OMANA Vs. STATE OF KERALA

JUDGEMENT

(1.) Denial of the claim for second Higher Grade on completion of 15 years of service, also reckoning the provisional service rendered by the petitioner prior to commencement of the regular service, at the same time effecting cancellation of the benefit already given towards the first Higher Grade benefit on completion of 8 years, as ordered by the authorities of the State and upheld by the Kerala Administrative Tribunal, is sought to be challenged by the petitioner by filing this original petition.

(2.) The factual matrix reveals that the petitioner, on coming out successful in the process of selection conducted by the PSC to the post of Staff Nurse, came to be appointed as Junior Public Health Nurse Grade II on 18.8.1992. It is stated that, prior to her joining regular service as above, she had worked on provisional basis as a Staff Nurse for two different spells between 14.02.1987 to 01.01.1989 and 30.5.1989 to 17.08.1992. After joining the service on regular selection, admittedly the petitioner did not wait for declaration of probation and sought to proceed on 'leave without allowance' (even before six months after joining duty) by submitting an application in this regard, so as to reap the fortunes abroad. Considering the application preferred by the petitioner, LWA for 5 years was granted initially, which was subsequently extended by another spell of 5 years, thus totaling 10 years, during the period from 3.2.1992 to 19.1.2003. After completion of the leave as above, the petitioner joined back in service on 20.1.2003. It was thereafter, that the probation of the petitioner was declared on 9.2.2005. After declaration of probation as above, the petitioner applied for regularization of the provisional service in terms of the stipulations under Rule 33 of Part I KSR (dealing with the service reckonable for the purpose of granting increments) Since the application preferred by the petitioner was considered on time, stating that there was a difference in the scale of pay and as such the benefit contemplated under Rule 33 could not be extended to petitioner herein, she was constrained to approach this Court by filing W.P.(C). No. 9281/2007; which was disposed of, directing the matter to be considered by the concerned authority in the light of the law declared by this Court as per decisions reported in, 1996 (2) KLT 555 Hussain v/s. Kerala Water Authority and : 2005 (4)KLT 987 State of Kerala v/s. Ponnamma (which virtually is to the effect that, if at all there was any difference/variation of the pay by virtue of subsequent revision of the pay scales, it was never to be a bar in giving effect to the provision under Rule 33). The matter was accordingly considered by the competent authority, who passed Annexure A1 order on 15.3.2013, whereby, the provisional service rendered by the petitioner was reckoned for the purpose of granting the first Higher Grade on completion of 8 years and the due amount was disbursed to the petitioner.

(3.) Later, on completion of 15 years, having already reckoned the provisional service as part of service for granting the 1st Higher Grade benefit, the petitioner filed Annexure 2 application for granting the 2nd Higher Grade. The said application was forwarded by the superintendent to the 3rd respondent along with Annexure A3 dated 10.10.2014. The matter was considered by the 3rd respondent who observed that, reckoning of provisional service of the petitioner was not in conformity with the statutory provisions; particularly the mandate under Para 5 of Appendix XII A and held that, she was not entitled to have any benefit either in respect of the claim for the First Grade promotion or in respect of the Second Grade as well. The 3rd respondent also observed that the position was already conveyed on two occasions earlier and that there was absolutely no basis for having forwarded it again; clarifying that the question of reckoning the provisional service would arise only in cases where regularization was given prior to 1.10.1994. This was sought to be challenged by filing O.A. (EKM). No. 12/2015 before the Tribunal. After hearing both the sides, the Tribunal categorically held that there was no dispute with regard to the factual position that the 'leave without allowance' was availed and obtained by the petitioner/applicant before completing the period of probation and that, by virtue of paragraph 5 of Appendix XII A Part I KSR, the past service of the applicant was liable to be treated as erased out. The Tribunal also arrived at a finding that, since the probation itself was completed, declaring the same only after rejoining duty on 20.1.2003 (with declaration of probation on 9.2.2005); the regular service could be treated as commenced much after 1.10.1994. It was accordingly that the relief sought for by the applicant was declined to be given and the original application was dismissed as per Ext. P2 order dated 13.01.2015.