IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 13115 of 2003(J)
1. K.BASKARAN S/O. KUNHIRAMAN, AGED 57
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE COMMISSIONER AND SECRETARY TO
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
4. THE HEADMASTER, GOVERNMENT HIGH SCHOOL,
5. THE DISTRICT EDUCATIONAL OFFICER,
For Petitioner :SRI.C.K.SREEJITH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :01/12/2009
O R D E R
ANTONY DOMINIC, J.
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O.P. No.13115 of 2003 (J)
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Dated, this the 1st day of December, 2009
J U D G M E N T
The petitioner claims that he was appointed as a full time
menial in the 4th respondent school for the period from 17/02/1969
to 31/12/1969. Subsequently, by Ext.P2 order dated 20/01/1979,
he was reinstated in service. Still later, the period of his absence
from 01/01/1970 to 28/01/1979 was ordered to be treated as duty
for the purpose of calculating qualifying service for pension and not
for other reliefs, as per Ext.P6 order dated 21/07/1988.
2. He claimed that the period should be counted for
increments, and approached this Court by filing O.P. No.522/93.
That original petition was dismissed. In writ appeal No.1695/1996
filed by the petitioner, a Division Bench of this Court ordered that if
the petitioner is entitled to claim the benefit of Note 2 to Rule 33 of
Part-I KSR, he can pursue his claim. Ext.P7 is the copy of judgment
in the writ appeal rendered on 15/01/1997. Accordingly, the
petitioner filed Ext.P8 representation, and that was rejected by
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Ext.P9 dated 16/01/1999. It is challenging Ext.P9, this writ petition
is filed.
3. Primarily, the claim of the petitioner is for the benefit of
Note 2 to Rule 33 of Part-I, KSR. This Note, which has been deleted
in 1986, provided that regularisation of provisional service without
or without break in the same category or post will be treated as
officiating service abinitio for the limited purpose of granting
increments. It is also provided that provisional service followed by a
regular appointment with or without break in the same category or
post will also be treated as officiating service abinitio for the limited
purpose of granting increments.
4. The claim of the petitioner is on the basis that since his
absence for the period from 01/01/1970 to 28/01/1979 has been
ordered to be treated as duty as per Ext.P6 order, this amounts to
regularisation as contemplated in Note 2 to Rule 33, Part-I KSR and
therefore, he is entitled for the benefit of increment. However, the
plea relying on Ext.P6 cannot be accepted for the reason that Ext.P6
cannot be construed as one for regularising any part of the service
of the petitioner, but only orders that the period will be treated as
O.P.No.13115/2003
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duty for the limited purpose of counting qualifying service for
pension. Therefore, that argument cannot be accepted.
5. However, Note 2 further provided that provisional service
followed by regular appointment with or without break in the same
category or post will also be treated as officiating service for the
purpose of increment. Here, in this case, by Ext.P2 he was
reinstated in service on 20/01/1979 and he joined the post on
28/01/1979. Therefore, though with a break, there has been a
regular appointment in January, 1979. If that be so, the period of
provisional service rendered by the petitioner during 17/02/1969 to
31/12/1969 is liable to be reckoned for the purpose of granting
increments. The contrary view taken as reflected in Ext.P9, cannot
be accepted. Therefore, I quash Ext.P9 and this original petition is
disposed of directing the respondents to reckon the period of
provisional service rendered by the petitioner from 17/02/1969 to
31/12/1969 for increment and grant the benefits consequential
thereto on that basis. This shall be done as expeditiously as
possible at any rate within three months of production of a copy of
this judgment.
O.P.No.13115/2003
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The petitioner shall produce a copy of this judgment before
the 5th respondent, who shall pass necessary orders in this behalf.
This writ petition is disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg