Kerala High Court
Shameer Ali.E vs Deputy Director Of Collegiate ... on 16 September, 2017
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
SATURDAY, THE 16TH DAY OF SEPTEMBER 2017/25TH BHADRA, 1939
WP(C).No. 29356 of 2016 (T)
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PETITIONER :
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SHAMEER ALI.E.,
AGED 58 YEARS, S/O.IBRAHIMKUTTY.A,
ASSOCIATE PROFESSOR (RETD),
DEPARTMENT OF ZOOLOGY,
T.K.M COLLEGE OF ARTS & SCIENCE, KARICODE,
KOLLAM, RESIDING AT 'VILAYIL THEKKETHIL',
VENGA P.O, KOLLAM-690 521
BY ADVS.SRI.S.MUHAMMED HANEEFF
SRI.M.H.ASIF ALI
RESPONDENT(S):
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1. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
KOLLAM-691 001
2. DIRECTOR OF COLLEGIATE EDUCATION,
VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001
3. STATE OF KERALA,
REP. BY ITS ADDL. CHIEF SECRETARY TO THE GOVERNMENT,
HIGHER EDUCATION (F) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001
4. ACCOUNTANT GENERAL (A & E),
INDIAN AUDIT & ACCOUNTS DEPARTMENT,
OFFICE OF THE ACCOUNTANT GENERAL (A &E),
THIRUVANANTHAPURM-695 001
BY SPL.GOVERNMENT PLEADER SRI.C.M.SURESH BABU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16-09-2017, ALONG WITH WPC.NO.10134 OF 2016 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).No. 29356 of 2016 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 ATRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DT. 7/10/2014
P2 ATRUE COPY OF THE ORDER NO. N3/25395/2014/COLL.EDN DT. 13/4/2015
OF THE 2ND RESPONDENT
P3 ATRUE COPY OF THE JUDGMENT DT. 23/7/2014 IN WPC NO. 20495/2013 OF
THIS HON'BLE COURT
P4 ATRUE COPY OF THE JUDGMENT DT 23/2/2015 IN WA.NO. 377/2015 OF THE
DIVISION BENCH OF THIS HON'BLE COURT
P5 ATRUE COPY FO THE ORDER DT. 20/7/2015 IN SLA NO. 19441/2015/OF THE
HON'BLE SUPREME COURT OF INDIA
P6 ATRUE COPY OF THE G.O(P) NO.66/16/FIN DT. 9/5/2016 ISSUED BY THE
1ST RESPONDENT
P7 ATURE COPY OF THE G.O(P) NO.113/16/FIN DT 5/8/2016 ISSUED BY THE
1ST RESPONDENT
RESPONDENT(S)' EXHIBITS
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R1(A) TRUE COPY OF DATA INPUT SHEET OF PENSION BOOK.
/TRUE COPY/
P.S.TO JUDGE
sts
P.V.ASHA, J.
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W.P(C) Nos.29356/2016-T, 8939/2016-N, 10134/2016-N, 10766/2016-U,
20673/2016-H, 29356/2016-T, 6024/2017-C, 14229/2017-C,
22272 of 2017-H, 22912/2017-L, 22913/2017-L and 28988/2017-W
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Dated this the 16th day of September,2017
JUDGMENT
The orders issued by the Government on 09.05.2016 and 05.08.2016 are under challenge in all these writ petitions, filed by retired and serving teachers of aided Colleges, who claim that their prior service rendered in aided colleges including provisional and broken spells as leave substitutes should be counted along with their regular service in aided colleges. As a common issue is arising for consideration, all these writ petitions were heard together and are disposed of by this common judgment.
2. These cases had come up for hearing along with the cases filed by teachers of aided colleges/schools with prior broken spells of service in aided schools challenging the very same Government orders. Noticing the difference in the provisions contained in clause (a) and clause (b) of Rule 14E of Part III of the Kerala Service Rules (hereinafter referred to as `KSR' for short) which relate to the previous service rendered in aided schools and those in aided colleges respectively, I have delinked the cases in which the W.P(C) Nos.29356 of 2016-T & conn.cases 2 petitioners rendered previous service in aided schools and pronounced separate judgment in their case in my judgment dated 14.08.2017 in W.P(c). No.30167 of 2016 and connected cases allowing those writ petitions. These writ petitions were therefore posted again thereafter and a separate judgment was found necessary in respect of the applicability of the very same Government Orders in the case of the teachers who claimed the benefit of previous service rendered in private aided colleges.
3. The contention of the petitioners is that these Government orders are issued, in order to circumvent the judgment dated 23.7.2014 in W.P.(C).No.20495/2013, which was already upheld by a Division Bench by its judgment dated 23.2.2015 in W.A.No.377/2015 and by the Apex Court by dismissing S.L.P.No.19441 of 2015 on 20.7.2015 (produced as Exts.P3, P4 and P5 respectively in W.P(c).No.29356/2016), based on which that judgment was implemented reckoning the broken spells of the service of the petitioner in aided Schools for pension, along with his regular service. The petitioners contend that their cases are covered by the judgment in W.P(c). No.20495 of 2013.
4. The judgment in W.P(C).No.20495 of 2013 (hereinafter referred to as 'Joseph's case'), relied on by the petitioners was rendered in W.P(C) Nos.29356 of 2016-T & conn.cases 3 a case where the petitioner retired from service on 31.03.2008, while working as Selection Grade Lecturer in an aided College. The service rendered by him in an aided college in different spells on temporary basis for 4 years 10 months in 3 spells was counted for pension without raising any objection; but his aided school service for 5 years 3 months and 13 days in eight spells was not counted for pension. This Court held that by virtue of Rule 14E of Part III of the KSR read with Statute 5 (1) of Chapter II of Kerala University First Statute 1976, the prior service rendered by the petitioner therein in aided school was liable to be counted towards qualifying service along with the service in aided college. As the broken spells of aided College service was already counted for qualifying service without any objection, this Court found no justification for denying him the benefit of aided School service, which is provided in Rule 14E of Part III KSR. In the judgment in the Writ Appeal, the Division Bench held that the aided school temporary service would also fall within Rule 14E of Part III Kerala Service Rules. Subsequent to the dismissal of the SLP, the judgment was implemented by the Government by issuing G.O(Rt) No.7194/2015/Fin dated 6.8.2015. The Government orders -G.O.(P) No.66/16/Fin dated 9.5.2016 and G.O.(P) No.113/16/Fin dated 5.8.2016 (Exts.P6 and P7 in W.P(C) Nos.29356 of 2016-T & conn.cases 4 W.P.(C).No.29356/2017) were issued thereafter. In the order dated 9.5.2016, the Government stated that provisions contained in the Kerala Education Act, Kerala Education Rules and University Statutes confer authority on the Government to put restrictions with respect to functioning of the aided schools/colleges. Teaching and non teaching staff of aided schools/colleges do not come under Public Services Act and all the benefits enjoyed by the State Government employees are not applicable to them; under Rule 10 of Part III KSR, service of an employee does not qualify for pension unless he is appointed, his duty is regulated and paid by the Government or under conditions determined by the Government. It is only because direct payment system was introduced and in the light of Rule 11 of Part III KSR that the aided school teachers who have opted for parity with Government teachers are granted retirement benefits under rules in Chapter XXVII(B) of Kerala Education Rules, as in the case of Government service. As per Rule 14E (a) &(b) of Part III KSR, the regular full time aided school/college service of Government employees prior to their entry in Government service qualifies for pension. Under sub rule c of Rule 14E, the regular full time Government service of an aided school/college staff prior to his entry in aided school/college service qualifies for pension. But W.P(C) Nos.29356 of 2016-T & conn.cases 5 there is no corresponding provision for counting prior service in between aided schools and colleges. It is further stated that the order passed in compliance with the judgment in the case of Sri A.J.Joseph shall not be treated as a precedent. Paragraph 5, which is the operative portion of the order reads as follows:
"5. Since there is no mobility of personnel between aided institutions, the Government have examined the matter in detail and are pleased to issue orders as follows:
(i) aided College service of aided School staff prior to entry in aided school service shall not be counted for pension along with aided School service and vice versa.
(ii) Provisional aided school/college service of regular full time aided School staff prior to their entry in regular aided school service shall not be counted for pension with full time regular aided School service.
(iii) The orders shall have retrospective effect from 24.01.1968; cases already settled will not be reopened.
(iv) Necessary amendment to the relevant rule in Part III KSRs will be issued separately."
5. The order dated 05.08.2016 was issued when the Accountant General sought a clarification from the Government as to the service rendered by a regular aided college staff in aided College in leave vacancies for computation of pension. Accordingly, para 5(ii) of the order dated 9.5.2016 was therefore modified as follows:
"regular/broken spells including leave vacancy of aided School/aided College service of regular aided School/aided College staffs shall not be counted for pension with full time regular aided School/aided College service."
6. The contention of the petitioners is that no amendment is brought about to Part III KSR or to Rule 14E so far. Moreover, an executive W.P(C) Nos.29356 of 2016-T & conn.cases 6 order cannot have any retrospective effect and hence the orders issued on 9.5.2016 and 5.8.2016 are liable to be set aside.
7. Government had filed counter affidavits in writ petitions filed by teachers with prior service in aided Schools in W.P(c).No.30167/2016, which was adopted in several of the writ petitions which were heard along with these writ petitions. Counter affidavits are filed in these writ petitions also justifying the action of the respondents in the light of the impugned Government orders. The contention of the Government is that broken spells of service including those in leave vacancies cannot be counted for pension. As per Rule 4 of Part III KSR, an employee, who was appointed for a limited period or for specific duty on completion of which he is to be discharged, is not eligible for pension. Therefore, a teacher appointed for a limited period, cannot have any claim for pension. The broken periods of temporary service in aided schools/colleges rendered before his continuous regular service in aided schools/colleges cannot be therefore counted for pension. As per Rule 10 of Part III KSR, service of an employee does not qualify for pension unless he is appointed, his duty is regulated and paid by Government or under conditions determined by Government. Most of the petitioners are having broken periods of service in aided schools/colleges in W.P(C) Nos.29356 of 2016-T & conn.cases 7 leave vacancies before they commenced their continuous regular service. When the appointment in leave vacancies is not regularised it cannot be treated as qualifying service for pension. The aided school/college teachers are entitled to pensionary benefits as in the case of Government servants. It is their further case that the orders impugned in this writ petition which are issued on 9.5.16 and 5.8.16 are only clarifications to the existing statutory rule and not an order issued with retrospective effect. In aided schools and aided colleges, the teaching and non teaching staff are appointed by management and salary and pensionary benefits are given by the Government. In case the service rendered against leave vacancies are reckoned for pensionary benefits, it would pave the way for creating leave vacancies, after ensuring minimum pension, creating financial burden for Government. It is their further contention that the Division Bench had in the judgment in Alizuamma v. Accounts Officer: 2013(4 ) KLT 53, held that service in leave vacancy cannot be counted for pension.
8. It is also stated that the aided school/college services rendered by the petitioners are for short spells and in different schools/colleges in leave vacancies. Therefore, it is stated that the broken spells of services rendered by the teachers in different aided institutions cannot be reckoned W.P(C) Nos.29356 of 2016-T & conn.cases 8 towards qualifying service.
9. In W.P.(C).No.29356 of 2016, the petitioner rendered service for the period from 28.1.1985 to 2.7.1985, 16.6.1989 to 29.8.1989, 1.11.1989 to 21.12.1989, 27.8.1990 to 16.11.1990, 17.6.1992 to 4.9.1992, 16.9.1992 to 15.12.1992, in aided Colleges which altogether come to one year 5 months and 20 days. The respondents have stated that all these broken spells are in short term leave vacancies with break for years, prior to his joining duty in regular service as Lecturer in TKM College, Kollam on 6.6.1994. The petitioner claims that the broken service is approved and therefore it is liable to be reckoned towards qualifying service as stipulated in Rule 33 of Chapter IV of Part I KSR read with Statute 39 of the Kerala University First Statute 1979.
10. In all the other cases also, the petitioners have got approved service for short/long spells rendered in leave vacancies in different/same college/educational agencies. By way of the impugned orders, the prior provisional service in aided Colleges of aided school as well as aided college staff cannot be reckoned for pension along with regular full time aided school/college service. By the order dated 05.08.2016, both regular and provisional as well as broken spells of aided School service and aided W.P(C) Nos.29356 of 2016-T & conn.cases 9 college service put in by aided School staff as well as aided college staff cannot be reckoned for pension.
11. I heard Shri Mohammed Haneef, Shri B.Mohanlal, Shri Isaac Kuruvila and Shri M.S.Radhakrishnan Nair, the learned counsel appearing for the petitioners in all the cases and Sri. C.M.Suresh Babu, the learned Special Government Pleader.
12. The contention of the petitioners is that going by Rule 14E of Part III KSR, service put in by Government employees in aided schools and colleges prior to entry in Government service, can be counted. Therefore, the prior service rendered by the petitioners in aided College, before their entry in regular service in aided Colleges can be counted for pension in the light of the provisions contained in Statute 5 of Chapter II of the Kerala University first statute, as held by this Court in the judgment in Joseph's case (supra). In Joseph's case no objection was raised with respect to his aided College service and therefore he did not have any complaint over that and there was no occasion for this Court to consider the question whether provisional/broken spells of aided college service was liable to be reckoned towards qualifying service for pension. Sri.Joseph had worked in several broken spells in aided college as well as aided schools. Objection was raised W.P(C) Nos.29356 of 2016-T & conn.cases 10 only against the school services. Therefore, the contention of the petitioners that their cases are covered by judgment in Joseph's case cannot be accepted. Petitioners are seeking a declaration that teachers of aided colleges are entitled to get their temporary/broken spells of service including those in leave vacancies in aided Colleges for pensionary benefits, in the light of the judgment in Joseph's case.
13. As already pointed out, the issue considered and decided in Joseph's case (supra), was with respect to the reckoning of broken spells of service in aided Schools, in the case of a teacher who retired from aided college. It was found that the service was liable to be reckoned, as in the case of teachers of Government colleges, in the light of Rule 14 E of Part III KSR read with Statute 5 of Kerala University first Statute. The impugned orders are issued referring to the implementation of the judgment in Joseph's case. The question to be considered in these cases is whether the Government is right in issuing executive orders, that too, with retrospective effect, in directing not to reckon the aided college service rendered by the petitioners prior to their entry in regular service. Further question is whether the service rendered in broken spells of service in different colleges in leave vacancies/short term vacancies with considerable break in service are liable W.P(C) Nos.29356 of 2016-T & conn.cases 11 to be counted towards qualifying service and whether Rule 14E takes in all these short spells of service in leave vacancies also towards qualifying service for the purpose of granting pensionary benefits to aided College teachers.
14. The impugned orders state that, there is a provision for reckoning Government service rendered prior to aided school/aided college service; but there is no corresponding provision to reckon the service rendered in aided Colleges and Schools for short spells and there is no mobility between aided Colleges and aided Schools and vice versa.
15. Provisions in Part III KSR are made applicable to aided College teachers, by way of Statute 5 of Chapter II of the Kerala University First Statute 1976, in respect of those under the Kerala University. In the case of those under M.G University also, the very same provision applies, by virtue of Section 99 of the M.G University Act, which makes the provisions in the Statutes of Kerala University Statutes applicable until statutes/rules are framed for the University. Statute 5 provides that the teachers retiring from service at the age of 55 shall be entitled to receive the same retirement benefits as are admissible to the Government college teachers. The petitioners rely on Rule 14 E of Part III KSR read with statute 5. W.P(C) Nos.29356 of 2016-T & conn.cases 12
16. Rule 14 E of Part III KSR, reads as follows:
"14E. (a) Aided School service put in by Government employees prior to entry in Government service qualifies. Takes effect from 24.01.1968."
There was no provision in Rule 14E of Part III KSR regarding aided college service until amendment was carried out inserting clause (b) as per G.O.(P) No. 366/2009/Fin dated 28.08.1989 with effect from 30.07.1979. Clause (b) to Rule 14 E reads as follows:
"(b) aided private college service both teaching and non-
teaching of Govt employees prior to their entry in Govt service shall qualify for pensionary benefits, subject to the conditions, namely,
(i) the actual period of regular full time service rendered from the date of actual introduction of direct payment system in the aided private college shall be counted.
(emphasis supplied) The petitioners in W.P.(C).No.20673 of 2016 have produced G.O.(P) No. 93/76/H.Edn dated 26.06.1976, as Ext P6. This order is issued in tune with the notification no 33357/B2/75/H.Edn dated 30.3.1976 and another order issued on 31.03.1976, which ordered as follows:
"Broken spells of approved service will be reckoned for calculating the service for the purpose of service for retirement benefits:
in the case of staff of government and private schools who subsequently joined private colleges and private poly technics such periods of approved school service will also be reckoned for the purpose;
xxxx"W.P(C) Nos.29356 of 2016-T & conn.cases 13
Thereafter in G.O.(Ms) No.191/77/H.Edn dated 5.12.1977, Government ordered that private college service of Government College Teachers will be counted for retirement benefits subject to the condition that service in the institutions brought under direct payment system alone will be reckoned; actual service in private colleges alone will count and that; service in private colleges prior to resignation for taking up government employment will be counted provided that the break in between does not exceed joining time. It further provides that only actual period of regular full time service alone would count. It was followed by G.O.(P) No. 670/79/Fin dated 30.07.1979, whereby it was ordered that prior service of Government employees as teaching and non-teaching staff of private colleges would be counted for pensionary benefits subject to the conditions laid down in the order dated 5.12.1977. As per G.O.(Ms) 49/81/G.Edn dated 19.03.1981, Government ordered that prior service in private college rendered by aided School teachers will be counted for pension on the very same conditions laid down in the order dated 30.07.1979. It was further provided that a certificate as given therein shall be recorded in the Service Book signed by the head of institution and countersigned by the Director of Collegiate Education. In G.O.(P) No.319/85 /Fin dated 05.06.1985, it was ordered that the prior W.P(C) Nos.29356 of 2016-T & conn.cases 14 Government service rendered by private college staff and aided school staff shall be counted for pension.
17. Much after that an amendment was carried out to Rule 14E inserting clause (b) as per 1979 gazette notification dated 17.09.2009 with effect from 30.07.1979 providing that only regular full time service in Private Colleges prior to entry in Government service will be counted for pension. By that amendment the provisions contained in the Government orders issued from 05.12.1977 are incorporated in the rule itself with effect from 30.07.1979. Therefore, in order to reckon the previous service in private colleges rendered by teachers of Government colleges, the service in the private college should be full time as well as regular. Going by that provision, in the case of the private college teachers also in order to count the prior service in aided colleges, as in the case of Government college teachers, the service should be full time and regular. The broken spells of provisional service rendered by them in leave vacancies in the private colleges prior to their entry in regular service cannot be reckoned as qualifying service. Therefore, the reliance on Rule 14 E of Part III KSR, by the petitioners is therefore misplaced, as there is a specific prohibition from counting service rendered in leave vacancies.
W.P(C) Nos.29356 of 2016-T & conn.cases 15
18. After the amendment in 2009, Rule 14E of Part II KSR read as follows:
"14E. (a) Aided School Service put in by Government employees prior to entry in Government service qualifies. Takes effect from 24th January 1968.
(b) Aided private college service, both teaching and non-teaching, of Government employees prior to their entry in Government service shall qualify for pensionary benefits, subject to the following conditions, namely:--
i)The actual period of regular full time service rendered from the date of actual introduction of Direct Payment System in the aided private college shall be counted.
ii)Service rendered prior to the introduction of Direct Payment System in any aided private college shall be counted only for the period of those incumbents who have been paid salary under grant-in-aid scheme introduced with effect from 1965.
iii)In cases of resignation of the appointment in private college service for the purpose of taking up appointment in Government, break, if any, between the private college service and the Government service shall not exceed the joining time admissible under the service rules, plus public holidays. Service prior to resignation for other purposes shall not be counted.
iv)The Government contribution if any, to their Provident Fund Account in respect of their aided private college service shall be refunded to Government.
v)The Management's share of contribution if any in Provident Fund Account in respect of aided private college staff shall be credited to Government. In such cases, a certificate in the following form shall be recorded in the Service Book by the Head of Institution in which the incumbent had worked duly countersigned by the Head of the Department.
"Certified that the Governments'/Managements' share of contribution with interest thereon which should otherwise have gone to the employee has not been/shall not be paid to him/her but has been/shall be credited to Government."
The certificate regarding the crediting of Managers' contribution is not necessary when contributions are to be paid back to the Management under rules.
vi)For counting the aided private college service, a certificate in the following form shall be recorded in the Service Book by the Head of the Institution in which the incumbent had worked duly countersigned by the Head of the Department.
"Service has been verified with reference to the initial records such as attendance registers, acquittance rolls, pay bills etc., and is qualifying for pension."
(c) Regular full time Government service of aided private college staff and aided private school staff prior to their entry in aided private college service and aided private school service shall be counted for pension for such service.
[Note 1:-Service in unaided school in erstwhile Travancore-Cochin area which acceded to the Private Secondary School Scheme, put in by Government School Teachers, prior to entry into Government service, whose service in aided school is allowed to count for pension under the above Rule will also qualify for pension.
This Note shall be deemed to have come into force with effect from 24th January 1968 [G.O. (Rt.) 1855/72/S. Edn. Dated 23rd June 1972 read with G.O. (Rt.) 1014/84/G.Edn., Dated 29th March 1974) [Note 2:-The benefit of the above rule shall be admissible to all the teachers who retired on or before the 24th day of January, 1968 and were alive on the 7th day of January, 1983.] GOVERNMENT DECISIONS W.P(C) Nos.29356 of 2016-T & conn.cases 16
1. Both teaching and non-teaching service in aided schools put in by Government employees prior to their entry into Government service will count for pension. This benefit is also admissible to Government employees other than teachers.
2 [*** *** *** ***
3. In cases of resignation of the appointment in aided school service for the purpose of taking up Government appointment, break, if any, between the aided school service and the Government service should not exceed the joining time admissible under the service rules plus public holidays. Service prior to resignation for other reasons will not count.
4. The Government contribution, if any, to their Provident Fund Account in respect of their aided school service shall be refunded to Government.
5. The Manager's share of contribution in Provident Fund Account in respect of aided school service also shall be refunded to Government. In such cases, a certificate in the following form shall be recorded in the Service Book by the pension sanctioning authorities [or Heads of Departments:--] "Certified that the Government's/ Manager's share of contribution with interest thereon which should have othenuise gone to the employee has not been/ will not be paid to him/her but has been/will be credited to Government."
The certificate regarding the crediting of Manager's contribution is not necessary when contributions are to be paid back to the Managers under rules.
6. For counting the aided school service a certificate in the following form shall be recorded in the Service Book by the pension sanctioning authorities [or Heads of Departments:--] "Service has been verified with reference to the initial records such as attendance registers, acquittance rolls, pay bills, etc., and is qualifying for pension."
[6A. For recording the certificates as in Government Decisions 5 and 6 above certificates duly countersigned by the District Educational Officer can be relied upon. In such cases it should also be recorded that, the certificate is as per Letter No............... dated....................of the D.E.O................ (place). In cases where the service in the aided schools have been entered in the Service Book under proper authentication, further certificate to that effect is not necessary.] [7. In the case of aided school service sandwiched between Government service, the qualifying service for pension should be calculated from the date of first entry in Government service and the entire period including the sandwiched aided school service should be reckoned for pension subject to recovery of CPF benefits, if any, received by them.
The above orders are applicable only to persons governed by Kerala Service Rides and who retire/die while in service on or after 14th November 1966.] [8 (i). The benefit of counting periods of break as per Note 3 below Rule 31, Part III, Kerala Service Rules will be allowed in cases where the appointment before the break was not provisional or for limited period and the break was due to reduction of staff strength of the institution.
(ii) In cases not covered by (i) above the actual period of service excluding the periods of break will be reckoned for qualifying service.
(iii) In cases covered by (i) above the certificate that termination of appointment was due to reduction of staff strength of the institution should be countersigned by the pension sanctioning authority.] s[or Heads of the Departments:--]"
19. On an examination of Rule 14(E) it can be seen that clause (a) W.P(C) Nos.29356 of 2016-T & conn.cases 17 provides for reckoning of aided school service put in by Government employees, without any qualification to the expression `aided school service'. At the same time, certain conditions are provided in clause (b), which provides for reckoning of aided private college service along with Government service. As per sub clause (i), the regular full time service rendered from the date of actual introduction of direct payment system alone shall be counted. Sub clause (ii) is not relevant. Sub clause (iii) provides for the reckoning of pre-resignation service in a private college followed by Government service even in the case of a break in between is liable to be reckoned if the break does not exceed the joining time, in case the resignation was for taking up the Government employment. Clause (vi) provides for a certificate by the Head of the Institution to be affixed/recorded in the Service Book, for counting the aided private college service and the certificate should be in such a form that the Head of the Department has verified the attendance, registers, acquittance rolls, pay bills etc. for verification of the service and should certify that such service is qualifying for pension. At the same time, clause 14(c) provides for counting of regular full time Government service of aided private college and private school staff prior to their entry in private schools. Here also what is W.P(C) Nos.29356 of 2016-T & conn.cases 18 provided is regular full time Government service of aided school/aided college teachers. Therefore, the provisions to count service in aided college is subject to the conditions that the service should be regular and full time. In this context, Rules 10 and 11 of Part III KSR are also relevant, which read as follows:
"10. The service of an 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.
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."
Rule 11 of Part III KSR empowers the Government to declare any kind of service as qualifying service, even by issuing executive orders. In the case of aided School service that is made pensionable by incorporating a provision itself in Rule 14E of KSR Part III, providing that aided school service prior to entry in service qualifies. But in the case of the aided college service, it can be reckoned towards qualifying service only on the conditions stipulated therein.
20. Therefore, the impugned orders only clarify the position in respect of prior service in aided colleges, which is already governed by statutory provisions contained in clause (b) onwards of Rule 14E of Part III W.P(C) Nos.29356 of 2016-T & conn.cases 19 KSR.
21. It would appear that even after clause (b) was inserted under Rule 14A (a), the Government/officers of the Higher Education Department continued to reckon the private college service for pension along with regular service. Certain officers raised objections saying that temporary service cannot be reckoned for increments after 1.10.1994, in the light of Note 2 to Rule 33 of Part I KSR. After interpreting the provisions in Note 2 which were introduced as per G.O.(P) No.279/79 dated 16.03.1979 and was deleted with effect from 1.10.1994 as per G.O.(P) No.540/94/Fin. dated 30.10.1994, this Court had set aside such objections. There had been occasions where this Court directed granting of pensionary benefits reckoning the prior services, while considering the legality of such objections, raised by the department, which were found unsustainable (in the judgments in W.P(c).Nos.30842/2007, 30917/2012, etc., produced as Exts.P17 and P18 in W.P(c).No.8939 of 2016). Provisions contained in clause b of Rule 14E were not brought to the notice of this Court in any of those cases and the only objection raised was that the service rendered by the petitioner therein was not reckoned for increments, relying on G.O(P). No.2357/99/H.Edn dt.25.11.1999. Validity of the Government orders W.P(C) Nos.29356 of 2016-T & conn.cases 20 impugned in these writ petitions cannot be tested on the basis of such objections or on the basis of those judgments.
22. A Government employee is not entitled to pensionary benefits for the provisional service, unless there is any specific order under Rule 11 of Part III KSR.
23. As per Rule 3 of Part I KSR, provisions contained in KSR would not apply to persons for whose appointment and conditions of employment special provision is made by or under any other law; persons in respect of whom conditions of service, pay and allowances, pension, leave or any of them, special provisions have been made in pursuance of provisions of Rule 8. Note to Rule 3 provides that the Rules as a whole shall not apply to persons appointed to service of the Government temporarily under Rule 9 of Part II of KS&SSR except to the extent specified by the Government. Temporary appointments under Government service is made under Rule 9(a)(i) of KS&SSR. Therefore, going by the note to Rule 3, temporary appointees are not governed by the provisions contained in the KSR as a whole, in the absence of any specific provisions or rule. The petitioners claim that they are entitled to pensionary benefits as applicable to teachers of Government colleges. Teachers of Government W.P(C) Nos.29356 of 2016-T & conn.cases 21 colleges do not get the benefit of provisional service/broken spells of service/service in leave vacancies in private colleges counted for pension except in accordance with clause (b) of Rule 14E of Part III KSR.
24. In the above circumstances, the impugned orders do not invite any interference by this Court at the instance of aided College teachers or aided School teachers with prior service in aided colleges, as those are only clarifications to the statutory provisions contained in clause b to Rule 14E of Part III KSR, which has already come into force with effect from 30.07.1979. Hence, the action of the respondents in not reckoning the broken spells of service rendered by the petitioners before they commenced service as regular appointment cannot also be interfered with.
Accordingly, these writ petitions are dismissed.
Sd/-
(P.V.ASHA, JUDGE) rtr/