IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1308 of 2008()
1. STATE OF KERALA, REP. BY ITS CHIEF
... Petitioner
2. THE INSPECTOR GENERAL OF POLICE
Vs
1. BABURAJ, S/O.P.K. THAMPI,
... Respondent
2. VIJAYARAJ, S/O. AUGUSTINE,
3. MOHANANN NAIR, S/O.PURUSHOTHAMAN PILLAI,
4. SATHEESH KUMAR, S/O. BHASKARAN,
5. RAJAMONI, S/O. PONNAN NADAR,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.GEORGE POONTHOTTAM
The Hon'ble the Acting Chief Justice MR.P.R.RAMAN
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
Dated :01/03/2010
O R D E R
P.R. RAMAN, Ag. C.J. &
C .N. RAMACHANDRAN NAIR, J.
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W.A. No. 1308 OF 2008
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Dated this the 1st day of March, 2010
JUDGMENT
Raman, Ag. C. J.
W.A.No. 1308 of 2008 is directed against the judgment of the
learned single Judge in WPC No. 25304 of 2006. The State is the
appellant. Respondents are ex-servicemen and after their discharge
from the Armed Forces in the year 2001, they were directly recruited
and appointed as drivers in the State Police Department. Ext.P2 is the
Government order dated 26.11.2003 by which it is ordered by the
Government that respondents’ earlier service in the Armed Forces
would be reckoned as service qualifying for the grant of first higher
grade on completion of 13 years of service. Later by Ext.P4 notice
dated 17.6.2006, respondents were informed that they were not entitled
to count their past military service for the purpose of higher grade
unless they refund the retirement benefits received by them from the
Armed Forces to the State Government along with simple interest at
6% per annum from the date of receipt of the said benefits to the date
W.A. 1308/2008 2
of refund. 7 days’ time was given to do so, failing which it was
directed in Ext.P4 that higher grade granted will stand cancelled and
appropriate orders will be passed thereafter. Aggrieved by the said
notice W.P.C. No. 16643 of 2006 was filed and this Court by
judgment, Ext.P5 produced, with a view to give an opportunity to the
affected person, directed that Ext.P4 notice should be treated as a show
cause notice with liberty to the aggrieved person to file his objection
and to consider the same and pass appropriate orders. Thereafter
objections were filed and Ext.P7 proceedings dated 12.9.2006 were
issued by the second appellant overruling the objection and it was
ordered that higher grade granted should stand cancelled. Challenging
Exts. P4 and P7 the present Writ Petition was filed.
2. The main contention advanced before the learned single Judge
on behalf of the respondents/petitioners was that the premise on which
Exts. P4 and P7 were passed was on a wrong understanding of Rule 8
(c) of Part III of the Kerala Service Rules, which has no application in
the matter of grant of higher grade but that applies only to the grant of
pension and Part III of the KSR has nothing to do with the grant of
higher grade. It was also contended that higher grade granted to the
W.A. 1308/2008 3
respondents/petitioners cannot be withdrawn for not refunding the
pensionary benefits received by them from the military. There is no
such stipulation in Ext.P2 government order and Ext.P4 notice issued is
contrary to Ext.P2 order. Per contra, the stand of the Government was
that though Rule 8(c) of Part III of the KSR can only apply to pension
and not to grant of higher grade, still it is open to the Government to
prescribe conditions subject to which military service rendered would
be reckoned for the purpose of grant of higher grade. Placing reliance
on Ext.P2, it was submitted that only such service which qualifies for
the grant of civil pension can be reckoned for computing 13 years’ of
service required for the grant of higher grade to re-employed Ex-
servicemen on and with effect from 1.3.1992. The learned single
Judge considered rival submissions as above and found that as per
G.O.P. No. 764/81/Fin dated 16.11.1981 the State Government ordered
that War/Military service which counts for civil pension will also be
reckoned for computing 13 years of qualifying service for the grant of
higher grade in the case of non-gazetted officers. But it was clarified
that civilian military service will not however count for higher grade.
The relevant portion of the Government order dated 16.11.1981 is
W.A. 1308/2008 4
extracted in the judgment of the learned single Judge under appeal.
3. We may at once notice that while the Government order do
provide for reckoning 13 years of service rendered in War/Military
service which counts for civil pension, a distinction is made however
that if it is civilian military service, such service will not be reckoned.
Therefore the service rendered as War/Military service and counted for
civil pension in the military service is to be reckoned for grant of
higher grade, but not so, if the nature of service rendered is civilian.
4. By circular dated 14.2.1996, it was further clarified that
military service which counts for civil pension will be reckoned for the
grant of first, second and third higher grades upto 29.2.1992 and after
29.2.1992 for one higher grade with effect from 1.3.1992. Police
constable drivers, other technical categories in the Police Department
and Firemen drivers in the Fire Force Department are eligible for
higher grade on completion of 7 years of service in the respective
category is beyond dispute and they will be entitled for first higher
grade, provided they complete 13 years of service or 10 years of
service, as the case may be, as other categories of staff in the
Government. The second higher grade becomes admissible to such
W.A. 1308/2008 5
categories on completion of 10 years of service in the first higher grade
or after a total service of 17 years in both the grades together. The
third higher grade will be granted on completion of 25 years of total
service from the entry grade post. The military service which counts
for civil pension will be reckoned for the above grades upto 29.2.1992
as mentioned in paragraph 2 of the circular and for one higher grade
only with effect from 1.3.1992. Circular dated 14.2.1996 was earlier
quashed by this Court in WPC 30481 of 2000 as the circular runs
contrary to the Rule. It was thereafter that Ext.P2 Government order
was issued and that still holds the field.
5. The short point that arises for consideration is as to whether
Ext.P4 notice in so far as it takes away the right to get higher grade
only if respondents forgo the gratuity earned by them in the military
service is consistent with Ext.P2 or is vitiated in any way. Going by
Ext.P2 there is nothing to show that Government intended to restrict
the benefit of higher grade only to those Ex-serviceman re-employed
and who forgoes his gratuity received by him from the military
department. Therefore it is very clear that Ext.P4 notice is contrary to
Ext.P2. Even otherwise we find that Ext.P4 notice could not have
W.A. 1308/2008 6
imposed such an unreasonable restriction when it is stated in Ext.P2
that for the purpose of reckoning qualifying service for higher grade,
the services rendered in Armed Forces will be taken into account. It
must be noticed that this is not a Rule governing grant of any
pensionary benefit to an Ex-serviceman re-employed in Government
service. Admittedly such re-employed person is not entitled to
pensionary benefits after retirement from Government service, unless
he has required qualifying actual service in Government department.
Therefore to say that respondents will have to forgo their pensionary
benefit for the purpose of getting higher grade is irrational and
arbitrary. It is not a case where the Government ordered not to count
service rendered in Armed Forces for the purpose of qualifying service
for grant of higher grade in Government service. They could have very
well said such service may not entitle a person to get higher grade
unless he completes required number of years of service in the State
government after re-employment. Having chosen to give a benefit by
reckoning the service rendered in Armed Forces for the purpose of
grant of higher grade by Ext.P2, the further restriction imposed by way
of Ext.P4 notice taking away the benefit and imposing a condition that
W.A. 1308/2008 7
respondents should forgo their pensionary benefit is opposed to Ext.P2
but also arbitrary, unreasonable and violative of Article 14 of the
Constitution of India. In the circumstances, the view taken by the
learned single Judge that Exts.P4 and P7 are liable to be quashed is
perfectly correct and we concur with the same.
6. Though a contrary view is expressed in WPC 6643 &
10053/2008 and 11896 & 24626/2007 by another learned single Judge
of this Court vide judgment dated 24.10.2007, for the reasons stated
above, we do not approve such view and the same is overruled.
We find no merit in the appeal and the same is dismissed.
(P.R. RAMAN)
Ag. Chief Justice
(C.N.RAMACHANDRAN NAIR)
Judge.
kk W.A. 1308/2008 8