ALAVI Vs. STATE OF KERALA

JUDGEMENT

(1.) The Writ Appeal is directed against the Judgment of C. S. Rajan, J. in O. P. 299 of 1997 dated 19th February 1998 dismissing the Original Petition filed by the appellant to quash Ext. P6 and for a mandamus directing the respondents to retain him in service till he attains the age of 60 years in terms of R.60(b) Part I of the Kerala Service Rules (for short 'the Rules'). The claim made by the appellant in the O. P. was opposed by the State by filing a counter affidavit. The learned Single Judge dismissed the Original Petition on the ground that the appellant petitioner is not entitled to the benefit of R.60(b) Part I of the Rules since he was appointed provisionally by order dated 31st March 1970 under R.9(a)(i) of the Kerala State and Subordinate Services Rules (for short 'the K. S. and S.S.R.'). The learned Judge, for dismissing the Original Petition, has followed the Judgment of this Court in W. A. 1566 of 1996 wherein it was held that provisional appointees cannot claim the benefit under R.60(b) Part I of the Rules.

(2.) The Writ Appeal was admitted on 21st May 1998. Mr. Kaimal would submit that the appellant was continuing in service as Masalchi in last grade service on a provisional basis as Ext. P2 appointment order dated 7th November 1969. He was appointed as Peon, also in the last grade, as per Ext. P4 order dated 24th July 1970. There upon, he got relieved from the post of Masalchi on 2nd August 1970 and joined duty as Peon on 3rd August 1970 without break or interruption. According to Mr. Kaimal, the appellant, being a last grade employee and having been in service in the last grade on 7th April 1970, is entitled to continue in service till attaining the age of 60 years and that the denial of employment and the benefit of R.60(b) Part I of the Rules by the State Government on the ground that he had attained 55 years in March 1997 is illegal, unlawful and, therefore, he should also be extended the benefit of R.60(b) Part I of the Rules as well. Mr. Kaimal would further submit that R.60(b) Part I of the Rules only stipulates that last grade employees in service on 7th April 1970 and continuing in last grade service shall be retained till they attain the age of 60 years. The said Rule does not qualify 'service'. Hence, the only question is whether the employee was in the last grade service on 7th April 1970 and whether he continues in the last grade. Appellant was appointed as Masalchi in the last grade service on 7th November 1969 and later appointed as Peon on 24th July 1970. Therefore, the benefit of R.60(b) Part I is applicable to the appellant.

(3.) Learned Government Pleader would submit that since the appointment of the appellant was purely temporary under R.9(a)(i) of the K. S. and S.S.R., the appellant would not be entitled to the benefit of R.60(b) Part I of the Rules and, therefore, the appellant is not eligible to get the benefits provided there under. This apart, the appellant was not in the post on regular basis on 7th April 1970. In support of his contention, learned Government Pleader would rely on the Note to R.3 of Part I of the Rules. The said Note reads as follows: