JUDGMENT 1. This writ petition came to be disposed of on 1.3.2010 finding no merit in the contentions raised by the appellants in the appeal. Subsequently, review petition came to be filed by the appellant-State and the Division Bench by order dated 31.7.2012 reviewed the judgment dated 01.3.2010 in the above appeal. Therefore, virtually now the appeal has to be disposed of on merits afresh referring to the contentions of the parties. 2. The party-respondents approached learned Single Judge seeking quashing of Exts.P4 and P7 under which the claim of the writ petitioners was rejected so far as higher grade, by virtue of their military service by referring to Government order dated 16.11.1981. After quashing Exts.P4 and P7, the learned Judge declared that higher grade was rightly granted to the petitioners based on Ext.P2 G.O dated 26.11.2003 reckoning their past military service as service qualifying for computation of higher grade. 3. The respondents-writ petitioners admittedly are from Armed Forces, who had subsequently taken up service in the State Government. According to them, they had completed their term of engagement in the Armed Forces. Apparently, they were also granted benefits after retirement including pension and gratuity. After coming out of Armed Force service in 2001, they were recruited as Drivers in the Police Department based on the Govt. order dated 26/11/2003, Ext.P2. Their earlier service for grant of first higher grade on completion of 13 years of service. Subsequently, during the audit conducted, the audit team raised objection for granting higher grade to these writ petitioners. Therefore, appellants issued notice at Ext.P4 dated 17/6/2006 intimating the writ petitioners their ineligibility to reckon past military service for the purpose of sanction of first higher grade. A caution was hinted that they shall refund the retirement benefits received by them from Armed Forces to the State Government along with simple interest at 6% per annum from the date of receipt till the date of refund, otherwise the higher grade sanctioned to them will be cancelled and appropriate orders would be passed. Then writ petition No. 16643/2006 came to be filed wherein the learned Judge issued a direction to treat Ext.P4 herein to be treated as a show cause notice and the decision taken therein as a provisional order. Then writ petition No. 16643/2006 came to be filed wherein the learned Judge issued a direction to treat Ext.P4 herein to be treated as a show cause notice and the decision taken therein as a provisional order. Further direction was granted allowing the writ petitioners to file objections and if such objections to be filed within three weeks, the appellants authority shall consider the same and take a final decision in the matter after adverting to all the contentions raised by the parties. 4. Upon submission of objections to Ext.P4, Ext.P7 proceedings dated 12.9.2006 were terminated by overruling all the objections raised by the writ petitioners. Therefore, the writ petition came to be filed challenging Exts.P4 and P7 in the second round of litigation. The contention of the learned counsel appearing for the petitioners was to the effect that reliance on Rule 8(C) of Part III Kerala Service Rules, referred to as K.S.R. are totally inapplicable to the case on hand and it applies only to the grant of pension. Therefore, so far as the case of the writ petitioners, the Circulars issued by the Government from time to time giving benefit of higher grade alone is applicable depending upon the number of years of qualifying service and the service rendered by them in the State Government. It was also contended that the higher grade already granted cannot be cancelled for not complying with the directions in Ext.P4 in re-depositing or returning relieved from the Armed Force services on completion of the engagement. According to them, Ext.P2 Government order dated 26.11.2003 does not stipulate that in order to reckon their past service as service qualifying for grant of higher grade such refund of the amount was to be given back as well. According to them, the words ‘civil pension’ at Ext.P2 is not with reference to any of the provisions of k.S.R. in general and in particular Rule 8 (C). 5. As against this the stand of the Government before the learned Single Judge was, the very use of the word ‘civil pension’ at Ext.P2 has to be understood that the benefit extended at Ext.P2 is applicable to the Ex-service men, only if the conditions envisaged under Rule 8(C) are complied with, otherwise there was no necessity to refer to the word ‘civil pension’. It is further contended that the computation of number of years of service referred to at Ext.P2 depends upon the number of years of qualifying service attributable to the writ petitioners which includes both the military service and the service in the State service. It was their persistent stand that by virtue of Rule 8(C) Part III K.S.R., apart from permitting them to reckon past military service other conditions need to be complied with as envisaged thereunder, then only they would be entitled for the benefits extended to them at Ext.P2 and similar other Government order. 6. The learned Judge, after taking into consideration above arguments from Para 10 onwards discussed the rival contentions of the parties and opined that as the pension is paid only at the end of one’s service, therefore the only intention from Rule 8(C) that could be gathered is that re-employed Ex-service men, who have not earned a pension from the Defence Department for their military service, but have received bonus, gratuity will be entitled to get pension on retirement from State service subject to returning the bonus, gratuity already drawn by them from Defence Department. In other words, the learned Single Judge opined that there is no need for compliance of Rule 8(C) of K.S.R. to earn a higher grade as indicated in the several orders of the Government, especially the order under reference, Ext.P2. The learned Judge also accepted the contentions raised by the writ petitioners by opining that Ext.P2 does not stipulate return or refund to the Defence Department, all the benefits paid to them by way of money on their retirement from the Armed Forces in order to earn higher grade. He distinguishes the nature of benefit envisaged under Ext.P2 by saying that higher grade is sanctioned during the service of an employee whereas pension is payable to him at the end of his service. Further the learned Judge opines that in spite of expression War/Military Service which counts for civil pension, in the absence of condition to refund the terminal benefits drawn by them being mentioned at Ext.P2 to secure grant of higher grade, no such compliance can be insisted upon. It was held, there was no justification on the part of the Department to issue Ext.P4 and Ext.P7. It was held, there was no justification on the part of the Department to issue Ext.P4 and Ext.P7. While discussing Ext.P2 and Rule 8(C), learned Judge also discusses with reasoning, why refund of benefits is envisaged at Rule 8(C) to earn pension. This discussion ultimately led to the opinion that Ex Service Men, who are employed in Civil Service without receiving any pension from military service but received only bonus and gratuity have to return this money to earn pension in the State service. Therefore, the learned Judge opined, the benefits already sanctioned to the petitioners in violation of the rules cannot be refunded and the audit objection referred to at Ext.P7 is without any justification. Later, after perusal of other G.Os. pertaining to 1990, learned Judge opined even Government order dated 26.10.1990 will not give better right to the Department as the terms mentioned in the Govt. Order dated 26.10.1990 is in para material similar to Ext.P2. With these observations, the learned Single Judge proceeded to allow the writ petition and quashed Exts.P4 and P7 declaring that higher grade was rightly granted to the petitioners based on Ext.P2 G.O. dated 26.11.2003 reckoning the past military service of the writ petitioners as qualifying service for grant of higher grade, Aggrieved by the same the present appeal is filed. 7. The learned Government Pleader Mr. Davis commences his argument by taking us to the first Government Order which came into existence so far as sanction of higher grade to Ex Service Men. Ext.P1 in W.A.No. 253/2011 is the said order. This refers to order dated 16.11.1981, the first order so far as the military service is concerned. This refers to G.O.(Ms) 439/79/GAD gazetted on 1.8.1979. This 1979 G.O. allows the benefit of higher grade to the non-gazetted officers of State service. Subsequently, after considering the proposal it proceeded to pass the G.O. dated 16.11.1981 which reads as under: “In the G.O. read as first paper above, Government issued orders allowing the benefit of a higher grade, with effect from 1.7.1979 to all Non-Gazetted Officers who remain in the entry grade without a promotion in the normal course, on completion of 13 years of service, in the entry grade. It has been pointed out that as per the Government letter read as second paper above, War Service and Military Service, which could for pension will be reckoned for computing the qualifying service required for the grant of higher grade to teachers and as such it has been represented that War Service and Military Service may also be reckoned for granting higher grade to Non-Gazetted Officers as allowed to teachers. The Director, Rajya Sainik Board, Trivandrum, in his letter read as third paper above, has recommended this suggestion. 2. Government have considered the proposal in detail and are pleased to order that War/Military Service which counts for civil pension will also be reckoned for computing the 13 years qualifying service for the grant of the benefit of higher grade in respect of Non-Gazetted Officers. Civilian Service under military will not, however, count for higher grade. 3. These orders will take effect from 1.7.1979”. 8. The Government has considered the proposal in detail and are pleased to order that War/Military Service which count for civil pension will also be reckoned for computing the 13 years of qualifying service for the grant of the benefit of higher grade in respect of non-gazetted officers. Civilian service and the military service will not however count for higher grade. Subsequent to this, Ext.P2 referred to above in the present writ appeal is brought to our notice. This order is dated 26.11.2003. After referring to earlier orders gives retrospective application of reckoning the qualifying service so far as past War and Military service which is taken for consideration while computing civil pension i.e. with effect from 1.7.79 and 1.7.88. It further clarifies the above situation as under, with reference to years of service rendered by the Ex service men which reads as under. The relevant paragraphs are 3, 4, and 5: “As per para 2 (MVV) of the circular second read above War/Military Service counts for civil pension would be reckoned as qualifying service for granting higher grade to non-gazetted officers and gazetted officers with effect from 1.7.1979 and 1.7.1988 respectively. It has been ordered in para 4 of the Government order read as third paper above that War/Military service which counts for civil pension would be reckoned for computing the qualifying service for the grant of first higher grade. Civilian service under Military will not, however, count for higher grade. It has been ordered in para 4 of the Government order read as third paper above that War/Military service which counts for civil pension would be reckoned for computing the qualifying service for the grant of first higher grade. Civilian service under Military will not, however, count for higher grade. Government are pleased to issue further clarifications to the above clause as follows:- (i) In the case of non-gazetted officers, War/Military Service which counts for civil pension will not reckoned for sanctioning 13.10.20 and 25 years higher grade for the period from 2.9.1979 and 29.3.1992. (ii) In the case of gazetted officers, War/Military service which counts for civil pension will be reckoned for only one higher grade with effect from 1.7.1993. (iii) With effect from 1.3.1992, war/military service which counts for civil pension will be reckoned for one higher grade only in respect of non-gazetted officers. 4. The Scheme of allowing 7, 17 and 25 years higher grade to the police constable drivers, other Technical categories in the police department and Firemen Drivers in the Fire Force Department bas been modified as 10, 18 and 23 years higher grade with effect from 1.1.1998 as per the Government Order sixth read above. The Military Service which counts for civil pension will be reckoned for the above grades upto 29.2.1992 and for one higher grade only with effect from 1.3.1992, as mentioned in para 3 above. 5. In G.O.(P) No. 554/84(597)/Fin., dated 27.9/1984, it was ordered that the appointment by transfer would be treated as equivalent to direct recruitment, for the purpose of sanctioning higher grade. It is further clarified that promotion to the post in the direct line of promotion in a Department to be made on the basis of select list prepared by the Department promotion committee, even if it is appointment by transfer from subordinate service to state service cannot be treated as direct recruitment for allowance the benefit of time bound higher grade.” 9. Learned Government Pleader took us through various provisions of K.S.R. Part III with reference to payment of pension. Rule 8 specifically deals with military service. He also took us through in particular to Rule 8(C) and proviso thereunder to indicate what are the conditions that have to be complied with in order to earn higher grade indicated in the G.O. referred to above. Rule 8 specifically deals with military service. He also took us through in particular to Rule 8(C) and proviso thereunder to indicate what are the conditions that have to be complied with in order to earn higher grade indicated in the G.O. referred to above. In order to substantiate the contention that civil pension referred to in the G.O. would only mean compliance of Rule 8(C) and also the proviso thereunder, he took us through Rules 91 to 95 as well as 101 so far as re-employment of pensioners, general rules and also special rules pertaining to pension under Chapter VI. He places reliance on Rule 101 as well in the same Chapter but under S.III which is a specific special provision in relation to military pensioners re-employment. By placing reliance on these rules, the learned Government Pleader contends, Rules 91 to 95 and 101 would clearly indicate the relevancy of mentioning civil pension at Ext.P2 thereby indicating compliance of all conditions at Rule 8 (C) as well, as a mandate to earn higher grade. According to him, the Ex Service Men, so far as the civil pension is concerned, Rule 8 applies apart from other rules in the said K.S.R. In order to earn higher grade one has to comply with Rule 8(C). Though Rule 8(C) is applicable to person after retirement from State service it also attracts sanction of higher grade by virtue of Government orders Circulars issued from time to time as in the present case. As against this, learned counsel for the respondents Mr.Elvin Peter and others contends that an Ex Service man receiving military pension who receive military pension has better beneficial benefits than a person who retires without military pension. According to him, in the same class of persons i.e. Ex service men, there should not be any discrimination especially the financial benefits subsequent to their military service. In order to understand whether there is possibility of earning two pensions by an Ex Service men joining State service one has to again go back to Rule 8 to know how civil pension is computed at the time of retirement of Ex service men from his civil service or State service. In order to understand whether there is possibility of earning two pensions by an Ex Service men joining State service one has to again go back to Rule 8 to know how civil pension is computed at the time of retirement of Ex service men from his civil service or State service. Rule 8(C) along with the two proviso indicate as under: “Ex-servicemen re-employed in Civil Service shall be allowed to count their Military Service other than War Service in the Armed Forces of India from 1st April 1946 which is non-pensionable or pensionable under Military Rules but which terminated before a pension has been earned in respect of it for purpose of civil pension, in cases of retirement from Civil Service on or after 14.11.1966; Provided that the bonus or gratuity, if any, received for the period of Military Service by the person concerned from the Defence Department is refunded to that Department: Provided also that the person concerned is not in receipt of any military pension in respect of his Military Service. Breaks between Military Service and Civil Service shall be condoned in accordance with the Government Decision No.3 above. The pensionary charges in respect of Military Service other than War Service will be borne by the Government of India on a service share basis in accordance with the normal rules in Appendix III B, IV of the Kerala Account Code, Volume I”. 10. The learned counsel for the respondents/writ petitioners also brought to our notice the last sentence in Rule 8(C) to contend that as there is a provision for pensionery charges being shared on a service share basis as the War service will be borne by the Government of India, there is no logical explanation why higher grade should be allowed to a person if he returns gratuity or bonus received by him. He also points out that the quantum of the amount paid as gratuity or bonus may be much more than the benefit they would get by way of higher grade and therefore the present situation does not indicate any reasonable purpose to be achieved by virtue of Ext.P4. He also points out that the quantum of the amount paid as gratuity or bonus may be much more than the benefit they would get by way of higher grade and therefore the present situation does not indicate any reasonable purpose to be achieved by virtue of Ext.P4. After reading, Clauses a, b and c of paragraph 3 of Ext.P2, it clearly refers what service could be qualified as past service so as to allow the Ex service men to enjoy the benefit of higher grade which clearly mentions that service whether War or Military service taken into consideration while computing civil pension will be reckoned for sanctioning higher grade after 13,10,20 and 25 years so far as non-gazetted officers from a particular date. The reckoning of military service for assessment of civil pension are contemplated under Rule 8(C) as mentioned at all three clauses (a), (b) and (c). 11. Then coming to the proviso to Rule 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. Rule 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 G.Os. 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 G.Os. of the Government issued from time to time including the G.O. 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 Rule 8(C) and proviso (2) clearly indicate, if the Ex Service men is earning a military 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 Rule 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, Rules 91 to 95 and Rule 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. As submitted by the learned Government Pleader, Rules 91 to 95 and Rule 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. Rules 91 to 95 and 101 would support the arguments advanced by the learned Government Pleader and reading of Rule 8(C) along with proviso, if read along with these Rules 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 Rule 8(C) are applicable to earn higher grade referred at Ext.P2 and other similar G.Os. 13. Then coming to the argument of the learned counsel for the respondents that whatever was earned by them cannot be directed to be refunded so far as higher grade amount, we decline to entertain the said argument because such amounts were allowed to be paid to the respondents with the intervention of the Court and it squarely hit by principles of his pendnece. In the above circumstances, we are of the opinion that the writ appeal 1308/2008 deserves to be allowed by setting aside the judgment of the learned Single Judge.