KOCHANIYAN Vs. COCHIN PORT TRUST
HIGH COURT OF KERALA
COCHIN PORT TRUST
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(1.) Whether the petitioner who retired from the service of the first respondent in June, 1994 is entitled to the benefit of amendment to the Cochin Port Employees (Recruitment, Seniority and Promotions) Regulations, 1964 (hereinafter referred to as 'the Regulations') as amended in 1995 as per notification dated 15.3.1995 is the short question that arises for consideration in this Original Petition. Ext. P2 is the amendment notified on 15.3.1995. The amendment provides that benefit of R.30(1) of the C.C.S. (Pension) Rules, 1972 will be applicable to the scheduled employees. There is no dispute that the petitioner was a scheduled employee as per the Regulations. R.30 of the C.C.S. (Pension) Rules reads as follows:
"30. Addition to qualifying service in special circumstances
(1) (A Government servant who retires from a service or post after the 31st March, 1960, shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one-fourth of the length of his service or the actual period by which his age at the time of recruitment exceeded twenty-five years or a period of five years, whichever is less, if the service or post to which the Government servant is appointed is one -
(a) for which post graduate research, or specialist qualification or experience in scientific, technological or professional fields is essential; and
(b) to which candidates of more than twenty-five years of age are normally recruited.
Provided that this concession shall not be admissible to a Government servant unless his actual qualifying service at the time he quit Government service is not less than ten years.
Provided further that this concession shall be admissible only if the recruitment rules in respect of the said service or post contain a specific provision that the service or post is one which carries the benefits of this rule.
Provided also that this concession shall not be admissible to those who are eligible for counting their past service for superannuation pension unless they opt before the date of their retirement, which option once exercised shall be final, for the weightage of service under this sub-rule forgoing the counting of the past service.
(2) A Government servant who is recruited at the age of thirty-five years or more, may within a period of three months from the date of his appointment, elect to forgo his right to pension whereupon he shall be eligible to subscribe to a Contributory Provident Fund.
(3) The option referred to in sub-r.(2) once exercised, shall be final."
(2.) It may be seen from the first proviso that the concession is admissible only if the recruitment rules in respect of the said service or post contains provision in that regard. As far as the first respondent Port Trust is concerned, a resolution was taken on 29.9.1993. To the extent relevant, the resolution reads as follows:
"After detailed discussions, Board resolved to approve the proposal to grant the benefit of added years of service not exceeding one fourth of the length of service or the actual period by which the age at the time of recruitment exceeded 25 years or a period of 5 years, whichever is less for the purpose of superannuation pension in terms of R.30(1) of C.C.S. (Pension) Rules, 1972 as amended from time to time to the incumbent of the following posts and to incorporate a note as under to this effect in the relevant Recruitment Rules appended as SCHEDULE "A" to the Cochin Port Employees (Recruitment, Seniority and Promotion) Regulations, 1964.
2. Dredger Commander
3. Engineer-in-Charge, Hopper Barges/Dredgers/Tugs.
NOTE: Those Officers appointed to the post and continue to hold the same, and those officers appointed initially to the post and subsequently promoted to higher posts, will be eligible for added years of service qualifying for superannuation pension in terms of R.30(1) of the C.C.S. (Pension) Rules, 1972, as amended from time to time."
(3.) S.124 of the Major Port Trusts Act, 1963 provides that the Regulations will come into effect only if it is approved by the Central Government and the approval has been published in the Official Gazette. There is no dispute as to the competency of the first respondent under S.28(b) to provide for a regulation as proposed in the resolution. It is seen from Ext. P2 that the first respondent Central Government notified the Regulations only on 15.3.1995. However, it is significant to note the introductory paragraph of the notification which reads as follows:
"G.S.R.135(E) - In exercise of the powers conferred by sub-s.(1) of S.124 read with sub-s.(1) of S.132 of the Major Port Trusts Act, 1963 (38 of 1963), the Central Government hereby approves the Cochin Port Trust Employees (Recruitment, Seniority and Promotion) Amendment Regulations, 1995 made by the Board of Trustees for the Port of Cochin and set out in the Schedule annexed to this Notification."
Therefore, it has to be seen that the Central Government has taken a decision to approve the resolution as such. But, it is provided further that the "said regulations shall come into force on the date of publication of this notification in the Official Gazette." The date of notification in the Gazette is 15.3.1995. It is the stand of the second respondent that the Regulations specifically provide for date of coming into force, namely, the date of publication 15.3.1995 and hence, the petitioner is not entitled to the benefit of the amended regulation since admittedly, he retired in June, 1994. However, it is the submission of Sri. Ananthasivan, learned counsel appearing for the petitioner that there cannot be two classes of pensioners in the Cochin Port Trust since the note to the amended regulations provided that "those officers appointed to the post and continue to hold the same and those Officers appointed initially to the post and subsequently promoted to higher posts, will be eligible for the added years of service qualifying for superannuation pension in terms of R.30(1) of the C.C.S. (Pension) Rules, 1972.;
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