C.S.SAJEEV v. THE SECRETARY,K.S.E.B., VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. & Ors.

W.P.(C)No.8695/073The first is that following Government Orders on the subject,the Board has issued Ext.P6 order dated 1.9.2005 in which ithas been specifically stated that, it has been decided to denythe request of the employees to remit pro rata pensioncontribution by the employees themselves in the event of theformer employer refusing to pay the pro rata pension liability.It is further submitted that in Ext.P6 order, a time limit of oneyear from the date of the order namely 1.9.2005 has beenfixed for payment of pro rata contribution and the petitionerhas paid the same only on 25.9.2006. The learned StandingCounsel, therefore, submits that the petitioner is not entitledto the reliefs prayed for in this writ petition.4.I have considered the rival contentions in detail.5.The eligibility of the petitioner to have his priorservice with the Department of Telecommunications asqualifying service for retirement benefits in the KSEB is not atall disputed by the respondents. Their contentions are purelytechnical in nature, based on Ext.P6. Clauses 4 and 6 ofExt.P6 are the relevant clauses, which are relied on by thelearned Standing Counsel for the Board to deny the reliefs tothe petitioner. The same read as follows: W.P.(C)No.8695/074“xxxxxxxxxxxx4.Fix a time limit of oneyear from joining the Board for theBoard employee who desires to applyfor counting the past service, if any, forthe purpose of pension in the board andto make applicable this time limit infuture cases. A time limit of one yearfrom 01.09.2005 will be allowed to theexisting employees to apply forcounting the past service, if any for thepurpose of pension. Request madeafter this time limit will not beentertained.xxxxxxxxxxxx6.Also decided to deny therequest of the employees to remit thepro-rata pension contribution by theemployees themselves, in the event ofthe former employer refusing to paythe pro-rata pension liability. This isapplicable to the pending request aswell as to the future cases.”As far as the 2nd contention is concerned, I do not find anymerit in the same, insofar as clause 4 does not fix any timelimit for paying pro rata pension contribution. The time limitprescribed is only for applying for counting the past service forthe purpose of pension. The fact that the petitioner appliedfor counting of past service for the purpose of pension in 1997is clear from Exts.P1, P2 and P3. Ext.P1 is a communicationfrom the Department of Telecommunication dated 5.6.1997 tothe Deputy Chief Engineer of the Electricity Board. Ext.P2 is aNote dated 16.1.2002 put by the Accounts Officer of thePension Audit of the Board to the Deputy Chief Engineer, KSEB W.P.(C)No.8695/075in respect of the claim of the petitioner for reckoning CentralGovernment service as qualifying service. Ext.P3 is dated14.6.2002, which is a communication from the BSNL to the 3rdrespondent in respect of the same subject matter. Therefore,the petitioner applied for counting past service for the purposeof pension, years before the time limit prescribed by clause 4of Ext.P6 order. As such, the contention of the learnedStanding Counsel regarding the time limit for payment of prorata pension contribution is clearly without any basis. 6.The next question is as to whether an employee canbe prohibited from paying the pro rata pension contributionhimself in the event of the former employer refusing to pay thepro rata pension contribution. In Ext.P6 there is no logic orreason as to why the employee cannot be permitted to pay thepension contribution, if the former employer does not pay.The contention is that, clause 6 of Ext.P6 is based on G.O.(P)No. 703/2002/Fin. dated 12.11.2002. That Government Orderreads thus:“As per G.O. 1st cited Government have issuedOrders/guidelines for reckoning the servicerendered in Government of IndiaDepartments/Central AutonomousBodies/State Government Departments/StateAutonomous Bodies/Public SectorUndertakings. etc. for pensionary benefits W.P.(C)No.8695/076consequent on permanent absorption afterdeputation in State GovernmentDepartments/ State Autonomous Bodies andvice versa. As per the Circular dated 4-12-1999, the mobility and other details applicablehave been further clarified. However, theseOrders cover the cases of permanentabsorption after deputation only. There areno rules regarding the reckoning of formerservice in Government of India/Central PublicSector Undertakings followed by freshappointments in the State Service, based onrecruitment methods for new appointments.In the letter read as 2nd paper aboveGovernment of India had earliercommunicated their concurrence to shareproportionate liability on a service share basisor counting the service under them forpensionary benefits under State Government.But this has not been adopted in this State sofar.Government have examined the matterin detail and are pleased to order that theemployees of the State GovernmentDepartments who left the former service incentral Government/Central Public SectorUndertakings on their own volition for takingup appointment in State GovernmentDepartments will be allowed to reckon theirprior service for all pensionary benefits alongwith the service in the State GovernmentDepartment if the former employer remits theshare of proportionate pro rata pensionaryliability on a service- share basis.These Orders will take effect, includingmonetary effect, only from the date of thisOrder and individual cases otherwise settledwill not be re-opened.”(Underlining supplied)Although that Government Order permits counting of priorservice, if the former employer remits the share ofproportionate pro rata pensionary liability on a service-sharebasis, it does not specifically prohibit payment of the pro rata W.P.(C)No.8695/077pension contribution by the employee himself, if the formeremployer refuses to pay the pro rata pension liability.Therefore, the contention that clause 6 of the Ext.P6 is basedon the said Government Order does not find favour with me. 7.Apart from that, I do not find any logic in the saidprohibition. The petitioner does not have any control over theDepartment of Telecommunications or its successor-in-interestBSNL. If they refuse to pay pro rata pension contribution, theonly alternate remedy available to the petitioner is to pay thepro rata pension contribution by himself. If that is notpermitted, I am of opinion that, that would amount toarbitrariness and injustice. In fact, both the KSEB and theDepartment of Telecommunications/BSNL are Governmententities. The petitioner should not be made to suffer becauseof the fault on the part of such Government entities, especiallywhen the petitioner is prepared to bear the burden to bedischarged by his former employer. As such, the stipulation inclause 6 is clearly arbitrary, unreasonable and without anylogic whatsoever. Therefore, I am of opinion that clause 6cannot be pressed into service for denying the benefit ofreckoning prior service of the petitioner for the purpose of W.P.(C)No.8695/078retirement benefits due to the petitioner. The petitioner hasalready paid the amount fixed by the Board themselves byExt.P5, as the amount payable as pro rata pension contributionto enable the petitioner to get his prior service counted asqualifying service for retirement benefits in the KSEB. As such,he has complied with all the formalities for becoming eligiblefor counting his past service in the Department ofTelecommunications for the purpose of retirement benefits inthe Kerala State Electricity Board. 8.Accordingly, Ext.P5 is quashed. It is declared thatthe petitioner has complied with all the formalities prescribedfor reckoning the service rendered by him in the Department ofTelecommunications of the Government of India as qualifyingservice for retirement benefits in the Kerala State ElectricityBoard. As and when the petitioner retires, the petitioner'squalifying service shall be fixed accordingly.The writ petition is disposed of as above. S. SIRI JAGAN, JUDGEacd W.P.(C)No.8695/079 W.P.(C)No.8695/0710