THANKAMMA Vs. DIST MEDICAL OFFICER

JUDGEMENT

(1.) The petitioners in these cases were originally appointed as Aayahs in Family Planning Department on a part-time basis on a payment of honorarium of Rs. 20 per month in the years 1965 and 1967. The honorarium was raised from time to time. Though the appointment was originally for a definite period, they continued to work in the same capacity. Between the years 1975 and 1979 the petitioners were appointed as part-time contingent employees. Some of them were promoted as hospital attendars, Grade II in the year 1978 and some in the year 1979. When they were asked to retire on attaining the age of 55 years, they have come to this Court with these petitions contending that they are entitled to continue in service until they attain the age of 60 years. The learned single Judge has referred these cases to the Division Bench on the ground that important questions of law have arisen for consideration in these cases.

(2.) The petitioners claim that they are governed by R.60(b) of Part I of the Kerala Service Rules. The said Rule provides that officers in the last grade service on 7th April, 1970 will retire on the afternoon of the last day of the month in which they attain the age of 60 years provided that this benefit will be available to them only as long as they continue to be in the last grade service as defined in R.12(16A). The status of the petitioners as on 7th April, 1970 is therefore required to be examined for deciding the question as to whether they are entitled to the higher age of retirement of 60 years. As on 7th April, 1970, the petitioners were holding employment as part-time Aayahs in the Family Planning Department for which service they were being paid honorarium. R.2(ii) of Part I of the Kerala Service Rules provides that the rules shall apply to every person in the whole time employment of the Government other than a person so employed in the contingent or work establishment. In other words, the rules do not apply to persons employed in contingent or work establishment and the rules also do not apply to a person who is not in the whole time employment of the Government. The question for consideration is as to whether the petitioners can be regarded a persons who were in the whole time employment of the Government on the 7th of April, 1970, in order to claim the status of officers in the last grade service on that date. The orders of employment issued in favour of the petitioners make it clear that they were appointed on a part-time basis on payment of a fixed amount of honorarium. Sri. Madhusoodanan, learned counsel for the petitioners, contended that notwithstanding the fact that the appointment of the petitioners were made as part-time Aayahs, they must be regarded as persons who were in whole time employment of the Government having regard to the peculiar facts and circumstances of these cases. In support of this contention he relied upon the averments made in the original petition. Ia para, 2 of the petition the petitioners have averred as follows:

(3.) It is necessary to point out that neither in Para.2 nor in ground No. 2 of the petition no such averment is made by the petitioners. As the petitioners themselves have not pleaded in clear terms that they had become full-time Government employees, the question of the respondents controverting the case of the petitioners in this behalf did notarise. Besides, we are not inclined to accept the claim of the learned counsel for the petitioners that they may be regarded as whole time employees merely on the ground that they actually worked from 8 a.m. to 5 p.m. They were employed expressly as part-time employees on payment of fixed honorarium. The wordings in the order of appointment are clear to the effect that the appointment is on a part-time basis. When the appointment itself was on part-time basis and when that appointment has not been modified or altered in any manner thereafter, it is not possible to draw the inference that the petitioners became whole time employees even assuming for the sake of arguments that there is truth in the submission of the petitioners that they in fact worked from 8 a. m. to S p. m. Hence we must hold that the petitioners have failed to establish that they were in whole time employment of the Government, as the facts clearly disclose that they were part-time employees of the Government. R.2(ii) of Part I of the Kerala Service Rules applies and therefore none of the provisions of the K.. S. R. were applicable to them on 7th of April, 1970. Consequently it follows that no part of R.60 of Part I of the Rules applied to the petitioners in these cases on the 7th of April 1970. That being the position, the petitioners cannot claim statuses officers in the last grade service on the 7th of April, 1970. As they were not in the last grade service on the 7th of April, 1970, they were not entitled to the benefit of higher age of retirement by invoking clause.(b) of R.60 of Part I of the Rules.