STATE OF UTTAR PRADESH & ORS. versus VIJAY SHANKAR DUBEY on 19 March 2020

1. This is an appeal filed by the State of Uttar Pradesh and otherschallenging the judgment of Division Bench of the Allahabad HighCourt, Lucknow Bench dated 01.11.2017 by which writ petition filedBby the respondent seeking the benefit of higher pay scale with effectfrom 01.01.1996 has been allowed.

2. The brief facts of the case for deciding this appeal are:

The respondent was initially appointed as Assistant Public OfficerCon 11.02.1963. On 12.06.1964 the respondent was promoted as JointDirector, Prosecution, Class I post. The respondent attained the age ofsuperannuation on 31.01.1997. At the time of retirement he was in thepay scale of Rs.3700-5000 as per Fourth Pay Commission Report. Onthe recommendations of the Fifth Pay Commission Report the pay scalefor the post of Joint Director, Prosecution was revised upward toDRs.12000-16500 in place of Rs.3700-5000. Accordingly, pay scale ofrespondent was revised and he was given revised pension also.

3. To consider various representations and objections regardingthe pay scale consequent to Fifth Pay Commission Report, acceptedby the Government on 02.02.1997, a Committee under theEChairmanship of Chief Secretary was constituted. It is also referredas Committee to consider anomalies. The said Committee consideredthe amendment in the pay scale of the post of the Prosecution Branchalso. The Committee recommended that the pay scale of variouscategories of Prosecution cadre should be upgraded as per the analogyFof the post existing in the CBI Organisation of the Center with effectfrom 01.04.2001. For the post of Joint Director, Prosecution the payscale was recommended to be revised into Rs.14300-18500 with effectfrom 01.04.2001. The recommendation of the said Committee wasaccepted by the Government and an order dated 02.02.2007 was issuedaccepting recommendation for amending the pay scale of Joint Director,GProsecution as Rs.14330-18500 with effect from 01.04.2001. Theamendments in the pay scales with regard to other categories, werealso amended from the same date i.e. 01.04.2001. The respondent whohad retired on 31.01.1997, after the Government order dated 02.02.2007submitted a representation on 21.07.2011 praying that he be given theHbenefit 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 entitledfor any revised pension since he has already retired from the serviceson 31.01.1997 and the amendment in the pay scale was enforced from01.04.2001.

4. The respondent filed a Writ-A No.18687 of 2013 in the HighCourt. The High Court by the impugned judgment allowed the writpetition relying on two earlier judgments of the High Court i.e. judgmentsof 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 AppealNo.115 (SB) of 2009 (State of Uttar Pradesh and others vs.Ghanshayam Singh and another). The High Court held that therespondent’s case being fully covered by the judgment of the High Courtin State of U.P. and others vs. Anand Kumar Mishra and others, therespondent is entitled to the benefit of amended pay scale with effectfrom 01.01.1996. The aggrieved with the judgment of the High Courtthis appeal has been filed by the State of U.P. and others.

5. We have heard Shri V. Shekhar, learned senior counselappearing for the appellants and Shri P.N. Misra, learned senior counselappearing for the respondent.

6. Shri V. Shekhar, learned senior counsel for the appellantscontends that the State Government after considering therecommendations of the Committee decided to amend the pay scalesof various posts in the Prosecution Department of the State of U.P.with effect from 01.04.2001 which decision was consequent to therecommendation made by the Committee. Shri Shekhar submits thatthe date 01.04.2001 was fixed for amending the pay scales followingthe analogy in the Centre with regard to CBI organisation. The analogyof CBI Organisation was adopted for the first time for making payscales of different posts in the Prosecution Branch of the Stateaccording to the pay scales in the CBI. Hence, date for implementationof said benefit was fixed as 01.04.2001. He submits that theGovernment order dated 02.02.2007 does not indicate that there wasany error in the pay scale which was granted to the respondent on thebasis of Fifth Pay Commission Report. He submits that there was arational basis in fixing the date 01.04.2001 which cannot be validlychallenged by the respondent. The High Court relied on the earlier twojudgments of the High Court in the case of State of U.P. and others A

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Avs. Anand Kumar Mishra and others which was a case of the employeesof U.P. Police Radio Department. Another judgment relied by the HighCourt in Ghanshayam Singh’s case was also a case relating not to theProsecution Wing of the State. The two judgments relied by the HighCourt were in different set of facts and for different posts which cannotbe said to cover the case of the respondent and the High Court erredBin holding that the case of the respondent was covered by the aforesaidjudgments.

7. It was further submitted that another Division Bench vide itsjudgment dated 08.05.2018 in Writ Appeal No.20754 of 2013 (SudhirKumar Gupta vs. State of U.P. and others) where the petitioner retiredCfrom post of Joint Director(Prosecution) on 30.11.1999 and claimed thebenefit of Government order dated 02.02.2007 with effect from01.01.1996 dismissed the Writ Appeal in which judgment it was correctlyheld that the benefit cannot be extended to Joint Directors (Prosecution)who retired on 01.11.1999.D

8. Shri P.N. Misra, learned senior counsel appearing for therespondent refuting the submission of learned senior counsel for theappellants contends that two Division Bench judgments of the HighCourt relied in the impugned judgment were fully applicable. It issubmitted that no appeal was filed against the judgment in GhanshayamESingh’s case whereas SLP (C) No. 27765 of 2009 was filed againstthe judgment of the High Court dated 06.08.2009 in Special AppealNo.870 of 2009 which SLP was dismissed on 06.11.2009.

9. Shri Misra submits that when the Fifth Pay Commissionrecommendations were implemented from 01.01.1996, the pay scaleFof respondent was not properly fixed and that is why the Committeefor anomalies came into existence which recommended the revision andamendment of pay scale into Rs.14300 to 18500 which ought to havebeen implemented with effect from 01.01.1996.

10. We have considered the submissions of the learned counselGfor the parties and perused the records.

11. Between the parties there is no dispute that Fifth PayCommission revised pay scale of Joint Director, Prosecution fromRs.3700-5000 to Rs.12000-16500. The respondent was extended thebenefit of Fifth Pay Commission Report from 01.01.1996 and his pensionHwas thus revised accordingly. The State Government accepted the recommendations of Fifth Pay Commission vide Government order dated23.12.1997 and decided to revise the pay scale from 01.01.1996. Severalobjections and representations were submitted by several Departmentsincluding Officers working in the Directorate of Prosecution. Therelevant 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 thevarious posts existing in the ProsecutionDepartment in the State of Uttar Pradesh.

This is with reference to the captioned matter. I have beendirected to say that on the basis of the recommendations of thePay Committee 1997-99 constituted for revision of pay scalesetc. of the Government Personnels employed in the variousDepartments of the State Government of Uttar Pradesh and aftertaking into consideration such recommendations, the Committeeheaded by the Chief Secretary was constituted for taking decisionin cases of incidents of anomalies in the pay scales etc. On thebasis of the recommendations of the said Chief SecretaryCommittee. His Excellency the Hon’ble Governor of UttarPradesh is pleased to sanction a revised Higher Pay Scale, forthe various posts, in the Prosecution Department as referred inColumn-2 of the chart annexed with this Government Order, inplace of the General Revised Pay Scales applicable with effectfrom 01.01.1996, as shown in column-3 of the said chart, to beimplemented with effect from 01.04.2001.

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12. The Government order dated 02.02.2007 had enclosure intabular form having columns- Designation, General Revised Pay Scalewith effect from 01.01.1996, Amended Pay Scale with effect from01.04.2001 and Recommendation. It is useful to extract the enclosureto the Government order dated 02.02.2007 which is to the followingeffect:

BSl.No.DesignationGeneralAmendedRecommendationRevisedPay ScalePay Scalewith effectwith effectfromfrom01.04.2001C01.01.1996123451.Prosecution7450-8000-275-- -Officer11500135002.Senior8000-10000-325-- -Prosecution1350015200DOfficers(OrdinaryScale)3.Senior10000-12000-The designation ofProsecution15200375-16500Senior ProsecutionOfficer(SeniorOfficer (Senior PayEScale)/DeputyScale)/DeputyDirectorDirector shall beProsecutionre-designated asJoint DirectorProsecution.4.Joint Director12000-14300-400-The designation ofF(Law)/Joint1650018400Joint DirectorDirector(Prosecution) and(Prosecution)Joint Director(Law) shall bere-designated asAdditional Director(Prosecution) andGAdditional Director(Law)

Sd/-Manju ChandraSpecial Secretary”

13. A perusal of the above enclosure indicates that pay scalesof all the officers of Prosecution Department were not amended,amendments were made only for the Senior Prosecution Officer (SeniorScale)/Deputy Director Prosecution and Joint Director (Law)/JointDirector (Prosecution) with effect from 01.04.2001 as mentioned incolumn No.4.

14. Learned counsel for the appellants, during the course ofsubmissions, has submitted that date, 01.04.2001 was recommended bythe Committee of the Chief Secretary due to accepting the analogy inthe CBI organisation of the Center. Learned counsel for the appellantsreferring to the recommendation of the Committee of the ChiefSecretary contented that the higher pay scale sanctioned to the JointDirector in the Prosecution Department was on the basis of analogyof CBI organisation of the Center. In the written submission which hasbeen submitted by the learned counsel for the appellantsrecommendation of Chief Secretary’s Committee on consideration ofamendment in the pay scale of the post of the Prosecution Branch hasbeen placed for perusal which indicates that the recommendations ofthe Committee were:

“………In view of the above situations, the Committeerecommends that the pay scales of the various categories of theprosecution cadre should be upgraded as per the above generaldecision on the analogy of the existing posts in the CBIorganisation of the Center from 01.04.2001 as follows………”

15. The recommendations of the Committee of Chief Secretarywere accepted and consequent Government order was issued on02.02.2007 accordingly.

16. The High Court in the impugned judgment relying on twoearlier judgments of the High Court, in Ghanshyam Singh and AnandKumar Mishra and others, held that the case of the respondent iscovered 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 fixedas 01.04.2001 is unsustainable. The Report of anomaly of the Committeewith regard to different Departments recommending different pay scalesis based on pay structure of different Departments and merely becauseemployees of wireless department has been given higher scale witheffect 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 A

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Athe Joint Director, Prosecution illegal. We find substance in thesubmission of the learned counsel for the appellants that amendmentin the pay scale of Joint Director, Prosecution was recommended bythe Committee of the Chief Secretary on the analogy of the CBIorganisation of the Center. Thus, the benefit of upgradation of pay scaleas per pay scale in CBI organisations was accepted for the first time.BThe representation of Prosecution Wing was accepted by the Committeeof the Chief Secretary agreeing to extend the benefits of the CBIorganisation of the Center. When the amendment in the pay scale isbeing affected, we do not find any arbitrariness in fixing uniform date,01.04.2001. The submission of Shri Misra that amendment of the payCscale ought to relate back from 01.01.1996 which was the date fixedby the Fifth Pay Commission cannot be accepted in the facts of thepresent case.

17. Shri Misra has also placed reliance on the judgment of thisCourt in Purshottam Lal and others vs. Union of India and another,D(1973) 1 SCC 651. In the above case, the petitioners were employedwith the Forest Research Institute and Colleges, Dehra Dun which wasa department of the Government of India, Ministry of Food andAgriculture. The Second Pay Commission submitted its report and maderecommendations with regard to Scientific Staff. The revision of thepay scale of the Scientific Staff in the Forest Research Institute wasEwith effect from 21.06.1962 whereas recommendation of Second PayCommission was accepted by the Government with effect from July1, 1959 with regard to similar sister Institutions. The said Scientific Staffof Forest Research Institute protested and submitted representation andthereafter filed the writ petition under Article 32 in this Court. BeforeFthis Court arguments were raised on behalf of the Government thatSecond Pay Commission did not deal with the case of the petitionersand they were not entitled for the benefit with effect from July 1, 1959which submission was not accepted. In paragraphs 14,15 and 17 thisCourt laid down following:

“14. Mr Dhebar on behalf of the Government maintains the sameGposition and he says that the Pay Commission Report did not dealwith the case of the petitioners. We are unable to accept thiscontention. The terms of reference are wide, and if any categoryof government servants was excluded material should have beenplaced before this Court. The Pay Commission has clearly statedHthat for the purposes of their enquiry they had taken all persons in the Civil Services of the Central Government or holding civilposts under that Government and paid out of the ConsolidatedFund of India, to be Central Government employees. It is notdenied by Mr. Dhebar that the petitioners are paid out of theConsolidated Fund of India.

15. Mr. Dhebar contends that it was for the Government toaccept the recommendations of the Pay Commission and whiledoing so to determine which categories of employees should betaken to have been included in the terms of reference. We areunable to appreciate this point. Either the Government has madereference in respect of all government employees or it has not.But if it has made a reference in respect of all governmentemployees and it accepts the recommendations it is bound toimplement the recommendations in respect of all governmentemployees. If it does not implement the report regarding someemployees only it commits a breach of Articles 14 and 16 of theConstitution. This is what the Government has done as far asthese petitioners are concerned.

17. In the result the petition is allowed and it is directed that therevised pay-scales of the petitioners will have effect from July1, 1959, in accordance with the recommendations of the PayCommission. We further direct that the petitioners should be paidthe amount payable to them as a consequence of the revision ofthe pay-scales with effect from July 1959. The petitioners willhave the costs of this petition.”

18. In the above case, this Court has considered a case whichwas also covered by the Second Pay Commission but benefits werenot extended whereas benefits to the similar sister Institutions wereextended. This Court, thus, allowed the writ petition and directed thebenefit to writ petitioners also with effect from July 1, 1959. The abovecase has no bearing on the facts of the present case. The sequencesand events in the present as noted above are based on different set offacts and the above judgment does not help the respondent in the presentcase.

19. We, thus, are of the view that the cut off date, 01.04.2001for amendment of pay scale of the post of Joint Director, Prosecutionon the basis of the recommendation of the Committee of the ChiefSecretary was a conscious decision, the amendment in the pay scale A

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Awas 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 obligatoryfor the State to extend the benefit of analogy of the CBI organisationof the Center with effect from 01.01.1996 which was the date of therecommendations of the Fifth Pay Commission. The respondent beingBnot covered by the Government order dated 02.02.2007 was rightlyinformed that he was not entitled for the benefit of amendment in thepay scale he having already retired on 31.01.1997.

20. In the foregoing discussions, we are of the view that thejudgment of the High Court is unsustainable and is hereby set aside.CThe appeal is allowed.

Kalpana K. Tripathy

Appeal allowed.

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