IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WA.No. 1267 of 2009() (AGAINST THE JUDGMENT DATED 27.3.09 IN O.P6363/02) APPELLANT(S): RESPONDENTS IN WPC. 1. STATE OF KERALA, REP.BY THE JOINT SECRETARY,DEPARTMENT OF HEALTH & FAMILY WELFARE,THIRUVANANTHAPURAM. 2 THE DIRECTOR OF MEDICAL EDUCATION,THIRUVANANTHAPURAM. 3. THE PRINCIPAL, GOVT.MEDICAL COLLEGE, CALICUT. 4. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.R. BINDU RESPONDENT(S): PETITIONERS IN THE WPC. 1. DR.AYYAMKULAM JAMES LOUIS, AYYAMKULAM HOUSE,MULLAKKARA P.O.,THRISSUR-680 583. 2. DR.C.H.ASHALATHA, MALIYEKKAL THEKKAKKARA KUNDAYITHODE, POKOLATHAR-673 655. 3. DR.SONU.R.,"VYKHARI", A.P.C.ROAD, MALAPARAMBA, KOZHIKODE-9. 4. DR.MANUMOHAN.K., KAMALA NIVAS, PUDUPPANAM,VADAKARA. 5. DR.FELIX NELSON, JEHOVAH JIRESH, AMBALAPARAMBIL, MARIKUNNU, KOZHIKODE. 6. DR.ARUN.S.,"SUJA", 31, 265 A, MAYANAD, KOZHIKODE. 7. DR.ROSHNI GANGAN, M10, S2, "GANGES", MALAPARAMBA HOUSING COLONY, KOZHIKODE-9. BY ADV.SRI. P. SANJAY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1267 OF 2009 --------------------------------------------- Dated this the 19th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The point that arises for decision in this case is whether provisional hands appointed in the pre revised scale of pay are entitled to get higher scale of pay upon revision of the pay for regular hands, with retrospective effect. The brief facts of the case are the following: 2. The respondents herein who were the writ petitioners were appointed by Ext.P1 order as Lecturers in various subjects in the Kozhikode Medical College by its Principal. The said order provided that the candidates are appointed on contract basis as Lecturers in the scale of pay of Rs.2,200-4,000/- plus other allowances admissible in the department, for a period of one year from the date of their joining duty and that their services will be terminated as and when candidates advised by the Kerala Public Service Commission or Employment Exchange join W.A. NO. 1267/2009 2 duty. Later, the salary of Lecturers were revised by the Government as per Ext.P2 order dated 16.6.2000 with retrospective effect from 1.1.1996. On a clarification sought as to whether the writ petitioners and other similarly placed persons were entitled to the revised salary payable under Ext.P2, the Government clarified that the existing Lecturers who were appointed on contract basis may be terminated and reappointed on contract basis with effect from 16.6.2000 so that they can draw the revised salary. The writ petitioners and others moved the Government by filing Ext.P5 representation claiming revised pay. The Government, by Ext.P6 order, issued further clarification regarding payment of salary to doctors who were appointed on contract basis. Feeling aggrieved by the omission of the Government to pay salary at the revised rate, the Writ Petition was filed seeking appropriate reliefs. The respondents in the Writ Petition who are the appellants herein resisted the prayers in the Writ Petition by filing a counter affidavit. But, the learned Single Judge, after hearing both sides, allowed the Writ Petition. Hence, this appeal by the official respondents. 3. The learned Government Pleader, referring to the terms of Ext.P2, especially the one regarding deposit of arrears in the Provident Fund account of the incumbents, submitted that it is meant to apply for regular hands only. Once a person is appointed on contract basis, he is W.A. NO. 1267/2009 3 entitled to get salary only at the rates provided in the appointment order. Relying on the decision of the Full Bench of this Court in State of Kerala v. Philomina (2008(1) K.L.T. 666(F.B.)), it is submitted that unless there are express provisions in the orders regarding grant of financial benefits, the courts should not order payment of additional emoluments which will cause great financial commitment to the State. 4. On a query made by this Court, the learned Government Pleader submitted that the respondents were appointed under Rule 9A of Part II of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as “the Rules”). 5. The opening paragraph of Ext.P1 appointment order reads as follows: “The following candidates are appointed on contract basis as Lecturers on Rs.2200 - 4000 plus other allowances admissible in the department noted against their names for a period of one year from the date of their joining duty on the specific condition that, their services will be terminated as and when candidates advised by Kerala Public Service Commission/Employment Exchange join duty.” W.A. NO. 1267/2009 4 Going by the above appointment order, we are of the view that the appointment has been made under Rule 9(a)(i) of the Rules. It can never be treated as an appointment under Rule 9A of the Rules which reads as follows: “9A. Appointment by agreements.-- (1) When in the opinion of the State Government special provisions inconsistent with any of these rules or of any other rules made under the proviso to Article 309 of the Constitution of India or continued by Article 313 of that Constitution (hereinafter referred to in this rule as the said rules) are required in respect of conditions of service, pay and allowances, pension, discipline and conduct with reference to any particular post, or any of them, it shall be open to the State Government to make an appointment to such post otherwise than in accordance with these rules or the said rules and to provide by agreement with the person so appointed for any of the matters in respect of which in the opinion of the State Government special provisions are required to be made and to the extent to which such provisions are made in the agreement, nothing in these rules or the said rules shall apply to any person so appointed in respect of any matter for which provision is made in the agreement. Provided that in every agreement made in exercise of the power conferred by this rule it shall further be provided that in respect of any matter in respect of which no provision has been made in the agreement the provisions of these rules or of the said rules shall apply. (2) A person appointed under sub-rule (1) W.A. NO. 1267/2009 5 shall not be regarded as a member of the service in which the post to which he is appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that or any other service.” A reading of the above rule shows that the appointment of the respondents can never be under the said rule. Rule 9(a)(i) of the Rules reads as follows: “9.Temporary appointments.--(a) (i) Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said rules, temporarily.” In fact, the present appointment is made otherwise than in accordance with Rules, as contemplated under Rule 9(a)(i) of the Rules. Therefore, by virtue of Rule 9(a)(v), the incumbents are entitled to get the minimum pay in the scale of pay applicable to regular incumbents in that post. Rule 9(a) (v) reads as follows: “There shall be paid to a person appointed under clause (i) or clause (ii) the minimum pay in W.A. NO. 1267/2009 6 the time-scale of pay applicable to such service, class or category.” In this case, the respondents were paid the minimum salary in the scale of pay of Rs.2,200 - 4000/- plus other allowances, as it was the scale of pay applicable to regular hands at the relevant time. Since the pay was revised with retrospective effect, by operation of the above statutory rule, the respondents are entitled to get salary in the revised pay scale at its minimum. In view of the above legal position, we find nothing wrong with the direction of the learned Single Judge. The Writ Appeal is accordingly dismissed. The appellants are given one month's time from today to implement the direction issued by the learned Single Judge. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1267/2009 7 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NO. 1267/2009 JUDGMENT 19th June, 2009 W.A. NO. 1267/2009 8