IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3388 of 2008(C)
1. T.LATHA, W/O SAJIKUMAR,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE DIRECTOR OF HIGHER SECONDARY
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE ACCOUNTANT GENERAL(A&E),
5. THE PRINCIPAL,
6. THE HEADMISTRESS,
7. THE HEADMASTER,
For Petitioner :SRI.J.DEVADANAM
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :21/11/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 3388 OF 2008 (C)
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Dated this the 21st day of November, 2008
J U D G M E N T
Petitioner joined regular service as HSA on 29/6/94. She was
promoted as an HSST on 30/7/97 and is working as such. Prior to
appointment of regular service as HSA, petitioner has rendered a total
service of one year, six months and 26 days, as HSA on a provisional
basis. During that period, at the G.H.S, Chithara, she has worked from
23/6/92 to 31/3/93 and G.H.S Kulathupuzha from 14/6/93 to 30/3/94.
2. The complaint in this writ petition is that the provisional
service rendered by her has not been counted for the purpose of
calculating increments. She submitted various representations and by
Ext.P3, the 6th respondent informed her that though the provisional service
can be reckoned for calculating increments, the same can be done only by
the 2nd respondent. She continued to represent to the 2nd respondent and
finally pursuant to Ext.P5 judgment, she made Ext.P6 representation.
Thereafter, she was heard by respondents 2 and 3 and finally Ext.P9 order
was issued. In Ext.P9, it has been stated by the 2nd respondent that the
3rd respondent has furnished a report stating that provisional employees
who got regular appointment with or without break on or after 1/10/94 or
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whose provisional service gets regularised w.e.f. 1/10/94 or thereafter will
not be eligible for increments reckoning their provisional service as per GO
dated 30/9/94. It is further stated that the petitioner is not eligible for
increments reckoning her provisional service as her provisional service was
not regularised so far. On that basis, the 2nd respondent declined her
request on the ground that she is not eligible since her provisional service
has not been regularised.
3. The Government order dated 30/9/94 referred to in Ext.P9 is
Ext.P11 in this writ petition. The Government order dated 30/9/04 only
talks about provisional employees who got regular appointment on or after
1/10/94 or gets regularised in service w.e.f. 1/10/94. In case of such
employees, the Government order provides that they will not be eligible for
increments reckoning their provisional service.
4. From the facts noticed above, it can be seen that so far as the
petitioner is concerned, she commenced her regular service on 29/6/94.
Therefore, the Government order cannot apply in so far as she is
concerned. The eligibility of the petitioner for getting the period of her
provisional service counted for reckoning increments does not seem to be
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of dispute. But then, what is stated is that the said period has not been
regularised, in which case alone the period can be reckoned.
5. In my view, the petitioner has represented to all the
authorities and it is the responsibility of the authorities to have the
provisional service rendered by the petitioner reckoned, if that is a
requirement for counting such period or increments. So long as
regularisation of her provisional service is not within the control of the
petitioner and as the petitioner has moved the authorities, and if there has
been failure on the part of the authorities in doing the needful in the
matter, I would hold that such failure of the authorities concerned cannot
work out prejudice to the petitioner. Once the Government have
recognised her eligibility to have the provisional services reckoned for
increment purposes, it is the corresponding duty of the authorities to do
what is necessary to enable the employee to enjoy the benefit. If they
have failed in discharging that duty, that cannot cause detriment to the
employees. Therefore, the stand taken in Ext.P9 and reiterated in the
counter affidavit that in the absence of regularising provisional service, the
period cannot be reckoned for the purpose of increment cannot be
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accepted.
6. Therefore, I would quash Ext.P9 and the respondents are
directed to grant increments to the petitioner reckoning the provisional
service rendered by her prior to her regular appointment.
7. Writ petition is disposed of as above.
Petitioner may produce a copy of this judgment before the
concerned respondent, who shall ensure that the judgment is complied
with.
ANTONY DOMINIC, JUDGE
Rp