IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 OP.No. 13115 of 2003(J) ------------------------------------- PETITIONER(S): ------------------------ K.BASKARAN S/O. KUNHIRAMAN, AGED 57 YEARS, FULL TIME MANIAL, GOVERNMENT HIGH SCHOOL FOR BOYS, CHERUKUNNU, KANNUR DISTRICT BY ADV. MR.C.K.SREEJITH RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE COMMISSIONER AND SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATIONAL DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. THE HEADMASTER, GOVERNMENT HIGH SCHOOL, VELLAMUNDA, WAYANAD DISTRICT. 5. THE DISTRICT EDUCATIONAL OFFICER, THE OFFICE OF D.E.O., THALASSERY. R1, TO R3 & R5 BY GOVT. PLEADER MR.ANTONY MUKKATH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.22215/2003 IN OP. NO.13115/2003 DISMISSED 01.12.2009 SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE DISCHARGE CERTIFICATE DTD. 7.1.1974. P2:- COPY OF THE ORDER PASSED BY THE D.E.O. THALASSERY, ORDER NO.A2-5089/78 DT. 20.1.1979. P3:- COPY OF THE ORDER REGULARIZING THE SERVICE OF THE PETITIONER DTD. 3.8.88. P4:- COPY OF THE ORDER STATING THAT THE PETITIONER IS NOT ENTITLED TO ANY OTHER BENEFIT FOR THE PERIOD HE WAS OUT OF SERVICE DTD. 25.9.1981. P5:- COPY OF THE ORDER ISSUED BY THE D.P.I. STATING THAT NO CONCURRENCE IS REQUIRED FORM THE P.S.C. DTD. 8.8.1984. P6:- COPY OF THE ORDER PASSED BY THE GOVERNMENT DTD. 21.7.88. P7:- COPY OF THE JUDGMENT DTD. 15.1.97 BEFORE THE HONOURABLE HIGH COURT OF KERALA. P8:- COPY OF THE PETITIN FILED BY PETITIOENR BEFORE THE GOVERNMENT DTD. 25.7.98. P9:- COPY OF THE ORDER PASSED BY THE GOVERNMENT DTD. 16.4.99. P10:- COPY OF THE G.O.(P) NO.43/77/GAD DTD. 8TH FEBRUARY 1977. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ------------------------- O.P. No.13115 of 2003 (J) --------------------------------- Dated, this the 1st day of December, 2009 J U D G M E N T The petitioner claims that he was appointed as a full time menial in the 4th respondent school for the period from 17/02/1969 to 31/12/1969. Subsequently, by Ext.P2 order dated 20/01/1979, he was reinstated in service. Still later, the period of his absence from 01/01/1970 to 28/01/1979 was ordered to be treated as duty for the purpose of calculating qualifying service for pension and not for other reliefs, as per Ext.P6 order dated 21/07/1988. 2. He claimed that the period should be counted for increments, and approached this Court by filing O.P. No.522/93. That original petition was dismissed. In writ appeal No.1695/1996 filed by the petitioner, a Division Bench of this Court ordered that if the petitioner is entitled to claim the benefit of Note 2 to Rule 33 of Part-I KSR, he can pursue his claim. Ext.P7 is the copy of judgment in the writ appeal rendered on 15/01/1997. Accordingly, the petitioner filed Ext.P8 representation, and that was rejected by O.P.No.13115/2003 -2- Ext.P9 dated 16/01/1999. It is challenging Ext.P9, this writ petition is filed. 3. Primarily, the claim of the petitioner is for the benefit of Note 2 to Rule 33 of Part-I, KSR. This Note, which has been deleted in 1986, provided that regularisation of provisional service without or without break in the same category or post will be treated as officiating service abinitio for the limited purpose of granting increments. It is also provided that provisional service followed by a regular appointment with or without break in the same category or post will also be treated as officiating service abinitio for the limited purpose of granting increments. 4. The claim of the petitioner is on the basis that since his absence for the period from 01/01/1970 to 28/01/1979 has been ordered to be treated as duty as per Ext.P6 order, this amounts to regularisation as contemplated in Note 2 to Rule 33, Part-I KSR and therefore, he is entitled for the benefit of increment. However, the plea relying on Ext.P6 cannot be accepted for the reason that Ext.P6 cannot be construed as one for regularising any part of the service of the petitioner, but only orders that the period will be treated as O.P.No.13115/2003 -3- duty for the limited purpose of counting qualifying service for pension. Therefore, that argument cannot be accepted. 5. However, Note 2 further provided that provisional service followed by regular appointment with or without break in the same category or post will also be treated as officiating service for the purpose of increment. Here, in this case, by Ext.P2 he was reinstated in service on 20/01/1979 and he joined the post on 28/01/1979. Therefore, though with a break, there has been a regular appointment in January, 1979. If that be so, the period of provisional service rendered by the petitioner during 17/02/1969 to 31/12/1969 is liable to be reckoned for the purpose of granting increments. The contrary view taken as reflected in Ext.P9, cannot be accepted. Therefore, I quash Ext.P9 and this original petition is disposed of directing the respondents to reckon the period of provisional service rendered by the petitioner from 17/02/1969 to 31/12/1969 for increment and grant the benefits consequential thereto on that basis. This shall be done as expeditiously as possible at any rate within three months of production of a copy of this judgment. O.P.No.13115/2003 -4- The petitioner shall produce a copy of this judgment before the 5th respondent, who shall pass necessary orders in this behalf. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg