IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 31658 of 2006(R)
1. A.S.CHRISTINA,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT MEDICAL OFFICER,
3. THE ACCOUNTANT GENERAL,
For Petitioner :SRI.C.S.ABDUL SAMMAD
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :08/02/2008
O R D E R
V.GIRI, J
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W.P.(C).31658/2006
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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 Vide order No.
28-8-1980 AN FW1/1976/79 of
DFWMO Kozhikode in
the scale of pay of
Rs.370/600
From 24-07-1981 FN Through Employmentto 24-07-1982 AN 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 Vide Order No.E3-
24-07-1983 AN 12674/78 dated
16.12.1978 DMOH, TSR
in the scale of pay of
Rs.370-600.
From 25-07-1983 & DMOH, Thrissur
continuing allowed to continue vide
order No.E3-13737/83
DMOH, TSR dated 20-
07-1983.
W.P.(C).31658/2006
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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
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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
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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
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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
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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