JUDGMENT
Jawahar Lal Gupta, C.J.
1. Was the action of the appellant authorities in withdrawing the benefit of higher grade granted to the respondent legal and valid? The learned Single Judge having answered this question in the negative and allowed the claim of the respondent, the State of Kerala and its officers have filed the present appeal. Relevant facts may be briefly noticed.
2. The respondent had worked in the Indian Army for a period of about six years and eleven months. After discharge from the Army he was appointed as a Sergant in the Medical Education Service of the State on July 1, 1982. He was granted the benefit of the Army Service and was deemed to have been appointed on September 16, 1975.
3. According to the orders issued by the State Government an employee is entitled to the grant of a higher grade on completion of ten years of service. Thereafter a second higher grade is granted on completion of either ten years of service in the first promoted post or a total service of twenty years. Since the respondent was deemed to have joined service in September, 1975, he was granted the first higher grade from September, 1985. The second higher grade was granted to him with effect from September 16, 1995. Thereafter vide order dated April, 1998 he was granted his promotion in the usual course as a Security Assistant. He ultimately retired from service as a Security Officer on May 31, 2001. However, just three days before the date of his retirement, the Government issued an order by which his promotion to the second higher grade which had been granted vide order dated December 28, 1996 was cancelled. The reason assigned was that the benefit of military service could not have been given for a second time. Resultantly his retiral benefits were reduced and the pay already drawn by him was ordered to be recovered. Aggrieved by this order a copy of which was produced as Ext.P9 the respondent had represented. Having failed to achieve anything, he had approached this Court through a petition under Article 226 of the Constitution.
4. The matter was considered by the learned Single Judge. It was found that the second higher grade had been granted to him on actual completion of ten years of service in the first grade. The promotion being valid, the cancellation was illegal. Thus, the Writ Petition was allowed and the impugned order was quashed. The authorities were directed to give consequential benefits. Hence, the present appeal.
5. Mr. Rahim has placed before us a complete copy of the order issued by the Government vide letter dated December 8, 1993. Learned counsel has referred to two provisions in this order. The first one relates to the grant of benefit of military service and the second to grant of higher grade. These two provisions provide as under:-
“(vi) War/Military Service which counts for Civil Pension will be reckoned for computing the qualifying service for the grant of the first higher grade. Civilian Service under military will not however, count for higher grade”.
“(b) The second higher grade on completion of either 10 years of service in the first promoted post or a total service of 20 years in the entry post and the first regular promotion post/time bound higher grade, together, whichever is earlier”.
6. It may be mentioned that the above are the extracts from the letters issued by the Government at different times. However, it is contended by the counsel that the matter has to be decided in the light of the above conditions.
7. A perusal of Clause (vi) as reproduced above shows that War or Military Service rendered by an employee is reckoned as qualifying service for the grant of first higher grade. The provision lays down only one pre-condition. The Military Service should be such that it counts for Civil Pension. In the present case, there is no dispute that the military service rendered by the respondent counts for civil pension. Thus, he was entitled to the benefit of this service while computing his qualifying service for the grant of the first higher grade.
8. When this provision is applied to the facts of the present case it is evident that even though the respondent had joined service on July 1, 1982, he was deemed to have been appointed on September 16, 1975. Thereafter it was on completion of ten years service that he was granted the first higher grade with effect from September 16, 1985. That having happened, the question that arises is as to whether or not the respondent is entitled to the grant of the second higher grade. The provision in this behalf is contained in Clause (b) which has been reproduced above. A perusal of this clause shows that the second higher grade is granted “on completion of either ten years of service in the first promoted post or a total service of twenty years in the entry post and the first regular promotion/time bound higher grade together ……..”. A perusal of this provision clearly shows that the employee is required to render ten years of service in the first promoted post before he becomes eligible for promotion to the second higher grade. In the present case first higher grade having been granted on September 16, 1985, the respondent would be entitled to the grant of the second higher grade on September 16, 1995. This is exactly what was done by the authorities.
9. Mr. Rahim states that the second higher grade could be granted only after the person had completed twenty years of actual service in the original post to which he had been appointed. In other words the contention is that the respondent having joined the service in the year 1982, he could be granted the second higher grade only in the year 2002. Since he had retired prior to that date, the second higher grade was not admissible.
10. The contention is misconceived. A perusal of the entire provision shows that the second higher grade is admissible on completion of ten years in the first grade. If it is not granted, the grant of benefit of military service for the first higher grade promotion or in the matter of deemed date of appointment would be rendered totally otiose. The only way of interpreting Clause (b) is that a period of twenty years has to be counted from the date assigned to the employee by giving the benefit of military service. If that date is taken into account he was appointed on September 16, 1975. He would complete twenty years on September 15, 1995. Otherwise, if the date of the grant of the first higher grade is taken into account, he had been given the scale on September 16, 1985. He had completed ten years on September 16, 1995 when the higher grade was released. In either case, the result is that the grant of higher grade to the respondent was legal and valid. Cancellation was not in conformity with the order of the Government.
11. Mr. Rahim contends that by giving him the benefit of higher grade on completion often years, the employee is getting double benefit of the military service. He gets it at the time of the first higher grade as well as at the time of the second higher grade.
12. The contention is wholly misconceived. A perusal of the two clauses reproduced above shows that the employee has to be given the benefit of military service. Having given the benefit, the authority cannot say that it shall be deemed to have been withdrawn at the time of promotion to the second grade. In fact the provision is that the employee should have rendered either a total period of twenty years of service or completed ten years in the first higher grade before he becomes eligible for the grant of the second higher grade. Still more, the use of the words “whichever is earlier” is not without significance. If he completes ten years in the first higher grade even before completing twenty years in the original post, the employee is entitled to the higher grade. The benefit of military service having been granted the employee is deemed to have been fictionally appointed on a day prior to the date on which he was actually appointed. Once the benefit has been fictionally granted at the time of initial recruitment, it cannot be withdrawn at any subsequent stage of the service. The consequences must continue without interruption. This is all the more so as there is no express prohibition against it.
13. No other point has been raised.
14. In view of the above we find no infirmity in the view taken by the learned Single Judge. The appeal is wholly without any merit. It is, consequently dismissed.
15. If the direction given by the learned Single Judge has not been complied so far, the needful shall be done within two weeks from the date of receipt of the copy of this judgment.
