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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8404 of 2011
[Arising out of S.L.P. (C) No.30570 of 2010]
State of Rajasthan & Ors. ...Appellants
Versus
Shankar Lal Parmar ...Respondent
W I T H
C.A.No.8405/2011[Arising out of SLP(C) No.9847 of 2011];
C.A.No.8406/2011[Arising out of SLP(C) No.17093 of 2011];
C.A.No.8414/2011[Arising out of SLP(C) No.14480 of 2011];
C.A.No.8407/2011[Arising out of SLP(C) No.14789 of 2011];
C.A.No.8408/2011[Arising out of SLP(C) No.14951 of 2011];
C.A.No.8409/2011[Arising out of SLP(C) No.20326 of 2011];
A N D
C.A.Nos.8410-8411/2011[Arising out of SLP(C) Nos.22755-22756
of 2011].
J U D G M E N T
Deepak Verma, J.
1. Leave granted.
2. The solitary question that arises for our consideration
in the instant and the connected appeals is whether an
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employee would be entitled for the grant of 'Selection
Grade', automatically, at the first instance, after the
completion of 9 years, at the second instance, after the
completion of 18 years and at the third and last
instance, after the completion of 27 years of service,
even when he has earned censure in the past years of
service.
3. In fact, on the strength of an Order pronounced by
Division Bench on 12.12.2003 in the matter of Devi Singh
Vs. State of Rajasthan & Ors. [reported in 2004 (2) CDR-925
(Raj)], several matters came to be filed in the High Court
of Judicature of Rajasthan both at the Principal Bench at
Jodhpur and at the Bench at Jaipur claiming entitlement for
the Selection Grade. Unfortunately, the learned Judges,
either sitting in Single Bench hearing Writ Petitions of
the employees or in Division Bench, hearing Writ Appeals of
the State, without properly appreciating or adverting to
the ratio decidendi of the case, in a stereotype manner,
went on allowing the Writ Petitions filed by the employees
and dismissing the appeals preferred by the State. The
approach adopted by the High Court in all such cases would
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reflect that the judgment in Devi Singh's case has not only
been misread but has also been misinterpreted by them. In
fact, it was the duty of the learned Advocate for the
Appellants, who had appeared in the High Court to have
pointed out the distinction, but apparently it appears that
he failed to do so which has led to erroneous judgments.
The controversy has been pending before this Court for
quite some time, therefore, we deem it fit to decide it, by
a reasoned judgment to iron out the creases and clear the
clouds.
4. It is relevant to mention here that a Special Leave
Petition filed by the State, against one Bheem Singh was
dismissed by this Court on 06.01.2010 on the ground of
delay. The Order reads as under:
"Heard learned Counsel for the
Petitioners.
The Special Leave Petition is dismissed
on the ground of delay as also on merits.
However, the question of law is kept open
to be decided in an appropriate case."
Since the Special Leave Petition was dismissed on the
ground of delay and the question of law was clearly left
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open, thus there is no difficulty in deciding these appeals
on merits, because the said Special Leave petition was not
decided on merit.
5. Brief facts material for deciding the instant case are
given hereinbelow:
With a view to provide relief to employees, Class IV,
Ministerial Subordinate Services and those holding isolated
posts, Selection Grades were prescribed for the lowest
posts in these services, so as to resolve the problem of
stagnation. With this intention, first Office Order was
issued by the State of Rajasthan on 25.01.1992. The
salient and important features of the said Order, relevant
for the purpose of these appeals are reproduced
hereinbelow:
"2.(i) The first selection Grade shall be
granted from the day on which one
completes service of nine years, provided
that the employee has not got one
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 service of
eighteen years, provided that the
employee has not got two promotions
earlier as might be available on his
existing cadre an the first selections
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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 on which one
completes service of twenty seven years,
provided that the employee has not got
three promotions earlier as first or the
second Selection Grade granted to him, as
the case may be was lower that the pay
scale of Rs.2200-4000.
6. Another important and relevant Clause in the said Order
for our perusal is 7, which is also reproduced hereinbelow:
"7. Selection Grades in terms of this
Order shall be granted only to those
employees whose record service is
satisfactory. The record of service
which makes one eligible for promotion on
the basis of seniority shall be
considered to be satisfactory for the
purpose of grant of the Selection Grade."
7. Clause 7 makes it clear that only those employees would
be entitled for grant of Selection Grades, whose service
record has been satisfactory and is otherwise eligible for
promotion on the basis of seniority but is not able to get
the same as there might not be any channel of promotion or
for want of sanctioned posts in the cadre.
8. Another Department of the Appellant-State, Office of
Director General of Police (Rajasthan) in its wisdom,
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deemed it fit to further clarify the position and issued
another Circular dated 23.07.1992. The relevant portion of
the said circular is reproduced hereinbelow:
"As far as there is question of
censure, it shall be not taken into
account as unsatisfactory service record
for the purpose of grant of selection pay
scale, and it shall not be obstructive in
grant of selection pay-scale. The period
of last seven years shall be counted from
the year, for which he is to be given
promotion."
On account of the first Office Order dated 25.01.1992
and the subsequent Circular dated 23.07.1992, as reproduced
hereinabove, State started granting Selection Grades to all
those employees, who had completed requisite number of
years in service, even if they had earned censure in
previous years but had not been promoted.
9. To remove the doubts which cropped up on account of the
Circular dated 23.07.1992, which created confusion and
doubts in the mind of the Heads of Department, as to
whether an employee would be automatically entitled to
receive the Selection Grades, after completion of 9
years, 18 years and 27 years of service, irrespective of
his earning censure or other such remarks, another Office
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Order/letter dated 24.07.1995 was sent, by the Finance
Department (Rules Division) to the Director General of
Police, Rajasthan. The relevant portion thereof is
reproduced hereinbelow:
"I am directed to refer to your letter
No.F.15(10) P.F./Kani/90 dated 24.04.1995
on the above noted subject and to say
that one of the conditions for grant of
selection grade is that the service
record of that employee should be
satisfactory for the purpose of grant of
Selection grade. The promotion of
Government Servants, who have been
awarded the penalty of censure, is
postponed by one year. Since, penalty of
censure effects promotion by one year, it
effects grant of Selection Grade also by
one year. In the second para of your
Circular No. F.15 (10)
P.Force/Const./90/3439 dated 23.07.1992
it has been clarified that penalty of
censure shall have no effect for granting
of selection grade. This is not in
accordance with the rules/order."
This office order/ letter made it clear that if an
employee has earned censure during his service, then his
grant of Selection Grade would be deferred by one year. But
this clarification was issued by the State after expiry of
almost more than 3 years from the date of issuance of the
first office order on 25.01.1992.
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10. However, during the interregnum period between
25.01.1992 to 24.07.1995, certain employees were granted the
benefit of the Selection Grades, despite having earned
censure. But after issuance of the subsequent Office
Order/ letter dated 24.07.1995, Appellant-State started the
recovery of the amounts from those employees who were
granted Selection Grades even though they had earned
censure. This led to filing of several Writ Petitions in
the High Court, the 1st being Devi Singh's case (supra)
referred hereinabove. All the subsequent line of cases
followed the same process.
11. To further clarify the Circular dated 23.07.1992 issued
by Director General of Police, Rajasthan, relevant portion,
reproduced at Para 8 hereinabove, another clarificatory
Circular dated 24.08.1995 was issued. Thus, vide this
subsequent Circular, the last paragraph containing the
following words "as far as there is question of punishment
of censure, it shall not be considered in service record as
unsatisfactory in grant of selection grade and shall not be
impediment in grant of selection grade" mentioned in last
paragraphs of Circular No. V. 15(10)P.Force/Const./90/3439
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dated 23.07.1992 issued by this office, being contrary to
Rules, was withdrawn with immediate effect. This Circular
alongwith the office order/letter of Finance Department
(Rules Division) dated 24.07.1995, clearly stipulates that
for the purposes of grant of Selection Grade, in cases where
an employee has earned a censure, the censure should not be
treated either as an impediment or obstruction for
consideration of his promotion but his case for such a grant
would be deferred by one year.
12. This earning of censure would be a bar for the employee
to be granted Selection Grade for one year only. This is
how it should have been interpreted, and the first office
Order dated 25.01.1992 was to be understood. However, with
regard to issuance of Office Orders from time to time and
clarificatory Circular issued by the State, the things
became much more complicated and confusing, leading to
filing of many Writ Petitions and passing of several orders
by Single Benches and Division Benches of the High Court.
We are thus called upon to set the controversy at rest.
13. In the light of the aforesaid, we have heard Dr. Manish
Singhvi, learned AAG and Mr. V.N. Raghupathy, Advocates for
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the Appellants and Mr. Puneet Jain, Mr. H.D. Thanvi, Dr.
Monika Gusain and Mr. Rishabh Sancheti, Advocates for the
Respondents at length and have also perused the records.
14. As mentioned hereinabove, the first judgment that came
for the benefit of the Respondent-employee was rendered on
12.12.2003, i.e., Devi Singh's case (supra). However, in the
said case, what has been decided was that an employee who
has already been granted the benefit of Selection Grade,
such benefits could not be taken back by the Appellant-
State, without issuance of a Show Cause Notice to him in
this regard. Thus, primarily and basically, it was decided
in favour of Devi Singh on the ground of violation of
Principles of Natural Justice. However, the cases filed
subsequently either before the Single Bench or Division
Bench were not same, but on account of casual and general
approach of learned counsel appearing on behalf of the
parties who argued and showed that the matters were squarely
covered by Devi Singh's case and hence prayed that these
matters were to be disposed of accordingly, the courts in
their wisdom proceeded to do so. It is relevant to further
mention that the said case of Devi Singh was also followed
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in the matter of Bheem Singh Versus State of Rajasthan
(SBCWP No.3284/2005) decided on 17.01.2007.
15. There is no doubt that an employee, who has completed 9
years of service, would be entitled for the grant of first
Selection Grade and would further be entitled for the grant
of second Selection Grade after the completion of 18 years
of service and third Selection Grade would be granted to him
after completion of 27 years of service, provided that
during the interregnum period, he has not earned promotion
as may be available in his existing cadre and has also not
earned censure in the past years. This appears to be the
main theme and the purpose for which the first office order
was issued.
16. Clause 7 further makes it clear that only those/such
employees would be entitled to be granted Selection Grade
whose service record has been satisfactory. This implicitly
shows that the person who has an untainted, unblemished,
clean and unpolluted record in service would be treated on a
higher pedestal than those who have either tainted,
blemished, unclean or polluted record. This obviously
appears to be a reasonable classification and is under the
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ambit and touchstone of Article 14 of the Constitution.
There is neither any ambiguity nor any doubt in the same.
17. However, with an intention to clarify the controversy,
a subsequent office order/letter dated 24.07.1995 was sent
by Finance Department (Rules Division) to Director General
of Police, Rajasthan wherein it was provided that the record
of service which made an employee eligible for promotion on
the basis of seniority was also to be considered to be
satisfactory for the purpose of granting 'Selection Grade'.
It further laid down that if an employee has earned censure,
then his case for grant of Selection Grade would be deferred
by one year. In other words, he would be entitled to get it
but after 1 year, i.e. to say on completion of 10 years of
service as compared to others, who would get it on
completion of 9 years of service.
18. It has not been disputed before us that censure is a
minor penalty and has a minimum penalty as prescribed under
the Rules of Rajasthan. Thus, it cannot be said that an
employee who has earned censure would automatically be
entitled for promotion or respective Selection Grade after
the completion of 9, 18 or 27 years of service.
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19. However, we need to clarify that during the interregnum
period between the first Office Order, issued on 25.01.1992
and the subsequent clarificatory office order/ letter dated
24.07.1995, some of the employees were granted the benefit
of Selection Grade. The Appellant - State would not be
entitled to claim refund from such employees who have
already been granted benefit in this period. The subsequent
office Order/ letter further makes it clear that all those
employees who have earned censure in service shall also be
entitled for the selection grade but the grant of Selection
Grade to them would be deferred by one year. This appears to
be an absolutely reasonable and perfect classification as
otherwise every employee who has a clean image and another
employee, who has earned censure would be treated at par.
This is not permissible in the service jurisprudence and is
also violative of Article 14 of the Constitution.
20. It is settled principle of law that "like should be
treated alike". This is the mandate and command of Article
14 of the Constitution, which we are required to follow. In
any case, those who have earned censure cannot be treated at
par with those who have had a clean service record. As
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mentioned hereinabove, an employee with blemished, polluted,
tainted, unclean service record cannot be equated with other
employee who has enjoyed clean, unblemished, unpolluted,
untainted and impeccable service record. Such
differentiation would not be violative of Article 14 while
dealing with the principles of equality.
21. Since the appeals are to be decided on the touch-stone
of Article 14 of the Constitution, in short we would like to
deal with it. This Article has two essential ingredients.
(i) Equality before Law
(ii) Equal protection of Law
The forefathers of our Constitution in their wisdom
incorporated the provision of Equality before Law to attain
justice: social, economic and political. While Equal
protection of Law was incorporated so that amongst equals,
the law could be equally administered and similarly placed
persons could be placed in a similar manner. But this has a
caveat. State still has the power to differentiate amongst
different classes of people. That is to say, it can
positively discriminate on the basis of reasonable
classification and distinction but this must be based upon
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an intelligible differentia, which inherently separates such
persons from the others.
22. In the case in hand, it is a question of grant of
Selection Grade. A Selection Grade has higher pay but in the
same post. A promotion post is a higher post with higher
pay. A Selection Grade is intended to ensure that capable
employees who may not be able to get a chance of promotion
on account of limited outlets of promotion, should at least
be placed in the Selection Grade to prevent stagnation at
the maximum of the scale. Selection Grade was created to
remove stagnation in service and consequently leading to
greater efficiency. State has permitted grant of Selection
Grade to those who had good service record but for those who
had earned censure, the same has been deferred by one year.
Thus, according to us, it would clearly fall in the category
of reasonable classification which is permissible in
accordance with the mandate of the Constitution and also on
account of various judgments pronounced by this Court on
this topic from time to time.
23. Thus, in our opinion, there is a basic and fundamental
difference between the two categories of the employees.
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Appellant-State was fully justified in issuing the
subsequent Office Order/ letter dated 24.07.1995, putting
all controversies at rest. We do not find that any case of
discrimination has been made out against the Respondents/
Employees. Subsequent Office Order/ letter cannot be said
to be illegal, arbitrary, unconstitutional or without
authority of law. We find merit in the arguments advanced
by Dr. Manish Singhvi, Advocate for the Appellants and thus,
have no hesitation in allowing these Appeals. It is also
pertinent to mention here that Respondents/Employees had not
challenged the subsequent Office Order/ letter dated
24.07.1995, as being illegal, unconstitutional, arbitrary or
without jurisdiction. As long as this Office Order/ letter
holds good, it is to be implemented in the same manner and
spirit in which it was issued.
24. In the light of the foregoing discussion, we are of the
considered opinion that the impugned orders passed by the
learned Judges of the Division Benches cannot be sustained
in law. Hence, the same are hereby set aside and quashed.
However, looking into the controversies which have been
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there in the State of Rajasthan since 1992, we deem it fit
and proper to pass the following orders:
(i) The Appellant-State would not be entitled to
recover financial benefits already extended to
the employees, pursuant to the first office
order issued by Appellant on 25.01.1992.
(ii) The Appellant would not also be entitled to
recover any amount which might have been paid to
the employees even after issuance of the second
clarificatory office Order/ letter dated
24.07.1995 as according to us, recovery of such
amount would cause great hardships to the
employees.
(iii)The employees who have earned censure in the past
years for their service record will not be
entitled to be granted `Selection Grade'
alongwith those who have a clean and unblemished
record. They would be granted `Selection Grade'
only one year thereafter.
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(iv) Any employee who has been promoted before the
said period would not be entitled for the grant
of `Selection Grade'.
25. With the aforesaid direction, this and the connected
appeals are allowed. Impugned orders as mentioned
hereinabove are set aside. Parties to bear their respective
costs.
.........................J.
[DALVEER BHANDARI]
.........................J.
[DEEPAK VERMA]
New Delhi September 30, 2011
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