High Court Kerala High Court

Beena.M.S. Aged 40 vs State Of Kerala on 8 April, 2010

Kerala High Court
Beena.M.S. Aged 40 vs State Of Kerala on 8 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15437 of 2005(K)


1. BEENA.M.S. AGED 40, D/O.SUBRAMANIAN M.V.
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

2. THE DIRECTOR OF VOCATIONAL HIGHER

3. THE PRINCIPAL, GOVERNMENT FISHERIES

                For Petitioner  :SRI.PAULSON THOMAS

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :08/04/2010

 O R D E R
                              S.SIRI JAGAN, J.

                      ==================

                        W.P.(C).No. 15437 of 2005

                      ==================

                  Dated this the 8th day of April, 2010

                              J U D G M E N T

The petitioner was appointed as a Vocational Teacher in the

vocational higher secondary school department of the Government of

Kerala provisionally, under Rule 9(a)(i) of the Kerala State and

Subordinate Services Rules, on 8.7.1991. Her provisional appointment

was being renewed from time to with breaks, some of which even

extended to six months and nine months. The last of such appointment

was on 6.1.2005, by Ext.P2. The petitioner filed this writ petition at a

time when she apprehended termination of her provisional

employment, seeking the following reliefs:

“i) declare that the petitioner is entitled for regularisation as
Vocational Teacher (Fisheries) in the Government Vocational
Higher Secondary Schools with effect from her original date of
entry in service as provisional Vocational Teachers.

ii) issue a writ of mandamus or direction directing the respondents 1
and 2 to regularise the services of the petitioner as vocational
teacher in fisheries in the Government Vocational Higher
Secondary School w.e.f. her original entry in service as a
Government Vocational Teacher in Fisheries, and grant all
consequential benefits.”

2. According to the petitioner, by virtue of the long service of

almost of 20 years, five years of which was continuous, the petitioner

is entitled to be regularised in service. The petitioner relies on the

decision of the Supreme Court in State of Karnataka v. Umadevi

[2006(4) SCC 1].

w.p.c.15437/05 2

3. The learned Government Pleader would oppose the

contentions of the petitioner with the help of a counter affidavit stated

to have been filed. He would contend that a provisional employee is

not entitled to regularisation in service especially when such

provisional service was intermittent with breaks of even six months or

more. It is further submitted that this provisional appointment was

made at a time when there was no special rules and the matter was

governed by executive orders. After framing of the special rules,

selection was made through PSC and PSC has prepared a rank list,

Ext.R4(a), in which, the petitioner is included as rank no.24. It is also

submitted before me that since in this writ petition, by interim order

dated 24.6.2005, the petitioner was permitted to continue as

vocational teacher, the PSC is also not making advice from the rank

list as it would upset the communal rotation. It is also pointed out that

continuous service claimed by the petitioner is only by virtue of the

interim order of this Court. The respondents would contend that the

petitioner has no right to be regularised in service going by the

decision relied on by the petitioner herself.

4. I have considered the rival contentions in detail.

5. It is settled law that a provisional employee is not entitled

to regularisation in service. In fact in Umadevi’s case (supra) the

Supreme Court had frowned upon such regularisation even in cases of

w.p.c.15437/05 3

long intermittent service. The counsel for the petitioner relies on

paragraph 53 of that judgment. I am not satisfied that the petitioner’s

case comes within the purview of paragraph 53 also. Admittedly, the

petitioner was appointed only provisionally. It is also not disputed by

the petitioner that till the interim order was passed by this Court, the

service of the petitioner was only intermittent even with breaks of six

months and nine months. Therefore, on the basis of that intermittent

service, I do not think that the petitioner can claim regularisation of

her service. Therefore, I am not inclined to grant the petitioner the

relief of regularisation in service. Since she was only a provisional

employee, under Rule 9(a)(i), her service is liable to be terminated. In

fact the Full Bench of this Court has, with reference to Rule 9(a)(i),

held that a provisional employee under Rule 9(a)(i) is not entitled to

regularisation in service in the decision in Radha v. District Medical

Officer [2002 (2) KLT 711 (FB)]. In the above circumstances, this writ

petition is dismissed. However, the counsel of the petitioner submits

that for the last five years, the petitioner is not being paid salary. In so

far as, by Ext.P2 order, the petitioner was appointed in the scale of

pay of Rs.6675-10550, I direct respondents 1 to 3 to see that the

petitioner’s salary for the period till today is paid in the scale of pay as

per Ext.P2 and corresponding revised scale of pay. Arrears shall be

paid as expeditiously as possible, at any rate, within one month, from

w.p.c.15437/05 4

the date of receipt of a certified copy of this judgment, if not already

paid. Needless to say, the PSC can now proceed with advising

candidates from Ext.R4(a) rank list.

Sd/-

sdk+                                             S.SIRI JAGAN, JUDGE

          ///True copy///




                             P.A. to Judge