Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondents.
Learned counsel for the petitioner contends that the matter in issue is squarely covered by the judgment of this Court passed in Writ Petition No.4460 (SS) of 2013 in re: Jai Prakash Sharma and 2 others vs. State of U.P. and another, decided on 24.07.2019. For the sake of convenience, the judgment and order dated 24.07.2019 is reproduced as under:-
"Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondents.
By means of the present petition, the petitioner has prayed for quashing of the order dated 23.07.2013 passed by respondent no.1, a copy of which is Annexure-1 to the petition. A further prayer is for a mandamus commanding the respondents to grant the pay scale of Rs.8000-13500 as next promotional pay scale to the petitioners with effect from 25.01.2004, 14.10.2004 and 21.05.2004 respectively and to pay difference of salary to the petitioners on account of said fixation.
The case set forth in a nutshell by learned counsel for the petitioners is that the petitioners were working as Statistical Assistant. On account of their working they became entitled for the benefit of the second promotional pay scale in terms of the Government Order dated 02.12.2000, a copy of which is Annexure-2 to the writ petition. As per paragraph 1(4) of the said Government Order, it was provided that an employee who completes 24 years' of service would be entitled for grant of second promotional pay scale/next pay scale. The next promotional pay scale for the petitioners was Rs.8000-13500/-, which is the pay scale for the post of Statistical Officer. The petitioners were given the pay scale of Rs.5500-9000/- only w.e.f. from 25.01.2004, 14.10.2004 and 21.05.2004 respectively. Being aggrieved with non-grant of the promotional pay scale of Rs.8000-13500/-, the petitioners filed Writ Petition No.99 (SS) of 2013 in re: Jai Prakash Sharma and others vs. State of U.P. and others, which was disposed of by this Court vide judgment and order dated 22.01.2013 directing the respondents to take appropriate decision on the claim of the petitioners. Respondent no.1 vide his order dated 23.07.2013, a copy of which is Annexure-1 to the petition, rejected the claim of the petitioners and hence the present petition.
Learned counsel for the petitioners while seeking to challenge the impugned order dated 23.07.2013 contends that the claim of the petitioners for grant of promotional pay scale of Rs.8000-13500/- has been rejected on the ground that subsequent to the Government Order dated 02.12.2000, a clarificatory Government Order was issued by the respondents on 20.08.2004, a copy of which is Annexure-2 to the counter affidavit filed by the respondents, where it was clarified at serial no.6 of the clarification that those posts which are to be filled in on the basis of seniority cum suitability or on the basis of merit, the pay scale of the said post would not be extended for the purpose of grant of benefits in terms of the Government Order dated 02.12.2000 rather the next pay scale would be given in case the employee fulfills the conditions stipulated in the said Government Order. Considering this aspect of the matter, the claim of the petitioners for grant of promotional pay scale of Rs.8000-13500/- has been rejected. Learned counsel for the petitioners contends that the ground taken by the respondent no.1 while rejecting the claim of the petitioners is patently misconceived inasmuch as the said ground was taken by the respondents in the Special Appeal No.1011 of 2005 in re: R.P. Shukla vs. State of U.P. and another, decided on 10.04.2006, which was filed by one Sri R.P. Shukla aggrieved against non-grant of promotional pay scale of Rs.8000-13500/-. This Court after considering the said ground as raised by the respondents of the clarificatory Government Order dated 20.08.2004 rejected the said ground and held that once a similar set of employees had been given the said promotional pay scale of Rs.8000-13500/- then the Government can not be permitted to take a different yardstick and should extend the said promotional pay scale to the petitioner of the said petition also. Considering all these aspects of the matter, the Division Bench of this Court in the case of R.P. Shukla (supra) directed the respondents to grant the benefit of second promotional pay scale of Rs.8000-13500/- to the appellant/petitioner with all consequential benefits. It is further contended that the order passed by the Division Bench has been affirmed by the Apex Court with the dismissal of Civil Appeal No.272 of 2007 that had been filed by the State Government. Copies of the judgment and order dated 20.04.2006 of the Division Bench and order of the Apex Court dated 13.07.2011 have been filed as Annexures 4 and 5 respectively to the petition.
Learned counsel for the petitioners, thus, contends that once a Division Bench of this Court has decided the issue and considered the grounds as raised by the respondents for not extending the benefit of promotional pay scale to a person similarly circumstanced then they cannot be allowed to adopt a different yardstick so far as the case of the petitioners is concerned and they were duty bound to have extended the benefit of the said judgment in the case of R.P. Shukla (supra) to the petitioners also without subjecting them to further litigation more particularly when the Division Bench judgment has been affirmed by the Apex Court. Thus, it is contended that the petitioners are fully entitled for grant of promotional pay scale of Rs.8000-13500/- with effect from the date they completed 24 years' of service.
Per contra, learned Standing Counsel on the basis of averments contained in the counter affidavit contends that after issue of the Government Order dated 02.12.2000, the Government had issued a clarificatory Government Order dated 20.08.2004 wherein it was clarified at serial no.6 that those posts which are to be filled in on the basis of seniority cum suitability or on the basis of merit, the pay scale of the said post would not be extended for the purpose of grant of benefits in terms of the Government Order dated 02.12.2000 rather the employee would only be entitled for the next pay scale. Learned Standing Counsel has also placed reliance on the recruitment rules for the post of Statistical Officer which have been filed as Annexure-1 to the counter affidavit to contend that the post of Statistical Officer is governed by the rules known as "The Uttar Pradesh Town And Country Planning Service Rules, 1987". Rule 16 of the aforesaid rules provides that the post of Statistical Officer shall be filled in by promotion on the basis of seniority subject to rejection of unfit from amongst the eligible candidates in accordance with the Uttar Pradesh Promotion by Selection in consultation with Public Service Commission (Procedure) Rule, 1970 as amended from time to time. It is thus argued that when the Recruitment Rules of 1987 are seen in the context of the clarificatory Government Order dated 20.08.2004 then it clearly comes out that once the post of Statistical Officer carries a pay scale of Rs.8000-13500/- and is a promotional post and is to be filled in on the basis of seniority subject to rejection of unfit consequently keeping in view the said clarification the petitioners would not be entitled for the promotional pay scale rather they would only be entitled for next pay scale of Rs.5500-9000/-, which has correctly been given to the petitioners.
Heard learned counsel for the contesting parties and perused the records.
From perusal of records, it clearly comes out that the petitioners who were working as Statistical Assistant have been given the benefit of the Government Order dated 02.12.2000 by granting them the benefit of next pay scale after 24 years of service which is the pay scale of Rs.5000-8000/-. The petitioners have staked their claim for being given the next promotional pay scale for the post of Statistical Officer, which is also the next promotional avenue, which carries the pay scale of Rs.8000-13500/-. The respondents have rejected the claim of the petitioners on the ground that in terms of the clarificatory Government Order dated 20.08.2004, as the promotional post of Statistical Officer is to be filled in on the basis of seniority cum suitability in terms of Recruitment Rules of 1987 consequently the petitioners would only be entitled for the next pay scale of Rs.5500-9000/- and not the promotional pay scale of Rs.8000-13500/-. Considering the said clarification, the claim of the petitioners was rejected through the impugned order dated 23.07.2013.
A Division Bench of this Court in the case of R.P. Shukla (supra) considered this argument as was raised by the respondents yet the Division Bench negated the said argument on the ground that once one set of employees have already been extended the benefit of the promotional pay scale as such non-extension of said pay scale to other set of employees also (in that case to R.P. Shukla) would be discriminatory and arbitrary in the eyes of law. The Division Bench judgment in the case of R.P. Shukla (supra) has already been affirmed by the Apex Court with the dismissal of the civil appeal that had been filed by the State. In this view of the matter, there does not appear to be any occasion for the respondents in not extending the benefit of the said promotional pay scale of Rs.8000-13500/- and the benefit of judgment to the petitioners also more particularly when the said argument that was raised by the State in terms of the clarificatory Government Order dated 20.08.2004 has been negated by the Division Bench of this Court as affirmed by the Apex Court.
In this view of the matter and taking into consideration the aforesaid discussions, the impugned order dated 23.07.2013 cannot be legally sustained in the eyes of law.
Accordingly, the writ petition is partly allowed. A writ of certiorari is issued quashing the order dated 23.07.2013, a copy of which is Annexure-1 to the petition. A writ of mandamus is issued commanding the respondents to consider the case of the petitioners for grant of promotional pay scale of Rs.8000-13500/- with effect from the date the same became due to the petitioners in terms of the Government Order dated 02.12.2000 and considering the Division Bench judgment of this Court in the case of R.P. Shukla (supra).
Let such consideration be done within a period of three months from the date of receipt of a certified copy of this order.
Consequences to follow."
On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit submits that Government Order dated 20.08.2004, a copy of which is contained as Annexure CA-2 to the counter affidavit, clearly provides that as the promotional post of Statistical Officer is to be filled in on the basis of seniority cum suitability in terms of the Recruitment Rules of 1987 consequently the petitioner would only be entitled for next pay scale of Rs.5500-9000 and not the promotional pay scale of Rs.8000-13500. Thus, it is contended that the petitioner would not be entitled for promotional pay scale as sought by him i.e. of Rs.8000-13500 and the order passed by the respondents dated 16.08.2013 by which the claim of the petitioner has been rejected is perfectly legal and valid in the eyes of law.
Having heard learned counsel for the contesting parties and having perused the records, it comes out that this Court in the case of Jai Prakash Sharma (supra) has already considered this aspect of the matter and has also considered that this argument was also raised before the Division Bench of this Court in Special Appeal No.1011 of 2005 in re: R.P. Shukla vs. State of U.P. and another decided on 10.04.2006, which was negated on the ground of there being discrimination. Taking into consideration the aforesaid submissions, learned Standing Counsel has been unable to persuade this Court from taking a different view as expressed in the case of Jai Prakash Sharma (supra).
Accordingly, taking into consideration the aforesaid discussion, the writ petition is allowed. The impugned order dated 16.08.2013, a copy of which is Annexure-1 to the petition, is quashed. A writ of mandamus is issued commanding the respondents to consider the case of the petitioner for grant of promotional pay scale of Rs.8000-13500 with effect from the date the same became due in terms of the Government Order dated 02.12.2000 and considering the Division Bench judgment of this Court in the case of R.P. Shukla (supra).
Let such consideration be done within a period of three months from the date of receipt of a certified copy of this order.
Order Date :- 28.8.2019 A. Katiyar