John Mathew, J. - (1.)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.
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. "

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. 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.

(3.)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 nongazetted 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. 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.
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. 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.

;