The main legal point established in the judgment is that the word 'service' in R.60(b) of the K S R includes temporary service and entitles the petitioner to the benefit conferred under the rule. The court also emphasized that executive orders cannot override, modify, or amend R.60(b).

1. The only question that arises for determination in this Original Petition is whether the petitioner, a member of the Kerala Last Grade Service, now working as Hospital Attendant Grade I, E S I. Hospital, Ezhukone, Quilon District, who has been asked to retire as per the original of Ext. P9 dated 29-10-1979 and Ext. P11 dated 25-2-1980, is entitled to the benefit of R.60(b) of the K S R. Part I.

2. The petitioner was recruited through the Employment Exchange and appointed temporarily as Hospital Attendant Grade II in the E.S.I., Hospital. It is not disputed that the petitioner has been in continuous temporary service as Hospital Attendant Grade II from 23-12-1969, and his service was regularised as per G O. (P) 43/77/GAD dated 8-2-1977. While so, the petitioner was informed by the Director of Health Services by his letter dated 29-10-1979, a true copy of which is Ext. P9, that the petitioner was one among the hospital attendant Grade II appointed on a temporary basis through the Employment Exchange between 1-4-1968 and 31-3-1971, that the temporary appointments made to the post of Hospital Attendants Grade II in between 1-4-1968 and 31-3-1971 through Employment Exchange have been regularised only with effect from 8-12-1977 in terms of G O. (P) 43/77/GAD dated 8-2-1977, true copy of which is said to be Ext. P8, and that all those employees whose services are regularised after 7-4-1970, will retire on attaining the age of 55 years and therefore the petitioner will have to retire on the date on which he attains the age of 55 years. Aggrieved by this, a representation was made by the petitioner to the Government on 11-12-1979, a true copy of which is Ext. P10. No reply was received by the petitioner from the Government; but he received a reply from the District Medical Officer, Quilon, stating that as per G O. (P) 610/77/ Fin., dated 7-104971 those last grade employees in service on 7-4-1970 alone are entitled to be in service till they attain the age of 60 years and that as the services of the petitioner was regularised on 8-2-1977 the petitioner is not entitled to the benefit given under the Government Order mentioned above.

3. The petitioner seeks to quash Ext. P9 and Ext. P11 on the ground that Exts. P9 and P11, which are executive orders, cannot override R.60(b) framed under Part I K S R. It is clear from the rule that the petitioner, who was in service as a last grade servant on 7-4-1970, is entitled to the benefit conferred thereunder.

4. The stand taken by the counsel for the respondents is that those last grade officers whose services were regularised on or before 7-4-1970 alone can claim the benefit given under R.60 (b), that as the petitioner was only in temporary service on the relevant date he is not entitled to claim the benefit under the said rule.

5. The dispute centres round the interpretation of the word 'service' appearing in R.60 (b) of Part I K. S. R. Admittedly, the word 'service' has not been defined in the K. S. R. It is not disputed that the Kerala Service Rules, Part I, will not apply to a person employed in the contingent or work establishment. Chapter II of Part III K. S. R. deals with qualifying service. R.9 of Chapter II K. S. R. reads:

"9. Beginning of service. (a) Except for compensation gratuity, an employee's service does not qualify till he has completed 18 years of age.

(b) In other cases, unless it be otherwise provided by special rule or contract' the service of every employee begins when he takes charge of the office to which he is first appointed."

Admittedly, the petitioner is neither governed by any special rule, or contract referred to in R.9 (b). As stated earlier, it is common case, that the petitioner has been in continuous service from 23-12-1969. No doubt, from 23-12-1969 till he was regularised on 8-2-1977 he was in temporary service. The important question for further consideration is whether service mentioned in R.60 (b) includes temporary service also or in otherwords it e