VALSAN P.versusTHE STATE OF KERALA AND ORS.

72                      [2021]REPORTS
              SUPREME COURT    10 S.C.R. 72              [2021] 10 S.C.R.


A                                VALSAN P.
                                      v.
                   THE STATE OF KERALA AND ORS.
                       (Civil Appeal No. 6292 of 2021)
B                            OCTOBER 21, 2021
                [M. R. SHAH AND A. S. BOPANNA, JJ.]
            Service Law: Pension – Appellant worked in Telecom
     Department during the period 05.02.1974 to 31.05.1984 – On
     04.06.1984, he joined Public Sector Undertaking owned by State
C
     Government and worked there till 31.05.1987 – On 31.05.1987,
     through Public Service Commission, he joined the Technical
     Education Department and served there for 19 years and on
     reaching superannuation, retired on 30.06.2006 – Appellant made
     claim for pension, by reckoning the service rendered during the
D    period 05.02.1974 to 31.05.1984 in the Telecom Department which
     was service under Central Government – Held: Government Order
     dated 24.09.2014 made with reference to Rule 29(a) Part III Kerala
     Service Rules indicated 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
E
     reckoned as qualifying service for pension – The said Government
     Order 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
F    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
     – Appellant entitled to relief claimed.
G          Allowing the appeal, the Court
           Held: 1. 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
H    Department under the State Government from 31.05.1987, till
                                      72
         VALSAN P. v. THE STATE OF KERALA AND ORS.                    73


his retirement on attaining the age of superannuation on              A
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
                                                                      B
a disconnect between the two different pensionable service
rendered by the appellant and the same needs to be condoned to
provide a single block of pensionable service. [Para 7][77-A-C]
      2. The case of the appellant is not that the non-pensionable
service rendered in the State PSU is also to be reckoned and the
entire service from 05.02.1974 to 30.06.2006 is to be admitted        C
for computing the pensionary benefits as assumed by the High
Court. What the appellant seeks is to exclude the service
rendered in State PSU 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        D
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. [Para 8][77-D-F]           E

       3. Rule 29, Part III Kerala Service Rules, 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 non-pensionable employment. However, what is         F
required to be examined is the availability of provision to condone
such break. 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      G
in which it is favourable to the person in service. [Para 10]
[78-B-D]
      4. In terms of Government Order dated 12.11.2002, though
the benefit of reckoning the earlier pensionable service between
Central Government and State Government was provided, it was          H
74           SUPREME COURT REPORTS                     [2021] 10 S.C.R.


A    subject to remitting the proportionate prorata 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 Order dated 12.11.2002,
     the State Government has done away with the proportionate
     prorata sharing between the two employers for payment of
B
     pensionary benefits. The State Government has notified to bear
     the pensionary benefits. 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
C    the break in service is condoned as sought by the appellant, then
     the entire relief would be available at the hands of the State
     Government. [Paras 11, 12, 13][79-C-D, G-H]
            5. Government Order dated 24.09.2014 was made with
     reference to Rule 29(a) Part III KSR. A perusal of the
D    Government Order dated 24.09.2014 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 KAT had taken note of the entire sequence and
     had rightly noted that the issue had not been settled and not
E    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 Government Order has taken note of the several
     requests received to reckon the prior qualifying service. Further,
F    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 was claimed immediately on retirement and
G    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. The KAT was justified
     in its conclusion and High Court has erred in setting aside the
     same. [Paras 14 and 15][80-B, F, G-H; 81-A-C]
H
          VALSAN P. V. THE STATE OF KERALA AND ORS.                            75


        CIVIL APPELLATE JURISDICTION: Civil Appeal No.6292 of                  A
2021.
       From the Judgment and Order dated 21.05.2019 of the High Court
of Kerala at Ernakulam in OP (KAT) No.468 of 2017.
       P. V. Surendranath, Sr. Adv., Subhash Chandran KR, Biju P.
Raman, Ms. Lekha Sudhakaran, Ms. Resmitha R. Chandran, Advs. for               B
the Appellant.
       C. K. Sasi, Abdullah Naseeh, Ms. Meena K. P., Advs. for the
Respondents.
       The Judgment of the Court was delivered by
       A. S. BOPANNA, J.                                                       C
       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              D
dated 14.11.2016 passed by the Kerala Administrative Tribunal,
Thiruvananthapuram (for short ‘KAT’) in O.A. No.975 of 2015. 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.
                                                                               E
       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              F
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      G
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 26.07.2006 however informed that since the break between the
Central Service and State Service is nearly three years, unless the same       H
76            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A    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
B
     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
C    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
     State-owned PSU. Hence, the appellant requested the exercise of power
D    under Rule 39 of Part 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.
E           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
F    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
G    Government seeking to reckon the same. The High Court, therefore
     without addressing the real issue has set aside 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.
H
          VALSAN P. V. THE STATE OF KERALA AND ORS.                           77
                        [A. S. BOPANNA, J.]

      7. To put the matter in perspective, it is to be noted at the outset    A
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
                                                                              B
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          C
the 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 non-pensionable service rendered in
‘SILK’ is also to be reckoned and the entire service from 05.02.1974 to       D
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              E
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.                                                                   F
       9. With reference to the consideration made by the State
Government in rejecting the claim of the appellant, the learned 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       G
time admissible under the service Rules. The said Rule reads as hereunder:
                           “Rule 29 Part III KSR
      29. Resignation andDismissal. - (a) Resignation of the Public
      Service or dismissal or removal from it, entails forfeiture of past
      service.                                                                H
78             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A          (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”.
B           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 non-pensionable employment. However, what
     is required to be examined is the availability of provision to condone
C    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:
D
                            “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
E          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
F          by those rules or orders.
                 This amendment shall be deemed to have come into force
           with effect from 17thDecember 1958.”
            11. In that backdrop, having noted that the appellant’s first spell of
     pensionable service was under the Central Government and the second
G    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
H          to order that the employees of the State Government Departments
          VALSAN P. V. THE STATE OF KERALA AND ORS.                           79
                        [A. S. BOPANNA, J.]

      who left the former service in Central Government/ Central Public       A
      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
                                                                              B
      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 re-opened.”
        12. Though the benefit of reckoning the earlier pensionable service   C
between Central Government and State Government was provided, it
was subject to remitting the proportionate prorata 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 Order dated 12.11.2002, the State Government
has done away with the proportionate prorata sharing between the two          D
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    E
      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 Governmentservant
      permanently belongs at the time of retirement and no recovery of        F
      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    G
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 Government. Therefore, the solitary moot question for consideration
in the instant case is, as to whether the break in service interrupting the   H
80             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A    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 non-qualifying sandwiched period was provided for, to reckon the
B    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
C          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.

D          2) Several requests have been received in Government to
           reckon the prior qualifying service for pension after condoning
           the non-qualifying sandwiched service as break without
           forfeiture of past service.
           3) Government have examined the matter in detail and are
E          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
F    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
G    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 Government Order in para 2 has
H
           VALSAN P. V. THE STATE OF KERALA AND ORS.                           81
                         [A. S. BOPANNA, J.]

taken note of the several requests received to reckon the prior qualifying     A
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
                                                                               B
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      C
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.                                      D
       16. The appeal is accordingly allowed with no order as to costs.
       17. The pending applications, if any, shall also stand disposed of.


Devika Gujral                                                Appeal allowed.   E




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