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1993 DIGILAW 479 (KER)

K. Raghavan Nair v. State

1993-10-14

K.SREEDHARAN, MAMIDANA JAGANNADHA RAO

body1993
JUDGMENT M. Jagannadha Rao, C.J. 1. These two writ petitions have been referred to a Division Bench by a learned single Judge of this Court on the ground that an earlier Division Bench decision reported in Vasu Pillai v. State of Kerala ( 1986 KLT 198 ) requires reconsideration inasmuch in the said decision, reference has been made only to Kerala Service Rules (hereinafter after referred to as 'KSR') Part. 3 R.14A, but no reference has been made to R.2 Part.1 of KSR. The matter relates to pension payable to employees, who had, at some point in their earliest career, worked as part time contingent employees and later as full time contingent employees before being regularly absorbed in some ether cadre. The employees claim the benefit of R.14A of Part.3 of KSR and want to count part or whole of the period during which they worked as part time contingent employees or full time contingent employees as provided in R.14A of Part.3. This Court accepted such a contention in Vasu Pillai's case ( 1986 KLT 198 ). But the learned single Judge who referred these matters to the Division Bench was of the view that in Vasu Pillai's Case ( 1986 KLT 198 ), the attention of the Court was not invited to R.2(ii) of Part.1 of KSR which states that the 'Kerala Service Rules shall apply to every person in the whole time employment of the Government (other than a person so employed in the contingent or work establishment).' The learned Judge, therefore, thought that in the case of contingent employees, they are excluded from the purview of Part.3 of KSR because according to learned Judge, the provisions in R.2(ii) of Part T of KSR over rides the provision in R.14A of Part.3. According to the learned Judge, when the Kerala Service Rules are to apply only to persons in whole time employment of the government, other than a person so employed in the contingent or work establishment, there is no question of applying R.14A of Part.3 to contingent employees. That is the point which has now been referred to the Division Bench. The learned Judge has, in this context, referred to two other decisions of this Court rendered by Division Benches in Thankamma v. Dist. That is the point which has now been referred to the Division Bench. The learned Judge has, in this context, referred to two other decisions of this Court rendered by Division Benches in Thankamma v. Dist. Medical Officer ( 1986 KLT 1170 ) and Kochu Kunju v. State of Kerala ( 1986 KLT 1281 ) wherein while dealing that R.2 of Part.1 of Chap.1 KSR, it has been held that the rule therein in question did not apply to contingent employees at all whether they were whole time or part time. In those cases, the Court was considering R.60 (b) of Part.1 of KSR. According to the learned Judge, who referred these two O. Ps. to Division Bench, the view taken by this Court in the two last mentioned cases is contrary to the view taken in Vasu Pillai's case ( 1986 KLT 198 ). Therefore, the learned Judge referred the matter to a Division Bench. 2. We have heard learned counsel for the writ petitioners and learned Government Pleader. We are of the view that the decision in Vasu Pillai's case ( 1986 KLT 198 ) is correct and does not require reconsideration even on the basis of R.2 of Part.1 KSR or what is held in the subsequent two cases in Thankamma's case ( 1986 KLT 1170 ) and Kochu kunju's case ( 1986 KLT 1281 ). 3. Before going into these aspects, it will be worthwhile to refer to a few facts relevant in both the cases. 4. In O.P. 12836 of 1992 petitioner had served as part time contingent menial from 20-7-1962 to 4-1-1977 and as a peon (full time) from 5-1-1977 to 30-6-1992. These facts are available from the statement filed by the second respondent. It further stated that the petitioner therein has got 14 years 5 months and 16 days of part time contingent service and 15 years 5 months and 26 days of full time service. It is stated that his full time service alone has been reckoned for sanctioning pensionary benefits and that his request for reckoning 50% of the part time service for pensionary benefits was rejected. It is stated that the part time contingent service was not taken into account as 'there was no authority for the same'. It is stated that his full time service alone has been reckoned for sanctioning pensionary benefits and that his request for reckoning 50% of the part time service for pensionary benefits was rejected. It is stated that the part time contingent service was not taken into account as 'there was no authority for the same'. Reliance is placed upon R.14A of Part.3 to say that contingent employees absorbed in regular establishment would be allowed to count 50% of part time contingent service. According to the statement, in the normal course, service means full time service and the request of the writ petitioner to count 50% of the part time contingent service was not considered. 5. In the second writ petition, O. P. 16418 of 1992, the writ petitioner worked as a part time contingent menial from 1-2-1949 to 5-6-1972. On 5-6-1972, he was promoted as a full time contingent menial and he retired from service on 1-11-1981. Thus, he had served in the Education Department for 23 years 4 months and 6 days as part time contingent menial and 9 years 4 months and 11 days as full time contingent menial. 6. The question before us is as to whether these writ petitioners are entitled to count 50% of their part time contingent service for computing pension. 7. Rule 14A, which is in Part.3 of the KSR, reads as follows: "14 A : Contingent employees absorbed in regular establishment will be allowed to count 50 per cent of the contingency service for purposes of pension; Provided that this rule will apply to cases of retirements from 2-9-1957 only (irrespective of the date of absorption of such employees into regular establishment). In cases of retirements on or after 1-4-68 the entire full time contingency service will count for pension. Explanation: - Periods of officiating/temporary service in regular establishment and/or periods of work establishment service interpose between periods of contingency service will be treated as contingency service." On a plain reading of R.14A, it is clear that contingent employees if they are absorbed later into regular establishment, they will be entitled to count 50% of the anterior contingency service for purposes of pension. The above said provision will apply only to persons who satisfy the requirement and who retired on or after 2-9-1957. The above said provision will apply only to persons who satisfy the requirement and who retired on or after 2-9-1957. So far as those who retired on or after 1-4-1968 are concerned, it is clearly stated that the entire full time contingency service will count for pension. From a reading of the proviso and the last clause together, the position will be as follows: In case of those who retired on or after 2-9-1957 and before 1-4-1968, 50% of the contingency service is to be counted for pension whether such contingency service is part time or full time. But, in case of persons retiring on or after 1-4-1968, 50% of the part time contingent service and 100% of the full time contingent service will be counted for pension. 8. The question is whether the above said provision in R.14A of Part.3 is, in any way, repugnant to R.2 of Part.1, Chap.1 of KSR. We shall, therefore, refer to R.2, in so far as it is relevant for our purpose: "2. Subject to the provisions of R.3 -- (i) the rules in Part.2 relating to travelling allowance shall apply to every person in the whole time employment of the Government (other than a person so employed in the contingent or work establishment) : (ii) the remaining rules shall apply to every person in the whole time employment of the Government (other than a person so employed in the contingent or work establishment) : -....................................................................................." From the above said provisions of R.2, it is clear that so far as travelling allowance is concerned, rules in Part.2 shall apply only to those in whole time employment of the Government and not persons so employed in the contingent or work establishment. As we are not concerned here with travelling allowance, the said clause of R.2 is not relevant. So far as sub clause (ii) is concerned, it states that the remaining rules, (namely, the rules other than the travelling allowance, rules in Part.2) shall apply to other persons in the whole time employment of the Government other than a person so employed in the contingent or work establishment. It may, initially, appear that clause (ii) of R.2 is all pervading and may even affect the special provisions contained in R.14A of Part.3 KSR. In our view, such an impression cannot be the correct one. It may, initially, appear that clause (ii) of R.2 is all pervading and may even affect the special provisions contained in R.14A of Part.3 KSR. In our view, such an impression cannot be the correct one. In our view, R.2 of Part.1 of KSR has to be read harmoniously with R.14A of Part.3. When R.34A of Part.3 itself specifically deals with the question of the service of "contingent" employees in the counting of the service of such employees for purposes of pension, it would be difficult for us to say that that Rule is repugnant to R.2(ii) of Part.1 KSR. These Rules have to be read harmoniously. Therefore, R.14A of Part.3 must be given its limited sphere of operation and wherever that Rule applies, R.2 (ii) of Part.1 cannot apply. If the opposite view is to be taken then R.14A has to be treated as repugnant and would be of no effect and that would be contrary to the intention of the rule making authority. Further, R.2 opens with the words 'subject to the provisions of R.3'. R.3 reads, in so far as relevant, as follows: "3. (i) These rules shall not apply to. (a) Persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force; (b) ...................................................................................." 9. In our view, the "special provision'' mentioned in R.3(i)(a) of Part.1 KSR is referable even to R.14A of Part.3. It is true that the words are "special provision is made by or under any law for the time being in force'', but that clause is not confined to provision made in any other law, bat also includes provision made in these very rules namely, KSR. 10. For the aforesaid reasons, we hold that the decision in Vasu Pillai's case, 1986 KLT 198 and the interpretation of R.14A of Part.3 therein is correct and does not require reconsideration in the light of R.2 of Part.1 KSR, So far as the decisions in Thankamma's case, 1986 KLT 1170 and Kochu Kunju's case, 1986 KLT 1281 are concerned, they deal wish R.2 as such vis a vis R.60(b) of Part.1 and have nothing to do with R.14 A of Part.3 KSR. Therefore, those decisions hold the filed in regard to R.60(b) while Vasu Pillai's case, 1986 KLT 198 continues to hold the field so far as pension of contingent employees under R.14A of Part.3 KSR is concerned. 11. For the aforesaid reasons, both the Writ petitions are allowed. There shall be a direction to the respondents to compute the pension payable to the two writ petitioners in accordance with the principles laid down in Vasu Pillai's case, 186 KLT 198, namely, by counting 50% of the part time contingency service also in addition to the other full time service.