Judgment :- John Mathew, J. Whether in granting senior grade to High School Assistants their service in the lower category is to be taken into account? This is the main question to be considered in all these cases. W.ANos. 844, 892 & 1009 of 1992 and O.P.No.7597 of 1993 are before us by a reference order of our learned brothers Viswanatha Iyer and Krishnarrioorthy, JJ. The other cases are also heard along with those cases since the question involved is the same. For the sake of convenience we will refer to the exhibit numbers in O.P.No. 7922 of 1992 from which W.A.No.1009 of 1992 arises. The petitioners in that O.P. as well as the petitioners in the other petitions are High School Assistants. Some of them have already retired from service. The 4(h and 5th Kerala Pay Commission reports and Government Orders thereon granted to High School Assistants time-bound grade promotions based on length of service. Ext.P2 is the extract of the Government Order dated 16-9-1985. The relevant portion of Clause (c) 10 in Ext.P2 is as follows: "(c) Time-bound grade promotion: 10. After reviewing true existing scheme of time bound/non-cadre promotion the Commission has made a number of recommendations for liberalization. Government accept the recommendations and order as follows: (i) Employees in the revised scales of pay ranging from Rs.550-800 to Rs. 1150-2270 will be allowed promotion to higher grade on completion of 10 years of service and a second higher grade after either 10 years of service in the first higher grade or a total service of 20 years in the two grades together, whichever is earlier." In the schedule of pay scales (Annexure II to Ext.P2) the scales of pay of Graduate Teachers and Language Teachers of Senior Grade, Grade I and Grade II are shown. As a footnote on that. page it is mentioned as follows: "Second Grade Graduate Teachers/ Language Teachers will be eligible for the first grade on completion of 10 years of service and they will be eligible for the Senior Grade on completion of 20 years of total service." 2. According to the petitioners those High School Assistants who are promoted from lower category are entitled to count their service in the lower category for their grade promotion. 3. Ext.PS is the Government Order dated 1st November, 1989 pursuant to the report of the 5th Kerala Pay Commission. According to the petitioners those High School Assistants who are promoted from lower category are entitled to count their service in the lower category for their grade promotion. 3. Ext.PS is the Government Order dated 1st November, 1989 pursuant to the report of the 5th Kerala Pay Commission. The relevant extract of Ext.PS is as follows: "Promotion Prospects (a) Improvement of existing ratios, grant of new grades and higher scales of pay (7) & (8) omitted. (b) Time bound grade promotions (9) omitted. 10. The revised scheme of time bound grade promotions will be as follows with reference to the scales of pay on initial recruitment: (i) Employees in the revised scales of pay ranging from Rs.750-1025 to Rs. 1050-1830 will be allowed promotion to higher grade on completion of 10 years of service, a second higher grade after either 10 years of service in the first higher grade or a total service of 20 years in the two grades together, whichever is earlier and, a third higher grade on completion of a total service of 25 years in the three grades together on the following pattern:" (scales omitted). In the schedule of scales of pay (Annexure-II to Ext.P8)on the page where the scales of Graduate Teachers and Language Teachers are mentioned, the following footnote appears: "Graduate Teacher/ Language Teacher (Senior Grade) will be eligible for the Selection Grade on Rs. 1370-2640 on completion of 25 years' service in the three grades taken together." 4. Clause 10 of Ext.P2 came up for interpretation before a learned Single Judge of this Court in O.P.No.2358/87. Copy of the judgment is Ext.P4. The two petitioners in that O.P. were High School Assistants (Language Teachers). The 1st petitioner was directed to refund an amount of Rs. 1291.55 stated to have been excess drawal of his pay and allowances due to irregular fixation of salary. The 2nd petitioner was also directed to refund the excess amount drawn by him for the same reason. In the memos issued to those petitioners requiring them to refund the excess amount, it was stated that the Audit Party of the Accountant General, Kerala objected to those payments since their service in the lower category was also taken into account for sanctioning higher grade as High School Assistants. Two grounds were urged before the learned Judge. In the memos issued to those petitioners requiring them to refund the excess amount, it was stated that the Audit Party of the Accountant General, Kerala objected to those payments since their service in the lower category was also taken into account for sanctioning higher grade as High School Assistants. Two grounds were urged before the learned Judge. The first was that on the wording of the Government Order there was no justification for denying the petitioners therein senior grade. The second ground was that senior grade was already sanctioned and therefore, the direction to refund the same was unjustifiable. It was contended that even if there was some mistake in the matter of sanctioning higher grade, when once the amount was paid, it was not justifiable to direct refund of that amount. It would appear that the learned judge interpreted the order on the basis of the footnote referred to above, to the effect that the 'total service' is to be taken into account. It was also held that even if it was found that the petitioners therein were not entitled to senior grade, it may not be pro per and fa iron the part of the Government to ask for refund of the amount, after paying the amount. This judgment was challenged before a Division Bench of this Court in W.A.No.382/91. The appeal was dismissed in limine. On a perusal of the judgment it would appear that the Division Bench mainly considered the circumstance that the writ petition was filed against the direction to refund small amounts paid to the petitioners. The Division Bench did not actually interpret Ext.P2 order. The Special Leave Petition filed against this judgment was also dismissed in limine. In view of the decisions in Indian Oil Corpn. Ltd, v. Slate of Bihar - AIR 1986 SC 1780, Supreme Court Employees Welfare Association v. Union of India - AIR 1990 SC 334 and State of U.P. v. Mis. Synthetics & Chemicals Ltd. - JT 1991 (3) SC 268, by the dismissal of the S.L.P. against W.A.No.3S2/91 this Full Bench is not precluded from reconsidering the question. 5. Even before Ext.P2 order, Teachers in Kerala State were having grade promotions. At that time also the Teachers claimed that their service in the lower category ought to be counted for the purpose of higher grade in the higher category. 5. Even before Ext.P2 order, Teachers in Kerala State were having grade promotions. At that time also the Teachers claimed that their service in the lower category ought to be counted for the purpose of higher grade in the higher category. As early as in 1957 the Government had passed orders effecting unification of pay scales of non-gazetted officers of the different departments of Government who were allotted to the State of Kerala from the erstwhile T.C. State as well as from the composite Madras Slate. The non¬gazetted officers of the Education Department also were included in that Government Order. Subsequently a pay revision was effected in 1958, as a result of which the scale of pay was revised and refixed. Some doubts arose regarding the precise manner in which that pay revision should be given effect to. Therefore, the Government issued a clarification dated 22-4-1959 prescribing the mode of fixation of pay of Language Teachers working in the primary school section as well as in the High School section in Government schools in the Malabar area. There was also a further revision of pay scale effected as per G.O.M.S.No.468/68/Edn. dated 26-10-1968, under which all categories of graduate teachers and language teachers of Government Schools as well as aided schools became entitled to the higher scale of pay of Rs.210-10-250-15-325 with effect from 1-7-1966 subject to the condition that they have completed 12 years of service. While implementing this order some of the teachers who had not completed 12 years of service as High School Assistants were not given the higher grade. That resulted in the filing of a series of writ petitions before this Court. Those writ petitions were finally disposed of by a Full Bench of this Court in Sivasankaran v. State of Kerala -1980 KLT 241 (FB). After considering this dispute in detail the Full Bench held as follows: "16........in our opinion, the correct interpretation to be placed on condition No.2 incorporated in G.O.MS.463/68/Edn. Those writ petitions were finally disposed of by a Full Bench of this Court in Sivasankaran v. State of Kerala -1980 KLT 241 (FB). After considering this dispute in detail the Full Bench held as follows: "16........in our opinion, the correct interpretation to be placed on condition No.2 incorporated in G.O.MS.463/68/Edn. dated 26-10-1968 is that a high school language teacher would become eligible for the grant of higher grade only on his completing twelve years of service as language teacher in high school classes." In order to come to this conclusion the Full Bench examined the earlier Government orders which were consolidated by the 1968 G.O. The Full Bench held that language teachers referred to in that order can only be those working in High Schools and therefore, the words 'if they have completed 12 years of service' had to be understood as laying down the requirement that the service must be in High Schools. We are of the view that the reasoning of the Full Bench in Sivasankaran's case (1980 KLT 241) is applicable to the interpretation of Exts.P2 and P8 orders also. 6. Higher scales of pay were recommended by both the Pay Commissions after reviewing the promotional prospects of the employees. Grade promotion was recommended in cases where the employees were stagnating in one post without any promotion. Therefore, it is clear that wherever there is a chance of promotion normally it was not necessary to grant grade promotion. By Clause 10(i) of Ext.P2 the employees are allowed promotion to higher grade on completion of '10 years of service'. Second higher grade is to be given after either 10 years of service in the first higher grade or 'a total service of 20 years in the two grades together.' If this clause is analysed it is clear that the first higher grade is envisaged for those employees who have completed 10 years of service. There is no indication that the requirement of 10 years of service is in the lower category viz. as lower primary teacher or equivalent post. This is clear from the second part of clause 10(i) where the requirement of 20 years' service is in the 'two grades together', which can only mean that the first grade in the existing category in which the employee is posted as well as the first higher grade. as lower primary teacher or equivalent post. This is clear from the second part of clause 10(i) where the requirement of 20 years' service is in the 'two grades together', which can only mean that the first grade in the existing category in which the employee is posted as well as the first higher grade. Clause 10(i) of Ext.PS is also similarly worded and promotion to higher grade is to be allowed 'on completion of 10 years of service, a second higher grade after either 10 years of service in the first higher grade or a total service of 20 years in the two grades together'. The third higher grade given by the Fifth Pay Commission is to be allowed 'on completion of a total service of 25 years in the three grades together'. Thus it is clear that the grades mentioned in these two clauses can only be the grade in which the concerned employee was posted at the relevant time. 7. However, the contention of the petitioners is mainly based on the footnote at page 24 of Ext.P2, which is as follows: "Second Grade Graduate Teachers/ Language Teachers will be eligible for the first grade on competition of 10 years of service and they will be eligible for the Senior Grade on completion of 20 years of total service". According to the petitioners, the words 'total service' takes in the service in the lower category also. The footnote is in respect of second grade Graduate Teachers or Language Teachers. That does not refer to L.P.Teachers or Teachers of the lower category. Since the footnote is in respect of second grade graduate teachers, the words 'total service' can only mean the service as graduate teachers. In any view of the case, since the main provision is clear the footnote in the schedule cannot alter or modify the provision in the main clause. 8. We have called for the petition O.P.No.2358 of 1987 which was disposed of by Ext.P4 judgment. The petitioners therein extracted the relevant portion of Ext.P2 order in the following manner at pages 2 & 3 of the Original Petition: "C. Time-bound grade promotion: After reviewing the existing scheme of time bound/non-cadre promotion the Commission has made a number of recommendations for liberalization. The petitioners therein extracted the relevant portion of Ext.P2 order in the following manner at pages 2 & 3 of the Original Petition: "C. Time-bound grade promotion: After reviewing the existing scheme of time bound/non-cadre promotion the Commission has made a number of recommendations for liberalization. Government accept the recommendations and order as follovys: (i) Employees in the revised scales of pay ranging from Rs.550-800 to Rs.1150-2270 will be allowed promotion to higher grade on completion of 10 years of service in the first higher grade or a total service of 20 years in the two grades together, whichever is earlier. Second Grade Teachers/ Language Teachers will be eligible for the first grade on completion of 10 years of service and they will be eligible for the Senior Grade on completion of 20 years of total service. Craft/ Specialist teachers were originally appointed in High Schools in the grade of Graduate Teachers. Second Grade Craft/Specialist Teacher of this category on completion of 10 years of service will be eligible for Grade I. On completion of 20 years of total service, they will be allowed the Senior Grade. Those in the second grade will be eligible for grade I on completion of 10 years of service. Senior Grade will be. allowed on completion of 20 years of total service. Those in the second grade will be eligible for the first grade on completion of 10 years of service. On completion of a total service of 20 years, senior grade will be allowed." The petitioners in that O.P. after extracting Clause 10(i) of Ext.P2 added the footnotes in the schedule of pay scales creating an impression that the foot notes were part of Clause 10(i). Actually the footnotes extracted after Clause 10(i) were shown after three pages of Ext.P2 and that also in the schedule of pay scales and not in the Government Order. In para.4 of Ext.P4 judgment Clause 10(i) along with the footnotes in the schedule are extracted as if it is part of para. 10 of the Government order. The judgment is on the basis that the teachers are entitled to senior grade if they have completed 20 years of total service. In para.4 of Ext.P4 judgment Clause 10(i) along with the footnotes in the schedule are extracted as if it is part of para. 10 of the Government order. The judgment is on the basis that the teachers are entitled to senior grade if they have completed 20 years of total service. The Division Bench accepted the finding in Ext.P4 that the words 'total service' means combination of both the services, without noticing that the words' total service' occur only in the footnote to the schedule and not in the main part of the order. It would appear that the Division Bench dismissed the appeal mainly for the reason that "So long as the order passed by the learned judge is neither unreasonable nor perverse, it is not open to this court to revise the same or to interfere with that order". The Special Leave Petition was dismissed by the Hon'ble Supreme Court by a non-speaking order. 9. Reference was made to Exts.Rl(f) and RI (g) orders which were produced along with the counter-affidavit in O.P.No.7597/93. This counter-affidavit has been adopted as the counter-affidavit in all the other cases. Ext.Rl(f) is the copy of a Government Order dated 23-5-1986. That G.O. was issued in order to clarify a doubt whether an employee whose entry grade was within the range of scale of pay of Rs.550-800 and 1150-2270, and who gets first regular promotion or first higher grade on a scale of pay above that grade, would be eligible for further higher grade promotion as per the provisions in para.10(i) of Ext.P2 order. In Ext.Rl(f) the Government clarified that employees who are in the entry grade ranging from Rs.550-800 to Rs.1150-2270 will get the benefit of second higher grade even if the scale of pay of the first higher grade is above Rs.1150-2270. It was also clarified that they will be eligible for the benefit of second higher grade on completion of 10 years of service in the promotion grade or a total service of 20 years in the entry grade and the promoted post together. From the wording of Ext.Rl(f) itself it is clear that that order was issued Cor a specific purpose so that the intention of the Government to ensure at least two promotions to the employees on completion of a period of 20 years should be achieved. From the wording of Ext.Rl(f) itself it is clear that that order was issued Cor a specific purpose so that the intention of the Government to ensure at least two promotions to the employees on completion of a period of 20 years should be achieved. Ext.Rl(f) cannot be taken as a general clarification applying to employees who are not similarly situated as the employees envisaged in that order. Therefore, we are unable to accept Ext.Rl(f) as a ground for accepting the, claim of the petitioners. Ext.Rl(g)is a Government Order dated 8th February, 1988 (produced along with the counter-affidavit in O.P.No.7597/93). Ext.Rl(f) order was clarified by Ext.Rl(g) when a doubt arose whether the benefit of time-bound higher grade scheme is available to those employees who had already got two levels of promotions in their career. In Ext.Rl(f) it was indicated that the intention of the Government was to ensure at least two promotions to employees whose scale of pay at entry ranges from Rs.550-800 to Rs.1150-2270 on completion of a period of 20 years. In Ext.Rl(g) order it was ordered as follows: "Judging from the norms laid down for low and lower middle level employees, stagnation in a post for 10 years justifies time-bound advancement. Implementation of the time-bound higher grade promotion scheme purely related to the entry grade, will not prove the desired relief to such employees who are stagnating in the same post for long years. In view of the position explained above, Government wish to clarify that even in the case of employees who had two levels of promotion under the liberalised scheme of lime-bound higher grade promotion, they will be eligible for a higher grade after 10 years of service, and a second higher grade after 20 years of service in the last promoted post in the regular line provided its scale of pay is within the range of Rs.550-800 and Rs.1150-2270." Thus from the wording in Ext.Rl(g) order also it is clear that grade promotion was allowed for employees who stagnate in a post for 10 years. Such a benefit cannot be normally claimed by an employee who is promoted to the higher category or in the other words, who does not stagnate in one post. In any view of the case, Exts. Such a benefit cannot be normally claimed by an employee who is promoted to the higher category or in the other words, who does not stagnate in one post. In any view of the case, Exts. RI(f) and RI(g) cannot be relied on by the petitioners, if on a proper interpretation of Exts,P2 and P8 orders they are not entitled to take into account their service in the lower category for the purpose of grade promotion. 9. The contention of the petitioners is that the Government is bound to implement the recommendations of the Pay Commission in respect of all Government employees covered by the reference. There cannot be any doubt about that proposition of law. However, in this case there is no allegation that there is any discrimination against the petitioners. Learned counsel for the petitioners referred to the decisions in Pursliottatn Lai v. Union of India -1973 (1) SLR 633, Randhir Singh v. Union of India-Am 1982 SC 879, Smt. Prem Devi v. Delhi Administration 1989 (2) U.J. (SC) 146, Union of India v. A.I.S. Pensioners Assocn. - AIR 1988 SC 501, Direct Recruit Class II Engg. Officers' Assocn. v. State of Maharashtra -AIR 1990 SC 1607, D.T.C. Worker's Union v. D.T.C. - (1991) 2 SCC 618 and B. Lakshmipati Naidu v. Distt. Educational Officer- AIR 1992 SC 2003 in support of their contentions. It cannot be said that Ext.P4 judgment was in existence for a long time and should not be disturbed on that ground. Ext.P4 judgment was passed only in January, 1991. So much so, the principle in B. Lakshmipathi Naidu's case (AIR 1992 SC 2003) and Direct Recruit Class II Engg. Officers' Assocn. case (AIR 1990 SC 1607) are not applicable to this case. There is no case that the petitioners are being discriminated and other officers of Government are being given higher grade in similar circumstances, as the petitioners are placed. So much so, the decisions in Purshottam Lai v. Union of India -1973 (1) SLR 633, Randhir Singh v. Union of India - AIR 1982 SC 879, Smt. Prem. Devi v. Delia Administration -1989 (2) UJ (SC) 146 and D.T.C. Worker's Union v. D.T.C. - (1991) 2 SCC 618 are not applicable to the facts of this case. 10. So much so, the decisions in Purshottam Lai v. Union of India -1973 (1) SLR 633, Randhir Singh v. Union of India - AIR 1982 SC 879, Smt. Prem. Devi v. Delia Administration -1989 (2) UJ (SC) 146 and D.T.C. Worker's Union v. D.T.C. - (1991) 2 SCC 618 are not applicable to the facts of this case. 10. Accordingly we hold that for granting Senior Grade to promoted High School Assistants their service in the lower category as P.D. Teacher or L.P.S. Teacher or U.P.S. Teacher is not to be taken into account. Therefore, we proceed to dispose of the appeals and Original Petitions before us in the light of this finding. 11. W.A.Nos. 844, 892 & 1413 of 1992: The 1st two appeals are filed by the petitioner and respondents respectively against the judgment in O.P.No.8193/90. W.A.No.1413/92 is filed by the petitioner in O.P.No.7786/92 which was disposed of by a common judgment along with O.P.No.8193/90 and other cases. In that judgment it was held that the respective petitioners were entitled to take into consideration their period of service as L.P.S.A./U.P.S.A. for getting the senior grade as Graduate Teacher, but not for the purpose of getting first higher grade and selection grade. The judgment under challenge directing to take into consideration the period of service as L.P.S.A./ U.P.S. A. for getting senior grade is set aside. The direction that the service as L.P.S. A./ U.P.S.A. is not to be counted for the purpose of getting first higher grade and selection grade is confirmed. W.A.Nos. 844 & 1413/92 are dismissed. W.A.No.892/92 is allowed. 12. W.A.No.1009 of 1992: This is an appeal filed by the petitioners in O.P.No.7922/92 which was disposed of along with other connected cases by a common judgment dated 21-7-1992. By that judgment the learned Single judge adopted the reasoning in O.P.8193/90 and connected cases and partly allowed the O.P. holding that the petitioners will be entitled to take into consideration their period of service as L.P.S.A./U.P.S.A. for getting senior grade as graduate teacher/ language teacher, but not for the purpose of getting first higher grade and selection grade. We are informed that the Government has filed W.A.No.1254/92 against the direction to take into account the service in the lower category for one grade promotion. We are informed that the Government has filed W.A.No.1254/92 against the direction to take into account the service in the lower category for one grade promotion. Since that writ appeal is not placed before this Full Bench, we direct that W.A.No.1009/92 and the connected appeal may be posted before a Division Bench for disposal. 13. W.A.No.1195/92: This is an appeal by the respondents in O.P,No.7758/92. The learned Single judge while disposing of the O.P. followed the decision in O.P.No.8193/ 90 and connected cases and held that the petitioner is entitled to take into consideration her period of service in the lower category for getting one senior grade. We have already held that such a direction cannot be allowed. However, learned counsel for the respondent submitted that on the facts of this case the respondent is entitled to higher grade. The respondent was first appointed on 1-8-1968 as Physical Education Teacher in Christ King Convent Girls High School, Pavarotti. She worked in the High School till 2-6-1974. Thereafter she worked as U.P.S.A. in the above High School from 3-6-1974 to 22-9-1974. Then she was promoted as H.S.A. in a temporary vacancy on 23-9-1974 and continued there till 19-12-1974. Then again, she worked as U.P.S.A. from 20-12-1974 to 13-9-1976. Thereafter from 14-9-1976 to 31-3-1977 she worked as H.S.A. in a temporary vacancy. Then she was reverted as U.P.S.A. with effect from 1-4-1977 to 31-5-1977. Later on she was promoted as H.S.A. from 1-6-1977 in a permanent Vacancy. The respondent continued as H.S.A. till 23-11-1982. From 19-9-1977 to 1-6-1980 she was transferred to a B.T. School named C.K.C.B.T. School, Pavaratty under the same management. On 24-11-1982 the respondent joined in a Government High School as H.S.A. and is continuing as such. According to the respondent she has 5 years 10 months and 1 day service as Physical Education teacher in Christ King Convent Girls High School, Pavaratty; 2 years 2 months and 14 days service as U.P.S.A. in the High School; 2 years 8 months and 13 days service as T.S.A. in B.T. School and 3 years 6 months and 25 days service as H.S.A. in Convent High School and thereafter 9 years 6 months and 22 days as H.S.A. in the Government High School. According to the respondent she has completed 23 years 10 months service in the High School. Even so, she was given only one grade promotion. According to the respondent she has completed 23 years 10 months service in the High School. Even so, she was given only one grade promotion. The Writ Appeal is disposed of with a direction to the appellants to examine the respondent's claim separately in the light of the findings in this judgment. The direction to count her service as U.P.S.A. for one grade promotion is vacated. Writ Appeal disposed of with the above direction. 14. W.A.NO.1478/92: This is an appeal filed by the petitioners in O.P.No.9901/ 92. That O.P. was disposed of in the light of the judgment in O.P.No.8193/90 allowing the petitioners to take into consideration their period of service as L.P.S.A./U.P.S.A. for getting one grade promotion, but not for higher grades. We are informed that the Government has filed W.A.No.426/93 against the same judgment challenging the direction to count the service in the lower category for one grade promotion. That appeal is not placed before this Full Bench. Therefore, we direct that this Writ Appeal may be placed along with the connected Writ Appeal before a Division Bench for disposal. 15. O.P.No.7597/1993: Original Petition dismissed. 16. O.P.No. 9419/1993: Original Petition dismissed.