Kerala High Court
Satheesan M.P vs State Of Kerala & Others on 29 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943
WP(C).No.17042 OF 2011(E)
PETITIONER :
SATHEESAN M.P.,
LECTURER IN MECHANICAL ENGINEERING,
SWAMI, NITHANANDA POLYTECHNIC COLLEGE,
KANHANGAD-671 315, KASARAGOD DISTRICT.
BY ADVS.
SRI.ELVIN PETER P.J.
SMT.POOJA SURENDRAN
RESPONDENTS :
1 STATE OF KERALA & OTHERS,
SECRETARY TO GOVERNMENT, HIGHER EDUCATION,
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
2 THE DIRECTOR OF TECHNICAL EDUCATION,
DIRECTORATE OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM.
3 THE JOINT DIRECTOR
REGIONAL DIRECTORATE OF TECHNICAL EDUCATION,
VIKAS BUILDING, RAILWAY STATION ROAD,
KOZHIKODE.
BY SR.GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.17042 OF 2011(E)
2
JUDGMENT
Dated this the 29th day of March 2021
The writ petition seeks directions to the respondents
to grant higher grade and fixation of pay to the petitioner
counting the military service rendered by him prior to his entry
in the State Govt. service.
2. Petitioner was appointed as a Lecturer in
Mechanical Engineering at the SN Polytechnic, Kanhangad,
under the Technical Education Department of the State
Government on 30.07.2001 by direct recruitment. Prior to his
appointment, petitioner claims to have rendered military service
in the Indian Air Force as an Airman from 29.07.1988 to
11.04.2001. Since the petitioner was not given the benefit of
his prior military service, he filed a representation before the 3 rd
respondent, claiming the benefit of higher grade and fixation of
pay by counting his military service. The said representation is
produced as Ext.P16.
3. This Court has already considered on several
WP(C).No.17042 OF 2011(E)
occasions that, based on Government Orders, the earlier service
in the military is liable to be reckoned as qualifying service for
grant of higher grade and for re-fixation of pay. Exts.P11, P13,
and P17 are judgments, which, according to the petitioner
stands in his favour where the prior military service was directed
to be taken into reckoning for granting the higher grade and for
fixation of pay.
4. The learned Senior Government Pleader Adv.
Mathew George Vadakkel opposes the contentions raised and
submits that the petitioner is not entitled to get his military
services counted for a higher grade when examined in the light
of Rule 8C of Part III of the KSR unless he refunds the
mustering out concessions and benefits received at the time of
discharge from the military. It is also pointed out that as per
G.O.(P) No.622/2003 dated 26.12.2003 military service which
counts for civil pension will be reckoned for sanctioning higher
grade only upon refunding the pension and gratuity earned by
him from the Defense Department, without which he cannot get
his military service counted.
WP(C).No.17042 OF 2011(E)
5. We have heard the counsel for the petitioner as
well as the learned Government Pleader. The contentions raised
by the learned Govt. Pleader are identical to that raised earlier
before this Court, but by judgment dated 01.03.2020, in
W.A.No.1308 of 2008, a Division Bench of this Court had
rejected the same. It was held in the said decision that "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 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
WP(C).No.17042 OF 2011(E)
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 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 ".
6. In view of the above binding decision of this Court,
the objections raised by the respondents have no legs to stand.
Taking into reckoning the above findings of this Court, the
petitioner is entitled to get his pay fixed accordingly and is
eligible for a higher grade.
7. However, since Ext.P16 is pending consideration,
interests of justice will be served by directing the 3 rd respondent
to dispose of Ext.P16 representation filed by the petitioner on
14.06.2011, as expeditiously as possible, at any rate, within a
WP(C).No.17042 OF 2011(E)
period of six months from the date of receipt of a copy of this
judgment, taking into reckoning the observations and findings
recorded above. Needless to state, the petitioner shall be
afforded an opportunity of hearing before any decision is taken
in that regard.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
WP(C).No.17042 OF 2011(E)
APPENDIX
PETITIONER'S EXHIBITS :
P1 : COPY OF THE ORDER, G.O.DATED 16.11.1981 ISSUED BY THE
GOVERNMENT.
P2 : COPY OF THE ORDER, G.O.DATED 06.11.1992 ISSUED BY THE
GOVERNMENT.
P3 : COPY OF THE ORDER, G.O.DATED 08.12.1993 ISSUED BY THE
GOVERNMENT.
P4 : COPY OF THE ORDER, G.O.DATED 26.11.2003 ISSUED BY THE
GOVERNMENT.
P5 : COPY OF THE COMMUNICATION DATED 05.08.2005 ISSUED BY THE
GOVERNMENT.
P6 : COPY OF THE COMMUNICATION DATED 08.06.2005 ISSUED BY THE
GOVERNMENT.
P7 : COPY OF THE JUDGMENT DATED 30.01.2008 IN W.P.(C)
NO.25304/2006 OF THIS HON'BLE COURT.
P8 : COPY OF THE JUDGMENT DATED 01.03.2010 IN W.A.NO.1308/2008
OF THIS HON'BLE COURT.
P9 : COPY OF THE JUDGMENT DATED 01.03.2010 IN W.P.(C)
NO.23825/2008 OF THIS HON'BLE COURT.
P10 : COPY OF THE ORDER DATED 14.06.2010 ISSUED BY THE D.G.P.
P11 : COPY OF THE JUDGMENT DATED 14.07.2010 IN W.P.(C).
NO.21868/2010 OF THIS HON'BLE COURT.
P12 : COPY OF THE JUDGMENT DATED 20.07.2010 IN W.P.C).
NO.22580/2010 OF THIS HON'BLE COURT.
P13 : COPY OF THE JUDGMENT DATED 19.08.2010 IN W.P.(C).
NO.26334/2010 OF THIS HON'BLE COURT.
P14 : COPY OF THE ORDER DATED 04.10.2010 ISSUED BY THE D.G.P.
P15 : COPY OF THE ORDER DATED 17.09.2010 ISSUE BY THE
SUPERINTENDENT OF POLICE, ERNAKULAM RURAL.
WP(C).No.17042 OF 2011(E)
P16 : COPY OF THE REPRESENTATION DATED 14.06.2011 FILED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT CLAIMING HIGHER
GRADE AND FIXATION OF PAY COUNTING HIS MILITARY SERVICE.
P17 : COPY OF THE JUDGMENT DATED 29.11.2010 IN W.P.(C).
NO.33769/2010 OF THIS HON'BLE COURT.
