Subhadra vs State of Kerala and Others

K. Sreedharan, Actg. C.J.

Petitioner in O.P. 9077/1993 is the Appellant. She retired from service on 31st March 1990 while working as teacher in Government Upper Primary School, Puthencruz. Her claim for pension was processed on the basis that she had Government service as primary teacher with effect from 4th February 1963. In other words, the continuous service of 27 years, one month and 28 days m Government School alone was taken into consideration in computing the pensionary benefits. Petitioner claims that she had put in 2 years and 11 months service in an aided school. If that service is also tacked on to the service rendered by her in the Government school, then the entire service put in by her comes to 30 years and 28 days. Claim put in by her to have her pensionary benefits computed on the basis of 30 years and 23 days service was not conceded by the department. Hence she approached this Court by filing the Original Petition. Learned Single Judge, by judgment dated 24th November 1995, dismissed the petition. Hence this appeal.

The Service Book in relation to ''the Petitioner shows that she had previous aided school service as Assistant Teacher in Lower Primary School at Pinarmunda for a period of two years and eleven months from 22nd July 1959 to 21st June 1962. Column 6 of page 16 in Form IV of the Service Book, the reason for termination of the said appointment is shown as "resignation". This means that Petitioner who was working as Assistant Teacher in Lower Primary School, Pinarmunda from 22nd July 1959 resigned from service on 21st June 1962. Thereafter, she joined Government service as a Primary Teacher on 4th February 1963, after a break of service for seven months and thirteen days.

Rule 14 E of Part III K.S.R. states:

Aided school service put in by Government employees prior to entry in Government service qualifies.

This rule came into effect from 24th January 1968. Even though the rule does not mention the conditions for treating the aided school service put in by Government employees prior to their entry in Government service for treating their service as qualifying period for pensionary benefits, Government have taken decisions on that aspect of the matter. 3rd decision of the Government states:

In cases of resignation of the appointment in aided school service for the purpose of taking up Government employment, break if any, between the aided school service and the Government service should not exceed the joining time admissible under the service rules plus public holidays. Service prior to resignation for other reasons will not count.

Learned Counsel representing the Appellant argues that the Government decision cannot override the provision contained in Rule 14E. Rule 14E imposes no restriction whatsoever in adding the prior service rendered in the aided school for computing the pensionary benefits. We are not impressed with this argument. The provision contained in Rule 14E should be understood in the manner in which it was understood and brought into force by the Government. The Government have categorically stated that the prior service should not be one terminated on tendering resignation. In the case of resignation for taking up employment under Government, the break in between the aided school service and the Government service should not exceed the joining time admissible under the service rules. It also states that if the resignation was not for taking up Government employment, then the service prior to resignation should not be counted for calculating the pensionary benefits. At this juncture, it is worthwhile to note the provision contained in Rule 29 of Part III K.S.R. Clause (a) of that rule states that resignation of a public service entails for-feature of past service. Rule 29(b) deals with resignation of an appointment to take up Anr. appointment. In such a case, the resignation from the first post will not be taken as resignation from public service. But, that is subject to the Note to that Clause, which says that the break between the two appointments should not exceed the joining time admissible under the service rules plus the public holidays. The provision contained in Rule 29(b) is contained in Government decision No. 3 following Rule 14E. So, the Government decision quoted above is not an administrative decision to whittle down the effect of Rule 14E. But. it is only one giving effect to the provision contained in Rule 29 of Part III K.S.R. Viewed in this light, we do not find our way to ignore the mandates contained in Government decision No. 3. It therefore follows that Government decision No. 3 cannot be ignored on the ground that it goes against the statutory provision contained in Rule 14E.

In the instant case, the Service Book of the Petitioner shows that she tendered resignation from the service in the aided school. The resignation, which is noted in the service record, does not make mention of the fact that the resignation was for taking up appointment in Government service. Further, the break between the date of resignation from the aided school service and the joining of the Government service is seven months and thirteen days. By no stretch of imagination can that period be treated as the joining time admissible under the service rules. So, as a result of the long break of service, Petitioner is not entitled to have the period of service rendered by her in the aided school tacked on to the service in the Government school.

In view of what has been stated above, we find no merit in this appeal. It is accordingly dismissed.