JUDGMENT
Sivaraman Nair, J.
1. The 4 petitioners were appointed under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules as Junior Instructors in various subjects in the Industrial Training Institute, Area code. Such appointments were on 2nd April, 1982, 1st April, 1982, 25th October, 1982 and 27th May, 1983 respectively. The scale of salary applicable to Junior Instructors in the Industrial Training Institute was Rs. 420-720. On completion of one year of service, each of the petitioners was given annual increments of Rs. 13/-. This entailed enhancement in dearness allowance as well. Petitioners 1 and 2 have obtained two annual increments, whereas petitioners 3 and 4 have obtained only one each. In Ext. P2, the third respondent required the petitioners to refund the amount of increments, which, according to him, were not due to the petitioners. It was, therefore, ordered that recovery of the excess amount would be effected from the salary of the petitioners from November, 1984 onwards. Petitioners challenge Ext. P2 order.
2. The first submission is that they are entitled to increment in terms of rules 31 and 33 of the Kerala Service Rules. Reference is made to note (1) of Rule 31, Part I, Kerala Service Rules and also to the Special Rules for the Kerala Craftsman Traning Subordinate Service to urge that it was not necessary to acquire additional qualification to claim annual increment on completion of the requisite period. Another submission of the petitioners is that the Government had clarified in G.O. (P) 301/67/Fin dated 24th July 1967 and G.O. (P) 612/68/Fin. dated 3rd March, 1969, that provisional hands are entitled to increments. The third submission is that Ext. P2 violates the principles of natural justice since they were not heard before recovery was directed. The last submission is that stoppage of increment and the recovery from pay are specified as punishments under Rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, and such penalties could be imposed only for good and sufficient reasons. Petitioners want to avoid recovery of the annual increments granted to them, pursuant to Ext P2 order.
3. Petitioners were appointed under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules. It is clear from the provisions of the above rule, that the appointment is otherwise than in accordance with the general or special rules. It is also clear that it was a precarious appointment, which does not entitle the appointee to claim any benefit, other than the emoluments attached to the post. It is also clear that even unqualified persons can be appointed under that rule. The period for which such an appointment could be made was limited as 90 days under the proviso to Rule 9(a)(i)of the rules. By an amendment in 1982, the maximum period of such appointment has been enchanted to 180 days. Clause (v) of Rule 9(a)(i) of the rules provides that “there shall be paid to a person appointed under Clause (i) or Clause (ii) the minimum pay in the time scale of pay applicable to such service, class or category.
4. We have to remember that appointment under Rule 9(a)(i) of the rules could have been made only for a limited period of 90 days formerly and 180 days now. Each such appointment has to be in the minimum of the time-scale of pay. The rule did not contemplate continuous service of a provisional appointee for an indefinite period of time. If the appointment has to be at the minimum of the time-scale only, there is no question of any increment being granted on completion of one year of service, as is obligatory under Rules 31 and 33 of Part I, Kerala Service Rules. It is, therefore, clear that provisional appointees are not entitled to annual increments.
5. There is one other reason why I should come to the same conclusion. A person who is regularly appointed on selection by the Public Service Commission will be entitled to increments only if he has successfully completed obligatory test qualifications. That shall be irrespective of the period of service. If I am to hold that provisional appointees are entitled to increments on completion of one year of service, even without any obligation to acquire such qualification, that will amount to discrimination against a qualified candidate who was duly appointed in preference to persons who need not be selected, after competitive examination, a process of selection on merits and who need not pass any test at all. The period of service, by itself, would not entitle regular employees to increment. There is no reason why the period of service alone shall entitle a provisional employee to increment in preference to more competent, qualified and meritorious employees.
6. It is also relevant to note that Rule 33(a), Part I, Kerala Service Rules provides that only duty in a post in the time-scale counts for increment. Duty is defined in Rule 12(7) of Part I, Kerala Service Rules, as including service as a probationer or apprentice, provided that such service is followed by confirmation, joining time, course of instruction or training which an officer undergoes specifically ordered by Government to be treated as duty. It is clear, therefore, that even in the case of a probationer, the period of his service will be counted for purposes of increment under Rules 31 and 33(a) of Part I, Kerala Service Rules only if his appointment is followed by confirmation. It is not as if provisional appointees will be entitled to increment as a matter of course on completion of the period of one year of service, without any of the hurdles as are contemplated by Rules 31 and 33(a), Part I, Kerala Service Rules. I am, therefore, not in a position to accept the submission, that the petitioners are entitled to receive increments as a matter of course.
7. It is clear from the provisions contained in Rule 9(a)(v) of the Kerala State and Subordinate Services Rules and Rules 12(7), 31 and 33(a) of Part I, Kerala Service Rules, that the petitioners can have no legally sustainable defence against the proposal to recover the amount of increment which they had drawn. In a situation like this, absence of notice preceding an order in the nature of Ext. P2 cannot be treated as fatal.
8. It is not necessary for me to consider the submission of the petitioners that the government had by two of its executive orders held that provisional employees will be entitled to receive increments. Those orders cannot be relied upon because they are contrary to the provisions contained in Rule 9(a)(v) of the General Rules. The position as now clarified in the second proviso to that rule holds the field.
9. In the above view, the petitioners are not entitled to the reliefs which they seek. However, in view of the fact that a long time has passed, the State will not recover the excess amounts drawn by the petitioners.
10. The Original Petition is dismissed, subject to the above observation. The parties will bear their respective costs.
11. Issue photo copies of this judgment to counsel on both sides on usual terms.