Jose Jacob v. State of Kerala — 1998 DIGILAW 425 (KER)

Judgment :- The petitioner in O.P. 5702/95 was appointed as Pharmacist Grade II on provisional basis under R.9(a)(i) of the K.S.& S.S.R. during the period from 30.3.87 to 23.3.88.12.7.88 to 6.7.89 and 19.9.89 to 18.8.90. Therefore, he got regular appointment in the same category of Pharmacist Grade II in the same scale of pay with effect from 1.1.91. In terms of Government Decision No. 2 under R.33 Part I K.S.R. governing grant of increment, the petitioner was granted annual increments in the scale of pay of the post taking into account the aforesaid three spells of provisional service. Later, that fixation was undone by Ext. P2. The period of temporary appointment from 30.3.87 to 23.3.88 is taken out of that and is excluded for the purpose of granting increment and a refixation is effected as per Ext. P2, resulting in drop in emoluments. Thus, the petitioner challenges Ext. P2. The factum of having three spells of provisional service is admitted by the respondents. It is also admitted that the said three spells of provisional service were in the same category as Pharmacist Grade II to which the petitioner got regular appointment with effect from 1.1.91. 2. The petitioner in O.P. 6844/97 is a Staff Nurse, She had to her credit temporary service under R.9(a)(i) from 4.1.88 to 14.8.92. This was followed by regular appointment on 15.8.92. In her case also, her pay was fixed granting increment reckoning the spell of aforesaid provisional appointment, applying Government Decision No. 2 under R.33 Part I K.S.R. Ext. P3 is that order. In Ext. P4, the entire period of provisional service is excluded and her pay is fixed in the revised scale of pay applicable to Staff Nurse as on 15.8.92. The petitioner challenges Ext. P4 order. 3. The question that arises for consideration in these two cases is whether the provisional service rendered by the petitioners can be reckoned for the purpose of granting increments after they being appointed into regular service. Admittedly, in the case of the petitioner in O.P. 5702/95, two spells of provisional service namely 12.7.88 on 6.7.89 and 19.9.89 to 18.8.90 are reckoned for the purpose of granting increment even as per the impugned order Ext. P2. Only the provisional spell of appointment from 10.3.87 to 23.3.88 is excluded. The reason discernible from Ext. Admittedly, in the case of the petitioner in O.P. 5702/95, two spells of provisional service namely 12.7.88 on 6.7.89 and 19.9.89 to 18.8.90 are reckoned for the purpose of granting increment even as per the impugned order Ext. P2. Only the provisional spell of appointment from 10.3.87 to 23.3.88 is excluded. The reason discernible from Ext. P2 to exclude that period is that during the said period the scale attached to the post was a different one o that existed in the subsequent two periods of provisional appointments and at the lime if regular appointment. But, all these appointments including the regular appointment there in the same category, is not disputed by the respondents. In the case of the petitioner in O.P. No. 6844/97, the entire provisional service is excluded even'though during the period from 1.3.92 to 14.8.92 she had been in the same scale of pay attached the post at the time of regular appointment on 15.8.92. The reason stated in Ext. P4 that "as per existing orders she is not eligible for such fixation." 4. Attacking Ext. P2 in O.P. 5702/95 and Ext. P 4 in O.P.6844/97,the petitioners submit that they are entitled to reckon the provisional service to their credit for the purpose of increments on the basis of Government Decision No. 2 under R.33 Part I K.S.R. It was deleted only with effect from 1.10.94 as per G.O. (P) No. 540/94/Fin. dated 30.9.1994. Regular appointment of the petitioner was before the said date and when Government Decision No. 2 was in force. Their provisional service was followed by regular appointment with break in the case of the petitioner in O.P. 5702/95 and without break in the case of the petitioner in O.P. 6844/97. Therefore, the entire service shall be treated as officiating service ab initio for the purpose of granting increments. 5. It is contended by the Government Pleader that in terms of R.9(a)(i), the provisional appointees shall be paid only the minimum pay in the time scale applicable to the respective category. So, even at the time of regular appointment, such persons were receiving minimum of the basic pay. In such circumstances, they cannot count the provisional service to their credit for the purpose of increment. It is also contended that the provisional services to the credit of the petitioners were not regularised at any point of time. So, even at the time of regular appointment, such persons were receiving minimum of the basic pay. In such circumstances, they cannot count the provisional service to their credit for the purpose of increment. It is also contended that the provisional services to the credit of the petitioners were not regularised at any point of time. So long as such service is not regularised, the petitioner cannot claim the benefit of Government Decision No. 2. 6. It is also contended in the case of the petitioner in O.P. 5702/95 that during the period from 30.3.87 to 23.3.88 when that petitioner had a provisional appointment, scale of pay attached to the post was a different one to that at the time when he got regular appointment on 1.1.91. This difference is because of the pay revision effected. Same is the case of the petitioner in O.P. 6844/97. 7. All these contentions raised by the Government Pleader cannot be accepted. R.9(a)(v) is applicable only in the case of temporary appointees and so long as one continued as a temporary appointee. The petitioners in these cases are not temporary appointees. They were respectively appointed on regular basis with effect from 1.1.91 and 15.8.92. It is on their regular appointments that they are entitled for increments. It is at that point of time that they claimed that their provisional service shall also be reckoned for the purpose of increment. When they were thus entitled for the first increment after their regular appointment, Government Decision No. 2 was on the statute book and it was deleted only with effect from 1.10.1994 as per G.O.(P) No. 540/ 94/Fin. dated 30.9.1994. The said Government Decision provides that "provisional service on regularisation or followed by regular appointment 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 increment". For this purpose, it is true that provisional service should have been regularised, as held by me in the decision reported in Satyapalan v. Dy. Director of Education (1998 (1) KLT 399). But the said Government Decision also provides that "provisional service followed by regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting increment". In this clause, regularisation is not referred to at all. Director of Education (1998 (1) KLT 399). But the said Government Decision also provides that "provisional service followed by regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting increment". In this clause, regularisation is not referred to at all. Therefore, even non-regularised provisional service also can be reckoned for the purpose of granting increment treating the service as officiating service ab initio. Even such service involving break as in the case of the petitioner in O.P. No. 5702/95 can also be taken note of. The aforesaid two conditions contained in the Government Decision No. 2 are not conjunctive but disjunctive. So, contention of the Government Pleader that the petitioners' provisional service had not been regularised and therefore they cannot be granted increment taking into account their provisional service cannot be accepted in the light of the second limb of the Government Decision No. 2. 8. Moreover, it cannot be accepted on another reason also. Admittedly in Ext. P2, the impugned order in O.P. 5702/95, the respondents have reckoned the provisional service to the credit of the petitioner in O.P. 5702/95 during the period from 12.7.88 to 6.7.89and 19.9.89 to 18.8.90. So, it is an admitted case even in Ext. P2 that provisional service in the same scale of pay can be reckoned for the purpose of granting increment even without such regularisation. 9. Another contention put forth by the Government Pleader is with reference to the scale of pay. It is not disputed by the respondents that the respective petitioners got appointment in the same category of post which they did hold as provisional appointees. In other words, they were appointed later, on regular basis in the same category of posts to which the qualification and method of appointment were one and the same. Because of an intervening pay revision or revisions, there was change in the scale of pay. This is admitted by the petitioners also. Such charge of pay will not take the incumbent concerned from out of the definition to the term "same category" as contained in the Government Decision No. 2 under R.33 Part I K.S.R. Because of such change in the scale of pay due to the pay revision, the incumbents cannot be denied of the benefits as are applicable in terms of the statutory rules. This aspect has been considered by this Court in more than one occasion. In Vijayan Warner v. Director of Technical Education (1989 (2) KLT 221) it was held as follows: "The only question is whether the respondents are right in contending that the petitioner will not get the benefit of increment because the Government had, in the meantime, revised his salary scale disabling the petitioner from drawing salary on the same time scale of pay. It is agreed that but for the revision of salary, the petitioner would have been entitled for increment on completion of the qualifying period of duty. I am of the opinion that the revision of the pay scale for which the petitioner was not in any manner responsible cannot have the effect of depriving the petitioner of his normal right to incremental completion of the qualifying period of service. I do not understand the ruling in R.33(a) Part I of the Kerala Service Rules to have any such effect. If it does have any such effect, that may not bind the Government employee concerned." A Division Bench, in Hussain v. Kerala Water Authority (1996 (2) KLT 555) held as follows: "By the revision of pay scales it cannot be said that the identity of the scale of pay was lost. If the interpretation given in the clarification is accepted, it will lead to a situation where no regularised hands would be able to enjoy tile benefits of increments accrued to them while working as provisional hands, as there would be quinquennial pay revision for employees. Only the effect for pay revision was given and that is quite normal under any service. All the Overseers were on identical pay scales and so long as there was no change in their pay scales they are entitled to the benefit of the Government. Decision No. 2 and their entire provisional service should be treated as officiating services and they are entitled to treat this period for the purpose of increments". The said two decisions squarely apply in the case of the petitioners. Merely because there was a change in the scales of pay because of pay revisions, the petitioners who got regular appointments in the same category in which they held provisional appointment cannot be denied of increments reckoning the provisional service as at the material time Government Decision No. 2 was applicable in their case. Accordingly, Ext. Merely because there was a change in the scales of pay because of pay revisions, the petitioners who got regular appointments in the same category in which they held provisional appointment cannot be denied of increments reckoning the provisional service as at the material time Government Decision No. 2 was applicable in their case. Accordingly, Ext. P2 in O.P. No. 5702/95 and Ext. P4 in O.P. No. 6844/97 are quashed. Consequence is that Ext. P1 in O.P. 5702/95 and Ext. P3 in O.P. 6844/97 will get revived. If any recovery had been effected, the same shall be refunded to the petitioners. Original Petitions are allowed. No costs.