Kerala High Court
S Jayakumar vs State Of Kerala on 15 January, 2020
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941
WP(C).No.4858 OF 2017(F)
PETITIONER:
S JAYAKUMAR
AGED 50 YEARS
SENIOR GRADE COMPUTER ASSISTANT,
LEGISLATURE SECRETARIAT, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695033, RESIDING AT JAYAGIRI,
KGRA-A67, CHERUVICKAL, SREEKARIYAM PO,
THIRUVANANTHAPURAM.695017.
BY ADVS.
SRI.S.VISHNU
SRI.M.J.AJITH MOHAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY,LEGISLATURE
SECRETARIAT,ASSEMBLY BUILDING, VIKAS
BHAVAN,THIRUVANANTHAPURAM.695033.
2 THE ADDITIONAL CHIEF SECRETARY
FINANCE DEPARTMENT, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM.695001.
OTHER PRESENT:
SUNIL KUMAR KURIAKOSE-G.P
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.4858 OF 2017(F)
2
J U D G M E N T
Petitioner is an Ex-serviceman who served the Indian Air Force for a period of 20 years from 03.01.1984 to 31.01.2004. On being discharged from the Indian Air Force, he joined the office of the Advocate General as a Typist Grade-II on 25.11.2008. He joined the Legislature Secretariat based on an inter departmental transfer on 06.09.2009. His probation was declared on 06.02.2011. On the very same day he was granted promotion as Typist Gr.I. He was granted promotion as Senior Grade Computer Assistant on 04.09.2013 and as Selection Grade Computer Assistant on 04.06.2017. The complaint of the petitioner in this case is as against Ext.P21 order by which the higher grade granted to him as per Exts.P8 and P14 were withdrawn. Petitioner has got a further contention that he is entitled to be granted the higher grade in the scale of pay admissible to Typist Grade I on the date of his appointment itself, WP(C).No.4858 OF 2017(F) 3 in view of Ext.P16 order, as he is an Ex-Combatant Clerk who rendered service for a period of 20 years.
2. As per Clause 9 of Ext.P16 Pay Revision Order higher grades were made admissible on completion of 8, 16 and 23 years of service. As per Ext.P1 order issued on 01.08.1979 Government had ordered that the War/Military Service which counts for civil pension will also be reckoned for computing the 13 years' qualifying service for grant of the benefit of higher grade in respect of non-gazetted officers. Ext.P2 consolidated instructions also reiterate in paragraph XIV i.e., War/Military service which counts for Civil Pension would be reckoned for computing the qualifying service for grant of higher grade. These benefits were continued to be allowed in the subsequent Pay Revision Orders also, as can be seen from Ext.P3 and subsequent orders. Apart from the benefit of higher grade in Exts.P1 to P3 orders, Government had already issued Ext.P29 order on 07.09.1974 where it was ordered that:
WP(C).No.4858 OF 2017(F) 4 "(a)The initial pay of Ex-combatant Clerks/Storemen re-employed in Civil posts as Lower Division Clerks/Junior Clerks Storemen under State Government will be fixed at a higher stage in the scale above the minimum by allowing one increment for each completed year of service in the Defence Forces as combatant Clerk/Storeman. The pension and pension equivalent of gratuity if any, which does not exceed Rs.15 per mensem will be ignored in respect of pensionary benefits exceeding Rs.15 per mensem the authority competent to determine the pay will have discretion to ignore Rs.15 or a smaller amount that it may consider justified depending upon the circumstance.
(b) The benefits of this order and that of G.O.(P) 725/64/Fin. Dated 19.10.1964 will not be simultaneously awarded to a re-employed officer.
The Ex-combatant Clerks/Storemen will however have the option to get their pay fixed under either of the two sets of Orders."
3. It is also relevant to note what Government said about G.O.(P).725/64/Fin dated 19.10.1964 in paragraph 1 of this order:
"In the Government Order read as first paper Government have issued orders in the case of re- employed military pensioners of all categories including mustered out pensioners, fixing the pay admissible to them in the Civil posts. In the Office Memorandum read as second paper, the Government of India have ordered that ex-combatant Clerks re- employed as lower division Clerks in Civil posts under Central Government their initial pay in the re- employed post will be fixed at a higher stage by allowing one increment for each completed year of service in the Defence Forces."
4. By Ext.P30 order dated 25.06.1977 the benefit of Ext.P29 order dated 07.09.1974 of granting WP(C).No.4858 OF 2017(F) 5 of increments was extended to the Ex-combatant Clerks/Storemen retired/released from service in the Armed Forces and re-employed as Typists in the Civil Departments. It was also ordered that they would exercise their option as required in the G.O. dated 07.09.1974. Petitioner submitted representation requesting for fixing of his pay in the light of the aforesaid Government Orders. On the basis of the direction contained in the judgment in W.P. (C).No.32064 of 2010 Government issued Ext.P8 order on 22.03.2011 fixing the pay of the petitioner granting him first time bound higher grade, reckoning his Military Service, in the pay scale of Rs.6680- 10790 w.e.f. 06.02.2009, the date on which he joined the Secretariat and thereafter in the pay scale of 7990-12930 w.e.f. 06.02.2011 i.e., the date on which his probation was declared and he was granted promotion as Typist Grade I. While so, Government issued Ext.P10 order on 12.02.2013 on the basis of the judgment in W.A.No.269 of 2011. By this order WP(C).No.4858 OF 2017(F) 6 higher grade granted and the fixation of pay based on that in the case of petitioner and others were cancelled. It is stated that the matter relating to fixation of pay on grant of higher grade in respect of the Ex-servicemen was taken up before the Apex Court which culminated in Ext.P11 order of the Apex Court. On the basis of Ext.P11 order, Government issued Ext.P12 order dated 14.09.2015 in which it was ordered as follows:
"(4) Government have examined the matter in detail and are pleased to clarify that the ex-servicemen who were under war/military service got appointment in the state civil service in Gazetted and Non-
gazetted posts are eligible to get the benefit of first time bound higher grade by counting their war/military service without refunding their mustering out benefits. The civilian service under military will not be counted for granting higher grade."
5. Thereafter Government issued Ext.P14 order restoring the higher grade at the same time giving effect to the same from 25.11.2008 the date on which petitioner entered service as Typist Grade II. However the higher grade was granted in an intermediary grade and not in the grade of Typist WP(C).No.4858 OF 2017(F) 7 Grade I which was the promotion post.
6. Petitioner filed W.P.(C).No.34768 of 2015 challenging the orders Exts.P8 and P14 and seeking for directions to grant him higher grade in the scale of pay admissible to the promotion post. It is stated that during the pendency of that writ petition Government issued Ext.21 order on 17.06.2016 again restoring the first higher grade to the petitioner, cancelling Ext.P14 order. It is pointed out that in the meanwhile the petitioner was directed to remit a sum of Rs.22,114/- towards the excess pay drawn by him consequent to grant of higher grade. That order was issued on the basis of Ext.P10 order which was restored in Ext.P21 order. It is pointed out that even after restoring the higher grade the amount remitted on the basis Ext.P20 order is not so far refunded.
7. On receipt of Ext.P21 order petitioner got himself withdrawn from W.P.(C).No.34768 of 2015 and filed this writ petition challenging the orders WP(C).No.4858 OF 2017(F) 8 Exts.P8, P14, P20 and P21 to the extent the first higher grade was not granted to him in the scale of pay of regular promotion post of Typist Grade I w.e.f. the date of his initial appointment.
8. The case of the petitioner is that in the light of the orders issued by Government in Exts.P1 to P3 and Exts.30 to 31, he being an Ex-serviceman with 20 years of service is entitled to get the higher grade w.e.f. date of his appointment and that higher grade is to be fixed in the scale of pay admissible to the promotion post. As per the orders governing the grade promotion whenever there is a promotion post and the employees are qualified for the same, they would be eligible for higher grade in the scale of pay admissible to the promotion post.
9. First respondent has filed a counter affidavit stating that the petitioner was granted protection of pay. It is stated that petitioner is an Ex-combatant Clerk with 20 years of service in Indian Air Force. On his re-employment as Typist Grade II on WP(C).No.4858 OF 2017(F) 9 25.11.2008 in the scale of pay of Rs.6080-9830; he was eligible to get his initial pay fixed at a higher stage above the minimum by allowing one increment for each completed year of service in the Military as per Government Order dated 07.09.1974 and 25.06.1977. Therefore his pay was fixed at Rs.7480 w.e.f. 25.11.2008 by granting 20 increments for his 20 years of Military Service as per Ext.P28 order. As per Circular dated 08.08.2008 it was clarified that Ex- service men enjoying the benefit of protection of pay will not be allowed time bound higher grade reckoning war/military service and in such cases service under the State Government alone will be reckoned as qualifying service for granting time bound higher grade promotions. It is stated that petitioner's pay was protected in the light of the aforesaid clarification fixing his initial pay after counting the military service. It is stated that the time bound higher grade granted to petitioner was cancelled as per Ext.P21 order. According to them as WP(C).No.4858 OF 2017(F) 10 per the Circular dated 08.08.2008 the war/military service can be reckoned either for time bound higher grade or for pay protection. It is further stated that for all regular promotions, declaration of probation is necessary and therefore the scale of pay of regular promotion post was admissible to him only on declaration of probation. It is therefore stated that petitioner was only eligible for the intermediary scale of pay while sanctioning the first time bound higher grade. Paragraphs 5 and 6 reads as follows:
"It is submitted that the petitioner is an Ex- Combatant Clerk retired from Indian Airforce after 20 years of service. He was re-employed as Typist Grade-II in the State Government Service on 25.11.2008 in the pay scale of Rs.6080-9830. On this re-employment, he was eligible to get his initial pay fixed at a higher stage above minimum by allowing one increment for each completed year of service in the military, as per G.O.(P) No.290/74/Fin dated 07.09.1974 and G.O.(P) No.205/77/Fin dated 25.06.1977. Hence his initial pay was fixed on Rs.7480 and personal pay of Rs.5/- with effect from 25.11.2008 by granting 20 increments for his 20 years of military service vide G.O.(Ms) No.875/2013/Leg dated 06.07.2013. But, the Finance Department clarified that as per para no. 24 of Circular No.46/08/Fin dated 08.08.2008, Ex- Service men enjoying the benefit of protection of pay will not be allowed time bound higher grade reckoning war/military service and in such case WP(C).No.4858 OF 2017(F) 11 service under the State Government alone will be reckoned as qualifying service for granting time bound higher grade promotions. In the light of the above clarification, and since the pay of the petitioner was protected by fixing the initial pay after counting the Military Service, the time bound higher grade granted to the petitioner was cancelled vide G.O(Ms) No. 1026/16/Leg dated 17.06.2016. As per the Circular No. 46/08/Fin dated 08.08.2008, it is clear that the war/military service can be reckoned either for time bound higher grade or for pay protection.
6. It is submitted that for all regular promotions declaration of probation is necessary and the only qualification prescribed for the promotion to the post of Typist Grade-I is the declaration of probation in the post of Typist Grade II. Therefore the scale of pay of the regular promotion post (Typist Grade I) could not be granted to Sri.S.Jayakumar while granting Time Bound Higher Grade and the intermediary scale of pay Rs.6680- 10790 was allowed as per GO(P) No.145/06 Fin dated 25.03.2006 with effect from 06.02.2009. Further, on declaration of probation, he was promoted as Typist Grade-I with effect from 06.02.2011 on the scale of pay Rs.7990-12930. Since the declaration of probation in the post of Typist Grade II is mandatory for the promotion to the post of Typist Grade-I (Regular promotion), Sri.S.Jayakumar was only eligible for the intermediary scale of pay while sanctioning the first Time Bound Higher Grade. Therefore Government order dated, 22.03.2011 is legally correct. Moreover the first Time Bound Higher Grade to Sri.S.Jayakumar was sanctioned with effect from 06.02.2009 i.e. date of his joining in this Secretariat. But he gave an absolutely wrong statement that he was sanctioned the first Time Bound Higher Grade as on 06.02.2011, i.e the date on which he was promoted a Typist Grade-I."
10. The Circular referred to by the first respondent in the counter affidavit is Ext.P25, which is a compendium of various Govt. orders with respect WP(C).No.4858 OF 2017(F) 12 to grant of time bound higher grade. Paragraph 24 of the Circular reads as follows:
"24. 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 (G.O. (P) 764/81/(384)/Fin dated 16.11.81 and G.O.(P) 132/91(98)/Fin. dated 21.2.1991). In case of non-gazetted employees who are not in receipt of military pension, their War/Military service which counts for civil pension was reckoned for 10, 20, 25 years time bound higher grade for the period from 1.7.1979 to 28.2.1992. But with effect from 1.3.1992 War/Military Service which counts for civil pension will be reckoned for one time bound higher grade vide G.O.(P).No.622/2003/Fin. dated 26.11.2003. All employees who have got appointment in civil posts after discharge from Military service and who are eligible to get their military service counted for time bound higher grade and civil pension, should refund the mustering out concessions for getting those benefits (Circular No.95/97/Fin. dated 16.12.1997. In the case of belated refund of mustering out benefits drawn for the Military service, the monetary benefit consequent on grant of time bound higher grades will be available only from the date of refund of the mustering out concessions.
However, ex-servicemen enjoying protection of pay will not be allowed time bound higher grade reckoning war/military service and in such cases, service under State Government alone will be reckoned as qualifying service for granting time bound higher grade promotions (para 19 of Annexure 3 to G.O.(P) 145/2006/Fin. dated 25.3.2006. Those who are in receipt of military pension are not eligible for time bound higher grade reckoning their war/military service as per Rule 8(c) Part III K.S.Rs."
11. Even though the paragraph 24 provides that Ex-servicemen enjoying protection of pay would not be allowed time bound higher grade reckoning their military service as qualifying service for granting WP(C).No.4858 OF 2017(F) 13 higher grade, no order is produced which provides for protection of pay or to show that petitioner is an Ex-service men who is enjoying protection of pay. What is done in his case is that he got his pay fixed on the basis of various orders issued by Government reckoning the total number of years of service in Air Force. That cannot be said to be protection of pay. There would be several Ex-servicemen who were serving the Armed Forces in various ranks and got appointment in various posts. In order to protect their pay, the pay drawn by them in Military service will have to be protected on re-employment in State Government Service. That cannot be a uniform process in all case of Ex-Servicemen. At the same time in the case of the petitioner his pay alone was fixed reckoning the number of years of Military Service. Protection would depend upon the post in which person is re- employed and the posts from which the person retired from the Armed Forces which will be entirely different in almost all the cases where fixation of WP(C).No.4858 OF 2017(F) 14 pay is granted and it is also pertinent to note that the fixation of pay after granting increments equal to the number of years of service is admissible only for the Ex-combatant Clerks. Therefore I am of the view that paragraph 24 of Ext.P25 does not apply to the case of the petitioner as the petitioner is not granted protection of pay. Yet another ground stated that petitioner had not completed probation for granting him the higher grade in the scale of pay admissible to the promotion post. It is relevant to note that Ext.P25 Circular itself in paragraph 15 provides "Declaration of probation is not necessary for an employee for giving time bound grade promotion".
12. At any rate even without going into that contention of the learned counsel for the petitioner, as and when the declaration of the probation of the petitioner was ordered he would be entitled to the scale of pay admissible to the promotion post and once probation is declared it is only just and proper WP(C).No.4858 OF 2017(F) 15 that the higher pay is granted to him with retrospective effect from the date on which he was appointed. Therefore the grounds stated for denying the higher grade with effect from the date of his appointment and contention regarding the grant of protection of pay are unsustainable.
13. Accordingly I find that petitioner was entitled to get the higher grade with effect from 25.11.2008 in the scale of pay admissible to the post of Typist Grade I, in view of the fact that his probation has been declared subsequently.
Therefore there shall be a direction to the respondents to fix the pay of the petitioner granting him the 1st higher grade w.e.f. 25.11.2008 in the scale of pay applicable to the post of Typist Grade I and to grant him all consequential benefits within a period of 'four months' from the date of receipt of a copy of the judgment. The orders Exts.P8, P14, P20 and P21 to the extent those orders denied him the fist higher grade with effect from the date of WP(C).No.4858 OF 2017(F) 16 appointment shall stand set aside. It is made clear that the eligibility of the petitioner for first higher grade in the scale of pay admissible to the promotion post is ordered, in view of the fact that petitioner has already completed probation.
There shall be a further direction to the respondents to refund the sum of Rs.22,114/- remitted by the petitioner consequent to Ext.P20 order, within a period of one month from the date of receipt of copy of the judgment.
The writ petition is disposed of accordingly.
Sd/-
P.V.ASHA, JUDGE.
AS WP(C).No.4858 OF 2017(F) 17 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE G.O.(P) NO.764/81 (384)/FIN. DATED 16.11.1981 ISSUED BY THE GOVERNMENT.
EXHIBIT P2 TRUE COPY OF THE CIRCULAR NO.54/92(138)/FIN. DATED 6.11.1992 ISSUED BY THE GOVERNMENT.
EXHIBIT P3 TRUE COPY OF THE G.O (P) NO.930/93(2)/FIN. DATED 8.12.1993 ISSUED BY THE GOVERNMENT.
EXHIBIT P4 TRUE COPY OF THE G.O.(P) NO.622/03/FIN. DATED 26.11.2003 ISSUED BY THE GOVERNMENT.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 5.8.2005 ISSUED BY THE GOVERNMENT. EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 8.6.2005 ISSUED BY THE GOVERNMENT.
EXHIBIT P7 TRUE COPY OF THE G.O.(P) NO.62/81(282)/FIN. DATED 20.1.1981 ISSUED BY THE GOVERNMENT.
EXHIBIT P8 TRUE COPY OF THE G.O.(MS) NO.321/2011/LEG. DATED 22.3.2011 ISSUED BY THE GOVERNMENT.
EXHIBIT P9 TRUE COPY OF G.O.(MS) NO.110/2013/LEG.
DATED 31.1.2013 ISSUED BY THE GOVERNMENT.
EXHIBIT P10 TRUE COPY OF THE G.O (MS) NO.161/2013/LEG. DATED 12.2.2013 ISSUED BY THE GOVERNMENT.
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 25.3.2015 IN CIVIL APPEAL NO.3136/2015 OF THE HON'BLE COURT.
EXHIBIT P12 TRUE COPY OF THE G.O.(P) NO.408/2015/FIN. DATED 14.9.2015 ISSUED BY THE GOVERNMENT.
WP(C).No.4858 OF 2017(F) 18 EXHIBIT P13 TRUE COPY OF THE G.O.(MS) NO.920/2015/LEG. DATED 9.7.2015 ISSUED BY THE GOVERNMENT.
EXHIBIT P14 TRUE COPY OF THE G.O.(MS) NO.983/2015/LEG. DATED 24.7.2015 ISSUED BY THE RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE OFFICE ORDER NO.11027/ACCI/2011/LEG. DATED 28.4.2011 ISSUED BY THE RESPONDENT.
EXHIBIT P16 TRUE COPY OF THE G.O.(P) NO.145/2006/FIN. DATED 25.3.2006 ISSUED BY THE GOVERNMENT.
EXHIBIT P17 TRUE COPY OF THE ORDER NO.A2/17832/2015/DSW DATED 19.10.2015 ISSUED BY THE ADMINISTRATIVE OFFICER OF THE DIRECTORATE OF SAINIK WELFARE, THIRUVANANTHAPURAM.
EXHIBIT P18 TRUE COPY OF THE ORDER NO.
A2/17831/2015/DSW DATED 6.10.2015 ISSUED BY THE ADMINISTRATIVE OFFICER OF DIRECTORATE OF SAINIK WELFARE, THIRUVANANTHAPURAM.
EXHIBIT P19 TRUE COPY OF ORDER NO.EI/3941/2015/ARU.COL. DATED 9.10.2015 ISSUED BY THE ADMINISTRATIVE OFFICER OF GOVT. AYURVEDA COLLEGE.
EXHIBIT P20 TRUE COPY OF ORDER NO.125096/ACCI/2013/LEG. DATED 21.10.2015 ISSUED BY THE RESPONDENT.
EXHIBIT P21 TRUE COPY OF G.O.(MS) NO.1026/2016/LEG. DATED 17.6.2016 ISSUED BY THE RESPONDENT.
EXHIBIT P22 TRUE COPY OF THE COMMUNICATION DATED 15.7.2013 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P23 TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN WP(C) NO.34768/2015 OF THE HON'BLE COURT.
WP(C).No.4858 OF 2017(F) 19 EXHIBIT P24 TRUE COPY OF THE ORDER DATED 4.8.2016 IN I.A NO.12534/2016 IN WP(C) NO.34768/2015 OF THE HON'BLE COURT.