IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 WP(C).No. 31219 of 2008(N) --------------------------------------- PETITIONER(S): ---------------------- A.L.PHILOMINA, PHARMACIST (RETD)., AGED 59 YEARS, W/O.M.C.GEORGE, O/O THE DISTRICT MEDICAL OFFICER (HOMEO), THRISSUR (RESIDING AT MECHERIPADY HOUSE, P.O.ALAPPAD, THRISSUR DISTRICT - 680 641. BY ADV. SRI.V.A.MUHAMMED SRI.M.SAJJAD RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF HOMEOPATHY, TRIVANDRUM. 3. THE ACCOUNTANT GENERAL (A & E) KERALA, TRIVANDRUM. 4. THE DISTRICT MEDICAL OFFICER (HOMEO) THRISSUR. GOVERNMENT PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.Ravindran, J. ===================== W.P(C).No.31219 of 2008 ===================== Dated this the 31st day of October, 2008. JUDGMENT The petitioner is a pensioner. She retired from service on 31.3.2004 while she was working as Pharmacist in the office of the District Medical Officer (Homoeo) Thrissur. The petitioner entered service as Peon in the Homoeopathy Department on 14.7.1988. She was thereafter promoted as Attender and later as Pharmacist. Prior to her regular appointment in the Department of Homoeopathy as Peon, she had worked as Lower Division Clerk/Copyist in various offices, the details of which are furnished below: “Y M D L.D.C. from 24.3.1971 to 10.6.1971 0 2 16 Copyist(same scale of pay of LDC) 31.10.1974 to 29.1.1975 0 2 30 Copyist 5.7.1977 to 31.12.1977 0 2 30 L.D.C. 1.1.1979 to 30.3.1979 0 3 00 Copyist 10.3.1980 to 5.6.1980 0 2 28 Copyist 9.7.1981 to 31.1.1982 0 4 09 L.D.C. 1.0.1982 to 10.2.1982 0 4 09 L.D.C. 25.5.1983 to 13.7.1988 5 1 19 ---------------------- Total 7 2 19 -------------------------------------------------------------” It appears that taking into account the said provisional service, the petitioner was given increments applying Government Decision No.2 under Rule 33 of Part I of the Kerala Service Rules. In this Writ Petition, the petitioner claims relying on Ext.P2 Government order dated 25.11.1999 that as her provisional service was rendered prior to WP(C) 31219/08 -: 2 :- 1.10.1994 followed by reappointment before 1.10.1994 she is entitled to have the aforesaid period of provisional service reckoned for the purpose of pensionary benefits as well. The petitioner had claiming the said benefits earlier filed W.P.(C) No.23855 of 2004. By Ext.P5 judgment delivered on 14.3.2008, this Court disposed of the said Writ Petition with a direction to the State Government to consider the petitioner's request and pass orders thereon. As directed by this Court, the Government considered the petitioner's request and passed Ext.P6 order on 28.7.2008 holding that the provisional service rendered by the petitioner cannot be reckoned for the purpose of pensionary benefits. Hence this Writ Petition challenging Ext.P6. 2. Ext.P2 Government order which the petitioner relies on states that provisional service with or without break rendered by employees upto 30.9.1994, which qualifies for earning increments in terms of Government Decision No.2 under Rule 33 Part I of the Kerala Service Rules will be reckoned as qualifying service for pension irrespective of dates of retirement after 20.11.1989. The operative portion of Ext.P2 reads as follows: “2. Government have examined the case in detail and are pleased to clarify that the provisional service with or without break rendered by the employees upto 30.9.1994 which qualifies for earning increments in terms of Government Decision No.2 under Rule 33 Part III, Kerala Service Rules will be reckoned as Qualifying Service for pension irrespective of dates of retirement after 20.11.1989. The provisional service rendered on or after 1.10.1994 will not be reckoned as qualifying service for pension. The cases of retirement from service during the period from 1.10.1994 to 15.12.1998 and pensionary claims already sanctioned will not be re-opened”. WP(C) 31219/08 -: 3 :- 3. One of the conditions for attracting Government Decision No.2 is that the provisional service should have been rendered in the same category or post. The petitioner's provisional service prior to 1.10.1994 was either as Lower Division Clerk/Copyist in various offices. She commenced regular service as Peon in the Homoeopathy Department. It cannot therefore be said that the posts which she held on the basis of the provisional appointment, are in the same category as the post in which she was regularly appointed. The Government was therefore right in holding that the petitioner's case is not governed by Government Decision No.2 under Rule 33 of Part II of the Kerala Service Rules. In my considered opinion, the decision taken by the Government in Ext.P6 cannot be faulted. The Writ Petition accordingly fails and is dismissed in limine. P.N.Ravindran, Judge. ess 6/11