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2006 DIGILAW 604 (KER)

K. v. Abdul Kader VS The Accounts Officer (ESTT)

2006-09-20

K.M.JOSEPH

body2006
Judgment :- Petitioner joined as part time contingent sweeper in the Government Mopila School, Kunhimangalam, Kannur District on 10.10.1964. On 12.2.1969 he was relieved from the said School. Thereafter, on 13.2.1969 he entered the service of the erstwhile Public health engineering Department as a Peon advised by Public Service Commission. Thereafter, he was absorbed by the Kerala Water authority and he retired on superannuation on 31.10.2002. His complaint is that though he is entitled to count fifty per cent of the part time contingent service which he rendered while he worked in the aforesaid School as qualifying service for pension, he is denied the said benefit. He made Ext.P1 representation which was rejected by Ext.P3. It is the case of the petitioner that even though the second respondent recommended to compute fifty per cent of the part time contingent service of petitioner as qualifying service and to revise his pensionary claim vide Ext.P4, that was rejected by third respondent by Ext.P5. Ext.P7 is a letter addressed by third respondent to the Chief Minister’s Public Grievance Cell stating that the petitioner’s claim cannot be considered for the reason that part time contingent service rendered by petitioner was in other Departments. Petitioner challenges Exts.P3, P5 and P7. He relies on Ext.P8 Government Order. Therein, it is stated that in all cases of absorption into regular service from part time contingency service, Rule 14A Part III Kerala Service Rules shall be followed for calculation of qualifying service for pension. He would contend that there is no basis to deny the benefit of Rue 14A Part III KSR. It is his case that fifty per cent of his part time contingent service has to be included for counting qualifying service for pension. In fact in the decision in Vasu Pillai v. State of Kerala (1986 KLT 198), a Division Bench of this Court has taken the following stand: “The expression “contingency service” is the genus and the expressions “part-time contingency” and “full-time contingency” are species belonging to this genus. It therefore follows that when the rule-making authority has used the expression “contingency service”, it conveys that it refers to both part-time and full-time contingency service. It therefore follows that when the rule-making authority has used the expression “contingency service”, it conveys that it refers to both part-time and full-time contingency service. The fact that in the last portion of rule 14-A the rule-making authority has used the expression “full time contingency service” makes it clear that the rule making authority would have used the expression “full-time” in the first part of the rule if the intention of the rule making authority was to exclude part-time contingency service for the purpose of determining pension. As the expression “full-time contingency service” has not been used in the first part of rule 14-A and the wider expression “contingency service” has been used it makes it clear that the expression “contingency service” includes part-time contingency service as well.” 2. Learned standing appearing for the respondent Water authority, on the other hand, would contend that the petitioner has not made out a case at all, as a perusal of the Rule would make it clear that an employee entitles to count contingency service, only when he is absorbed into the service. Rule 14A part III KSR is extracted hereunder: “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.” 3. I am inclined to agree with the contention of learned counsel for respondents 1 to 3. Rule14A clearly provides for the contingency when an employee is absorbed from the contingency service to the regular service of the same employer. In the facts of this case, it cannot be in dispute that the petitioner was not absorbed into the regular service of the P.H. Engineering Department. Obviously, he cannot have a case that he was absorbed into the regular service of the Kerala Water authority. Apparently, petitioner resigned from the service in the School in 1969. Thereafter, he was recruited directly and he was appointed pursuant to the advice of the Public Service Commission. Obviously, he cannot have a case that he was absorbed into the regular service of the Kerala Water authority. Apparently, petitioner resigned from the service in the School in 1969. Thereafter, he was recruited directly and he was appointed pursuant to the advice of the Public Service Commission. By no stretch of imagination, can this be found to be absorption in service within the meaning of Rule 14A Part III KSR. In such circumstances, the Writ Petition fails and it is dismissed.