R. MOHANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE Original Petitions relate to a common question regarding the right of persons appointed under R.9(a )(i)of the Kerala State and Subordinate Services Rules(hereinafter referred to as 'the Rules ').The question is whether persons appointed on the advice of the Employment Exchange are entitled to increment.

(2.) THERE is a clear provision in second proviso to R.9(a )(v)of the Rules that the persons appointed temporarily through Employment Exchanges shall not be eligible for increment in the time scale even if they complete the prescribed period of service fixed for sanctioning such increment.Now I shall quote R.9(a )(v)of the Rules in full: "There shall be paid to a person appointed under clause(i)or clause(ii)the minimum pay in the time scale of pay applicable to such service,class or category: Provided that,if the person appointed is a member of another service,he shall be paid the pay admissible to him in the higher time scales based on the pay in the lower time scale applicable to him under the rules regulating the fixation of pay,if such pay is higher.He shall be paid increments in the time scale at the time intervals,as fixed by the Government from time to time: Provided further that persons appointed temporarily through Employment Exchanges shall not be eligible for increment in the time scale even if they complete the prescribed period of service fixed for sanctioning such increment " ;. The provision that 'He shall be paid increments in the time scale at the time intervals,as fixed by the Government from time to time 'in the first proviso was added by an amendment

(3.) COUNSEL wanted me to examine this question in the light of certain decisions of the Supreme Court.He submitted that all persons appointed under R.9(a )(i)whether they came from another service and whether they were members of another service and those who are appointed on the advice of the Employment Exchange are doing the same work and so they are entitled to same pay on the basis of equal work and equal pay.The question is whether this principle can be extended in the matter of increment and whether this Court can say that the second proviso to R.9(a )(v)of the Rules is unconstitutional.The question regarding increments depends not only on that fact that a Government servant is doing a work of the same kind and nature as that of a member of the service who has got entitlement to increments.This aspect of the matter was considered in the decision of this Court reported in 1989(2)KLT 155(Mohammedkutty v.State of Kerala ).This Court said that appointment under R.9(a )(i)of the Rules is clear that the appointment is made only for a limited period which can be 90 days or 180 days.It will have the minimum time -scale of pay.Certainly the appointment does not carry entitlement for continuous service for an indefinite period of time.This Court said thus: "If the appointment has to be at the minimum of the time scale only,there is no question of any increment being granted on completion of one year of service,as is obligatory under R.31 and 33 of Part I,Kerala Service Rules.It is,therefore,clear that provisional appointees are not entitled to annual increments.The period of service,by itself,would not entitle regular employees to increment.There is no reason why the period of service alone shall entitle a provisional employee to increment in preference to more competent,qualified and meritorious employees.Even:in the case of a probationer,the period of his service will be counted for purposes of increment under R.31 and 33(a)of Part I,Kerala Service Rules only if his appointment is followed by confirmation.It is not as if provisional appointees will be entitled to increment as a matter of course on completion of the period of one year of service,without any of the hurdles as are contemplated by R.31 and 33(a ),"Part I,Kerala Service Rules " ;.