O. Thankappan vs The District Collector and Others

K.G. Balakrishnan, J.—Petitioner is a Chainman in the Office of the Special Tahsildar (LA). According to him he entered service as a daily rated Chainman in December, 1968. While working as a daily rated Chainman, the Government created some regular posts of Chainman and to fill up these vacancies, contingent and daily rated Chainman were appointed on provisional basis. The vacancies were created on 13th February 1970, but the actual appointment was by order dated 21st May 1970. Petitioner joined service pursuant to Ext. P-1 order. Petitioner further contends that the Government have issued orders permitting similar last grade employees who have been provisionally appointed before 7th April 1970 to continue in service upto 60 years. Petitioner sent a representation on 1st June 1992 requesting to permit him to continue in service upto 60 years. This representation was rejected vide Ext. P-4 order. The reason for rejection of Petitioner''s representation is that he was appointed only after 7th April 1970. Therefore, the Petitioner challenges Ext. P-4 and prays that he may be allowed to continue upto 60 years in service.

A counter-affidavit has been filed by the first Respondent wherein it is stated that the Petitioner is to retire at the age of 55 years. He was neither a provisional employee nor a regular employee as on 7th April 1970 and therefore he is not entitled to get the benefits under Rule 60(b) of Part-I Kerala Service Rules. On 13th December 1970, certain posts of regular Chainman were created and the existing contingent and daily rated Chainman were appointed on provisional basis. There was no lapse on the part of the Government. Petitioner joined duty as provisional Chainman only on 29th May 1970. G.O. (P) 564/89/Fin., dated 29th November 1989 deals with the case of full time contingent Chainman who were in service during 1st April 1968 to 7th April 1970. Petitioner had to retire on 31st March 1993.

I heard the Petitioner''s counsel and also the Government Pleader. Under Rule 60(b) of Part-I K.S.R. only those last grade servants who were in service as on 7th April 1970 are allowed to continue upto 60 years. Thereafter, the Government issued various orders by which certain other persons were also entitled to the benefit of Rule 60(b) of Part-I K.S.R. Ext. P-2 is one such order. By Ext: P-2 order, it was made clear that all full-time contingent employees who were appointed as provisional employees during the period from 1st April 1968 to 7th April 1970 and who are still continuing in service shall be treated as having been absorbed into regular establishment with effect from 7th April 1970 and they are entitled to the benefit of Rule 60(b) of Part-I K.S.R. In order to avail the benefit of Ext. P-2 Government Order, it must be established that the Petitioner was a full-time contingent employee on or before 7th April 1970. Subsequently, Government had issued orders stating that part-time employees who were appointed after 1st April 1968 will also be deemed as full-time contingent employees for the purpose of the benefit under Rule 60(b). In the instant case, Petitioner was admittedly a daily rated Chainman prior to 29th May 1970. So as on the date i.e., 7th April 1970, he was neither a part-time contingent employee nor a full-time contingent employee. The counsel for the Petitioner drew my attention to a decision reported in Kartar Singh v. State of Pepsu AIR 1955 Pepsu 25 and contended for the position that a daily rated person also would come under the contingent staff. I am not inclined to accept this contention. In the above decision it is only explained that the contingency staff are employed not in regular employment but employment merely incidental to an office for the period during which they have actually worked as no bill for any other period can be certified for payment.

My attention was drawn to Anr. decision in O.P. 7249 of 1989 and contended that a daily rated Chainman on 26th December 1963 was held to be person entitled to continue in service upto 60 years. The facts given in that judgment would show that the Petitioner therein was appointed initially on 26th December 1963 and he was reappointed on 13th July 1964 and while continuing he was appointed against an existing vacancy on 28th February 1971. The nature of the appointment as on 7th April 1970 is not clear and the learned Judge held that the Petitioner''s appointment therein Was as a contingent employee. In the present it cannot be said that the Petitioner was appointed as a contingent employee as he himself admits in the Original Petition that he was a daily rated Chainman till 21st May 1970.

In the result, I hold that the Petitioner is not entitled to continue in service upto 60 years. Original Petition is without any merit and the same is dismissed.