K. Gangadhara Marar v State of Kerala and Others

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 24[TH] 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** **--------------------------------------W.P.(C) No. 29099 of 2020 -------------------------------------Dated this the 24[th] 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 1[st] respondent to WP(C) NO. 29099 OF 2020 4 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 3[rd] 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 1[st] 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 WP(C) NO. 29099 OF 2020 5 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 3[rd] 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. WP(C) NO. 29099 OF 2020 6 “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 1[st] 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 reemployed 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 WP(C) NO. 29099 OF 2020 7 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 WP(C) NO. 29099 OF 2020 8 manner : - 1) Ext.P7 is set aside. - 2) The 1[st] 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 1[st] respondent for compliance. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 29099 OF 2020 9 ## **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|