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1996 DIGILAW 303 (KER)

Balakrishna Pillai v. Asst. Executive Engineer

1996-07-22

K.A.ABDUL GAFOOR

body1996
Judgment :- K.A. Abdul Gafoor, J. The issue raised in this Original Petition is whether a temporary Government servant appointed under R.9(a)(1) of the General Rules in Part II of the Kerala State and Subordinate Service Rules is entitled to pensionary benefits, including monthly pension, commuted value of pension and death cum retirement gratuity, on his retirement on superannuation at the age of 55 years, if he had more than 10 years of service to his credit. As per R.57 of Part III KSR persons with minimum service of 10 years service are entitled to pension. The petitioner was appointed on provisional basis under R.9(a)(1) of the general Rules in Part II of KS & SSR on 25.5.1982. His appointment was for a period of 179 days. He filed O.P. No. 8883/82 seeking the benefit of Chapter V-A of the Industrial Disputes Act. Based on the Full Bench decision in Umayammal v. State of Kerala (1982 KLT 829) his original Petition was disposed of with the direction that termination of his temporary service will have to be governed by Chapter V-A of the Industrial Disputes Act, except of course so far as may be necessary to accommodate those advised by the Public Service Commission. Ext. P1 is the judgment. Subsequent to the said Full Bench judgment, the Kerala Public Service Act was amended introducing S.(4), in 1984, to the effect that notwithstanding anything contained in Chapter V-A of the Industrial Disputes Act, 1947 or any other matter or in any judgment or order of Court, the appointment of any person to any public service or post in connection with the affairs of the State of Kerala and conditions of service including termination of service of persons so appointed shall be covered by the Public Service Act and the Rules made there under. In terms of that amendment subsequent to Ext. P1, the petitioner's service could have been terminated even without recourse to Chapter V-A of the Industrial Disputes Act. His appointment was to the post of Motor Mechanic. It is not known whether any incumbent had been advised by the Public Service Commission. Any how the petitioner continued in sendee uninterruptedly from 25.5.1982 onwards till 31,7.1994, when he attained the age of 55 years. Thus, he had to life credit more than 12 years service. His appointment was to the post of Motor Mechanic. It is not known whether any incumbent had been advised by the Public Service Commission. Any how the petitioner continued in sendee uninterruptedly from 25.5.1982 onwards till 31,7.1994, when he attained the age of 55 years. Thus, he had to life credit more than 12 years service. On its strength, the petitioner claims that he is entitled to pension in terms of Rule 57 Part II KSR. 2. Admittedly by him, he was not granted increments after the first 8 years of service. Obviously because of the subsequent amendment to R.9(a) of the General Rules. The petitioner was not given the time bound higher-grade promotion, as he is not entitled to a regular employment. The petitioner submits that disbursement of pensionary benefits is delayed and therefore, he is entitled to interest of pension amount. 3. Apart from claiming pensionary benefits, he also seek a direction to "approve the petitioner in the post of Motor Mechanic in the Ground Water Department with retrospective effect from 25.5.1982 and grant all consequential reliefs with arrears". He also seeks for a direction to give the benefit of pay revision with effect from 1.3.1992 and the benefit of "surrender leave salary for the un availed Earned-Leave as applicable to other regular employees. 4. Admittedly by the petitioner, he was appointed on temporary basis and continued as a temporary employee. Therefore, he is not entitled for any direction "to approve the petitioner in the post of Motor Mechanic in the Ground Water Department with retrospective effect from 25.5.1982". Even in terms of Ext. P1 judgment he is not entitled for regularisation. He was a temporary employee and he continued as a temporary employee till 31.7.1994. 5. The main claim urged by the petitioner is for grant of retirement benefits including pension and gratuity. For this purpose, he has cited a decision in A.P. Sreevasthava v. Union of India (JT 1995 (6) SC 665) and Yashwant Hari Katakkar v. Union of India and others (1995 AIR SCW 370). The first case concerns a temporary Government employee with more than 20 years of service. Interpreting R.56(J) (ii) of the Fundamental Rules, in para. For this purpose, he has cited a decision in A.P. Sreevasthava v. Union of India (JT 1995 (6) SC 665) and Yashwant Hari Katakkar v. Union of India and others (1995 AIR SCW 370). The first case concerns a temporary Government employee with more than 20 years of service. Interpreting R.56(J) (ii) of the Fundamental Rules, in para. 6 of the judgment it was held as follows: "In view of the legal position that an order of compulsory retirement is not a punishment and pension is a right of the employee for services rendered, we see no justification for denying such right to a temporary government servant merely on the ground that he was required to retire by the employer in exercise of power under R.560) of the Fundamental Rules. In our considered opinion, a temporary government servant would be entitled to pension after he has completed more than 20 years of service even if he is required to retire by the employer in exercise of power under R.560) of the Fundamental Rules". 6. The second decision cited by the counsel concerns entitlement of pension to a temporary/ quasi permanent Government servant with 181/2 years of service. A quasi-permanent service is in several respects a permanent service. A quasi-permanent employee is not a temporary employee in Central Civil Service. A quasi-permanent employee is always a regular recruit. In central service a regular recruit will be initially on a temporary basis and there after will be made quasi permanent and men permanent. In that case, the Supreme Court observed as follows: "There is nothing on the record to show as to why the appellant was not made permanent even when he had served the Government for 181/2 years. It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government. The appellant having served the Government for almost two decades it would be unfair to treat him temporary/quasi-permanent. Keeping in view, the facts and circumstances of this case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits. Keeping in view, the facts and circumstances of this case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits. We allow the appeal, set aside the judgment of the Tribunal and direct the respondents to treat the appellant as having been retired from service on March 7, 1980 after serving the Government for 181/2 years (more than 10 years as permanent service) and as such his case for grant of pension be finalised within 6 months from the receipt of this order. The appellant shall be entitled to all the arrears of pension from the date of retirement". That decision was with reference to the particular facts of the case and deeming him to be a permanent employee. 7. These two decisions do not attract to the facts of this case, because, here the petitioner was appointed totally on temporary basis and continued on temporary basis. His appointment was otherwise than in accordance with the Rules. He was not a regular appointee. The scheme of R.9 of the general rules in Part II of the KS & SR contemplates that a temporary appointee will not be a probationar and that he shall as soon as be replaced by a member of service. B an amendment temporary employees are denied increments. They will not be allowed to be continued beyond 180 days. They will be entitled only for a minimum pay as per R.9(a)(v) subject to the explanations in the proviso to that Rule. In the last proviso, it is made clear that the service of a provisional appointee shall not be regularised unless he satisfies the conditions prescribed in Sub Rule (b) of R.10. Thus, the petitioner was not at all entitled for any regularisation. 8. A Government employee on retirement on superannuation is entitled to the pensionary benefits in terms of the Rules contained in Part III of the Kerala Service Rules. The general scope and applicability of the Kerala Service Rules is dealt with in R.1,2 and 3 of Part I of that Rules. 8. A Government employee on retirement on superannuation is entitled to the pensionary benefits in terms of the Rules contained in Part III of the Kerala Service Rules. The general scope and applicability of the Kerala Service Rules is dealt with in R.1,2 and 3 of Part I of that Rules. The note added to R.3 Part IKSR with effect from 3.2.1987, reads as follows: "Note:- These rules as a whole shall not apply to the persons appointed to the service of the Government temporarily under R.9 of Part II of the Kerala State and Subordinate Service Rules, 1958, except to the extent specified by the Government." Interns of this provision, a temporary appointee cannot claim pension unless Government specify in that behalf. The counsel for the petitioner could not bring to my notice any specific order conferring the benefit of pension to temporary employees appointed under R.9 mentioned in the said note. At the same time, R.4 of Part III KSR concerning pension specifically provides mat no claim to pension is admitted when an employee is appointed for limited time only. The petitioner's appointment was for a limited time namely, 180 days. He happened to be continued in service on the strength of Ext. P1 judgment. Inspite of Ext. P1 judgment, also in terms of S.4 of the Public Service Act introduced later, the petitioner's service could have been terminated, but it was not done: So in terms of R.4(a) of Part III KSR, as the petitioner was appointed for a limited term only, he cannot claim pension, even though he had continued beyond that time. As per Clause (c) of R.4, when a person is employed temporarily on monthly wages also claim for pension cannot be admitted. The petitioner was admittedly a temporary person paid on monthly basis. Thus, in terms of that clause as well, the petitioner's claim is inadmissible. Thus, there is specific provision excluding temporary appointees from the purview of Pension Rules. Over and above that, the note under R.3 Part IKSR also exclude temporary employees from the purview of the application of the Kerala Service Rules. This is except to the extention specified by the Government. Government have not made any specification. On the other hand, the provisions in Rule 4 in Part III of the KSR are the specification excluding them from the purview of the Pension Rules. This is except to the extention specified by the Government. Government have not made any specification. On the other hand, the provisions in Rule 4 in Part III of the KSR are the specification excluding them from the purview of the Pension Rules. In such circumstances, the petitioner cannot get a direction for grant of retirement benefits in the light of the specific provisions contained in KSR. The decisions cited by the Petitioner cannot be relied on to grant him any pension considering his long temporary service. In the above circumstances, the Original Petition fails and it is dismissed.