CHELLAPPAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE only question that arises for determination in this Original Petition is whether the petitioner, a member of the Kerala Last grade Service, now working as Hospital Attendant Grade I, E S I. Hospital, ezhukone, Quilon District, who has been asked to retire as per the original of ext. P9 dated 29-10-1979 and Ext. P11 dated 25-2-1980, is entitled to the benefit of R. 60 (b) of the K S R. Part I.

(2.) THE petitioner was recruited through the Employment exchange and appointed temporarily as Hospital Attendant Grade II in the e. S. I. , Hospital. It is not disputed that the petitioner has been in continuous temporary service as Hospital Attendant Grade II from 23-12-1969, and his service was regularised as per G O. (P) 43/77/gad dated 8-2-1977. While so, the petitioner was informed by the Director of Health Services by his letter dated 29-10-1979, a true copy of which is Ext. P9, that the petitioner was one among the hospital attendant Grade II appointed on a temporary basis through the employment Exchange between 1-4-1968 and 31-3-1971, that the temporary appointments made to the post of Hospital Attendants Grade II in between 1-4-1968 and 31-3-1971 through Employment Exchange have been regularised only with effect from 8-12-1977 in terms of G O. (P) 43/77/gad dated 8-2-1977, true copy of which is said to be Ext. P8, and that all those employees whose services are regularised after 7-4-1970, will retire on attaining the age of 55 years and therefore the petitioner will have to retire on the date on which he attains the age of 55 years. Aggrieved by this, a representation was made by the petitioner to the Government on 11-12-1979, a true copy of which is Ext. P10. No reply was received by the petitioner from the Government; but he received a reply from the District Medical Officer, Quilon, stating that as per g O. (P) 610/77/ Fin. , dated 7-104971 those last grade employees in service on 7-4-1970 alone are entitled to be in service till they attain the age of 60 years and that as the services of the petitioner was regularised on 8-2-1977 the petitioner is not entitled to the benefit given under the Government Order mentioned above.

(3.) THE dispute centres round the interpretation of the word 'service' appearing in R. 60 (b) of Part I K. S. R. Admittedly, the word 'service' has not been defined in the K. S. R. It is not disputed that the kerala Service Rules, Part I, will not apply to a person employed in the contingent or work establishment. Chapter II of Part III K. S. R. deals with qualifying service. R. 9 of Chapter II K. S. R. reads: "9. Beginning of service. (a) Except for compensation gratuity, an employee's service does not qualify till he has completed 18 years of age. (b) In other cases, unless it be otherwise provided by special rule or contract' the service of every employee begins when he takes charge of the office to which he is first appointed. " Admittedly, the petitioner is neither governed by any special rule, or contract referred to in R. 9 (b ). As stated earlier, it is common case, that the petitioner has been in continuous service from 23-12-1969. No doubt, from 23-12-1969 till he was regularised on 8-2-1977 he was in temporary service. THE important question for further consideration is whether service mentioned in R. 60 (b) includes temporary service also or in otherwords it excludes temporary service. A reading of the rule as a whole will clearly indicate that there is nothing in the rule to show or indicate that the word 'service' mentioned therein excludes temporary service and that it applies only to permanent or regular service. If that is so, there can be no doubt that the petitioner herein, who was in service as last grade officer on 7-4-1970, could claim the benefit under R. 60 (b ). , In Bhaskaran v. State of Kerala, 1981 klt. 633, a learned judge of this Court, Khalid J. , almost in a similar case, had occasion to consider the meaning of the word 'service'. In that case the dispute was regarding the actual ranking of the petitioner in the seniority list. While fixing his seniority, the concerned authorities refused to take into consideration his services before he was regularised on 13-6-1957, THE authorities took the stand that the services would be counted only after he was regularised on 13-6-1957 and not before. On a consideration of all the aspects, the learned judge held that the only word used is 'service' which means that the service of any kind would entitle the petitioner for being promoted if he has the requisite service to his credit.