Thottathil B. Radhakrishan, J.

These matters relate to persons who, while working as police constables, accepted appointments by direct recruitment either as village extension officers grade-II or lower division clerks, following PSC advices in that regard. After joining and working in such posts, they were given higher grades on the basis of length of service, determined also by taking into account the tenure of each of them as police constable. In its executive wisdom, the Government extended the benefit of service rendered in all posts excluding the period of actual break in service. Later, in 2006, Government clarified that such benefits would not be available. That has led to these litigations.

The question that arises is as to whether such personnel are entitled to the benefit of higher grade, also reckoning the length of service as police constables. The captioned writ appeal by the State is against a learned single Judge's interference with the reversal of such benefits. The OP(KAT) is by a Government servant challenging the decision of the Kerala Administrative Tribunal rendered, essentially, contrary to the decision of the learned single Judge impugned in the writ appeal.

2. The learned Tribunal relied on the decision of this Court in W.A.No.2939 of 2001, wherein the issue that fell for consideration was as to whether the service as a police constable could be clubbed with service as clerk, to determine the period of qualifying service for promotion to higher grade. The Bench specifically held that service as a constable could not have been clubbed with that of a clerk. Accordingly, police constables, who later joined in other departments, were found ineligible for conferment of higher grade, by counting also the length of service as police constables. Tribunal has acted in conformity with that pronouncement by this Court. We do not find any way to disagree with the decision rendered in W.A.No.2939 of 2001.

3. Not only that, as can be seen from Ext.P5, produced along with the original application before the Tribunal, even according to the Government, reckoning of total service rendered in all the posts can be only by excluding the period of actual break in service. Service jurisprudence does not envisage a Government servant, while in office, re-entering Government service by direct recruitment. Therefore, a police constable, on being selected for direct recruitment as village extension officer or lower division clerk, as the case may be, can re-enter the Government of Kerala only after demitting the office as police constable. By that exercise, there will be a total break down of the jural relationship of master and servant, as between the State Government and the officer concerned. That break in service is sufficient to break any continuity that could be claimed for any grade promotion benefits. This reasoning supports the decision in W.A.No.2939 of 2001 referred to above, and seals the issue.

4. We, however, see the anxiety of the employees involved in these litigations that they may be required to pay back the amounts that they were given on erroneous fixation of higher grade. On a totality of the facts and circumstances and having regard to the category to which the employees were working, even if the Government are entitled to recover the amounts paid under a mistake of fact, the employees involved in these litigations are entitled to a softer approach. They cannot be made liable to repay the amounts paid to them. In our considered view, recovery of such amounts would be too harsh.

For the aforesaid reasons:

(i) The judgment in O.P.No.21422 of 2002 is vacated.

(ii) W.A.No.1684 of 2009 and O.P.(KAT) No.3346 of 2012 are ordered declaring that the employees involved in these litigations are not eligible to have the period during which they worked as police constables counted for reckoning and granting of higher grades of pay.

(iii) It is directed that their emoluments shall be re-worked on the basis of the afores