IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(C).No. 3609 of 2009(D) ------------------------- PETITIONER(S): --------------- ALEXANDER JACOB, S/O.V.C.CHACKOCHAN, 54 YEARS, TAHSILDAR, O/O.THE SPECIAL TAHSILDAR, (LAND TRIBUNAL), THODUPUZHA,. R/AT.VATTAKKALAM, THODUPUZHA(E) PO., IDUKKI-685585 BY ADV. SMT.REKHA VASUDEVAN SRI.P.ABANI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LAND REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. 2. LAND REVENUE COMMISSIONER COMMISSIONERATE, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, IDUKKI. BY G.P. SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/03/2009, THE COURT ON 19.3.2009 DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3609 of 2009-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of March, 2009. JUDGMENT The main relief sought for in this writ petition is to re-assign the seniority of the petitioners after counting their provisional service during respective periods. 2. The petitioners are physically handicapped persons. The first petitioner was included in a list of nine candidates for provisional appointment to the post of Copyist as per Ext.P1. The appointment was only for a period of 89 days from the date of joining duty or till the regular hands join duty whichever is earlier. He was terminated with effect from 12.1.1981. The second petitioner was appointed on 2.4.1981 as Lower Division Typist through Employment Exchange as per Ext.P2. Consequent on the expiry of the period, he was also terminated. The first petitioner gained another appointment as per Ext.P3 dated 23.9.1981 and he was posted in the Office of the Special Tahsildar LA No.III, Muvattupuzha Valley Irrigation Project. By Ext.P4, the Government allowed retention in service of physically handicapped persons appointed by direct recruitment under rule 9(a)(i) of the KS & SSR till 31.12.1981 in a temporary manner. wpc 3609/2009 2 After the first petitioner was relieved on 31.12.1981, he was again directed to appear for further posting as per Ext.P5. As per Ext.P6 dated 20.1.1982, he was granted appointment as Copyist on temporary basis in an existing vacancy. Ext.P7 is an order by which the Government directed that Copyists in the Land Revenue Department who are qualified to be appointed as L.D. Clerks will be given option either to become L.D. Clerk from the date of option or to remain as Copyists. Thereafter, on 1.11.1982 the first petitioner approached the third respondent seeking regularization of his service. He subsequently passed the District Office Manual Test also. Ext.P8 is an order by which the Government granted regularization for provisionally appointed physically handicapped persons during August 1981 on certain conditions. As far as the present claim is concerned, condition No.2 is important which states that candidates, if any advised by the Public Service Commission on the date of regularization of service of the beneficiaries of the Government Order will be declared as their seniors. Both the petitioners have obtained regularization as per Ext.P8 order which is evidenced by Ext.P9 dated 25.8.1984. They were granted regularization with effect from 11.5.1984, the date of Ext.P8. 3. The first petitioner had to his credit 2 years and 9 months of provisional service and the second petitioner had 3 years, one month and 10 wpc 3609/2009 3 days of such service. Their provisional service was counted for the purpose of sanctioning increments. Presently, the claim is to count the said service for the purpose of seniority. 4. Various representations were filed by the petitioners and they obtained promotion also to higher posts. Even though the first petitioner was agitating the matter further by submitting various representations, by Ext.P17, his claim was rejected. Again he filed Ext.P18 representation and has filed this writ petition seeking for various reliefs. 5. Heard learned counsel appearing for the petitioners and the learned Govt. Pleader. Learned Govt. Pleader on instructions, submitted that the regularization in service is in accordance with specific terms of Ext.P8. The same is dated 11.5.1984 and it has been specifically made clear in the said order that the regularization is subject to various conditions provided therein. Having accepted the conditions, the petitioners cannot now turn round and claim for more benefits than what is provided in Ext.P8. 6. Condition No.2 of Ext.P8 clearly specified that candidates, if any, advised by the Public Service Commission on the date of regularization of service of the beneficiaries of the order, will be declared as their seniors. The benefit granted by Ext.P8 is in respect of certain physically wpc 3609/2009 4 handicapped persons appointed during 1981. It cannot be said that they have been appointed after a process of selection in accordance with the rules. The appointment gained by them prior to the regularization is only on a temporary basis. The benefit granted to them is as a one time measure after consultation with the Public Service Commission. Therefore, whatever rights they obtained are only based on Ext.P8 alone. Merely because the said period was allowed to be counted for the purpose of increments and other purposes, automatically it will not be available, to count seniority also above the regularly appointed persons in the service. 7. Explanation to Rule 27(a) of KS & SSR is to the following effect: “For the purposes of this sub-rule, “appointment” shall not include appointment under Rule 9 or appointment by promotion under rule 31.” Therefore, any appointment made under Rule 9(a)(i) of KS & SSR cannot be considered for the purpose of fixing seniority under Rule 27 of the said rules. Therefore, the said service stands excluded for the purpose of counting the seniority. 8. This court had considered the issue in various decisions. In Rajan Nair v. State of Kerala (1991 (2) KLT 848) the very same question was considered. It was held that “provisional service rendered by them cannot wpc 3609/2009 5 confer on them any seniority in the service or cadre in view of the specific provisions contained in rule 27 of KS & SSR. 9. In Babu Raj v. State of Kerala (1994 (2) KLT 679), a Full Bench of this Court examined the question whether an appointment given to a person under Rule 31(e) of KS & SSR would affect the seniority of others. It was held that “any appointment given to a person who was already provisionally appointed would not affect the seniority of others when the appointing authority regularises his services with effect from an earlier date. 10. In the light of the above legal position, the petitioners cannot as a matter of right, claim seniority based on their provisional service. Therefore, they are not entitled for any of the reliefs as sought for in this writ petition and the same is dismissed. (T.R. Ramachandran Nair, Judge.) kav/