Kerala High Court · 2024

aggrieved by the order dated 22.12.2022 in O.A.(EKM) No.1005/2020 of the Kerala Administrative Tribunal, Thiruvananthapuram. The petitioners are the respondents in the Original Application and the respondent is the applicant.

2. The issue for consideration is regarding the calculation of the length of qualifying service and the interpretation of the term "Month" in sub-rule 21 of Rule 12 of the Kerala Service Rules (for short 'the K.S.R').

3. The brief facts of the case are as follows:- The respondent/applicant served in Government service from 09.11.1990 to 30.04.2019 and retired O.P.(KAT) No.335 of 2023 :-2-: from the Law Department as Deputy Secretary on

30.04.2019. Pensionary benefits were granted to him counting his total service as 28 years, 5 months, and 22 days, which was rounded off to 28 years. The claim of the respondent is that an additional one day accrued during each of the seven leap years should be included in calculating his eligible service. Furthermore, he contends that, following the method of considering completed calendar years of service, the number of days in each month should be taken into account, with an extra day for each leap year, to determine the fraction of the year, whether it is less than half a year or above half a year. Therefore, according to him, he has eligible service of 28 years and six months, which as per the provisions of KSR will get rounded off to 29 years which will have a significant impact on his retirement benefits.

4. The Tribunal considered the issue elaborately O.P.(KAT) No.335 of 2023 :-3-: and allowed the Original Application finding that the respondent has 29 years of total qualifying service, adopting a method that involves counting the number of days in a month and adding one day for every leap year. Aggrieved by the same, the State has come in appeal.

5. Heard Sri.Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the petitioners and the learned counsel appearing for the respondent/applicant.

6. For a better understanding of the provisions, firstly we will refer to Rule 57 Part III of KSR as follows:- "The amount of pension that may be granted is determined by the length of service as set forth in Rules 64 to 70. Fraction of a year, if any, in the service will be rounded to the nearest completed year i.e., fractions less than half year will be ignored and half year and above rounded to the next completed year".

7. The learned Senior Government Pleader appearing for the petitioners submitted that considering the respondent's total service of 28 O.P.(KAT) No.335 of 2023 :-4-: years, 05 months, and 22 days from 09.11.1990 to

30.04.2019, the qualifying service of the applicant was fixed at 28 years following the provisions contained in Rule 57 of Part III KSR. They further contended that even if the applicant is entitled to include an additional day for each of the seven leap years, the applicant's service falls short by one day for the 6 months needed to get it rounded off to the next completed year.

8. Per Contra, the learned Counsel for the respondent/applicant contends that after considering completed years of service, the number of days in each month should be counted separately and an extra day for each of the seven leap years should be added along with those days.

9. The petitioners vehemently refute this claim and assert that the number of days in a month cannot be counted separately. Instead, for calculating the qualifying service, a month shall be a calendar O.P.(KAT) No.335 of 2023 :-5-: month, irrespective of the days contained in it, and a year shall mean a calendar year. The completed years of service shall be considered first, followed by completed calendar months. If the total number of remaining days, plus an extra day for each leap year in the entire service, is 30 days or more, it can be deemed as an additional month.

10. The State relies on sub-rule 21 of Rule 12 of Part I KSR, which reads as follows: “(21) Month: Means a calendar month. In calculating a period expressed in terms of months and days, complete calendar months, irrespective of the number of days in each, should first be calculated and the odd number of days calculated subsequently. Note: Whenever it is necessary to calculate a period in calendar months, the period shall be taken to end either on the day of the month corresponding to the day before the day on which the period begins or if there is no such corresponding day in the month, then on the last day of the month. Example: A period of six calendar months beginning on the 28th February ends on 27th August, 31st March ends on the 30th September, 30th or 31st August ends on 28th February or 29th February, if leap year.”

11. The petitioners assert that the note and example provided above offer a clear understanding of how the number of days should be reckoned and the O.P.(KAT) No.335 of 2023 :-6-: language of the section is unambiguous, and nothing can be read into it in order to interpret the same.

12. It is an undisputed fact that the applicant commenced service on 09.11.1990 and retired on

30.04.2019. Therefore, the number of completed years (01.01.1991 to 31.12.2018) is 28 years. The number of calendar months available includes December 1990, January 2019 to April 2019, totalling 5 calendar months. The remaining days during the month of November 1990 amount to 22 days. Considering an additional day for each leap year throughout the entire service, the total number of remaining days will be 22 + 7 = 29 days.

13. Thus, the respondent has only 28 years, 5 months, and 29 days of service. As per Rule 57 Part III of KSR, only 28 years can be considered as a qualifying service. The respondent contends that the number of days in months should be calculated separately. Such a calculation cannot be accepted O.P.(KAT) No.335 of 2023 :-7-: when the Rule explicitly states that months mean calendar months. When the rule explicitly prescribes how the number of days is to be calculated, further interpretation of the rule is impermissible under the law. Therefore, the claim that the number of days in each month has to be calculated separately to determine the completed year for the calculation of pension is hereby rejected.

14. Learned counsel for the respondent placed reliance on Annexure A7 judgment, which will not come to the aid of the respondent. In the said judgment, the dictum established was that an extra day for each leap year can be counted to calculate the total number of days. Although the Division Bench of this Court in Annexure A7 judgment discussed sub-rule 21 of Rule 12 Part I KSR, that can only be considered as obiter dicta, and the facts of the said case are entirely different. A decision serves as a precedent, only if it decides a question of law; each case must O.P.(KAT) No.335 of 2023 :-8-: be decided based on its unique facts. The Government indeed amended Rule 57 Part III KSR after the applicant's retirement, and a proviso was added to reiterate and clarify the earlier position, aiming to prevent ambiguity in the matter. In the said proviso, it is explicitly stated that for calculating the qualifying service, a month shall be a calendar month irrespective of the days contained in it, and a year shall mean a calendar year. The completed years of service shall be considered first, followed by completed calendar months. The very purpose of the amendment was to clarify and incorporate the principles outlined in sub-rule 21 of Rule 12 to Rule 57 of Part III KSR to crystallize the issue. The respondent is entitled to count only 28 years of service as his qualifying service for pension.

15. Therefore, we uphold the contentions raised by the petitioners in the above original petition. Ext.P5 Order of the Kerala Administrative Tribunal O.P.(KAT) No.335 of 2023 :-9-: dated 22.12.2022 in O.A. (ΕΚΜ) No.1005/2020 is liable to be set aside. Accordingly, the original petition is allowed. Exhibit P5 Order of the Kerala Administrative Tribunal dated 22.12.2022 in O.A. (ΕΚΜ) No.1005/2020 is set aside. sd/- A.MUHAMED MUSTAQUE, JUDGE sd/- SHOBA ANNAMMA EAPEN, JUDGE MBS/- APPENDIX OF OP(KAT) 335/2023 PETITIONERS' ANNEXURES:- Annexure A 1 Annexure A2 Annexure A3 Annexure A4 Annexure A5 Annexure A6 TRUE COPY OF THE PENSION VERIFICATION REPORT NO.P.R 2101931181 DATED 22.05.2019 ISSUED BY THE 4TH RESPONDENT. TRUE COPY OF GO (P) NO. 102/2019/FIN DATED 14.08.2019. TRUE COPY OF REPRESENTATION DATED 24.09.2019 SUBMITTED BY THE APPLICANT TO 2ND RESPONDENT TRUE COPY OF THE LETTER NO. 19779/ADMIN(1)/2019 LAW DATED 08.11.2019 ISSUED BY THE SECOND RESPONDENT TO THE APPLICANT. TRUE COPY OF THE REPRESENTATION DATED 24.10.2019 SUBMITTED BY THE APPLICANT TO THE SECOND RESPONDENT. TRUE COPY OF THE LETTER NO. 19779/ADMN(1)/2019 LAW DATED 03.12.2019 ISSUED BY THE SECOND RESPONDENT TO THE APPLICANT. Annexure A 7 A TRUE COPY OF THE JUDGMENT IN WA 146/2016 DATED 17.07.2017 OF THE HON'BLE HIGH COURT OF KERALA. Annexure R1(a) TRUE COPY OF THE G.O(P) NO.145/2020/FIN DATED 30/10/2020. Exhibit P 1 A TRUE COPY OF THE OA(EKM) NO. 1005/2020 Exhibit P2 Exhibit P3 Exhibit P 4 Exhibit P5 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 AND 2 DATED 29.03.2021. A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT DATED 23.12.2020 A TRUE COPY OF THE REPLY STATEMENT DATED 02.12.2020 FILED BY THE 4TH REPONDENT TRUE COPY OF THE ORDER IN OA (EKM) NO. 1005/2020 DATED 22.12.2022 OF THE KERALA ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH