IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 WA.No. 1251 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.31219/2008 Dated 31/10/2008 .................... APPELLANT(S): PETITIONER ------------------------ A.L.PHILOMINA, AGED 59 YEARS, W/O M.C.GEORGE, PHARMACIST(RETIRED), O/O THE DISTRICT MEDICAL OFFICER(HOMEO), THRISSUR(RESIDING AT MECHERIPADY HOUSE P.O.ALAPPAD, THRISSUR DISTRICT-680641) BY ADV. SRI.V.A.MUHAMMED RESPONDENT(S): RESPONDENTS -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS 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. BY SENIOR GOVT. PLEADER SRI. BENNY GERVACIS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 5.10.2009, THE COURT ON 30/10/2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1251 OF 2009 --------------------------------------------- Dated this the 30th day of October, 2009 JUDGMENT Ravikumar, J. The appellant herein was the petitioner and the respondents herein were the respondents in the Writ Petition. The Writ Petition was filed mainly seeking the following reliefs: (a)Call for the records relating to Exhibit P-1 and P-6 and quash the originals of the same to the extent it denied the claim of the petitioner for reckoning provisional service towards pensionary benefits by the issue of a writ of certiorari or other appropriate writ or order. (b)issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to revise the pensionary benefits of the petitioner counting the provisional service as well. (c)declare that the petitioner is entitled to get pensionary benefits counting the provisional service since it was counted for increments. 2. The appellant retired from service on superannuation on W.A. NO. 1251/2009 2 31.3.2004 while working as Pharmacist in the office of the District Medical Officer (Homeo), Thrissur. She commenced regular service as Peon in the Homeopathy Department on 14.7.1988. Later, she was promoted as Attender and thereafter as Pharmacist. Prior to such regular service, she had provisional service spanning over a period of seven years two months and nineteen days and the details of the same are as hereunder: “Y M D L.D.C. from 24.3.1971 to 10.6.1971 0 2 16 Copyist (same scale of 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. 1.10.1982 to 10.2.1982 0 4 09 L.D.C. 25.5.1983 to 13.7.1988 5 1 19 -------------- Total 7 2 19 ----------------------------------------------------------------------------” 3. The grievance of the appellant is that her pensionary claims were fixed reckoning only her regular service from 14.7.1988 and her W.A. NO. 1251/2009 3 provisional service was totally ignored for the said purpose. To redress the said grievance, she had earlier approached this Court by filing W.P.(C) No.23855 of 2004 and the same was disposed of by Ext.P5 judgment directing the Government to look into the matter and pass orders thereon. Subsequently, she was heard in the matter. However, the Government rejected her claim as per Ext.P6 dated 28.7.2008. It was challenging the same and seeking the aforementioned reliefs that W.P.(C) No.31219 of 2008 was filed. 4. Ext.P6 order was attacked mainly on two grounds. It was contended that as per G.O.(P)No.2357/99/Fin dated 25.11.1999 (Ext.P2), 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 of Part I of the Kerala Service Rules, has to be reckoned as qualifying service for pension irrespective of the dates of retirement after 20.11.1989. It was further contended that in view of the decisions of this Court in 1996(2) K.L.T. 555 and 1998(2) K.L.T. 873, mere reason of change in the pay scales due to pay revision, reckoning of the provisional service for increment and service benefits could not be denied. The learned Single Judge considered the contentions mainly in the light of quintessential condition for attracting Government decision No.2 W.A. NO. 1251/2009 4 under Rule 33 of Part I of the Kerala Services Rules that the provisional service should have been in the same category or post in which he/she was appointed on regular basis or regularised following such provisional service with or without break. Admittedly, in this case, the appellant's provisional service prior to 1.10.1994 was either as Lower Division Clerk or as Copyist. Indisputably, she commenced her regular service under the Homeopathy Department not in the same category or post, whilst as Peon. Therefore, the post held by the appellant/petitioner on provisional basis and the post to which she was appointed on regular basis following such provisional service are not in the same category or post. That apart, both the said posts carry different scales of pay. It was after considering the said factual position that the learned Single Judge found that the Government was right in holding that the appellant's case is not one covered by decision No.2 under Rule 33 of Part I of the Kerala Service Rules and consequently dismissed the Writ Petition. 5. Indisputably, the facts already noticed earlier would reveal the following: The post held by the appellant on provisional basis prior to 1.10.1994 and the post against which she was appointed on regular basis are not in the same category or post and they carry different scales of pay. The contentions raised by the appellant before the authorities as also W.A. NO. 1251/2009 5 before this Court would reveal that her claim is for reckoning her provisional service prior to 1.10.1994 for the purpose of pensionary benefits based on Government decision No.2 under Rule 33 of Part I of the Kerala Service Rules. To reckon such provisional service for the purpose of increments, regularisation or regular appointment following the same, with or without break, should be in the same category or post. The conditions to be satisfied to denote such posts as belonging to the same category were given in Government decision No.2 as hereunder: i. The post should carry the same or identical scale of pay. ii. Qualification and method of appointment should be same iii.The posts should fall in the same category. 6. Admittedly, the provisional service of the appellant/petitioner was in the category of Lower Division Clerk or Copyist whereas as her regular appointment in the Homeopathy Department was as Peon. The appellant cannot, therefore, contend that the provisional service as also the subsequent regular appointment were in the same category or post. Perhaps, it is acknowledging that fact, the appellant has raised a contention in paragraph 4 of the Writ Appeal as hereunder: W.A. NO. 1251/2009 6 “4. In view of the Government decision No.2 below Rule 33 Part I Kerala Service Rules which was in force till 30.9.1994 there is permissibility in counting the provisional service for grant of increments as the post of L.D. Clerk and Pharmacist also carry the same or identical scale of pay. There is no impediment in counting the provisional service rendered by the appellant for pension.” (emphasis supplied) It would reveal that the contention of the appellant now taken in appeal is that she is entitled to get her provisional service counted for grant of increments in view of Government decision No.2 below Rule 33 of Part I of the Kerala Service Rules as the post of L.D. Clerk and Pharmacist carry the same or identical scale of pay. It is true that the appellant retired from service while working as Pharmacist. But, it is a fact that she reached the said post only on getting two promotions involving change in the scale, viz. (i) from the post of Peon to Attender and (ii) from the post of Attender to Pharmacist. In short, reliance placed on Government decision No.2 below Rule 33 of Part I of the Kerala Service Rules is unfounded and without any basis. In view of the facts thus obtained in this case, there can be no application for the decisions relied on by the appellant reported in 1996(2) K.L.T. 555 and 1998(2) K.L.T. 873. In W.A. NO. 1251/2009 7 short, the factual and legal position, as discussed above, would reveal that the decision of the Government in Ext.P6 is perfectly correct and legal, as rightly held by the learned Single Judge. 7. The appellant has raised yet another contention. It was contended that her provisional service from 25.5.1983 to 13.7.1988 was reckoned for increments, but the said service was not taken into account for the purpose of fixing her pensionary benefits. However, no materials were produced before this Court to substantiate the said contention. Reckoning of such provisional service for the purpose of fixation of pensionary benefits depends entirely on the fact as to whether such service during the said period was reckoned for grant of increments. If the service has been counted for increments, the same shall be counted for pension also. Since this fact is not discernible from the documents produced, no direction can be given to the respondents to revise the pensionary benefits of the appellant counting the said period of provisional service merely relying on the appellant's assertion. If the appellant has any grievance in that regard, she has to properly represent that matter before the Government for proper consideration. It will be open to the appellant to submit a representation before the Government to redress her grievance, if any, in that regard. In case the appellant makes any representation in the W.A. NO. 1251/2009 8 said matter, the same shall be considered by the first respondent within a period of two months from the date of receipt of a copy of this judgment. Subject to the above, the Writ Appeal is dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1251/2009 9 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A. NO.1251/2009 JUDGMENT 30th October, 2009 W.A. NO. 1251/2009 10