IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 15437 of 2005(K) -------------------------- PETITIONER(S): --------------- BEENA.M.S. AGED 40, D/O.SUBRAMANIAN M.V. NOW WORKING AS VOCATIONAL LECTURER (FISHERIES), GOVERNMENT FISHERIES VOCATIONAL H.S.S. KAIPAMANGALAM, THRISSUR DISTRICT. KERALA. BY ADV. SRI.PAULSON THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, GOVERNMENT FISHERIES VOCATIONAL HIGHER SECONDARY SCHOOL, KAIPAMANGALAM, THRISSUR DISTRICT. ADDITIONAL RESPONDENTS: 4. VIDYA.R., D/O.V.J.RAVINDRANATHA PANICKER, VADAYODIL HOUSE, ETTUMANOOR P.O., KOTTAYAM DISTRICT. 5. REGINA.I., W/O.RAJESH, KANNITTAYIL HOUSE, PUTHEMTHURA P.O., NEENDAKARA, KOLLAM. (ADDL.R4 IMPLEADED AS PER ORDER ON I.A.NO.9074/09 DTD.28.7.09) (ADDL.R5 IMPLEADED AS PER ORDER ON I.A.NO.15683/09 DTD.16.12.09) GOVT. PLEADER SHRI.SANDESH RAJA SRI.K.JAJU BABU FOR ADDL.RES.4 & R5 SMT.M.U.VIJAYALAKSHMI SRI.T.R.SADEESAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 8.4.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No. 15437 of 2005 ================== Dated this the 8th day of April, 2010 J U D G M E N T The petitioner was appointed as a Vocational Teacher in the vocational higher secondary school department of the Government of Kerala provisionally, under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, on 8.7.1991. Her provisional appointment was being renewed from time to with breaks, some of which even extended to six months and nine months. The last of such appointment was on 6.1.2005, by Ext.P2. The petitioner filed this writ petition at a time when she apprehended termination of her provisional employment, seeking the following reliefs: “i) declare that the petitioner is entitled for regularisation as Vocational Teacher (Fisheries) in the Government Vocational Higher Secondary Schools with effect from her original date of entry in service as provisional Vocational Teachers. ii) issue a writ of mandamus or direction directing the respondents 1 and 2 to regularise the services of the petitioner as vocational teacher in fisheries in the Government Vocational Higher Secondary School w.e.f. her original entry in service as a Government Vocational Teacher in Fisheries, and grant all consequential benefits.” 2. According to the petitioner, by virtue of the long service of almost of 20 years, five years of which was continuous, the petitioner is entitled to be regularised in service. The petitioner relies on the decision of the Supreme Court in State of Karnataka v. Umadevi [2006(4) SCC 1]. w.p.c.15437/05 2 3. The learned Government Pleader would oppose the contentions of the petitioner with the help of a counter affidavit stated to have been filed. He would contend that a provisional employee is not entitled to regularisation in service especially when such provisional service was intermittent with breaks of even six months or more. It is further submitted that this provisional appointment was made at a time when there was no special rules and the matter was governed by executive orders. After framing of the special rules, selection was made through PSC and PSC has prepared a rank list, Ext.R4(a), in which, the petitioner is included as rank no.24. It is also submitted before me that since in this writ petition, by interim order dated 24.6.2005, the petitioner was permitted to continue as vocational teacher, the PSC is also not making advice from the rank list as it would upset the communal rotation. It is also pointed out that continuous service claimed by the petitioner is only by virtue of the interim order of this Court. The respondents would contend that the petitioner has no right to be regularised in service going by the decision relied on by the petitioner herself. 4. I have considered the rival contentions in detail. 5. It is settled law that a provisional employee is not entitled to regularisation in service. In fact in Umadevi's case (supra) the Supreme Court had frowned upon such regularisation even in cases of w.p.c.15437/05 3 long intermittent service. The counsel for the petitioner relies on paragraph 53 of that judgment. I am not satisfied that the petitioner's case comes within the purview of paragraph 53 also. Admittedly, the petitioner was appointed only provisionally. It is also not disputed by the petitioner that till the interim order was passed by this Court, the service of the petitioner was only intermittent even with breaks of six months and nine months. Therefore, on the basis of that intermittent service, I do not think that the petitioner can claim regularisation of her service. Therefore, I am not inclined to grant the petitioner the relief of regularisation in service. Since she was only a provisional employee, under Rule 9(a)(i), her service is liable to be terminated. In fact the Full Bench of this Court has, with reference to Rule 9(a)(i), held that a provisional employee under Rule 9(a)(i) is not entitled to regularisation in service in the decision in Radha v. District Medical Officer [2002 (2) KLT 711 (FB)]. In the above circumstances, this writ petition is dismissed. However, the counsel of the petitioner submits that for the last five years, the petitioner is not being paid salary. In so far as, by Ext.P2 order, the petitioner was appointed in the scale of pay of Rs.6675-10550, I direct respondents 1 to 3 to see that the petitioner's salary for the period till today is paid in the scale of pay as per Ext.P2 and corresponding revised scale of pay. Arrears shall be paid as expeditiously as possible, at any rate, within one month, from w.p.c.15437/05 4 the date of receipt of a certified copy of this judgment, if not already paid. Needless to say, the PSC can now proceed with advising candidates from Ext.R4(a) rank list. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge