IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 WP(C).No. 29029 of 2007(E) -------------------------- PETITIONER(S): --------------- K.KUSUMAM, AGRICULTURE ASSISTANT (SENIOR GRADE), KRISHI BHAVAN, RAJAKUMARI, IDUKKI DISTRICT. BY ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF AGRICULTURE SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM. 3. PRINCIPAL AGRICULTURAL OFFICER, IDUKKI DISTRICT. 4. AGRICULTURAL OFFICER, KRISHI BHAVAN, RAJAKUMARI, IDUKKI DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER: SRI. SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C. NO. 29029 OF 2007 APPENDIX P1: COPY OF THE ORDER NO. A1-468/83 DATED 22.10.1983, OF THE SUB DIVISIONAL AGRICULTURAL OFFICER, ADIMALI. P2: COPY OF THE MEMO NO. RIA(2)8031/90/GW DATED 27.03.1990. P3: COPY OF THE ORDER NO. B(1) 5196/90 DATED 30.04.90 OF THE JOINT DIRECTOR OF AGRICULTURE, TRICHUR P4: COPY OF THE ORDER NO. E(3)8840/2000 DATED 28.08.2000 OF THE PRINCIPAL AGRICULTURAL OFFICER, IDUKKI. P5: COPY OF THE REPRESENTATION DATED 4.8.2001 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER OF AGRICULTUE. P6: COPY OF THE REPRESENTATION DATED 8.03.2006. P7: COPY OF THE LETTER NO. RKY 1/05-06 OF THE 4TH RESPONDENT P8: COPY OF THE LETTER NO. E2-10911/2006 DATED 20.12.2006 P9: COPY OF THE ORDER NO. E(1)11248/06/K.DIS. DATED 11.1.2007 OF THE 3RD RESPONDENT. P10: COPYOF ORDER NO. KB RKY 2/06-07 DATED 30.1.2007 OF THE 4TH RESPONDENT P11: COPY OF THE JUDGEMENT IN O.P. NO.6918/1994. RESPONDENTS EXHIBITS: NIL TRUE COPY SM P.A. TO JUDGE. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 29029 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2011 J U D G M E N T After putting in provisional service for the period from 28.10.1983 to 11.6.1988, pursuant to advise by the Kerala Public Service Commission, the petitioner joined service as Agricultural Demonstrator Grade II on 17.05.1990. Subsequently, the petitioner raised a claim for service benefits like increments, higher grade etc. counting the provisional service as well under the erstwhile Government decision No.2 under Rule 33 of Part I of Kerala Service Rules. That was rejected by Ext.P8 order on the ground that the scales of pay during provisional service and regular service were different. The petitioner is challenging the same on the ground that the difference in the scales of pay arose only because of revision of scales of pay and this court has in Ext.P7 judgment held that simply because on account of revision of scales of pay the scales of pay increased the W.P.(C)No. 29029 of 2007 -2- benefits under Government decision No.2 cannot be denied to a government servant. The petitioner therefore seeks the following reliefs: “(i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P6 and quash the same. (ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to treat the provisional service of the petitioner as Agricultural Demonstrator Grade-II for the period from 28-10-1983 to 11-06-1988 for all purposes like increment, grade, pension etc. (iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to refix the pay of the petitioner, consequent on reckoning the provisional service of the petitioner also, and grant her all consequential benefits expeditiously and at any rate within a time limit to be fixed by this Hon'ble Court.” 2. The 1st respondent has filed a counter affidavit wherein the primary contention taken is that the petitioner voluntarily resigned from the provisional service and therefore by virtue of Note 2 to Rule 63 of Part I of KSR the petitioner is not entitled to any benefits in respect of that provisional service. 3. I have considered the rival contentions in detail. 4. Of course, the reason mentioned in Ext.P8 for W.P.(C)No. 29029 of 2007 -3- denying the petitioner the benefit of provisional service is not sustainable in view of Ext.P11 judgment. But the petitioner does not dispute the fact that the petitioner had resigned from the provisional service. Note 2 to Rule 63 of Part I of KSR specifically stipulates that resignation of public service even though it is followed immediately by re- employment entails forfeiture of past service and constitutes an interruption of duty. Therefore a government servant is not entitled to any benefit on the basis of the service which he had resigned from. As such, I find merit in the contention of the 1st respondent that because the petitioner resigned her provisional service she is not entitled to have the provisional service counted for any service benefits. Accordingly the writ petition is dismissed. S. SIRI JAGAN JUDGE shg/