V.G. Arun, J.

1. Original petitions were filed by the State, challenging the orders by which the Kerala Administrative Tribunal allowed the original applications filed by State Government employees, directing service rendered by the applicants in statutory corporations and autonomous bodies, prior to their joining Government service, to be reckoned as qualifying service for the purpose of pension. The Tribunal had allowed the original applications based on the Division Bench decision of this Court in Mohammed Basheer A. v. State of Kerala and others [2014 (4) KHC 658 [LQ/KerHC/2014/2310] ]. In Mohammed Basheer, the Bench made a positive declaration regarding the entitlement of State Government employees to get their past service in autonomous bodies or public sector undertakings, reckoned as qualifying service for the purpose of pension. The declaration was made based on Rules 11 and 20 of Part III KSR read with the relevant Government orders. While considering these original petitions, a Division Bench, made a reference to a larger Bench, noticing that in P.K. Babu v. Chief Engineer, KSEB and others [2007 (1) KLJ 35], a contrary view was taken, finding pension to be payable only on the basis of the rules in Part III KSR, taking into account the qualifying service reckoned in terms of the said rules. It was also noticed that in Dileeb B v. Union of India and others [(2012) 3 KLJ 273], a learned Single Judge had, after careful scrutiny of all the contextually relevant Government orders, and Rule 20 of Part III KSR, expressed the same view as in P.K. Babu. For the purpose of making the reference, the Bench observed that the Government orders relied on in Mohammed Basheer to confer the benefit of reckoning past service in the autonomous bodies, did not postulate such reckoning of past service in autonomous bodies and that, in the absence of declaratory orders in terms of Rule 11 of Part III KSR, it is not the function of the court to extend the benefit, which is not covered by Rule 20 of Part III KSR.

2. Among these original petitions, in O.P.(KAT) No. 277 of 2018, the Tribunal denied the benefit of past service of the applicant in the Travancore Devaswom Board, holding that the Travancore Devaswom Board being an autonomous body established under the provisions of a separate enactment, namely, the Travancore Cochin Hindu Religious Institution Act, 1950; service rendered therein does not stand at par with the service in the statutory corporations or fully Government owned companies, which service was directed to be considered as qualifying service for the purpose of pension in Mohammed Basheer.

3. The issue involved in W.A. No. 1045 of 2019 is as to whether the aided School service of the writ petitioner could be reckoned as qualifying service along with her regular service in the Navodaya Vidyalaya. The writ appeal has been posted along with the other matters on the basis of a reference made by the Division Bench, on being apprised of the common reference order passed in these original petitions. In O.P.(KAT) No. 237 of 2019, on retirement of the applicant from the Sales Tax Department, his prior service with the KSEB was reckoned as qualifying service for the purpose of pension. The KSEB refused to remit the pro-rata pension contribution and on being called upon, the applicant remitted the amount. Thereupon, pension was computed and disbursed taking into account the applicant's past service with the KSEB. Much later, the decision was reviewed and the applicant's pension reduced, which was successfully challenged before the Tribunal.

4. In the other original petitions, as well as W.A. No. 1291 of 2018, the impugned order directs reckoning of past service of the applicants with statutory corporations and autonomous bodies and fully owned Government Companies like the Kerala State Housing Board, Kerala State Electricity Board, Kerala Water Authority, Kerala State Road Development Board, Kerala State Drugs and Pharmaceuticals Ltd. and the Kerala State Road Transport Corporation.

5. We had the advantage of hearing Sri. Antony Mukkath, learned Senior Government Pleader, who assailed the decision in Mohammed Basheer and M/s. B. Suresh Kumar, T.B. Hood, G. Sivasankar, S. Prasanth, M.R. Anison, Peter Jose Christo, Dr. K.P. Pradeep, Brijesh Mohan and Smt. Amrita Sanjeev, the learned Counsel, supporting the findings in Mohammed Basheer and contending the impugned orders to be legally valid and unassailable.

6. The learned Senior Government Pleader referred to Rule 10 of Part III KSR to contend that the service of an employee does not qualify for pension unless he is appointed, his duties regulated, and payment made by the Government or under conditions determined by the Government. Reference is also made to Rule 11 to submit that Rule 10 does not fetter the Government's power to declare any specified kind of service to be qualified for pension or, in individual cases, to allow the service rendered by an employee to be counted for pension. Rule 20 of Part III KSR is relied on to contend that service paid from a local fund would not qualify for pension, except under special orders of the Government. It is pointed out that the proviso to Rule 20, makes it possible to reckon the past service put in by Government employees and Aided School/Aided College Teachers in Panchayat/Municipal Common Service and Universities prior to their entry in State Government Service or Aided School/Aided College Service as qualifying service for pension and DCRG from Government. That, going by Rule 20, the past service of the applicants in public sector undertakings, autonomous bodies and Government owned companies cannot be reckoned for the purpose of their pension and DCRG from Government. According to the learned Senior Government Pleader, the subject involved in G.O. (P) No. 369/87/Fin. dated 31.03.1987 and G.O.(P) No. 383/89/Fin. dated 29.08.1989 relied on in Mohammed Basheer and G.O.(P) No. 703/2002/Fin dated 12.11.2002, were with respect to the reckoning of past service of State Government employees in Central Government and Central autonomous bodies and vice versa. It is hence contended that the declaration was made erroneously. According to the learned Senior Government Pleader, the decisions in P.K. Babu and Dileeb.B lays down the correct legal position, which unfortunately those were not accepted in Mohammed Basheer.

7. Leading the arguments on behalf of the applicants, Sri. B. Suresh Kumar contended that the judgment in Mohammed Basheer attained finality on dismissal of the Special Leave Petition filed against that judgment. The order in the SLP is produced as Ext. R1(c) in O.P.(KAT) No. 304 of 2019. Even though the Government filed review petitions against Ext. R1(c) order, that was also dismissed on the ground of delay as well as on merits, as could be seen from Ext. R1(d). The learned Counsel submits that, following the decision in Mohammed Basheer, the Tribunal has allowed a number of original applications and the Government has implemented the orders by reckoning past service of those employees in autonomous bodies and public sector undertakings as qualifying service for the purpose of pension and DCRG. It is the contention of the learned Counsel that the challenge against those orders was set at naught by this Court and the Honourable Supreme Court dismissed the Special Leave Petitions filed in some of the cases. It is argued that the benefit of reckoning past service having been extended to even Aided School Teachers, refusal to grant the same benefit to the applicants, is discriminatory.

8. Sri. G. Sivasankar attacked the reference order itself, contending the Division Bench to have made the reference on the premise of the decision in Mohammed Basheer having been rendered without noticing the earlier decision in P.K. Babu. It is submitted that at paragraph 11 of Mohammed Basheer, P.K. Babu was considered and distinguished. Drawing attention to Annexure A3 order in O.P.(KAT) No. 403 of 2018, it is argued that the KSEB has understood G.O.(P) No. 369/87/Fin to have extended the benefit of reckoning past service of its employees in the State Government.

9. Sri. T.B. Hood submitted that in O.P.(KAT) No. 368 of 2018, the applicant's earlier service was with the Public Health Engineering Department, followed by service in the Kerala Water Authority. It is contended that the applicant's earlier service in the PHED is liable to be reckoned in the Water Authority by virtue of Section 19(1) of the Kerala Water Supply and Sewerage Act, 1986 and his consolidated tenure with the Water Authority should be reckoned as qualifying service for the purpose of pension from Government. Rule 20 of Part III KSR, having been amended as per G.O.(P) No. 93/2018/Fin dated 16.06.2018 (SRO No. 415/2018) to get over the declaration in Mohammed Basheer, the Government was conscious of and had accepted the legal position laid down in Mohammed Basheer, is another contention urged by the learned Counsel. Referring to various orders issued by the Government, reckoning the past service of similarly placed employees as qualifying service for the purpose of pension, it is contended that denial of the same benefit to the applicants, is nothing but discrimination among equals.

10. Sri. M.R. Anison pointed out that the earlier stint of the applicant in O.P.(KAT) No. 398 of 2018 was also with the Public Health Engineering Department followed by service with the Kerala Water Authority. According to the learned Counsel, Section 19(1) of the Kerala Water Supply and Sewerage Act, 1986, which protects the earlier service of its employees with the Public Health Engineering Department, is akin to the exemption envisaged under Rule 11 of Part III KSR.

11. Sri. S. Prasanth raised an argument that the respondent in W.A. No. 1291 of 2018 had joined Government service without break and that, as per Rule 29 of Part III KSR, forfeiture of past service would be entailed only on dismissal or removal. It is contended that the Government orders discussed in Mohammed Basheer are intended to extend the benefit of reckoning past service to erstwhile employees of statutory corporations, autonomous bodies etc.

12. In order to meet the contentions and answer the reference, an analysis of the relevant rules; viz., Rules 10, 11 and 20 of Part III KSR are required. The Rules, as considered in Mohammed Basheer, are extracted hereunder:-

"10. The service of an employee does not qualify for pension unless he is appointed, his duties regulated, and paid by the Government or under conditions determined by the Government.

11. Notwithstanding the provisions of Rule 10, the Government may,

(1) declare that any specified kind of service rendered shall qualify for pension; and

(2) in individual cases, and subject to such conditions as they may think fit to impose in each case, allow service rendered by an employee to count for pension.

20. Local Funds and Trust Funds.-Service paid from a Local Fund does not qualify for pension except under special orders of Government.

[Provided that the past service put in by Government employees and Aided School/Aided College Teachers in Panchayat/Municipal Common Service and Universities prior to their entry in State Government Service or Aided School/Aided College Service shall be reckoned as qualifying service for Pension and Death-cum-Retirement Gratuity from Government.

Note-The amount credited to/creditable to a pension fund for the service rendered by the employee is calculated for the period he worked with the former employer and has to be paid by the former employer in lump at the time of such appointment of the employee to the State Government Service or Aided School/Aided College Service. The amount so credited/creditable is the proportionate pensionary liability based on the previous service; that is, the former employer should remit the Death-Cum-Retirement Gratuity/Service Gratuity and Commuted Value of the entire admissible pension reckoning the commutation factor applicable to the next birthday as on the date of absorption/joining the Government or Aided School/Aided Colleges Service as the case may be. The pensionary liability in such cases shall be remitted either by the former employer or by the employee concerned within two years of joining. No interest shall be charged for delays up to 2 years. In the case of remittance beyond two years from the date of joining, simple interest shall be charged. The interest to be charged shall be @ 5% per annum from the date of 2 years after the date of joining till the date of remittance or 31st March, 2009, whichever is earlier and thereafter @9% till the date of remittance. The above proviso shall not be applicable for appointments to or from Public Sector Undertakings, Autonomous Bodies or similar bodies, as they are constituted under Companies Act or by separate legislation of the Central/State Government. In the case of prior service in Universities, only such service in any of the following Universities shall be considered for this benefit:

(i) Kerala University

(ii) Calicut University

(iii) Mahatma Gandhi University

(iv) Sree Sankara University

(v) Kannur University

(vi) Cochin University of Science and Technology

(vii) Kerala Agricultural University

This shall apply to all cases in which retirement takes place on or after 2nd day of February, 2001."

From a reading of Rule 10, it is evident that the rule contains a declaration that, service of an employee would not qualify for pension, unless he is appointed, his duties regulated and payment made by the Government. Rule 11 carves out an exception to Rule 10 and confers the Government with the power to declare any specified kind of service to qualify for pension and in individual cases, to allow service rendered by an employee to count for pension, subject to such conditions as the Government may think fit to impose in each case. As per Rule 20, service, paid from a local fund, would not qualify for pension except under special orders of the Government. The proviso to Rule 20 enables the past service put in by Government employees and Aided School/Aided College Teachers in Panchayat/Municipal Common Service and named Universities prior to their entry in State Government Service or Aided School/Aided College Service to be reckoned as qualifying service for pension and DCRG from Government. There is no mention of Statutory Corporations in the proviso. More importantly, the proviso specifically excludes public sector undertakings, autonomous bodies or similar bodies, as they are constituted under the Companies Act or by separate legislation of the Central/State Government.

13. Local Fund, as defined under Rule 12(19) of Part I KSR, means the revenue administered by a body which by the force of law come under the control of Government and the revenues of anybody which may be specifically notified by the Government as such. Such Control extends to aspects generally or on specific matters, such as sanctioning of their budgets; creation or filling up of particular post, or on matters relating to every incidence of service, like encashment of leave, pension, etc. or similar matters. Therefore, service rendered in statutory corporations and autonomous bodies, the pay for which is disbursed from the local fund would not qualify for pension, except under special orders of the Government. Further, it is explicit from the Note that the proviso shall not be applicable for appointments to or from public sector undertakings, autonomous bodies, or similar bodies, as constituted under the Companies Act or by separate legislation of the Central/State Government. Hence, going by the plain meaning of Rules 10, 11 and 20, past service of Government employees in statutory corporations, autonomous bodies and Government owned companies cannot be treated as qualifying service for the purpose of pension and DCRG. This exclusion, as per the proviso to the rule, is applicable to both Central and State corporations, bodies, and companies.

14. In Mohammed Basheer, the Division Bench held that even if the service of the employees in KSRTC and in the Khadi and Village Industries Board could be considered as service paid from the Local Funds, there is no bar in Rule 20 against reckoning of such service as qualifying service for pension under special orders of the Government. The Division Bench held G.O.(P) Nos. 369/87, 383/89 and 228/2001 to have enabled reckoning of earlier service rendered in Government of India Departments/Central autonomous bodies/State Government Department/State autonomous bodies/Public Sector Undertakings etc for pensionary benefit; mutually in all these departments/entities/bodies.

15. As rightly contended by the learned Senior Government Pleader, the scope and ambit of the Government orders was entirely different. A careful scrutiny of the G. Os reveal that, by orders (O.M's letters referred to in the G. Os) issued by the Central Government, service of State Government employees borne on pension establishment (and employees of the State autonomous bodies), allowed to be absorbed in Government of India/autonomous body could be counted towards pension under Government of India/autonomous body irrespective of whether the employee was temporary or permanent in Government. The same procedure was to be applied by virtue of G.O.(P) 369/87/Fin., in the case of employees of Government of India/autonomous bodies, absorbed in the State Government/State autonomous bodies as a reciprocal measure. The reciprocal measure allowed by the State Government is to reckon prior service, of an employee, in Central Government or Central autonomous bodies, when absorbed in State Government or State autonomous bodies, as qualifying service for pension. This does not take in even absorption from State Administrative Bodies to State Government or vice versa; much less a resignation and fresh appointment.

16. G.O.(P) No. 383/89/Fin dated 29.08.1989 was issued thereafter clarifying the earlier Government order, in the following manner:

"When an employee of the State Government/State autonomous body, borne on pensionable establishment is allowed to be absorbed in the Government of India/autonomous body, the service rendered by him under the State Government/State autonomous body shall be allowed to be counted towards pension under the Government of India/autonomous body irrespective of whether the employee was temporarily or permanent in the Government/autonomous body. The same procedure will be applied in the case of employees of Government of India/ autonomous bodies who are permanently absorbed under the State Government/State autonomous bodies."

The word absorbed has a definite connotation as found by a learned single Judge in Dileeb B.

17. By G.O.(P) 703/2002/Fin, the position was further clarified by stating that employees of the State Government Departments who left the former service in Central Government/Central Public Sector Undertaking on their own volition for taking up appointment in State Government Department will be allowed to reckon their prior service for all pensionary benefits along with the service in the State Government Department only if the former employer remits the share of proportionate pro-rata pensionary liability on a service-share basis. In Dileeb B, yet another G.O. (P) No. 651/03/Fin. dated 06.12.2003 was also noticed to hold so:

"15. By the order dated 6.12.2003, the Government of Kerala directed that liability for pension including gratuity in the case of employees in State service who had rendered prior service in Central Government will be borne exclusively by the State Government to which the Government servant permanently belongs at the time of retirement and no recovery of proportionate pension will be made from Central Government under whom he had served. The Government also directed that in the case of employees who had formerly served in Central Public Sector Undertakings, the Government order dated 12.11.2002 shall continue to operate. The Government also ordered that G.O. (P) No. 369/87/Fin. dated 31.3.1987 is revived."

This does not in any way inure to the benefit of the applicants herein since they are persons who had prior service in State Corporations and State autonomous bodies, the reckoning of which is not provided in any of the G. Os noticed.

18. After careful scrutiny of the Government orders, we have no doubt that the orders provided only for reckoning of past service in Central Government service/Central autonomous bodies as qualifying service, on appointment in State Government/State autonomous bodies; which facility was extended only because there was such a reckoning allowed in the Central Government/autonomous bodies. This was a reciprocal arrangement agreed to by the State Government to protect the past service rendered by its employee, in a Central government department or undertaking, since the Central Government had extended such a facility to the employees of the State. The Division Bench seems to have been carried away by the opening sentence in G.O.(P) No. 228/2001/Fin., as evident from a reading of paragraph 18 of Mohammed Basheer, extracted hereunder:

"18. The operation and sweep of G.O.(P) No. 369/87/Fin. dated 31/03/1987 and G.O.(P) No. 383/89/Fin. dated 29/08/1989 led to the situation reflected in the opening paragraph of G.O.(P) No. 228/2001/Fin. dated 02/02/2001. Such a decision of the Government, in our view, amounts to a declaration that different kinds of services specified by those Government Orders shall qualify for pension. The services rendered by the petitioners in the KSRTC and in the Khadi and Village Industries Board are also such specified services qualifying for pension. The declaration evidenced by the said Government Orders would be one falling under R. 11(1) in Part III of the KSR making such service qualifying to be counted for pensionary benefits. This view in respect of the matter appears to have escaped the notice of the learned Tribunal."

In our considered opinion, the opening sentence of G.O.(P) No. 228/2001/Fin. dated 02.02.2001 can at best be perceived only as an indication of the casual manner in which the Government Order was drafted and under no circumstance, as a declaration falling under Rule 11 (1) of Part III KSR, making the services casually mentioned in the sentence as qualifying service to be counted for the purpose of pension and DCRG. In this context we feel the G.O. has to be extracted:

"In the Government Orders read above, Government have issued guidelines for reckoning the service rendered in Government of India Departments/Central Autonomous Bodies/State Government Departments/State Autonomous Bodies/Public Sector Undertakings etc. for reckoning pensionary benefits consequent on permanent absorption in State Government Departments/State Autonomous Bodies and vice versa. Pro rata pension is payable in the cases of permanent absorption of Government employees in State/Central Public Undertakings and vice versa.

As clarified in the Circular cited, mobility is applicable in the context of deputation followed by permanent absorption and pensionary liability is sharable on pro rata basis according to the length of service with the former employer. But no rule has been framed in respect of State Government employees who later join the Panchayats/Municipal Common Service/Universities etc. after serving in the Government department and vice versa on getting appointment by transfer or through direct recruitment by Public Service Commission. Government was receiving representations from employees to count past service in Municipal/Panchayat/University services for pensionary benefits.

Government have examined the matter in detail and are pleased to order that the service if any, put in by Government employees in the Municipal Common Service/Panchayats and Universities prior to their entry in State Government service including Aided Schools service and vice versa can be reckoned for pensionary benefits and to incorporate a note under Rule 20 Part III KSRs to that effect as follows:

"Note

Notwithstanding anything contained in the above Rule the past service put in by Government employees/Teachers in Panchayats/Municipal Common Service/ Universities etc. prior to entry in State service and vice versa will be reckoned as qualifying service for pension & DCRG. The amount credited to/creditable to a pension fund for the service rendered by the employee at market rate of interest (@ 10% at present) on compounding basis calculated for the period he worked with the former employer, has to be paid by the former employer in lump at the time of such appointment of the employee to the State service and vice versa. This will not be applicable to appointments to or from Public Sector Undertakings or similar bodies as they are constituted under Companies Act or by separate legislation of the Central/State Governments.

The benefit of this order will be applicable to the retirements after the date of this order and the pension cases already settled or pending settlement on administrative reasons will not be considered on any account. The formal amendments to Part III KSRs will be issued separately."

The opening paragraph was a statement of the purport of the earlier G. Os and not a declaration as such. A wrong understanding, as expressed there cannot alter the language or the object of the earlier G. Os. The very purpose of the above G.O. was only to introduce a Note under Rule 20, which again reckoned past service only in Panchayats/Municipal Common Service/Universities and not the Statutory Corporations/public sector undertakings/autonomous bodies under the State.

19. In Mohammed Basheer, the Division Bench went one step further and found the last part of the Note to the proviso to Rule 20, which specified that the proviso was inapplicable to appointments to or from public sector undertakings, autonomous bodies or similar bodies to be unconnected to the proviso, or the purpose for which the Note was introduced. Based on the said reasoning, the Division Bench read down the said stipulation. We find that the interpretation and reading down goes against the mandate of Rules 10 and 20 of Part III KSR. The legal position that executive orders cannot override statutory rules and cannot be interpreted in such manner as to make the statutory rule superfluous is well settled. [see S.L. Sachdev and another v. Union of India and others [(1980) 4 SCC 562] [LQ/SC/1980/436] , State of M.P. v. Yogendra Shrivastava [(2010) 12 SCC 538] [LQ/SC/2009/1902] .

20. We find that by incorporating the proviso to Rule 20, past service in certain specified sectors were exempted from the rigour of Rule 20. The last part of the Note to the proviso only clarified that the past service in public sector undertakings and autonomous or similar bodies will not be reckoned as qualifying service, on the appointment of employees from those sectors in Government service. No right having been granted under Rule 11 or Rule 20 to Government employees having prior service in public sector undertakings and autonomous or similar bodies, the finding of the Division Bench that the last part of the Note takes away the benefit granted under Rule 11 read with Rule 20 and the Government orders discussed above; we hold, with due respect, as erroneous.

21. In P.K. Babu, the Division Bench specifically took note of G.O.(P) No. 228/2001/Fin. dated 02.02.2001 and observed that the said Government order in its last sentence mentioned about formal amendments to Part III KSR being issued separately and that no formal amendment was effected subsequently. It was found that no rule enabled the counting of service rendered by a person with the Kerala State Electricity Board before joining Government service as qualifying service for the purpose of computing pension payable for the service rendered with the Government.

22. The rule position as noted in P.K. Babu, remains the same even as on today. In fact, by the amendment brought about to Rule 20 through G.O.(P) No. 93/2018/Fin. dated 16.06.2018, the position that prior service with public sector undertakings, autonomous bodies or similar bodies will not be reckoned as qualifying service for Government employment has only been clarified.

23. In Dileeb B., the petitioner, who was employed as a Senior Assistant in the KSEB, wanted to get his earlier service in the All India Radio reckoned. The learned Single Judge, after careful analysis of all relevant Government orders, including the purpose for issuance of those orders, declined the prayer. Paragraphs 17 and 18 of the judgment, which are contextually relevant, are extracted hereunder:-

"17. There is yet another reason why the petitioner cannot claim or be granted pensionary benefits for the service rendered by him in All India Radio. Employees of the Kerala State Electricity Board are governed by the Kerala Service Rules. R. 20 of Part III of the Kerala Service Rules sets out the different services which can be reckoned as qualifying service for pension and death-cum-retirement gratuity. R. 20 of Part III of the Kerala Service Rules is extracted below:

20. Local Funds and Trust Funds.-Service paid from a Local Fund does not qualify for pension except under special orders of Government:

Provided that the past service put in by Government employees and Aided School/Aided College Teachers in Panchayat/Municipal Common Service and Universities prior to their entry in State Government Service or Aided School/Aided College Service shall be reckoned as qualifying service for Pension and Death-cum-Retirement Gratuity from Government. Note-The above proviso shall not be applicable for appointments to or from Public Sector Undertakings, Autonomous Bodies or similar bodies, as they are constituted under Companies Act or by separate legislation of the Central/State Government. In the case of prior service in Universities, only such service in any of the following Universities shall be considered for this benefit.

(i) Kerala University

(ii) Calicut University

(iii) Mahatma Gandhi University

(vi) Sree Sankara University

(v) Kannur University

(vi) Cochin University of Science and Technology

(vii) Kerala Agricultural University

The cases where payment towards pro-rata pension liability have already been made by a former employer as per the rules prior to the 19th day of November, 2009 shall not be re-opened and in all other cases including cases where payment have become due but not paid, such payments shall not be made.

18. R. 20 of Part III of the Kerala Service Rules does not contemplate reckoning of the petitioner's service in All India Radio/Central Government Department as service qualifying for pension on his retirement from the Kerala State Electricity Board. R. 20 of Part III of the Kerala Service Rules also does not contemplate payment of pension to State Government employees for the service rendered by them in the Kerala State Electricity Board. The claim of State Government employees, who had before their appointment in State Government service served in the Kerala State Electricity Board to reckon their service in the Kerala State Electricity Board for pension, was considered and rejected by a Division Bench of this Court in P.K. Babu. v. The Chief Engineer, KSEB & Others (2007 KHC 5022: 2007 (1) KLJ 35]. The Division Bench held that R. 20 of Part Ill of the Kerala Service Rules does not authorise the counting of service in the Kerala State Electricity Board for the purpose of grant of pension on retirement from Government service and that even the proposed amendment to R. 20 (which was later brought about) does not indicate that service in the Kerala State Electricity Board can be counted for the purpose of grant of pension upon retirement from Government service. In the light of the stipulations in R. 20 of Part Ill of the Kerala Service Rules, which governs employees of the Kerala State Electricity Board as well, the petitioner cannot claim that his service in All India Radio should be reckoned for the purpose of computing his pensionary benefits."

24. We are in agreement with the legal position laid down in P.K. Babu and Dileeb B. As a matter of fact, in Mohammed Basheer, the Division Bench had attempted to distinguish the findings in P.K. Babu, on the sole ground of the judgment in O.P. No. 10540 of 1998 not being considered or adverted to. Apart from the question as to how the omission to consider a Single Bench decision would render a Division Bench judgment per incuriam, we find that the judgment in O.P. No. 10540 of 1998 was also rendered on mis-application of G.O.(P) No. 228/2001/Fin. dated 02.02.2001, the first paragraph of which has already been dealt with.

25. Later, another learned Single Judge allowed W.P.(C) No. 6536 of 2007, following the decision in O.P. No. 10540 of 1998. The Division Bench in Mohammed Basheer, relied on the aforementioned decisions and committed the same mistake of interpreting G.O.(P) No. 228/2001/Fin. dated 02.02.2001, based on the first paragraph of that order. The same reasoning was adopted by another Division Bench in its decision in Dasan K.N. v. State of Kerala [2014 (4) KHC 747 [LQ/KerHC/2014/2311] ]; but in the context of past service in Municipal Common Service, before joining as a State Government employee; the reckoning of which as qualifying service for pension is permissible.

26. We now move on to consider the contentions urged not to disturb the findings in Mohammed Basheer. The first contention is based on the interpretation in Mohammed Basheer of the last part of the Note to the proviso to Rule 20 of Part III KSR having attained finality by dismissal of the SLP and the review petition by the Honourable Supreme Court. To answer this contention, we refer to the decision of the Apex Court in Kunhayammed v. State of Kerala [(2000) 6 SCC 359] [LQ/SC/2000/1013] . After elaborate consideration of the impact of in limine dismissal of Special Leave Petitions, the Apex Court laid down the following principles at paragraph 44 of the judgment:

"44.(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation".

A three judge Bench in Khoday Distilleries Ltd. Vs. Mahadeshwara Sahakara Sakkare Karkhane Ltd. [(2019) 4 SCC 376] [LQ/SC/2019/412] has reiterated and reaffirmed the principles of merger. Therefore, in limine dismissal of the SLP filed against the judgment in Mohammed Basheer, and dismissal of the review petition filed against the order in that SLP on the ground of delay and on merits, does not have the effect of merger, thereby denuding the authority of the Full Bench to render its opinion on the legality of the decision in Mohammed Basheer. So also, the fact that the Government had issued orders conferring the benefit of reckoning of past service of similarly placed employees based on the orders issued by the Tribunal, which according to the learned Special Government Pleader was under threat of initiation of contempt action, cannot have any persuasive effect on the Government to pass similar orders in the case of others. Obviously, such conduct of the Government, whether it be under threat of initiation of contempt proceedings or otherwise, when found to be contrary to the rule position, cannot also persuade us to enable perpetuation of an illegality.

27. The learned Counsel fervently argued for not unsettling the law as has been laid down in Mohammed Basheer for it having held the field for long and many similarly situated having enjoyed the benefits of the decision. The contention essentially is one of application of the doctrine of stare decisis. The said doctrine has been noticed in Maktul V. Manbhari [AIR 1958 SC 918 [LQ/SC/1958/86] ] and explained on the basis of authoritative texts as follows:

"9. There is one more point which still remains to be considered. Having regard to the principle of stare decisis, would it be right to hold that the view expressed by the High Court of Punjab as early as 1895 was erroneous The principle of stare decisis is thus stated in Halsbury's Laws of England, Second Edition Halsbury's Vol: XIX P. 257 Para 557:

"Apart from any question as to the Courts being of coordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the supreme appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake."

The same doctrine is thus explained in Corpus Juris Secundum Para 187:

"Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable."

The Corpus Juris Secundum P. 322 Para 193, however, adds a rider that " previous decisions should not be followed to the extent that grievous wrong may result; and accordingly the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result."

The doctrine of stare decisis, hence is not an imperative or inflexible rule and when the proposition established is plainly in conflict with the statute or the statutory rule and erroneous, as the case is here, that doctrine cannot be applied. In this context it has to be noticed that, in 2006 a Division Bench in P.K. Babu correctly interpreted the rule to deny a retiring government employee the benefit of his prior service in KSEB, as reckonable service for the purpose of computing pension. In 2012, a learned Single Judge in Dileeb B followed the Division Bench to hold a retiring KSEB employee, disentitled to reckon his past service in All India Radio, an autonomous body of the Central Government, as pensionable service. It was found that G.O. (P) No. 383/89/Fin. dated 29.08.1989, spoke of reckoning of prior service for pension only if a Central Government/autonomous body employee is absorbed in the State Government/autonomous body and a resignation, as per the Central Civil Services (Pension) Rules, entails forfeiture of past service. In Mohammed Basheer, the Division Bench, after noticing the decision in P.K. Babu rendered by a Bench of coordinate strength, chose to ignore it in favour of a decision rendered by a Single Bench. This is the judgment on which the petitioner seeks application of the doctrine of stare decisis; which we are not prepared to nor expected to apply.

28. Another contention is that the prior service in Kerala Water Authority is liable to be reckoned as qualifying service in view of Section 19 (1) of the Kerala Water Supply and Sewerage Act, 1986. A reading of Section 19(1) shows that the tenure, remuneration and conditions of service of an employee in the Public Health Engineering Department, who had become an employee of the Water Authority would continue unaltered. The benefit granted under Section 19(1) to erstwhile employees of Public Health Engineering Department, who had opted to join the Kerala Water Authority on its constitution, cannot, under any circumstance, be extended on such employees joining Government service later. There can be no inference from the provision which regulates the service and pension entitlement in the Water Authority; that a similar benefit would be extended to those joining Government service later. Further the said provision was necessitated since the Water Authority was constituted to carry out the duties earlier cast on the PHED, a Government Department. The transfer of employees in the Department to the Authority, whether it be on compulsion or as an option, cannot result in the terms of their employment being altered adversely. The action of the Government, in constituting a separate authority; though in public good, still remains an unilateral one vis a vis its employee.

29. The challenge against the reference order on the ground of the order having been passed on the premise that Mohammed Basheer was rendered without taking note of P.K. Babu is liable to be rejected, for reason of the contention being factually incorrect and the challenge, if any, to the reference order liable to be raised elsewhere.

30. The contention that the amendment brought about to Rule 20 by G.O.(P) No. 93/2018/Fin., pursuant to the decision in Mohammed Basheer, is indicative of the Government having understood Rule 20 read along with Government orders to provide for reckoning of past service in public sector undertakings, autonomous or similar bodies for the purpose of pension, is unsustainable. The Rule, as it stood prior to the amendment, was clear enough and the mistaken understanding of the Rule in Mohammed Basheer cannot be the basis for claiming an unmerited benefit.

31. For the reasons aforementioned, we answer the reference in the following manner:

(i) The decisions in Mohammed Basheer, O.P. No. 10540 of 1998 and W.P.(C) No. 6536 of 2007 are overruled.

(ii) The decisions in P.K. Babu and Dileeb B are affirmed.

(iii) Rules 11 and 20 of Part III KSR read along with G.O.(P) 369/87/Fin. dated 31.03.1987, G.O.(P) No. 383/89/Fin dated 29.08.1989 and G.O.(P) No. 228/2001/Fin dated 02.02.2001 do not provide for reckoning of the past service, of State Government employees, in State Public Sector Undertakings, State autonomous or similar bodies as qualifying service for the purpose of their pension and Death-cum-Retirement Gratuity payable as retirement benefits for service rendered in the State Government.

32. The orders of the Tribunal impugned in O.P. (KAT) Nos. 332 of 2018, 368 of 2018, 394 of 2018, 398 of 2018, 403 of 2018, 429 of 2018, 127 of 2019, 156 of 2019, 196 of 2019, 304 of 2019, 283 of 2019, 486 of 2019 and the judgment of this Court impugned in W.A. No. 1291 of 2018 having been rendered relying on the decision in Mohammed Basheer, which we have overruled, are liable to be set aside and we do so. Consequently, the original petitions are allowed. The impugned order in O.P. (KAT) No. 277 of 2018 warrants no interference and hence, the original petition is dismissed.

33. The issue involved in W.A. No. 1045 of 2019 and O.P.(KAT) No. 237 of 2019 being different, those cases are sent back to the respective Division Benches.