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2002 DIGILAW 206 (KER)

M. Thomas v. The Deputy Commissioner

2002-03-21

B.N.SRIKRISHNA, G.SIVARAJAN, M.RAMACHANDRAN

body2002
Judgment :- Srikrishna, C.J. These appeals have been referred to this Full Bench by the Division Bench (K.S. Radhakrishnan and G. Sasidharan, JJ.) on a substantial question of law as the Division Bench felt itself unable to accept the views expressed by another Division Bench in Alavi v. State of Kerala (ILR 1999 (2) Kerala 174. 2. Rule 60 (a) of Part I of the Kerala Service Rules (K.S.R.) provides that the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years, though there is a provision for retention beyond that date under special circumstances, with which are not concerned. Rule 60(b) of Part I K.S.R. however, makes an exception with regard to a particular category of officers and reads as under: “60 (b) officers in the Last Grade Service on 7th April, 1970 will retire on the afternoon of last day of the month in which they attain the age of 60 years provided that this benefit will be available to them only as long as they continue to be in the Last Grade Service as defined in Rule 12 (16A). Note:- Ex-servicemen who were in armed force prior to the 7th April, 1970 and who have been appointed as Last Grade Employees in the last Grade Service in the State after the 7th April 1970 will also be eligible for the benefit of the above rule provided they continue to be in the last Grade Service.” 3. The reason why rule 60(b) of part I K.S.R. became necessary has been explained by a judgment of this court in Jalaludheen v. State of Kerala (1999 (2) K.L.T.511). Prior to 7.4.1970, government servants in the Last Grade Service could continue in service till they attained the age of 60. This condition of service was changed with effect from 7.4.1970 and those in Last Grade Service were also brought on par with other government servants as a result of which they too had to retire at the age of 55. Rule 60(b) of Part I K.S.R. was intended to ensure that the condition of service as to age of retirement, available to those who were in service immediately prior to 7.4.1970, was not altered to their prejudice. Rule 60(b) of Part I K.S.R. was intended to ensure that the condition of service as to age of retirement, available to those who were in service immediately prior to 7.4.1970, was not altered to their prejudice. It is for this reason that rule 60 (b) provides that officers working in the Last Grade Service on 7th April, 1970 would retire only upon reaching the age of 60. This obviously is a special benefit conferred on a limited class of employees who were in service on 7.4.1970. 4. Several decisions were rendered by this court on the issue as to whether, for the purpose of qualifying for the benefit under rule 60(b) of Part I K.S.R., the government servants had to be in permanent or regularized service or whether the said benefit would be available even to employees who were provisionally/temporarily in service. In a series of judgments, to which we shall refer, the view was expressed that the service on 7.4.1970, for getting the benefit under rule 60(b) of Part I K.S.R., need not be permanent service and even those who were working as last grade officers in temporary/provisional service were also eligible to the said benefit. 5. In Chellappan Pillai v. State of Kerala (1982 K.L.T.638) the interpretation to be given to the word ‘service’ appearing in rule 60(b) of Part I K.S.R. was considered. A learned Single Judge of this court noticed that the word ‘service had not been defined in the Kerala Service Rules and considered the question whether the ‘service’ mentioned in rule 60(b) includes temporary service also and whether rule 60(b) would exclude application to temporary service. The learned Single Judge relied on two reported judgments of Single Judges in Gopalan Nair v. Regional Deputy Director of Public Instruction (1980 K.L.T.845) and in Moosa v. A.E.O. (1975 K.L.T. (SN) 34 and a Full Bench judgment of this court in Kunhikrishnan Nambiar v. State of Kerala (1964 K.L.T. 704) to come to the conclusion that there was no warrant for excluding temporary service from the benefit of rule 60(b). It would suffice for our purpose to refer to the Full Bench judgment as it throws sufficient light on the issue. 6. In Kunhikrishnan Nambiar (supra) the Full Bench was concerned with the interpretation of regulations 4 and 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. It would suffice for our purpose to refer to the Full Bench judgment as it throws sufficient light on the issue. 6. In Kunhikrishnan Nambiar (supra) the Full Bench was concerned with the interpretation of regulations 4 and 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. The question before the Full Bench was whether the temporary service could be reckoned in calculating the qualifying service for the purpose of the said Regulations. In this connection, after a survey of the necessary rules and the legal position, the Full Bench held that the word ‘service’ by itself, without any qualification, would ordinarily comprise all ‘service’ and rejected the contention of the State that for the purpose of the Regulations before it temporary service could not be reckoned. 7. In Govindan Nair v. State of Kerala (1983 K.L.T.357) another learned Single Judge also took the view that, on a plain reading of rule 60(b), it had to be held that the service, provisional or permanent, rendered during the relevant period would be sufficient to attract the provisions. In Bhaskaran v. State of Kerala (1981 K.L.T.633) another learned Single Judge on a survey of the judgment in Kunhikrishnan Nambiar (supra) and other judgments referred to earlier, held thus: “The above authorities, with respect lay down the correct law. The word ‘service’ without any qualification means service of any kind. Such service has to be taken into account for purpose of qualification and only for that purpose.” 8. In an unreported judgment in O.P.No.10587 of 1997 dated 3rd October, 1997 (per Justice K.G. Balakrishnan, as he then was, and Justice B.N. Patnaik), the Division Bench held that, for the purpose of rule 60 (b) of Part I K.S.R., there was no question of denying the benefit to an employee merely on the ground that he was in provisional/temporary service as on 7.4.1970. 9. The Division Bench felt that there was conflict between this settled position of law and the view expressed by the Division Bench in Alavi’s case (supra). Upon a careful reading of this judgment in Alavi (supra), we are of the view that there is no such conflict. 9. The Division Bench felt that there was conflict between this settled position of law and the view expressed by the Division Bench in Alavi’s case (supra). Upon a careful reading of this judgment in Alavi (supra), we are of the view that there is no such conflict. In Alavi’s case (supra) it was contended before the Division Bench that the last grade officer who was the appellate before the court was purely a temporary employee under rule 9 (a) (i) of the Kerala State and Subordinate Service Rules (K.S. & S.S.R.) and, hence, not entitled to the benefit of rule 60 (b) of Part I K.S.R. The Division Bench relied upon a Note appended at the end of rule 3 of Part I K.S.R. which reads: “Note:- These rules as a whole shall not apply to the persons appointed to the service of the Government temporarily under rule 9 of Part II of the Kerala State and Subordinate Service Rules, 1958, except to the extent specified by the Government.” Relying on this Note, the Division Bench accepted the contention of the State Government that the appellant before it was not entitled to the benefit of rule 60 (b) as, at the relevant time, he was working on provisional basis and not in regular service. This becomes clear from the observations of the Division Bench in paragraphs 4 and 5 of the judgment. At the end of paragraph 4 of the judgment, the Division Bench said: “We have already extracted the Note to rule 3 of Part I of the Rules. The said rules provides that the benefit of rule 60 (b) shall not apply to the persons appointed to the service of the Government temporarily under rule 9 (a) (i) of the K.S. and S.S.R.” Again, in paragraph 5, the Division Bench again observed: “5. Therefore, we are of the opinion that provisional appointments made through Employment Exchange cannot be reckoned for the purpose of granting benefits provided under rule 60 (b) of Part I of the Rules (in view of the Note to rule 3 part I of the Rules. (emphasis ours) 10. Therefore, we are of the opinion that provisional appointments made through Employment Exchange cannot be reckoned for the purpose of granting benefits provided under rule 60 (b) of Part I of the Rules (in view of the Note to rule 3 part I of the Rules. (emphasis ours) 10. The ratio of Alavi’s case (supra) is that temporary employees, who were engaged under rule 9 (a) (i) of the K.S. & S.S.R., were deprived of benefits under Part I K.S.R. by reason of the Note appended at the end of rule 3 Part I K.S.R., as quoted above. 11. It appears that the present appellants before us were last grade officers employed at the time when the 1966 special Rules were in force. Rule 3 of the special Rules for the Kerala Last Grade Service specifically provided that Part II of the Kerala State and Subordinate Service Rules other than rules 3, 4, 14, 15, 16 and 17 did not apply to their service. In other words, there was no question of their being covered by rule 9(a)(i) of K.S. & S.S.R Because of this reason, temporary appointments were made under rule 6 of the Special rules which had the peculiar feature of not prescribing any maximum period of temporary service, except that the period would end when a person qualified under the rules was available for appointment. Contrasting rule 6 of the Special Rules with rule 9 (a) (i) of K.S. & S.S.R. shows that under rule 9 (a) (i) provisional appointments cannot exceed a period of 179 days or the date on which the qualified candidate is available for appointment, whichever is earlier. It appears to us that the appellants before us were, therefore, appointed as temporary employees in exercise of the powers under rule 6 of the Special Rules and not under rule 9 (a) (i) of Part II of K.S. & S.S.R. In one of the cases (W.A.No.595 of 2001) we were shown the letter of appointment dated 11.2.1969 (Ext.P5). This letter merely states that N. Velayudhan and Maniyammal P.P.M.K. introduced by the Employment Exchange were temporarily appointed as Dhobies. The order of appointment issued at Ext.P6 also reveals this fact. This letter merely states that N. Velayudhan and Maniyammal P.P.M.K. introduced by the Employment Exchange were temporarily appointed as Dhobies. The order of appointment issued at Ext.P6 also reveals this fact. Strangely, however, the order of regularisation, which is at Ext.P1, erroneously states that “the said individuals who were recruited through the Employment Exchange and appointed as per Rule 9(a)(i) of General Rules are regularized with effect from 17.1.1974”. This is obviously a mistake. A reference to the rules indicates that, in the year 1974, when these persons were appointed, the applicable rules were the Special Rules for the Kerala Last Grade Service which specifically excluded application of rule 9 by virtue of rule 3 of the Special Rules. Temporary appointments of these persons could, therefore, be made only under rule 6 of the Special Rules for the kerala last Grade Service. The authority issuing Ext.P1 was obviously not alive of this distinction. 12. In our view, none of the appellants could be denied the benefit of rule 60(b) of Part I K.S.R. by invoking the Note appended at the end of rule 3 of Part I K.S.R. The Note does not enter into the picture at all as far as these appellants are concerned. This we say, for another reason also, namely, that the Note itself was introduced in the year 1987, whereas the Special Rules were applicable from the year 1966. The Note was introduced at the end of rule 3 of Part I K.S.R. by a Government Order dated 22.1.1987 published in the official gazette on 3.2.1987. The Special rules were subsequently amended some time in 1984 by a notification dated 22.3.1984 by which the exclusion in rule 3 of the Special Rules was extended to rule 9 of Part II of K.S. & S.S.R. 13. In the premises, we are of the view that all the judgments which have held the field have laid down correctly that the word ‘service’ used in rule 60(b) of Part I K.S.R. is not restricted in operation to permanent or regularized service. In the premises, we are of the view that all the judgments which have held the field have laid down correctly that the word ‘service’ used in rule 60(b) of Part I K.S.R. is not restricted in operation to permanent or regularized service. The view that was consistently taken by this court in the several judgments noticed by us is that a last grade officer, who was in service 7.4.1970, irrespective of what the kind of service he was in, would be entitled to the benefit of rule 60 (b) of Part I K.S.R. We are also of the view that the judgment in Alavi’s case (supra) does not take any contrary position. The judgment in Alavi’s case (supra) merely considered a special situation where the Note applies to the concerned employee. Of course, if the Note to rule 3 of Part I K.S.R. applies, obviously the benefit under rule 60(b) of Part I K.S.R. would not be available. If the Note does not apply, rule 60(b) of Part I K.S.R. will be applicable as consistently held by this court. 14. The learned Government Pleader, however, strenuously contended that Alavi’s case (supra) proceeds and holds not only on the basis of the existence of Note to rule 3 of Part I K.S.R., but also on the general principle that ‘service’ as used in rule 60(b) of part I K.S.R. would include only permanent or regularized service. We are unable to accept this contention. The learned Government Pleader relied on a judgment of a Division Bench of this court in State of Kerala & Others v. Joseph (1999 (2) K.L.J 190) to support his contention. This was a case in which an employee was recruited on 5.2.1968 by a committee of officers of the Medical College and was working as Cleaner, without such a post having been created by the Government. Subsequently, such a post was created much later on 25.6.1977 and the same person was taken in Government service and regularized. When the question of the benefit under rule 60 (b) of Part I K.S.R. arose, Government refused to give him the benefit on the ground that he was not in government service at all on 7.4.1970. This contention of the Government was upheld by the Division Bench. When the question of the benefit under rule 60 (b) of Part I K.S.R. arose, Government refused to give him the benefit on the ground that he was not in government service at all on 7.4.1970. This contention of the Government was upheld by the Division Bench. The Division Bench took the view that, merely because some officers of the Medical College had appointed a person to do cleaning work, he did not get into the government service at all which he did only on 25.6.1977. Consequently, he was not entitled to any benefit under rule 60(b) of Part I K.S.R. as he was not in service as on 7.4.1970. This decision does not take any contrary view. 15. In the result, we see no conflict in the view expressed in the judgment in Alavi’s case (supra as Alavi’s case is entirely distinguishable on facts. The correct position in law which has consistently held the filed and with which we agree is that, for claiming the benefit under rule 60 (b) of Part I K.S.R. it is not necessary that the officers in the Last Grade Service should have been in permanent or regularized service on 7.4.1970. If, however, the situation is one covered by the Note appended to rule 3 of Part I K.S.R., then such a person is not entitled to the benefit of section 60(b). The reference is accordingly answered. Registry is directed to place the appeals before the appropriate Division Bench for disposal in accordance with the law laid down.