IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1267 of 2009()
1. STATE OF KERALA,
... Petitioner
2. THE DIRECTOR OF MEDICAL EDUCATION,
3. THE PRINCIPAL,GOVT.MEDICAL COLLEGE,
4. THE ACCOUNTANT GENERAL,
Vs
1. DR.AYYAMKULAM JAMES LOUIS,AYYAMKULAM
... Respondent
2. DR.C.H.ASHALATHA,MALIYEKKAL THEKKAKKARA
3. DR.SONU.R.,"VYKHARI",A.P.C.ROAD,
4. DR.MANUMOHAN.K.,KAMALA NIVAS,
5. DR.FELIX NELSON,JEHOVAH JIRESH,
6. DR.ARUN.S.,"SUJA",31,265 A,WAYANAD,
7. DR.ROSHNI GANGAN,M10,S2,"GANGES",
For Petitioner :GOVERNMENT PLEADER
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :18/06/2009
O R D E R
K. BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
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W.A. NO. 1267 OF 2009
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Dated this the 19th day of June, 2009
JUDGMENT
Balakrishnan Nair, J.
The point that arises for decision in this case is whether provisional
hands appointed in the pre revised scale of pay are entitled to get higher
scale of pay upon revision of the pay for regular hands, with retrospective
effect. The brief facts of the case are the following:
2. The respondents herein who were the writ petitioners were
appointed by Ext.P1 order as Lecturers in various subjects in the
Kozhikode Medical College by its Principal. The said order provided that
the candidates are appointed on contract basis as Lecturers in the scale of
pay of Rs.2,200-4,000/- plus other allowances admissible in the
department, for a period of one year from the date of their joining duty and
that their services will be terminated as and when candidates advised by
the Kerala Public Service Commission or Employment Exchange join
W.A. NO. 1267/2009 2
duty. Later, the salary of Lecturers were revised by the Government as
per Ext.P2 order dated 16.6.2000 with retrospective effect from 1.1.1996.
On a clarification sought as to whether the writ petitioners and other
similarly placed persons were entitled to the revised salary payable under
Ext.P2, the Government clarified that the existing Lecturers who were
appointed on contract basis may be terminated and reappointed on contract
basis with effect from 16.6.2000 so that they can draw the revised salary.
The writ petitioners and others moved the Government by filing Ext.P5
representation claiming revised pay. The Government, by Ext.P6 order,
issued further clarification regarding payment of salary to doctors who
were appointed on contract basis. Feeling aggrieved by the omission of
the Government to pay salary at the revised rate, the Writ Petition was
filed seeking appropriate reliefs. The respondents in the Writ Petition who
are the appellants herein resisted the prayers in the Writ Petition by filing a
counter affidavit. But, the learned Single Judge, after hearing both sides,
allowed the Writ Petition. Hence, this appeal by the official respondents.
3. The learned Government Pleader, referring to the terms of
Ext.P2, especially the one regarding deposit of arrears in the Provident
Fund account of the incumbents, submitted that it is meant to apply for
regular hands only. Once a person is appointed on contract basis, he is
W.A. NO. 1267/2009 3
entitled to get salary only at the rates provided in the appointment order.
Relying on the decision of the Full Bench of this Court in State of Kerala
v. Philomina (2008(1) K.L.T. 666(F.B.)), it is submitted that unless there
are express provisions in the orders regarding grant of financial benefits,
the courts should not order payment of additional emoluments which will
cause great financial commitment to the State.
4. On a query made by this Court, the learned Government Pleader
submitted that the respondents were appointed under Rule 9A of Part II of
the Kerala State and Subordinate Services Rules, 1958 (hereinafter
referred to as “the Rules”).
5. The opening paragraph of Ext.P1 appointment order reads as
follows:
“The following candidates are appointed
on contract basis as Lecturers on Rs.2200 – 4000
plus other allowances admissible in the
department noted against their names for a period
of one year from the date of their joining duty on
the specific condition that, their services will be
terminated as and when candidates advised by
Kerala Public Service Commission/Employment
Exchange join duty.”
W.A. NO. 1267/2009 4
Going by the above appointment order, we are of the view that the
appointment has been made under Rule 9(a)(i) of the Rules. It can never
be treated as an appointment under Rule 9A of the Rules which reads as
follows:
“9A. Appointment by agreements.– (1)
When in the opinion of the State Government
special provisions inconsistent with any of these
rules or of any other rules made under the proviso
to Article 309 of the Constitution of India or
continued by Article 313 of that Constitution
(hereinafter referred to in this rule as the said
rules) are required in respect of conditions of
service, pay and allowances, pension, discipline
and conduct with reference to any particular post,
or any of them, it shall be open to the State
Government to make an appointment to such post
otherwise than in accordance with these rules or
the said rules and to provide by agreement with
the person so appointed for any of the matters in
respect of which in the opinion of the State
Government special provisions are required to be
made and to the extent to which such provisions
are made in the agreement, nothing in these rules
or the said rules shall apply to any person so
appointed in respect of any matter for which
provision is made in the agreement.
Provided that in every agreement made in
exercise of the power conferred by this rule it
shall further be provided that in respect of any
matter in respect of which no provision has been
made in the agreement the provisions of these
rules or of the said rules shall apply.
(2) A person appointed under sub-rule (1)
W.A. NO. 1267/2009 5
shall not be regarded as a member of the service
in which the post to which he is appointed is
included and shall not be entitled by reason only
of such appointment to any preferential claim to
any other appointment in that or any other
service.”
A reading of the above rule shows that the appointment of the respondents
can never be under the said rule. Rule 9(a)(i) of the Rules reads as
follows:
“9.Temporary appointments.–(a) (i) Where
it is necessary in the public interest, owing to an
emergency which has arisen to fill immediately a
vacancy in a post borne on the cadre of a service,
class or category and there would be undue delay
in making such appointment in accordance with
these rules and the Special Rules, the appointing
authority may appoint a person, otherwise than in
accordance with the said rules, temporarily.”
In fact, the present appointment is made otherwise than in accordance with
Rules, as contemplated under Rule 9(a)(i) of the Rules. Therefore, by
virtue of Rule 9(a)(v), the incumbents are entitled to get the minimum pay
in the scale of pay applicable to regular incumbents in that post. Rule 9(a)
(v) reads as follows:
“There shall be paid to a person appointed
under clause (i) or clause (ii) the minimum pay inW.A. NO. 1267/2009 6
the time-scale of pay applicable to such service,
class or category.”
In this case, the respondents were paid the minimum salary in the scale of
pay of Rs.2,200 – 4000/- plus other allowances, as it was the scale of pay
applicable to regular hands at the relevant time. Since the pay was revised
with retrospective effect, by operation of the above statutory rule, the
respondents are entitled to get salary in the revised pay scale at its
minimum. In view of the above legal position, we find nothing wrong
with the direction of the learned Single Judge.
The Writ Appeal is accordingly dismissed. The appellants are given
one month’s time from today to implement the direction issued by the
learned Single Judge.
(K. BALAKRISHNAN NAIR)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
W.A. NO. 1267/2009 7
K.BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
W.A. NO. 1267/2009
JUDGMENT
19th June, 2009
W.A. NO. 1267/2009 8