Kerala High Court

A.Bhaskaran vs The State Of Kerala on 3 November, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                     &
                THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                        OP(KAT) NO. 37 OF 2014
        AGAINST THE ORDER/JUDGMENT IN TA 1056/2012 OF KERALA
 ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM
PETITIONER:

             A.BHASKARAN
             AGED 57 YEARS
             S/O. KARIYAN, MANAGER (EXCISE)(RETIRED), AVANOTTINGAL
             HOUSE, P.O.AYYANTHOLE LAW COLLEGE ROAD, THRISSUR-680
             003.

             BY ADVS.
             SRI.K.JAJU BABU (SR.)
             SMT.M.U.VIJAYALAKSHMI
             SRI.BRIJESH MOHAN



RESPONDENTS:

    1        THE STATE OF KERALA
             REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE
             DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

    2        THE ACCOUNTANT GENERAL A E
             KERALA, THIRUVANANTHAPURAM-695 039.

    3        THE JOINT EXCISE COMMISSIONER
             THIRUVANANTHAPURAM-695 033.

             BY ADV GOVERNMENT PLEADER



             SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER


     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(KAT) NO. 37 OF 2014
                                             2

         ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
         ===================================
                 O.P.(KAT). No. 37 Of 2014
 (arising out of the Order in T.A. No.1056/2012 dated 05.11.2012 of the KAT, TVM.
                           Bench in WP(C) No.1429/2005)
    =========================================
           Dated this the 3rd of November, 2021

                                 JUDGMENT

Alexander Thomas, J.

The petitioner herein had earlier approached this Court by

filing this writ petition (civil) WP(C) No.1429/2005 with the

following prayers.

"(a) Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to grant Higher Grade, Senior Grade and Selection Grade for 10 years and 23 years of service to the petitioner from 16.09.1985, 16.09.1995 and 01.11.1998 respectively reckoning Military Service.

(b) declare that para 3(iii) of Ext.P1 is not applicable to the Petitioner, he being an entrant in service with Military service prior to 01.03.1992.

(c) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case."

2. After the establishment of Kerala Administrative

Tribunal, the above writ proceedings was transferred for

adjudication by the Tribunal. After such transfer, the writ

proceedings has been re-numbered by the Tribunal as Transferred

Application TA No.1056/2007.

OP(KAT) NO. 37 OF 2014

3. The Tribunal after hearing both sides has rendered the

impugned Annexure P1 final order dated 05.11.2012 in

T.A.No.1056/2012, holding that the T.A. is dismissed on the ground

that the applicant is not entitled for time bound higher grade more

than once, by counting his past military service alongwith his

service under the State Government. Being aggrieved by the

impugned Ext.P1 final order of the Tribunal, the Original Applicant

has approached this Court by filing the instant Original Petition

under Articles 226 and 227 of the Constitution of India with the

following prayers.

(I) call for the records relating to Annexure P-1 order and set aside the original of the same.

(ii) issue direction to the respondents to grant Senior Grade and Selection Grade for 18 years and 23 years of service to the Petitioner from 16.09.1993 and 01.11.1998 respectively reckoning his previous military service.

(iii) declare that Para 3(iii) of G.O.(P) No.622/2003/Fin. Dated 26.11.2003 is not applicable to the Petitioner he being one entered service with military service prior to 01.03.1992.

(iv) pass such other orders or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.

4. Heard Sri. S.Jaju Babu, learned Sr. Counsel instructed

by Sri.Brijesh Mohan, learned counsel appearing for the petitioner

in the O.P./Applicant in the T.A, and Sri.B.Unnikrishna Kaimal,

learned Sr. Government Pleader appearing for the respondents in

the O.P./respondents in the O.A.

OP(KAT) NO. 37 OF 2014

5. A brief recital of the necessary and relevant facts would

be pertinent in this case. The case of the petitioner herein is that he

had military service for a period from 31.08.1970 to 31.08.1990 and

that the same is eligible to reckon towards grant of time bound

higher grades as per the scheme being followed by the State

Government. The petitioner places reliance on Ext.P2 G.O.(RT)

No.644/2003/TD dated 14.10.2003 in that regard. As a matter of

fact, the applicant had joined the post of Excise Inspector, in the

Excise Department of the State Government on 01.10.1994. He

secured promotion to the post of Central Inspector of Excise, on

22.08.1997. He had subsequently retired from service as Excise

Central Inspector/Manager on 31.07.2003.

6. After retirement, he was granted the first higher grade

counting his past military service as qualified service with effect

from 16.09.1985 as produced in Ext.P8 proceedings/WP(C) dated

22.11.2004. The claim of the petitioner in the above Writ

Proceedings/Transferred Application was that he should secure

higher grade, Senior Grade and Selection Grade after completing 10

years, 18 years and 25 years of service, from 16.09.1985, 16.09.1995

and 01.11.1998 by adding his past military service along with his OP(KAT) NO. 37 OF 2014

service in the Excise Department of the State Government. The

Tribunal has rendered the impugned Annexure P1 final verdict

dismissing the Transferred Application on the ground that the

applicable Government norms at Ext.P1 therein (G.O.(P)

No.622/2003/Fin) dated 26.11.2003, Clause (i) thereof, has clearly

mandated that in the case of Gazetted Officers,War/Military Service

which counts for civil pension will be reckoned for only one higher

grade with effect from 01.07.1988 onwards. The operative portion of

para 3 of the final verdict of the Tribunal which contains reference to

Ext.P1 norms reads as follows: (see page 9 of the paper book of the OP)

"We have heard the learned counsel on both sides. The relevant portion of Ext.P1, which deals with grant of higher grade reckoning military service, reads 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 01.07.1979 to 29.02.1992,

(ii) In the case of gazetted officers, War/Military service which counts for civil pension will be reckoned for only one higher grade with effect from 01.07.1988.

(iii) With effect from 01.03.1992, War/Military service which counts for civil pension will be reckoned for one higher grade only in respect of non-gazetted and gazetted officers.

7. Being aggrieved by the final verdict of the Tribunal

dismissing the Transferred Application, the petitioner had filed the

instant Original Petition as afore stated. The Division Bench of this

Court had earlier dismissed the instant Original Petition by holding

the finding of the Tribunal that War/Military services can be OP(KAT) NO. 37 OF 2014

reckoned for grant of time bound higher grade only once and that

the said verdict of the Tribunal does not require any interdiction. In

other words, this Court had then taken the stand as in the judgment

rendered on 18.07.2019, whereby the instant OP was dismissed by

holding that since the petitioner has already secured time bound

higher grade since War/Military service was added once and he

secured the first time bound higher grade as per Ext.P8 dated

22.11.2004, there is no question of him making a claim for adding

the military service, for grant of the second and the third higher

grade.

8. Being aggrieved by the said verdict of this Court

rendered on 18.07.2019, the petitioner herein had filed Review

Petition No.272/2020 before this Court. This Court, after hearing

both sides has recalled the impugned judgment dated 18.07.2019 on

the ground that the petitioner had made out certain grounds based

on the judgment of the Division Bench of this Court rendered on

13.01.2004 in W.A.No.2145/2003 (arising out of the judgment dated

06.02.2003 in OP No.14112/1998) and that therefore, the matter

would require reconsideration. On account of this, the impugned

judgment dismissing the OP was recalled and the OP has been OP(KAT) NO. 37 OF 2014

restored and that is how the present OP has come up for hearing

before us.

9. We have heard both sides in extenso. Sri.K.Jaju Babu,

learned Sr. Counsel instructed by Sri.Brijesh Mohan, learned

Counsel appearing for the petitioner has strongly and fervently

urged that the Tribunal and this Court in the previous occasion has

egregiously erred in not placing reliance on the judgment dated

13.01.2004 rendered by the Division Bench of this Court in W.A.No.

2145/2003 and in not having granted relief to the petitioner by

allowing his claim for the 2nd highest grade and the 3rd higher grade

by adding his prior Military/war service. The said pleas of the Sr.

counsel appearing for the petitioner has been rebutted by

Sri.B.Unnikrishna Kaimal, learned Sr. Government Pleader

appearing for the respondents and would submit that going by the

reasonings adopted by the Tribunal in the impugned verdict, the

applicant cannot have a claim to add his prior service for grant of

time bound higher grade more than once. After anxiously

considering the rival pleas, we note that the Full Bench of three

judges of this Court in the decision of State of Kerala and

Others Vs. V.J.Philomina (2008 (1) KHC 665) = (ILR 2008 (1) OP(KAT) NO. 37 OF 2014

Ker.453) = (2008 (1) KLT 666), judgment dated 12.12.2007 of the Full

Bench in W.A. No.476 of 2007 has considered the very same issue and

had overruled the dictum laid down by the Division Bench of this Court

in a similar case (WA No.2006 of 2003) in the case in State of

Kerala Vs. Sreedharan reported in 2004 KHC 65 = 2004 (1) KLJ

487 = 2004 (1) KLT 398 and yet another judgment cited therein. It is

pertinent to refer to paragraphs 3 and 4 of the decision rendered by the

Full Bench in V.J.Philomina's case (supra), which reads as follows:

"By Government order GO.(P) 132/91/(98)/Fin. Dated 21/02/1991 Government decided to extend the above said benefit of reckoning military service to category of Gazetted Officers also for the 10 year time bound grade promotions. The above Government orders only mention that benefit of military service can be reckoned as qualifying service for the 10 years bound grade promotions (the first higher grade) and not thereafter. The Government orders were silent on the question whether for granting subsequent grade promotions on completion of 20-25 year's service, the prior military service can be counted or not. In the absence of counting of such benefit normally it cannot be granted. By circular No. 54/92/ (138)/Fin dated 6th November 1992, Government issued general guidelines for sanctioning time bound higher grades. In the above, with regard to military service it was shown as follows:

"(xiv) War / Military service which counts for Civil Pension will be reckoned for computing the qualifying service for the grant of higher grade, Civilian Service under military will not, however, count for higher grade. (GO (P) 764/81/(384) Fin. Dated 21/02/1991)".

Thereafter Government further issued a pay revision order GO (P) 930/93/(2)/Fin. dated 8th December, 1993 wherein it is clearly stated as follows:

"(iv). War / Military Service which counts for Civil Pension will 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. So it is very clearly stated that the qualifying military service will be counted only for the first higher grade which implies that OP(KAT) NO. 37 OF 2014

for subsequent higher grade promotions it may not be applicable. But in the circular dated 6th November, 1992 Government did not specifically state that it is applicable only for one grade promotion. Hence several employees made claim. Thereafter a clarification was issued by the Government vide circular dated 14th February, 1996 which is as follows:

"O) 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 01/07/1979 to 29/02/1992. (ii) In the case of Gazetted Officers, War / Military Service which counts for civil pension will be reckoned for only one higher grade with effect from 01/07/1988. (iii) With effect from 01/03/1992, War / Military Service which counts for civil pension will be reckoned for higher grade once.' So any doubt regarding the above was clarified by the Government. But at paragraph 4 of the circular the Government also stated that appointment by transfer are treated as equal to direct recruitment and that was challenged and it was set aside by judgment dated 12/12/2001. According to the learned Judge, clarification in Ext P4 was against the Government orders and no Circular can be passed explaining the Government order against the order itself and it can be done only by issuing another Government Order. But the clarification regarding counting of military service was not set aside. But by way of caution another Government Order GO (P) 62213/Fin dated 26 th November, 2003 was issued. In that order at paragraph 3 it is stated regarding the counting of military service. Paragraph 3 reads as follows "3. As per para 2 (XIV) of the Circular Second read above War / Military Service counts for civil pension would reckoned as qualifying service for granting higher grade to Non Gazetted Officers and Gazetted Officers with effect from 01/07/1979 and 01/07/1988 respectively. It has been ordered in Para 4 (VI) of the Government order reads as third 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 be pleased to issue further clarifications to the above clause as follows:

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 01/07/1979 to 29/02/1992

(ii) In the case of Gazetted Officers, War / Military service which counts for civil pension will be reckoned for only one higher grade with effect from 01/07/1988

(iii) With effect from 01/03/1992, War / Military service OP(KAT) NO. 37 OF 2014

which counts for civil pension will be reckoned for one higher grade only in respect of non gazetted and gazetted officers."

In Sreedharan's case (supra) 1991 Government Orders and Circulars / Clarifications issued by the Government in 1996 and 2003 were not brought out. Sreedharan's case was also followed by another Division Bench WA No. 2145/2003. In it also 1991 Government Orders, 1996 circulars and 2003 Government orders etc. were not brought out. If the Government Orders were brought to the notice of the Court, decision would have been otherwise. After considering those Government orders, the learned Single Judge in the impugned order observed as follows: "It is contended that the military service is reckonable not only for computing the period required for the grant of the first higher grade but also for the second and third higher grades and that the objection raised by the Accountant General and endorsed by the 1st respondent run counter to the ruling of the Division Bench of this Court in State of Kerala v. Sreedharan 2004 (1) KLT 398. While the learned counsel for the petitioner places reliance on the above decision, the learned Government Pleader has taken up the contention that the statement of law made in the above decision is not correct and the same requires reconsideration. As per the scheme formulated by the Government for the grant of the time bound higher grades, the employees are eligible to get the first higher grade promotion in the entry grade on completion of 10 years of service, the second higher grade on completion of either 10 years of service in the first promoted post or a total service of 20 years in the entry post and the first regular promotion / time bound higher grade together and finally the third higher grade on completion of a total service of 25 years. Ordinarily, the service rendered in the Government departments alone need be taken into account for the purpose of computing the requisite length of service for granting higher grades. Right to enjoy the benefit of higher grade is traceable to the Government orders on the subject and dehors such Government orders, no employee can enjoy that benefit. Time bound higher grade is not a condition of service guaranteed by the statutory rules, but a concession intended to lessen the severity of stagnation for want of regular promotion. The completion of the requisite length of service, i.e., 10 years, 20 years and 25 years for the grant of the first, the second and the third higher grades respectively is a must. In the case of those who had rendered war / military service which counts for civil pension, the period covered by such service can be reckoned while computing the minimum period required for the grant of the higher grade. This benefit was granted as per Circular No. 54/92/(138)/Fin. Dated 06/11/1992 which is referred to as the first paper in Ext. P4 order. As per para 2 (XIV) of the above Circular, War / Military Service which counts for civil pension would be OP(KAT) NO. 37 OF 2014

reckoned as qualifying service for the grant of higher grade to Non Gazetted Officers and Gazetted Officers with effect from 01/07/1979 and 01/07/1988 respectively. By Ext. P4 order, it was made clear that with effect from 01/03/1992 the above benefit of counting war / military service for the grant of higher grade can be availed only once. The intention of the Government while laying down the conditions for the grant of the higher grade by counting War / Military Service is quite clear, i.e., the benefit of the military service can be reckoned only for the grant of one higher grade. We agree with the above views of the learned Single Judge that when concessions having financial implications are granted by the Government widening the scope of such concessions by judicial interpretation would invite unexpected burden on the public exchequer. Time bound higher grade is not a condition of service guaranteed by statutory rules but a concession extended to employees who are stagnating in a particular post for want of regular promotion.

4. As far as the facts of this case are concerned, petitioner joined the Government service only on 18/02/1984. In view of the Government Order of 1985, time bound higher grade promotion was granted with effect from 16/09/1985. Taking the military service, that is, after 1' years of entry in service, she got first higher grade promotion as her military service was from 16/12/1971 to 27/08/1982, that is, 10 years and 8 months. She will get the second grade promotion only after 10 years, that is, on 16/09/1995 only and her claim that she is entitled to get second grade promotion on completion of 20 years reckoning the military service from 16/12/1971 to 27/08/1982 is not contemplated by the Government orders. If the petitioner avails the second higher grade only after 20 years of total service from the entry point, she will get the same only on 18/02/2005. But the earliest date, the petitioner can claim the second grade benefit as 10 years after the first grade promotion, that is on 16/09/1995. That benefit was not taken away. Ten years of service is taken from 16/09/1995, the date when first grade promotion was granted reckoning the military service also. If she gets second grade promotion after 10 years of service after first grade promotion, there is no stagnation. Therefore the observations of the Division Bench in Kerala v. Sreedharan, 2004 KHC 65 : 2004 (1) KLJ 487 : 2004 (1) KLT 398 has not laid down the correct legal position. The prior military service can be reckoned only for granting the first grade promotion. It cannot be reckoned for granting subsequent grade promotions. Hence we overrule the dicta in Sreedharan's case. The relevant Government orders and circulars were not produced before the Division Bench that lead to the above findings.

OP(KAT) NO. 37 OF 2014

10. A reading of the aforesaid decision of the above said

decision of the Full Bench in V.J.Philomina's case supra would make

it clear that the Full Bench has categorically enumerated therein,

that going by the applicable Government norms, the time bound

higher grade can be claimed only once by adding the military/war

service along with the Government service and the dictum in

Annexure B judgment (reported in 2004 KHC 65) stands thus

overruled. Hence, the above said claims and contentions of the

petitioner are not tenable or sustainable in law. In other words, the

impugned verdict of the Tribunal dismissing the above Transferred

Application does not deserve any interdiction at the hands of this