IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 WP(C).No. 31658 of 2006(R) -------------------------- PETITIONER: ------------ A.S.CHRISTINA, JUNIOR P.H.NURSE (RTD.), NEDUVELIL HOUSE, MELOOR P.O., VIA CHALAKKUDY, TRICHUR. BY ADV. SRI.C.S.ABDUL SAMMAD SRI.V.D.BALAKRISHNA KARTHA RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT MEDICAL OFFICER, TRICHUR. 3. THE ACCOUNTANT GENERAL, TRIVANDRUM. BY GOVERNMENT PLEADER SMT. T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31658 of 2006 APPENDIX PETITIONER'S EXHIBITS EXT.P1- TRUE COPY OF THE ORDER (EXTRACT) NO.E4-487/84 DATED 14.3.84 EXT.P2- TRUE COPY OF the G.O.(P).540/94/FIN.DATED 30.9.94 EXT.P3- TRUE COPY OF THE REPRESENTATION DATED 6.3.00 SUBMITTED BY THE PETITIONER TO THE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, MELOOR. EXT.P4- TRUE COPY OF THE LETTER NO.D3-23546/04/DMOH DATED 20.6.05 FROM THE SECOND RESPONDENT TO THE THIRD RESPONDENT EXT.P5- TRUE COPY OF THE LETTER P6/PEN/1212/A/03-04/749 DATED 14.11.05 ISSUED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT EXT.P6- TRUE COPY OF THE JUDGMENT IN W.A.1224 OF 2005 DATED 26.6.06 OF THIS HONOURABLE COURT. (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C).31658/2006 -------------------- Dated this the 8th day of February, 2008 JUDGMENT Petitioner rendered provisional service as Junior Public Health Nurse for a period of 3 years, 8 months and 6 days In the following manner:- From 30-8-1979 FN to 28-8-1980 AN Vide order No. FW1/1976/79 of DFWMO Kozhikode in the scale of pay of Rs.370/600 From 24-07-1981 FN to 24-07-1982 AN Through Employment Exchange vide Order No.E3-7700/81 dated 17.7.1981 DFWMO, TCR in the scale of pay Rs.370-600. From 25-07-1982 to 24-07-1983 AN Vide Order No.E3- 12674/78 dated 16.12.1978 DMOH, TSR in the scale of pay of Rs.370-600. From 25-07-1983 & continuing DMOH, Thrissur allowed to continue vide order No.E3-13737/83 DMOH, TSR dated 20- 07-1983. W.P.(C).31658/2006 2 2. Subsequently, the petitioner was appointed, on advice by the PSC on regular basis in the scale of pay of Rs.330-515/-. She retired from service on 31.5.2005. 3. Claim of the petitioner relates to the counting of provisional service for her pensionary benefits. When she made a request in this regard, same was recommended by the District Medical Officer as is evidenced by Ext.P4. It was noted in Ext.P4 that an increment had been sanctioned to the petitioner with reference to her provisional service. Therefore, same may be reckoned for calculating pension. Accountant General raised an objection vide Ext.P5 on the premise that the provisional service rendered by the petitioner prior to regular service was in the higher scale and the period cannot be considered for granting increment on regular scale, since the provisional service was not in the post of identical time scale as that of regular post. It is further stated therein that the petitioner’s pay is seen fixed in the minimum of the scale of pay of Rs.330/- and, W.P.(C).31658/2006 3 therefore, her provisional service does not qualify for pensionery benefits. Ext.P5 has been challenged in this writ petition. 4. In the counter affidavit filed by the respondents the same stand has been reiterated. It is also evident from the portion of the counter affidavit which has been extracted above, that the provisional service rendered by the petitioner was in the scale of pay of Rs.370-600/-/- whereas on appointment to regular service, petitioner’s scale of pay was Rs.330-515/-. It is further stated that as per the Government decision No.2 to Rule 33 of Part-I of K.S.R (as it stood prior to its deletion with effect from 1.10.1994) the following aspects must be satisfied:- 1. Posts should carry the same or identical scale of pay. 2. The qualification and method of appointment should be the same and 3. The post should fall in the same service W.P.(C).31658/2006 4 5. It is contended that therefore, the post in which service was rendered on a provisional basis and the post to which the petitioner was appointed on a regular basis should carry the same or identical scale of pay. Admittedly, the scale of pay in her provisional service was higher in the time scale and therefore, petitioner was not entitled to take into account her provisional service for reckoning her increment or the pensionery benefits. 6. I heard learned counsel for the petitioner and the learned Government Pleader. 7. There are two cases in which the provisional service could be taken into account, for the purpose of reckoning increment. One is where provisional service is rendered in the same post as of regular service. Other is where it is rendered in the same category of posts. Learned Government Pleader vehemently submits that the explanation forming part of the Government decision W.P.(C).31658/2006 5 as regards “the category of posts” suggests that provisional service as well as regular service should be rendered in a post on the same time scale of pay. Question is whether it is so. 8. I am of the view that identity in the scales of pay in the context of Government decision No.2 to Rule 33 as it stood at the relevant time, is really applicable in the case where the provisional service and the regular service are rendered in different posts, but which are claimed to be under the same category, where there is no identity of posts, then benefit of Government decision No.2 could be claimed only when both the posts are under the same time scale of pay. I am of the opinion that the conditions, which are required to be satisfied in relation to a case where provisional service and regular service are rendered in two different posts but claimed to be falling under the same category, is not required to be invoked or applied in a case where both the provisional service and regular service are rendered in W.P.(C).31658/2006 6 the same post. In the present case, there is no dispute that the provisional service and regular service of the petitioner was in the same post of Junior Public Health Nurse (petitioner was appointed on regular basis as a lady Health Inspector which, according to the counsel for the petitioner, was later designated as Junior Public Health Nurse). There is no warrant or justification for denying the petitioner increment relatable to the provisional service rendered by her. 9. In the result, writ petition is allowed. Ext.P5 is set aside. Third respondent is directed to pass a revised order, taking into account the provisional service rendered by the petitioner for the purpose of her pensionery benefits, within a period of three months from the date of receipt of a copy of this judgment. V.GIRI, Judge mrcs