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Judgment
Abdul Gafoor, J.—The grievance now voiced before us at the time of oral arguments by the counsel for the appellant is that because of the fault on the part of the appointing authority and the Government in not giving him a posting order on first appointment, he is left with a situation of earning only less than 10 years service, which will not entitle him for superannuation pension in terms of Rule 57 of Part III of the Kerala Service Rules. It is admitted by the appellant that he was advised for appointment as Assistant Surgeon by the Public Service Commission on 6-1-1993. Consequent on the advice he was appointed. The appointment order is not produced. It is submitted that appointment order was issued on 20-1-1993. According to him, he was suffering from prolapsed of inter vertebral disc. He applied for time for joining duty. That shows that he did know that there was a provision for extension. Then he was also bound to know how much time maximum shall be granted. Going by the Circular, the maximum period allowable is only 45 days. Accordingly, he was liable to join duty, at any rate, on 5-3-1993. It is submitted that the communication in that regard, Ext. A2, was dispatched from the Directorate on 11-3-1993 and it was received by him only on 19-3-1993. His effort to get a posting order materialised only far later, on 20-6-2002 when he could join duty. It is submitted that going by the definition of "duty" as contained in Rule 2(6)(e) in Part I of the Kerala State and Subordinate Services Rules, the period during which one is waiting for posting orders can be treated as duty.
Even if this contention is accepted, it will not enable him to earn pension on the strength of that period during which he was really out of service. Going by rule 57 Part III Kerala Service Rules, the amount of pension that may be granted is determined by the length of "service" as setforth in Rules 64 to 70. "Service" is defined in Rule 12(15) of Part I K.S.& S.S. Rules and also in Rule 2(f) of the Kerala Civil Service (Classification, Control and Appeals) Rules. The notes to the Rules say that "where the context so requires, ''service'' means the period during which a person holds a post or is a member of a service". Unless one holds a post initially as a probationer and thus becomes a member of service, it cannot be taken that one is having service. In the absence of such required number of years of service, one cannot earn pension even if the period is treated as duty in terms of Rule 2(6)(e) of Part I of K.S. & S.S. Rules. In such circumstances, the view taken by the learned single Judge is not liable to be interfered with.
Appeal fails, dismissed.