SABU ZACHARIAS Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS are the heirs of late V. S. Kuncheriya, who while working as Professor of Physical Education in Mar Ivanios College , Trivandrum (within the jurisdiction of Kerala University )died on 20-7-1981 after completion of 56 years of age. Admittedly he had opted to be governed by Chapter III of the First Statutes in respect of Pension, provident Fund, Gratuity, Insurance and Age of Retirement of teachers of private colleges (for short 'the First Statutes' ). PETITIONERS complain of non-payment of family pension benefit. D. C. R. G. compassionate gratuity and provident fund, amount due to them by virtue of their being heirs of the deceased and have filed the original petition seeking appropriate writs of mandamus. According to them, Ext. P2 communication holding that they are not entitled to compassionate gratuity and Ext. P8 communication re-iterating the same stand are liable to be quashed.

(2.) COUNTER-affidavit has been filed on behalf of the second respondent. First Statutes have been issued by the Government under S. 33 of the Kerala University Act. 1974. R. 3 of the Statutes provides that except as otherwise provided, age of compulsory retirement of private college teachers shall be 55 years. R. 4 provides that teachers who were to service prior to 1-4-1958 shall have the right to retire at the age of 60 years and also to be governed by the provisions of Chapter III of the Statutes. Those who retire at the age of 55 are governed by the provisions of Chapter II of the Statutes and they are entitled to pension and gratuity as in the case of government employees as laid down in the Kerala Service Rules. Those who opt for Chapter III of the Statutes and continue in service till the completion of 60 years of age are not eligible for full pension or gratuity. They are eligible for pension only at the reduced rate. Dependents of those optees are not entitled to payment of family pension. But the Government as per order dated 30-1-1984 (Ext. R2 (a)) extended certain concessions in the matter of payment of family pension to the members of the families of such teachers (that is subject to maximum of 75 percent of the family pension which would have been admissible bad the teacher opted for Chapter ii and it is subject to certain other restrictions also ). Petitioners do not satisfy the requirements of sub-rules (6) and (7) of R. 90 of Part III KSR. so as to become entitled for payment of family pension. Teachers who opt for chapter III of the Statutes are not eligible for gratuity. Compassionate gratuity is payable only to a teacher who died before the commencement of the statutes. Petitioners' father died long after such date. Petitioners' father was not a subscriber to the Kerala Private College Teachers Provident Fund, principal of the college had recovered Rs. 1230/- from the salary of the teacher and credited it to the fund. Recovery and credit were irregular, deceased not being a subscriber. Principal has been directed to withdraw the amount and pay it to the legal heirs of the deceased. Petitioners are not entitled to any relief.

(3.) I will now refer to the relevant R. 10 Chapter III of the First Statutes. R. 16 states that the service of teachers in private colleges beyond the age of 55 shall not qualify for pension and gratuity under the Statures. R. 17 states that in computing the length of service for calculation of pension and gratuity, continuous service shall alone be reckoned as qualifying service. Time passed on leave of any kind shall be allowed to count as qualifying service to the extent provided under R. 26 of Part III of the Kerala Service Rules. R. 18 deals with time of eligibility for pension and gratuity. It states that a teacher shall be eligible for payment of pension and gratuity, as the case may be, on retirement after attaining the age of superannuation or on voluntary retirement after completing a qualifying service of 20 years or on discharge due to the abolition of the post or on discharge due to invalidation on medical grounds. The heading of R. 19 is "eligibility for pension". A teacher shall be eligible for pension if he has rendered total qualifying service of ten years or mom. The rule also states that if the qualifying service is less than ten years, but not less than five years, gratuity equal to one-half of month's emoluments last drawn for each completed year of service shall be paid. No gratuity shall be admissible to a teacher who has put in a qualifying service of less than five years. R. 20 deals with compassionate gratuity; this rule cannot be invoked in this case and there is no claim thereunder.