PHILIP NINAN Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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G.VISWANATHA IYER,J. -
(1.) PLAINTIFF is the appellant in this second appeal.The suit is for realisation of the balance of Provident Fund contribution alleged to be due to him.Plaintiff entered service as a teacher in 1926 in the St.Thomas High School,Kozhencherry which was run by a private management.Plaintiff retired as Headmaster from the said school on 30th March 1962.He was a subscriber to the Travancore Licensed Teachers Provident Fund from Kumbham 1115 in Account No.1254.At that time the teacher,the manager and the Government were to contribute to the fund.The age of superannuation was fixed as 55.In 1950 after the introduction of the P.S.T.Scheme the age of retirement was raised to 60 and a fund known as the Acceded Secondary School Teachers Provident Fund was constituted.Plaintiff became a subscriber to that fund and to this fund also the manager and the Government contributed.In 1959 with the introduction of the Kerala Education Act,all the aided schools came under the scope of this Act and the rules framed thereunder.At that time there were some teachers like the plaintiff continuing in service who had completed 55 years but not 60 years.A new Contributory Provident Fund was constituted by the Government and to this the Government and the teacher alone contributed.The plaintiff opted to come under the new scheme with effect from 1st July 1961(the date of constituting the new fund)and continued to contribute till the end of January,1962.After his retirement he applied for the closure of his Provident Fund account.According to him the amount due to him was Rs.5,327.56 on that date.But orders were issued by the Regional Deputy Director of Public Instruction on 6th August 1965 fixing the amount due to him at Rs.4,607.65 only.He received this lesser amount under protest and then filed suit for the balance.Defendant -respondent,namely the State of Kerala contended that since the plaintiff joined the new scheme and became eligible for pension under the provisions of the Kerala Education Rules the Government contributions after he attained the age of 55 are not payable and therefore the amount paid to him was alone legally due.The trial court on a consideration of the various provisions of the K.E.R.and the circulars issued,came to the conclusion that the amount,claimed by the plaintiff is due to him,and hence granted a decree.On appeal the lower appellate court came to a different conclusion and dismissed the suit.Hence this second appeal.
(2.) AS stated in the statement of facts,aided school teachers had to be subscribers to Travancore Licensed Teachers Provident Fund and they also continued to subscribe to the Fund introduced by the P.S.T.Rules which raised the age of retirement to 60.As per these rules issued by the Government,the teacher,the manager and the Government had to contribute to the fund and the teacher was entitled to get the amount so credited in the account on his retirement.Under the K.E.R.special provision is made for constituting a Contributory Provident Fund and the teachers are compulsorily directed to subscribe to that fund.Chapter XXVII(A ),Rule 2,makes provision for this compulsory contribution by the teacher.That rule is in the following terms:" 2.( i)Every teacher shall subscribe to the Contributory Provident Fund to be instituted by the Government in accordance with the rules to be framed regulating that fund.Government shall also contribute in respect of each subscriber at the rate of 3 Naye paise per rupee on the pay drawn by such subscriber during a financial year. Note."Pay for purpose of this rule means basic pay drawn by a subscriber exclusive of all allowances.
(ii)The Government contribution shall cease from the date on which the teacher retires or attains the fifty -fifth year of age,whichever is earlier.
Under Chapter XXIX provisions are made for regulating the Contributory Provident Fund constituted under Rule 2(i)of Chapter XXVII(A ).Under Rule 4 of Chapter XXIX teachers like the petitioner are directed to subscribe to the fund.Rule 8 of the same chapter makes provision for Government contribution.But,rule 8(3)provides that the Government contribution shall cease from the date on which the teacher retires or attains the 55th year of age,whichever is earlier.The contention of the respondent is that since the plaintiff is governed by the new rules under the K.E.R.Government contributions after he attained the age of 55 should be deducted from the contributions already made to his account in the fund.But,the appellant's counsel relies on Note(1)to rule 4 of Chapter XXIX which is in the following terms:"
˜In the case of teachers mentioned in sub -rule(a)the amounts to their credit in their existing Provident Fund Accounts(including the Government contributions,the Manager's contributions and interest thereon accrued under the relevant rules up to and inclusive of 30th June 1961)shall be credited to their accounts in this New Fund when they are admitted to the same ;.
and contends that plaintiff is entitled to the contributions of the Government till 30th June 1961.Chapter XXIX came into force from 1st July 1961 and the plaintiff became a subscriber to the new fund constituted under the K.E.R.from that date.As per Note(1)of Rule 4,the amount to his credit on that date including the Government contributions,the manager's contributions and - the interest thereon stands credited to his account in the new fund.Ext.P -5,a copy of his Provident Fund account,shows that it has been so credited.Rule 8(3)only provides that there will not be any Government contribution to the subscriber's account in the new fund after he attains the age of 55.As stated earlier,the new fund was constituted with effect from 1st July 1961,and since the plaintiff was beyond 55 years on that date,from that date Government contribution shall cease.But,as there is no provision for reverting the contributions already made by the Government up to the date of the plaintiff's joining the new fund,he is entitled to get that amount also when he retired on 30th March 1962.In this connection a reference to Chapter XXX of the K.E.R.is also relevant.That chapter came into force from 1st April 1967 after the plaintiff retired.Under Rule 5(2)there is a specific provision made for reverting the Government contribution to Government from 1st April 1967.This shows that until then there was no provision for reverting to Government the contributions made by the Government to the subscriber's Provident Fund account.I agree with the trial court that the circulars of the D.P.I.and R.D.D.P I.relied on by the respondent cannot override the provisions of the statutory rules in Chapter XXIX.The lower appellate court did not correctly understand the effect of Note(1)to rule 4 of Chapter XXIX and went wrong in dismissing the suit.So I agree with the trial court that the amount claimed by the plaintiff is due to him.
In the result,I set aside the judgment and decree of the lower appellate court and restore that of the trial court.The appellant is entitled to his costs in the lower appellate court and in this Court from the respondent.;
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