IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 WP(C).No. 3388 of 2008(C) ------------------------- PETITIONER(S): ------------------- T.LATHA, W/O SAJIKUMAR, AGED 34 YEARS, TEACHER, GOVERNMENT HIGHER SECONDARY SCHOOL, EDAPPALLY, ERNAKULAM, RESIDING AT LATHA BHAVAN, KAKKANAD, ERNAKULAM. BY ADV. SRI.J.DEVADANAM SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENT(S): --------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EDUCATION, STATE SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 4. THE ACCOUNTANT GENERAL(A&E), THIRUVANANTHAPURAM. 5. THE PRINCIPAL, GOVT. H.S.S., EDAPPALLY, ERNAKULAM DISTRICT. 6. THE HEADMISTRESS, GOVT. V.H.S.S.(GIRLS), VALATHUNGAL, KOLLAM. 7. THE HEADMASTER, GOVT. HIGH SCHOOL, OTTAKKAL, KOLLAM DISTRICT. GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON 21/11/2008 DELIVERED THE FOLLOWING: WPC NO. 3388/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE REPRESENTATION DT 10/12/2006. EXT.P2: TRUE COPY OF THE JUDGMENT DT 30/1/2007 IN WPC NO.3116/07 OF THIS HON'BLE COURT. EXT.P3: TRUE COPY OF THE LETTER NO2/HS/06-07 DT 28.2.2007 OF THE 6TH RESPONDENT. EXT.P4: TRUE COPY OF THE REPRSENTATION DT 23.6.2007. EXT.P5: TRUE COPY OF THE JUDGMENT DT 3.7.07 IN WPC 10956/07 OF THIS HON'BLE COURT. EXT.P6: TRUE COPY OF THE REPRESENTATION DT 2.8.07. EXT.P7: TRUE COPY OF THE NOTICE DT 4.1.2008. EXT.P8: TRUE COPY OF THE NOTICE DT 5.1.2008. EXT.P9: TRUE COPY OF THE ORDER DT 21.1.2008 BEARING NO.AD C3/26015/2007/HSE. EXT.P10: TRUE COPY OF THE RELEVANT EXTRACT OF THE KERALA SERVICE RULES CONTAINING RULE 33. EXT.P11: TRUE COPY OF THE GO(P) NO.540/94/FIN DT 30.9.1994. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 3388 OF 2008 (C) ==================== Dated this the 21st day of November, 2008 J U D G M E N T Petitioner joined regular service as HSA on 29/6/94. She was promoted as an HSST on 30/7/97 and is working as such. Prior to appointment of regular service as HSA, petitioner has rendered a total service of one year, six months and 26 days, as HSA on a provisional basis. During that period, at the G.H.S, Chithara, she has worked from 23/6/92 to 31/3/93 and G.H.S Kulathupuzha from 14/6/93 to 30/3/94. 2. The complaint in this writ petition is that the provisional service rendered by her has not been counted for the purpose of calculating increments. She submitted various representations and by Ext.P3, the 6th respondent informed her that though the provisional service can be reckoned for calculating increments, the same can be done only by the 2nd respondent. She continued to represent to the 2nd respondent and finally pursuant to Ext.P5 judgment, she made Ext.P6 representation. Thereafter, she was heard by respondents 2 and 3 and finally Ext.P9 order was issued. In Ext.P9, it has been stated by the 2nd respondent that the 3rd respondent has furnished a report stating that provisional employees who got regular appointment with or without break on or after 1/10/94 or WPC 3388/08 :2 : whose provisional service gets regularised w.e.f. 1/10/94 or thereafter will not be eligible for increments reckoning their provisional service as per GO dated 30/9/94. It is further stated that the petitioner is not eligible for increments reckoning her provisional service as her provisional service was not regularised so far. On that basis, the 2nd respondent declined her request on the ground that she is not eligible since her provisional service has not been regularised. 3. The Government order dated 30/9/94 referred to in Ext.P9 is Ext.P11 in this writ petition. The Government order dated 30/9/04 only talks about provisional employees who got regular appointment on or after 1/10/94 or gets regularised in service w.e.f. 1/10/94. In case of such employees, the Government order provides that they will not be eligible for increments reckoning their provisional service. 4. From the facts noticed above, it can be seen that so far as the petitioner is concerned, she commenced her regular service on 29/6/94. Therefore, the Government order cannot apply in so far as she is concerned. The eligibility of the petitioner for getting the period of her provisional service counted for reckoning increments does not seem to be WPC 3388/08 :3 : of dispute. But then, what is stated is that the said period has not been regularised, in which case alone the period can be reckoned. 5. In my view, the petitioner has represented to all the authorities and it is the responsibility of the authorities to have the provisional service rendered by the petitioner reckoned, if that is a requirement for counting such period or increments. So long as regularisation of her provisional service is not within the control of the petitioner and as the petitioner has moved the authorities, and if there has been failure on the part of the authorities in doing the needful in the matter, I would hold that such failure of the authorities concerned cannot work out prejudice to the petitioner. Once the Government have recognised her eligibility to have the provisional services reckoned for increment purposes, it is the corresponding duty of the authorities to do what is necessary to enable the employee to enjoy the benefit. If they have failed in discharging that duty, that cannot cause detriment to the employees. Therefore, the stand taken in Ext.P9 and reiterated in the counter affidavit that in the absence of regularising provisional service, the period cannot be reckoned for the purpose of increment cannot be WPC 3388/08 :4 : accepted. 6. Therefore, I would quash Ext.P9 and the respondents are directed to grant increments to the petitioner reckoning the provisional service rendered by her prior to her regular appointment. 7. Writ petition is disposed of as above. Petitioner may produce a copy of this judgment before the concerned respondent, who shall ensure that the judgment is complied with. ANTONY DOMINIC, JUDGE Rp