BABU M. POULOSE Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) The petitioners in the above two writ petitions have initially commenced the service in the Posts & Telegraphs Department (P & T Department) of the Government of India and had applied for appointment as Sub Engineer in the Kerala State Electricity Board through the selection by Kerala Public Service Commission. Upon such selection, they were offered appointment in the Kerala State Electricity Board and they had on their own volition left the service of the P & T Department of the Government of India and had joined the service of Kerala State Electricity Board. It is their case that their prior service in the P & T Department of the Government of India is liable to be counted for the purpose of reckoning pensionable service at the time of their retirement from the Kerala State Electricity Board and also that they are entitled for weightage for this prior service, for regulating their pay, in terms of the long time settlement arrived at by the Kerala State Electricity Board with effect from 08/02/1995. The respondent-Electricity Board objects to the grant of such relief on the ground that the petitioners had failed to produce relevant documents and materials from the P & T Department of Government of India to show that their erstwhile employer had given consent/no objection before they had applied to the Kerala Public Service Commission for the latter appointment in the Kerala State Electricity Board. The primary objection of the Electricity Board in the matter of the prayer for reckoning the prior service in the Government of India as pensionable service under the Electricity Board is that as per the impugned Board order dated 01/09/2005 [Ext. P7 in WP (C) No. 31995/2006 and Ext. P3 in WP (C) No. 9102/2006], the reckoning of such prior service as pensionable service in the Board can be granted only on realisation of pro rata pension liability from the Departments of the Government of India/Central autonomous body concerned and further that in case the former employer is not willing to pay such pro rata contribution, then the employee concerned cannot be permitted to pay such amount from their own pockets to the respondent-Board. The petitioner in WP (C) No. 31995/2006 had served in the P & T Department of the Government of India for the period from 06/09/1978 to 13/07/1989 (around ten years and ten months) and had joined the regular service of the respondent-Board as Sub Engineer on 15/07/1989 pursuant to selection by the Kerala Public Service Commission. The petitioner in WP (C) No. 9102/2006 had service in the P & T Department of the Government of India for the period from 13/07/1982 to 25/11/1989 (around seven-and-a-half years) and had joined the regular service of the respondent-Board as Sub Engineer from 25/11/1989. Both the petitioners had furnished the relevant service certificates from the P & T Department of the Government of India to the respondent-Board. It is also admitted by them that both had left the service of the Government of India on their own volition so as to take up regular employment under the respondent-Board. While processing their claims, the respondent-Board directed them, as evident from Ext. P3 dated 19/12/2003 in WP (C) No. 31995/2006, to produce documentary proof to show that their applications for recruitment in the respondent-Board was routed through their former employer and with their permission. The petitioners made attempt to get such materials from the P & T Department of the Government of India and as evident from Ext. P5 dated 01/10/2003 [produced in WP (C) No. 31995/2006] the authorities of the Department of Posts of Government of India had duly informed that such records are no longer available with them at that distance of time presumably due to destruction of records. The sheet anchor of defence of the respondent-Board is on the basis of the aforementioned impugned Ext. P7 Board order dated 01/09/2005, which according to them, mandates that the benefit of counting the prior service as pensionable service in the Board can be granted only if the pro rata contribution is actually paid by the Government of India to the Department concerned and that even payment by the incumbents concerned from their own pockets in respect of such pro rata amount is not acceptable at any cost. The Board order fully admits the applicability of certain Government orders issued by the Government of Kerala in the matter of reckoning prior service of such incumbents under the latter employer. The only main objection is that the pro rata contribution should necessarily be paid by the former employer.

(2.) As regards the first objection of the respondent-Board regarding non-production of documentary proof to show that the petitioners had secured prior permission from the Postal Department of the Government of India before they had applied for selection through the Kerala Public Service Commission for appointment to the respondent-Board, it is to be noted that the aspects relating to application by an employees of the Central Government/other State Government for selection through Kerala Public Commission to entities under the Government of Kerala are governed by the provisions of statutory rules. The rules are titled as the "Kerala Government Servants' Application for Posts (Private Employment and Government Service) Rule, 1958", framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India and is deemed to be treated as statutory rule by virtue of the subsequent enactment in the Kerala Public Services Act. Rule 2(A) of the above said 1958 Rules reads as follows:

(3.) Now the issue of primary objection of the respondent-Board is to be considered. The 4th respondent in WP (C) No. 9102/2006 has filed a counter-affidavit pertaining to the state of affairs in the P & T Department. In the said counter-affidavit it is stated that as per the office memorandums issued by the Government of India as per Ext. R4(1), even in the case of Government servants (temporary/quasi-permanent/permanent) who have rendered technical resignation on their selection for service in another Central Government department (including Railways/P & T/Defence departments) the liability of pension including gratuity will be borne in full by the Department to which the Government servant permanently belongs at the time of retirement and that this is so even when such a Government servant of the Central Government is transferred to the State Government. Therefore, it is stated that the question of allocation of pension between such departments would not arise and that the liability for pension will be borne in full by the department to which the Government servant permanently belongs at the time of retirement.