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Structured Summary of the Court Opinion

Factual and Procedural Background

This order disposes of a group of seventeen writ appeals (Writ Appeal Nos. 27, 328, 355, 420, 451, 510, 531, 537, 572, 573, 607, 669, 893, 925, 927, 945 and 956 of 2004) raising common questions of law and fact. Arguments were heard only in W.A. No. 27 of 2004, and the factual narrative for the group is taken from that matter.

The respondents in these appeals are high school assistants who originally joined as primary teachers and were later promoted as high school assistants. After reviewing promotional prospects, the Government issued orders modifying earlier orders:

  • Government order dated 7 August 1986 (Exhibit P3): provided that primary school teachers appointed or promoted to high school after more than 10 years' service in primary section would be given high school assistants Grade I on completion of a total service of 20 years and senior grade on completion of 30 years; and that certain promoted primary school teachers would be given Grade I counting aggregate service of 20 years.
  • Government order dated 18 January 1991 (Exhibit P4): allowed primary teachers appointed as high school assistants to be allowed the selection grade pay scale (Rs. 1250-2230) on completion of a total service of 25 years reckoning primary and high school service together, without change in designation.

On the basis of Exhibits P3 and P4, respondents were granted higher grade promotions counting their primary school service. Later, following observations made by a Full Bench in Krishna Panicker v. State of Kerala (W.A. No. 844 of 1992 decided on 18 November 1993, reported as 1993 (2) K.L.T. 1058), the Government took the position—by order dated 19 October 2000 and again by order dated 31 March 2001—that high school assistants were not entitled to count their primary school service for grant of higher grade, with effect from 18 November 1993. As a consequence, the higher grade benefits previously granted were withdrawn and the excess amounts paid were sought to be recovered.

The respondents challenged these withdrawal orders by filing O.P. No. 7348 of 2003. A learned Single Judge allowed the writ petition and directed restoration of the benefits flowing from Exhibits P3 and P4. The Government (appellants) filed these writ appeals against that single-judge decision.

Legal Issues Presented

  1. Whether the observations made by the Full Bench in Krishna Panicker (1993 (2) K.L.T. 1058) lay down, in absolute terms, that a high school assistant is not entitled to count his or her primary school service for the purpose of grant of higher grade?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Krishna Panicker v. State of Kerala (W.A. No. 844 of 1992 decided on 18 November, 1993), 1993 (2) K.L.T. 1058 The Full Bench's interpretation of Clause 10(i) of Government Orders dated 16 September 1985 and 1 November 1989, holding that for granting senior grade to promoted high school assistants their service in the lower category (e.g., primary teacher) is not to be taken into account when interpreting those specific clauses. The court analyzed the Full Bench's reasoning and concluded that those observations were confined to the specific language and context of the 1985 and 1989 orders. The court held that those observations did not constitute an absolute rule barring counting of primary service in all circumstances, and therefore did not automatically apply to Government Orders dated 7 August 1986 (Exhibit P3) and 18 January 1991 (Exhibit P4), which used different language and provided for counting primary service.

Court's Reasoning and Analysis

The court proceeded by examining the Full Bench judgment in Krishna Panicker and the language of the Government orders involved in that Full Bench decision. The analysis unfolded in these principal steps, stated in the opinion:

  1. The court identified the specific clauses (Clause 10(i)) of the Government Orders dated 16 September 1985 and 1 November 1989 that were interpreted by the Full Bench. The clauses permitted grade promotions based on completion of specified periods of service "in the two grades together" or "in the three grades together", and the Full Bench construed the term "grades" as referring to the grade in which the employee was posted at the relevant time (i.e., the higher grade and the immediate lower grade in the same category), not a previous lower-category post.
  2. The Full Bench's conclusion (quoted in the opinion) was that, in that context, service in a lower category (such as service as a primary teacher) should not be counted for granting senior grade to promoted high school assistants. The Full Bench therefore disposed of the appeals before it in light of that finding.
  3. The present court emphasized that the Full Bench's observations arose from interpretation of the specific wording of the 1985 and 1989 orders and were therefore context-specific. The court concluded that the Full Bench did not lay down an absolute, universal rule that primary school service could never be counted for higher grade purposes in every conceivable Government order or situation.
  4. The court compared the language of Exhibits P3 (7 August 1986) and P4 (18 January 1991) with the earlier orders considered by the Full Bench and found them to be differently worded. Exhibits P3 and P4 expressly provided for counting primary school service for grade benefits (for example, by reckoning aggregate service or expressly granting selection-grade pay on combined service). Those exhibits were not considered by the Full Bench in Krishna Panicker.
  5. Because the Government had granted benefits under Exhibits P3 and P4, and then purported to withdraw them on the basis of a mistaken belief that the Full Bench had created an absolute barrier to counting primary service, the court found the withdrawal to be erroneously based on a wrong interpretation of Krishna Panicker. Additionally, the learned Single Judge found that the benefits could not be withdrawn without affording the concerned teachers an opportunity of hearing; the present court agreed with that conclusion.
  6. On this basis, the court upheld the Single Judge's order, quashed the Government orders dated 19 October 2000 and 31 March 2001 (Exhibits P10 and P11), and directed restoration of the benefits granted under Exhibits P3 and P4.

Holding and Implications

Holding: The court held that the Full Bench in Krishna Panicker did not lay down an absolute rule that primary school service could never be counted for the purpose of granting higher grade to high school assistants. The language and context of the Government Orders dated 7 August 1986 (Exhibit P3) and 18 January 1991 (Exhibit P4) are different from the orders considered in Krishna Panicker, and therefore the Full Bench's observations cannot be applied automatically to Exhibits P3 and P4. The court quashed the Government orders dated 19 October 2000 and 31 March 2001 (Exhibits P10 and P11) and directed restoration of benefits granted by Exhibits P3 and P4.

Implications: As a direct consequence of the decision:

  • The higher-grade benefits granted to the respondents under Government Orders dated 7 August 1986 (Exhibit P3) and 18 January 1991 (Exhibit P4) were restored.
  • The Government orders of 19 October 2000 and 31 March 2001 (Exhibits P10 and P11), which attempted to withdraw those benefits with effect from 18 November 1993, were quashed.
  • The appeals were dismissed (the appeals "fail") and dismissed with no order as to costs.

The opinion does not assert the creation of a new general legal rule beyond its specific holding that the Full Bench's observations were context-specific; it confines its conclusion to the facts and orders before the court.

    Secretary To Government v. Mary

    Sodhi, C.J:— This order will dispose of a bunch of seventeen Writ Appeal Nos. 27, 328, 355, 420, 451, 510, 531, 537, 572, 573, 607, 669, 893, 925, 927, 945 and 956 of 2004 in which common questions of law and fact arise. Since argument were addressed only in W.A No. 27 of 2004, the facts have been taken from this case.

    2. Respondents in all these appeals were high school assistants working in Government/Private Schools. They all had joined service as primary teachers and thereafter were promoted as high school assistants. After reviewing the promotional prospects of the employees, grade promotion was recommended in cases where they, employees were stagnating on the same post without any promotional avenues. The Government, by its order, dated 7 August, 1986, (Exhibit P3), modified its earlier orders and decided that “primary school teachers including language teachers in the Primary section on being appointed or promoted to High School after having put in more than 10 years of service in the primary section will be given high school assistants grade I on completion of a total service of 20 years and senior grade on completion of 30 years”. It was further decided that “primary school teachers working as Senior grade Teachers and primary school Headmasters when promoted as high school assistants will be given high school assistants Grade I counting an aggregate service of 20 years”. Again, by order, dated 18 January, 1991, (Exhibit P4), the Government examined the matter in detail and it was decided that “primary school teachers including language teachers appointed as high school assistants will be allowed the scale of pay of primary teachers (selection grade) on Rs. 1250-2230 on completion of a total service of 25 years reckoning the total service in primary and high school sections together without any change in the designation of the post held by them”. On the basis of the aforesaid Government Order, the respondents were given the higher grade promotions on the post of high school assistants after counting the service rendered by them as primary teachers. The Government, thereafter, reconsidered the matter and on the basis of some observations made by a Full Bench of this Court in Krishna Panicker v. State of Kerala (W.A No. 844 of 1992 decided on 18 November, 1993), 1993 (2) K.L.T 1058, decided by its order, dated 19 October, 2000, that with effect from the date of the decision of the Full Bench, the high school assistants were not entitled to count their primary school service for the grant of higher grade. The Government Order, dated 7 August, 1986, was held not to be in force with effect from 18 November, 1993, the date on which the Full Bench decided Krishna Panicker case (vide supra). To the same effect, the Government took a decision by its order, dated 31 March, 2001, wherein also it decided that high school assistants were not eligible for higher grade by counting their primary school service with effect from 18 November, 1993. As a consequence of these Government Orders, dated 19 October, 2000 and 31 March, 2001, higher grade granted to the respondents after counting their service as primary school teachers, was withdrawn and the excess amount paid to them was sought to be recovered. It is against these orders that the respondents filed O.P No. 7348 of 2003 which came up for hearing before a learned Single Judge wno allowed the writ petition and directed the appellants herein to restore the benefits to the respondents flowing from the orders, dated 7 August, 1986, and 18 January, 1991 (Exhibits P3 and P4). Hence, this writ appeal.

    3. We have heard the learned counsel for the parties. As already observed, the high school assistants were given the higher grade after counting their service in the primary school and that has now been withdrawn on the basis of some observations of the Full Bench in Krishna Panicker case (vide supra).

    4. The short question that arises for our consideration is whether the observations made by the Full Bench in Krishna Panicker case (vide supra), lay down in absolute terms that a High School Assistant is not entitled to count his primary school service for the purpose of grant of higher grade?

    5. Having carefully gone through the judgment of the Full Bench in Krishna Panicker case (vide supra), we are clearly of the view that the observations made in that judgment were in a totally different context where the learned Judges were interpreting Cl. 10(i) of Government Orders, dated 16 September, 1985 and November 1, 1989 which were differently worded from Exhibits P3 and P4. The relevant clauses pertaining to the time bound grade promotions which were under consideration of the Full Bench read as under:

    Clause 10(i) of Government Order, dated 16 September, 1985:

    “10(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.”

    Clause 10(i) of Government Order, dated 1 November, 1989:

    “10(i). Employees in the revised scales of pay ranging from Rs. 750-1025 to Rs. 1050-1830 will be allowed promotion to a higher grade on completion or 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”.

    While interpreting the aforesaid clauses, the Full Bench observed in Para. 6 of the judgment as under:

    “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 Cl. 10(i) of Exhibit 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 analyzed 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 Cl. 10(i) where the requirement or 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. Cl. 10(i) of Exhibit P8 is also similarly worded and promotion to higher grade is to be allowed ‘on completion of 0 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 on 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.”

    Then in Para. 10, the learned Judges concluded aslinder:

    “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”.

    It was in the background of the aforesaid two clauses that observations were made by the learned Judges of the Full Bench that the service as primary teacher could not be counted while granting the grade as a high school assistant. The Full Bench did not lay down as an absolute rule that the service rendered as a primary teacher could never be counted for the purpose of higher grade as high school assistant. It is always open to the Government to grant the benefit of time bound grade promotions by counting the primary school service of the teachers, Such a provision was made in the Government Orders, dated 7 August, 1986 and 18 January, 1991 (Exts. P3 and P4 respectively) and these orders were issued when the earlier orders, dated September 16, 1985 and November 1, 1989, which were under consideration before the Full Bench were in existence. Having-made such a provision, the Government, under a mistaken impression that the Full Bench had laid down as a rule that the primary school service could never be counted for the purpose of granting higher grade as high school assistant, withdrew the same. As already observed, the Full Bench had not laid down any such absolute rule. It had only interpreted the relevant clauses of the Government Orders dated September 16, 1985 and November 1, 1989 which were under consideration before it. The Government Orders Exhibits P3 and P4 were not considered by the Full Bench and the language used in these orders is different from the one used in the earlier orders which were under consideration before the Full Bench. Therefore, what is said by the Full Bench in regard to the Government Orders dated September 16, 1985 and November 1, 1989 cannot apply to the Government orders, dated 7 August, 1986 and 18 January, 1991. In this view of the matter, the learned Single Judge was right in holding that the benefit granted by the Government Orders, dated 7 August, 1986 and 18 January, 1991, could not be withdrawn without affording an opportunity of hearing to the concerned teachers and on a wrong interpretation of the Full Bench judgment. We have therefore, no hesitation in upholding the findings of the learned Single Judge and quashing the Government orders, dated 19 October, 2000 and 31 March, 2001 (Exhibits P10 and P11) and directing the appellants to restore the benefits granted to the respondents by orders, dated 7 August, 1986 and 18 January, 1991. Ordered accordingly.

    In the result, the appeals fail and the same stand dismissed with no order as to costs.

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    Secretary To Government v. Mary
    (Jun 25, 2004)