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CASE NO.: Appeal (civil)  3666 of 2006

PETITIONER: STATE OF U.P. & Ors.

RESPONDENT: MAQBOOL AHMAD

DATE OF JUDGMENT: 25/08/2006

BENCH: C.K. Thakker & Markandey Katju

JUDGMENT: JUDGMENT [ ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 26616 OF 2004 ]

C.K. THAKKER, J.

       Delay condoned.          Leave granted.         This appeal is filed against an order dated April 22,  2004 passed by the High Court of Judicature at  Allahabad, Lucknow Bench in Writ Petition No. 8268 of  1993.         The facts in nutshell may now be stated.          Pursuant to common selection held by the Uttar  Pradesh Public Service Commission ("U.P.P.S.C." for  short) in 1970, several persons were selected for  appointment to the post of Assistant Engineer in various  departments.  The respondent herein opted for Irrigation  Department whereas some selectees preferred to go to  other departments including Public Works Department  (PWD). The respondent joined the Irrigation Department  on September 30, 1970.  He initially worked at Lucknow  and thereafter at Jaunpur. He continuously remained in  Irrigation Department upto 1977. On November 4, 1977,  with the approval of U.P.P.S.C., he was relieved from the  Irrigation Department and joined Public Works  Department without any break in service. It was the case  of the respondent that since he was appointed in 1970  as Assistant Engineer and was not promoted as  Executive Engineer, as per the policy of the Government,  he was entitled to selection grade after completion of 16  years of service and suppertime scale after completion of  18 years of service. The respondent was, therefore,  entitled to selection grade from 1986 and suppertime  scale from 1988. He also stated that the Government of  U.P. had issued Government Order (GO), dated October  15, 1968, wherein it was stated that where employees  working in one department have been allocated to other  department, the services rendered by them earlier would  be counted for fixation of pay and they will be treated in  continuous service of the Government. The respondent- workman, therefore, applied to the authorities to grant  him selection grade and suppertime scale to which,  according to him, he was entitled as he could not be  promoted.  The prayer of the respondent was, however,  rejected on the ground that since he came by way of  transfer in PWD in the year 1977, his case could be  considered for suppertime scale provided he was not  promoted within a period of 18 years from that date, i.e.  from December, 1977. Since, the respondent was

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promoted as Executive Engineer in January, 1995, that  is, before completion of 18 years from December, 1977,  he was not entitled to suppertime scale. His claim was,  therefore, negatived.         Being aggrieved by the said action, the respondent  approached the High Court by filing a petition.  Before  the High Court, it was contended by the respondent  herein that selection by the Uttar Pradesh Pubic Service  Commission was common for Assistant Engineers in all  Departments of the Government. After the common  selection was held, some persons were allocated to  Irrigation Department and some persons were sent to  PWD.  The respondent also asserted in his petition that  several Assistant Engineers who were selected after him  and had not been allocated to Public Works Department  initially but were sent at a subsequent stage were held  entitled to such benefit. In the writ petition itself, the  respondent herein (petitioner before High Court) had  given two names of such officers. He stated that one Shiv  Kumar Shukla was appointed as Assistant Engineer in  Government Polytechnic and thereafter was sent to  Public Works Department and yet he was held entitled to  selection grade as well as suppertime scale. Likewise,  one R.K. Chaudhary was initially appointed as Assistant  Engineer in Irrigation Department in 1973 and was  subsequently allocated to Public Works Department and  yet he had been granted the benefit of selection grade as  also suppertime scale but the similar benefit was not  allowed to the petitioner. The action was thus arbitrary,  discriminatory and violative of Articles 14, 16, 23 and  39(d) of the Constitution.         Though counter affidavit was filed by the  respondent State in the High Court and averments made  in the writ petition were denied, there is no whisper  regarding the two cases referred to by the petitioner in  the petition.         In affidavit-in-rejoinder, the petitioner further  stated that several persons were granted suppertime  scale on completion of 18 years of service from the date  of joining in the Irrigation Department considering their  services rendered in other departments including Public  Works Department and by adding that period. The  welfare State could not be permitted to adopt double  standard for its employees. The petitioner was, therefore,  entitled to the similar benefits.          The High Court on the basis of the pleadings of  the  parties and considering the facts of the case, observed  that common selection was held by Uttar Pradesh Public  Service Commission for Assistant Engineers. After they  were selected by PSC, options were exercised by the  employees either to go to Irrigation Department or to  Public Works Department and the persons junior to the  respondent herein (petitioner before the High Court)  opted for PWD. They thereafter went to Irrigation  Department and yet were held entitled to get selection  grade or suppertime scale since there was stagnation for  16 or 18 years and could not be promoted. There was,  therefore, no reason to deprive the respondent herein of  similar benefit to which others were held entitled and the  benefit could not be denied to similarly situated  employee.  Accordingly, the petition was allowed and the  authorities were directed to grant benefit of selection  grade to the respondent herein.  Hence, the present  appeal.         We have heard the learned counsel for the parties.

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       The learned counsel for the State submitted that  the relevant date for the purpose of grant of selection  grade and suppertime scale was the date of appointment  of an employee in the Public Works Department.   Admittedly, the respondent was appointed in PWD in  1977.  He was, therefore, entitled to selection grade after  16 years and suppertime scale after 18 years. But by the  time he could claim suppertime scale, he was already  promoted and hence, the High Court committed an error  of law in granting the benefit in his favour and the  decision deserves to be set aside.         The learned counsel for the respondent, on the  other hand, supported the order passed by the High  Court contending that the High Court after considering  the facts and circumstances as also grant of benefits in  favour of other employees had passed the order which  requires no interference.         Having heard the learned counsel for the parties,  we are of the view that the High Court has not  committed any error which deserves interference by this  Court.  As stated by the High Court in the impugned  judgment and is not disputed before us that selection  was made by the U.P.P.S.C.  It was common selection for  both the departments, namely, Irrigation Department as  well as Public Works Department.  The respondent  herein joined Irrigation Department on September 30,  1970.  Up to November 4, 1977, he continued with the  Irrigation Department and on approval of U.P.P.S.C., he  was shifted to Public Works Department in November,  1977.  There was no break of service and it remained  continuous all throughout.  In these circumstances, in  our opinion, the respondent was right in submitting  before the High Court as well as before us that there was  no reason to deprive him of the selection grade or  suppertime scale as per the Government Order.   Ultimately, the policy decision is based on equitable  principle that if an employee does not get promotion, not  because of his fault, but because there were no sufficient  vacancies available which resulted in his stagnation in  the cadre to which he was initially appointed, it would be  reasonable that he should not suffer and is allowed  certain additional benefits. In such cases, an employee is  deprived of promotion as the employer is unable to  promote him due to limited posts/vacancies in the  higher cadre. To avoid stagnation, heart-burning,  demoralization of employees and to provide boosting, a  policy decision has been taken by the Government.  Keeping in view, the said object, it was decided by the  State Government that if an employee has to remain in  one and the same cadre for 16 and 18 years, he would  be granted selection grade as also suppertime scale.  In  our opinion, therefore, the High Court was right in  holding that it would be totally immaterial whether the  employee continuous to work in the cadre of Assistant  Engineer either in Irrigation Department or in Public  Works Department.  The fact remains that he could not  be promoted because of non availability of promotional  avenue and hence there was no reason to deprive him of  selection grade or suppertime scale to which he was  otherwise entitled.         But, there is an additional factor also in favour of  the respondent.  It is not in dispute by and between the  parties that along with respondent, several other persons  were also selected and appointed as Assistant Engineers.   Some of them preferred Public Works Department, but

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thereafter were transferred to Irrigation Department.  It  was stated by the respondent that those persons were  junior to him and yet they were granted selection grade  and suppertime scale in the Irrigation Department  though they were initially appointed in the Public Works  Department.  Names of certain persons were also placed  on record before the High Court by the respondent.  The  said fact had not been disputed by the learned counsel  for the appellant before the High Court or before this  Court. In our opinion, therefore, on that consideration  also, the High Court was right and justified in allowing  the claim of the respondent and in granting benefits in  his favour.         For the foregoing reasons, we see no ground to  interfere with the order passed by the High Court. The  appeal deserves to be dismissed and is hereby dismissed  with costs. 27969