The State Of Uttar Pradesh vs Vijay Shankar Dubey

CIVIL APPEAL NO.1757 of2020 (arising out of SLP (C) No.32812 of 2018)

STATE OF UTTAR PRADESH & ORS. ...APPELLANT(S) VERSUS

VIJAY SHANKAR DUBEY ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

This is an appeal filed by the State of Uttar

Pradesh and others challenging the judgment of Division

Bench of the Allahabad High Court, Lucknow Bench dated

01.11.2017 by which writ petition filed by the

respondent seeking the benefit of higher pay scale with

effect from 01.01.1996 has been allowed.

2. The brief facts of the case for deciding this

appeal are:

Signature Not Verified

The respondent was initially appointed as Digitally signed by MAHABIR SINGH

Assistant Public Officer on 11.02.1963. On 12.06.1964 Date: 2020.03.19 18:37:05 IST Reason:

the respondent was promoted as Joint Director,

1 Prosecution, Class I post. The respondent attained the

age of superannuation on 31.01.1997. At the time of

retirement he was in the pay scale of Rs.3700-5000 as

per Fourth Pay Commission Report. On the

recommendations of the Fifth Pay Commission Report the

pay scale for the post of Joint Director, Prosecution

was revised upward to Rs.12000-16500 in place of

Rs.3700-5000. Accordingly, pay scale of respondent was

revised and he was given revised pension also.

3. To consider various representations and objections

regarding the pay scale consequent to Fifth Pay

Commission Report, accepted by the Government on

02.02.1997, a Committee under the Chairmanship of Chief

Secretary was constituted. It is also referred as

Committee to consider anomalies. The said Committee

considered the amendment in the pay scale of the post

of the Prosecution Branch also. The Committee

recommended that the pay scale of various categories

of Prosecution cadre should be upgraded as per the

analogy of the post existing in the CBI Organisation

of the Center with effect from 01.04.2001. For the post

of Joint Director, Prosecution the pay scale was 2 recommended to be revised into Rs.14300-18500 with

effect from 01.04.2001. The recommendation of the said

Committee was accepted by the Government and an order

dated 02.02.2007 was issued accepting recommendation

for amending the pay scale of Joint Director,

Prosecution as Rs.14330-18500 with effect from

01.04.2001. The amendments in the pay scales with

regard to other categories, were also amended from the

same date i.e. 01.04.2001. The respondent who had

retired on 31.01.1997, after the Government order dated

02.02.2007 submitted a representation on 21.07.2011

praying that he be given the benefit of the Government

order dated 02.02.2007 and his pension be revised with

effect from 01.01.1996. On 30.11.2012, the Director,

Pension, Uttar Pradesh informed the respondent that he

is not entitled for any revised pension since he has

already retired from the services on 31.01.1997 and the

amendment in the pay scale was enforced from

01.04.2001.

4. The respondent filed a Writ-A No.18687 of 2013 in

the High Court. The High Court by the impugned judgment

allowed the writ petition relying on two earlier 3 judgments of the High Court i.e. judgments of the High

Court in Special Appeal (D) No.870 of 2009 (State of

U.P. and others vs. Anand Kumar Mishra and others) and

Special Appeal No.115 (SB) of 2009 (State of Uttar

Pradesh and others vs. Ghanshayam Singh and another). The High Court held that the respondent’s case being

fully covered by the judgment of the High Court in

State of U.P. and others vs. Anand Kumar Mishra and

others, the respondent is entitled to the benefit of

amended pay scale with effect from 01.01.1996. The

aggrieved with the judgment of the High Court this

appeal has been filed by the State of U.P. and others.

5. We have heard Shri V. Shekhar, learned senior

counsel appearing for the appellants and Shri P.N.

Misra, learned senior counsel appearing for the

respondent.

6. Shri V. Shekhar, learned senior counsel for the

appellants contends that the State Government after

considering the recommendations of the Committee

decided to amend the pay scales of various posts in the

Prosecution Department of the State of U.P. with effect

4 from 01.04.2001 which decision was consequent to the

recommendation made by the Committee. Shri Shekhar

submits that the date 01.04.2001 was fixed for amending

the pay scales following the analogy in the Centre with

regard to CBI organisation. The analogy of CBI

Organisation was adopted for the first time for making

pay scales of different posts in the Prosecution Branch

of the State according to the pay scales in the CBI.

Hence, date for implementation of said benefit was

fixed as 01.04.2001. He submits that the Government

order dated 02.02.2007 does not indicate that there was

any error in the pay scale which was granted to the

respondent on the basis of Fifth Pay Commission Report.

He submits that there was a rational basis in fixing

the date 01.04.2001 which cannot be validly challenged

by the respondent. The High Court relied on the earlier

two judgments of the High Court in the case of State

of U.P. and others vs. Anand Kumar Mishra and others

which was a case of the employees of U.P. Police Radio

Department. Another judgment relied by the High Court

in Ghanshayam Singh’s case was also a case relating not

to the Prosecution Wing of the State. The two judgments

5 relied by the High Court were in different set of facts

and for different posts which cannot be said to cover

the case of the respondent and the High Court erred in

holding that the case of the respondent was covered by

the aforesaid judgments.

7. It was further submitted that another Division

Bench vide its judgment dated 08.05.2018 in Writ Appeal

No.20754 of 2013 (Sudhir Kumar Gupta vs. State of U.P.

and others)where the petitioner retired from post of

Joint Director(Prosecution) on 30.11.1999 and claimed

the benefit of Government order dated 02.02.2007 with

effect from 01.01.1996 dismissed the Writ Appeal in

which judgment it was correctly held that the benefit

cannot be extended to Joint Directors (Prosecution) who

retired on 01.11.1999.

8. Shri P.N. Misra, learned senior counsel appearing

for the respondent refuting the submission of learned

senior counsel for the appellants contends that two

Division Bench judgments of the High Court relied in

the impugned judgment were fully applicable. It is

submitted that no appeal was filed against the judgment

6 in Ghanshayam Singh’s case whereas SLP(C)No.27765 of

2009 was filed against the judgment of the High Court

dated 06.08.2009 in Special Appeal No.870 of 2009 which

SLP was dismissed on 06.11.2009.

9. Shri Misra submits that when the Fifth Pay

Commission recommendations were implemented from

01.01.1996, the pay scale of respondent was not

properly fixed and that is why the Committee for

anomalies came into existence which recommended the

revision and amendment of pay scale into Rs.14300 to

18500 which ought to have been implemented with effect

from 01.01.1996.

10. We have considered the submissions of the learned

counsel for the parties and perused the records.

11. Between the parties there is no dispute that Fifth

Pay Commission revised pay scale of Joint Director,

Prosecution from Rs.3700-5000 to Rs.12000-16500. The

respondent was extended the benefit of Fifth Pay

Commission Report from 01.01.1996 and his pension was

thus revised accordingly. The State Government accepted

the recommendations of Fifth Pay Commission vide 7 Government order dated 23.12.1997 and decided to revise

the pay scale from 01.01.1996. Several objections and

representations were submitted by several Departments

including Officers working in the Directorate of

Prosecution. The relevant portion of the Government

order dated 02.02.2007 is as follows:

“From, (illegible) Under Secretary U.P. Government,

To, The Director General Prosecution, Directorate of Prosecution U.P., Lucknow.

Letter No.246/VI-P-9-07-31(49)/2000 dated 02.02.2007.

Sub: Regarding amendment in the Pay Scale of the various posts existing in the Prosecution Department in the State of Uttar Pradesh.

This is with reference to the captioned matter. I have been directed to say that on the basis of the recommendations of the Pay Committee 1997-99 constituted for revision of pay scales etc. of the Government Personnels employed in the various Departments of the State Government of Uttar Pradesh and after taking into consideration such recommendations, the Committee headed by the Chief Secretary was constituted for taking decision in cases of incidents of anomalies in the pay scales etc. On the basis of the recommendations of the said Chief Secretary Committee. His Excellency the Hon’ble Governor of Uttar Pradesh is pleased to 8 sanction a revised Higher Pay Scale, for the various posts, in the Prosecution Department as referred in Column-2 of the chart annexed with this Government Order, in place of the General Revised Pay Scales applicable with effect from 01.01.1996, as shown in column-3 of the said chart, to be implemented with effect from 01.04.2001.

…… …… …… ……

…… …… …… ……”

12. The Government order dated 02.02.2007 had

enclosure in tabular form having columns- Designation,

General Revised Pay Scale with effect from 01.01.1996,

Amended Pay Scale with effect from 01.04.2001 and

Recommendation. It is useful to extract the enclosure

to the Government order dated 02.02.2007 which is to

the following effect:

Sl. Designation General Amended Recommendation No. Revised Pay Scale Pay Scale with with effect effect from from 01.04.2001 01.01.1996 1 2 3 4 5

1. Prosecution 7450- 8000-275- --

Officer 11500 13500 2. Senior 8000- 10000- -- Prosecution 13500 325-15200 Officers (Ordinary Scale) 3. Senior 10000- 12000- The Prosecution 15200 375-16500 designation of

9 Officer(Senior Senior Scale)/Deputy Prosecution Director Officer(Senior Prosecution Pay Scale)/Deputy Director shall be re- designated as Joint Director Prosecution. 4. Joint Director 12000- 14300- The (Law)/Joint 16500 400-18400 designation of Director Joint Director (Prosecution) (Prosecution) and Joint Director (Law) shall be re- designated as Additional Director (Prosecution) and Additional Director (Law)

Sd/- Manju Chandra Special Secretary”

13. A perusal of the above enclosure indicates that

pay scales of all the officers of Prosecution

Department were not amended, amendments were made only

for the Senior Prosecution Officer (Senior

Scale)/Deputy Director Prosecution and Joint Director

(Law)/Joint Director (Prosecution) with effect from

01.04.2001 as mentioned in column No.4.

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14. Learned counsel for the appellants, during the

course of submissions, has submitted that date,

01.04.2001 was recommended by the Committee of the

Chief Secretary due to accepting the analogy in the CBI

organisation of the Center. Learned counsel for the

appellants referring to the recommendation of the

Committee of the Chief Secretary contented that the

higher pay scale sanctioned to the Joint Director in

the Prosecution Department was on the basis of analogy

of CBI organisation of the Center. In the written

submission which has been submitted by the learned

counsel for the appellants recommendation of Chief

Secretary’s Committee on consideration of amendment in

the pay scale of the post of the Prosecution Branch has

been placed for perusal which indicates that the

recommendations of the Committee were:

“………In view of the above situations, the Committee recommends that the pay scales of the various categories of the prosecution cadre should be upgraded as per the above general decision on the analogy of the existing posts in the CBI organisation of the Center from 01.04.2001 as follows………“

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15. The recommendations of the Committee of Chief

Secretary were accepted and consequent Government order

was issued on 02.02.2007 accordingly.

16. The High Court in the impugned judgment relying on

two earlier judgments of the High Court, in Ghanshyam

Singh and Anand Kumar Mishra and others, held that the

case of the respondent is covered by the said judgments,

hence, the writ petition is to be allowed. The High

Court had not opined as to how the cut off date was

fixed as 01.04.2001 is unsustainable. The Report of

anomaly of the Committee with regard to different

Departments recommending different pay scales is based

on pay structure of different Departments and merely

because employees of wireless department has been given

higher scale with effect from 01.01.1996 that cannot be

the ground to declare the date, 01.04.2001 fixed for

implementation of the amendment of pay scale of the

Joint Director, Prosecution illegal. We find substance

in the submission of the learned counsel for the

appellants that amendment in the pay scale of Joint

Director, Prosecution was recommended by the Committee

of the Chief Secretary on the analogy of the CBI 12 organisation of the Center. Thus, the benefit of

upgradation of pay scale as per pay scale in CBI

organisations was accepted for the first time. The

representation of Prosecution Wing was accepted by the

Committee of the Chief Secretary agreeing to extend the

benefits of the CBI organisation of the Center. When

the amendment in the pay scale is being affected, we do

not find any arbitrariness in fixing uniform date,

01.04.2001. The submission of Shri Misra that amendment

of the pay scale ought to relate back from 01.01.1996

which was the date fixed by the Fifth Pay Commission

cannot be accepted in the facts of the present case.

17. Shri Misra has also placed reliance on the judgment

of this Court in Purshottam Lal and others vs. Union of

India and another, (1973) 1 SCC 651. In the above case,

the petitioners were employed with the Forest Research

Institute and Colleges, Dehra Dun which was a

department of the Government of India, Ministry of Food

and Agriculture. The Second Pay Commission submitted

its report and made recommendations with regard to

Scientific Staff. The revision of the pay scale of the

Scientific Staff in the Forest Research Institute was 13 with effect from 21.06.1962 whereas recommendation of

Second Pay Commission was accepted by the Government

with effect from July 1, 1959 with regard to similar

sister Institutions. The said Scientific Staff of

Forest Research Institute protested and submitted

representation and thereafter filed the writ petition

under Article 32 in this Court. Before this Court

arguments were raised on behalf of the Government that

Second Pay Commission did not deal with the case of the

petitioners and they were not entitled for the benefit

with effect from July 1, 1959 which submission was not

accepted. In paragraphs 14,15 and 17 this Court laid

down following:

“14. Mr Dhebar on behalf of the Government maintains the same position and he says that the Pay Commission Report did not deal with the case of the petitioners. We are unable to accept this contention. The terms of reference are wide, and if any category of government servants was excluded material should have been placed before this Court. The Pay Commission has clearly stated that for the purposes of their enquiry they had taken all persons in the Civil Services of the Central Government or holding civil posts under that Government and paid out of the Consolidated Fund of India, to be Central Government employees. It is not denied by Mr Dhebar that the petitioners are paid out of the Consolidated Fund of India.

14 15. Mr Dhebar contends that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine which categories of employees should be taken to have been included in the terms of reference. We are unable to appreciate this point. Either the Government has made reference in respect of all government employees or it has not. But if it has made a reference in respect of all government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned.

17. In the result the petition is allowed and it is directed that the revised pay-

scales of the petitioners will have effect from July 1, 1959, in accordance with the recommendations of the Pay Commission. We further direct that the petitioners should be paid the amount payable to them as a consequence of the revision of the pay-scales with effect from July 1959. The petitioners will have the costs of this petition.”

18. In the above case, this Court has considered a case

which was also covered by the Second Pay Commission but

benefits were not extended whereas benefits to the

similar sister Institutions were extended. This Court,

thus, allowed the writ petition and directed the

15 benefit to writ petitioners also with effect from July

1, 1959. The above case has no bearing on the facts of

the present case. The sequences and events in the

present as noted above are based on different set of

facts and the above judgment does not help the

respondent in the present case.

19. We, thus, are of the view that the cut off date,

01.04.2001 for amendment of pay scale of the post of

Joint Director, Prosecution on the basis of the

recommendation of the Committee of the Chief Secretary

was a conscious decision, the amendment in the pay scale

was made following the analogy in the CBI organisation

of the Center. When a benefit for the first time is

extended to a category of employees, the State can

always fix a rational cut off date and it was not

obligatory for the State to extend the benefit of

analogy of the CBI organisation of the Center with

effect from 01.01.1996 which was the date of the

recommendations of the Fifth Pay Commission. The

respondent being not covered by the Government order

dated 02.02.2007 was rightly informed that he was not

16 entitled for the benefit of amendment in the pay scale

he having already retired on 31.01.1997.

20. In the foregoing discussions, we are of the view

that the judgment of the High Court is unsustainable

and is hereby set aside. The appeal is allowed.

............................J. ( ASHOK BHUSHAN )

............................J. ( MOHAN M.SHANTANAGOUDAR ) New Delhi, March 19, 2020.

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