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