IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 WP(C).No. 25304 of 2006(K) --------------------------------------- PETITIONERS: --------------------- 1. BABURAJ, S/O.P.K.THAMBI, AGED 41 YEARS, RESIDING AT TC 14/1250(3), PADINJATTIL HOUSE, KUMARAPURAM, MEDICAL COLLEGE-PO, THIRUVANANTHAPURAM, NOW WORKING AS DRIVER, POLICE DEPARTMENT. 2. VIJAYARAJ, S/O.AUGUSTIAN, AGED 42 YEARS, RESIDING AT AUGUSTYAVILASOM, ARAMADA, THIRUVANANTHAPURAM, NOW WORKING AS DRIVER, POLICE DEAPRTMENT. 3. MOHANAN NAIR, S/O.PURUSHOTHAMAN PILLAI, AGED 43 YEARS, RESIDING AT S.L.NIVAS, PUTHUKULANGARA-PO, NEDUMANGAD, NOW WORKING AS DRIVER, POLICE DEPARTMENT. 4. SATHEESH KUMAR, S/O.BHASKARAN, AGED 43 YEARS, RESIDING AT KOUSLYA BHAVAN, VAMANAPURAM, KALAMACHAL-PO, NEDUMANGAD, NOW WORKING AS DRIVER, POLICE DEPARTMENT. 5. RAJAMONI, S/O.PONNAN NADAR, AGED 44 YRS PUTHUVAL KIZHAKKE PUTHEN VEEDU, CHENKAL, MARIAPURAM PO, NEYYATTINKARA AND NOW RESIDING AT AYANA HOUSE, MOTTAMODU, NARUVAMOODU, THIRUVANANTHAPURAM, NOW WORKING AS DRIVER, POLICE DEPARTMENT. BY ADV. SRI.GEORGE POONTHOTTAM. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. W.P.(C). NO.25304/2006-K: 2. INSPECTOR GENERAL OF POLICE (SCRB), THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. K. SANDESH RAJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.25304/2006-K: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PENSION PAYMENT ORDER NO. S/012606/2000GIVEN TO THE P.1. EXT.P.1.A: COPY OF THE PENSION PAYMENT ORDER NO. S/065855/98 GIVEN TO THE P.2. EXT.P.1.B: COPY OF THE PENSION PAYMENT ORDER NO. S/018710/2000 GIVEN TO THE P.4. EXT.P.1.C: COPY OF THE PENSION PAYMENT ORDER NO. S/011400/2000 GIVEN TO THE P.5. EXT.P.2: COPY OF THE G.O. (P). NO. 622/2003/FIN. DTD. 26/11/2003. EXT.P.3: COPY OF THE LETTER NO. 19629/K1/05/HOME DTD. 05/08/2005 FROM THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME (K) DEPARTMENT, GOVERNMENT OF KERALA. EXT.P.4: COPY OF THE NOTICE NO. 17775/04 S.C.R.B. DTD. 17/06/2006 ISSUED BY R.2. EXT.P.5: COPY OF THE JUDGMENT IN W.P.(C). NO. 16643/2006 DTD. 13/07/2006. EXT.P.6: COPY OF THE REPLY GIVEN BY THE P.1. ON 08/08/2006. EXT.P.7: COPY OF THE COMMUNICATION NO. A117775/2006/SCRB DTD. 12/09/2006 BY THE R.2. RESPONDENT'S EXHIBIT: EXT.R.2.A: COPY OF THE UNDERTAKINGS OF THE PETITIONERS DTD. 06/07/2005. //TRUE COPY// prv. P.N.Ravindran,J. ================ W.P(C).No.25304 of 2006 ================= Dated this the 30th day of January, 2008. JUDGMENT The petitioners are Ex-service men. Petitioners 1 to 4 were discharged from the armed forces on compassionate grounds at their own request and the fifth petitioner was discharged on completion of the term of his engagement. 2. On such discharge, the petitioners were given retirement benefits including pension and gratuity. After discharge from the armed forces, in the year 2001, they were directly recruited and appointed as Drivers in the State Police Department. Based on Ext.P2 government order dated 26.11.2003, their earlier service in the armed forces was reckoned as service qualifying for the grant of first higher grade on completion of 13 years of service. Later, Ext.P4 notice dated 17.6.2006 was issued and served on the petitioners informing them that they are not entitled to count WP(C) 25304/06 -: 2 :- 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 of refund. The petitioners were called upon to do so within 7 days from the date of receipt of Ext.P4 and were also cautioned that on failure to act as directed in Ext.P4, the higher grade sanctioned to them will be cancelled and appropriate orders passed. Aggrieved by Ext.P4, the petitioners filed W.P.(C) No.16643 of 2006 in this Court. By Ext.P5 judgment delivered on 13.7.2006, this Court directed that Ext.P4, which was produced and marked as Ext.P6 therein, shall be treated as a show cause notice and the decision taken therein will be treated as provisional. This Court further directed that the petitioners will be entitled to file objections to Ext.P4 and if such objections are received within three weeks, the second respondent shall consider the same and take a final decision in the matter, after adverting to the contentions raised by the petitioners. 3. The petitioners submitted their objections to Ext.P4. Thereafter, by Ext.P7 proceedings dated 12.9.2006, the second WP(C) 25304/06 -: 3 :- respondent overruled the objections raised by the petitioners and ordered that the higher grade granted to them on the basis of Ext.P2 government order will stand cancelled with immediate effect and their pay revised. Exts.P4 and P7 are under challenge in this writ petition. 4. Sri. T.R.Ravi, the learned counsel appearing for the petitioners submitted that Ext.P4 as well as Ext.P7 have been issued wrongly relying on Rule 8(c) of Part III of the Kerala Service Rules, hereinafter referred to as the "K.S.R." for short, which applies only to the grant of pension and that the provisions of Part III, K.S.R. do not govern the grant of higher grade. The learned counsel for the petitioners further submitted that the higher grade granted to the petitioners cannot be cancelled for not refunding the pensionary benefits received by them from the armed forces. The learned counsel further submitted that Ext.P2 government order does not stipulate that in order to reckon their past military service as service qualifying for the grant of higher grade, the petitioners have to refund the pensionary benefits drawn by them. The learned counsel for the petitioners also submitted that Rule 8(c) of Part III, K.S.R. WP(C) 25304/06 -: 4 :- applies only to the grant of pension and does not govern or apply to the grant of higher grade. The learned counsel for the petitioners submitted that the grant of higher grade to Ex-service men like the petitioners, reckoning their past military service also as service for the purpose of such grant, is governed by Ext.P2 government order and that higher grade was rightly granted to the petitioners in terms of Ext.P2. 5. Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents on the other hand contended that the provisions of Rule 8(c) of Part III, K.S.R. apply to the case on hand and that it is open to the Government to prescribe the conditions subject to which the military service rendered by Ex- service men can be reckoned for the purpose of grant of higher grade after they enter the State civil service. The learned Government Pleader appearing for the respondents relying on Rule 8(c) of Part III, K.S.R. and the government orders dated 16.11.1981 and 26.11.2003 (Ext.P2) submitted that only such service which qualifies for the grant of civil pension can be reckoned for computing the 13 years' service required for the grant of higher grade to re-employed Ex-service men on and with WP(C) 25304/06 -: 5 :- effect from 1.3.1992. Shorn of details, the contention of the learned Government Pleader is that in order to be entitled to grant of higher grade, re-employed Ex-service men should refund the terminal benefits received by them and that it is only if re- employed Ex-service men satisfy the requirements of Rule 8(c) of Part III, K.S.R, their past military service can be reckoned for the grant of higher grade. 6. I have considered the rival contentions. By 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 the 13 years qualifying service for the grant of the benefit of higher grade in respect of Non-Gazetted Officers. It was also clarified that civilian military service will not however count for higher grade. The government order dated 16.11.1981 took effect from 1.7.1979. The operative portion of the government order dated 16.11.1981 reads thus: "Government have considered the proposal in detail and are pleased to order that War/Military Service which counts for civil pension will also be reckoned for computing the 13 years qualifying service for the grant of the benefit of higher grade in WP(C) 25304/06 -: 6 :- respect of Non-Gazetted Officers. Civilian Service under military will not, however, count for higher grade." 7. Later, by circular No.9/96/Fin. dated 14.2.1996, the State Government clarified that military service which counts for civil pension will be reckoned for the grant of the first, second and third higher grades upto 29.2.1992 and for one higher grade only, with effect from 1.3.1992. The relevant portion of the circular dated 14.2.1996 reads thus: "2. It has been ordered in para 4 (vi) of the G.O. read as 2nd paper above that War/Military Service which counts for Civil Pension would be reckoned for computing the qualifying service for the grant of first higher grade. Civilian Service under Military will not, however, count for higher grade. Government are pleased to issue further clarifications to the above clause as follows:- (i) In the case of Non-Gazetted Officers, War/Military Service which counts for Civil Pension will be reckoned for sanctioning 13/10, 20 and 25 years' higher grade for the period from 1.7.1979 to 29.2.1992. (ii) In the case of Gazetted Officers, War/Military Service which counts for Civil Pension WP(C) 25304/06 -: 7 :- will be reckoned for only one higher grade with effect from 1.7.1988. (iii) With effect from 1.3.1992, War/Military Service which counts for Civil Pension will be reckoned for higher grade once. 3. The 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 service in the respective category, vide Government Orders cited 4th, 5th and 6th above. It has been decided since that the higher grade being enjoyed by these categories by virtue of the above orders will continue to be sanctioned provided the said higher grade will be treated as equivalent to the first higher grade to be sanctioned on completion of 13 years/10 years service to other categories of staff in Government. The second higher grade admissible to the above categories will be sanctioned either on completion of 10 years of service in the first higher grade or after a total service of 17 years, put in by them, in both the grades together. The third higher grade will be sanctioned 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 para 2 WP(C) 25304/06 -: 8 :- above and for one higher grade only with effect from 1.3.1992." By judgment delivered on 12.12.2001 in O.P.No.30481 of 2000 this Court quashed the circular dated 14.2.1996 on the ground that government orders cannot be amended or alterered by a circular. The state government thereafter issued Ext.P2 government order dated 26.11.2003 inter alia directing that with effect from 1.3.1992 war/military service which counts for civil pension will be reckoned for one higher grade only in respect of Non-Gazetted and Gazetted Officers. It is common case that Ext.P2 order has not been modified and continues to be in force. 8. Rule 8(c) of Part III, K.S.R. stipulates that Ex-service men re-employed in civil service shall be allowed to count their military service other than war service in the armed forces of India from 1st April, 1946 which is non-pensionable or pensionable under Military Rules but which terminated before a pension has been earned in respect of it for the purpose of civil pension, in cases of retirement from civil service on or after 14.11.1966. The first proviso to Rule 8(c) of Part III, K.S.R., stipulates that the bonus or gratuity, if any, received for the WP(C) 25304/06 -: 9 :- period of military service by re-employed Ex-service men from the Defence Department shall be refunded to that Department, so as to enable them to claim the benefit of Rule 8(c) of Part III, K.S.R. Ext.P2 government order stipulates that "war/military service which counts for civil pension" will be reckoned for computing the qualifying service for the grant of higher grade. Ext.P4 refers to G.O.(P)No.539/90/Fin. dated 20.10.1990 (the correct date is 26.10.1990). G.O.(P)539/90/Fin. dated 26.10.1990 reads as follows: "In the Government order read as second paper above, Government have ordered that the Ex- servicemen who retired before 1.7.1987 and had been released at their own request after completing 5 or more years of service in the Armed Forces of Union, after attestation, will continue to be treated as Ex-servicemen and will be entitled to the benefits of reckoning their military service for calculating their qualifying service for civil pension. In the case of discharge at own request in respect of personnel below Officer rank, it will not be equivalent to resignation and the military service rendered prior to such discharge can be reckoned as qualifying service for Civil Pension, subject to the conditions laid down WP(C) 25304/06 -: 10 :- in the Central Civil Service (Pension) Rules 1972. 2. In the letter read as third paper above, Government of India have clarified that discharge on one's own request from Army Service is not resignation and such service is reckonable towards subsequent civil service, subject to the refund of pensionary benefits, if any, received by him along with 6% simple interest on the same from the date of receipt till the date of refund. 3. Government have examined the matter in detail and in modification of the G.O. read as second paper above, they are pleased to order that the discharge on one's own request from army service is not resignation and that army service in such circumstances also is reckonable towards subsequent civil service subject to the conditions laid down in the rules in Part III, Kerala Service Rules and subject to the refund of pensionary benefits, if any, received by him along with 6% simple interest on the same from the date of receipt till the date of refund. 4. Necessary amendment to the rules in Part III, KSR will be issued separately." 9. By the government order dated 26.10.1990, the State Government had only clarified that discharge on one's own request from army service is not resignation and that Ex-service WP(C) 25304/06 -: 11 :- men who are discharged on their own request are also entitled to reckon their army service for the purpose of pension subject to the conditions laid down in Part III of K.S.R. The government order dated 26.10.1990 does not therefore govern the grant of higher grade. 10. Though at the first blush, the contention of the learned Government Pleader appears to be attractive, on a close reading of Rule 8(c) of Part III, K.S.R. and Ext.P2 government order, one can safely come to the conclusion that they operate in different fields. Pension is paid only at the end of one's service and all that Rule 8(c) of Part III, K.S.R. says is that re-employed Ex- service men who have not earned a pension from the Defence Department for their military service, but have received bonus/gratuity shall in order to enable them to get pension on retirement from the State Civil Service, refund the bonus/gratuity already drawn by him from the Defence Department. Admittedly, Rule 8(c) does not govern the grant of higher grade. It is not in dispute that it was based on Ext.P2 that the petitioners were granted higher grade reckoning their past military service also as service qualifying for such grant. Ext.P2 does not stipulate that WP(C) 25304/06 -: 12 :- Ex-service men who are re-employed in the State civil service should refund to the Defence Department or to the State Government, the terminal benefits drawn by them in order to entitle them for the grant of higher grade. While pension is paid to an employee at the end of his service, higher grade is granted while the employee is in service. Ext.P2 does not incorporate the conditions prescribed in Rule 8(c) of Part III, K.S.R. Though Ext.P2 and the government order dated 16.11.1981 refer to the expression "war/military service which counts for civil pension", they do not stipulate that Ex-service men should refund the terminal benefits drawn by them from the armed forces in order to enable them to count their military service as service qualifying for the grant of higher grade. The expression "war/military service which counts for civil pension" occurring in Ext.P2 and in the government order dated 16.11.1981 can therefore only mean service in the armed forces of India from 1st April, 1946. Though Rule 8(c) of Part III, K.S.R. stipulates that the terminal benefits received should be refunded, for the grant of pension, in the absence of such a stipulation either in Ext.P2 or in the government order dated 16.11.1981, I am not persuaded WP(C) 25304/06 -: 13 :- to agree with the learned Government Pleader that re-employed Ex-service men have to refund to the State Government/Defence Department, the terminal benefits received by them. Further in Ext.P4 what is stipulated is that the petitioner should refund to the State Government, the terminal benefits received by them with 6% interest. Even where Rule 8(c) of Part III, K.S.R. applies, the terminal benefits are to be refunded only to the Defence Department and such refund is only of the bonus or gratuity, if any, received by the Ex-service men for the period of his military service. Rule 8(c) of Part III, K.S.R. applies to cases where the Ex-service men re-employed in civil service did not earn a pension for their military service, but received only a bonus or gratuity. The stipulations in Rule 8(c) of Part III, K.S.R. cannot therefore be read as a condition incorporated in Ext.P2. Since Ext.P2 does not stipulate that re-employed Ex-service men will have to refund the terminal benefits received by them, the respondents are not entitled to insist that only if the petitioners refund the terminal benefits drawn by them, their past military service can be reckoned for the grant of higher grade. 11. The finding in Ext.P4 and in Ext.P7 that higher grade was WP(C) 25304/06 -: 14 :- sanctioned to the petitioners in violation of the rules, is therefore not tenable. Ext.P7 refers to an audit objection by the Accountant General's Office in respect of the staff employed in the State Police Headquarters. The learned Government Pleader had during the course of the hearing made available to me a copy of the audit enquiry report referred to in Ext.P7. The audit officer has in the audit report referred to in Ext.P7 relied on the government order dated 26.10.1990 and the government order evidenced by Ext.P2 to hold that higher grade was sanctioned to the officers named therein illegally. As I have already held that the government order dated 26.10.1990 and Ext.P2 government order dated 26.11.2003 do not incorporate the conditions stipulated in the first proviso to Rule 8(c) of Part III, K.S.R. for the grant of higher grade, I am of the opinion that there is no merit in the said audit objection as well. 12. For the reasons stated above, I quash Exts.P4 and P7 and declare that higher grade was rightly granted to the petitioners based on Ext.P2 government order dated 26.11.2003, reckoning their past military service as service qualifying for the grant of higher grade. WP(C) 25304/06 -: 15 :- The Writ Petition is allowed as above. However in the circumstances of the case, I make no order as to costs. P.N.Ravindran, Judge. ess 4/2