Of U.P. & Ors Vs. Maqbool Ahmad 
Insc 540 (25 August
Thakker & Markandey Katju
OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 26616 OF 2004] C.K. THAKKER, J.
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.
facts in nutshell may now be stated.
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
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.
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.
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.
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.
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.
have heard the learned counsel for the parties.
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.
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.
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.
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.
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.
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.
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.
of them preferred Public Works Department, but 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.
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