IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 27535 of 2006(C) -------------------------- PETITIONER: ------------ 1. KANJANAKUMARI M.K., JUNIOR PUBLIC HEALTH NURSE GR.II, (HIGHER GRADE), P.H.C. PARASSINIKKADAVU, P.O.PARASSINIKKADAVU, KANNUR DIST. 2. K.RAMADEVI, JUNIOR PUBLIC HEALTH NURSE GR.II, (HIGHER GRADE), P.H.C., CHERUKUNNU, P.O.CHERUKUNNU, KANNUR DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & CHILD WELFARE SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICE, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER HALTH, KANNUR. BY SENIOR GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2008, ALONG WITH WPC NO. 27607 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27535 of 2006 APPENDIX PETITIONER'S EXHIBITS EXT.P1- TRUE COPY OF THE JUDGMENT DATED 21.1.04 IN W.P.(C).39285/03 EXT.P2- TRUE COPY OF THE LETTER DATED 5.7.04 ISSUED BY THE GOVERNMENT EXT.P3- TRUE COPY OF THE JUDGMENT DATED 18.8.04 IN W.P.(C).23971/04 EXT.P4- TRUE COPY OF THE JUDGMENT DATED 8.6.05 IN W.A.157/05 EXT.P5- TRUE COPY OF THE JUDGMENT DATED 1.9.06 IN CON.CASE (C). 225/06 EXT.P6- TRUE COPY OF G.O.(RT).810/06 H & FWD DATED 9.3.06 (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C)s.27535/2006 & 27607/2006 -------------------- Dated this the 25th day of March, 2008 JUDGMENT Common issues are involved in these cases. Therefore, they have been heard together and are disposed of by this common judgment. I will refer to the facts in Writ Petition No.27535/2006 in the first instance. 2. Petitioners are working as Junior Public health Nurses. According to them, they had rendered provisional service prior to their commencement of regular service. Such provisional service was rendered prior to 1.10.1994 and they were advised prior to 1.10.1994. But both the petitioners had joined only after 1.10.1994. The provisional service prior to 1.10.1994 was not taken into account for the purpose of grant of increment and therefore, the petitioners approached this Court in Writ Petition No.39285/2003, which was disposed of under Ext.P1 judgment, directing the Government to take a decision on that aspect. Government rejected the request under Ext.P2. This was again challenged by the W.P.(C)s.27535 & 27607/2006 2 petitioners in Writ Petition No.23971/2004 and that was disposed of under Ext.P3 judgment. Learned single Judge declared that the provisional service on regularization with or without break, in the same category of posts, or provisional service followed by regular appointment with or without break in the same category of post shall be counted for the benefit of increment ignoring the fact that the regularization or regular appointment is only after 1.10.1994. Accordingly, there was a direction to re-consider the case of the petitioners. Division Bench, by Ext.P4 judgment, partly affirmed Ext.P3 and held that in respect of persons who are advised prior to 1.10.1994, the provisional service can be counted for the purpose of increment as such. Ext.P4 has become final in so far as the petitioners are concerned. Pursuant to Ext.P3 judgment, Government was required to pass fresh orders. Such orders were not passed within time. Therefore, applications for Contempt of Court were moved. This ultimately resulted in Ext.P6 Government Order. It may be noted that in the meanwhile a view different from Ext.P4 was taken by the Full Bench of this W.P.(C)s.27535 & 27607/2006 3 Court in State of Kerala v. Ponnamma (2005 (4) KLT 987 [FB] ). Full Bench held that provisional service rendered prior to 1.10.1994 can be taken into account for the purpose of increment only if the incumbent had commenced regular service prior to 1.10.1994. Apparently, referring to the dictum laid down by the Full Bench in Ponnamma, Government, by Ext.P6 order, again rejected the request of the petitioner. This has been challenged in this writ petition. 3. I heard learned counsel for the petitioners and the learned senior Government Pleader. 4. The law referred to in Ext.P6, as a matter of general proposition, is correct in as much as that it has been declared by the Full Bench in Ponnamma. But in so far as the petitioners herein are concerned, Ext.P3 is a judgment declaring that they are entitled to get their provisional service counted even if regularization has taken place only after 1.10.1994. All material aspects, in so far as the petitioners are concerned, have been W.P.(C)s.27535 & 27607/2006 4 affirmed in Ext.P4 wherein the Bench had made it clear that in cases where advice was prior to 1.10.1994, the provisional service rendered prior to the said date will be eligible to be counted even if persons concerned commence regular service only after 1.10.1994. No doubt, Full Bench in Ponnamma, took a different view. But the petitioners and the Government are governed by Exts.P3 and P4, which are inter partes. 5. Learned Senior Government Pleader Mr.Nandakumar submits that the Government has taken steps to prefer appeals against Ext.P4 judgment and it is therefore quite possible that Exts.P3 and P4 will be in jeopardy. This may be correct. But I find that Ext.P4 judgment is dated 8.6.2005. In such circumstances, it may not be reasonable to deny the petitioners the benefits of Exts.P3 and P4 awaiting the possibility of an appeal before the Supreme court against Exts.P3 and P4. But at the same time, since a different view has been taken by the Full Bench, it is only appropriate that the interests of the State are also safeguarded. W.P.(C)s.27535 & 27607/2006 5 6. In the result, Ext.P6 in W.P.(C). 27535/2006 and Ext.P4 in W.P.(C).27607/2006 shall stand set aside. There will be a direction to the second respondent to pass orders counting the provisional service rendered by the petitioners prior to 1.10.1994 for the purpose of increment in terms of Ext.P3 judgment in W.P.(C). 27535/2006. At the same time, it is open to the Government to make it clear that the benefits of such order shall be disbursed to the petitioners only on them executing a bond and that they will surrender such benefits if a different view is taken by the Supreme Court in relation to Exts.P3 and P4. Fresh orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. Writ petitions are disposed of as above. V.GIRI, Judge mrcs