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2025 DIGILAW 2758 (KER)

Y. Sanandan v. State of Kerala

2025-11-06

ANIL K NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna S., J. 1. The petitioner in W.P.(C)No.7136 of 2018 filed this writ appeal under Section 5(i) of the Kerala High Court Act , 1958, challenging the judgment dated 26.09.2024 passed by the learned Single Judge in that writ petition. 2. Going by the averments in the writ petition, the appellant is a senior citizen who retired from the Farm Service of the University of Kerala on 31.05.1992. He was appointed as Garden Maistry on 27.04.1964 and his service was regularised on 03.04.1969. The appellant is a qualified person who is eligible to be promoted. The appellant was assigned the duties of the Field Assistant. He continued in that post for many years. The appellant had asked to submit his pension papers in 1987 on attaining the age of 55 years. The retirement age of a Class III worker is 55 years, and that of a Class IV worker is 60 years. The appellant approached this Court with O.P. No. 4206 of 1987, which was allowed, directing the 2 nd respondent to grant all benefits of Class IV employees and to grant, pay and allowances till he attains the age of 60 years. Though the 2 nd respondent preferred W. A. No. 265 of 1991 against the judgment in O.P. No. 4206 of 1987, the same ended in dismissal. R.P.No.147 of 1991 filed by the 2 nd respondent was also ended in dismissal. Appellant then filed W.P.(C)No.19220 of 2006 before this Court, praying for a direction to reckon the casual labour service of the appellant as qualifying service for pension. The appellant submitted a representation in June 2009 to the Vice Chancellor stating his grievances. The writ petition filed by the appellant was disposed of, directing the 4 th respondent to consider his representation. As directed by this Court, the appellant also produced a copy of the Government order G.O.(P) No.248/80/AD/ Farms/ T. Dept. Dated 08.07,1980, which allows reckoning of casual labour service as qualifying service for pension. The 2 nd respondent rejected the claim, stating that the finance section pointed out that G.O(P) No.248/80/ADl Farms/ T' Dept. dated 08.07.1980 does not apply to the casual employees of the Kerala University, and hence, the appellant’s casual labour service cannot be reckoned as qualifying service for pension. The 2 nd respondent rejected the claim, stating that the finance section pointed out that G.O(P) No.248/80/ADl Farms/ T' Dept. dated 08.07.1980 does not apply to the casual employees of the Kerala University, and hence, the appellant’s casual labour service cannot be reckoned as qualifying service for pension. Therefore, the appellant approached this Court with W.P.(C) No.7136 of 2018, filed under Article 226 of the Constitution of India seeking the following reliefs: “(i) To issue a writ of certiorari or any other writ or order calling for records relating to Ext. P-13 and quash the same. (ii) To issue a writ or order directing the respondents to grant increments and pay fixing for the 28 years of service and disburse it with interest. (iii) To declare that petitioner is entitled to get the benefit of Ext. P-10 Government order for reckoning his casual service for pension. (iv) To issue a writ of mandamus or any other writ or order directing the respondents to extent the benefit of Ext. P-10 for the computation of pension for the petitioner. (v) To direct the respondents to consider the P-12 representation for computing the petitioner's pension by considering the 28 years of service under the respondents.” 3. On behalf of the 1 st respondent, a counter-affidavit dated 20.05.2022 and the counter affidavit dated 28.05.2018 by respondents 2 and 4 were filed in the writ petition, opposing the reliefs sought therein. The 1 st respondent produced Ext.R1(a) document along with the counter affidavit. The appellant filed a reply affidavit dated 05.07.2018. 4. After hearing both sides and on appreciation of materials on record, the learned Single Judge dismissed the writ petition by the impugned judgment. Paragraphs 7 to 8 and the last paragraph of that judgment read thus: “7. The short issue arising for consideration in this writ petition is as to whether the stand taken by the 2 nd respondent in Ext.P13 is sustainable or not. Admittedly, the petitioner had entered into the service of the University in 1964 and continued as a Casual Labourer till 1969. He was absorbed in the service of the University in the year 1969, and he superannuated in the year 1992. The petitioner claims that the period during which he worked as a Casual Labourer should also be taken into account while fixing the pensionary benefits. He was absorbed in the service of the University in the year 1969, and he superannuated in the year 1992. The petitioner claims that the period during which he worked as a Casual Labourer should also be taken into account while fixing the pensionary benefits. He only relies on Ext.P10, the Rules framed by the Government, to contend that the period during which he was so working as a Casual Labourer has also to be taken into account. The learned counsel for the petitioner, in that regard, relies on the judgment of this Court in W.P.(C) No.501 of 2015, dated 06.03.2015. However, the said judgment has been rendered by this Court relying on the very same Clause No.(iii) of Rule 4(e) of Ext.P10 Rules. The said Rules are the specific Pension Rules framed with respect to the Departmental Farm Workers of the Agriculture Department. The petitioners in W.P.(C)No.501 of 2015 were also casual workers working in Karamana Farm of the Agricultural Department under the State of Kerala. It is in the said context that this Court issued the judgment in W.P.(C)No.501 of 2015, holding that the period during which the petitioner therein had been employed as Casual Labourers can also be reckoned. 8. However, in the case at hand, the petitioner was working with the University of Kerala. The Rules at Ext.P10, would not apply as regards the 2 nd respondent University. This is clear from a reading of Ext.P10, wherein it has been specifically made applicable only to the Agriculture Farm Workers in the Agricultural department (See Rule 3 of the Rules). In such circumstances, the petitioner is not justified in relying on Ext.P10 to contend that his services as a Casual Labourer is also to be reckoned. In such circumstances, I find no illegality in Ext.P13 issued by the 2 nd respondent. Resultantly, this writ petition would stand dismissed.” 5. Heard the learned Senior Counsel for the appellant, the learned Senior Government pleader and the learned Standing Counsel for respondents 2 to 4. 6. The learned Senior Counsel for the appellant submitted that the appellant is entitled to reckon the period of his service as a casual labourer from 27.04.1964 to 03.04.1969 for pensionary benefits. When by Ext. Heard the learned Senior Counsel for the appellant, the learned Senior Government pleader and the learned Standing Counsel for respondents 2 to 4. 6. The learned Senior Counsel for the appellant submitted that the appellant is entitled to reckon the period of his service as a casual labourer from 27.04.1964 to 03.04.1969 for pensionary benefits. When by Ext. P10 Government Order dated 08.07.1980, the unregularised casual labour service as on 01.01.1980 in the State Departments was reckoned as a qualifying service; there is no reason for taking a different stand as far as the appellant is concerned. The learned Senior Counsel would further submit that the post in which the appellant was initially appointed as a casual labourer was subsequently abolished, and hence his case should have been dealt under Rule 39 of Part III of Kerala Service Rules (‘KSR’ for short). The judgments of the Apex Court in Union of India and Others v. Rakesh Kumar and Others, (2017) 13 SCC 388 , Prem Singh v. State of Uttar Pradesh and Others, 2019 (10) SCC 516 , Sukumaran V. v. State of Kerala and Another, (2020) 8 SCC 106 and Dr. Sadasivan Nair G. v. Cochin University of Science and Technology, 2021 (6) KLT 746 are relied by the learned Senior Counsel to contend that in those cases, the service period of casual labourers were counted for pensionary benefits. 7. On the other hand, the argument of the learned Senior Government pleader and the learned Standing Counsel for the University is that Ext.P10 applies only to agricultural farm labourers and not to persons like the appellant herein. According to the respondents, the appellant has no case that Exhibit P10 is extended to other departments also. Moreover, it is the case of the respondents that the age of retirement of the persons covered in Exhibit P10 is 55, whereas that of the appellant is 60. Their service conditions are entirely different, and hence the appellant cannot rely on Exhibit P10 to his advantage. The learned Senior Government Pleader and the learned Standing Counsel for the University further submitted that Rule 39 of Part III of KSR is applicable only if there is no qualifying service. In the instant case, the appellant has the qualifying service for pension after his absorption in the service of the University in the year 1969. The learned Senior Government Pleader and the learned Standing Counsel for the University further submitted that Rule 39 of Part III of KSR is applicable only if there is no qualifying service. In the instant case, the appellant has the qualifying service for pension after his absorption in the service of the University in the year 1969. Therefore, Rule 39 of Part III of KSR is not applicable to the case of the appellant. The learned Senior Government Pleader relied on the judgment of this Court in Vijayakumar T. and Others v. State of Kerala and Others, 2014 (1) KHC 104 in support of her contentions. 8. The appellant was admittedly a casual labourer during the period from 27.04.1964 to 03.04.1969. He was absorbed in the regular service of the University from the year 1969 and superannuated on 31.05.1992 at the age of 60 years. Though he relied on Ext.P10 order dated 08.07.1980 with respect to the Departmental Farm Workers of the Agricultural Department, during the course of argument, the submission of the learned Senior Counsel is that it is only the principles of that order are relied upon by the appellant. However, while going through Ext.P10 Government Order, it is clear that the said Rule is made exclusively applicable to Departmental Farm Workers of the Agricultural Department. Rule 3 of Ext.P10 says that the said Rules be applicable to all the Departmental Agricultural Farm workers in the Agricultural Department, including animal husbandry and dairy development in service on the 1 st January, 1980, but not to those who have completed the age of 60 years on that date. The appellant has no case that the said Government order is made applicable to any other Government Department or University. 9. Though the appellant relied on four judgments of the Apex Court as mentioned above, in Rakesh Kumar (2017) 13 SCC 388 and Prem Singh 2019 (10) SCC 516 , the Apex Court relied on specific Rules to hold that the casual workers who are appointed to any post either substantively or in officiating or in the temporary capacity are entitled to reckon the entire period of that service for pensionary benefits. In Rakesh Kumar (2017) 13 SCC 388 , it was the Railway Service (Pension) Rules, 1993, and in Prem Singh, 2019 (10) SCC 516 , the U.P. Retirement Benefit Rules, 1961, were taken into consideration by the Apex Court. In Rakesh Kumar (2017) 13 SCC 388 , it was the Railway Service (Pension) Rules, 1993, and in Prem Singh, 2019 (10) SCC 516 , the U.P. Retirement Benefit Rules, 1961, were taken into consideration by the Apex Court. Similarly in Sukumaran V. (2020) 8 SCC 106 , the judgment was rendered by the Apex Court based on the Government Order passed in respect of CLR workers and in Dr. Sadasivan Nair G. 2021 (6) KLT 746 , the Apex Court referred to Rule 25(a) of Part III KSR, which provides that experience at the Bar could be reckoned as qualifying service for the purpose of determining superannuation pension subject to a condition that only a person who was recruited into service after attaining the age of 25 years could avail such benefit. But in the instant case, there is no such specific provision or order relied by the appellant to say that the facts of the judgments relied by him are applicable to the instant case. Therefore, we are of the considered opinion that the judgments of the Apex Court relied by the appellant are not applicable to the facts of his case. 10. Similarly, the appellant cannot rely upon Rule 39 of Part III KSR also to his benefit, since it is also not applicable to the facts of the instant case. Rule 39 of Part III KSR read as follows; “39. If of two appointments held by an employee only one is abolished and it is desired to give him an immediate pension in respect of the abolished post, the case should be referred to Government.” 11. It is pertinent to note that the appellant was regularised from the year 1969, and he has the required qualifying service for pension in the regularised post. In Vijayakumar T. 2014 (1) KHC 104 a Division Bench of this Court held thus: “3. The Tribunal, rightly, said that the power of exemption is to be sparingly used and it is a reserve power to be exercised only on valid grounds. When a power to relax a Rule is protected while making a Rule, the power to relax has to be always understood as an exception and as only as the reflection of the existing power to deal with extraordinary circumstances. Any power to relax has always to be understood as one to be exercised in exceptional situations. When a power to relax a Rule is protected while making a Rule, the power to relax has to be always understood as an exception and as only as the reflection of the existing power to deal with extraordinary circumstances. Any power to relax has always to be understood as one to be exercised in exceptional situations. If a power to relax were to be treated otherwise, that would be in affront to fairness, transparency and hence, would be arbitrary, having regard to Part-III of the Constitution of India .” 12. From the materials on record and also the submissions made at the Bar, we notice that the appellant, who was working as a casual labourer from 1964 to 1969, could not point out any specific provisions under the Service Law or Government Orders or scheme applicable to his case to reckon the aforesaid period as qualifying service for pension. As rightly found by the learned Single Judge, Ext.P10 Rules relied by the appellant are not applicable to his case. So also is the provision under the KSR pointed out by the learned Senior Counsel. 13. In such circumstances, it is only to be held that the learned Single Judge is right in dismissing the writ petition. The appellant could not make out any illegality or perversity in the reasoning of the learned single Judge. Therefore, the writ appeal is liable to be dismissed. In the result, this writ appeal stands dismissed. The pending interlocutory application stands closed.