Accountant General (A&E), Kerala Thiruvananthapuram v. M. V. Mathai, H. S. A (Ss)-Retd, Ganapathy Vilasam H. S. , Koovappady
2017-07-17
K.SURENDRA MOHAN, MARY JOSEPH
body2017
DigiLaw.ai
JUDGMENT : Surendra Mohan, J. 1. Respondents 1 to 3 in WP(C) No.10405 of 2009 are the appellants. They are aggrieved by the judgment dated 22.09.2015 of the learned Single Judge allowing the Writ Petition. 2. The respondent is a retired High School Assistant. He had retired from service on 31.03.2007. He had joined service as a High School Assistant on 02.06.1980. He completed his age of superannuation on 30.11.2006 and had continued till 31.03.2007, on which date he had superannuated. His pension papers, evidenced herein by exhibit P1 were forwarded by the Headmaster of the school, computing his total service to be 26 years, 6 months and two days. According to the appellants, his total service is 26years 5 months and 29 days. In view of the above, according to the appellants his total service would have to be rounded off to 26 years. The case of the respondent is that, his service being 26 years 6months and 2 days, he was entitled to round off his total service to 27 years. However, exhibit P3 was issued treating his total service to be only 26 years. The said stand has been maintained in exhibit P7 also. It was challenging exhibits P2, P3 and P7 that the respondent had filed the Writ Petition. 3. It was contended on behalf of the respondent that, he had completed 26 years service on 02.06.2006. He had attained the age of superannuation only on 30.11.2006. When the number of days are calculated, the total number of days from 02.06.2006 to 30.11.2006 is 182 days. Since 180 days is half an year, it was contended that in accordance with Rule 57 Part III Kerala Service Rules (KSR for short), he was entitled to get the benefit of 27 years in the matter of calculating his pension. 4. The case of the respondent was contested by the appellants. A counter affidavit was filed on behalf of the first appellant maintaining the position that, the period from 02.06.2006 to 30.11.2006 represented only five months and 29 days. Therefore, it was contended that, the service of the respondent fell short of the required six months for rounding off his service to 27 years by one day. For the above reason, according to the appellants the respondent was not entitled to any of the reliefs sought for in the Writ Petition. 5.
Therefore, it was contended that, the service of the respondent fell short of the required six months for rounding off his service to 27 years by one day. For the above reason, according to the appellants the respondent was not entitled to any of the reliefs sought for in the Writ Petition. 5. The learned Single Judge considered the respective contentions and found that during the total service of the respondent spanning over 26 years, there had been six leap years in which the month of February had 29 days. Therefore, when the extra six days were also added on, he would have the required qualifying service of 27 years. Accordingly, the Writ Petition has been allowed and exhibits P2, P3 and P7 have been quashed. A direction to the appellants to fix the qualifying service of the respondent as 27 years has also been issued. It is aggrieved by the said judgment that this appeal is filed. 6. According to the learned Government Pleader, the total service of the respondent had to be calculated in accordance with Rule 57(1) Part III KSR. As per the Proviso to the Sub Rule, fraction of less than one year is to be rounded off to the next complete year. Therefore, service over a period of less than one year, even if it is short by one day has to be rounded off to the previous complete year. Our attention is drawn to sub rule 21 of Rule 12 Part I KSR to point out that, a calendar month as defined in the said provision contains no provision to take into account the extra day that would be available in every leap year. It is contended by the learned Government Pleader that, though a leap year would have one day extra, such an year is not treated in a different manner, but is computed only as one year. It is also contended that, there is no practice of giving credit for the one extra day in a leap year while computing leave, as per Part I KSR. It is contended that the same principle has to be applied to computation of qualifying service for pension also. Therefore, it is contended that the judgment of the learned Single Judge requires to be interfered with and set aside. 7. per contra, Senior Counsel Sri.
It is contended that the same principle has to be applied to computation of qualifying service for pension also. Therefore, it is contended that the judgment of the learned Single Judge requires to be interfered with and set aside. 7. per contra, Senior Counsel Sri. Abraham Vakkanal who appears for the respondent contends that the calculation in exhibit P1 shows that the period up to 30.11.2006 contains in fact 182 days. There is no justification for denying the benefit of the said computation to the respondent. According to the learned Senior Counsel, the rounding off that is contemplated by Rule 57 (1) of KSR has to be done, taking into account the existence of one additional day, that is available in every leap year, which is a factual reality. Therefore, according to the learned counsel, there are absolutely no grounds to interfere with the judgment appealed against. 8. Heard. The facts of the case are not in dispute. The dispute is only with respect to calculation of the total length of service of the respondent. Admittedly, the respondent entered service on 02.06.1980 and completed his age of superannuation on 30.11.2006. He had thereafter continued up to the end of the academic year and had retired from service on 30.03.2007. Therefore, for the purpose of computing his total length of service, his service up to 30.11.2006 only would be taken into account. The appellants agree that the respondent had completed his 26 years service on 02.06.2006. Thereafter, he has to his credit, service of five months and 29 days. The appellants have computed the period from 02.06.2006 to 30.11.2006 as merely five months and 29 days. In other words, five months is taken to be 150 days and 29 days is added on. The said conclusion is incorrect for the reason that, upon calculating the number of days in each month from 02.06.2006, we find that there would be a total of 182 days. The mistake has occurred in taking the five months to be as only 150 days, whereas it actually adds up to 153 days when the number of days in each month is counted. Therefore, the conclusion in exhibit P2, P3 and P7 on the basis of which the appellant's service has been rounded off to 26 years, is arithmetically wrong.
The mistake has occurred in taking the five months to be as only 150 days, whereas it actually adds up to 153 days when the number of days in each month is counted. Therefore, the conclusion in exhibit P2, P3 and P7 on the basis of which the appellant's service has been rounded off to 26 years, is arithmetically wrong. In view of the above, the finding of the learned Single Judge that the respondent is entitled to round off his total service to 27 years under Rule 57(1) Part III KSR is correct. 9. It is true that the learned Single Judge has arrived at the conclusion on the ground that, during the total length of service put in by the respondent, he had the benefit of six of 2016 additional days because there were six leap years during his service. The said conclusion is also factually correct. 10. The learned Government Pleader has tried to put forward a contention on the basis of Sub Rule 21, Rule 12 Part I KSR to point out that, going by the said provision, the months are to be calculated first and days are to be calculated on the basis of the actual number of days. However, we do not find any substance in the said contention for the reason that 'month' according to the said provision is a calendar month. A calendar month according to the British Calendar begins on the first day of each month and ends on the last day of the same month. However, when the period has to be computed starting from an intervening day in a month, problems would arise for the reason that, there are three types of calendar months going by the British Calendar, namely months having 30 days, 31 days and February which has only 28 days in the normal year and 29 days in a leap year. The existence of one day extra in a leap year is a factual reality and cannot be overlooked when it becomes crucial in the calculation of any period, whether it be the length of continuous service of a particular person or in some other context. Ignoring the existence of the said additional day would be factually incorrect. For the above reasons, we find no infirmity in the reasoning adopted by the learned Single Judge. In the result, this appeal fails and is accordingly dismissed.
Ignoring the existence of the said additional day would be factually incorrect. For the above reasons, we find no infirmity in the reasoning adopted by the learned Single Judge. In the result, this appeal fails and is accordingly dismissed. The appellants are directed to comply with the direction of the learned Single Judge within a period of one month of the date of receipt of a copy of this judgment.