IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 WP(C).No. 3479 of 2007(L) ------------------------------------- PETITIONER(S): ------------------------- K.A. DEVADATH, S/O.R. APPUKUTTAN NAIR, STUDIO ATTENDER, COLLEGE OF FINE ARTS THIRUVANANTHAPURAM, RESIDING AT `KAVERI', KIZHUVILAM, MEMOM, ATTINGAL, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE, SMT.T.V.NEEMA. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF TECHNICAL EDUCATION, EAST FORT, THIRUVANANTHAPURAM. 3. PRINCIPAL, COLLEGE OF FINE ARTS, THIRUVANANTHAPURAM. BY GOVT. PLEADER MR.NOBLE MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011, ALONG WITH WPC NO.3496 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 3479 of 2007(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE OF THE CERTIFICATE COURSE EXAMINATION IN DRAWING AND PAINTING AWARDED TO THE PETITIONER BY THE BOARD OF PUBLIC EXAMINATION, KERALA STATE. EXT.P1A: COPY OF THE DIPLOMA CERTIFICATE EXAMINATION IN DRAWING AND PAINTING AWARDED TO THE PETITIONER BY THE BOARD OF PUBLIC EXAMINATION, KERALA STATE. EXT.P2: COPY OF THE PROCEEDINGS NO.G5/23354/82 DATED 07/09/1982 PROVISIONALLY APPOINTING THE PETITIONER TO THE POST OF STUDIO ATTENDER. EXT.P3: COPY OF THE ORDER DATED 16/03/1983 IN C.M.P. NO.6715/1983 IN O.P. NO. 2186/1983 OF THIS HONOURABLE COURT. EXT.P4: COPY OF THE G.O.(MS) NO.3/88/H.EDN. DATED 01/01/1988 REGULARISING THE PROVISIONAL LECTURERS/PROFESSORS. EXT.P5: COPY OF THE RECOMMENDATION LETTER NO.EB1/22981/97 DATED 29/11/2003 OF THE 2ND RESPONDENT. EXT.P6: COPY OF THE G.O.(MS) NO.127/2005/H.EDN. DATED 19/08/2005 REGULARISING THE PETITIONER'S SERVICE. EXT.P7: COPY OF THE PROCEEDINGS NO.EB1/12899/05 DATED 03/10/2005 OF THE 2ND RESPONDENT. EXT.P8: COPY OF THE ORDER NO.15506/2006/H.EDN. DATED 06/10/2006 OF THE 1ST RESPONDENT DENYING TIME BOUND HIGHER GRADE TO THE PETITIONER. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 3479 & 3496 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th day of October, 2011. J U D G M E N T The petitioners in these two writ petitions were originally temporarily appointed as non-teaching staff in the College of Fine Arts under the Technical Education Department of the Government of Kerala. After long years of service, their temporary appointments were regularised with effect from the date of their initial provisional appointment. But, they were not given arrears of salary as also time bound higher grades available to other Government servants on completion of 10, 18 and 23 years' of service. It is under the above circumstances the petitioners have filed these writ petitions seeking the following reliefs: i. issue a writ of certiorari quashing Ext.P8 order and Ext.P6 to the extent it denies arrears of salary payable to the petitioner; ii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to pay arrears of salary payable to the petitioner and direct the respondents to grant time bound higher grade to the petitioner on him completing 10, 18 and 23 years of service.” 2. In W.P(C) No. 3496, the petitioner is no more and his legal heirs have come on record as petitioners 2 to 4 to prosecute the writ petition. 3. The contention of the petitioners is that the services of similarly placed teaching staff temporarily appointed have been W.P(C) Nos. 3479 & 3496 of 2007 -: 2 :- regularised with all monetary benefits and other benefits. Denial of the same to the petitioners is arbitrary and discriminatory, is the conotention raised.. 4. Counter affidavits have been filed in both the writ petitions. The contention taken therein is that the case of the petitioners cannot be equated with the case of the teaching staff insofar as teaching staff are covered by Special Rules regarding the method of appointment and qualifications, whereas in the case of non-teaching staff, there were no Special Rules prescribed. 5. I have considered the rival contentions in detail. 6. Of course, the petitioners do not have any right to be regularised in service insofar as admittedly, they were provisionally appointed. That being so, regularization is a concession given to the employees, which concession they have to accept along with the conditions of that concession. Ext.P6 in W.P(C) No. 3479/2007 is the order regularizing the services of the petitioners. The relevant portion of the order reads thus: “Government have examined the matter in detail and are pleased to regularise the provisional appointment of these four supporting staff in the College of Fine Arts, Thiruvananthapuram invoking the power under Rule 39 of Part II of KS & SSR. The 4 persons will be regularised with effect from the date from which they have been continuously getting monthly salary. The date of regularization, the post, and the scale of pay are shown below. From such date till the date of the order they will not be entitled to any arrears of salary. The period will count for the purposes of pay fixation and pension only.” (Underlining supplied) Arrears of salary have been specifically excluded while W.P(C) Nos. 3479 & 3496 of 2007 -: 3 :- regularizing the petitioners' service. But, they are entitled to fixation of pay and pension taking into account the entire service put in. I am of opinion that the words “pay fixation” would include pay fixation on the basis of the time bound higher grades to which the petitioners are entitled to like other Government employees. Therefore, the petitioners are entitled to have their pay fixed in the scale of pay of higher grades applicable on completion of 10 years, 18 years and 23 years in accordance with the relevant Pay Revision Orders applicable to Government servants. But, they will not be entitled to arrears of salary on such fixation. 7. In the above circumstances, although the petitioners are not entitled to arrears of salary, they are entitled to fixation of their pay granting them time bound higher grades on completion of 10 years, 18 years and 23 years and retirement benefits based on such fixation of pay. Orders in this regard shall be passed and arrears of retirement benefits due to the petitioners shall be disbursed to them as expeditiously as possible, at any rate, within 2 months from the date of receipt of a copy of this judgment. In the case of the petitioner in W.P(C) No. 3496/2007, the benefits shall paid to the legal heirs. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/