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Supreme Court of India
The State Of Uttar Pradesh vs Vijay Shankar Dubey on 19 March, 2020Author: Ashok Bhushan
Bench: R. Banumathi, Ashok Bhushan, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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,
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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
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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
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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
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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
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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
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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
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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
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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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