REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6292 OF 2021
(Arising out of SLP(C) No. 29856/2019)
Valsan P. .…Appellant(s)
Versus
The State of Kerala and Ors. …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. The appellant is before this Court in this appeal,
assailing the order dated 21.05.2019 passed by the learned
Division Bench of the High Court of Kerala at Ernakulam in OP
(KAT) No.468 of 2017 titled, The State of Kerala and Others.
Vs. Valsan P. By the said order the learned Division Bench has
allowed the OP and set aside the order dated 14.11.2016
passed by the Kerala Administrative Tribunal,
Thiruvananthapuram (for short ‘KAT’) in O.A. No.975 of 2015.
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The KAT had through the said order allowed the application
granting the benefit of pension by condoning the period of
break in service, as being permissible in the circumstance.
2. The undisputed facts are that the appellant worked as a
Technician in the Telecom Department during the period
05.02.1974 to 31.05.1984. The appellant thereafter joined as
an Engineer in Steel Industries Limited, Kerala (for short ‘SILK’)
on 04.06.1984. The said SILK is a Public Sector Undertaking
(for short ‘PSU’) owned by Government of Kerala. He worked
there till 31.05.1987. Subsequent thereto, through the Public
Service Commission, the appellant joined the Technical
Education Department on 31.05.1987. He served for about 19
years and on attaining the age of superannuation, retired from
service on 30.06.2006.
3. The contested issue arose at this point when the
appellant made claim for the pensionary benefits by taking into
consideration and reckoning the service of 10 years rendered by
the appellant between 05.02.1974 to 31.05.1984 in the Telecom
Department which was service under the Central Government.
The Accountant General, by the communication dated
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26.07.2006 however informed that since the break between the
Central Service and State Service is nearly three years, unless
the same is condoned by the State Government, the Central
Service cannot be reckoned as qualifying service for pension.
The appellant therefore made a representation dated
23.09.2006 to the Government requesting to condone the said
break in service. Though the said request was rejected by the
communication dated 12.02.2007, it was by an unreasoned
order. On being assailed, the same was set aside and the
matter was sent back for reconsideration. On such
reconsideration, the request made by the appellant was
declined stating that there are no rules for condoning the break
in service. It stated that as per rules the break between the two
appointments shall not exceed the joining time admissible
under service rules. The rule referred to was Rule 29 (b) Part III
of Kerala Service Rules (for short ‘KSR’).
4. The appellant however filed a review petition dated
17.09.2014 seeking the State Government to review the
decision since ‘SILK’, to which the appellant had joined in the
sandwiched period was a fully Stateowned PSU. Hence, the
appellant requested the exercise of power under Rule 39 of Part
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II of Kerala State and Subordinate Service Rules (for short ‘KS
& SSR’). The review petition filed by the appellant was rejected
through the intimation dated 21.05.2015 despite the
Government order dated 24.09.2014. The appellant who was
aggrieved by the rejection of his request approached the KAT in
O.A. No.975 of 2015.
5. The KAT on making a detailed analysis of not just the
rules but also the series of Government orders which are
relevant, held the appellant entitled to the benefit and
accordingly allowed the application. The KAT noted that the
requirement was that the period of service in ‘SILK’ is to be
condoned as a disconnect period to provide continuity of service
in the two employments. Thus, giving the benefit of the
Government order dated 24.09.2014 the entitlement as claimed
was upheld. The High Court on the other hand has declined the
relief by proceeding on the basis as if the appellant was seeking
to reckon the service rendered by him in ‘SILK’ also as
pensionable service. Insofar as service rendered in the Telecom
Department it was held that the appellant should approach the
Central Government seeking to reckon the same. The High
Court, therefore without addressing the real issue has set aside
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the order passed by the KAT. The appellant thus claiming to be
aggrieved has filed this appeal.
6. We have heard Mr. P.V. Surendranath, learned senior
counsel for the appellant, Mr. C.K. Sasi, learned counsel for the
respondents and perused the appeal papers.
7. To put the matter in perspective, it is to be noted at the
outset that the appellant had worked in the Telecom
Department from 05.02.1974 to 31.05.1984 which is
pensionable service in usual course if the other requirements
were satisfied. The appellant had thereafter worked in the
Technical Education Department under the State Government
from 31.05.1987, till his retirement on attaining the age of
superannuation on 30.06.2006. The said service is also
pensionable service. During the interregnum, between
04.06.1984 to 30.05.1987 the appellant worked in ‘SILK’ which
is a State Government Public Sector Undertaking and the
service rendered therein is admittedly not pensionable service.
The said period of service therefore acts as a disconnect
between the two different pensionable service rendered by the
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appellant and the same needs to be condoned to provide a
single block of pensionable service.
8. In that background, it is also to be kept in perspective
that the case of the appellant is not that the nonpensionable
service rendered in ‘SILK’ is also to be reckoned and the entire
service from 05.02.1974 to 30.06.2006 is to be admitted for
computing the pensionary benefits as assumed by the High
Court. On the other hand, what the appellant seeks is to
exclude the service rendered in ‘SILK’ and condone that period
between 04.06.1984 to 31.05.1987 from being treated as a
disjoint or break between the two pensionable services, though,
one is under the Central Government and the other under the
State Government. The sum and substance of the claim put
forth by the appellant is to reckon the service between
05.02.1974 to 31.05.1984, plus, the service between
31.05.1987 to 30.06.2006 as the total number of years as the
pensionable service, clearly excluding the number of years
between 04.06.1984 to 30.05.1987.
9. With reference to the consideration made by the State
Government in rejecting the claim of the appellant, the learned
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counsel for the respondents has referred to Rule 29, Part III
KSR to contend that the Rule is categorical that the benefit of
past service will stand forfeited if the break between the two
appointments exceeds the joining time admissible under the
service Rules. The said Rule reads as hereunder:
“Rule 29 Part III KSR
29. Resignation and Dismissal. (a)
Resignation of the Public Service or dismissal
or removal from it, entails forfeiture of past
service.
(b) Resignation of an appointment to take up
another appointment the service in which
counts is not resignation from public service.
Note: The break between the two
appointments should not exceed the joining
time admissible under the service rules plus
the public holidays".
10. The above noted Rule if taken into consideration as a
standalone provision, it would settle the issue against the
appellant since the break between the two appointments is
much more than the joining period and the break itself is due
to nonpensionable employment. However, what is required to
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be examined is the availability of provision to condone such
break. The learned counsel for the appellant has therefore
referred to Rule 39 of Part II KS and SSR to indicate the power
available to the State Government to take just and equitable
decisions relating to the service of any person and the Rule
should be dealt in the manner in which it is favourable to the
person in service. The said Rule reads as hereunder:
“Rule 39 of Part II KS & SSR
39. Notwithstanding, anything contained in
these rules or in the Special Rules or in any
other Rules or Government Orders the
Government shall have power to deal with the
case of any person or persons serving in a civil
capacity under the Government of Kerala or
any candidate for appointment to a service in
such manner as may appear to the
Government to be just and equitable:
Provided that where such rules or orders
are applicable to the case of any person or
persons, the case shall not be dealt with in any
manner less favourable to him or them than
that provided by those rules or orders.
This amendment shall be deemed to have
come into force with effect from 17th December
1958.”
11. In that backdrop, having noted that the appellant’s first
spell of pensionable service was under the Central Government
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and the second spell was under the State Government, it would
be apposite to take note of the Government Order dated
12.11.2002 referred by the learned counsel for appellant. The
relevant portion of the Government Order dated 12.11.2002
reads as hereunder:
“Government have examined the matter in
detail and are pleased to order that the
employees of the State Government
Departments who left the former service in
Central Government/ Central Public Sector
Undertakings on their own volition for taking
up appointment is State government
Departments will be allowed to reckon their
prior service for all pensionary benefits along
with the service in the State Government
Department if the former employer remits the
share of proportionate prorate pensionary
liability on a service share basis.
These Orders will take effect, including
monetary effect, only from the date of this
order and individual cases otherwise settled
will not be reopened.”
12. Though the benefit of reckoning the earlier pensionable
service between Central Government and State Government
was provided, it was subject to remitting the proportionate pro
rata pensionary liability on service share basis between the two
employers. However, by a subsequent Government Order dated
06.12.2003, which has reference to the earlier Government
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Order dated 12.11.2002, the State Government has done away
with the proportionate pro rata sharing between the two
employers for payment of pensionary benefits. The State
Government has notified to bear the pensionary benefits. The
relevant portion of the said Government Order dated
06.12.2003 reads as hereunder:
“Government have examined the matter in
detail and in modification of the orders issued
in the G.O. 3rd cited are pleased to order that
in the case of prior service rendered by Central
Government employees in State Government
and vice versa, the liability of Pension
including gratuity, will be become in full by the
central Government/State Government to
which the Government servant permanently
belongs at the time of retirement and no
recovery of proportionate pension will be mode
from Central Government/State Government
under whom he had served. But in the case of
employees who left the former service in the
Central Public Sector Undertakings the orders
issued in G.O. dt 12.11.02 will stand.”
13. In view of the said position, the observation of the High
Court that the appellant is free to move the Central
Government if he has a case that his service in the Telecom
Department is liable to be reckoned is not justified. If the break
in service is condoned as sought by the appellant, then the
entire relief would be available at the hands of the State
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Government. Therefore, the solitary moot question for
consideration in the instant case is, as to whether the break in
service interrupting the service rendered in Telecom
Department and the Technical Education Department is
condonable.
14. On this aspect, the learned counsel for the appellant has
relied on the Government Order dated 24.09.2014 whereunder
the condonation of the nonqualifying sandwiched period was
provided for, to reckon the qualifying service. The Government
Order was made with reference to Rule 29 (a) Part III KSR. The
Government Order dated 24.09.2014 reads as hereunder:
“As per Rule 29(a) Part III Kerala Service Rules,
resignation of the Public Service or dismissal
or removal from it, entails forfeiture of past
service. As per Rule 29(b) of ibid, resignation of
an appointment to take up another
appointment the service in which counts is not
resignation from public service and the break
between two appointments should not exceed
the joining time admissible under the service
rules plus public holidays.
2) Several requests have been received in
Government to reckon the prior qualifying
service for pension after condoning the
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nonqualifying sandwiched service as
break without forfeiture of past service.
3) Government have examined the matter
in detail and are pleased to order that the
prior public service shall be reckoned as
qualifying service for pension after
condoning the sandwiched non qualifying
service as break between the two services.”
A perusal of the Government Order noted above
indicates that the benefit sought for by the appellant is
provided and the sandwiched non qualifying service as break in
the two services is condonable and the prior public service
shall be reckoned as qualifying service for pension. The learned
counsel for the respondents contended that the High Court was
justified in holding that the appellant had retired on
30.06.2006, while the Government Order is dated 24.09.2014
and as such cannot be made applicable retrospectively. We are
unable to accede to such contention. In fact, the KAT had
taken note of the entire sequence and had rightly noted that
the issue had not been settled and not reached finality in the
case of the appellant since his review petition dated 17.09.2014
against the order dated 25.07.2014 was still pending when the
Government Order dated 24.09.2014 was issued. The said
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Government Order in para 2 has taken note of the several
requests received to reckon the prior qualifying service.
Further, the main aspect of reckoning the service rendered in
Central Government for pensionary benefit after joining State
Government service was given effect through the Government
Order dated 12.11.2002 and 06.12.2003 i.e., when the
appellant was still in State Government service and had not
retired. The issue of condoning the break i.e., the sandwich
period was claimed immediately on retirement and it was still
being agitated. The review was rejected on 21.05.2015 only
after the Government Order dated 24.09.2014 was issued
granting the benefit of condoning the break.
15. In that view, we are of the considered opinion that the
KAT was justified in its conclusion and High Court has erred in
setting aside the same. The order dated 21.05.2019 passed by
the High Court of Kerala in O.P. (KAT) No.468 of 2017 is
therefore set aside. The order dated 14.11.2016 passed by the
KAT in O.A. No. 975 of 2015 is restored for its implementation.
The time line depicted in the said order for implementation
shall apply from this day.
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16. The appeal is accordingly allowed with no order as to
costs.
17. The pending applications, if any, shall also stand
disposed of.
……………………….J.
(M.R. SHAH)
……………………….J.
(A.S. BOPANNA)
New Delhi,
October 21, 2021
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