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Judgment
Justice A.M. Shaffique
Petitioner challenges Exhibits P4, P7 and P12. Petitioner was temporarily appointed as Draftsman Grade-II in the Centre for Earth Science Studies as per Ext. P1. After conducting an interview he was recommended for appointment to the post of Draftsman Grade-II. He was regularised in the said post as per Ext. P3 with effect from 05.01.1980. By Ext. P4 office order he was informed that the period of service rendered by him from 05.01.1980 to 19.05.1982 will be treated as adhoc appointment and this period will be counted for all purposes except for increment and seniority. The challenge as against Ext. P4 is with reference to the denial of increment and seniority with effect from 05.01.1980 up to 19.05.1982. The petitioner challenged Ext. P4 by submitting a representation to the Executive Committee on 03.09.1996 by way of Ext. P5.
Since nothing was done in the matter he filed O.P. No. 16145/1996 before this Court and by judgment dated 15.10.1996, this Court directed his representation to be considered in accordance with law.
By Ext. P7, the Chairman of the Executive Committee disposed of his representation holding that he was not eligible for relief of regularisation of service from 05.01.1980. This matter was again challenged by him by filing O.P. NO. 3148/1997 and by Ext. P9 judgment this Court directed the petitioner to submit a representation to the Director and there was a further direction to consider and dispose of the matter. Ext. P10 is the representation and by Ext. P12 the Director also confirmed the view taken by the Executive Committee. Hence the writ petition.
The 1st respondent has filed a counter affidavit contending that since his appointment was only on adhoc basis for a period of 89 days and on coming to know that continuance of the petitioner beyond 89 days was without any orders and in the absence of regularisation of his service by the Executive Committee the then Director of CESS had superseded Ext. P3 order and issued Ext. P4 order appointing the petitioner on regular basis with effect from 20.05.1982. It is stated that while issuing Ext. P3 the then Director had overlooked the fact that the recruitment of the petitioner had become effective only after following the procedure laid down as per rules. Hence they supported Ext. P4, P7 and P12.
The question to be considered in this writ petition is whether Ext. P4 order restricting the petitioner''s regular appointment with effect from 19.05.1982 is valid or not. Learned counsel appearing for the petitioner contended that Ext. P3 order passed by the Registrar regularising his appointment with effect from 05.01.1980 was perfectly in order and not liable to be interfered by any authority. According to him the Executive Committee had exceeded its jurisdiction while interfering with Ext. P3 order. The counsel refers to Rule 4 of the Service Rules Part 1 in respect of Part 1 General for the CESS which reads as under:
Rule 4 (i): Appointing Authority : means the authority competent to make appointments under the rules of the Centre.
(iv): Competent Authority: means, unless otherwise specifically provided, the Director.
(vi): Director: means the Director of the Centre
(vii): Duty: includes:
i) period of probation declared to have been completed satisfactorily;
ii) Joining time; and
iii) All periods which are specifically ordered to be treated as duty by the appointing authority.
According to him, the Registrar had issued the order based on direction issued by the Director who is the competent authority to make the appointments, which cannot to superseded by the Executive Committee. Counsel further relies upon the Rule 45 of Service Rule which reads as under:
Rule 45: Unless otherwise specifically provided, the service that qualifies for increment shall qualify for gratuity.
Note: The Committee shall be competent to declare any other service as service qualifying for gratuity.
The above Rule indicates that the service that qualifies for increment shall qualify for gratuity and that the committee shall be competent to declare any other service as service qualifying for gratuity. In the present case, since the gratuity is paid with effect from 05.01.1980 as can be seen from Ext. P12 for the purpose of increment and seniority alone, the contention is that the period of service cannot be restricted as indicated in Ext. P4. Learned counsel also referred to the full bench judgment of Punjab and Haryana Court in Kesar Chand Vs. State of Punjab and Others, . In the said case, the petitioner superannuated from service on 31.10.1977 without any break from the date of joining service. When pensionary benefit was sought for, the petitioner''s qualifying service for pension and gratuity was computed from 15.08.1972, the date from which he was brought on the regular cadre. He did not have a regular service of 10 years on the date of superannuation. It was contended that the service in the work-charged establishment does not count for pension under Rule 3.17(ii) of the Punjab Civil Service Rules Vol. II. On a perusal of the above judgment, it can be seen that what was considered in the said judgment was whether temporary or officiating service under the state government can be reckoned for determining the qualifying service. In that view of the matter the full bench held that it is logical that the period of service spend by an employee in work-charged establishment before his regularisation has not been taken into consideration for determining his qualifying service. But the classification which is sought to be made among government servants who are eligible for pension and those who started as work-charged employees and their services regularised subsequently and others is not based on intelligible criteria and therefore not sustainable in law. I do not think that the facts involved in the present case can be made applicable to the above judgment.
The question to be considered is to whether having issued Ext. P3 it is open for the first respondent to have issued Ext. P4 treating the period from 05.01.1980 to 19.05.1982 as adhoc appointment. The appointment is made by the selection committee and going by Ext. P3, the interview was conducted by the selection committee on 20.05.1982 and he was found suitable for appointment. Apparently they recommended his appointment and the Director through the Registrar has regularised his service with effect from 05.01.1980. After about an year Ext. P4 is issued in supersession of the office order Ext. P3 stating that his regular appointment is only from 20.05.1982. Going by the Rules on the basis of which legal right is claimed by the petitioner I do not think that there is any illegality on the part of the first respondent to have rectified a mistake which they have committed by issuing Ext. P3. Apparently the interview is held only on 20.05.1982 for the said post and until such time his appointment was purely on temporary basis that too for 89 days as is evident from Ext. P1. It is not the case of the petitioner that his appointment was regularised beyond 89 days by issuing any other order. Admittedly, it was a temporary appointment for 89 days and he was not issued with any other order until he was interviewed on 20.05.1982. As such, if there is any mistake in the order of appointment it is liable to be corrected. But for the purpose of calculating the gratuity and other benefits except for increment and seniority the length of service is computed from 05.01.1980 the date on which he was appointed as a temporary employee. In that view of the matter, I do not think that the orders passed by first respondent by way of Ext. P4, P7 and P12 suffers from any illegality. In fact, in Ext. P12 it is clearly indicated that the Executive Committee did not approve the proposal of the petitioner or similarly placed persons to participate in the interview for regular appointment along with employment exchange candidates. He was selected in the interview and appointed by the then Director. It is also stated that the provisions of Kerala Service Rules will have no application to the employees of CESS and only government orders which are adopted by the Executive Committee of CESS are applicable to the employees of CESS. And therefore it is open for the Executive Committee of CESS to declare any service of an employee as service qualifying for gratuity. It is in that view of matter that though the petitioner''s appointment was effective only from 20.05.1982, the period from 05.01.1980 was reckoned for calculating gratuity. I do not find any illegality in the orders passed and in that view of the matter writ petition is dismissed.