Kerala High Court
State Of Kerala vs P. Haridasan on 27 February, 2019
Bench: K.Surendra Mohan, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
and
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940
RP.No. 1012 of 2017 IN WA. 645/2010
AGAINST THE JUDGMENT IN WA 645/2010 of HIGH COURT DT.5.2.2015
REVIEW PETITIONERS/APPELLANTS 1 TO 3:
1 STATE OF KERALA, REP. BY CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM.
2 THE PRINCIPAL SECRETARY,FINANCE (PENSION B),
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM.
BY SR.GOVERNMENT PLEADER SRI A.J.VARGHESE
RESPONDENTS/RESPONDENTS 1 TO 4:
1 P. HARIDASAN,
LECTURER, SELECTION GRADE (RETIRED),
DEPARTMENT OF COMMERCE, S.N. COLLEGE, KOLLAM,
RESIDING AT BHAVANA (PADMA NIVAS),
KILIKOLLOOR P.O., KOLLAM.
2 S. SUSEELA,
LECTURER, SELECTION GRADE (RETIRED),
DEPARTMENT OF CHEMISTRY, S.N. COLLEGE FOR WOMEN,
KOLLAM, RESIDING AT ASWATHY, KC.38/392,
AMRUTHAKULAM, MUNDACKAL EAST, KOLLAM.
3 P.N. NARAYANAN,
LECTURER, SELECTION GRADE (RETIRED),
DEPARTMENT OF CHEMISTRY, T.K.M. COLLEGE OF ARTS AND
SCIENCE, KOLLAM, RESIDING AT BINDU NIVAS,
CHANDANATHOPPU, KOLLAM-11.
R.P.Nos.1012 & 1013 of 2017 2
R.P.No.1012/2017
4 UNIVERSITY OF KERALA,
REP. BY ITS REGISTRAR, THIRUVANANTHAPURAM.
BY ADV. SRI.THOMAS ABRAHAM SC UNIVERSITY OF
KERALA
ADV. SRI PAUL JACOB
ADV.SRI S.MUHAMMED HANEEF
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
12.02.2019, ALONG WITH RP.1013/2017, THE COURT ON
27.02.2019 PASSED THE FOLLOWING:
R.P.Nos.1012 & 1013 of 2017 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
and
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019/8TH PHALGUNA, 1940
RP.No. 1013 of 2017 IN WA. 1124/2010
AGAINST THE JUDGMENT IN WA 1124/2010 of HIGH COURT DT.05-02-2015
REVIEW PETITIONER/RESPONDENTS 1 TO 4:
1 THE STATE OF KERALA
REP. BY SECRETARY, HIGHER EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
2 THE PRINCIPAL SECRETARY
FINANCE (PENSION B) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM.
3 THE DIRECTOR OF COLLEGIATE EDUCATION
THIRUVANANTHAPURAM.
4 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOLLAM.
BY SR.GOVERNMENT PLEADER SRI A.J.VARGHESE
RESPONDENTS/APPELLANT & 5TH RESPONDENT:
1 O.GEORGE
LECTURER, SELECTION GRADE (RETD), DEPARTMENT OF
CHEMISTRY, ST.JOHN'S COLLEGE, ANCHAL, RESIDING AT
MULLASSERIL PUTHEN VEEDU, P.O.CHENGAMANADU,
KOTTARAKKARA, KOLLAM.
2 UNIVERSITY OF KERALA
REP. BY ITS REGISTRAR, THIRUVANANTHAPURAM-695001.
BY ADVS.S.MUHAMMED HANEEF
SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
SRI PAUL JACOB
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
12.02.2019, ALONG WITH RP.1012/2017, THE COURT ON
27.02.2019 PASSED THE FOLLOWING:
R.P.Nos.1012 & 1013 of 2017 4
K. SURENDRA MOHAN, ANIL K. NARENDRAN
& SHIRCY V. (JJJ)
ORDER
The petitioners in R.P.No.1012 of 2017 are the appellants in W.A.No.645 of 2010, arising out of W.P.(C)No.24546 of 2004; and the petitioners in R.P.No.1013 of 2017 are the respondents in W.A.No.1124 of 2010, arising out of W.P.(C)No.8797 of 2010.
2. The respondents in R.P.No.1012 of 2017, who retired from service while working as Lecturer (Selection Grade) in Private Aided Colleges affiliated to the University of Kerala, filed W.P.(C)No. 24546 of 2004 for reckoning their prior Central Government Service for the purpose of fixing their pensionary benefits. The learned Single Judge allowed the said Writ Petition by the judgment dated 09.10.2009, Haridasan v. State of Kerala [2010 (1) KLT 348], by directing the Government to refix the pension and pensionary benefits payable to the petitioners, granting the benefits of Exts.P1 and P2 Government Orders dated 12.11.2002 and 06.12.2003 respectively, read in the light of Section 60 of the Kerala University Act, 1974 and Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 notified by the Government vide Exts.P7 and P8 notifications dated 27.07.1974 and 30.03.1976 respectively, and disburse them all the arrears payable thereunder, within three months from the date of receipt of a copy of the judgment. Feeling R.P.Nos.1012 & 1013 of 2017 5 aggrieved by the judgment dated 09.10.2009 in W.P.(C)No.24546 of 2004, the official respondents filed W.A.No.645 of 2010.
3. The respondent in R.P.No.1013 of 2017, who retired from service on 31.05.2006, while working as Selection Grade Lecturer at St. John's College, Anchal, a Private Aided College affiliated to the University of Kerala, filed W.P.(C)No.8797 of 2010, seeking a writ of certiorari to quash Ext.P6 letter dated 07.04.2007 of the Director of Collegiate Education, the 3 rd petitioner herein, addressed to the Deputy Director of Collegiate Education, Kollam, the 4th petitioner herein, by which his request for reckoning prior Central Government service as Auditor in the office of the Accountant General, Kerala, for the period from 17.07.1974 to 13.06.1977, for the purpose of fixing his pension and other pensionary benefits was rejected, stating that Aided College teachers are not Government Servants, and hence Ext.P5 Government Order dated 06.12.2003 (Ext.P2 order in W.P.(C)No. 24546 of 2004) has no application in their case. The learned Single Judge, by the judgment dated 19.03.2010 dismissed W.P. (C)No.8797 of 2010 in limine, holding that the question is squarely covered against the writ petitioner by the decision of a Division Bench in Secretary to Government, Higher Education Department v. Marykutty Sebastian [judgment dated 07.01.2010 in W.A.No.2445 of 2009]. Aggrieved by the said R.P.Nos.1012 & 1013 of 2017 6 judgment dated 19.03.2010 in W.P.(C)No.8797 of 2010, the respondent herein filed W.A.No.1124 of 2010.
4. On 28.07.2010, when W.A.No.1124 of 2010 came up for consideration, the Division Bench felt that, going by Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 and also Exts.P4 and P5 Government Orders dated 12.11.2002 and 06.12.2003 respectively, the law was not correctly laid down in the Division Bench judgment in Marykutty Sebastian's case (supra) and that, the law laid down by a learned Single Judge of this Court in Haridasan's case (supra) appears to be correct. The Division Bench has also taken note of the judgment of another Division Bench of this Court in Abdul Jabbar P.M. v. Kerala State Electricity Board and others [2010 (1) KLT 586]. Therefore, the Division Bench felt that an authoritative decision on the point by a Full Bench is warranted. Paragraph 4 and also the last paragraph of the reference order dated 28.07.2010 read thus;
"4. Section 60 of the Kerala University Act provides that the service conditions of teachers of private college include pension, provident fund, gratuity, insurance and age of retirement shall be as may be prescribed by the Statutes. Section 5(1) of Chapter II of the Kerala University First Statutes, 1976 relating to pension and retiral benefits of teachers of private colleges reads:
"Section 5(1) Kerala Service Rules to apply to teachers who retire at the age of 55 years:- The teachers who retire at the age of 55 shall be R.P.Nos.1012 & 1013 of 2017 7 entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges including family pension and death-cum-retirement gratuity and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of the Kerala Service Rules (as amended from time to time) shall mutatis mutandis apply to such teachers."
Referring to Section 5(1) of the Kerala University Statutes, 1976, the learned counsel for the appeilant would argue that as regards the teachers in Government colleges, they are entitled to count the services in Central Government for their pension and in the light of Section 5(1), private college teachers are also entitled to pensionary benefits as are allowable to similar category in Government colleges. The learned counsel for the appellant also canvassed our attention to Exts.P4 and P5 Government Orders. Ext.P4 pernit counting of the prior service in Central Government for retiral benefits of the employees of the State if the former employer remits the share of proportionate pro- rata pensionary liability on a service basis. By ExtP5, in modification of Ext.P4, the provision for pro-rata sharing was dropped and decided that the State/Central Government would give retiral benefits, reckoning their prior service to the employees by the respective Government under whom the employees permanently belong at the time of retirement. Going by the above section, the Exts.P4 and P5 orders and the decision in WA.No.2445/2009, we feel that the law was not correctly laid down by the Division Bench in Marykutty's case (supra). Whereas, the law laid down in Haridasan's case appears correct. We find that an authoritative R.P.Nos.1012 & 1013 of 2017 8 decision on the point is warranted.
In the above circumstance, we admit the appeal and refer the following question of law for the consideration of the Full Bench:
"Whether the service of a Lecturer in aided college in the State can be treated as service of the State Government, so as to entitle to reckon the prior service in Central Government for retiral benefits?"
The matter may be placed before the Hon'ble the Chief Justice for appropriate orders."
5. After the reference order dated 28.07.2010, W.A.No.1124 of 2010 was placed before the Full Bench, as per the orders of the Honourable Chief Justice. When W.A.No.645 of 2010 arising out of the judgment of the learned Single Judge in Haridasan's case (supra) [judgment dated 19.03.2010 in W.P. (C)No.8797 of 2010] came up for admission, the Division Bench, taking note of the fact that the same issue has already been referred to the Full Bench in W.A.No.1124 of 2010, posted the case along with that Writ Appeal, and accordingly, W.A.No.645 of 2010 was also placed before the Full Bench. By the judgment dated 05.02.2015 [State of Kerala and others v. P. Haridasan and others 2015 (2) KLT 145], the question of law referred to the Full Bench was answered by holding that the teachers in Private Aided Colleges affiliated to the University of Kerala, governed by Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 who left the former service in Central Government on their own volition R.P.Nos.1012 & 1013 of 2017 9 for taking up appointment in the Private Aided Colleges affiliated to the University, are entitled to reckon their prior Central Government Service for all pensionary benefits, under Note 2 to Rule 11 of Part III KSR, along with their service in Private Aided Colleges, with effect from 12.11.2002, and all conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of KSR, as amended from time to time, shall mutatis mutandis apply to such teachers. Paragraphs 24 to 26 and 35 to 38 of the said judgment read thus;
"24. In Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation Ltd. [(2013) 5 SCC 470] the Apex Court, relying on Ashok Service Centre's case (supra) and Prahlad Sharma's case (supra) has reiterated that, the phrase 'mutatis mutandis' implies thata provision contained in other part of the Statute or other Statutes would have application as it is with certain changes in points of detail.
25. In Abdul Jabbar v. K.S.E.B [2010 (1) KLT 586] the issue which came up for consideration before the Division Bench is whether an Aided School teacher, who later joined the Kerala State Electricity Board (KSEB) can count his past Aided School service, for the purpose of pensionary benefits, on retirement from the KSEB. As per Rule 14E of Part III of KSR, Aided School service put by Government Employees prior to entry in Government service qualifies for pension.
The provisions of the KSR are adopted by the KSEB, invoking its power to make regulations under Section 79(c) of the Electricity (Supply) Act, 1948. So the Division Bench held that, wherever the 'Government' is used in the Rules, R.P.Nos.1012 & 1013 of 2017 10 the same has to be understood as KSEB. If that be so, Rule 14E of Part III of KSR when adopted by the KSEB should be read as "aided school service put by KSEB employees prior to entry in KSEB service qualifies for pension." Accordingly, the Division Bench allowed the Writ Appeal and the KSEB was directed to reckon the past service of the appellant in aided school, for the purpose of granting pensionary bebefits.
26. In Haridasan v. State of Kerala [2010 (1) KLT 348] (judgment which is under challenge in WA No. 645/2010) the petitioners therein retired from service while working as Lecturers (Selection Grade) in Aided Colleges affiliated to the University of Kerala. The issue which came up for consideration before this Court was as to whether the prior Central Government Service rendered by the petitioners can be reckoned for the purpose of pension and pensionary benefits. The petitioners claimed the benefit of Government orders dated 12/11/2002 and 06/12/2003 and also relied on Subsection (1) of S.60 of the Act and also Clause (1) of Statute 5 of the First Statutes, 1976. The learned Government Pleader contended that, the aforesaid Government orders are applicable only in respect of the State Government employees and the petitioners who rendered service in Private Aided Colleges cannot be considered as State Government employees under any circumstances. The learned Government Pleader has also relied on a Division Bench judgment of this Court in T. K. Prathapan v. State of Kerala and Others (judgment dated 23/07/2009 in WA No. 1521/2009). The learned Single Judge, after adverting to the Government orders and the statutory provisions referred to above allowed the Writ Petition and directed the Government to refix the pension and pensinary benefits payable to the petitioners therein, R.P.Nos.1012 & 1013 of 2017 11 granting the benefit of the Government orders dated 12/11/2002 and 06/12/2003, read in the light of Sub- section (1) of S.60 of the Act and Clause (1) of Statute 5 of the First Statutes, 1976.
xxx xxx xxx xxx
35. As we have already noticed, it was in exercise of the powers conferred under Section 83 of the Act, the Government of Kerala made the First Statutes, 1976, in respect of pension, provident fund, gratuity, insurance and age of retirement of teachers of Private Colleges affiliated to the University of Kerala. Clause (1) of Statute 5 makes it abundantly clear that Private Aided College teachers are entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges and that all the conditions for the grant of these benefits applicable to Government servants as laid down in Part III KSR shall mutatis mutandis apply to such teachers. Though, the Office Memorandums/Government Orders issued by the Central Government/State of Kerala, which we have already referred to, were issued on mobility of personnel between the Central Government/Central Autonomous Bodies to the State Government/State Public Service Undertakings, the Government of Kerala itself has diluted the rigor of the conditions in those orders, by issuing Government orders dated 12.11.2002 and 06.12.2003. By the aforesaid Government Order dated 12.11.2002, as modified by Government Order dated 06.12.2003, it was ordered that the employees of State Government Departments who left the former service in Central Government/Central Public Sector Undertakings on their own volition for taking up appointment in State Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in State R.P.Nos.1012 & 1013 of 2017 12 Government Departments. In order to give statutory validity to the above orders, necessary amendments were made in Note 2 to Rule 11 of Part III KSR, with effect from 12.11.2002, by Government Order dated 23.01.2006, followed by Government Order dated 21.11.2010. Therefore, with effect from 12.11.2002, the employees of State Government Departments who left the former service in Central Government on their own volition for taking up appointment in State Government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in State Government Departments. In view of Clause (1) of Statute 5 of the First Statutes, 1976, the teachers in the Private Aided Colleges affiliated to the University of Kerala, who left the former service in Central Government on their own volition for taking up appointment in the Private Aided Colleges affiliated to the University, are also entitled to reckon their prior Central Government Service for all pensionary benefits, under Note 2 to Rule 11 of Part III KSR, with effect from 12.11.2002. Therefore, the various contentions raised by the learned Senior Government Pleader, relying on the judgments of the Apex Court and this Court referred to above, have no relevance at all in resolving the issue raised in these cases.
36. In the case on hand, it is not in dispute that, with effect from 12.11.2002, the teachers in Government Colleges who left the former service in Central Government on their own volition for taking up such appointment in Government Colleges are allowed to reckon their prior service in Central Government for all pensionary benefits, along with their service in State Government Department, and all the conditions for the grant of these benefits applicable to Government Servants, as laid down in Part III of the KSR, as R.P.Nos.1012 & 1013 of 2017 13 amended from time to time, are made applicable to such teachers in Government Colleges. In the case of teachers of Private Aided Colleges affiliated to the University of Kerala, going by Clause (1) of Statute 5 of the First Statutes, 1976, such teachers who retire at the age of 55 shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges including family pension and DCRG and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of the KSR, as amended from time to time, shall mutatis mutandis apply to such teachers. If that be so, in relation to teachers of Private Aided Colleges affiliated to the University of Kerala, who are governed by Clause (1) of Statute 5 of the First Statutes, 1976, Note 2 to Rule 11 of Part III KSR, as substituted with effect from 12.11.2002 by Government Order dated 23.01.2006, with the necessary changes in points of detail, has to be understood to mean that, the teachers of Private Aided Colleges who left their prior Central Government Service on their own volition for taking up appointment in Private Aided Colleges will be allowed to reckon their prior Central Government Service for all pensionary benefits along with their service in Private Aided Colleges and the liability of pension including gratuity will be borne in full by the State Government. Therefore, we affirm the view taken by this Court in Abdul Jabbar's case (supra).
37. The learned counsel appearing for respondents 1 to 3 in W.A.No.645 of 2010 contended that, since it has been specified in G.O.(P)No.367/87/Fin. dated 31.03.1987 that the provisions contained therein takes effect from 01.04.1987 and apply to all cases of leave salaries and pensions sanctioned on or after that date, the provisions contained in G.O.(P)No.703/2002/Fin. dated 12.11.2002 and G.O.(P)No. R.P.Nos.1012 & 1013 of 2017 14 651/2003/Fin. Dated 06.12.2002, which were given statutory validity G.O.(P)No.39/2006/Fin. dated 23.01.2006, by substituting the second sentence in Note 2 to Rule 11 of Part III of KSR, should also take effect from 01.04.1987, instead of 12.11.2002. The learned counsel has also pointed out that, the Government has already granted the benefit of these orders to two Private Aided College Lecturers who retired from service on 31.03.2002. We are unable to agree with the above contention taken by the learned counsel. As we have already noticed, going by sub-sections (1A) and (5) of Section 57 of the Act, appointments to the post of Lecturers in a Private Aided College affiliated to the University of Kerala can be made by the Educational Agency only by direct recruitment, on the basis of merit, after advertising the posts in the manner prescribed by the Statutes. Till the issuance of G.O.(P)No.703/2002/Fin. dated 12.11.2002, there were no rules regarding the reckoning of prior service in Government of India/Central Public Sector Undertakings followed by fresh appointment in the State Service based on the recruitment methods for new appointment, since the Government orders then in force covered only cases of permanent absorption after deputation. It was in such circumstances, by the aforesaid Government Order dated 12.11.2002, it was ordered that, the employees of State Government Departments who left the former service in Central Government/Central Public Sector Undertakings on their own volition for taking up appointment in State Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in State Government Departments. It is specifically stated in the aforesaid Government Order dated 12.11.2002 that, these orders will take effect, including monetary benefits, only from the date of the order, i.e., from 12.11.2002, and individual cases R.P.Nos.1012 & 1013 of 2017 15 otherwise settled will not be re-opened. Accordingly, when statutory validity was given to these provisions by Government Order dated 23.01.2006, by substituting the second sentence in Note 2 to Rule 11 of Part III of KSR, it was made applicable only with effect from 12.11.2002. In such circumstances, the teachers in the Private Aided Colleges affiliated to the University of Kerala, governed by Clause (1) of Statute 5 of the First Statutes, 1976, who left the former service in Central Government on their own volition for taking up appointment in the Private Aided Colleges affiliated to the University, are entitled to reckon their prior Central Government Service for all pensionary benefits, under Note 2 to Rule 11 of Part III KSR, along with their service in Private Aided Colleges, only with effect from 12.11.2002.
38. Therefore, we hold that, the teachers in the Private Aided Colleges affiliated to the University of Kerala, governed by Clause (1) of Statute 5 of the First Statutes, 1976, who left the former service in Central Government on their own volition for taking up appointment in the Private Aided Colleges affiliated to the University, are entitled to reckon their prior Central Government Service for all pensionary benefits, under Note 2 to Rule 11 of Part III KSR, along with their service in Private Aided Colleges, with effect from 12.11.2002, and all conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of the KSR, as amended from time to time, shall mutatis mutandis apply to the such teachers. The question of law referred to the Full Bench is answered accordingly."
6. By the judgment dated 05.02.2015, W.A.No.1124 of 2010 was allowed, setting aside the judgment of the learned Single Judge dated 19.03.2010 in W.P.(C)No.8797 of 2010. The said writ R.P.Nos.1012 & 1013 of 2017 16 petition was allowed, by setting aside Ext.P6 letter dated 07.04.2007 of the 3rd petitioner herein, and the petitioners herein were directed to refix pension and other pensionary benefits due to the respondent herein, after reckoning his prior Central Government Service, along with his service in Private Aided College and pass necessary orders within a period of three months from the date of receipt of a certified copy of that judgment. Paragraphs 39 and 40 of the judgment dated 05.02.2015 read thus;
"39. Now, we shall revert to the facts of these Writ Appeals. It is not in dispute that, the appellant in W.A.No.1124 of 2010 is having prior Central Government Service as Auditor in the office of the Accountant General, Kerala, for the period from 17.7.1974 to 13.6.1977. On 13.6/1977 he entered service as Lecturer in a Private Aided College affiliated to the University of Kerala and retired from service on 31.5.2006, while working as Selection Grade Lecturer. He was on Leave Without Allowance for seeking employment abroad from 1.6.1982 to 31.5.1985. Prior to his entry in Central Government Service, the appellant in W.A.No.1124 of 2010 was working as Lower Division Clerk in the General Education Department, Government of Kerala, for the period from 30.7.1973 to 12.7.1974 and the said service rendered by him has already been reckoned for the purpose of fixing his pensionary benefits. Similarly, the 1 st respondent in W.A.No.645 of 2010 is having prior Central Government Service as Auditor in the office of the Accountant General, Kerala, for the period from 29.5.1970 to 13.12.1980. On 15.12.1980 he entered service as Lecturer in a Private Aided College affiliated to the University of Kerala and retired from service on 31.3.2002, while working as R.P.Nos.1012 & 1013 of 2017 17 Selection Grade Lecturer. The 2nd respondent in W.A.No.645 of 2010 is having prior Central Government Service as Clerk in the Telecom Department for the period from 26.5.1973 to
8.10.1980. On 9.10.1980 she entered service as Lecturer in a Private Aided College affiliated to the University of Kerala and retired from service on 31.3.2004, while working as Selection Grade Lecturer. The 3 rd respondent in W.A.No.645 of 2010 is having prior Central Government Service as Auditor in the office of the Accountant General, Kerala, for the period from 8.9.1972 to 7.12.1976 and thereafter in the Central Excise Department from 8.12.1976 to 28.1.1978. On 30.1.1978 he entered service as Lecturer in a Private Aided College affiliated to the University of Kerala and retired from service on 31.5.2002, while working as Selection Grade Lecturer. In view of our finding that, the teachers in the Private Aided Colleges affiliated to the University of Kerala, governed by Clause (1) of Statute 5 of the First Statutes, 1976, who left the former service in Central Government on their own volition for taking up appointment in the Private Aided Colleges affiliated to the University, are entitled to reckon their prior Central Government Service for all pensionary benefits, under Note 2 to Rule 11 of Part III KSR, along with their service in Private Aided Colleges, with effect from 12.11.2002, the appellant in W.A.No.1124 of 2010 and the 2nd respondent in W.A.No.645 of 2010, who retired from service after 12.11.2002, are legally entitled to reckon their prior Central Government Service for all pensionary benefits, along with their service in Private Aided College. But, the 1 st and 3rd respondents in W.A.No.645 of 2010, who retired from service before 12.11.2002, are not entitled to reckon their prior Central Government Service for pensionary benefits, along with their service in Private Aided College.
40. In the result, the judgment of the learned Single Judge R.P.Nos.1012 & 1013 of 2017 18 dated 19.3.2010 in W.P.(C)No.8797 of 2010 is set aside and W.P.(C)No.8797 of 2010 is allowed, setting aside Ext.P6 letter dated 7.4.2007 of the 3rd respondent. The respondents in W.A.No.1124 of 2010 are directed to refix pension and other pensionary benefits due to the appellant in that case, after reckoning his prior Central Government Service, along with his service in Private Aided College and necessary orders in this regard shall be passed by them, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. W.A.No.1124 of 2010 is allowed, as above."
7. By the judgment dated 05.02.2015, W.A.No.645 of 2010 was disposed of modifying the judgment of the learned Single Judge dated 09.10.2009 in W.P.(C)No.24546 of 2004, by holding that, in view of the finding on the question of law, the 2 nd respondent in W.A.No.645 of 2010, who retired from service after 12.11.2002, is entitled to reckon her prior Central Government Service for all pensionary benefits, along with her service in Private Aided College. But, the 1st and 3rd respondents in W.A.No.645 of 2010, who retired from service before 12.11.2002, are not entitled to reckon their prior Central Government Service for pensionary benefits, along with their service in Private Aided College. Consequently, the appellants in W.A.No.645 of 2010, i.e., the petitioners in R.P.No.1012 of 2017, were directed to refix pension and other pensionary benefits due to the 2 nd respondent, after reckoning her prior Central Government Service, along with her service in Private Aided College and pass necessary orders within a R.P.Nos.1012 & 1013 of 2017 19 period of three months from the date of receipt of a certified copy of that judgment. Paragraphs 41 to 43 of the judgment dated 05.02.2015 read thus;
"41. In view of our aforesaid findings on the question of law, the 2nd respondent in W.A.No.645 of 2010, who retired from service after 12.11.2002, is also entitled to reckon her prior Central Government Service for all pensionary benefits, along with her service in Private Aided College. But, the 1 st and 3rd respondents in W.A.No.645 of 2010, who retired from service before 12.11.2002, are not entitled to reckon their prior Central Government Service for pensionary benefits, along with their service in Private Aided College. It is settled law that this Court sitting under Article 226 of the Constitution of India will not perpetuate illegality. Therefore, the plea of discrimination raised by the 1 st and 3rd respondents, relying on certain irregular orders granting such benefits to those who retired prior to 12.11.2002, can only be repelled and we do so.
42. In the result, the judgment of the learned Single Judge dated 9.10.2009 in W.P.(C)No.24546 of 2004 is modified, holding that the 2nd respondent in W.A.No.645 of 2010, who retired from service after 12.11.2002, alone is entitled to reckon her prior Central Government Service for all pensionary benefits, along with her service in Private Aided College and that the 1 st and 3rd respondents in W.A.No.645 of 2010, who retired from service before 12.11.2002, are not entitled to reckon their prior Central Government Service for pensionary benefits.
43. Consequently, the appellants in W.A.No.645 of 2010 shall refix pension and other pensionary benefits due to the 2nd respondent, after reckoning her prior Central Government Service, along with her service in Private Aided R.P.Nos.1012 & 1013 of 2017 20 College and necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. W.A.No.645 of 2010 is disposed of as above."
8. The judgment of this Court dated 05.02.2015 in W.A.Nos.645 and 1124 of 2010 was under challenge before the Apex Court in S.L.P.(C)Nos.22374 and 22375 of 2015. Those Special Leave Petitions were disposed of by the order of the Apex Court dated 08.02.2016 and the same reads thus;
"The petitioners seek liberty to approach the High Court by way of a review, in as much as the point which was not raised before the High Court is being sought to be pursued in these special leave petitions, based on the earlier Division Bench judgment of that very High Court.
Therefore, with the above-said liberty, these special leave petitions stands disposed of. It is open to the petitioners to work out their remedy after the disposal of the review, as against the order impugned as well as any other order that may be passed by the Court in the review, if they are aggrieved."
9. After the disposal of S.L.P.(C)Nos.22374 and 22375 of 2015 by the order dated 08.02.2016, the State and its officials have filed R.P.Nos.1012 & 1013 of 2017 before this Court, seeking review of the judgment of this Court dated 05.02.2015 in W.A.Nos.645 and 1124 of 2010, under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. The delay of 440 days in filing R.P.No.1012 of 2017 and the delay of 430 days in filing R.P.No.1013 of 2017 were R.P.Nos.1012 & 1013 of 2017 21 condoned by the order dated 23.10.2018 in C.M.Appln.No.460 of 2017 in R.P.No.1012 of 2017 and in C.M.Appln.No.461 of 2017 in R.P.No.1013 of 2017.
10. On 12.02.2019, heard arguments of the learned Senior Government Pleader appearing for the petitioners in the Review Petitions, the learned counsel for the party respondents and also the learned Standing Counsel for the respondent University.
11. In Thungabhadra Industries Ltd v. Government of Andhra Pradesh [AIR 1964 SC 1372] the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167] the Apex Court held that, if the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record.
12. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] the Apex Court, in the context of the power of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record R.P.Nos.1012 & 1013 of 2017 22 justifying the court to exercise its power of review under Order XLVII Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'.
13. Later, in Lily Thomas v. Union of India [(2006) 3 SCC 224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. In Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534] the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.
14. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the R.P.Nos.1012 & 1013 of 2017 23 court cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code and that, the limits within which the courts can exercise the power of review have been well settled in a catena of decisions.
15. During the course of arguments, the learned Senior Government Pleader has contended that, the question of law referred to by the Division Bench for the consideration of the Full Bench was whether the service of a Lecturer in an Aided College in the State can be treated as service of the State Government, so as to entitle to reckon the prior service in the Central Government for retrial benefits. The Division Bench referred the question to the Full Bench, fully being convinced of the fact that the benefits of Government Orders dated 12.11.2002 and 06.12.2003 can be availed only by a Government Servant. The above aspect assumes more significance in view of the subsequent decision of the very same Division Bench, which referred the matter to the Full Bench, in Prof. C. V. Simon and another v. Secretary to Government and others [2012 (1) KHC 788 : 2012 (1) KLT 947]. Though the Full Bench held that the teachers in the Private Aided Colleges affiliated to the University of Kerala, governed by Clause (1) of Statute 5 of the Kerala University First Statutes, 1976, who left the former service in Central Government on their own volition for taking up appointment in the Private Aided Colleges affiliated to the R.P.Nos.1012 & 1013 of 2017 24 University, are entitled to reckon their prior Central Government Service for all pensionary benefits, under Note 2 to Rule 11 of Part III KSR, along with their service in Private Aided Colleges, with effect from 12.11.2002, and all conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of the KSR, as amended from time to time, shall mutatis mutandis apply to the such teachers, the Full Bench did not answer the referred question.
16. As discernible from the reference order, on 28.07.2010, when W.A.No.1124 of 2010 came up for consideration, the Division Bench felt that, going by Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 and also Exts.P4 and P5 Government Orders dated 12.11.2002 and 06.12.2003 respectively, the law was not correctly laid down in the Division Bench judgment in Marykutty Sebastian's case (supra) and that, the law laid down by a learned Single Judge of this Court in Haridasan's case (supra) appears to be correct. The Division Bench has also taken note of the judgment of another Division Bench of this Court in Abdul Jabbar's case (supra). Therefore, the Division Bench felt that an authoritative decision on the point by a Full Bench is warranted. The order of reference was made in the context of Section 60 of the Kerala University Act, 1974 and Clause (1) of Statute 5 of the Kerala University First Statutes, 1976. R.P.Nos.1012 & 1013 of 2017 25
17. Section 60 of the Kerala University Act deals with conditions of service of teachers of Private Colleges. As per sub- section (1) of Section 60 of the Act, notwithstanding anything contained in any law or in any contract or other document, the conditions of service of teachers of Private Colleges, whether appointed before or after the commencement of the Act, including conditions relating to pay, pension, provident fund, gratuity, insurance and age of retirement, shall be such as may be prescribed by the Statutes. Section 83 of the Kerala University Act provides that, notwithstanding anything contained in the Act, the First Statutes and the First Ordinances of the University shall be made by the Government. In exercise of the powers conferred by Section 83 of the Act, the Government of Kerala made the Kerala University First Statutes, 1976 in respect of pension, provident fund, gratuity, insurance and age of retirement of teachers of Private Colleges, and Clause (1) of Statute 5 of the Kerala University First Statutes, referred to in the reference order of the Division Bench dated 28.07.2010, provides that the teachers who retire at the age of 55 shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges including family pension and death-cum-retirement gratuity and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of KSR (as amended R.P.Nos.1012 & 1013 of 2017 26 from time to time) shall mutatis mutandis apply to such teachers. Therefore, the question that came up for consideration before the Full Bench was as to whether, in view of the provisions under Section 60 of the Kerala University Act and Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 the teachers in Private Aided Colleges affiliated to the University of Kerala are entitled to reckon their prior service in Central Government as qualifying service, along with their service in Private Aided Colleges, for all pensionary benefits, applying the conditions for grant of these benefits applicable to Government Servants, as laid down in Part III of KSR, as amended from time to time.
18. In the judgment dated 05.02.2015 in W.A.Nos.645 and 1124 of 2010, this Court noticed that, going by Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 a teacher in a Private College affiliated to the University of Kerala, who retire at the age of 55 years shall be entitled to receive the same pensionary benefits as are applicable to similar categories of teachers in Government Colleges, including family pension and death-cum- retirement gratuity (DCRG). Further, all conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of KSR, as amended from time to time, shall mutatis mutandis apply to the teachers of Private Colleges affiliated to the University. As per Rule 10 of Part III KSR, the service of an R.P.Nos.1012 & 1013 of 2017 27 employee does not qualify for pension unless he is appointed, his duties regulated, and paid by the Government or under conditions determined by the Government. However, going by Rule 11, notwithstanding the provisions of Rule 10, the Government may, declare that any specified kind of service rendered shall qualify for pension; and, 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.
19. This Court noticed that though, Office Memorandums/ Government Orders issued by the Central Government/State of Kerala [referred to in paragraphs 12 to 20 of the judgment sought to be reviewed] were issued on mobility of personnel between the Central Government/Central Autonomous Bodies to the State Government/State Public Service Undertakings, the Government of Kerala itself has diluted the rigor of the conditions in those orders, by issuing Government orders dated 12.11.2002 and 06.12.2003 [Exts.P1 and P2 Government Orders in W.P.(C)No.24546 of 2004]. By the Government Order dated 12.11.2002, as modified by Government Order dated 06.12.2003, it was ordered that the employees of State Government Departments who left the former service in Central Government/Central Public Sector Undertakings on their own volition for taking up appointment in State Government Departments will be allowed to reckon their prior R.P.Nos.1012 & 1013 of 2017 28 service for all pensionary benefits along with the service in State Government Departments. In order to give statutory validity to the above orders, necessary amendments were made in Note 2 to Rule 11 of Part III KSR, with effect from 12.11.2002, by Government Order dated 23.01.2006, followed by Government Order dated 21.11.2010. Therefore, with effect from 12.11.2002, the employees of State Government Departments who left the former service in Central Government on their own volition for taking up appointment in State Government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in State Government Departments. As per Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 the teachers in Private Aided Colleges affiliated to the University of Kerala who retire at the age of 55 shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges including family pension and DCRG and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of KSR, as amended from time to time, shall mutatis mutandis apply to such teachers. As held by the Apex Court, the expression 'mutatis mutandis' itself implies applicability of any provision with necessary changes in points of detail. If that be so, in relation to teachers of Private Aided Colleges affiliated to the University of Kerala, who are governed by Clause (1) of Statute R.P.Nos.1012 & 1013 of 2017 29 5 of the Kerala University First Statutes, 1976 Note 2 to Rule 11 of Part III KSR, as substituted with effect from 12.11.2002 by Government Order dated 23.01.2006, with necessary changes in points of detail, has to be understood to mean that, the teachers of Private Aided Colleges who left their prior Central Government Service on their own volition for taking up appointment in Private Aided Colleges will be allowed to reckon their prior Central Government Service for all pensionary benefits along with their service in Private Aided Colleges and the liability of pension including gratuity will be borne in full by the State Government. Accordingly, in the judgment sought to be reviewed, this Court held that the teachers in the Private Aided Colleges affiliated to the University of Kerala, governed by Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 who left the former service in Central Government on their own volition for taking up appointment in Private Aided Colleges affiliated to the University, are entitled to reckon their prior Central Government Service for all pensionary benefits, under Note 2 to Rule 11 of Part III KSR, along with their service in Private Aided Colleges, with effect from 12.11.2002, and all conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of KSR, as amended from time to time, shall mutatis mutandis apply to such teachers.
20. The learned Senior Government Pleader has contended R.P.Nos.1012 & 1013 of 2017 30 that, as held by a Division Bench of this Court in Prof.C.V. Simon's case (supra), the Government Order dated 12.11.2012 applies only to Government servants and not to Private College teaching staff. Unless there is Special Rules or Government Orders, Private College lecturers are not entitled to reckon their previous service for the purpose of pension.
21. In Prof.C.V. Simon's case (supra), the Division Bench of this Court was dealing with the challenge made by two retired lecturers of Private Colleges affiliated to Calicut University, against the judgment of the learned Single Judge, declining their claim to reckon their past service in Central Government for the purpose of pension. The learned Single Judge declined their claim, relying on the judgment of the Division Bench of this Court in Marykutty Sebastian's case (supra), wherein the Division Bench held that unless there is Special Rules or Government orders, the respondent therein, who is a retired lecturer in a Private College affiliated to Mahatma Gandhi University is not entitled to reckon his previous service in the Central Government as Instructor Grade-I in National Discipline Scheme (NDS), for the purpose of pension.
22. In Prof.C.V. Simon's case (supra), after referring to the provisions under KSR granting benefit to Government servants including Government College teachers to reckon their past services in State or Central Government or even in Public Sector R.P.Nos.1012 & 1013 of 2017 31 Undertakings for the purpose of counting pension, it was argued on behalf of the appellants therein that the Government Orders are discriminatory only against Private College lectures, and so much so the Government should consider their claim. The Division Bench found force in that contention and observed that, if for the purpose of salary and other benefits Government College teachers and Private College teachers are treated at par, there is no reason why in the matter of pension they should be discriminated. Therefore, the Division Bench observed that the Government should consider the case of Private College lecturers for reckoning their past services for the purpose of pension, and it is up to the Government to consider the type of service and under whom to be served that could be reckoned for the purpose of counting such service for pension. The Division Bench dismissed the writ appeal, declining interference, observing that there is no provision in KSR or Government Orders permitting the appellants therein to reckon their past service with the Central Government for the purpose of pension. Paragraphs 3 to 5 and also the last paragraph of the said decision read thus;
"3. The short question arising is whether the services rendered by both the appellants in institutions under the Central Government prior to their joining aided colleges in the State as Lecturers could be reckoned for the purpose of pension. Admittedly, provision for pension under Part III of Kerala Service Rules are made applicable to private college R.P.Nos.1012 & 1013 of 2017 32 lecturers under the Calicut University Statute. Part III of KSR in Rule 9 defines what is qualifying service for the purpose of pension. Even though Rule 11 of Part III KSR speaks about power of the Government to provide for reckoning any other services rendered by employees for the purpose of pension, there is no specific orders issued by the Government to reckon services of private college lecturers rendered in Central Government or any other agency under the Central Government for the purpose of pension. In fact specific provisions are made in Rule 14A to 14E providing for reckoning various categories of previous services of Government servants and teachers for the purpose of pension. However, aided college lecturers are not covered by any of the specific rules or orders. The appellants rest their claim based on Government Order, G.O.(P)No.703/2002/Fin. dated 12.11.2012, which was produced before us by the learned Government Pleader.
4. After hearing both sides and after going through the Government Order, we notice that the same applies only to Government servants and not to private college teaching staff. The issue came up before this Court previously, and a Division Bench in the judgment in W.A.No.2445/2009 held that unless there is Special Rules or Government orders, private college lecturers are not entitled to reckon previous service for the purpose of pension. Even though learned Senior Counsel for the appellants has relied on the above Government Order, we have already noticed that the Government Order as such is not applicable to the appellants. So much so, it is a matter to be considered by the Government as to whether past services of private college lectures are to be reckoned and if so, the type of previous service that could be reckoned for the purpose of pension.
5. Learned Senior counsel appearing for the appellants R.P.Nos.1012 & 1013 of 2017 33 referred to the specific Rules of KSR granting benefit to Government servants including Government College teachers to reckon past services in State or Central Government or even in public institutions for the purpose of counting pension. According to the learned Senior counsel, the Government Orders are discriminatory only against private college lectures, and so much so Government should consider their claim. We find force in this contention because if for the purpose of salary and other benefits Government college teachers and private college teachers are treated at par, there is no reason why in the matter of pension they should be discriminated. Learned Government Pleader has put forward a contention that private college teachers enjoy lot of liberty including right to contest elections while in service, whereas Government college lecturers are treated as Government servants and they have no such freedom. We do not think this distinction has any relevance for the purpose of considering previous service that could be reckoned for pension benefits. Therefore, the Government should consider the case of private college lecturers for reckoning their past services for the purpose of pension, and it is up to the Government to consider the type of service and under whom to be served that could be reckoned for the purpose of counting such service for pension.
Since as of now there is no provision in the KSR or Government orders permitting appellants to reckon their past services with the Central Government for the purpose of pension, the Writ Appeal only has to be dismissed, and we do so, but with the observations as above. It is for the appellants or associations to represent the matter before the Government."
23. A reading of the decisions of the Division Bench in Marykutty Sebastian's case [judgment in W.A.No.2445/2009] R.P.Nos.1012 & 1013 of 2017 34 and Prof.C.V. Simon's case referred to supra would show that, the Division Bench had no occasion to examine the issue with reference to the relevant provisions of the University Act and the Statutes governing lecturers of Private Colleges affiliated to Calicut University or Mahatma Gandhi University. In paragraphs 29 and 30 of the judgment sought to be reviewed, this Court has already dealt with the contention raised by the State, relying on the decision of the Division Bench in Marykutty Sebastian's case and Prof.C.V. Simon's case referred to supra.
24. The judgment in Prof.C.V. Simon's case (supra) was reviewed by the order of a Division Bench of this Court dated 13.07.2017 in R.P.No.393 of 2015. By that order, following the law laid down by the Full Bench in the judgment sought to be reviewed, the Division Bench allowed R.P.No.393 of 2015 by setting aside the judgment dated 03.02.2012 in W.A.No.1572 of 2010 and the judgment dated 11.03.2010 in W.P.(C)No.14877 of 2009. The writ petition stands allowed to the extent indicated in that order and the respondents therein are directed to recompute the benefits payable to the writ petitioners and effect disbursement to the extent they are eligible in accordance with law, within three months from the date of receipt of a copy of that order. Challenging the order dated 13.07.2017 in R.P.No.393 of 2015, the State and its officials have approached the Apex Court in S.L.P.(C)No.13637 of 2016, which is R.P.Nos.1012 & 1013 of 2017 35 pending consideration.
25. As already noticed, as per Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 the teachers in Private Aided Colleges affiliated to the University of Kerala who retire at the age of 55 shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges including family pension and DCRG and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of KSR, as amended from time to time, shall mutatis mutandis apply to such teachers.
26. In Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation Ltd. [(2013) 5 SCC 470] the Apex Court, relying on the decision in Ashok Service Centre v. State of Orissa [(1983) 2 SCC 82] and Prahlad Sharma v. State of U.P. [(2004) 4 SCC 113] reiterated that, the phrase 'mutatis mutandis' implies that a provision contained in other part of the Statute or other Statutes would have application as it is with certain changes in points of detail.
27. In Abdul Jabbar v. K.S.E.B [2010 (1) KLT 586] the question before a Division Bench of this Court was as to whether an Aided School teacher, who later joined the Kerala State Electricity Board (KSEB) can count his past Aided School service, for the R.P.Nos.1012 & 1013 of 2017 36 purpose of pensionary benefits, on retirement from the KSEB. As per Rule 14E of Part III of KSR, Aided School service put by Government Employees prior to entry in Government service qualifies for pension. The provisions of the KSR are adopted by the KSEB, invoking its power to make regulations under Section 79(c) of the Electricity (Supply) Act, 1948. So the Division Bench held that, wherever the 'Government' is used in the Rules, the same has to be understood as KSEB. If that be so, Rule 14E of Part III of KSR when adopted by the KSEB should be read as "aided school service put by KSEB employees prior to entry in KSEB service qualifies for pension." Accordingly, the Division Bench allowed the Writ Appeal and the KSEB was directed to reckon the past service of the appellant in aided school, for the purpose of granting pensionary bebefits.
28. In the instant cases, it is not in dispute that, with effect from 12.11.2002, the teachers in Government Colleges who left the former service in Central Government on their own volition for taking up such appointment in Government Colleges are allowed to reckon their prior service in Central Government for all pensionary benefits, along with their service in State Government Department, and all the conditions for the grant of these benefits applicable to Government Servants, as laid down in Part III of KSR, as amended from time to time, are made applicable to such teachers in R.P.Nos.1012 & 1013 of 2017 37 Government Colleges. Therefore, in the judgment sought to be reviewed, this Court held that, in relation to teachers of Private Aided Colleges affiliated to University of Kerala, who are governed by Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 Note 2 to Rule 11 of Part III KSR, as substituted with effect from 12.11.2002 by Government Order dated 23.01.2006, with the necessary changes in points of detail, has to be understood to mean that, the teachers of Private Aided Colleges who left their prior Central Government Service on their own volition for taking up appointment in Private Aided Colleges will be allowed to reckon their prior Central Government Service for all pensionary benefits along with their service in Private Aided Colleges and the liability of pension including gratuity will be borne in full by the State Government.
29. The learned Senior Government Pleader has contended that, in view of the provisions under Statute 39 of the Kerala University (Conditions of Service of Teachers and Members of Non- Teaching Staff) First Statutes, 1979 the rules contained in Parts I and II of KSR alone have application to the teachers and non- teaching staff of Private Colleges affiliated to Kerala University. However, as can be seen from the First Statutes, 1979 it is one made by the State Government in exercise of its powers conferred by Section 83 of the Kerala University Act, 1974 and in supersession R.P.Nos.1012 & 1013 of 2017 38 of all Statutes on the subject, in respect of conditions of service other than pension, provident fund, gratuity, insurance and age of retirement of teachers and non-teaching staff in Private Colleges. On the other hand, the Kerala University First Statutes, 1976 is one made by the State Government in exercise of the powers conferred by Section 83 of the Act, in respect of pension, provident fund, gratuity, insurance and age of retirement of teachers of Private Colleges. Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 provides that the teachers who retire at the age of 55 shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges including family pension and DCRG and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III of KSR, as amended from time to time, shall mutatis mutandis apply to such teachers.
30. In Jasmine v. State of Kerala and others [judgment dated 06.11.2017 in W.A.No.193 of 2017 and connected cases], a decision relied on by the learned Senior Government Pleader, a Division Bench of this Court held that in view of the provisions under Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 a teacher who retires at the age of 55 years shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges, including family R.P.Nos.1012 & 1013 of 2017 39 pension and retirement gratuity and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III KSR shall apply to such teachers also. In other words, the provisions of KSR has not been made applicable as such, but only for the purpose stipulated by the above provision. Therefore, for the purpose of receiving pensionary benefits, family pension, DCRG, etc. the provision would apply. Similarly, as per Statute 39 of the Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statutes, 1979 the applicability of Parts I and II of the KSR is made subject to the provisions of the Kerala University Act and the Statutes made thereunder. In view of the above, whenever the University Act or Statutes makes separate provision, KSR would have no application.
31. Relying on the judgment of the Apex Court in Khandesh College Education Society v. Arjun Hari Narkhede [(2011) 7 SCC 172], the learned Senior Government Pleader has contended that lecturers or teachers working in Aided Private Colleges are not Government servants. A reading of the said decision would show that, in that case the Apex Court was dealing with the question as to whether Lecturers/Demonstrators working in Moolji Jeitha College, which is an Aided Private College affiliated to North Maharashtra University are entitled for earned leave and encashment of unutilised earned leave on their retirement. The R.P.Nos.1012 & 1013 of 2017 40 claim made by respondents 1 to 4 therein for encashment of earned leave after retirement was rejected relying on Rule 54 of the Maharashtra Civil Services (Leave) Rules, 1981, which deals with earned leave for persons serving in Vacation Departments. As per sub-rule (1) of Rule 54, a Government servant serving in a Vacation Department shall not be entitled to any earned leave in respect of duty performed in any year in which he avails himself of the full vacation. In that context, the Apex Court held that, from the very language of different provisions of Rule 54, it is clear that it applies only to Government servants. Respondents 1 to 4 therein are not Government servants and therefore, they cannot be denied earned leave on the basis of the provisions made in Rule 54.
32. In paragraphs 34 and 35 of the judgment sought to be reviewed, this Court has dealt with the contentions raised by the learned Senior Government Pleader relying on the decision of the Apex Court in Khandesh College Education Society's case (supra) and held that, in view of Clause (1) of Statute 5 of the Kerala University First Statutes, 1976 the teachers in the Private Aided Colleges affiliated to the University of Kerala, who left the former service in Central Government on their own volition for taking up appointment in the Private Aided Colleges affiliated to the University, are also entitled to reckon their prior Central Government Service for all pensionary benefits, under Note 2 to R.P.Nos.1012 & 1013 of 2017 41 Rule 11 of Part III KSR, with effect from 12.11.2002, and therefore, the contentions raised by the learned Senior Government Pleader, relying on the aforesaid judgment of the Apex Court and other decisions referred to in paragraph 34 of the judgment sought to be reviewed, have no relevance at all in resolving the issue raised in these cases.
33. Having considered the submissions made by the learned counsel on both sides and taking note of the law laid down in the decisions referred to supra, we find no error apparent on the face of the record, warranting review of the judgment dated 05.02.2015 in W.A.Nos.645 and 1124 of 2010, invoking the power of review under Order XLVII of Rule 1 of the Code of Civil Procedure, 1908.
In the result, these review petitions fail and they are accordingly dismissed.
Sd/-
K. SURENDRA MOHAN JUDGE Sd/-
ANIL K. NARENDRAN JUDGE Sd/-
SHIRCY V. JUDGE yd True copy P.A. to Judge