Kerala High Court
T.V.Hamza Koya vs State Of Kerala on 10 April, 2019
Bench: C.T.Ravikumar, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941
OP(KAT).No. 91 of 2016
AGAINST THE ORDER IN OA(Ekm) No.165/2014 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 10-03-2016
PETITIONER:
T.V.HAMZA KOYA,
AGED 66 YEARS
RESIDING AT S.K. MANZIL, PARAPPUR ROAD,
KOTTAKKAL PO, MOB.9947318599
BY ADVS.
SRI.P.C.SASIDHARAN
SMT.VARSHA BHASKAR
SRI.S.PRASANTH (AYYAPPANKAVU)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-
695001
2 THE SECRETARY TO GOVERNMENT,
GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001
BY SR.G.P.SRI.T.RAJASEKHARAN NAIR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 21.1.2019, THE COURT ON 10.4.2019 PASSED THE
FOLLOWING:
O.P.(KAT)No.91 of 2016 2
JUDGMENT
Arun, J.
This Original Petition is filed aggrieved by the order of the Kerala Administrative Tribunal in O.A(Ekm) No.165 of 2014. The Original Application was filed by the petitioner herein, seeking to set aside Annexure-A10 order and Annexure-A15 letter and for a direction to the respondents to grant retirement benefits to the petitioner for the period of his service in the personal staff of the Minister for Food and Civil Supplies, during the period from 25.5.1982 to 31.3.1987. The petitioner had initially entered service as L.D.Clerk in the Soil Conservation Department on 17.6.1970. Subsequently, the petitioner joined the Revenue Department by way of inter-departmental transfer and while working as U.D.Clerk in the Revenue Department he was deputed to the Kerala Fishermen Welfare Corporation on 7.6.1979 and absorbed as Development Assistant Gr.I w.e.f 5.7.1980. While working as Development Assistant Gr.I in the Kerala Fishermen Welfare Corporation, the petitioner was deputed to the personal staff of the Minister for Food and Civil Supplies w.e.f 25.5.1982. On deputation, the petitioner was initially appointed as Assistant O.P.(KAT)No.91 of 2016 3 Private Secretary and was later promoted as Additional Private Secretary on 10.5.1983 and continued in that post till 31.3.1987. The petitioner's parent establishment, namely, the Kerala Fishermen Welfare Corporation, was wound up in the meanwhile and its functions were taken over by the Kerala State Co-operative Federation for Fisheries Development (MATSYAFED) w.e.f 1.4.1984. On his tenure in the personal staff of the Minister coming to an end, the petitioner was absorbed into the service of the newly formed MATSYAFED, w.e.f 1.4.1987, and posted as Assistant Secretary, Malappuram.
2. According to the petitioner, all erstwhile employees of Kerala Fishermen Welfare Corporation, absorbed into the service of MATSYAFED were given the benefit of Employees Provident Fund only w.e.f 1.4.1987. The Petitioner worked with the MATSYAFED from 1.4.1987 and voluntarily retired from service on 16.1.2006. Thereafter, the petitioner submitted a representation to the second respondent to grant him pension for the period he had worked in the personal staff of the Minister. The second respondent, by Annexure-A10, rejected the petitioner's request mainly for the reason that only directly recruited personal staff are entitled for pension. The other reason O.P.(KAT)No.91 of 2016 4 stated was that the Fishermen Welfare Corporation being a Government organization, the liabilities of its employees would have been settled by the Corporation before it was wound up. Annexure-A15 is a reply addressed to a Member of Parliament, who had forwarded the petitioner's representation to the Chief Minister. It is stated in Annexure-A15 that since the petitioner was receiving pension for his earlier service with the Government, he is not entitled for a second pension in view of the prohibition contained in Rule 7 of Part III K.S.R.
3. In the Original Application the petitioner had assailed Annexures-A10 and A15, primarily on the ground that the Fishermen Welfare Corporation having been wound up on 31.3.1984 and the petitioner having been absorbed in MATSYAFED only w.e.f 1.4.1987, his service in the personal staff of the Minister from 1.4.1984 to 31.3.1987 could be reckoned for the purpose of pension, by considering the petitioner to be a person directly recruited to the personal staff on 1.4.1984. It was contended that Rule 7 of Part III K.S.R only prevents an employee from earning two pensions in the same office at the same time or by the same continuous service. That, the petitioner having not received pension from any other source for O.P.(KAT)No.91 of 2016 5 the period of his service in the personal staff of the Minister, the restriction under Rule 7 of Part III K.S.R would not apply. Relying on the amendment brought about to the Special Rules for the Personal Staff of the Ministers, the Leader of Opposition and the Government Chief Whip, vide Annexure-A16 Government Order, it was contended that the prohibition under Rule 7 of Part III K.S.R was not applicable.
4. The respondents, in their reply statement filed before the Tribunal, refuted the averments of the petitioner. It was contended that the petitioner himself having stated that he was deputed to the personal staff w.e.f 25.5.1982, cannot claim pension, since as per the stipulation in GO(Ms)No.283/1994/GAD dated 23.9.1994 (Annexure-A16), which governs the issue, a person deputed to the personal staff is not eligible for pension. That, as per the stipulation in Annexure-A16 only persons appointed by direct recruitment to the personal staff of the Ministers, the Leader of Opposition and the Government chief whip, having a minimum service of three years was eligible for pension. It was contended that the petitioner was not directly promoted to the post of Additional Private Secretary to the Minister and that the promotion was consequent to his promotion O.P.(KAT)No.91 of 2016 6 in his parent establishment.
5. The Tribunal, relying on Rule 3 of Annexure-A16 Rules, found that only persons directly recruited to the personal staff was eligible for pension. That, the petitioner having been appointed by way of deputation and not by direct recruitment he was ineligible for grant of pension under Annexure-A16 Rules. Based on the said finding the Tribunal proceeded to dismiss the Original Application.
6. The learned counsel for the petitioner assailed the findings of the Tribunal by contending that the nomenclature of appointment of the petitioner is irrelevant for deciding his legal right and that though, in the original appointment order the word 'deputation' is used, that is a misnomer and that the appointment of the petitioner to the personal staff of the Minister can by no stretch of imagination be considered as an appointment by deputation. That, being an appointment outside the Government service, the appointment could only be considered as direct recruitment. It is contended that the conditions of service and pay of personal staff of Ministers are governed by Annexure-A18 Special Rules, which prescribes only three methods of appointment viz., appointment from Kerala Secretariat Service or O.P.(KAT)No.91 of 2016 7 Kerala Secretariat Subordinate Service, recruitment by transfer from any other service and direct recruitment. Since the service of the petitioner was not coming under the State Government and his appointment was not an appointment by transfer, the only inference possible is that the petitioner's appointment was by way of direct recruitment. It was also contended that merely because the petitioner was receiving pro-rata pension for the period of his appointment in Government service, that would not dis-entitle him from receiving pension for the period he had worked in the personal staff of the Minister. Finally it was contended that Rule 7 of Part III K.S.R has no application since Annexure-A16 made it possible for a person receiving pension under any other scheme, to receive pension under Annexure- A16 also.
7. We heard Sri.P.C.Sasidharan, the learned counsel for the petitioner and Sri.T.Rajasekharan Nair, the learned senior Government Pleader.
8. The contention of the learned counsel for the petitioner that though the nomenclature in his appointment order is 'deputation', the appointment has to be considered as an appointment by way of direct recruitment cannot be O.P.(KAT)No.91 of 2016 8 countenanced for the following reasons:-
i) It is an undisputed fact that the petitioner was deputed from the Fishermen Welfare Corporation to the personal staff of the Minister. In the impugned order the Tribunal has extracted the terms and conditions of deputation of the petitioner. Those terms clearly show that the appointment of the petitioner was on deputation basis in relaxation of Rules 2 and 4 of Annexure-A18 Special Rules for the Personal Staff of Ministers. Further, it was also specified that the deputation will begin from the date of relief of the petitioner and will terminate on the date of his rejoining duty in the Corporation.
ii) The petitioner's lien in his parent establishment continued even after his appointment in the personal staff of the Minister.
While working in the personal staff of the Minister, there was a break in service of the petitioner for a period of 16 days from 28.4.1983 to 13.5.1983. During this period the petitioner had worked with his parent establishment, the Kerala Fishermen Welfare Corporation. This, even according to the petitioner, was in order to work in the post to which he had been promoted by the Corporation, which was a requirement for his further promotions.
O.P.(KAT)No.91 of 2016 9
iv) The promotion of the petitioner from the post of Assistant Secretary to that of Additional Secretary to the Minister was consequent to his promotion in the Fishermen Welfare Corporation.
v) On completion of his tenure in the personal staff of the Minister, the petitioner was absorbed in to the service of MATSYAFED, which had taken over the functions of the Fishermen Welfare Corporation, on the said establishment being wound up.
9. Having come to the definite conclusion that the petitioner was appointed by way of deputation, the other question to be considered is as to whether such appointment would render the petitioner eligible for pension. The answer to that question would depend upon the relevant clauses in Annexures-A16 & A18 Rules. Rule 4 of Annexure-A18, prescribes the manner of appointment. The said Rule reads as follows:-
"Appointment: Appointments to the posts shall ordinarily be made from among full members or approved probationers in the Kerala Secretariat Service or the Kerala Secretariat Subordinate Service Provided that, in special cases, appointments to the posts may be made by recruitment by transfer from any other service or by direct recruitment including recruitment from the service of a local authority."O.P.(KAT)No.91 of 2016 10
10. By Annexure-A16, amendments were brought about to Annexure-A18 Rules. As per Rule 3 of Annexure-A16, only persons appointed by direct recruitment to the personal staff of the Ministers, the leader of the opposition and the Government Chief Whip, having a minimum service of three years are eligible for pension. A conjoint reading of Annexures-A16 & A18 clearly show that only persons who are directly recruited to the personal staff are entitled for pension. That being the case, there was no illegality in Annexure-A10 order by which the request for pension for the period during which the petitioner had worked in the personal staff of the Minister was rejected . Annexure-A15 is only a communication addressed to the Member of Parliament, reiterating the finding that the petitioner is not entitled for pension, as requested by him. Since the petitioner is found to be ineligible for pension during the period he had worked in the personal staff of the Minister, there is no requirement to consider the impact of Rule 7 of Part III K.S.R, as also the provision in Annexure-A16 with regard to the entitlement for dual pension. Therefore, the Tribunal was fully justified in refusing to interfere with Annexures-A10 and A15 and consequently dismissing the Original Application.
O.P.(KAT)No.91 of 2016 11
For the aforementioned reasons, we find no valid ground to interfere with the findings of the Tribunal, in exercise of the power of judicial review. Resultantly, the Original Petition is dismissed.
Sd/-
C.T.RAVIKUMAR, JUDGE Sd/-
V.G.ARUN, JUDGE cms O.P.(KAT)No.91 of 2016 12 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA.NO. 165/2014
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON
BEHALF OF THE 2ND RESPONDENT
EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE
APPLICANT TO THE REPLY STATEMENT FILED BY
THE 2ND RESPONDENT
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 10.03.2016
OF THE HON'BLE ADMINISTRATIVE TRIBUNAL IN
OA.(EKM) 165/2014
RESPONDENTS EXTS NIL
/TRUE COPY/
P.S.TO JUDGE
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