IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 OP.No. 28624 of 1999(G) ----------------------- PETITIONER: ------------ T.P. CHANDRAN, THOPPIL HOUSE, KILIROOR NORTH P.O., KOTTAYAM- 686 020 BY ADV. SRI.K.A.JALEEL SRI.T.T.MUHAMOOD RESPONDENTS: ------------- 1. THE STATE AOF KERALA REP. BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION, PUBLIC OFFICE, THIRUVANANTHAPURAM. 3. SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM. 4. SECRETARY, KOCHI CORPORATION, KOCHI. BY GOVERNMENT PLEADER SRI.K. SANDESH RAJA SC FOR KOTTAYAM MUNICIPALITY SC FOR COCHIN CORPORATION THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.48619/1999 IN OP.NO.28624/1999-G DISMISSED 6.2.2008. SD/= P.N. RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ORDER NO.K.DIS B/7-28090/90 DTD 5.3.94 OF R2. EXT.P2 COPY OF MEMO NO OH2/18050/93 DTD 4.3.96 ISSUED BY HEALTH OFFICE TO THE PETITIONER. EXT.P3 COPYOF LETTER NO.LFK(ML)1-305/96 DTD 19.10.96 SENT BY HE PETITIONER TO THE COCHIN CORPORATION EXT.P4 COPY OF APPEAL SUBMITTED BY THE PETITIONER TO THE GOVERNEMNT DTD 2..12.1996. EXT.P5 COPY OF LETER DATED 16.12.97 ISSUED BY DEPUTY EXAMINER LOCAL FUND AUDIT KOTTAYAM TO THE DY.EXAMINER CORPORATION AUDIT, COCHIN-11. EXT.P6 COPY OF LETTER NO.G9/12/69/96 DTD 18.12.1997 ISSUED BY PA TO SECRETARY KOTTAYAM MUNICIPALITY EXT.P7 COPY OF ORDER NO.P5-2458/97 ISSUED BY R2 DTD 30.12.97. EXT.P8 COPY OF ORDER DTD 19.7.99 ISSUED BY R2. EXT.P9 COPY OF NOTICE DTD 24.9.99 ISSUED BY R3 TO THE PETITIONER. EXT.P10 COPY OF REPRESENTATION FILED BY THE PETITIOENR TO R3 DTD 28.9.99. EXT.P11 COPY OF ORDER NO.A5-12169/96 DTD 4.10.99 ISSUED BY R3. /TRUE COPY/ cl P.N. RAVINDRAN, J. --------------------------------------------------------------- O.P.NO.28624 OF 1999-G -------------------------------------------------------------- Dated this the 6th day of February, 2008. JUDGMENT The petitioner is an ex-service man. He served the Indian Army during the period from 1962 to 1978. After discharge from the Army, he was appointed as a Lower Division Clerk in the Kerala Municipal Common Service and he joined duty in the said post on 22.12.1982. The petitioner was promoted as Upper Division Clerk on 16.9.1985 and while holding the said post, he retired from service on 31.10.1996 on attaining the age of superannuation. 2. While the petitioner was in service as an Upper Division Clerk in the Cochin Corporation, the first time bound higher grade promotion on completion of 10 years of service was granted to him reckoning his past military service as well. This is evident from Ext.P1 order issued by the Commissioner, Corporation of Cochin pursuant to the orders issued by the Director of Municipal Administration. Later, by Ext.P2 memo dated 4.3.1996 the petitioner was informed that he has drawn the sum of Rs.25,274/= O.P.NO.28624/1999 . 2 as excess salary consequent on the re-fixation of his pay during the period from 16.9.1990 to 29.2.1996. The petitioner was also called upon to refund the said amount in five monthly instalements. The petitioner was thereafter transferred to Kottayam Municipality and while in service in the Kottayam Municipality, he retired from service on 31.10.1996. 3. After the petitioner retired from service, he submitted Ext.P4 representation dated 2.12.1996 to the State Government claiming that his terminal benefits should be fixed reckoning his military service. The petitioner also objected to the direction in Ext.P2 to refund the sum of Rs.25,274/=. By Ext.P6 letter dated 18.12.1997, the Secretary, Kottayam Municipality informed the petitioner that his request to the State Government to reckon his military service for pension and higher grade stands rejected. Thereafter, by Ext.P7 proceedings dated 30.12.1997 the Director of Municipal Administration granted minimum pension to the petitioner. The Director of Municipal Administration thereafter issued Ext.P8 proceedings dated 19.7.1999 determining the terminal benefits payable to the petitioner, wherein inter alia it was directed that the sum of Rs.27,364/= will be deducted from the DCRG and the O.P.NO.28624/1999 . 3 commuted value of pension payable to him. Later, by Ext.P9 notice dated 24.9.1999 the Secretary, Kottayam Municipality informed the petitioner that it has been decided to adjust the sum of Rs.10,575/= payable to him as DCRG towards the excess salary of Rs.27,364/= drawn by him. The petitioner was also called upon to shaw cause why proceedings should not be initiated against him pursuant to Ext.P8 for realisation of the balance sum of Rs.16,789/= from him. The petitioner thereupon submitted Ext.P10 representation. By Ext.P11 order dated 4.10.1999, the Secretary, Kottayam Municipality ordered payment of the sum of Rs.340/= towards DCRG and commuted value of pension after deducting the sum of Rs.27,364/= from the DCRG and commuted value of pension payable to the petitioner. The petitioner has in this original petition challenged Exts.P8, P9 and P11 to the extent they direct adjustment of the DCRG and commuted value of pension, towards the amounts demanded in Ext.P2. The petitioner has also prayed for a writ of mandamus directing the 2nd respondent to regularise his pension considering the higher grade sanctioned to him in the cadre of U.D.Clerk. The petitioner has also prayed for a writ of mandamus directing the respondents not to recover the salary already paid to him and to disburse the DCRG and commutted value of pension O.P.NO.28624/1999 . 4 considering the grades sanctioned to him. 4. I have heard Sri. K.A. Jaleel, the learned counsel appearing for the petitioner and Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner submitted that in the light of the pay revision orders in force during the relevant time, the petitioner was rightly sanctioned first time higher bound grade reckoning his military service as well and that when the pay revision orders in force during the relevant time permitted reckoning of military service for the purpose of grade promotion, the respondents are not justified in holding that his pay was wrongly fixed by giving him grade promotion. The learned counsel appearing for the petitioner also contended that the petitioner is in law entitled to have his military service reckoned for computing the pensionary benefits payable to him. The learned Government Pleader on the other hand contended relying on Rule 8(c) of Part III of the KSR that the petitioner cannot claim or be given time bound higher grade promotion or pension reckoning his military service as service counting for grade promotion/pension. O.P.NO.28624/1999 . 5 5. I have considered the rival contentions. As regards the petitioner's claim for pension, I am of the opinion that on the terms of Rule 8(c) of Part III KSR, the petitioner cannot claim that his military service should be reckoned for the grant of pension on retirement from the Municipal Common Service. Rule 8(c) of Part III KSR 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 the 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 14.11.1996. This is however subject to the contention that the bonus or gratuity if any received for the period of military service by the person concerned from the defence department is refunded to that department. There is a further stipulation that the person concerned should not be in receipt of any military pension in respect of his military service. The petitioner has no case before me and in any case there is no pleading to the effect that the petitioner is not in receipt of military pension or that on discharge from the Indian Army he had received only gratuity and that it was refunded to the defence department. Since the petitioner has not proved O.P.NO.28624/1999 . 6 that he is not in receipt of any pension for his military service during the period from 1962 to 1978 or that he was paid only gratuity which he has refunded, I am inclined to take the view that the petitioner cannot claim pension on his retirement from the Municipal Common Service by reckoning his military service also as service eligible for pension. 6. As regards the petitioner's contention that higher grade was rightly sanctioned to him reckoning his military serve as well in tune with the Government Orders then in force, I find there is merit in the said contention. Higher grade was sanctioned to the petitioner reckoning his military service as well. GO(P) No.764/81/Fin dated 16.11.1981 read along with G.O.(P) No.930/93/Fin dated 8.12.1993 makes it clear that the petitioner was rightly granted time bound higher grade promotion reckoning his military service as well. The Secretary, Local Fund Audit has in Exts.P3 and P5 clarified the said decision. I have in WP(C). No.25304 of 2006 considered the impact of the government order dated 16.11.1981 and held that military service which counts for civil pension can be reckoned for the purpose of grant of higher grade and that Rule 8(c) of Part III of the KSR does not govern O.P.NO.28624/1999 . 7 the grant of time bound grade promotion. 7. In the light of the view that I have taken, I hold that the decision to recover the sum of Rs.27,364/= from the retirement benefits paid to the petitioner on the short ground that time bound higher grade promotion was wrongly granted to him is bad in law and is liable to be set aside. Exts.P8, P9 and P11 in so far as they direct recovery of the sum of Rs.27,364/= from the terminal benefits payable to the petitioner are quashed. The respondents are directed to pay to the petitioner the said amount of Rs.27,364/= together with interest at the rate of 9% per annum from 1.1.1997. Such payment shall be made within two months from the date of receipt of a copy of this judgment. The claim of the petitioner for refixation of pensionary benefits reckoning his military service as service counting for civil pension is declined. The original petition is allowed as above. No costs. P.N. RAVINDRAN, JUDGE. cl O.P.NO.28624/1999 . 8 P.N. RAVINDRAN, J. O.P.NO.28624 OF 1999-G JUDGMENT 6th February, 2008.