The court established that military service, if pensionable, cannot be reckoned for civil pension and subsequently for the grant of time bound higher grade promotion. It also emphasized the validity of the recovery of excess benefits drawn by the petitioners based on the provisions of Rule 3C of Part III of Kerala Service Rules.

V. Giri, J.

1. The petitioners in these writ petitions are Ex-servicemen, who were re-employed in the Police Department, after they had completed the requisite number of years of service in the Army, so as to qualify for pension, related to Military service. Common issues arise for consideration in these writ petitions and they have been heard together and are being disposed of by this common Judgment W.P.(C) No. 10053/06 is taken as the leading case for convenience.

2. The first petitioner was discharged from the Army, after completing 17 years and 11 months. The second petitioner was discharged after completing 16 years and 10 months and the 3rd petitioner was discharged after completing 17 years. All of them were enlisted in the Police Force on discharge from the Army. By Ext.P-1 order dated 26-11-2003 the Government ordered that War/Military service which counts for civil pension would be reckoned for computing the qualifying service for the grant of only the first higher grade. In Ext. P-2 order issued by the first respondent, as a clarification it was further mentioned that War/Military service which counts for civil pension alone will be reckoned as a qualifying service for the grant of higher grade. The petitioners were granted the first higher grade vide Exts.P-6, P-7 and P-8 orders issued on 27-6-2005. They received the monetary benefits consequent upon the sanctioning of the higher grade. But, within a few months from the sanctioning of the higher grade, the Head of the Department, the 4th respondent, cancelled the same as per Ext. P-9 order. There was also a direction for refund of the benefits, which were allegedly illegally sanctioned. Petitioners sought for a review of Ext. P-9. That has not been done. Petitioners are drawing pension for their services rendered in the Army. They contend that, accordingly, they are entitled to the higher grade provided in Ext. P-I Government Order. Alternatively, it is contended that the 4th respondent erred in ordering recovery of the monetary benefits already paid to the petitioners. It is contended that the petitioners did not contribute to any error resultant upon which the higher grade was sanctioned to the petitioners. Petitioners, therefore, challenge Ext. P-9 and also seek appropriate direction restraining the respondents from recovering the amounts which have already been disbursed to them consequent upon the sanctioning of the higher grade to them.

3. First respondent--Government has filed a counter-affidavit. Reference is made to Rule 8 © of Part III of the Kerala Service Rules, which provides that Ex-servicemen, who are re-employed in civil service shall be allowed to count their Military service other than War service in the Armed Forces of India from the 1st of April, 1946, if such service is not pensionable or pensionable under the Military Rules, which is terminated before a pension has been earned in respect of it, for the purpose of civil pension. Further, persons who seek the benefit of Rule 8 © should refund any bonus or gratuity received by them for the period of Military service. It is further provided that the person concerned should not be in receipt of any Military pension in respect of his Military service. Thus, those who are in receipt of Military pension are not eligible for time bound higher grade reckoning War/Military service, which otherwise will not be reckoned for civil pension. In the circumstances, the grant of first time bound higher grade promotion to the petitioners, in the year 2005, barely two years of their commencement of civil service was illegal. It is admitted by the petitioners that they are in receipt of pension attributable to their Military service. Consequently, the service attributable to Military Pension cannot be reckoned for civil pension. Therefore, the orders cancelling the grant of time bound higher grade, which can be done only after the petitioners complete 10 years of service in the Police Department are clearly