Allowed

Satheesan M.P. v. State of Kerala & Others

Kerala HC29 Mar 2021WP(C)/17042/2011

Case brief

AI extract

What is this about?

Yes, a Division Bench judgment clarified that imposing a condition to refund military pensions to get higher grade violates Article 14. Therefore, the petitioner's prior military service must be reckoned for his higher grade and pay fixation without requiring a refund.

What did the court decide?

The petitioner is entitled to pay fixation and higher grade; the 3rd respondent directed to dispose of the pending representation within six months.

Satheesan M.P. Vs State of Kerala & Others — Pension and Retirement Benefits | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

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WP(C).No.17042 OF 2011(E)

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PETITIONER :

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SATHEESAN M.P., LECTURER IN MECHANICAL ENGINEERING, SWAMI, NITHANANDA POLYTECHNIC COLLEGE, KANHANGAD-671 315, KASARAGOD DISTRICT.

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BY ADVS. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN

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RESPONDENTS :

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1 STATE OF KERALA & OTHERS, SECRETARY TO GOVERNMENT, HIGHER EDUCATION, DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2 THE DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM.

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3 THE JOINT DIRECTOR REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, VIKAS BUILDING, RAILWAY STATION ROAD, KOZHIKODE.

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BY SR.GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.17042 OF 2011(E)

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JUDGMENT

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Dated this the 29th day of March 2021

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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.

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Petitioner was appointed as a Lecturer in

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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.

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This Court has already considered on several

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WP(C).No.17042 OF 2011(E)

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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.

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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.

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WP(C).No.17042 OF 2011(E)

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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

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WP(C).No.17042 OF 2011(E)

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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 ”.

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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.

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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

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WP(C).No.17042 OF 2011(E)

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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.

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The writ petition is allowed as above.

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Sd/- BECHU KURIAN THOMAS, JUDGE

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RKM

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WP(C).No.17042 OF 2011(E)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1 : COPY OF THE ORDER, G.O.DATED 16.11.1981 ISSUED BY THE GOVERNMENT.

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P2 : COPY OF THE ORDER, G.O.DATED 06.11.1992 ISSUED BY THE GOVERNMENT.

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P3 : COPY OF THE ORDER, G.O.DATED 08.12.1993 ISSUED BY THE GOVERNMENT.

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P4 : COPY OF THE ORDER, G.O.DATED 26.11.2003 ISSUED BY THE GOVERNMENT.

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P5 : COPY OF THE COMMUNICATION DATED 05.08.2005 ISSUED BY THE GOVERNMENT.

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P6 : COPY OF THE COMMUNICATION DATED 08.06.2005 ISSUED BY THE GOVERNMENT.

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P7 : COPY OF THE JUDGMENT DATED 30.01.2008 IN W.P.(C) NO.25304/2006 OF THIS HON'BLE COURT.

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P8 : COPY OF THE JUDGMENT DATED 01.03.2010 IN W.A.NO.1308/2008 OF THIS HON'BLE COURT.

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P9 : COPY OF THE JUDGMENT DATED 01.03.2010 IN W.P.(C) NO.23825/2008 OF THIS HON'BLE COURT.

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P10 : COPY OF THE ORDER DATED 14.06.2010 ISSUED BY THE D.G.P.

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P11 : COPY OF THE JUDGMENT DATED 14.07.2010 IN W.P.(C). NO.21868/2010 OF THIS HON'BLE COURT.

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P12 : COPY OF THE JUDGMENT DATED 20.07.2010 IN W.P.C). NO.22580/2010 OF THIS HON'BLE COURT.

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P13 : COPY OF THE JUDGMENT DATED 19.08.2010 IN W.P.(C). NO.26334/2010 OF THIS HON'BLE COURT.

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P14 : COPY OF THE ORDER DATED 04.10.2010 ISSUED BY THE D.G.P.

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P15 : COPY OF THE ORDER DATED 17.09.2010 ISSUE BY THE SUPERINTENDENT OF POLICE, ERNAKULAM RURAL.

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WP(C).No.17042 OF 2011(E)

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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.

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P17 : COPY OF THE JUDGMENT DATED 29.11.2010 IN W.P.(C). NO.33769/2010 OF THIS HON'BLE COURT.

Satheesan M.P. v. State of Kerala & Others

Case brief

What is this about?

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Satheesan M.P. v. State of Kerala & Others

Case brief

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