STATE OF KERALA Vs. V J PHILOMINA

JUDGEMENT

(1.) The issue to be decided in this case is whether the prior military service can be reckoned by the employee for claiming time bound grade promotions. There is no dispute that in view of the Government orders, for reckoning 10 years of service for granting first grade promotions, prior military service has to be taken into account. A Division Bench of this Court in State of Kerala v. Sreedharan, 2004 KHC 65 : 2004 (1) KLJ 487 : 2004 (1) KLT 398 considered various Government orders and held that since for granting first grade promotion, prior military service is counted, it should be continued to be counted while granting the second and third grade promotions also. In WP (C) No. 10555/2006, the learned Single Judge of this Court opined that observations of the Division Bench in Sreedharan's case (supra) appears to be not correct. But since Single Judge is bound by the Division Bench decision, learned Judge followed the above dicta and quashed the impugned orders (Exts. P5 and P7). When the State filed writ appeal, a Division Bench of this Court found that learned Single Judge has expressed cogent reasons for differing from the views expressed by the Division Bench in Sreedharan's case and the question was referred to be decided by the Full Bench. Since the issue may affect large number of employees, we issued notice to Bar association so that interested members of the Bar can address the Court. We have also appointed Mr. Elvin Peter P. J., Advocate as Amicus Curiae. Special Government Pleader Sri. N. Manoj Kumar and Amicus Curiae Mr. Elvin Peter placed all relevant Government orders in the Court. Counsel for the respondent Sri. Kodoth Sreedharan also placed all the relevant papers. We record our appreciation to all the above advocates.

(2.) Time bound grade promotions are given to avoid stagnation and discontentment among employees who do not get any promotion even after putting in long years of service. Even though not entitled to as per rules or on the terms of appointment order, as a matter of concession, Government decided to grant grade promotions to their employees who were not granted any promotion after entering in the Government service despite their long service. Such benefits were granted by issuing Government orders as authorised by Statute. In GO (Ms) 439/79/GAD. dated 1st August, 1979, the Government ordered grant of benefit of higher grade promotion on completion of 13 years of service in the entry grade to the Non Gazetted Officers. The operative portion of the order is as follows:

(3.) By Government order GO (P) 132/91/(98)/Fin. dated 21/02/1991 Government decided to extend the above said benefit of reckoning military service to category of Gazetted Officers also for the 10 year time bound grade promotions. The above Government orders only mention that benefit of military service can be reckoned as qualifying service for the 10 years bound grade promotions (the first higher grade) and not thereafter. The Government orders were silent on the question whether for granting subsequent grade promotions on completion of 20-25 year's service, the prior military service can be counted or not. In the absence of counting of such benefit normally it cannot be granted. By circular No. 54/92/(138)/Fin. dated 6th November 1992, Government issued general guidelines for sanctioning time bound higher grades. In the above, with regard to military service it was shown as follows: