The main legal point established in the judgment is that the entitlement to increment based on temporary service is subject to specific conditions, including the same category of post, scale of pay, qualification, and method of appointment, as outlined in Government Decision No. 2 under R.33 Part I K.S.R.

K.A. Abdul Gafoor, J.

Both the petitioners in this case had temporary service under R.9(a)(i) on advice through Employment Exchange, as High School Assistants. Their services were terminated on the expiry of their provisional appointments. Later, both of them were recruited through Public Service Commission as Primary Departmental Teachers, a post lower than to that of High School Assistant (H.S.A.) on 28.1.77 and 21.2.1977 respectively. They continued in the post as per orders In force. They were promoted on regular basis as H.S. As. as per Exts. P1 and P2 dated 23.9.77 and 7.1.78 respectively. Thus, they became H.S. As. Taking the temporary service that they had put in even much prior to the regular appointment in the lower post of Primary Departmental Teacher, the increment due to the petitioners in the promoted post of H.S.A. was sanctioned. Later the error in reckoning the temporary service as H.S.A. which the petitioners had put in before their entry in service in the lower category of P.D. teacher on regular basis, for the purpose of granting increment after promotion as H.S. As from the lower post was detected and Exts. P3 and P4 were issued directing refixation of increment and pay without reckoning that temporary service. It was also directed that the excess pay drawn by the petitioners from 1978 or 1979 onwards by reason of the added increment on the strength of the said temporary service, shall be got refunded to the department. The petitioners aggrieved by Exts. P3 and P4, submitted representations before Government, Those representations were disposed of by Exts. P13 and P14 upholding Exts. P3 and P4 on the reason that in terms of Government Decision No. 2 under R.33 Part I K.S.R. the petitioners are not entitled to count their earlier temporary service before reqular entry in the department in a lower post, for sanctioning increment in a higher post after promotion from such lower post.

2. Assailing Exts. P3, P4, P13 and P 14, the petitioners submit that they are entitled to increment in terms of the Government decision which reads as follows:

"Provisional service on regularisation with or without break in the same category of post will be treated as officiating service ab initio for the limited purpose of granting increments. Provisional service followed by a regular appointment with or without break in the same category of post will also be treating as officiating service ab-initio for the limited purpose of granting of increments. The term "same category' of post for the purpose of denotes posts 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. (emphasis supplied)

3. In order to attract the application of the first part of the said statutory provision, the provisional service put in by the incumbent concerned shall be later regularised. The specific word in the Government decision is 'provisional service on regularisation' will be counted for granting increment. The petitioners have no case that the provisional service put in by them before 1977 had, as any time, been regularised. Therefore, the first part of the Government decision does not apply in their case. The second part of the Government decision postulates that provisional service shall be followed by a regular appointment in the same category whether with or without breaks. After termination of the provisional service as H.S.A., what followed was their regular service as P.D. teachers and not as H.S. As. Therefore, what followed was not regular appointment "in the same category of post". Therefore, second part also does not apply to them.

4. There is an added reason also in the second paragraph of the said Government decision. The term "same category" is further defined by that part of the Government decision that the post should carry the same or identical scale of pay and qualif