G.SANKARANARAYANA PILLAI v. STATE OF KERALA

T.R.RAMACHANDRAN NAIR, J.~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~O.P.No. 33889 of 2000 (H)~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~Dated this the 5th day of July, 2007J U D G M E N TThe petitioner is apparently aggrieved by the nonreckoning of his service for more than 23 years under the Municipal Common Service for the purpose of granting pension.

The short facts are:-The petitioner entered service as Health Overseer on aregular basis in the Thiruvananthapuram Municipal Corporationon 12/01/1961. He was later promoted as Health AssistantGrade-I on 20/11/1973 and as Health Inspector Grade-II on11/07/1974. Later he was promoted as Health Inspector Grade-Iand posted to Perumbavoor Municipality. Thereafter, he wastransferred to Aluva Municipality on 17/04/1984. While workingthere, he got appointment as Technical Assistant (PFA) throughKerala Public Service Commission in the department of HealthServices. While working there he retired from service on29/02/1996. The service rendered by him in the municipal O.P.No.33889/2000(H)-: 2 :-service is 23 years and eight months. Counting the same, he hasa total continuous pensionable service of 35 years and one monthand 19 days. It is the admitted fact that the municipal service isalso pensionable service.

Initially, an objection was raised by the second respondentregarding the counting of the above period of service as perExt.P2. The objection noted is that the service period in LocalFund/Local Bodies will qualify for pension only on specific ordersof the Government. It may be noted herein that actually thisobjection was raised when his pension papers were prepared bythe third respondent after reckoning his total service of 35 yearsone month and 19 days. But the objection raised appears to beunder Rule 20 Part III K.S.R, which specifically provides that“service paid from local fund will qualify for pension only onspecific orders of the Government”. As far as the Municipalemployees are concerned, the relevant Rules prescribed for thepayment of pension is Kerala Municipal Employees Death-Cum-Retirement Benefits Rules 1967 and, Rule 7(2)(b)(i) stipulatesthat the pension contribution in respect of all employees O.P.No.33889/2000(H)-: 3 :-calculated at 1/6th of their pay plus dearness pay has to beremitted to the pension fund. Accordingly, the petitioner'scontribution was also remitted every month. As per Rule 4 of theabove rules Part III of the K.S.R as amended from time to timewill apply mutatis mutandis to an employee governed by the Pension Scheme under these rules in the matter of death-cum-retirement benefits.

The Government has been giving benefit of counting similarservice in the Municipal Common Service in respect of MunicipalCommissioners who were appointed from the Municipal CommonService and the petitioner has produced Ext.P4 to prove thesame. Government granted sanction for counting for purposes ofpension such portion of the service of 14 MunicipalCommissioners rendered in the Municipal Establishment prior totheir appointment as Commissioner as would count under therules applicable to them after levying pension contribution. Itwas also directed that the pension contribution will be adjustedfrom the contribution made by the concerned Municipalitiestowards their Provident Fund Accounts. Ext.P5 Government O.P.No.33889/2000(H)-: 4 :-Order also is produced to show that in respect of the post of JointDirector of Municipal Administration (Health) the Governmentmade certain amendments of the Special Rules to countMunicipal Common Service with Government Service todetermine the length of service. Ext.P6 will show that thepension contribution in respect of the petitioner was remitted inlump-sum on 14/10/1999 by the Director of MunicipalAdministration to the general revenue.

Thereafter, the Director of Health Services moved the Government requesting that orders may be issued for enablingthe service of the petitioner to be counted for the sanction ofpensionary benefits. The petitioner also filed a representation asper Ext.P8. Thereafter, he approached this Court by filingO.P.No.22911/1999, which was disposed of by judgment dated10/09/1999. A direction was issued to the Government toconsider and pass orders on Ext.P4 representation of thepetitioner, before the time limit prescribed in the judgment. Therequest of the petitioner was to pass appropriate special ordersunder Rule 20 Part III K.S.R. O.P.No.33889/2000(H)-: 5 :-

In answer to Ext.P4 representation in O.P.No.22911/1999,Ext.P10 has been communicated to the petitioner, which is underchallenge in this original petition. In Ext.P10, the petitioner hasbeen informed that the appointment in the MunicipalDepartment cannot be considered as a continuous post in the Health Department and, hence, Rule 159 Part-I Kerala ServiceRules cannot be made applicable in his case.

Ext.P11 is the order sanctioning pension to the petitioner. Along with I.A.No.11311/2004, the petitioner has producedExts.P12 to P15. Ext.P12 is the copy of G.O.(P) No.369/87/Fin, dated 31/03/1987. That governs the sanction given by the Government for counting the period of service rendered by aState Government employee and an employee of statesautonomous bodies who is allowed to be absorbed in Government of India/Autonomous Body for payment of pension. Ext.P13 is an order issued in modification of the earlier orderdated 30/12/1978. This order governs grant of retirementbenefits to government servants transferred to AutonomousBodies/Public Undertakings on their own volition. The O.P.No.33889/2000(H)-: 6 :-Government as per Ext.P14 ordered that Rule 20 Part III K.S.Rwill be amended by adding a note, which is in the followingterms:-

Notwithstanding anything contained in the above Rulethat the past service put in by Governmentemployees/Teachers in Panchayaths/MunicipalCommon Service/Universities etc. prior to entry in State service and vice versa will be reckoned asqualifying service for pension & DCRG. The amountcredited to/creditable to a pension fund for the servicerendered by the employee at market rate of interest(@ 10% at present) on compounding basis calculatedfor the period he worked with the former employer, hasto be paid by the former employer in lump at the timeof such appointment of the employee to the Stateservice and vice versa. This will not be applicable toappointments to or from Public Sector Undertakings orsimilar bodies as they are constituted under CompaniesAct or by separate legislation of the Central/StateGovernments. The benefit of this order will be applicable to theretirements after the date on this orders and thepension cases already settled or pending settlement on O.P.No.33889/2000(H)-: 7 :-administrative reasons will not be considered on anyaccount.

In view of the above order, the past service put in bygovernment employees in Municipal Common Service, prior tothe entry in State service will be reckoned as qualifying servicefor pension and D.C.R.G. But the benefit of the same isrestricted to retirement after the date of the order. Ext.P15 isthe judgment of this Court in O.P.No.13802/1998, where it wasdeclared that aided school service can be counted for thepurpose of counting pension under the Rubber Board.

A reading of Ext.P10 shows that the Government has notaddressed the question in the correct perspective. The objectionraised in Ext.P2 is that the service period in Local Funds/LocalBodies will qualify for pension only on specific orders of Government. The case of the petitioner was recommended bythe Director of Health Services to the Government for countinghis service under Municipal Common Service for sanction ofpension. This is evidenced by Ext.P7. The pension contribution O.P.No.33889/2000(H)-: 8 :-in respect of him has also been remitted to the GovernmentTreasury going by Ext.P6. The reliance placed on Rule 159 Part-I K.S.R, in the circumstances does not appear to be correct. Rule159 Part-I K.S.R reads as follows:-

Persons transferred to Government service froma Local Fund which is not administered by Governmentwill be treated as joining a first post under Governmentand their previous service will not count as dutyperformed. The Government may, however, allowprevious service in such cases to count as dutyperformed on such terms as it thinks fit.

A reading of the Ruling therein also would show that thesame governs the fixation of pay of an officer transferred from aLocal Fund institution not administered by Government to Government service. As far as the petitioner is concerned, hispay was protected. It was counted for the purpose of increment, pay revision and other benefits. Therefore, there was no scopefor applying Rule 159 Part-I K.S.R for the purpose of objectingthe sanction, evidently. The provisions of Rule 20 Part-III K.S.R O.P.No.33889/2000(H)-: 9 :-were the relevant provisions which governed the matter. Whatwas required was only a special order like Ext.P4 for enablingthe petitioner to count his service under the Municipal CommonService for reckoning the same for granting sanction of pension. This was not considered by the Government in answer to hisrepresentation. Further, the note now added to Rule 20 Part-IIIK.S.R, stipulates that the past service put in by an employee inthe Municipal Common Service prior to entry in State servicewill be reckoned as qualifying service for pension and D.C.R.G.Therefore, the object of the provision is evident from the noteitself. The clear purpose and object of the note is for the benefitof the pensioner and if that is the object, there is no justificationto restrict the benefit to persons who have retired after the dateof the said order. This principle is well settled by variousdecisions of the Supreme Court, as in D.S.Nakara & othersvs. Union of India [AIR 1983 SC 130]. The pensioners form aclass and when they form a class there cannot be anydiscrimination as far as the granting of liberalised benefits areconcerned. It was held therein that all the retirees are entitledfor the benefit of the liberalised formula. It was observed that O.P.No.33889/2000(H)-: 10 :-“if the pensioners form a class, their computation cannot be bydifferent formula affording unequal treatment solely on theground that some retired earlier and some retired later.”