Full Judgment Text
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CASE NO.:
Appeal (civil) 4468 of 1999
PETITIONER:
Rajasthan High Court, Jodhpur Through Registrar
RESPONDENT:
Babu Lal Arora
DATE OF JUDGMENT: 12/12/2003
BENCH:
S. RAJENDRA BABU & RUMA PAL.
JUDGMENT:
J U D G M E N T
RAJENDRA BABU, J. :
The respondent was appointed as a Lower
Division Clerk in the pay scale of Rs.950-1680 in 1960
in the appellant’s establishment under the provisions
of the Rules framed in 1953. He was promoted as
Upper Division Clerk in the pay scale of Rs.1200-2050
by an order made on 12.11.1973. He passed the
qualifying test for promotion to the post of Court Fee
Examiner/Stamp Reporter in the pay scale of Rs.1400-
2600. He was promoted to the post of Court Fee
Examiner/Stamp Reporter by an order made on
7.4.1984. Subsequently he was promoted to the post
of Bench Reader in the pay scale of Rs.1400-2600 by
an order made on 28.10.1989.
The Government of Rajasthan issued a circular
on 25.1.1992, which prescribed selection grade for
employees in Class IV, Ministerial and Subordinate
Services for fixation of pay in Selection Grades. The
respondent made a representation for getting the
benefit of 3rd selection grade in the pay scale of
Rs.2000-3200. On 12.5.1994, the representation of
the respondent was rejected by the Registrar of the
appellant’s establishment by an order made on
25.7.1994. The respondent filed a writ petition before
the High Court for getting the benefit of the circular
dated 25.1.1992 on the grounds that certain others
who had joined the service as Upper Division Clerks
and were junior to him were getting higher pay scales
by the extension of the benefits under the 1992
circular. The stand of the appellant is that the benefit
of 1992 circular cannot be extended to the respondent
inasmuch as he has already earned three promotions
in his existing cadre and he was not entitled to third
selection grade in terms of the said circular after three
promotions to the higher cadres and the case of those
persons whose cases were cited is that they continued
in different branches as Assistants and so on.
The learned Single Judge of the High Court
allowed the writ petition directing the appellant to
award the grade in the pay scale of Rs.2000-3200 by
holding that the juniors of the appellant in the UDC
cadre have been granted such pay scales. Aggrieved
by that order, the matter was carried in appeal to the
Division Bench of the High Court. The Division Bench
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dismissed the appeal upholding the order of the
learned Single Judge on the basis of doctrine of justice
and fair play without adverting to the contentions
raised on behalf of the appellant.
In order to appreciate the contentions urged on
behalf of the parties, it is necessary to set out the
relevant portion of the circular :
"2.(i) The first Selection Grade shall be granted from the
day of which one competes service of nine years, provided
that employee has not got any promotion earlier as is
available in his existing cadre;
(ii) The second Selection Grade shall be granted from the
day following the day on which one completes services of
eighteen years, provided that the employee has not got
two promotions earlier as might be available in his existing
cadre and the first selection grade granted to him was
lower than the pay scale of Rs.2200-4000;
(iii) the third selection grade shall be granted from the day
following the day on which one completes service of
twenty seven years, provided that the employee has not
got three promotions earlier as might be available in his
existing cadre and the first or the second selection grade
granted to him, as the case may be, was lower than the
pay scale of Rs.2,200-4,000/-."
In order to earn the first benefit, the employee
must have completed nine years of service and should
not have got any promotion earlier in his existing
cadre; secondly, the second benefit will become
available on completion of 18 years of service
provided the employee has not got two promotions
earlier in his existing cadre and the first selection
grade granted to him was lower than the pay scale of
Rs.2200-4000; and lastly, the third benefit will
become available on completion of 27 years of service
provided that the employee has not got three
promotions earlier as might be available in his existing
cadre and the first or the second selection grade
granted to him, as the case may be, was lower than
the pay scale of Rs.2,200-4,000/-.
The employees who are in service are governed
by the conditions of employment and their promotions
also take place accordingly and not on any general
principle of justice and fair play. Discrimination, if
any, will arise only amongst equals and not between
those who are in different cadres. As was set out
earlier, the respondent had obtained three promotions
as per the orders issued by the Registrar - firstly, as
UDC on 12.11.1973, secondly as Court Fee
Examiner/Stamp Reporter on 7.4.1984 and lastly as a
Bench Reader on 28.10.1989. Thus in the course of
his 27 years service, he had already obtained three
promotions and, therefore, the circular was not
attracted to his case at all. It is, therefore, that the
High Court wanted to rely upon the doctrine of justice
and fair play.
It is unfortunate that the respondent on
promotion did not continue as Assistant but he got the
promotion to the post of Court Fee Examiner/Stamp
Reporter and subsequently as a Bench Reader. These
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two postings carry a much higher pay scale than what
had been given to him as Assistant. However, the
point to be noticed is that when he was promoted to
the post of Court Fee Examiner/Stamp Reporter and
thereafter as Bench Reader it was in the same pay
scale of Rs.1400-2600. One of the important indicia
to find out whether an employee holds a higher post
on promotion is whether such post carries higher
emoluments. Hence when the respondent was
appointed as Bench Reader, whether it was really a
promotion or posting in another equivalent post
though termed as promotion should be examined.
That aspect of the matter has not been examined by
the High Court by reference to the nature of duties
performed with additional responsibility attached to
that post or any higher emoluments were paid to him.
Unless that aspect of the matter is examined, the High
Court could not have arrived at the conclusion
whether respondent had obtained three promotions as
envisaged in the circular. In the absence of this
exercise, the Division Bench could not have merely
decided the matter on the doctrine of justice and fair play.
Hence we set aside the order made by the
Division Bench in Civil Special Appeal No. 860 of 1997
and remand the matter to the High Court for fresh
examination as to whether the respondent had been
really promoted to the cadre of Bench Reader from
the cadre of Court Fee Examiner/Stamp Reporter
bearing in mind the aspect that two posts carry
identical pay scale. It is only on determination of the
same, the benefit of the circular dated 25.1.1992 can
be granted to the respondent or refused. Hence we
set aside the order made by the High Court and remit
the matter to the High Court for fresh consideration in
the light of what we have set out and restore Civil
Special Appeal No.860 of 1997 to its original file.
The appeal is allowed accordingly.