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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.