ANIL K.NARENDRAN , J.
The petitioners in this O.P.(KAT) are the respondents in O.A.No.784/2012 filed before the Kerala Administrative Tribunal at Thiruvananthapuram. Respondents 2 and 3 herein approached the Tribunal in the said O.A., seeking an order to set aside Annexures A9, A10 and A14 orders issued by the 3rd petitioner herein and seeking an order directing the petitioners herein to grant them higher grade and fixation of pay, reckoning their prior military service as qualifying service for higher grade. The Tribunal by Exhibit P2 order dated 22.7.2012 allowed the O.A., setting aside Annexures A9, A10 and A14, relying on Annexure A3 judgment of this Court dated 30.1.2008 in W.P.(C)No.25304/2006, which was confirmed in appeal by Annexure A4 judgment of the Division Bench of this Court dated 1.3.2010 in W.A.No.1308/2008. By Exhibit P2 order, the Tribunal directed the petitioners herein to consider the claim of respondents 2 and 3 herein for first higher grade, counting their military service also, in the light of the observations made in the order and release the benefits found due to them, within three months from the date of receipt of a copy of the order. It is aggrieved by Exhibit P2 order of the Tribunal, the petitioners are before us in this Original Petition.
2. The main contention raised in this O.P.(KAT) is that the issue is covered against respondents 2 and 3 herein by the decision of this Court in State of Kerala v. Baburaj (2012(4) KLT 550).
3. As we have already noticed, the Tribunal in Exhibit P2 order dated 22.7.2012 set aside Annexures A9, A10 and A14 orders, relying on Annexure A3 judgment of this Court, which was confirmed in appeal by Annexure A4 judgment of the Division Bench of this Court dated 1.3.2010 in W.A.No.1308/2008. Seeking review of Annexure A4 judgment, the State filed R.P.No.248/2011, which was allowed by order dated 31.7.2012, recalling Annexure A4 judgment. Later, W.A.No.1308/2008 filed by the State was allowed by judgment dated 12.9.2012 (reported in 2012(4) KLT 550), setting aside Annexure A3 judgment of the learned Single Judge.
4. In Baburaj's case (supra), the question raised before this Court was whether past military service can be reckoned as service qualifying for computation of higher grade. Setting aside Annexure A3 judgment of the learned Single Judge, the Division Bench held that, all conditions required to earn civil pension as envisaged under Rule 8(c) of Part III KSR are applicable to earn higher grade. Paragraphs 11 and 12 of the judgment read thus;
“11. Then coming to the proviso to R.8(c), this is with reference to computation of civil pension. Ex-service men who are re-employed in civil service to enable them to earn civil pension after retirement from State Service, they have to comply with these conditions. R.8(c) refers to a situation that Ex-service men should be re-employed in civil service and he must have retired under Military Service before he earned a pension. It is again subject to two conditions by virtue of proviso (1) and proviso (2). The first proviso envisages return of bonus or gratuity, if any received for the period of military service rendered by the Ex-service men concerned from the Defence Department. He has to return the said amount to the Department from where he received bonus or gratuity if he opts to have civil pension on his retirement. The second proviso dis-entitles a civil servant, who is an Ex-service man from receiving State pension if he is already receiving Military pension. Therefore, in order to enable a person to earn State pension which is called as civil pension with reference to Ex-service men, one has to strictly comply with the conditions envisaged under R.8(c) proviso (1) and (2), then alone he would be entitled for civil pension if he makes an option. These conditions which enables an Ex- service man to earn civil pension mutatis mutandis apply to Ex-service men, who seek benefit of higher grade as per the GOs of the Government issued from time to time including the GO at Ext. P2. If the intention of the State Government was to allow such higher grade immediately after acquiring the required number of qualifying service, there was no need to use the word 'civil pension' with reference to reckoning the Military Service rendered in the War or Military. Therefore, without using the word 'civil pension' they could have still allowed the Ex-service men who are re-employed in the different department to earn higher grade.
12. Then coming to the argument of the learned counsel for the respondents/writ petitioners that there is discrimination between similarly placed Ex-service men, we are unable to accept this contention because R.8(c) and proviso (2) clearly indicate, if the Ex-service men is terminated before a pension has been earned by him or if he is earning a Military pension he is not entitled for civil pension unless and until certain conditions are complied with. Therefore, the situation explained or the ingredients of R.8(c) and the proviso definitely will not create any discrimination between the same class of persons by virtue of earning military pension or otherwise. Once a person is earning military pension he will not automatically be entitled to civil pension unless he surrenders such pension by opting out for civil pension. Therefore it will definitely not lead to a situation where some of Ex-service men who are already drawing military pension will get double benefit i.e. State pension and also military pension. As submitted by the learned Government Pleader, R.91 to 95 and R.101 which read as under clearly indicates how pension will be computed with reference to different classification depending, upon the number of years and different circumstances. However, none of these rules would indicate contra to the argument advanced by learned Government Pleader. On the other hand, these provisions i.e. R.91 to 95 and 101 would support the arguments advanced by the learned Government Pleader and reading of R.8(c) along with proviso, if read along with these R.91 to 95 and 101, it would make the intention of the Government very clear as indicated at Ext. P2 that all the conditions required to earn civil pension as envisaged under R.8(c) are applicable to earn higher grade referred to at Ext. P2 and other similar GOs.”
5. Going by the dictum laid down in Baburaj's case (supra), in order to enable a person, who is an Ex-service man, to earn State pension, which is called as civil pension, one has to strictly comply with the conditions envisaged under Rule 8(c) proviso (1) and (2), and then alone he would be entitled for civil pension, if he makes an option. These conditions which enables Ex-service men to earn civil pension mutatis mutandis apply to Ex-service men, who seek benefit of higher grade as per the Government orders issued from time to time including Annexures A1 and A2 Government orders dated 16.11.1981 and 26.11.2003 respectively, produced along with the O.A. In Annexures A9 and A10 orders, the request made by respondents 2 and 3 herein to reckon their past military service as qualifying service for computation of higher grade was rejected stating that, it cannot be reckoned as qualifying service for higher grade without refund of the terminal benefits availed for military service. Even after the receipt of Annexures A9 and A10 orders, respondents 2 and 3 herein have not chosen to refund the terminal benefits availed for military service. Later, the request made by them for reconsideration of Annexures A9 and A10 orders was also rejected in Annexure A14 order.
6. The pendency of the Review Petition filed by the State against Annexure A4 judgment was never brought to the notice of the Tribunal and therefore, the Tribunal allowed the O.A. by Exhibit P2 order placing reliance on the said judgment. As rightly contended by the learned Senior Government Pleader, the issue is now covered against respondents 2 and 3 herein by the decision of this Court in Baburaj's case (supra). In such circumstances, the challenge made against Annexures A9, A10 and A14 orders in the O.A. filed by respondents and 3 can only be rejected and we do so.
In the result, this O.P.(KAT) is allowed, setting aside Exhibit P2 order passed by the Tribunal.
Sd/-
ANTONY DOMINIC, JUDGE dsn Sd/-
ANIL K.NARENDRAN, JUDGE