IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 11201 of 2007(H) -------------------------------- PETITIONER: -------------- SREEDHARAN.P.M., AGED 50 YEARS, S/O.T.C.KRISHNAN NAMBOOTHIRI, H.S.A., G.H.S.S., PILICODE, KASARAGOD. BY MR.M.SASINDRAN, ADVOCATE. MR.TOJAN J. VATHIKULAM, ADVOCATE. RESPONDENTS: ------------------ 1. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD. 2. THE HEADMASTER, GOVT. H.S.S., PILICODE, KASARAGOD. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY MR.T.T. MUHAMOOD, SR.GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.11201/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER OF APPOINTMENT IN WAYANAD DISTRICT DTD. 18.11.1983. EXT. P2 : COPY OF APPOINTMENT ORDER DTD. 3.1.1984 POSTING the PETITIONER AT GOVT. HIGH SCHOOL, MANGALPADY. EXT. P3 : COPY OF PROCEEDINGS BEARING No.5/90-91 DTD.23.8.90. EXT. P4 : COPY OF ACKNOWLEDGMENT FOR RECEIPT OF MONEY DTD. 17.12.90 ISSUED BY THE HEAD MASTER OF THE SCHOOL. EXT. P5 : COPY OF COMMUNICATION BEARING No.R4-106316/90 DTD. 21.3.92 SENT BY DIRECTOR OF PUBLIC INSTRUCTIONS TO R3. EXT. P6 : COPY OF STATEMENT OF FIXATION OF PAY IN THE 23 YEARS GRADE. EXT. P7 : COPY OF COMMUNICATION DTD. 14.1.05. EXT. P8 : COPY OF REPRESENTATION DTD. 24.12.05. EXT. P9 : COPY OF COMMUNICATION DTD. 16.3.07. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.11201 OF 2007 --------------------------------------- Dated this the 6th day of July, 2009. J U D G M E N T The petitioner's request to count the provisional service for increment was rejected as per Exhibit P9. This is under challenge in this writ petition. 2. The petitioner is working as High School Assistant in Government Higher Secondary School, Pilicode in Kasaragod District. He entered service as H.S.A on regular basis on 25.11.1983 in Wayanad District. Thereafter, he was selected afresh by the Public Service Commission for appointment as H.S.A in Kasaragod District and he joined thereon 17.01.1984. Exhibits P1 and P2 are the respective appointment orders. 3. Prior to his regular appointment, he had worked as H.S.A on provisional basis during various spells between 26.07.1979 and 30.03.1983. The total period of provisional service is 2 years, 6 months and 17 days. The details of the provisional service are stated in paragraph 3 of the writ petition. W.P.(C) No.11201/2007 2 4. The above broken period of service was reckoned as qualifying service for grade and increments as per Exhibit P3 and accordingly, the petitioner's pay and allowances were revised also. As on 01.11.1990, his pay has been fixed at Rs.1,250/-. Later an objection was raised by the 1st respondent in the matter and the petitioner was compelled to repay the amount received pursuant to the grant of increments. Thereafter, by Exhibit P5, the Director of Public Instruction informed the Government that the said period could be counted. But, still no orders have been passed in the matter. Exhibit P6 will show that the said period was reckoned for the purpose of Higher Grade. Ultimately, the petitioner filed Exhibit P8 representation which was rejected by a letter dated 14.08.2006, referred to in Exhibit P9. The petitioner has got a contention that in the case of another person namely, K. Rajendran, a similar objection was dropped as per Exhibit P7. 5. Heard the learned counsel for the petitioner and the learned Government Pleader. 6. The 1st respondent has filed a counter affidavit. The contention substantially taken in the counter affidavit is that W.P.(C) No.11201/2007 3 provisional service could not be reckoned for granting increments in the regular service. In paragraph 3 of the counter affidavit, it is stated that going by 1983 pay revisions effected by the Government as per G.O.(P) No.515/1985/Fin. dated 16.09.1985 which is retrospective from 01.07.1983, when the pay is refixed on his regular appointment from 25.11.1983, he will be eligible for the revised scale of Rs.780-1320 which is different from those of his provisional appointment. It is therefore, submitted that authorisation of increments reckoning his provisional appointment in regular service was strictly against Decision No.2 under Rule 33 Part I K.S.R. 7. Learned counsel for the petitioner relied upon a decision of a learned Single Judge of this Court in Jose Jacob vs. State of Kerala (1998 (2) KLT 873) to contend that the stand taken in the counter affidavit cannot be accepted. An identical question was considered by this Court in the said case. It was held thus: “.......It is not disputed by the respondents that the respective petitioners got appointment in the same category of post which they did hold as provisional appointees. In other words, they were appointed later, on regular basis in the same W.P.(C) No.11201/2007 4 category of posts to which the qualification and method of appointment were one and the same. Because of such change in the scale of pay due to the pay revision, the incumbents cannot be denied of the benefits as are applicable in terms of the statutory rules. Merely because there was a change in the scales of pay because of pay revisions, the petitioners who got regular appointments in the same category in which they held provisional appointment cannot be denied of increments reckoning the provisional service as at the material time Government Decision No.2 was applicable in their case”. 8. In that view of the matter, the petitioner is entitled to succeed in the writ petition. The reason stated in Exhibit P9 cannot be accepted. The provisional service rendered by the petitioner will therefore be reckoned for the purpose of grant of increments. Therefore, the decision of the Deputy Director of Education dated 14.08.2006 and Exhibit P9 are quashed. There will be a direction to respondents 1 and 3 to reckon the provisional service rendered by the petitioner before his regular appointment on 25.11.1983 for increments and grades and accordingly, revised W.P.(C) No.11201/2007 5 pay including arrears will be fixed and the benefits due to him will be disbursed within a period of three months from the date of receipt of a copy of this judgment. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp