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STATE OF KERALA versus A.G. ANIL KUMAR, JUNIOR HEALTH INSPECTOR

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STATE OF KERALA v. A.G. ANIL KUMAR, JUNIOR HEALTH INSPECTOR - WA No. 2268 of 2004 [2005] RD-KL 77 (1 July 2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 2268 of 2004

1. STATE OF KERALA, REP. BY THE SECRETARY
... Petitioner

2. THE DIRECTOR OF HEALTH SERVICES,

3. THE DISTRICT MEDICAL OFFICER HEALTH,

Vs

1. A.G.ANIL KUMAR, JUNIOR HEALTH INSPECTOR(
... Respondent

For Petitioner :GOVERNMENT PLEADER

For Respondent :SMT.A.G.ANEETHA

The Hon'ble MR. Justice K.A.ABDUL GAFOOR The Hon'ble MRS. Justice K.HEMA

Dated : 01/07/2005

O R D E R

.SP 2

K.A.ABDUL GAFOOR & K.HEMA, JJ.

j W.A.No.2268 of 2004, j W.A.No.2271 of 2004 & jA W.A.No.1299 of 2005 j

Dated this the 1st July, 2005

j

JUDGMENT

Ej ((HDR 0 # WA.2268/04 AND CONNECTED CASES )) .HE 1

Abdul Gafoor, J.

Whether temporary employees regularised or regularly appointed in service on or after 1.10.1994, in continuation of the temporary service or not, are entitled to get increments reckoning their temporary service prior to such regularisation or regular appointment is the point arising in these Writ Appeals at the instance of the State.

2. In the impugned judgment the learned Single Judge found that "there is no justification in denying the benefit of such provisional service for the only reason that it is not followed by regular appointment prior to 1.10.1994" and directed Government to consider the case of the respondents-writ petitioners in the light of the decision reported in Sobhana v. State of Kerala (2004(3) KLT 131). It is clear from Annexure-C Government decision deleting Government decision No.2, which enabled reckoning provisional service for the purpose of increment, that "those persons whose services were regularised with effect from 1.10.1994 or thereafter will not be entitled for increment reckoning their provisional service". Therefore, the observation made in the impugned judgment to reckon the provisional service for the purpose of granting increment is unjustified, the Government Pleader submits.

3. It is contended by the respondents/writ petitioners that their case cannot be considered like any other temporary appointees under Rule 9(a)(i) in of Part II KS & SSR. All of them were appointed as Junior Health Inspectors based on a centrally sponsored multi purpose workers scheme in the year 1986. There were no sufficient qualified hands for that job. Applications were invited by the Government. All the writ petitioners and others applied. The Writ petitioners were selected and trained by the Government and they were appointed and continued for years together on temporary basis. In the appointment the Government had followed the regular mode of selection and even the reservation on the basis of communal rotation as is applicable to regular appointees. It is submitted that the Government themselves were willing to regularise their services as revealed from Exhibit R2. The Government took up the issue in 1993 with the P.S.C. But the P.S.C. did not grant concurrence. The second consultation from the Government with the P.S.C for the purpose of over ruling the advice of the P.S.C. was delayed. It is seen from Exhibit R2 that in an Original Petition filed by the candidates who have registered their names for appointment as Junior Health Inspectors in Employment Exchanges challenging regularisation, this Court directed that the regularisation, if any, to be effected would be subject to the result of the Original Petition. This also caused delay. It was in the above circumstances that Exhibit R2 regularisation order was delayed until 31.3.1995. Otherwise all of them would have been regularised in the year 1993 and would have got the benefit of Government Decision No.2 which existed until 30.9.1994.

4. True, the increment is granted considering "all duty in a post or a time scale", under Rule 33 Part I K.S.R. The first increment is granted on completion of one year of regular service subject to other conditions in the said Rule. The Rule as obtainable on the date of such grant of increment is to govern the eligibility. The writ petitioners completed that period of one year in March, 1996. In the impugned judgment, it is directed to consider the case of the writ petitioners to reckon their temporary service for the purpose of granting increment in the light of Sobhana's case (supra). It is found therein that "on a close reading of the government decision it is fairly clear that what the Government actually intended is to confer the benefit of provisional service rendered prior to 1.10.1994". But Government decision No.2 introduced in Rule 33 Part I KSR did not mention about any date, or period of such provisional service. So there arises no question whether Government intended to confer the benefit of provisional service with reference to any date, in that Government decision. In spite of that it is declared in Sobhana's case (supra) that: .SP 1

"...in the case of employees governed by the KSR, i provisional service on regularisation with or without break in the same category of posts or provisional service followed by regular appointment with or without break in the same category of posts shall be granted the benefit of increment ignoring the fact that the regularisation or regular appointment is only after 1.10.1994." .SP 2

5. Of course Government decision No.2 under Rule 33 Part-I KSR was deleted with effect from 1.10.1994 as per Annexure-C G.O(P) 540/94/Fin. dated 30.9.1994. That means from 1.10.1994 onwards there is no provision in the Statute Book to treat provisional service as officiating service for the purpose of granting increment.

6. Grant of increment is not based on whether one has to his credit temporary or provisional service, but as to what are the conditions to be satisfied as on the date on which the increment is to be granted. If one among the conditions permits reckoning of provisional or temporary service, necessarily it will enable the incumbent to count it; otherwise not. As already mentioned, the first increment is usually granted on completion of one year of duty of regular substantive service in a post on a time scale. If the Rule as on the date of grant of increment permits, for that purpose, to reckon temporary or provisional service, necessarily it shall be reckoned. If it does not permit, on such date it cannot be. Merely because one does have such temporary/provisional service put in by him prior to deletion of that Government decision, he cannot claim to reckon that service for the purpose of grant of increment, when it falls after the date of deletion of Government decision No.2 on 1.10.1994. In otherwords, it is not the time factor of the provisional or temporary service which is relevant, but the condition in the rules which govern the grant of increment. From 1.10.1994 onwards there is no provision to treat provisional or temporary service as officiating one for the purpose of grant of increment. If the first increment falls on that date or any subsequent date, one cannot claim such increment reckoning his provisional service, immaterial whether it was rendered before the said date.

7. As on the date for grant of increment to the petitioners there was no Rule, as rightly pointed out by the learned Government Pleader, to reckon their provisional service for the purpose of granting increment. Therefore, there cannot have any doubt with regard to the provision of law applicable in this case.

8. But at the same time, going by the facts and circumstances of this case, the case of the petitioners is to be dealt with on a different footing. As already mentioned above, they underwent a different form of selection process. There was training imparted for the writ petitioners at the instance of the Government and they spent a major part of their life in service under a centrally sponsored scheme for the betterment of the health of the people of the State. They were not appointed for a fixed term of 179 days as is applicable in the case of an appointee under Rule 9(a)(i) of Part II KS & SSR. Principles of communal rotation to be followed for a regular appointment through the P.S.C. had been followed. Thus, in every respect except styling their appointment as on temporary basis, the entire process for a regular appointment had been followed. The Government also was willing to regularise them at the latest in 1993. They have decided also for that purpose. But the P.S.C. turned down that request of the Government and did not grant concurrence. Second consultation had been taken up with the P.S.C. But there was delay on the part of the Government in taking up the second consultation and in overruling the advice of the P.S.C. In the meantime, the entire process was interdicted by an Original Petition which was filed challenging the attempt of regularisation of the persons like petitioners. In these uncertain circumstances, their regularisation was delayed. Otherwise the Government was willing to regularise the petitioners at the latest in 1993, in which case, they could have availed the benefit of Government decision No.2. In such circumstances, it is a fit case for the Government to consider their temporary service for the purpose of grant of increment invoking Rule 39 of the General Rules in KSS & SS Rules. Accordingly, the direction issued by the learned Single Judge is modified to the effect that the question of grant of increment to the writ petitioners shall be considered in the aforesaid facts and circumstances invoking Rule 39 of the General Rules. This exercise shall be done within three months from the date of receipt of a copy of this judgment. Such treatment shall always be just and equitable as envisaged under Rule 39 itself. Appeal is disposed of accordingly.

K.A.ABDUL GAFOOR, JUDGE

K.HEMA, JUDGE

vgs.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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