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2017 DIGILAW 94 (KER)

C. LUKOSE v. PRINCIPAL ST. GREGORIOUS COLLEGE

2017-01-12

P.V.ASHA

body2017
JUDGMENT : The petitioner commenced his service as a Part Time Marker in St. Gregorious College, Kottarakkara, which is an aided College, on 1.11.1989. On completion of 18 years service, he was absorbed as Full Time Marker as per Ext.P4 Government order dated 24.5.2008, on the basis of the report called for by the Government from the Director of Collegiate Education and submitted by him in Ext.P3 which was in turn submitted after obtaining Ext.P2 report from the College. Exts.P2 and P3 would show that the petitioner was being paid a consolidated amount of Rs.900/- for the period from 1989 onwards and he was being paid every year from June to March apparently except during vacation. He retired from service on 31.5.2015, when he had only seven years of qualifying service. The petitioner requested for counting his service as Part Time Marker for the purpose of his pension. By Ext.P9 order, the Deputy Director of Collegiate Education informed him that the service rendered by him for the period from 1.11.1989 to 1.6.2008 cannot be reckoned towards pension on three grounds: (1) the College has not furnished the acquittance register, attendance register etc. for service verification; (2) the date of commencement of service of the petitioner has been entered in service book as 2.6.2008 and (3) there is no provision for reckoning the service rendered by him as Part Time Marker towards qualifying service for the purpose of pension. The petitioner was therefore directed to produce orders, if any, which permits reckoning of his part time service towards pension. The petitioner approached the Government in Ext.P10 representation. The petitioner thereupon filed this writ petition praying for directions to the respondents to sanction pension and disburse his pensionary benefits reckoning the service as Part Time Marker. 2. Respondents filed counter affidavit stating that the service rendered by the petitioner as Marker in the College when he was paid consolidated pay from the P.D.Fund of the College cannot be reckoned as qualifying service, for the purpose of pension. According to the respondents, the petitioner was absorbed as Last Grade Servant on humanitarian consideration. The petitioner and seven others approached this court requesting for grant of full time status. On the basis of Ext.P1 judgment of this court, the Government considered the case of the petitioner and others in Ext.P4 Government order. According to the respondents, the petitioner was absorbed as Last Grade Servant on humanitarian consideration. The petitioner and seven others approached this court requesting for grant of full time status. On the basis of Ext.P1 judgment of this court, the Government considered the case of the petitioner and others in Ext.P4 Government order. The Deputy Director of Collegiate Education, Thiruvananthapuram had passed Ext.P6 order granting him full time status with effect from 2.6.2008 only and therefore his qualifying service can be reckoned only with effect from 2.6.2008. According to the respondents there was no service book maintained for the petitioner till his regular appointment in the full time service. It is also stated that he never signed attendance register and he was paid salary from Government exchequer for the period up to 1.6.2008 and therefore the provisions contained in KSR do not permit reckoning of his part time service towards the qualifying service for the purpose of pension. 3. I heard the learned counsel for the petitioner and the learned Government Pleader. 4. Learned counsel for the petitioner pointed out that as per Rule 14-A of Part III KSR, contingent employees absorbed in regular establishment will be allowed to count 50% of the contingency service for the purpose of pension. The Government orders issued in G.O(P) No.742/80(240)/Fin dated 9.10.1980, G.O.(Ms) 51/95/G.Edn dated 15.3.1995 and G.O.(P) 506/95//Fin dated 22.8.1995 were also relied on in support of the contention that part time service rendered by the petitioner up to his absorption in regular service can be reckoned towards qualifying service in terms of rule 14A of Part III KSR. 5. At the same time, the learned Government Pleader seriously opposed the same, pointing out that the service rendered by the petitioner as Part Time Marker for which no payment was made by the Government cannot be reckoned towards qualifying service. It was pointed out that the post of Part Time Marker is not included either in the part time contingent service and more over it cannot be considered as a post in the said service as long as the petitioner has not worked in a sanctioned post and he was paid only from out of the P.D.Fund by the College as can be seen from Ext.P2 order in which the College has stated that payment was made from out of the fees collected from the students. 6. 6. As per rule 18 of Part III KSR service which satisfies the conditions prescribed in rule 10 qualifies or does not qualify according to the source from which it is paid. Among the categories mentioned in the sources of remuneration clause (d) relates "paid by fees levied by law or under the authority of Government or by Commission". The petitioner has stated that he was paid salary out of the funds which were audited by Government though it was raised by collecting fees from the students, which was under authorisation of Government. More over the college was also getting grant at the relevant time. 7. As rightly pointed out by the learned counsel for the petitioner, Ext.P4 order was one absorbing the petitioner from the post of Part Time Marker as Full Time Marker. That being so, there is no reason for not reckoning the said service rendered by the petitioner up to the date of his absorption at least for the purpose of granting him pension in order to see that there is at least the minimum qualifying service for the purpose of granting pension. Since the petitioner's absorption was only from the year 2008, he has got only 7 years regular service in a Full Time Post. If 25% of the service rendered by him in the post of Part Time Marker is also reckoned as provided in rule 14 A of Part III KSR, that would make him eligible for minimum pension. 8. The post of Marker is one available in the Government Colleges also. The absorption in full time post was made in recognition of the long service rendered as part time. Therefore, even assuming that the post is not included in the part time contingent service the petitioner's service, is liable to be reckoned towards qualifying service. It is also pertinent to note that as per the University Statutes the provisions contained in KSR are applicable to the teaching and non teaching staff of the aided College as in the case of teaching and non teaching staff of Government Colleges. Therefore, the provisions contained in KSR and the Government orders issued from time to time with respect to eligibility for pension are applicable for the purpose of finalising the pensionary benefits of the petitioner. Therefore, the provisions contained in KSR and the Government orders issued from time to time with respect to eligibility for pension are applicable for the purpose of finalising the pensionary benefits of the petitioner. In case the service rendered by the Part Time Marker in Government College is liable to be reckoned for the purpose of pension along with the full time service as provided in rule 14 A of Part III KSR, there is no reason to deny that benefit to petitioner also. The fact that the service book starts with his entry in regular service cannot be a reason for denying the legitimate benefits, when the order Ext.P1 absorbing him as Full Time Marker is passed recognising the past long service as Part Time Marker. Government have issued orders recognising even the service of CLR, SLR and NMR employees towards qualifying service, apart from Rule 14A of Part III KSR. 9. In the above circumstances, the objections raised by the respondents as against the claim for reckoning the service rendered by the petitioner for the period 1.11.1989 to 1.6.2008 are baseless and unsustainable. Since he has got more than 18 years of part time service, that part of the part time service can be taken along with his full time service so as to see that there is the minimum qualifying service of 10 years. There shall be a direction to the respondents to reckon that part of the service rendered by the petitioner as Part Time Marker along with his regular service as Full Time Marker from 2.6.2008, so as to see that he has the minimum qualifying service of 10 years for pension and to compute the pensionary benefits due to petitioner accordingly. Respondents shall take appropriate action for finalizing and disbursing the terminal benefits due to the petitioner, accordingly, within a period of three months. The writ petition is disposed of as above.