IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WA.No. 1772 of 2006(C) --------------------------------------- AGAINST THE JUDGEMENT IN OP.21348/2001 Dated 06/06/2006 .................... APPELLANT(S): RESPONDENT IN THE O.P: ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. BY SPL. GOVERNMENT PLEADER SRI. N. MANOJ KUMAR. RESPONDENT(S): PETITIONER IN THE O.P: ------------------------------------- K.C. GANGADHARAN NAIR, KURIKKAL MADATHIL HOUSE, P.O. ABADUKKA, PERUVANNAMUZHI (VIA), KOZHIKODE DISTRICT. R1 BY ADV. SRI.NIDHI BALACHANDRAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/6/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------------ W.A. No.1772 of 2006 ------------------------------------ Dated, this the 19th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in the writ petition are the appellants. The brief facts of the case are as follows: 2. The writ petitioner/respondent herein joined the Revenue Department as peon on 10.9.1975. He retired from service on 29.2.2000 while working in the post of Upper Division Clerk from the Munsiff-Magistrate Court, Perambra. Before his entry in service in 1975, the respondent has worked as L.D.C. on provisional basis from 14.10.1969 to 31.12.1969. After his retirement, respondent preferred Ext.P1 representation before the Accountant General praying that the provisional service rendered by him from 14.10.1969 to 31.12.1969 may be reckoned as qualifying service for computing pensionary benefits. As per Ext.P2, the Accountant General called for the service records for taking a decision on his representation. Thereafter, by Ext.P3 dated 9.1.2001, the W.A. No.1772 of 2006 - 2 - Accountant General's Office rejected his representation. The reason given was that the provisional service rendered by him mentioned above has not been reckoned for granting increments. Feeling aggrieved by Ext.P3, this writ petition was filed. The petitioner relied on Exts.P4 and P5 Government orders in support of his claim. Learned Single Judge allowed the writ petition holding that all provisional service prior to 1.1.1994 is liable to be counted for pensionary benefits. Feeling aggrieved by the said direction, this writ appeal is filed. 3. We heard the learned Government Pleader for the appellants. He pointed out that Ext.P4 Government Order provides that provisional service rendered with or without break up to 30.9.1994 which qualifies for earning increments in terms of Government Decision No.2 under Rule 33, Part I, K.S.R. will be reckoned as qualifying service. Learned Government Pleader submitted that the service rendered by the petitioner/respondent as L.D.C. in 1969 for about 3 months was not reckoned for grant of increments and could not W.A. No.1772 of 2006 - 3 - have been reckoned for increments also. Decision NO.2 under Rule 33 which enables reckoning of provisional service for grant of increments has been deleted by Ext.P6 with effect 1.10.1995. According to the learned Government Pleader, going by the Decision No.2 under Rule 33 of Part I, KSR, the claim of the petitioner is unsustainable. 4. It is common ground that provisional service rendered before 1994 could be reckoned for grant of pensionary benefits provided the said service qualifies for increment as provided in Decision No.2 under Rule 33 of Part I, K.S.R. which remained in force up to 30.9.1994. The said decision reads as follows: “Government Decision No.2: Provisional service on regularisation with or without break in the same category or post will be treated as officiating service ab initio for the limited purpose of granting of increments. Provisional service followed by a regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited W.A. No.1772 of 2006 - 4 - purpose of granting of increments. The term 'same category' of post for the purpose denotes posts satisfying the following conditions:- (i) The posts 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. The above decision shall be deemed to have come into force with effect from 1.11.1956 but the monetary benefit thereof will be admissible only with effect from 24.7.1967.”. 5. Going by the above decision, we have no doubt in our mind that the relevant provisional service does not qualify for increment. The petitioner drew his first increment in the post of peon. His provisional service was in the post of L.D.C. Those posts were always carrying different scales of pay and qualification for those posts are also different. In view of the above position, the provisional service of the W.A. No.1772 of 2006 - 5 - petitioner cannot be counted for granting increment. If that be so, the same cannot be reckoned for grant of pensionary benefits also. In the result, the writ appeal is allowed. The judgment under appeal is reversed and the original petition is dismissed. Sd/- K. BALAKRISHNAN NAIR, JUDGE. Sd/- C.T. RAVIKUMAR, JUDGE. DK. (True copy)