT
AND COPIES TO THE PETITIONER.
EXHIBIT P7 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 22.7.2016
SUBMITTED BY THE PETITIONER BEFORE THE
HON'BLE CHIEF MINISTER, KERALA.
EXHIBIT P8 A TRUE PHOTOCOPY OF THE LETTER DATED NIL ISSUED
TO THE PETITIONER FROM THE OFFICE OF THE HON'BLE
CHIEF MINISTER.
EXHIBIT P9 A TRUE PHOTOCOPY OF THE ADVICE DATED 8.11.2016
ISSUED BY THE TEJASVINI HOSPITAL.
RESPONDENTS' EXHIBITS: NIL
/TRUE COPY/
P.S.TO JUDGE
mbr/
ANU SIVARAMAN, J.
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W.P.(C).No.34777 of 2017
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Dated this the 24th day of January, 2018
JUDGMENT
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This writ petition is filed challenging Ext.P4 order and seeking a declaration that the petitioner is entitled to reckon all broken periods of approved service put in by the petitioners as also reckon the weightage as provided in Rule 56 (vii) of Part III of the K.S.R. It is submitted that the petitioner had 22 years 4 months and 26 days of service to his credit, taking into account the broken periods of approved service as well. The petitioner had applied for voluntary retirement on 25.11.2011. The requests are forwarded to the educational authorities.
2. The petitioner contends that he was entitled to weightage in terms of Rule 56 (vii) of Part III K.S.R as well and 2 years and 10 months was liable to be added as service weightage to the qualifying service of the petitioner. The petitioner contends that though the application for voluntary retirement had been sent up showing the qualifying service as 22 years 4 months and 26 days, the W.P.(C) No.34777 of 2017 2 pension papers appear to have been forwarded after sanctioning pension, taking note of the qualifying service as 18 years 5 months and 9 days. It is stated that the Accountant General had returned the pension proposal by Ext.P6 pointing out the discrepancies in the qualifying service noted. It is stated that service weightage which is to be taken into account in a case of voluntary retirement has also not been taken note of while calculating the qualifying service. In the above view of the matter, the petitioner had preferred Ext.P7 representation before the respondents. However, no directions were issued. The petitioner contends that the rejection of the petitioner's claim for voluntary retirement on the ground that he did not have the required qualifying service of 20 years was completely unsustainable. The petitioner therefore contends that he is entitled to sanction of pension taking note of 22 years 4 months and 26 days of qualifying service even without reckoning the interruptions and also reckoning the service weightage in terms of Rule 56 (vii) of Part III of the K.S.R.
3. A counter affidavit has been filed on behalf of the 3rd respondent wherein it is contended that while W.P.(C) No.34777 of 2017 3 regularizing the broken period of service put in by the petitioner for three spells between 1.7.1980 to 13.03.1986, the Government had stipulated that broken period of service cannot be taken into account for any retirement benefits including pension. It is stated that the said period of 3 years 11 months and 17 days had therefore to be excluded from the petitioner's qualifying service and the result was that he had net qualifying service of only 18 years 5 months and 9 days. With regard to the petitioner's claim for weightage in terms of Rule 56 (vii) of Part III of the K.S.R, nothing is stated in the counter affidavit.
4. I have considered the contentions advanced. It is not in dispute before me that the petitioner had total qualifying service of 22 years 4 months and 26 days. The reasons stated for excluding the 3 years 11 months and 17 days of service is that the Government while regularizing the periods of broken service had imposed a condition that such service would not count for pension. The issue of counting of broken periods of aided school service as qualifying service for pension has already been considered by this Court in its decision reported in Sabu Mathew v. State of W.P.(C) No.34777 of 2017 4 Kerala (2017(4) KLT 501). This court has held that the Government orders which stipulate that broken spells of aided school service cannot be taken note of while calculating qualifying service of aided school teachers is unsustainable and has struck down the Government orders to the extent they provide such a stipulation. In the above view of the matter, the entire spells of service put in by the petitioner including the broken spells of approved service are liable to be counted for calculating the qualifying service for pension.
5. In the above view of the matter, the petitioner would be entitled to count 22 years 4 months and 26 days of service for the purpose of calculation of qualifying service of pension. Since the qualifying service is more than 20 years, the petitioner would be entitled to apply for voluntary retirement and the findings to the contrary are absolutely unsustainable. The petitioner's claim for service weightage in terms of Rule 56 (vii) of Part III of the K.S.R is also to be considered by the 4th respondent while reckoning the pensionary claims of the petitioner.
In the said circumstances, the impugned orders are set W.P.(C) No.34777 of 2017 5 aside. There will be a direction to the 4 th respondent to sanction pension due to the petitioner taking his qualifying service as 22 years 4 months and 26 days and also to grant the benefits of weightage as provided in Rule 56 (vii) of Part III of the K.S.R and to sanction pension accordingly and send up the proposal to the Accountant General. Needful shall be done by the 4th respondent within a period of two months from the date of receipt of a copy of this judgment. The orders admitting the pension and disbursing the same shall also be issued without any further delay.
The writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE sab