Antony Dominic, J. 1. The appeal is filed against the judgment of the learned single Judge dismissing W.P(C).5401/06 filed by the appellant.
2. We heard the learned counsel for the appellant and the learned senior counsel appearing for respondents 1 and 2.
3. The appellant was working as a Senior Accountant under the third respondent. According to him, he had rendered about 17 years of service under the third respondent. While so, by Ext.P1 notification, applications were invited by the Public Service Commission for filling up the post of Finance Officer
He was selected and was finally advised for appointment. Accordingly, pursuant to Ext.P4 appointment order issued on 5.5.1994, he joined the service of the first respondent Electricity Board. Subsequently, by Ext.P4(3), it was declared that he had satisfactorily completed his probation under the first respondent.
4. On attaining the age of superannuation, he retired from service on 31.3.2006. In the mean while, on 2.9.2004, the appellant submitted Ext.P8 representation to the first respondent, requesting to reckon his service under the third respondent for pensionary benefits. In that representation, he relied on Ext.P5 Board Order dated 12.3.1992, which provided for reckoning of previous services rendered by persons who were in the service of the State Government Departments or quasi-government organisations and got absorbed into the service of the first respondent. The representation was finally rejected by Ext.P11 order dated 14.12.2005 for the reason that the previous employer, the third respondent, had refused to remit pro-rata contribution.
5. Ext.P11 order was passed relying on Ext.P10 dated 1.9.2005 issued by the first respondent modifying Ext.P5 and providing inter alia thus:
“A number of representations from the Board employees who have prior service elsewhere are pending disposal in the Board for want of clarification. On detailed examination of the cases, the Board in its meeting held on 22.08.2005 decided to accord sanction to the following:-
(1) Continue to count the prior service in the Departments of Government of India/Central Autonomous body rendered by the Board employees as provided in the G.O.(P) No.369/87/Fin dated 31.03.1987 and G.O.(P) No.703/2002/Fin dated 12.11.2002 for the purpose of pension in the Board, subject to realization of the pro-rata pension liability from the Departments of Government of India/Central Autonomous body concerned.
(2) Continue to count the past service rendered by the Board employees in the Kerala State Government Departments for the purpose of pension in the Board, without insisting the Kerala State Government Departments to pay the pro-rata pension liability to the Board.
(3) Count the past service rendered by the Board employees in the Kerala State Public Sector Undertaking/ Autonomous bodies for the purpose of pension to the Board, subject to realization of the pro-rata pension liability from the Kerala State Public Sector Undertaking/Autonomous bodies.
(4) Fix a time limit of one year from joining the Board for the Board employee who desires to apply for counting the past service, if any, for the purpose of pension in the board and to make applicable this time limit in future cases. A time limit of one year from 01.09.2005 will be allowed to the existing employees to apply for counting the past service, if any, for the purpose of pension. Request made after time time limit will not be entertained.”
6. It is in these circumstances, the appellant filed the writ petition, where, apart from praying to quash Ext.P11, he also prayed for a writ of mandamus to direct the third respondent, his previous employer, to remit the pro-rata pension contribution to the first respondent and also to direct respondents 1 and 2 to reckon the former services rendered by him under the third respondent.
7. The writ petition was resisted by respondents 1 to 3 and finally, learned single Judge, by the judgment under appeal, dismissed the writ petition. It is in these circumstances the appeal is filed.
8. Learned counsel for the appellant contended that the appellant entered the service of the first respondent mainly attracted by Ext.P5, which entitled him to have his previous services under the third respondent also reckoned for the purpose of pension and other terminal benefits. According to him, therefore, it was not open to the Board to have issued Ext.P10, making it obligatory on the part of the previous employer to remit pro-rata contribution for the services rendered under that employer in order to get the previous service also reckoned for pensionary benefits from the subsequent employer. He, therefore, contended that Ext.P10 cannot be pressed into service to his prejudice and that his entitlement should be determined on the basis of Ext.P5.
9. Although we have considered the submissions, we are unable to agree with the learned counsel. Going by Ext.P11, which alone was under challenge in the writ petition, in so far as persons who have rendered previous service under the State Government are concerned, the State Government is absolved of the liability to remit pro-rata contribution for the period of their service under it. On the other hand, in so far as persons like the appellant who had rendered prior service under the public sector undertakings of the State Government are concerned, their previous services will be reckoned for pension only if the pro-rata contribution is remitted by the previous employer.
10. Such liability for remitting pro-rata contribution for the period of the previous employment can be fastened on the previous employer only in a case where the services under the previous employer is also a pensionable one. In so far as this case is concerned, not only that there is no averment in the pleadings that the service under the third respondent was a pensionable one, but also, the finding of the learned single Judge which is not disputed before us also show that the services under the third respondent was not a pensionary one. If that be so, the appellant could not have sought for the first prayer in the writ petition to require the third respondent to remit the pro-rata contribution to the first respondent nor could have the appellant required respondents 1 and 2 to count his previous service under the third respondent for pension. For that reason itself, the claim of the appellant should have been negatived by the learned single Judge.
11. In so far as the applicability of Ext.P10 is concerned, the right of the employer to modify the conditions of service cannot be disputed. Although it is true that at the time when the appellant entered service, Ext.P5 issued on 12.3.1992 was in force, prior to his retirement on 31.3.2006, it was modified by the employer by Ext.P10 order dated 1.9.2005. Therefore, as on the date of his retirement, when he gets a vested right for pensionary benefits, his conditions of service were regulated by Ext.P10, which applied to all persons who were in employment of the first respondent from 1.9.2005. In such circumstances, we are unable to accept the case of the appellant that though his retirement was only on 31.3.2006, his conditions of service were regulated by Ext.P5 and not by Ext.P10.
12. Learned counsel for the appellant relied on the judgment of this Court in Mustapha Rowther v. State of Kerala [1982 KHC 135] and contended that similar case has been decided in favour of a pensioner. However, a reading of the judgment shows that though the pensioner therein was eligible for the benefit of rule 25(a) of Part III K.S.R., that entitlement was sought to be negatived by the authorities relying on an executive decision. It was therefore that this Court held that by a Government decision, something which was not provided in the rule, was sought to be read into the rule and that it was impermissible. It was on that basis, relief was granted to the appellant in that case. The facts herein are totally incomparable and therefore, the principles laid down in that judgment cannot be relied on to decide this matter.
13. Counsel then placed reliance on the Apex Court judgment in N.C.Singhal v. Director General, Armed Forces Medical Services, New Delhi [1972 KHC 744]. A reading of the facts of that case also show that the conditions of service of the appellant therein was sought to be altered by an administrative instruction which was given retrospective effect. In so far as this case is concerned, as we have already found, much prior to the retirement of the appellant, Ext.P10 order was issued on 1.9.2005. This would show that the facts of the case decided by the Apex Court are totally different and incomparable to the case of the appellant herein. Therefore, the principles laid down by the Apex Court cannot be called in aid to decide the case of the appellant.
14. For the aforesaid reasons, we fully concur with the view of the learned single Judge that the appellant could not have demanded that the prior service rendered by him under the third respondent should be reckoned for his pensionary benefits from the 1st respondent Board.
Writ appeal fails. It is therefore dismissed.
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ANTONY DOMINIC, Judge.
kkb.
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D.SESHADRI NAIDU, Judge.
/True copy/ PS to Judge