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2015 DIGILAW 919 (KER)

K. L. VERONICA v. STATE OF KERALA

2015-07-17

A.K.JAYASANKARAN NAMBIAR

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JUDGMENT A.K. JAYASANKARAN NAMBIAR, J. 1. The petitioner worked as a primary School teacher at the Vanivilasam Higher Secondary School, during the period from 18.06.1951 to 01.06.1955. Thereafter, she worked as Christuraja L.P. School, Calicut, between 12.11.1956 and 31.08.1961. Still later, she worked at St. Michael's Girls High School, Calicut between 01.09.1961 and 17.06.1967. Thereafter, she proceeded on leave without allowance during the period from 18.06.1967 to 05.09.1967. It is stated that, on account of her ill health, she had continued to take leave and she went on leave on loss of pay during the period from 06.09.1967 to 14.09.1972. Thereafter, finding that she would not be able to continue with her work on account of failing health, on 05.06.1973 she applied for voluntary retirement. The said request was, however, rejected by the 1st respondent on the ground that the petitioner did not have a qualifying service of at least 20 years that was a precondition for accepting a request for voluntary retirement. The petitioner, thereafter, continued till her actual date of her retirement on superannuation namely 28.02.1987. On account of the absence of the petitioner from 01.01.1973 to 28.02.1987 from the School, she was treated as on unauthorised absence. Subsequent to her retirement with effect from 28.02.1987, the petitioner was also denied pension on the ground that she did not have the minimum qualifying service for grant of pension, and the period that she spent on leave without allowance, as also the period between 01.01.1973 to 28.02.1987 when she was on unauthorised absence, ensured that she did not have the minimum qualifying service. When the Government, by Ext.P2 Government Order dated 18.09.1999, introduced an Ex Gratia Pension Scheme for those who were not entitled to statutory pension, the petitioner by Ext.P3 application dated 28.01.2008 applied for the same. There was no formal communication either accepting or rejecting the said application preferred by the petitioner. By Ext.P4 order dated 21.01.2009, however, the Government regularised the period of absence from 01.01.1973 to 28.02.1987 as leave without allowance, on condition that the said period would not count for increments, higher grade, pension or accumulation of earned leave. 2. Having got the period of unauthorised absence regularised as leave without allowance, the petitioner then approached the 3rd respondent with her service records so as to pursue her claim for minimum pension as per the Rules. 2. Having got the period of unauthorised absence regularised as leave without allowance, the petitioner then approached the 3rd respondent with her service records so as to pursue her claim for minimum pension as per the Rules. By Ext.P5 letter dated 18.12.2010 addressed to the petitioner, the 3rd respondent informed the 2nd respondent that the petitioner had more than 10 years qualifying service that was sufficient to entitle her for regular pension. In Ext.P5 letter, the basis of computation of the qualifying service is also indicated. It would appear, however, that the 2nd respondent by Ext.P6 order dated 31.08.2010 rejected the petitioners claim stating that she has only eight years of qualifying service on account of her absence of leave without allowance. The provisions of Rule 57 Part-III KSR where also relied upon by the 2nd respondent in reaching the said decision. Faced with this situation, the petitioner again approached the 3rd respondent, who by Ext.P7 communication dated 20.10.2010, once again recommended the sanctioning of regular pension to the petitioner. By Ext.P8 order dated 23.07.2011, however, the 1st respondent rejected the claim of the petitioner. In the writ petition, the petitioner impugns Ext.P6 order of the 2nd respondent as also Ext.P8 order of the 1st respondent to the extent it rejects the claim of the petitioner for regular pension on the ground that the petitioner had only eight years of qualifying service, and not service in excess of 10 years as was found by the 3rd respondent. 3. A statement has been filed on behalf of the 3rd respondent wherein it is stated that, the period of service rendered by the petitioner between 18.06.1951 and 01.06.1955 could not count for the purposes of pension since the petitioner was relieved at her own request without consent of the Assistant Educational Officer. As regards the period between 01.01.1973 and 28.02.1987, it is stated that, although, the petitioner requested for leave without allowance, she had left the School without getting the leave sanctioned and although, the said period was subsequently regularised by the Government, it was made expressed in the order regularising the period as leave without allowance that the same would not count for the purposes of pension. Lastly, as regards the period from 18.06.1967 to 02.06.1968, it is stated that the said period cannot be counted since no service verification was made by the competent authority after 17.06.1967. Lastly, as regards the period from 18.06.1967 to 02.06.1968, it is stated that the said period cannot be counted since no service verification was made by the competent authority after 17.06.1967. During the pendency of the writ petition and when the matter was posted for hearing, the petitioner was informed of Ext.P14 order dated 24.04.2015 that was passed by the 1st respondent in relation to the petitioner sanctioning pension to the petitioner. On receipt of Ext.P14 order, therefore, the petitioner amended the writ petition, so as to challenge Ext.P14 order to the extent it did not grant arrears of pension to the petitioner for the period subsequent to her retirement. 4. I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that the challenge against Exts.P6 and P8 orders, that is raised in the writ petition, has been partly redressed by the passing of Ext.P14 order by the 1st respondent. In Ext.P14 order, the 1st respondent takes note of the fact that the proof of evidence of the petitioner's entry into service as 12.11.1956 had not been received by the Government earlier and in the light of the information that was since received, it was found that the petitioner had the minimum qualifying service of 10 years for statutory pension, excluding the period spent on loss of pay. Thereafter, the 1st respondent finds that the petitioner is entitled to the regular pension only with effect from the date of Ext.P14 order which is 24.04.2015. It is this portion of Ext.P14, through which the petitioner has been denied the arrears of pension, that the petitioner takes exception to. It must be borne in mind that the petitioner is now 83 years old, and she has been pursuing the matter with regard to grant of pension from 1999 onwards. As already noted above, the unauthorised absence of the petitioner between 01.01.1973 and 28.02.1987 was regularised by the Government through Ext.P4 order dated 21.01.2009. It must be borne in mind that the petitioner is now 83 years old, and she has been pursuing the matter with regard to grant of pension from 1999 onwards. As already noted above, the unauthorised absence of the petitioner between 01.01.1973 and 28.02.1987 was regularised by the Government through Ext.P4 order dated 21.01.2009. Although, consequent to the regularisation of the said period, the petitioner was not entitled to count the said period for the purposes of payment of pension, it was not in dispute at any stage that the petitioner had more than 10 years qualifying service that enabled her for regular pension since, this fact was noted by the 3rd respondent as early as in 2010 through Ext.P5 communication. The 2nd respondent to whom the said fact was communicated by the 3rd respondent rejected the petitioner's claim for pension through a non-speaking order which blandly observed that the petitioner had only eight years of qualifying service on account of her absence on leave without allowance. There was nothing forthcoming from the 2nd respondent as to how the period of eight years qualifying service was computed by him, more so when there was a clear computation that was offered by the 3rd respondent, after perusal of the service records of the petitioner, that showed that the petitioner had more than 10 years of qualifying service. In that view of the matter, I feel that when the 1st respondent subsequently realised that the computation forwarded by the 3rd respondent was in fact correct, and that the petitioner had 10 years of regular service for the purposes of disbursal of pension, then it would only be in the fairness of things that the petitioner be given the benefit of pension at least from 18.12.2010 which is the date on which the 3rd respondent found that the petitioner had more than 10 years of qualifying service. Resultantly, I quash Ext.P14 order to the extent it denies the petitioner the arrears of pension from 18.12.2010 to 24.04.2015. I make it clear that, over and above the pension that has been sanctioned to the petitioner by Ext.P14 order, the 1st respondent shall also disburse the petitioner the arrears of pension for the period from 18.12.2010 to 24.04.2015. Resultantly, I quash Ext.P14 order to the extent it denies the petitioner the arrears of pension from 18.12.2010 to 24.04.2015. I make it clear that, over and above the pension that has been sanctioned to the petitioner by Ext.P14 order, the 1st respondent shall also disburse the petitioner the arrears of pension for the period from 18.12.2010 to 24.04.2015. Considering the age of the petitioner and the poor medical condition which she is stated to be in, I direct the 1st respondent to disburse the arrears of pension due to the petitioner within a period of three months from the date of receipt of a copy of this judgment. While disbursing the said amount, the 1st respondent shall also consider whether the qualifying service found in favour of the petitioner would entitled her to DCRG as well, and if it is so found, the 1st respondent shall do the needful in disbursing the said amount also to the petitioner within the time frame indicated in this judgment.