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STATE OF KERALA v. M. MOHAMMED HANEEFA - WA No. 1879 of 2004  RD-KL 97 (2 August 2005)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWA No. 1879 of 2004
1. STATE OF KERALA,
2. DEPUTY DIRECTOR OF EDUCATION,
1. M.MOHAMMED HANEEFA,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.S.MOHANDAS
The Hon'ble MR. Justice K.A.ABDUL GAFOOR The Hon'ble MRS. Justice K.HEMA
Dated : 02/08/2005
O R D E R.SP 2 C.R
K.A.ABDUL GAFOOR & K.HEMA, JJ.j W.A.No.1879 of 2004 j j
Dated this the 2nd August, 2005j
Ej ((HDR 0 # WA.1879 OF 2004 )) .HE 1
Abdul Gafoor, J.State is aggrieved by the impugned judgment wherein it is directed to count the untrained service put in by the respondent-writ petitioner before commencement of his continuous qualifying service with effect from 15.7.1977. He had been initially appointed by the Manager of an Aided School on 8.8.1973. At that time he did not possess the training qualification. Therefore on the close of every academic year he was sent out and reappointed again on the commencement of the following academic year, until 14.7.1976 when he was deputed for B.Ed. course which he completed on 31.3.1977. Thereafter he was regularly appointed, as having passed B.Ed. degree, on 15.7.1977. He retired from service on 31.3.1999. While reckoning the qualified service for the purpose of his retiral benefits including pension, the service put in by him until 15.7.1977 including the period he spent for undergoing B.Ed. degree was not reckoned towards the qualifying service to compute his pension. Therefore he approached this Court.
2. The learned Single Judge found that he had been discriminated, as compared to the person dealt with in Exhibit P11. Therefore, it was directed that the short spells of services put in by him shall also be counted towards qualifying service for pension.
3. It is contended by the learned Government Pleader that the case considered in Exhibit P11 cannot be equated with that of the petitioner to contend that he had been discriminated. The incumbent covered by Exhibit P11 was a temporary appointee. The petitioner was always an aided school teacher. Therefore, Exhibit P11 cannot be cited to raise the contention of discrimination, it is contended. It is further submitted that Rule 31, Part-III K.S.R. much relied on by the petitioner, is not applicable in his case. In this regard Rule 10 Chapter XXVII-A is much relied on. The said Rule provides that in reckoning length of service for computation of pension and gratuity, continuous service alone shall be reckoned as qualifying service.
4. Admittedly, the writ petitioner-first respondent was appointed after 1.10.1964. He is thus governed by the Conduct Rules contained in Chapter XIV-(C) KER. When he is thus governed by Chapter XIV-(C) KER, as far as pension and other retiral benefits are concerned, he will be governed by Chapter XXVII-B KER. Because Rule 2 thereof specifically provides that rules in Chapter XXVII-B applies to the teachers to whom the rules in Chapter XIV-C apply. So Rule 10 Chapter XXVII-A cannot have any application in his case. It will apply only to those teachers who are governed by the Rules of Chapter XIV-B KER.
5. So far as the teachers governed by Chapter
XXVII-B KER are concerned, going by Rule 3 thereof,
stipulations made in Part III K.S.R. as amended from
time to time shall apply for the purpose of grant
retiral benefits. Rule 10 Part III KSR provides that the
service of an employee does not qualify for
unless he is appointed, his duties regulated, and paid by
the Government or under conditions determined
Government. Admittedly, the petitioner has been duly
appointed, during the following periods:
(i) 8.8.1973 to 29.3.1974 (ii) 16.6.1974 to 31.3.1975 (iii) 16.6.1975 to 31.3.1976 (iv) 10.6.1976 to 14.7.1976
(v) 16.7.1976 to 31.3.1977 (deputed for B.Ed. training). These appointments have been duly approved. Therefore, there was due appointment in his case. He had performed his duty as a teacher and he had been paid salary out of Government fund during the said period. Therefore, going by Rule 10 Part III KSR the said periods of services have to be treated as qualifying service for the purpose of computing pension. Of course, there were breaks in such service. It is also regulated by Rule 31 Part III KSR in the following manner: .SP 1
"Interruptions in the service of an i employee will count for pension provided it is not specifically laid down in these rules or otherwise ordered by competent authority and recorded accordingly in the Service Book." (Emphasis applied) .SP 2 This will be qualified by Note 3 thereto which reads as follows: .SP 1 "In cases where the period of an
i interruption in service exceeds one year, the benefit of reckoning the period of such interruption in service shall be restricted to the periods he was actually in service prior to the date of the interruption." .SP 2 Note 3 thus clarifies that when the break in service is more than one year, the break will not be counted for qualifying service, but only the period spent on duty before such break. When the Rule is understood in this way, it is clear that small breaks in service of less than one year shall be ignored. In such circumstances, though there arises no discrimination in this case as found in the impugned judgment, the learned Single Judge was perfectly justified in directing to reckon his short spells of services towards qualifying service for computing retiral benefits including pension. The Writ Appeal fails and is dismissed. The respondents shall pass appropriate orders within three months from the date of receipt of a copy of this judgment.
K.A.ABDUL GAFOOR, JUDGE
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