JUDGMENT
M. Ramachandran, J.
1. These Writ Appeals are filed by the respondents feeling aggrieved about the direction issued by the learned Single Judge, whereby the provisional service rendered by the petitioners in the Writ Petitions were directed to be reckoned for the purpose of increment. Consequential steps were to be taken within a specified time limit. The learned Single Judge in the later cases had followed an earlier decision rendered by him in Sobhana v. State of Kerala, .
2. The petitioners had to their credit provisional service, and later on had been selected by the Kerala Public Service Commission for appointment to the self same categories viz., Staff Nurses, Public Health Nurses and Junior Health Inspectors. The common feature is that such provisional service had been rendered by them prior to 1.10.1994, and all of them had joined duty only after 1.10.1994. The above date has significance in that the Government decision under Rule 33 of Part I of the Kerala Service Rules (for short KSR) stood deleted with effect from the said date. The petitioners were almost sure that their provisional service would be counted for the purpose of increments, a benefit which had been made available to their immediate predecessors. But services so rendered by them were not tagged on for the purpose of increments, in view of the deletion of Decision No. 2 below Rule 33 of Part I of the KSR. The Government on the strength of the above had taken a stand that in respect of personnel, who got regularisation in service with effect from the said date, were not to get the benefit of past services for the purpose of increments. The amendment was one towing in line with the amendment brought to Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules (for short KS & SSR) earlier. As a matter of fact, in view of the amendment as above in the KS & SSR, provisional employees recruited through Employment Exchanges from 1986 onwards became disentitled for increments and were entitled to draw only the minimum prescribed basic pay. However, the Government decision, referred to earlier, continued to be in the statute book (KSR) until 30.9.1994. The resultant position was that although working on provisional basis, the employees were not to get increments, in spite of putting in service, if such provisional service was followed by regularisation, subject to certain conditions, which are not relevant here, it would have been possible for such persons to get a higher fixation, since the increments which might have been admissible for such service could have been permissible to be added to their basic pay on regularisation. The petitioners contended that the benefits, which had been in vogue and which were being enjoyed by their counter parts, who were lucky enough to get regularisation before 1.10.1994, could not have been denied to them. The learned Single Judge had accepted the contentions as above, and had granted the reliefs.
3. It had been held that a close reading of the Government decision made it clear that what the Government actually intended was to confer the benefit of provisional service rendered prior to 1.10.1994. The regularisation may take years and regular appointment after provisional service may also be delayed. But, the benefit is discontinued only from 1.10.1994, since intention of the Government is to confer the benefit of provisional service prior to 1.10.1994. It was immaterial as to when the regularisation is made or when the regular appointment was actually given. This view had led to a declaration that the benefit of increment was to be given ignoring the fact that the regularisation or regular appointment was only after 1.10.1994. Net result was to be that only provisional service rendered after 1.10.1994 deserved to be ignored.
4. A few cases decided as above had been subjected to appeal on an earlier instance, and a Division Bench of this Court on 6.6.2005 had occasion to consider the same (W.A.No. 2237/04, W.A.Nos.6 and 57 of 2005). Overruling the finding as above, in unequivocal terms, the Division Bench held as following:
“It is clear from the above Government Order(Government Order dated 30.9.1994 incorporating Government Decision No. 91/94) that those persons whose services were regularised with effect from 1.10.1994 or thereafter will not be entitled for increments reckoning their provisional service. So, the relevant date is the date of regularisation. If the regularisation was before 1.10.1994, the provisional service will be counted for the purpose of increments, otherwise, the provisional service will not be counted”.
In support of the above conclusion, the Court had held that normally the provisional service will not be counted for grant of increments or for other service benefits unless there are specific rules to the contrary. Though the Government granted the benefits, it was withdrawn with prospective effect from 1.10.1994. It, had been therefore reiterated as following:
“We are of the opinion that only Government employees whose services were regularised on or after 1.10.1994 will not get the benefit and the stand of the Government in this regard is correct”.
5. Nevertheless the Government felt aggrieved because of the circumstance that further directions came to be passed in the Writ Appeal, which according to the Government, was not only unwarranted, but also were not strictly legal. The Division Bench had opined that the petitioners were working continuously from the year 1987 and similar dates, and while they were so rendering service, the Public Service Commission advised them for regularisation on 15.7.1994. The appointment orders were issued on 14.9.1994. However, they could start their regular service with effect from 4.10.1994. The Court held that it is settled law that seniority is to be counted from the date of advice. In this premises, it was directed that their provisional services were to be deemed as one to be regularised with effect from the date of PSC advice. The final direction was as following:
“Therefore, we are of the opinion that the provisional services of the petitioners should be counted for the purpose of increments as their services were regularised before 1.10.1994”
6. When the present batch of Writ Appeals came before the Court, the Bench harboured a doubt as to whether the observations as above and grant of reliefs would have been sustainable. It was in the above circumstances that the Division Bench (Mr. Justice K.A. Abdul Gafoor and Mrs. Justice K. Hema) came up with the Reference Order on 1.9.2005. It had been observed as following:
“From the common Judgment in W.A.No. 2237 of 2004 and connected cases we see that Division Bench proceeded to consider the contention that the temporary appointment be deemed as regularised with effect from the date of advice by the PSC. But such deeming provision in the Statute is not pointed to us. Rule 33 Part I KSR also does not reveal such a position. When the respondents were appointed there was specific statutory bar that they will not be eligible for increment on the strength of the temporary appointment, as per the proviso extracted above. This aspect is also not seen adverted to in the said common judgment of the Division Bench.
So, we are of the view that the matter requires consideration by a Full Bench and we make an order of reference accordingly”.
From the Reference Order itself, it is found that in respect of candidates, who were not appointed through Employment Exchanges, but through separate selection process and who were not governed by the second proviso to Rule 9(a)(v), the same Bench had directed the Government to consider claims of such personnel for regularisation, by exercising residuary powers under Rule 39 of the KS & SSR, taking notice of the circumstance that their regularisation was delayed in spite of Government decisions, for no fault of theirs. Although the decision in Sobhana’s case (cited supra) stands overruled by the Writ Appeal judgment in W.A.No. 2237 of 2004 and connected cases, when the Bench categorically held that persons regularised after 1.10.1994 were disentitled to the benefit of Government Decision No. 2 under Rule 33 of Part I of the KSR, the further observation, according to the Government Pleader was unwarranted.
7. The only question, which is required to be answered, is as to whether the benefit could have been extended to such candidates for the reason relied on by the Bench, viz., presence of Rule 27(c) of the KS & SSR.
8. We had opportunity to hear Smt. Vaheeda Babu, Government Pleader on behalf of the Government. Sri. Kaleeswaram Raj represented the interest of the petitioners, who have been impleaded as respondents in these proceedings. Rule 33 of Part 1 KSR, the learned Government Pleader submits, provides that “all duty in a post on a time-scale counts for increments in that time-scale”. However, this normally is applicable to persons who were on regular service. Adverting to the Note to Rule 3(ii) of Part I KSR, it is pointed out that as from 22.1.1987 onwards the KSR as a whole shall not apply to the persons appointed to the service of the Government temporarily under Rule 9 of Part II of the KS & SSR except to the extent specified by the Government.
9. Government Decision No. 2, under Rule 33 of KSR, which had been there appended to the Rules, provided as following:
“Provisional service on regularisation with or without break in the same category of post will be treated as officiating service ab Initio for the limited purpose of granting of increments. Provisional service followed by a regular appointment with or without break in the same category of posts will also be treated as officiating service ab initio for the limited purpose of granting ofincrements.
The term ‘same category’ of post for the purpose denotes posts satisfying the following conditions.
(i) The posts should carry the same or identical scale of pay.
(ii) the qualification and method of appointment should be the same, and (iii) xxx xxx xxx The above decision shall be deemed to have come into force with effect from 1st November, 1956 but the mometary benefit thereof will be admissible only with effect from 24th July, 1967."
The above decision itself had come to force with effect from 1.11.1956. This was the provision which conferred the benefits. It stands wholly deleted effective from 1.10.1994 (Vide G.O.(P) No. 540/94/Fin. dated 30.10.1994). A copy of the order had been produced as Annexue-C in W.A. No. 1038 of 2005. Therefore, the cumulative effect was that benefits would have gone only to persons appointed before the cut off date.”
10. It is further submitted that the Government had also taken notice of the amendments, which have been brought to Rule 9(a)(i) of the KS & SSR, with effect from 1.8.,1986, and consequently a Clause in Rule 9 (Clause V Sub-clause (b) a proviso had been added, which is to the following effect:
“Provided further that persons appointed temporarily through Employment Exchange shall not be eligible for increment in the time scale even if they complete the prescribed period of service fixed for sanctioning such increment”.
Thus what had been done was to streamline the pattern, whereby possible ambiguity in application of the Rules in KSR and KS & SSR were sought to be avoided. It is submitted that as there has been authoritative pronouncement by the Division Bench that provisional service will not be reckoned in respect of employees, who were regularised after 1.10.1994, the Court need examine only the issue as to whether advice of a candidate by the Public Service Commission prior to 1.10.1994 would have made any difference.
11. For this purpose, reference was made to the definition of “duty” as coming under Rule 2(6) of the KS & SSR. It is as following:
“A person is said to be ‘on duty” as a member of a Service
(a) when he is performing the duties of a post borne on the cadre of such service or is undergoing the probation, instruction or training prescribed for such service”.
An inclusive definition is given for the term “duty” under Rule 12(7) of Part I KSR. Duty includes (i) Service as a probationer or apprentice, provided that such service is followed by confirmation; (ii) Joining time and (iii) A course of instruction or training which an officer undergoes specifically ordered by Government to be treated as duty. Government Pleader also refers to the definition of the term “appointed to a service”, Rule 2(1) of the KS & SSR. A person is said to be “appointed to a service” when in accordance with these rules or in accordance with the rules, he discharges for the first time duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.
12. It is therefore argued that by no such stretch of imagination a person who has been advised by the Public Service Commission for appointment could be treated as on duty or have been conferred with appointment till such time they stand discharge of duties. The learned Government Pleader also invites our attention to Rule 23 of Part I KSR. Normally “an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post”. This, according to her, clinches the issue. By way of conclusion, it had also been shown that the Explanation to Rule 33 of Part IKSR also may throw light to the issue. It is provided that for the purpose of the rule, the period treated as duty under Sub-clause (ii) of Clause(7) of Rule 12 shall be deemed to be duty in the post if the officer draws pay of that post during such period.
13. Smt. Vaheeda Babu submits that while seeking aid and assistance of Rule 27(c) of Part II KS & SSR, the Court ought to have noticed the provisions also. According to her, Rule 27 as a whole deals with the manner in which seniority of a person, who gets appointed to a service. Normally it is determined with reference to the date of order of his first appointment. But Sub-clause (c) provides that notwithstanding anything contained in Clauses (a) and (b) above, the seniority of a person appointed to a class on the advice of the Commission is to be determined by the date of first effective advice made for his appointment. This is only to get cross certain mischief, which otherwise might occur. Non obstante clause was in house to Rule alone. For example, there cannot be any claim for salary until such officer actually enter upon and discharges the duty. If the proposition laid down by the Division Bench is accepted, it is submitted that a position may emerge whereunder although the employee can have no legal claim for emoluments till the date of his assumption of duty, nonetheless he will be deemed as entitled to increments covering this period. Such a situation is never contemplated by the Rules and may not be legally an acceptable position. Further, no vested rights of the petitioners had been ever interfered with. The claim for increments is provided as well as circumscribed by the statute, and it may be possible for the Government to vary any conditions of service at its discretion. We may examine the issue in the above background.
14. Provisional appointments are contemplated by Rule 9(a) in more than one contingency. An existing Government servant could be provisionally appointed to fill up a higher post, when there is likelihood of delay in completing the formalities for filling up the post on a regular basis. A provisional appointment can also be there giving opportunity to a person to enter into Government service for the first time, so as to man a post, when there is possibility of delay in making regular recruitments. The amendment to Rule 9 in 1986 brought in the KS & SSR restricted the eligibility of provisional hands recruited through Employment Exchanges for availing of increments notwithstanding that they had occasion to serve the Government for a period of over one year. The benefit which was prevailing was discontinued. In such cases, employees were not to be given increments, but were to continue in the minimum prescribed scale of pay. At the same time, provisional appointments conferred to Departmental hands continued to enable them to draw increments almost always. This was an accepted change and the petitioners were continuing as provisional employees aware of the above prescription. Till such time they were regularised, they did not have any vested rights to claim that they were to get increments. On the date of such regularisation, however, the rule was specific that no increments were payable for provisional service rendered.
15. On the reasoning of the decision of the Supreme Court in Chairman, Railway Board v. C.R. Rangadhamaiah, , it could not have been possible for them to argue that their vested rights have been interfered with. We find that the decision in Stanley v. State of Kerala, 2002 (2) KLT 431, as well as Samuel John v. State of Kerala, 2002 (1) KLT 303, also lay down the above proposition. Therefore, it could be well assumed that it was a case where there were no sustainable claims and the date of advice did not make any difference entitling them any mileage whatsoever. With great respect, we hold that the Division Bench has not laid down the correct law.
16. Mr. Kaleeswaram Raj, appearing for the respondents, nevertheless submits that this Court should not overlook the great prejudice that is likely to befall on the petitioners, in the event of the above declaration. He points out that the petitioners were working as provisional hands for a number of years and it was almost certain that such service would be reckoned for the purpose of increments, once they got the benefit of regularisation. As a matter of fact, when date of advice was prior to 1.10.1994 and even the appointment orders in certain cases were issued before the deadline as above, a technical plea could not have been possible to be raised. A few persons, who were working along with them by fortuitous chance could claim the benefits, as they had joined duty before 1.10.1994. He submits that Annexure-C order, referred to by the Government, whereby Government decision No. 2 had been deleted, confined itself to the impact of Rule 9(a)(i) of Part II KS & SSR. It is not as if every provisional employee, who got regularisation, were to suffer because of the deletion of the Government decision, as specific reference was there only in respect of Rule 9(a)(i) candidates who came through Employment Exchanges and none else.
17. But it is difficult to accept the above proposition, since the Government has the right to prescribe conditions for grant of the benefit of increments. As matters stand now, from 1.10.1994 onwards there is no enabling provision in the Rules for any provisional hands, who got appointment as sponsored by the agency of Employment Exchanges, to claim increments.
18. The hardship by the introduction of a cut off date cannot be taken notice of, as the Government had been synchronizing the terms of the KSR and the KS & SSR on the subject. Although the counsel had adverted to the decision of this Court in Jose Jacob v. State of Kerala, 1998 (2) KLT 873, we feel that this might not be an authority which could be profitably applied to the facts which are agitated herein.
19. Resultantly, we hold that Annexure-C order has prescribed certain conditions in specific terms, that a provisional hand, temporarily appointed under Rule 9(a)(i) of the KS & SSR who gets regular appointment on or after 1.10.1994, or whose provisional service gets regularised with effect from 1.10.1994 or thereafter will not be eligible for increments reckoning their provisional service. The exception carved out in favour of persons who had secured advice memos from the Public Service Commission or who had obtained appointment orders before the above said date also are not entitled to get the benefit of the increments for the said reason alone, if they had not joined duty before cut off date of 1.10.1994.
20. Consequently, we find that reliefs granted to the petitioners in the Writ Petitions, from which these appeals arise, could not have been granted in terms of the Rules. The Writ Appeals are allowed. The judgment in W.P.(C) Nos. 12405/04, 25781/04, 28627/04 and 28705/04 are set aside.
21. We also make it clear that in cases where the Government had extended the benefit on the basis of judgments obtained by the persons, which have become final, the grant made need not be reopened, although legally the incumbents may not be entitled to the advantage claimed and conferred on them, as settled cases are not to be permitted to be reopened. Parties are to suffer their costs.