IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 OP.No. 2138 of 2003(D) -------------------------------- PETITIONER: ------------------ K.VELUNNI, LEPROSY INSPECTOR, COMMUNITY HEALTH CENTRE, ALATHOOR, PALAKKADU DISTRICT. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DISTRICT MEDICAL OFFICER, PALAKKAD. 3. THE SUPERINTENDENT, COMMUNITY HEALTH CENTRE, ALATHOOR, PALAKKADU DISTRICT. BY GOVERNMENT PLEADER SRI.P.A.SALIM THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.2138/2003 ORDER ON CMP. NO.3938/2003 IN OP. NO.2138/2003 DISMISSED 11.01.2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE GOVERNMENT CIRCULAR GO(P) 740/70/FIN DT. 20.10.1970. EXT.P2:- COPY OF THE GOVERNMENT CIRCULAR NO.41/93/FIN DT. 15.6.93. EXT.P3:- COPY OF THE MEMO ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER BEARING NI,.A.122/2000 DT. 12.7.2000. EXT.P4:- COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COUR OF KERALA IN OP. NO.29380/2000 DT. 1.10.2001. EXT.P5:- COPY OF THE ORDER OF THE 3RD RESPONDENT BEARING NO.A/604/01 DT. 26.10.02. EXT.P6:- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT BEARIN NO.B6-11888/00 DT. 15.11.02. EXT.P7:- COPY OF THE NOTE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER BEARING NO.A/604/01 DT. 5.1.03. /TRUE COPY/ P.S. TO JUDGE tss P.N.Ravindran, J. =============== O.P.No.2138 of 2003 =============== Dated this the 11th day of January, 2008. JUDGMENT The petitioner was appointed provisionally as Leprosy Health Visitor under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 as per order dated 23.9.1989 for a period of 12 months or till P.S.C. hands join duty, whichever is earlier, along with other candidates sponsored by the Employment Exchange. The petitioner jointed duty on 3.8.1990. The post of Leprosy Health Visitor was later redesignated as Leprosy Inspector. The petitioner continued in service well beyond the period of 12 months for which he was initially appointed, and is even now in service. 2. While the petitioner was thus continuing in service, the third respondent issued Ext.P3 memo dated 12.7.2000 calling upon him to refund the sum of Rs.4,356/- paid to him as leave salary stating that he was not entitled to the earned leave of 35 days availed by him from 1.3.1996 to 31.1.2000. Aggrieved by OP 2138/03 -: 2 :- Ext.P3, the petitioner filed O.P.No.29380 of 2000 in this Court. By Ext.P4 judgment delivered on 1.10.2001, this Court directed the third respondent to consider the petitioner's representation and to take appropriate action thereon within two months from the date of production of a copy of the judgment. This Court had in Ext.P4 judgment directed that if the authorities are convinced that the petitioner has not taken unauthorised leave, steps will be taken to refund the amount recovered from him pursuant to Ext.P3. 3. Pursuant to Ext.P4 judgment, the third respondent issued Ext.P5 proceedings dated 26.10.2002 according sanction for refund of the sum of Rs.4,978/- recovered from the petitioner subject to the condition that he will refund the amount in full, if he is found to be not eligible for the same. The second respondent thereafter sent Ext.P6 letter dated 15.11.2002 to the third respondent referring to Ext.P2 circular and directing that as the petitioner was not appointed for a definite period, steps may be taken to recover the leave salary drawn by him. Thereupon, the third respondent issued Ext.P7 note dated 5.1.2003 directing the petitioner to refund the sum of Rs.4,978/- paid to him OP 2138/03 -: 3 :- pursuant to Ext.P5. Exts.P3, P6 and P7 are under challenge in this original petition. 4. I have heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner submitted that as the service of the petitioner, who was initially appointed on provisional basis for a period of 12 months and continued beyond that period has since been regularised, he is entitled to the benefit of Ext.P2. The learned Government Pleader on the other hand submitted that as the petitioner was appointed for a period of 12 months or till P.S.C. hands join duty, whichever is earlier, but continued in service beyond one year, it cannot be said that his appointment was extended for a longer but definite period. In support of the said contention, the learned Government Pleader relied on Ext.P2, which reads thus: "Government have been receiving enquiries from several Heads of Departments as to whether provisional employees continuing in service beyond five years can be granted leave as in the case of regular employees. After having examined the matter in detail Government hereby clarify that OP 2138/03 -: 4 :- provisional recruits appointed for a limited period but continuing in service for more than five years continuously as a result of Court directions or Government Orders are to be treated as provisional employees whose initial appointment for a short period has been extended for a longer but definite period and that they are eligible for leave admissible to regular employees as provided in Rule 3 of Appendix VIII of Kerala Service Rules." A reading of Ext.P2 circular would reveal that it would govern the case of the petitioner as well. The petitioner was initially appointed on provisional basis for a period of 12 months in the year 1990 and he continued in service uninterruptedly thereafter. His service was also later regularised. The Government has by Ext.P2 ordered that provisional recruits appointed for a limited period but continuing in service for more than five years continuously as a result of court directions or Government orders are to be treated as provisional employees whose initial appointment for a short period has been extended for a longer but definite period. The emphasis in Ext.P2 is not on the words "extended for a longer but definite period", as contended by the respondents. By Ext.P2, the leave admissible to provisional OP 2138/03 -: 5 :- employees whose initial short term appointment was extended for a longer but definite period, was extended to provisional employees appointed for a limited period but continuing in service for more than five years continuously. The petitioner was admittedly appointed for a limited period of "12 months or till P.S.C. hands join duty whichever is earlier". The petitioner's appointment was thus for a limited period of 12 months. It is also admitted that he was in service for more than five years continuously. The petitioner is hence, entitled to the benefit of Ext.P2. The direction issued by the respondents to recover the sum of Rs.4,978/- from the petitioner runs counter to Ext.P2 and cannot therefore be sustained. 5. For the reasons stated above, I quash Exts.P3, P6 and P7 and declare that the petitioner is not liable to refund the sum of Rs.4,978/- as directed thereon. The Original Petition is allowed. In the circumstances of the case, I make no order as to costs. P.N.Ravindran, Judge. ess 11/1