Kerala High Court
K.Gangadhara Marar vs State Of Kerala on 24 February, 2023
WP(C) NO. 29099 OF 2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
WP(C) NO. 29099 OF 2020
PETITIONER/S:
K.GANGADHARA MARAR
AGED 68 YEARS
S/O.K.V.SHANKARA MARAR, SOUBHAGYA, (P.O) CHELERI,
KANNUR DISTRICT, PIN-670604.
BY ADVS.
K.V.BHADRA KUMARI
BYJA E.G.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM,
PIN-695001.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE
(PRC A) DEPARTMENT, THIRUVANANTHAPURAM, PIN-695001.
3 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, EDUCATION
DEPARTMENT, THIRUVANANTHAPURAM, PIN-695001.
4 THE ASSISTANT EDUCATIONAL OFFICER,
THALIPARAMBA, THALIPARAMBA SOUTH, THALIPARAMBA
(P.O), KANNUR DISTRICT, PIN-670141.
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
WP(C) NO. 29099 OF 2020 2
SRI.K.M.FAISAL, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 29099 OF 2020 3
P.V.KUNHIKRISHNAN, J
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W.P.(C) No. 29099 of 2020
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Dated this the 24th day of February, 2023
JUDGMENT
The above writ petition is filed with following prayers :
"i) To call for the records leading to the issuance of Ext P5
Govt.order and to quash the same by issuing a writ in the
nature of certiorari and direct the respondents to grant the
eligible higher grade of pay to the petitioner after counting his
military service as qualifying service for granting the same.
ii) To issue a writ in the nature of mandamus, or any other
writ, order or direction directing the respondents to grant the
higher grade of pay to the petitioner counting his military
service as qualifying service, forthwith.
iii) To declare that the petitioner is eligible to get higher
grade of pay counting his military service as qualifying service
in view of Ext P3 judgment rendered by the Hon'ble Supreme
Court.
iv) To declare that Ext P5 Govt. order is illegal and arbitrary
as the same is contrary to the law laid down by the Hon'ble
Supreme Court as per Ext P3 judgment.
v) To issue writ in the nature of mandamus, or any other
writ, order or direction directing the 1st respondent to
consider and pass order on Ext P6 representation submitted
by the petitioner forthwith.
vi) To grant such other reliefs as this Hon'ble Court may
deem fit and proper in the circumstances of the case." [SIC]
2. The petitioner is an ex-service man who had served
in the Military for a period of 18 years and 10 months. After
retirement from Military, the petitioner took TTC and joined
AUP School, Cheleri on leave vacancy in the year 1992.
Subsequently, the petitioner got permanent appointment as
Assistant Teacher in AUP School Cheleri with effect from
15.06.1993. He retired from service on superannuation on
31.03.2008. While the petitioner was in service he
approached the 3rd respondent on 29.09.2005 requesting to
grant higher grade of pay to him counting his military service
as qualifying service. When his request was turned down, the
petitioner approached this Court and as per Ext.P1 judgment,
this Court directed the 1st respondent to reconsider the
matter and to pass orders in his representation. But the 3 rd
respondent again turned down his request as per Ext.P2 order
stating that as per the existing rule, he is not eligible for the
same.
3. It is stated that subsequently when the petitioner
came to know about Ext.P3 judgment rendered by the Hon'ble
Supreme Court, the petitioner approached the 3 rd
respondent requesting to grant higher grade of pay counting
his military service in view of the said judgment, in the year
2017. Then the 3rd respondent again turned down his request
quoting Ext.P6 Government Order issued in this matter.
Ext.P7 is the order. Aggrieved by the same, this writ petition
is filed.
4. Heard the learned counsel for the petitioner and the
learned Government Pleader.
5. Today, when the matter came up for consideration,
the learned counsel for the petitioner submitted that the point
raised in this writ petition is covered in favour of the
petitioner in judgment dated 31.01.2023 in W.P.(C.) No.
18156/2011. The Government Pleader also concedes the
same. It will be better to extract the relevant portion of the
above judgment.
"5. I have heard the learned counsel for the parties and
appraised the paperbook. The relevant portion of the impugned
order Ext.P4 reads as under:
Sub: General Education Department- Sri.T.Asokan, HM,
AMLP School, Parampad West - Counting of Military Service
for senior grade - Reg.
Ref: Your letter No.B4/9730/10 dated 3.9.2010
I am to invite your attention to the reference cited and to
inform that as per para 19 of Annexure 3 of G.O(P)
No.145/06/Fin dated 25.3.2006 Military Service which will
count for civil pension of Ex-Service man will be reckoned as
qualifying service for allowing 1st higher grade only.
Therefore the request of Sri.Asokan cannot be considered.
6. The facts narrated above with regard to the employment
in the Government job after having discharged from the Army
on 11.12.1985 are not in dispute. It is also a matter of record
that the petitioner was granted the benefit of ten (10) year
higher grade which is applicable to the Ex-serviceman if re-
employed in a Government job on 22.8.1987. Ext.P4 has not
taken into consideration the fact that the petitioner once having
been granted the first benefit cannot be denied the another
benefit after the expiry of 10 year ie., in 1997. Para 4 of the
judgment V.J Philomina (supra) reads as under:
4. As far as the facts of this case are concerned, petitioner
joined the Government service only on 18.2.1984. In view of
the Government Order of 1985, time bound higher grade
promotion was granted with effect from16.9.1985. Taking the
military service, that is, after 11/2 years of entry in service,
she got first higher grade promotion as her military service
was from 16.12.1971 to 27.8.1982, that is, 10yearsand 8
months. She will get the second grade promotion only after 10
years, that is, on 16.9.1995 only and her claim that she is
entitled to get second grade promotion on completion of 20
years reckoning the military service from
16.12.1971to27.8.1982 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 18.2.2005. But the earliest date,
the petitioner can claim the second grade benefit as 10 years
after the first grade promotion, that is on 16.9.1995. That
benefit was not taken away. Ten years of service is taken from
16.9.1995, 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 (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.
7. On perusal of the same, it is evident that the petitioner
therein was given the benefit from the date of joining of service
whereas the period of 10 years should have been counted from the
date of joining and not from the original date of joining in the
Military service. In the instant case, the first benefit ie., 10 year
higher grade had already been granted on 22.8.1987 taking into
consideration 10 years service but not from the period 1975 when
the petitioner originally joined in the Army. I am of the view that
once the first higher grade benefit has been granted, the
petitioner is also eligible for the second and third higher grade.
Accordingly, the impugned order Ext.P4 is set aside. Writ petition
is allowed. Respondents are directed to grant the second and third
higher grade promotion, as expeditiously as possible, within a
period of two months from the date of receipt of a copy of this
judgment."
In the light of the same, the prayers in the writ petition is
to be allowed.
Therefore, this writ petition is allowed in the following
manner :
1) Ext.P7 is set aside.
2) The 1st respondent is directed to pass consequential
orders granting Higher Grade of pay to the petitioner
counting his Military Service as qualification service as
expeditiously as possible, at any rate within two months
from the date of receipt of a copy of this judgment.
3) The petitioner will produce a certified copy of this
judgment along with a copy of this writ petition before
the 1st respondent for compliance.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 29099/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT ISSUED BY THIS
HON'BLE COURT IN W.P.(C)NO.9623/2006
DATED 30.3.2006.
EXHIBIT P2 TRUE COPY OF THE ORDER NO.KDIS.B-1761/06
DATED 18.07.2006 OF THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE DECISION RENDERED BY THE
HON'BLE SUPREME COURT IN 'BABURAJ AND
OTHERS VS. STATE OF KERALA AND ANOTHER'
DATED 25.03.2015 AS REPORTED IN (2016) 14
SCC 345.
EXHIBIT P4 TRUE COPY OF THE GOVT. ORDER G.O.
(P)NO.408/2015/FIND DATED 14.09.2015.
EXHIBIT P5 TRUE COPY OF THE GOVT. ORDER G.O.
(P)NO.33/2016(3)/FIN DATED 03.03.2016.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT DATED 10.10.2019.
Exhibit P7 TRUE COPY OF THE ORDER DATED 24/3/2021
ISSUED BY ADDITIONAL CHIEF SECRETARY,
FINANCE DEPARTMENT TO THE PETITIONER.
Exhibit P-7 A TRUE COPY OF THE CERTIFICATE OF SERVICE
ISSUED TO BY EME RECORDS SECUNDARABAD IS
PRODUCED HERE WITH AND MARKED AS EXHIBIT
P-7
Exhibit P-8 A TRUE COPY OF THE COMMUNICATION ISSUED
FROM THE OFFICE OF THE PRINCIPAL
CONTROLLER OF DEFENSE ACCOUNTS (PENSIONS)
ALLAHABAD IS PRODUCED HEREWITH AND MARKED
AS EXHIBIT P-8
