IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 WA.No. 57 of 2008 --------------------- AGAINST THE JUDGEMENT IN OP.19449/2002 Dated 16/07/2007 .................... APPELLANTS/RESPONDENTS IN THE ABOVE OP ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, AGRICULTURE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF AGRICULTURE, (SOIL CONSERVATION), TRIVANDRUM. 3. THE DISTRICT SOIL CONSERVATION OFFICER, AYYANTHOLE, THRISSUR. 4. THE SOIL CONSERVATION OFFICER, WADAKKANCHERRY, THRISSUR. BY SR.GOVERNMENT PLEADER SRI.BENNY GERVACIS RESPONDENT/PETITIONER IN THE ABOVE OP -------------------------------------------------- M.P.JOSEPH, S/O.M.T.PORINCHU, AGED 45 YEARS, SURVEYOR, AGRICULTURE OFFICE, (SOIL CONSERVATION), WADAKKANCHERRY, THRISSUR. BY ADV.SRI.V.A.MOHAMMED THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 57 of 2008 ---------------------------------------------- Dated this the 15th day of March, 2011 JUDGMENT Ramachandra Menon, J. This appeal has been preferred by the State being aggrieved of the judgment dated 16th July, 2007 in O.P.No.19449 of 2002, which was preferred by the petitioner challenging Exhibits P8 and P9, whereby recovery was ordered alleging that excess pay had already been drawn by the petitioner on the basis of some increments which ought not to have been granted reckoning the 'provisional service' rendered by him earlier before coming into the Agriculture service. 2. The sequence of events shows that the petitioner was originally appointed in the 'Municipal Common Service' and while working so, he was selected and appointed in the 'Agriculture Service'. Later, the service rendered by the petitioner in the Municipal Common Service was reckoned for the purpose of granting increments, which were ordered accordingly. While serving the Government as above, some audit objection was noted. Exhibit P8 was issued seeking recovery of the amount pointing out that the provisional service rendered by the petitioner in the 'Municipal Common Service' was not WA.57/08 2 liable to be reckoned for the purpose of granting increments. Exhibits P8 and P9 were subjected to challenge on many a ground. In the course of hearing, it was observed by the learned Single Judge with reference to the three conditions stipulated under Rule 33 in Part-I KSR introduced as per G.O.(P).No.279/79/Fin. Dated 16.3.1979 in the following lines: “4. The relevant date is 2-3-1989, the date on which the petitioner joined as a direct recruit Works Superintendent in the Kerala Government Service. Government Decision No.2 occurring at the foot of Rule 33 in Part I KSR introduced as per G.O.(P)No.279/79/Fin dated 16.3.1979 provided three conditions for the prupsoe of denoting posts which can be treated as “same category”. The conditions were: (i) The post should carry the same or identical scale of pay. (ii) The qualification and method of appointment should be the same. (iii) The post should fall in the same service. 5. But, by G.O.(P)No.459/86/Fin dated 1-7-1986 the third condition, namely that, the post should fall in the same service, was deleted. This means that, on and from the publication of G.O.(P)No.459/86/Fin., it was not the requirement of law that the post should fall in the same service for being treated as one in the same category in terms of Government Decision No.2 to Rule 33 in Part I KSR. Petitioner, having joined in the Kerala Government Service only after the deletion of the third condition, the post oheld by him in the Kerala Municipal WA.57/08 3 Common Service, is entitled to be treated as a post in the same category because, it indisputably passes the two tests prescribed in the Government Decision and it cannot be insisted that the post should fall in the same service. Therefore, the petitioner was entitled to the benefit of Government Decision No.2 and his service was entitled to be counted in terms of Decision No.2 to Rule 33 of Part I KSR as it stood at the relevant time. The contrary view in the impugned orders are therefore illegal and unsustainable.” 3. The pleadings are moulded and arguments have been addressed from the part of the appellant stating that the learned Single Judge has considered only the 'first two' aspects of the Rule, while the question whether the post would fall in the same service was not considered. 4. As extracted above, the factual position with respect to whether the post would fall in the same service has also been considered by the learned Single Judge, as dealt with in 'paragraph 5' of the judgment, whereby it has been categorically observed that the “third condition” has been deleted from the statute. The petitioner having joined the Kerala Government Service only after deletion of the third condition, the post held in the Kerala Municipal Common Service is entitled to be reckoned in the same category of service and accordingly, the benefit was granted. As a natural consequence, WA.57/08 4 Exhibits P8 and P9 were set aside, holding that Exhibit P1 fixation counting the provisional service of the petitioner in the Municipal Common Service was also liable to be reckoned for the purpose of granting increments. The challenge raised in respect of the said aspect fails and we hold it accordingly. However, the learned Government Pleader submits that the provisional service rendered by the petitioner in the Municipal Common Service ought not to have been reckoned for the purpose of granting 'grade promotion' ordered by the learned Single Judge and hence is liable to be set aside. 5. It is brought to the notice of this Court that this issue is squarely covered by the decision rendered by a Division Bench of this Court, (to which one of us was also a member) in W.A.No.2481 of 2008 dated 29th January, 2009. As per the said judgment, the relief was moulded, after holding that such service is not liable to be reckoned for granting 'grade promotion', however, intercepting the recovery steps for the reasons stated therein. 7. In the instant case also, we do not find any reason to have any deviation from the view taken by the Division Bench as aforesaid. We hereby declare that the provisional service rendered by the petitioner WA.57/08 5 in the Municipal Common Service is not liable to be reckoned for the purpose of awarding any 'grade promotion'. The verdict passed by the learned Single Judge is intercepted only to the above limited extent and the appeal is disposed of accordingly. J.CHELAMESWAR, CHIEF JUSTICE P.R.RAMACHANDRA MENON JUDGE vgs