E.K.Varghese Vs. State of Kerala
Kerala Service Rules - Rule 32, 33, 42, 55 and 56 - Pension - Constitutionality of Rule 29(a) part III KSR - Denial of pension and pensionary benefits - Resignation
and Dismissals - Resignation of the Public Service or dismissal or
removal from it, entails forfeiture of past service - Rule 11 empowers the Government to consider individual cases - It
is crucial to note that Rule 5 of Part III KSR states that
compassionate pension can be granted to persons, who are dismissed from
service for inefficiency and for other reasons, in deserving cases.
However one who resigned from service with excellent track records,
pension is rubbed off for no sensible reason. Therefore, Rule 29(a) Part
III KSR is
unconstitutional, illegal and ultra-vires insofar as it denies pension
to the persons who resigned from service not on account of any
disciplinary proceedings or intended disciplinary proceedings.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.V. RAMAKRISHNA PILLAI, J.
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W.P.(C) No. 33341 of 2010
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Dated this the 7th day of March, 2014
The petitioner is
aggrieved by the denial of pension and pensionary benefits to him by the
respondents though he had worked in aided schools in the State from
06.07.1953 to 25.03.1968. Inter alia, the petitioner has also challenged
the constitutionality of Rule 29(a) Part III KSR.
2. The petitioner
worked in two aided schools of Kannur and Wayanad Districts from
06.07.1953 to 25.03.1968. He has resigned from service due to family
problems. Representations sent by the petitioner were rejected by the
respondents vide Exts.P4, P6, P9, P11 and P13 on the ground that as per
Rule 29(a) Part III KSR, a person who resigned from service will have to
forfeit his past service. Though the petitioner had pointed out the
fact that similarly situated persons were given pension and other
benefits vide Exts.P7 and P8, the respondents have, in a highly
discriminatory manner, rejected the prayer of the petitioner for grant
of pension and other benefits. Therefore, the petitioner also challenges
the constitutionality of Rule 29(a) Part III KSR, which disallows
payment of pension for past service if a person resigns from service.
The petitioner alleges that he worked in the remote district of Wayanad
during a very difficult period and; he had a very good track record,
which is vouchsafed by the Manager of the School, where he last worked.
He is very much aggrieved of the denial of pension and pensionary
benefits. Thus, he has come up before this Court.
3. In the counter
affidavit filed by the respondent State, they contended that the
petitioner left the service on resignation and; therefore, he forfeited
his past service as stipulated in Rule 29(a) part III Kerala Service
Rules. They maintain the stand that Exts.P7 and P8 are not identical to
the case of the petitioner. They also maintain the stand that Rule 29(a)
Part III KSR is constitutionally valid, legal and just. Therefore, they
prayed for the dismissal of the writ petition.
4. I have heard the learned counsel for the petitioner and the learned Special Government Pleader in the matter.
5. Admittedly, the
petitioner was working in aided schools in Kannur and Wayanad Districts
from 06.07.1953 to 25.03.1968. It is an admitted fact that he had
resigned from service. The legal bar, pointed out by the respondent
State in granting pension and pensionary benefits to the petitioner, is
Rule 29(a) Part III KSR, which reads as follows;
"29. Resignation and Dismissals.- (a) Resignation of the Public Service or dismissal or removal from it, entails forfeiture of past service."
6. According to the
petitioner, the aforesaid rule is unconstitutional, illegal and
ultra-vires. The respondent has no case that any proceeding was
initiated against the petitioner or was to be initiated at that stage,
which was the reason for resignation by the petitioner. No misconduct or
dereliction of duty, while he was on duty, was alleged against him. In
such a case, whether it can be stated that the resignation in the case
of the petitioner entails forfeiture of past service? Rule 29(b) makes
it clear that resignation of an appointment to take up another
appointment the service in which counts is not resignation from public
service. It is not clear if a person, against whom no proceeding is
pending or allegation is pending, submits resignation if he wants to
take rest in his life or is suffering from ailment, whether resignation
would amount to forfeiture of past service. If a case, where the
resignation is not because of any departmental proceeding or any
allegation, is equated with the case of those dismissed or removed from
service, it will render two unequal as equal and would be violative of
Article 14 of the Constitution of India. Therefore, to uphold Rule 29(a)
Part III KSR as not violative of Article 14 of the Constitution of
India, it is to be held that the resignation will entail forfeiture of
past service only in those cases where a person submits resignation
because of any allegation or proceedings which otherwise would have
attracted punishment like dismissal or removal from service. Here, in
this case, the petitioner has served for about 15 years as Headmaster of
two aided schools in two northern districts, one of which is
educationally backward. The petitioner had taken up the challenge at the
time when none dared to go to such places and to work successfully for
about 15 years. To club his meritorious service along with those
persons, who dismissed from service as per Rule 29(a), is arbitrary,
unconstitutional and unjust.
7. It was argued by
the learned Special Government Pleader that even if Rule 29(a) Part III
KSR is annulled, the petitioner is not entitled to get pension. In
support of the argument, the learned Special Government Pleader invited
my attention to Rule 32, which classified the pensions, as well as Rules
33, 42, 55 and 56, which deals with compensation pension in such cases.
It is true that the petitioner will not come under that category. That
is only because of the fact that as per Rule 29(a) Part III KSR, the
right of persons, who have resigned from service, to get pension has
been taken away.
8. It is crucial to
note that Rule 5 of Part III KSR states that compassionate pension can
be granted to persons, who are dismissed from service for inefficiency
and for other reasons, in deserving cases. However, in the case of the
petitioner, who has resigned from service with excellent track records,
pension is rubbed off for no sensible reason. Therefore, Rule 29(a) Part
III KSR to the extent that it denies pension to a person like the
petitioner, who has resigned from service, is unconstitutional and
illegal.
9. The learned
counsel for the petitioner invited my attention to Exts.P7 and P8, where
identically situated persons were granted all benefits including
pension by the respondents. Ext.P7 is the true copy of the order dated
16.05.1991 granting pension to Sr.M.Prisea. Ext.P8 is the true copy of
the order dated 05.06.2007 granting pension to Sri.U.K.Antony of Sacred
High School, Thiruvambady, Kozhikode. Though the petitioner approached
the respondents by filing representations pointing out gross
discrimination meted out by him, the same went into deaf ears.
10. It was
strenuously argued by the learned Special Government Pleader that wrong
relief granted to other persons would not be a reason to extend the same
to the petitioner. But, I am not inclined to accept the said
submission. Rule 11 empowers the Government to consider individual
cases. There is no reason why the petitioner's case should not be
considered in exercise of powers conferred under Rule 11 in the light of
what has been stated above. On a consideration of the entire facts and
circumstances stated above, this Court is of the definite view that the
petitioner is entitled to succeed.
Therefore, the writ petition is allowed.
It is hereby
declared that Rule 29(a) Part III KSR is unconstitutional and
ultra-vires insofar as it denies pension to the persons like the
petitioner, who resigned from service not on account of any disciplinary
proceedings or intended disciplinary proceedings.
Exts.P4, P6, P9,
P11 and P13 orders are quashed and; the matter is remitted back to the
1st respondent for considering the case of the petitioner in exercise of
powers conferred under Rule 11 Part III KSR in the light of what has
been stated in this judgment and with reference to Exts.P7 and P8 after
affording the petitioner an opportunity of being heard.
This exercise shall be completed within a period of three months.
To facilitate an
early disposal, it shall be open to the petitioner to produce a copy of
this judgment along with the copies of Exts.P7 and P8 before the 1st
respondent within a period of one month.
Sd/- A.V. RAMAKRISHNA PILLAI, JUDGE
bka/-
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