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T.P.CLARA v. STATE OF KERALA - OP No. 28520 of 1999(T)  RD-KL 1365 (17 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMOP No. 28520 of 1999(T)
1. STATE OF KERALA
For Petitioner :SRI.JOHN JOSEPH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
O R D E R
S. SIRI JAGAN, J.```````````````````````````````````````````````````` O.P. No. 28520 OF 1999 T ````````````````````````````````````````````````````
Dated this the 17th day of January, 2007
J U D G M E N T
The petitioner was a provisional female warder of Sub Jail, Ernakulam on daily wages from 25.9.1956 to 6.5.1998. She earlier approached this court for regularisation of her provisional service. This court, by Ext.P1 judgment, directed the Government to regularise the service of the petitioner as female warder from the date of her first engagement. Since by that time the petitioner was past the age of superannuation, this court also directed that thereafter the pensionary benefits also must be given to the petitioner on the basis that she retired as female warder on a regular basis. The Government did not comply with the judgment immediately even after obtaining extension of time to comply with the same. At last, pursuant to C.C.C. No.468/99, orders were passed regularising her service. Even in the contempt case, she had a case that the judgment has not been fully complied with. However, the contempt case was closed reserving the petitioner's right to seek appropriate remedies against the orders passed. The petitioner's present claim is that since by Ext.P1 judgment her pensionary benefits must be given on the basis that she retired as a female warder on a regular basis, she should be given arrears of pension from 1.6.1991 till 5.5.1998. This is because he continued on provisional basis although she had attained age of superannuation on 31.5.1991. She also claims interest on the arrears of pension. OP.28520/99 2
2. The learned Government Pleader points out that admittedly the petitioner had worked as a provisional employee from 25.9.1956 to 6.5.1998. If she had been regularised in service prior to 1991, she would have retired from service on 31.5.1991, since she attained the age of 55 on that date. But she continued to work on provisional basis till 5.5.1998. Therefore, if the petitioner has to be given pension for the period from 1.6.1991 to 5.5.1998 she would have to repay the wages received by her during that period as a provisional employee. In the above circumstances, the learned Government Pleader submits that the contention of the petitioner even if accepted would work out to the detriment of the petitioner in so far as the wages received by her would be higher than the pension admissible to her during for the said period.
3. I have considered the rival contentions in detail.
4. Admittedly, the petitioner continued to work on provisional basis from 25.9.1956 to 5.5.1998. Ext.P1 judgment directing regularisation of her service was passed only on 22.7.1998. If the petitioner were to be regularised in service, she would naturally have retired on 31.5.1991. However, she continued to work on provisional basis till 5.5.1998 drawing daily wages during the said period. Therefore, it is abundantly clear that the petitioner cannot claim pension for the period from 1.6.1991 till 5.5.1998 and at the same time, keep the daily wages received by her for working during that period. In the nature of the circumstances obtaining the petitioner also cannot be given an extended date of retirement also. Whether she had retired on 31.5.1991 or 5.5.1998 there would not be any change in her OP.28520/99 3 pension since she had put in sufficient service to get maximum pension even as on 31.5.1991 itself. Therefore, the further period put in would not make any difference to her amounts of pension. In the above circumstances, I pass the following orders: The petitioner would be deemed to have retired from service on 31.5.1991. If the pension due to her for the period from 1.6.1991 to 5.5.1998 is greater than the daily wages paid to her during the said period, she would be paid the difference between the same as the balance pension. However, if the daily wage paid to her is greater than the pension due to her, the same should not be recovered from the petitioner since she had actually worked for that period. However, she shall not be eligible to draw pension also for that period. From 6.5.1998 she would be continued to be paid normal pension admissible to her as if she retired on 31.5.1991. Formal orders in this regard shall be passed within two months from the date of receipt of a copy of this judgment. The original petition is disposed of as above.
(S. SIRI JAGAN, JUDGE)aks
S. SIRI JAGAN , J.OP No.28520/99 T
J U D G M E N T
17th January, 2007
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