K.M.JOSEPH, J.
The petitioners are applicants before the Kerala Administrative Tribunal hereinafter referred to as the Tribunal. They filed O.A.No.3060 of 2013, challenging Annexure-A9 order which was passed on Annexure-A8 representation.
2. The petitioners are Junior Public Health Nurses working in the Health Services Department. They were all appointed on a regular basis on December 1997-1998. Prior to the regular appointments through Public Service Commission they were appointed under Rule 9(a)(i) of the KS & SSR. According to them, they were having 7 years of temporary service in the Department. Some provisional hands like the petitioners had approached the Hon'ble Supreme Court and the Court had ordered their regularisation by Annexure-A1 order dated 09.05.1995. Again reliefs were granted to few others similarly placed by Annexure-A2 order dated 11.07.2001. The petitioners approached this Court by filing W.P.(C).No.7203 of 2001 and the same was disposed of by Annexure-A3 judgment directing the Government to consider their representation to reckon their provisional service for various service benefits. The same was rejected by Annexure-A4 order dated 26.03.2007 that was unsuccessfully challenged by them by filing Writ Petition No. 16328 0f 2008. The above writ petition was dismissed by this Court as per Annexure-A5 judgment dated 05.06.2008. The said decision was affirmed by the Division Bench of this Court by Annexure-A6 judgment dated 3.11.2008. A Special Leave Petition was filed before the Hon'ble Supreme Court against Annexure-A6. It appears leave was granted and the case was numbered as C.A.4001 of 2010. But the same was finally dismissed as not pressed along with a few other similar cases and the following orders were passed by the Apex Court.
“After addressing us for some time, learned counsel appearing for the appellants/petitioners seek leave to withdraw these appeals/special leave petitions with liberty to make a comprehensive representation to the authorities concerned for consideration of their claim. Accordingly, appeals/special leave petitions are dismissed as not pressed.
We clarify that we have not expressed any opinion on the merits of these appeals/special leave petitions. As and when the representations are made, the same shall be considered on their own merits, uninfluenced by the withdrawal of these appeals/special leave petitions, as expeditiously as possible.”
3. Thereafter, the petitioners preferred Annexure -A8 representation before the Government, but it was rejected by the Government by Annexure-A9. The Tribunal found no merit in the original application. It was found that the provisional service cannot be counted for claiming service benefits in the light of the provisions contained in Rule 9(a)(i) of the KS & SSR. It was also found that seniority could not be based on provisional service in view of provisions under Rule 27 of the KS & SSR and further that with the withdrawal of the special leave petition, the judgment of the High Court has become final and Government was bound by the said judgment. The Tribunal took note of the fact that the representation of the applicants should be considered uninfluenced by the withdrawal of special leave petition. As far as Annexures -A1 and A2 orders are concerned, the Tribunal was of the view that the Apex Court has not laid down any general principles of law to be followed as a precedent. Finding that there was no merit, the application was accordingly rejected. Feeling aggrieved this original petition is filed under Article 227.
4. we heard the learned counsel for the petitioners and also the learned Government Pleader.
5. What is pressed before us by the learned counsel for the petitioners is Annexure -A9 stating that the Government has failed to consider the effect of decision No.2 of Rule 33 of Part I of the Kerala Service Rules. Learned counsel for the petitioners would point out while it is true that the said decision was deleted with effect from 01.10.1994, insofar as the petitioners had provisional service at the time when the decisions were in force, they would be entitled to the benefit of the same. The Government decision No.2 as it stood till it was deleted read as follows:
“GOVERNMENT DECISION NO.2 Provisional service on regularisation with or without break in the same category or post will be treated as officiating service ab initio for the limited purpose of granting of increments. Provisional service followed by a regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting of increments. The term 'same category' of post for the purpose denotes post satisfying the following conditions:-
(i) The posts should carry the same or identical scale of pay,
(ii) The qualification and method of appointment should be the same, and
(iii) The post should fall in the same service.
The above decision shall be deemed to have come into force with effect from 1-11- 1956 but the monetary benefit thereof will be admissible only with effect from 24.7.1967.”
6. The learned government Pleader however pointed out that insofar as the petitioners are concerned, when they were advised for regular appointments, the said decision was not available on account of its deletion in 1994. Hence, it is contended, that the petitioner cannot claim benefit of the same.
7. We notice in fact that the issue is no longer res integra and it stands concluded against the petitioners by virtue of the judgment of a Division Bench in Writ Appeal Nos.94 & 67 of 2005. In fact the Division Bench rendered the said judgment overruling the judgment of the learned single judge in O.P 26284 of 2002 which in fact is reported as K.M.Majeed v. State of Kerala and Others (2004 (2) KLT Page 54 S.N. 62). In the light of this development, we are also not in a position to accede to the request of the petitioners, which was pressed before us, that the benefit of decision No.2 to Rule 33 should have been granted and it was not even considered by the Government, as the issue does not survive for consideration. The original petition will accordingly stand dismissed.
K.M.JOSEPH JUDGE mns/ A.K.JAYASANKARAN NAMBIAR JUDGE