IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 22366 of 2008(K) ------------- --------------------- PETITIONER(S): PETITIONERS -------------------------- SAROJINI VELLUVA, U.D.INVESTIGATOR (RETIRED) TALUK STATISTICAL OFFICE, THALIPARAMBA,KANNUR DISTRICT RESIDING AT SREELAKSHMI. P.O. CHELERI, KANNUR - 620 604. BY ADV. MR.P.M.PAREETH RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA REPRESENTE BY SECRETARTY TO GOVERNMENT, PLANNING AND ECONOMIC AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF ECONOMICS AND STATISTICS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF ECONOMICS AND STATISTICS, DISTRICT OFFICE, KANNUR. 4. ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22366/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE REPRESENTATION DT. 15/11/89 FILED BY THE PETITIONER. P2:- COPY OF THE COVERING LETTER DT. 22.1.90 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. P3:- COPY OF THE ORDER DT. 21.4.03 ISSUED BY THE 4TH RESPONDENT AUTHORIZING PENSIONARY BENEFITS TO THE PETITIONER. P4:- COPY OF THE REPRESENTATION DT. 16.7.03 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P5:- COPY OF THE PRESCRIPTION DT. 12.1.05 ISSUED BY DR.MURALI GOPI. P6:- COPY OF THE REPRESENTATION DT. 12.11.07 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P7:- COPY OF THE GO(P) NO.540/94 DT. 30. 9.94. P8:- COPY OF THE GO(P) NO.2357/99/FIN. DT. 25.11.99. P9:- COPY OF THE JUDGEMENT DT. 28.2.08 IN WP(C) NO.6924/08. P10:- COPY OF THE ORDER DT. 8.5.08 ISSUED BY THE IST RESPONDENT. P11:- COPY OF THE GO(RT) NO.484/08/PLG. DT. 18.12.08 ISSUED BY THE IST RESPONDENT. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE ORDER DT. 8.7.86. R2(b):- COPY OF THE GO(P) 147/87/GAD DT. 11.5.84. R2(c):- COPY OF THE PAGE 7 AND 8OF PENSION BOOK. R2(d):- COPY OF THE LETTER DT. 21.4.03. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.22366/2008-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24th day of February, 2009 J U D G M E N T The petitioner retired from service as U.D Investigator. The petitioner had entered service as L.D. Investigator on 13/02/1980 through Employment Exchange. She was a physically handicapped candidate. Accordingly, her service was regularised with effect from 11/05/1984 as per order dated 08/07/1986 of the second respondent in accordance with the G.O.(P).No.147/GAD dated 11/05/1984. 2. She had two spells of provisional service, namely, from 13/02/1980 to 02/05/1980 and from 23/11/1981 to 10/05/1984. The grievance of the petitioner is that even though the petitioner is entitled to count the above provisional service for increments and pension that has not be counted at that point of time. She retired from service on superannuation, on 30/04/2003. Ext.P1 is the first representation submitted by the petitioner on 15/11/1989 seeking various reliefs by way of counting her provisional service. This was forwarded by the third respondent to the second respondent for onward transmission to the Government as per Ext.P2 letter. It is her case that even though she had approached the authorities several times, the same did not result in any order in her favour. W.P.(C) No.22366/2008 -:2:- 3. After retirement, in her application for pension she had included the provisional service as qualifying service for pension. But while sanctioning her pensionery benefits the fourth respondent has reckoned qualifying service only from 11/05/1984 to 30/04/2003 (19 years). This was done as per Ext.P3. Again she filed representation seeking for reckoning the provisional service as qualifying service for pension and revision of the pensionery benefits as per Ext.P4. This was followed by Ext.P6 representation also. According to the petitioner, the amendment to Government Decision No.2 under Rule 33 of Part-I K.S.R will not disentitle her from claiming the benefit. Earlier, she approached this Court by filing W.P.(C).No.6924/2008 which was disposed of by Ext.P9 judgment directing the representation to be considered by the Government. The same resulted in Ext.P10 order. As per Ext.P10, the Government directed to reckon the provisional service of the petitioner from 13/02/1980 to 12/05/1980 and from 23/11/1981 to 30/06/1983 as qualifying service for pensionery benefits. The said order to the extent she has been denied the benefit of reckoning it for increments and pensionery benefits is challenged in the writ petition. 4. The learned counsel for the petitioner submitted that the said issue is covered by a decision of this Court in Jose Jacob v.State of Kerala [1998 (2) KLT 873] in her favour. In the counter affidavit filed by the W.P.(C) No.22366/2008 -:3:- respondents, the stand taken in paragraph (7) is that the petitioner is only eligible for increments with effect from 11/05/1984 onwards. Further, the scales were not identical, that is, her pay has been revised with effect from 01/07/1983 in the scale of pay of Rs.640-1000 from her pay in the scale of Rs.330-515. Since scale of pay of Rs.330-515 and Rs.640-1000 are not identical she is not eligible for increments counting provisional service. 5. The question is whether the said stand is correct in the light of the dictum laid down in Jose Jacob's case cited above [1998 (2) KLT 873]. 6. After referring to two earlier judgments of this Court reported in Vijayan Warrier v. Director of Technical Education [1989 (2) KLT 221] and Hussain v. Kerala Water Authority [1996 (2) KLT 555], it was held thus, “merely because there was change in the scales of pay because of pay revisions, the petitioners who got regular appointments in the same category in which they held provisional appointment cannot be denied of increments reckoning the provisional service as at the material time Government Decision No.2 was applicable in their case.” 7. In that view of the matter, the petitioner is entitled to succeed. The denial of the said benefit while passing Ext.P10 is not justified. There will be a direction to the first respondent to pass orders reckoning the provisional service for the period from 13/02/1980 to 12/05/1980 and from 23/11/1981 to 30/06/1983 rendered by the petitioner to L.D. Investigator as W.P.(C) No.22366/2008 -:4:- qualifying service for increment and pensionery benefits. The pensionery benefits of the petitioner will be revised accordingly. It is made clear that the petitioner will not be entitled for any arrears of pay. Appropriate orders shall be passed revising the pensionery benefits within a period of three months from the date of receipt of the copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms