Babu Mathew P. Joseph, J.

1. This Original Petition has been filed challenging Annexure-1 order of the Kerala Administrative Tribunal dismissing T.A. No.4786 of 2012 (W.P.(C) No.25526 of 2011) filed by the petitioner.

2. The brief facts necessary for disposing of this Original Petition are stated as follows: The petitioner was appointed as a Lower Division Clerk on 05-02-1976 in the Department of Collegiate Education on the advice of the Kerala Public Service Commission. He had retired from service as a Junior Superintendent on 31-03-2000. Before entering the Government service, he had rendered service as a Lower Division Clerk/Bill Collector in the Municipal Common Service from 13-08-1973 to 04-02-1976. He was relieved from the Municipal Common Service on 04-02-1976 for taking up appointment in the Government service. Accordingly, he joined the Government service as a Lower Division Clerk on 05-02-1976 without any interruption in service. His pay and allowances were fixed, as per Government letter No.35383/F3/85/H/Edn. dated 23-07-1987, on the basis of the pay drawn by him in the Municipal Common Service as provided under Rule 159 in Part I of the Kerala Service Rules (for short, the KSR). He preferred representations before the Government for counting the service rendered by him in the Municipal Common Service also as qualifying service for pensionary benefits. But, they were rejected. The challenge against them and the prayer for counting the service in the Municipal Common Service were rejected by the Tribunal by the impugned order. Aggrieved by that order of the Tribunal, the petitioner has preferred this Original Petition.

3. Heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing for the respondents. Lengthy arguments have been advanced by both the sides. We have also perused the records.

4. The petitioner had rendered service in the Municipal Common Service from 13-08-1973 to 04-02-1976. That appointment was a regular one. Without any break in service, he had joined the Government service on 05-02-1976. His pay in the Government service was fixed on the basis of the pay he was drawing in the Municipal Common Service. The Municipal Common Service is also pensionable. The question is as to whether the service rendered by the petitioner in the Municipal Common Service can be reckoned as qualifying service along with the service rendered by him in the Collegiate Education Department for his pensionary benefits. According to the petitioner, his service in the Municipal Common Service is liable to be reckoned as qualifying service for pensionary benefits in the light of various orders issued by the Government and the judicial pronouncements. But, the respondents denied the claim so advanced by the petitioner contending that the Rules existed at the time of retirement of the petitioner do not permit to count his past service in the Municipal Common Service as service qualifying for pensionary benefits. We shall examine.

5. The learned Tribunal dismissed the petitioners case on the reasoning that the amendment to Rule 20 in Part III of the KSR enabling to count the past service rendered by the Government employees in the Municipal Common Service before joining the Government service as qualifying service for pensionary benefits would apply only to retirements from 02-02-2001 only. The applicant had retired from service on 31-03-2000. Therefore, he is not entitled to the benefit of the said amendment.

6. Chapter II in Part III of the KSR deals with qualifying services. Rule 10 in this Chapter reads as follows:

"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."

Going by this Rule, the petitioners past service in the Municipal Common Service does not qualify for pension. But, Rule 11 of this Chapter gives power to the Government to declare that any specified kind of service rendered shall qualify for pension and, in individual cases, subject to such conditions as may be imposed in each case, allow service rendered by an employee to count for pension. The relevant portion of Rule 11 reads as follows:

"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."

Rule 20 in Part III of the KSR stipulates that service paid from a Local Fund does not qualify for pension except under special orders of Government. Therefore, invoking the powers under Rule 20, the Government can issue orders making service paid from local fund also as qualifying for pension. Chapter II also deals with different services qualify for pension and do not qualify for pension. Apart from the provisions under Rules 11 and 20 in Part III of the KSR, one more provision is there in Chapter XI of Part I of the KSR, namely, Rule 159 enabling the Government to allow previous service of the Government employees coming from Local Fund to count as duty performed. Rule 159 reads as follows:

"159. Persons transferred to Government service from a Local Fund which is not administered by Government will be treated as joining a first post under Government and their previous service will not count as duty performed. The Government may, however, allow previous service in such cases to count as duty performed on such terms as it thinks fit.

RULING

The pay of an officer transferred from a Local Fund Institution not administered by Government to Government service will be fixed at the minimum of the scale of pay of the post in Government service, if the pay he was drawing in the Local Fund is less than the minimum. In case he was drawing, under the Local Fund, pay above the minimum and equal to a stage in the scale of pay of the post in Government service, his pay will be fixed at that stage and if the pay he was drawing under the Local Fund is not a stage in the scale of pay of the post in Government service it will be fixed at the next lower stage, the difference being treated as personal pay to be absorbed in future increases in pay. His next increment will ordinarily be allowed only after the full incremental period of duty in Government service."

In the premise of these statutory rules, the question involved in this Original Petition can be considered and answered.

7. The mobility of personnel between Central Government Departments and Central Autonomous Bodies or vice versa or between Central Autonomous Bodies gained attention of the Central Government. The Government of India, in the O.M. dated 29-08-1984, issued orders to count the service of Central Government employees going over to Central Autonomous Bodies or vice versa or between Central Autonomous Bodies for pension subject to certain conditions. A letter dated 17-02-1986 had been issued by the Government of India agreeing to extend the benefit of the aforesaid order to employees of the Central Government absorbed in the State Government and State Autonomous Bodies and vice versa. The orders in that respect were to be issued by the State Government. The question of extending such benefit to the employees of State Government going over to Central Government/Central Autonomous Bodies and State Autonomous Bodies was under the consideration of the Government of Kerala for a long time. On examining the matter in detail in consultation with the Government of India, the Government of Kerala issued G.O.(P) No. 369/87/Fin. dated 31-03-1987 ordering that where State Government employees borne on pensionable establishment and employees of State Autonomous Bodies are allowed to be absorbed in Government of India/Autonomous Bodies, the service rendered by them under the Government shall be allowed to be counted towards pension under Government of India/Autonomous Body irrespective of whether the employees were temporary or permanent in Government. The same procedure was ordered to be applied in the case of employees of Government of India/Autonomous Bodies who are permanently absorbed under the State Government/State Autonomous Bodies. This Government Order also provided for discharge of pension liability by the respective Government/Autonomous Body as described in it. The Government of Kerala, thereafter, issued G.O.(P) No.383/89/Fin. dated 29-08-1989 ordering that 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 temporary 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. Provision was also made for pro rata discharge of pension liability by the Government/ Autonomous Body.

8. Later, Circular No.74/99/Fin. dated 04-12-1999 had been issued by the Government of Kerala regarding sharing of pensionable liability on pro rata basis. Thereafter, noting that no rule had been framed in respect of State Government employees who joined 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, the Government of Kerala issued G.O.(P) No.228/2001/Fin. dated 02-02-2001 ordering that the service, if any, rendered by Government employees in the Municipal Common Service/Panchayats and Universities prior to their entry to State Government service including aided school service and vice versa can be reckoned for pensionary benefits. A note was also proposed to be incorporated under Rule 20 in Part III of the KSR for regulating the payment of lump sum contribution to the pension fund in respect of those employees and for some other matters. The fact that the Government was receiving representations from employees to count past service in Municipal/ Panchayat/University Services for pensionary benefits is noted in this Government Order. It is also stated in this order that the benefit of the order will be applicable to retirements after the date of the order and the pension cases already settled or pending settlement on administrative reasons will not be considered on any account.

9. Subsequently, the Government of Kerala issued G.O. (P) No.269/2008/Fin. dated 21-06-2008 amending Rule 20 in Part III of the KSR by incorporating a Proviso and a Note in that Rule. The amended Rule reads as follows:

"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 Panchayath/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 College 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."

This Proviso and Note, as could be seen from the amendment, were given retrospective effect from 02-02-2001.

10. When the Transferred Application which gave rise to this Original Petition was considered by the learned Tribunal, it was pointed out on behalf of the Government that G.O.(P) No.228/2001/Fin. dated 02-02-2001 and the amendment to Rule 20 in Part III of the KSR enabling to count the past service rendered by the Government employees in the Municipal Common Service before joining the Government service as qualifying service for pensionary benefits would apply only to retirements on or after 02-02-2001. The petitioner had retired from service on 31-03-2000. Therefore, he was not entitled to the benefit of the G.O.(P) No.228/2001/Fin. dated 02-02-2001 or the amendment to Rule 20. The learned Tribunal accepted that contention and found that the petitioner was not entitled to the benefit of counting his past service in the Municipal Common Service as he had retired from service on 31-03-2000.

11. The opening paragraph of G.O.(P) No.228/2001/Fin. dated 02-02-2001 reads as follows:

"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."

The Government Orders referred to in this paragraph are G.O.(P) No.369/87/Fin. dated 31-03-1987 and G.O.(P) No.383/89/Fin. dated 29-08-1989. A learned single Judge of this Court had occasion to consider this paragraph in O.P. No.10540 of 1998 and found in the judgment that the employees who joined State Government service after serving in State Autonomous Bodies/Public Sector Undertakings were entitled to count their past service. Also found that the Kerala State Electricity Board (KSEB) and the Kerala State Road Transport Corporation (KSRTC) would come under the sweep of the expression State Autonomous Bodies/Public Sector Undertakings. We have already found in the common judgment in O.P.(KAT) Nos.770 and 1570 of 2013 that the Khadi and Village Industries Board also would come under the sweep of the expression State Autonomous Bodies/Public Sector Undertakings. The judgment in O.P. No.10540 of 1998 has become final and implemented. The question as to whether the past service rendered by a Government employee in the KSRTC can be counted for pensionary benefits again came up for consideration before a learned single Judge in W.P.(C) No.6536 of 2007. The learned single Judge, following the judgment in O.P. No.10540 of 1998, found that the petitioner therein was entitled to count his past service in the KSRTC and directed to reckon that service for the purpose of computing qualifying service for retirement benefits. That judgment also has become final and implemented. Therefore, in the light of the aforesaid Government Orders and the judgments rendered by this Court in O.P. No.10540 of 1998 and in W.P. (C) No.6536 of 2007, it was found that the petitioners in O.P. (KAT) Nos.770 and 1570 of 2013 were entitled to count their past service in the KSRTC and in the Khadi and Village Industries Board as qualifying service for computing pensionary benefits.

12. The Government of Kerala was empowered to constitute the employees under the Municipal Councils and Corporations in the State into a common municipal service for the State, as per Section 90 of the Kerala Municipal Corporations Act, 1961. Accordingly, the Government of Kerala had constituted the Municipal Common Service with effect from 01-11-1967 by promulgating the Kerala Municipal Common Service Rules as per G.O.MS. No.346/67/DD dated 26-10-1967. As defined in Rule 2(d) of these Rules, the Common Service means the service constituted for the employees of Municipalities and Corporations as contemplated in Subsection 1 of Section 90 of the Kerala Municipal Corporations Act, 1961. The petitioner had rendered service in the Municipal Common Service so constituted from 13-08-1973 to 04-02-1976. In the light of the finding entered by this Court, after considering G.O.(P) No.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, in the judgment in O.P. No.10540 of 1998 and applying the same analogy, the Municipalities and the Municipal Corporations also would come under the sweep of the expression State Autonomous Bodies. Therefore, based on those Government Orders and aforesaid judgments rendered by this Court after considering those Orders, the petitioner is also entitled to count his past service in the Municipal Common Service as qualifying service for the purpose of computing his pensionary benefits.

13. Rule 20 in Part III of the KSR generally stipulates that the service paid from a local fund does not qualify for pension. But, it does not prevent to count such service also as qualifying for pension under special orders of Government. Rule 11 empowers the Government to declare any specified kind of service rendered shall qualify for pension. Rule 159 in Part I of the KSR also empowers the Government to allow previous service paid from a local fund to count as duty performed. Therefore, if the Government issues orders declaring the service rendered by the employees in the Municipal Common Service as service qualifying for pension, such service can be reckoned for pensionary benefits. Now the question is whether the Government have issued orders qualifying the service rendered by the petitioner in the Municipal Common Service as service qualifying for pension or not.

14. The Government issued G.O.(P) No.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 for reckoning the services rendered in Government of India Departments/Central Autonomous Bodies, State Government Departments/State Autonomous Bodies/Public Sector Undertakings etc. for pensionary benefits consequent on permanent absorption in State Government Departments/ State Autonomous Bodies and vice versa. The operation and sweep of the first two G.Os. lead to the situation reflected in the opening paragraph of the third G.O. 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 service rendered by the petitioner in the Municipal Common Service is also such a specified service qualifying for pension. Because, as already found, the Municipalities and the Municipal Corporations are also State Autonomous Bodies. The declaration evidenced by the said Government Orders would be one falling under Rule 11(1) in Part III of the KSR making such service qualifying to be counted for pensionary benefits.

15. The said three Government Orders can be viewed in another angle in the light of Rule 159 in Part I of the KSR. This Rule empowers the Government to allow previous service put in by the Government employees coming from local fund to count as duty performed. As could be seen from Ext.P1, the Government allowed to fix the pay of the petitioner in the Collegiate Education Department on the basis of the pay drawn by him in the Municipal Common Service as provided in the Ruling under Rule 159. The petitioner has asserted in the pleadings that his service from 13-08-1973 to 04-02-1976 was counted as duty performed for the purposes of increment, leave, pay revision and other service benefits. This averment stands not disputed by the Government in their reply affidavit filed in the Transferred Application. Rule 12 (19) in Part I of the KSR defines a Local Fund as follows:

"(19) Local Fund. - Means -

(a) revenues administered by bodies which by law or rule having the force of law come under the control of Government, whether in regard to proceedings generally or to specific matters, such as the sanctioning of their budgets; sanction to the creation or filling up of particular posts, or the enactment of leave, pension or similar rules; and

(b) the revenues of any body which may be specially notified by the Government as such."

There was no dispute regarding the fact that all Municipalities and Municipal Corporations are local authorities administering local fund. Therefore, the petitioner was a Government employee who came to that service from a local fund. The Government is empowered under Rule 159 to count the service rendered by such a person in the Municipal Common Service as duty performed. Since the service in the Municipal Common Service is a service under a State Autonomous Body, the said three Government Orders issued can also be treated as orders issued by the Government invoking their power under Rule 159 enabling the employees coming from local fund to Government service to count their past service for the purpose of computing pensionary benefits. In view of Ext.P1 and the undisputed fact that the Government counted his service rendered in the Municipal Common Service for the purposes of granting him increment, leave, pay revision and other service benefits, there is no rhyme or reason in not counting such service as qualifying service along with the service under the Government for computing his pensionary benefits.

16. The Government of Kerala had considered the question whether the service rendered in the Municipal Common Service can be counted along with the aided college service for the purpose of pensionary benefits in Ext.P5 order dated 11-05-1988. In that case, a Professor in an aided college had rendered service as Lower Division Clerk/Upper Division Clerk in the Municipal Common Service prior to his joining the aided college service. On considering his request, the Government ordered that the service rendered by him in the Municipal Common Service would be reckoned for the purpose of computing pensionary benefits. The Government had issued Ext.P5 order allowing the benefit of clubbing the Municipal Common Service and the aided college service for the purpose of computing pensionary benefits at a time when G.O.(P) No.228/2001/Fin. dated 02-02-2001 or the amendment to Rule 20 by issuing G.O.(P) No.269/2008/Fin. Dated 21-06-2008 were not in existence. In fact, the Government themselves understood the service rendered by the employees in the Municipal Common Service as service qualifying for pension even prior to the issuance of the said Government Order and amendment to Rule 20. It is worthwhile to note here that in Ext.P5, the services rendered by the person concerned in the Municipal Common Service and in the aided college were different in nature. In the case on hand, the service rendered by the petitioner in the Municipal Common Service is ministerial in nature. The service rendered by him in the Collegiate Education Department is also ministerial in nature. If that were so, the case of the petitioner is stronger than the case considered by the Government in Ext.P5 and hence, the petitioner is definitely entitled to count his service rendered in the Municipal Common Service as a qualifying one for the purpose of computing his pensionary benefits.

17. The Municipal Common Service is a pensionable one. The Government service is also pensionable. In Jacobkutty v. State of Kerala (2004 (2) KLT 190 [LQ/KerHC/2004/157] ), a learned single Judge of this Court had occasion to consider the question whether the past service rendered by a person in aided schools from 01-04-1961 to 30-03-1962 and from 16-07-1962 to 11-02-1973 can be counted along with his service under the Rubber Board, an Autonomous Body in the Central Sector, for the purpose of computing pensionary benefits. The petitioner in that case retired from the Rubber Board on 31-08-1998. This Court, after considering the matter in the light of the Government Orders, found as follows:

"Pensionable service in pensionable establishments and autonomous bodies can be clubbed with Central service. Aided school service admittedly being a pensionable service, there is absolutely no justification in denying the benefit thereof for the purpose of pension clubbing it with the Central Government service or service in an autonomous body under central sector. As otherwise, it would amount to violation of the guarantee under Art. 14 of the Constitution of India, being discriminatory. I set aside the impugned orders."

And directed to treat the aided school service of the petitioner therein as coming under G.O.(P) No.369/87/Fin. dated 31-03-1987. In the light of this judgment, the petitioner therein was entitled to count his service in aided schools as qualifying service for the purpose of pensionary benefits along with his service under the Rubber Board. The Government preferred an appeal against this judgment. A Division Bench of this Court, as per Ext.P9 judgment, dismissed that appeal. The Government filed Special Leave Petition before the Honourable Supreme Court challenging the judgment. That was dismissed by the Honourable Supreme Court. Thereafter, the Government issued Ext.P10 order granting the benefit of counting the aided school service also for the purpose of computing pension of the employee in that case. Therefore, in the light of the law declared by this Court in the said judgment, the petitioner in the case on hand is also entitled to reckon his past service in the Municipal Common Service as qualifying service for computing his pensionary benefits.

18. The contention raised on behalf of the Government, for denying the benefit of counting the past service rendered by the petitioner in the Municipal Common Service, is based on the fact that the G.O.(P) No.228/2001/Fin. dated 02-02-2001 and the amendment to Rule 20 in part III of the KSR incorporating a Proviso enabling the Government employees to count their past service in the Municipal Common Service came into force only after 02-02-2001 and on or after 02-02-2001 respectively. Therefore, those who retired prior to the said dates would not be entitled to count their past service in the Municipal Common Service as qualifying service for pension. As already found, the service rendered by the petitioner in the Municipal Common Service was reckoned for fixing his pay and allowances, increments, leave, pay revision and other service benefits in the Government service. But, that service had not been counted as qualifying for pension for the reason that he happened to retire prior to the cut off dates prescribed in the said G.O. and amendment to Rule 20. Therefore, by prescribing the cut off dates in them, the Government classified the retired employees as belonging to two different classes, namely, (1) belonging to the class who retired prior to the cut off dates prescribed in the G.O. and in the amendment to Rule 20 and (2) belonging to the class who retired after the cut off dates.

19. Whether this classification of the retired Government employees is permissible in the light of the equality clause enshrined in Article 14 of the Constitution It is a fundamental principle that Article 14 prohibits class legislation; but permits reasonable classification for the purpose of legislation. Such permissible classification must satisfy the twin tests of classification, namely, (1) that the classification should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and (2) that the differentia must have a rational nexus to the objects sought to be achieved by the legislation in question. The twin tests can be satisfied only if the state establishes not only the rational principle on which the classification is founded, but correlates it to the objects sought to be achieved. This principle of reasonable classification satisfying the tests under Article 14 of the Constitution had been laid down by the Honourable Supreme Court in a Constitution Bench decision in D.S.Nakara v. Union of India (AIR 1983 SC 130 [LQ/SC/1982/209] ) and in a series of other rulings. In the case on hand, the cut off dates prescribed are not founded on any intelligible differentia that distinguishes persons or things that are grouped together as retired prior to the cut off dates and as retired after the cut off dates. The employees retired from Government service who had to their credit past service in the Municipal Common Service form a homogeneous class. By introducing the arbitrary eligibility criterion, being "retirements after the date of this order" or "on or after 2nd day of February, 2001", for counting the past service in the Municipal Common Service, divides a homogeneous class. Such division or classification is not based on any discernible rational principle and it is wholly unrelated to the objects sought to be achieved by the grant of eligibility to count the past service in the Municipal Common Service. The cut off dates designed for the purpose of eligibility in the Government Order and in the amendment to Rule 20 are not to help the weaker sections of the society or for achieving such other purposes, but only for denying the benefit to some persons belonging to the same homogeneous class. This is arbitrary and alien to Article 14 of the Constitution. Therefore, the eligibility criterion so devised in the G.O. and in the amendment to Rule 20 is thoroughly arbitrary that violates Article 14 of the Constitution and hence, liable to be struck down as unconstitutional.

20. Where all relevant considerations are the same, the persons holding identical posts should not be treated differently in the matter of their pay. Since that cannot be done during their tenure in service, that cannot be done during their retirement as well. As already found, the pensioners from Government service who had to their credit service rendered in the Municipal Common Service are forming a particular class and hence, computation of their pensionary benefits cannot be by a different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. These are all settled principles enunciated by testing the State action in the light of the equality clause under Article 14 of the Constitution. The fixing of cut off dates in the G.O. and in the amendment to Rule 20 alone need be struck off as unconstitutional. The necessity of striking down the G.O. and the amendment to Rule 20 in their entirety does not call for in this case.

21. One more aspect also has to be considered here. The Government of Kerala issued G.O.(P) No.517/09/Fin. dated 19-11-2009 dispensing with the payment of pro rata pensionary liability as ordered in it. Subsequently, it was given statutory recognition by introducing a Note under Rule 20 in Part III of the KSR by way of amendment. The relevant portion of that Note reads as follows:

"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."

Therefore, in order to reckon the past service rendered by the petitioner in the Municipal Common Service, the question of payment of pro rata pension does not arise. Without such payment, he is entitled to count his such past service along with his service under the Government for the purpose of computing his pensionary benefits.

22. For the aforesaid reasons and discussions, the petitioner is entitled to count his past service in the Municipal Common Service as qualifying service for the purpose of computing his pensionary benefits. Therefore, he is entitled to succeed in this Original Petition.

In the result,

1) The impugned Annexure-1 order passed by the Kerala Administrative Tribunal in T.A. No.4786 of 2012 (W.P.(C) No.25526 of 2011) is set aside.

2) Exhibits P3, P7, P8 and P12 orders issued by the respondents rejecting the claim of the petitioner for computing his past service in the Municipal Common Service as qualifying for pension are quashed.

3) The sentence that reads "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" occurring in the last paragraph of the G.O. (P) No.228/2001/Fin. dated 02-02-2001 and the sentence that reads "This shall apply to all cases in which retirement takes place on or after 2nd day of February, 2001" occurring in the amendment to Rule 20 brought out by G.O.(P) No.269/2008/Fin. dated 21-06-2008 are struck down as unconstitutional.

4) It is declared that the petitioner is entitled to count his past service in the Municipal Common Service from 13-08-1973 to 04-02-1976 as qualifying service along with the service rendered by him under the Government of Kerala for the purpose of computing his pensionary benefits.

5) The respondents concerned are directed to count the past service of the petitioner in the Municipal Common Service as qualifying service along with the service rendered by him under the Government of Kerala for the purpose of computing his pensionary benefits.

6) The respondents concerned shall revise the pensionary benefits of the petitioner in the light of the directions issued in this judgment within two months from the date of receipt of a copy of this judgment. The arrears of pensionary benefits payable to the petitioner shall be disbursed to him within two months of such revision of his pensionary benefits.

This Original Petition is allowed as above.