Veepathu v. A. E. O. — 1997 DIGILAW 294 (KER)

Judgment :- C.S. Rajan, J. The petitioner was first appointed as an Upper Primary School Assistant in the school of the third respondent with effect from 15.7.86. The above appointment was approved by the first respondent. In the staff fixation of the school for 1992-93, there was a reduction of one post for want of strength in Standard II. The petitioner was the junior most teacher in the school. She was also not entitled for protection since she did not have continuous service, for 7 years. Therefore, her services were terminated by the first respondent by order dated 4.7.1992. The petitioner challenged the above order by filing O.P. No. 8958/92 which was dismissed on 14.7.92. The petitioner took up the matter in appeal by filing W. A. No. 715/92. The Division Bench of this Court in CMP No. 5692/92 in W.A. No. 715/92 granted interim stay of termination of the services of the petitioner on 31.7.92. Later this Courtby order dated 31.5.95 vacated the stay. Thus the services of the petitioner were terminated on 29.6.95. 2. By Ext. P3 communication the second respondent informed the third respondent that the petitioner did not have 7 years of service and therefore, she was not eligible for protection as per Ext. P1 Government Order. This Original Petition has been filed to quash Ext. P3. The petitioner has also prayed for a declaration that she has more than 7 years service as on 15.7.95 and therefore, she is entitled to the protection under Ext. P1 Government Order. Thus the short question to be decided in this Original Petition is whether the period from 31.7.92, the date on which the Division Bench of this Court granted interim stay and 31.5.1995, tine date on which this Court vacated the stay can be counted as service for the purpose of calculating the 7 years service needed for promotion under Ext. P1 order. 3. Sri. Abdul Aziz, the learned senior counsel argued that when Ext. P1 refers to only service simpliciter without any qualification, the service rendered by the petitioner under the orders of interim stay passed by this Court must also be counted as service. The learned senior counsel is also armed with a number of decisions including decisions of a Full Bench of this Court. 4. P1 refers to only service simpliciter without any qualification, the service rendered by the petitioner under the orders of interim stay passed by this Court must also be counted as service. The learned senior counsel is also armed with a number of decisions including decisions of a Full Bench of this Court. 4. In the ruling reported in Kunhikrishnan Nambiar v. State (1964 KLT 704) a Full Bench of this Court considered the distinction between officiating and substantive service. In that context, the Full Bench observed as follows: "The word "service" by itself without any qualification would ordinarily comprise all service and the words "whether officiating or substantive" are put in brackets after the word "service" only in order to emphasis that all service, of whatever kind counts". 5. In the ruling reported in Bhaskaran v. State of Kerala (1981 KLT 633) Justice Khalid, as he then was, considered the question whether the qualification of a minimum period of service for the purpose of promotion can include a provisional service. The learned judge observed as follows: "The words "service" without any qualification means service of any kind. Such service has to be taken into account for purpose of qualification and only for that purpose." 6. A Division Bench of this' Court approved the dictum in Bhaskaran's case (1981 follows: "It thus becomes clear that whenever the rule making authority felt that it is only regular service that should count, it has chosen to use the expression "regular. As such an expression has not been used and that the only expression used is service', we find no justification to read into the rule the prefix "regular'. That is precisely the view taken by this Court in the decision reported in 1981 KLT 633 (between Bhaskaran v. State of Kerala). That was also a case of the Public Works Department and considered the category of the First Grade Surveyors. It has been observed in that case that the only word used is service, which means service of any kind would entitle the petitioner for being promoted if he has the requisite service to his credit. It is pointed out that unless the service is qualified being either as regular service or officiating service, an officer claiming the benefit of promotion will be entitled to his service when the word used is only" service'. It is pointed out that unless the service is qualified being either as regular service or officiating service, an officer claiming the benefit of promotion will be entitled to his service when the word used is only" service'. It is pointed out that the word * service' without qualification means service of any kind and mat service has to be taken into account for the purpose of qualification and only for that purpose. The context in which the word "service' has been used does not justify any other inference either. Emphasis of the rule appears to be on the persons concerned having become familiar with the duties of the particular post for the particular period. Therefore, the question as to whether that familiarity for experience has been acquired by holding the post on a provisional, regular or other basis is not of any materiality. We have there fore no hesitation in taking the view that the expression "service' used in the rule in question does entitle the appellant to count the service rendered by him on a provisional basis. If the service rendered by the appellant as a provisional employee along with the service rendered by him on a regular basis is taken into account, it is not disputed that the appellant would have the requisite period of two years of service and he would thus be fully qualified for the post". 7. On the strength of these decisions, the learned senior counsel argued that there was absolutely no justification for denying the benefit of the service rendered by her under the cover of the interim order passed by this Court. The learned senior counsel also stressed the point that the petitioner was paid her salary also during the above period. Therefore, according to the learned senior counsel, these factors will definitely strengthen the case of the petitioner and therefore, she is entitled to get the benefit of protection as ordered in Ext. P1 Government Order. 8. But it must be remembered that the cases cited by the learned senior counsel relate to the question whether the service mentioned in the various rules can be qualified by either provisional, officiating temporary or substantive. All these rulings were categorical in holding that whenever a rule refers to service simpliciter, the authorities cannot qualify the above words by stating that it must be regular or substantive. All these rulings were categorical in holding that whenever a rule refers to service simpliciter, the authorities cannot qualify the above words by stating that it must be regular or substantive. But according to me, the service rendered under the strength of an interim order passed by this Court, which was subsequently vacated, stands on an entirely different footing. A party approaching this Court may be able to obtain an interim order by virtue of which he was able to continue in service. But when ultimately the Original Petition is dismissed or the interim order is vacated, the parties will not be deriving any benefit out of those orders. 9. In a very recent ruling of the Supreme court reported in N. Mohanan v. State of Kerala (AIR 1997 SC 1896), the Supreme court had occasion to consider the question whether the interim order creates any right in favour of the petitioner, when the final adjudication was against him. The Supreme Court in the above decision held as follows: "3. Sri. T.L.V. Iyer, learned senior counsel contends that the list was not published and so the life of the panel did not expire. We find no force. The fact that candidates were appointed from the panel is proof of its publication. It is then contended that even though the petitioner has no right to be appointed since. he was appointed on the basis of the order of the Court provisionally, the appointment already made should be allowed to be continued and should be regularised. The High Court has negatived this contention, and in our view rightly. The interim order is subject to result of outcome of the final adjudication. If the petitioner is not successful in the final decision, the interim order would stand set aside. So appointment by interim order does not create any right of the petitioner gets any right to regularisation on that basis'." Therefore, I am of the view that the petitioner cannot tag on the period of service which she rendered on the strength of the interim order passed by this Court in the Writ Appeal for the purpose of calculating 7 years of service in order to enable her to get the protection under Ext. P1. Thus, this Original Petition is devoid of any merit and is dismissed. P1. Thus, this Original Petition is devoid of any merit and is dismissed. It is made clear that if the petitioner is able to succeed in the Writ Appeal, definitely this judgment will not stand in the way of the petitioner claiming the benefit of continuance in service which was rejected in this judgment.