IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WA.No. 292 of 2007() -------------------- (AGAINST THE JUDGMENT DT.30.6.2006 IN W.P.(C) No.11731/2004) ---------------------------- APPELLANTS/ RESPONDENT IN THE W.P.(C). ---------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A & E) KERALA, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER RESPONDENT/ PETITIONER IN W.P.(C) ----------------------- M.PHILLIS, W/O. MICHEAL, AGED 63 YEARS, VATTAVILAKAM HOUSE, R.C. STREET, BALARAMAPURAM P.O., THIRUVANANTHAPURAM (RETIRED NURSING ASSISTANT, GENERAL HOSPITAL, THIRUVANANTHAPURAM). ADV. SRI.ALEXANDER JOSEPH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ------------------------------- W.A. No.292 OF 2007 ------------------------------- Dated this the 27th day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in W.P.(C) No.11731/2004 are the appellants. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following. The respondent was working as Family Welfare Volunteer Promoter under the Health Services department from 1980. While so, the Government issued an order on 22.6.1984 providing for appointment of such Volunteers as Part Time Contingent Employees on daily wage basis. On the strength of that order, the respondent was employed as Part Time Sweeper on daily wage basis on 3.1.1987. Later, he was promoted as Hospital Attendant Grade-II on 28.1.1989. While so, the Special Rules for Part Time Contingent Service were amended on 2.12.1991 making Family Welfare Volunteer Promoters and Dais also as feeder categories for appointment to the post of Part W.A.No.292/2007 2 Time Contingent Employees under the Health department. Later, the petitioner was promoted as Nursing Assistant on 28.9.1991 and he retired from service on 31.3.1995. 2. A dispute arose whether the service rendered by the petitioner and other similarly placed employees as Part Time Contingent Employees on daily wages after the issuance of the Government Order dated 22.6.1984 should also be reckoned for pensionary benefits. Since the Special Rules were amended only on 2.12.1991 and that too with prospective effect, doubts were expressed whether the service rendered prior to that could be counted. So, the Government issued Ext.P1 clarificatory order. The operative portion of the said order reads as follows: “In the circumstances Government are pleased to order that the services rendered by the Part Time Contingent Employees who were appointed from the category of Family Welfare Volunteer Promoter and Dais on daily wages from 1984 onwards be regularised for all service benefits including pensionary benefits.” W.A.No.292/2007 3 3. The said direction in Ext.P1 was misinterpreted to mean that service rendered as Family Welfare Volunteer Promoter and Dais from 22.6.1984 could also be reckoned for pensionary benefits. Taking that view, revision of pension of the petitioner was proposed as per Ext.P2 and the DMO authorised payment of pension as per Ext.P3. But, later, on realising the mistake, the said proposal and the decision were not implemented. The Government was moved by filing representations. The last of those representations was rejected by Ext.P6. So, the writ petition was filed seeking a direction to pay the pensionary benefits as per Exts.P2 and P3. 4. The appellants/respondents filed a counter affidavit resisting the prayers in the Writ Petition. The learned Single Judge, after hearing both sides, took the view that the point raised by the respondent/petitioner was covered by Ext.P1 and therefore directed to release all pensionary benefits as per Exts.P2 and P3. The respondents in the writ petition being aggrieved by the said direction preferred this writ appeal. W.A.No.292/2007 4 5. We heard the learned counsel on both sides. The learned Government Pleader submitted that Ext.P1 enables counting of daily wage service in the post of Part Time Contingent Service rendered from 22.6.1984. In the case of the respondent/ writ petitioner, he was appointed as Part Time Contingent Employee on daily wage basis only on 3.1.1987. So his service from that date alone can be counted. Counting service from that date, the pensionary benefits were already released, it is submitted. 6. The learned counsel for the respondent/writ petitioner, Mr.Alexander Joseph, submitted that going by Ext.P1, the service rendered by him from 22.6.1984, even if, a portion of it was as Family Welfare Volunteer Promoter, is liable to be reckoned for pensionary benefits. The learned counsel also submitted that the counter affidavit filed by the Director of Health Service department in the writ petition supports this view. W.A.No.292/2007 5 7. Going by Ext.P1, we find it difficult to accept the view canvassed by the learned counsel for the respondent/writ petitioner. The service after 22.6.1984 in the post of Part Time Contingent Sweeper on daily wages alone can be reckoned in view of Ext.P1. So, Exts. P2 and P3 were wrongly issued. Therefore, we find nothing wrong with the stand of the Government that those orders cannot be implemented. Going by the counter affidavit of the Director of Health Service also, we notice that the view taken in Ext.P1 alone is reflected in the counter affidavit. So, the claim of the respondent/writ petitioner that his service as Family Welfare Volunteer Promoter should also be reckoned cannot be upheld. Therefore, the direction of the learned Single Judge to the contrary is unsustainable in law. In the result, the writ appeal is allowed. The judgment under appeal is reversed and the Writ Petition is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps