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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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SPL. APPL. WRIT No. 860 of 1997
RAJ. HIGH COURT, JODHPUR
V/S
BABU LAL
Mr. GR PUNIA, for the appellant / petitioner
Mr. BHUVNESH SHARMA for Mr. MS SINGHVI, for the respondent
Date of Order : 5.11.2009
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI GOVIND MATHUR,J.
ORDER
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This appeal has come up before us, pursuant to the
judgment rendered by the Hon’ble Supreme Court dated.
12.12.2003, remanding the matter to this 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 the identical pay scale. This was felt to have
become necessary because in the opinion of Hon’ble the Supreme
Court it was only on determination of this, that was decisive
of the question as to whether the benefit of circular dated.
25.1.1992 can be granted to the respondent or refused.
The necessary factual matrix, which is no more in
controversy is, that the respondent was appointed as L.D.C. On
1.12.1960, and was promoted as U.D.C. vide order dated.
12.11.1973. Then he was promoted as Court Fee Examiner/Stamp
Reporter vide order dated. 7.4.1984. Then was promoted as
Bench Reader vide order dated. 28.10.1989. It is also not in
dispute that the pay scale of U.D.C. is lower than that of
Court Fee Examiner/Stamp Reporter, but then the pay scale of
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Bench Reader and Court Fee Examiner/Stamp Reporter is the same
being 1400-2600. It is on this factual background that writ
petition was filed claiming the benefit of the circular issued
by the Government of Rajasthan on 25.1.1992, produced with the
writ petition as Annexure-5, and claiming, that after
promotion to the post of Court Fee Examiner/Stamp Reporter,
though he was purportedly promoted as Bench Reader, but since
that carries the same pay scale, that cannot be said to be
tantamounting to promotion, and also contending, that the
persons similarly situate in the cadre of U.D.C., and having
not qualified the examination of Court Fee Examiner/Stamp
Reporter, though came to be promoted in the same pay scale
1400-2600 on the post of Office Assistant, and on completion
of 9 years of service since that promotion they all were
granted the benefit of third selection grade, and were placed
in the pay scale of 2000-32000, while that pay scale has been
denied to the writ petitioner, only on the ground, that he
earned the promotion from the post of Court Fee Examiner/Stamp
Reporter to the post of Bench Reader, notwithstanding the
fact, that two posts carry the same pay scale, which
incidentally has resulted into getting of person junior to the
petitioner in the cadre of U.D.C., working in the higher pay
scale of 2000-3200, while for the act of the petitioner in
acquiring additional qualification of passing the Stamp
Reporter Test, and having been promoted as Stamp Reporter, he
is made to suffer, by being made to work in the same pay scale
of 1400-2600. Interalia with these averments the writ
petitioner claimed to be given the benefit of third selection
scale by placing him in the pay scale of 2000-3200 w.e.f. the
date persons junior to him were granted that benefit with all
consequential benefits.
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The writ petition was contested, obviously on the
ground, that according to Annexure-5 the third selection is
not available, or admissible to incumbent who has already
earned third promotion during the relevant period of time, and
since the writ petitioner did earned first promotion to the
post of U.D.C., the second to the post of Court Fee Examiner/
Stamp Reporter, and third to the post of Bench Reader, and
therefore, he is not entitled to third selection scale.
Regarding the post of Bench Reader being promotional post, or
not, it was contended, that the post of Bench Reader, despite
carrying the same pay scale, under the scheme of Rules, is a
promotional post, feeding channel whereof comprises of the
post of Court Fee Examiner/Stamp Reporter, and the writ
petitioner did get the increments under Rule 26A of the R.S.R.
It was also pleaded, that the post of Bench Reader carryies
higher responsibility, and is rightly to be treated as
promotion, to the post of Bench Reader from the post of Court
Fee Examiner/Stamp Reporter. Thus, the claim of the writ
petitioner was contested.
The learned Single Judge vide judgment dated.
11.7.1997 allowed the writ petition, interalia holding, that
the so called promotion to the post of Bench Reader from the
cadre of Court Fee Examiner/Stamp Reporter cannot be said to
be promotion, in real sense of the term, and then the
consequences flowing from the stand point of the present
appellant was examined, and the yawning gap between the pay
being drawn by the juniors to the petitioner, and the
petitioner was comprehended. It was also noticed, that the
writ petitioner had reached the maximum stage of the pay scale
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of 1400-2600 way back in the year 1991 itself. Interalia with
these findings, the learned Single Judge allowed the writ
petition, and directed the present appellant to award the
third selection grade to the petitioner being of Rs. 2000-3200
from the date when any of his junior in U.D.C. cadre had been
granted such pay scale.
Against this judgment intra court appeal was filed,
which was dismissed by this Court vide order dated. 12.5.1998,
by holding, that after hearing learned counsel the Bench has
come to the conclusion, that the appeal deserves to be
rejected, and that the learned Single Judge has rightly placed
reliance on Division Bench decision of this Court dated.
11.12.1995, in D.B.S.A.W. No. 127/94, in which on the basis of
doctrine of justice and fair play, the Division Bench declined
to interfere, where a person who was higher in merit was
drawing a lesser salary, which was remedied by the learned
Single Judge.
The matter was then carried by the appellant to the
Hon’ble Supreme Court, and vide judgment dated. 12.12.2003,
the matter was remanded, by considering, that 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. It
was also considered, that discrimination, if any, will arise
only amongst equals, and not between those who are in
different cadres, and that, since the respondent had obtained
three promotions, vide orders issued by the Registrar, being
dated. 12.11.1973, 7.4.1984, and 28.10.1989, and therefore,
this circular was not attracted to his case at all, and that,
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for that reason the High Court wanted to rely upon the
doctrine of justice and fair play. Then, it was held to be
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 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,
which was in the same pay scale of Rs. 1400-2600. Then, the
Hon’ble Supreme Court proceeded to propound the proposition,
that one of the important indicia to find out whether an
employee holds a higher post on promotion is, whether such
post carries higher emoluments. Then it was held, that 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. This aspect,
in the opinion of the Hon’ble Supreme Court had 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. It was
also held, that 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, and that in absence of this exercise, the
Division Bench could not have merely decided the matter, on
the doctrine of justice and fair play.
This is how the matter has come up before us again.
We have heard learned counsel for the parties, and
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have gone through the record, and the judgments of the learned
Single Judge, the Division Bench, and that of the Hon’ble
Supreme Court, and also tried to seek as much assistance as we
could, from the learned counsel for the appellant, who in turn
sought assistance from the Registry, during the course of
hearing.
True it is, that on the face of things, the learned
Single Judge purported to proceed on the basis of doctrine of
justice and fair play, and that was affirmed by the Division
Bench, but since Hon’ble the Supreme Court held, that unless
it could be held, that the promotion to the post of Bench
Reader was really a promotion, or not, benefit could not be
given, merely by relying upon the doctrine of justice and fair
play, we have undertaken the exercise on that aspect of the
matter over again.
At the outset it may be observed, that the question,
as to whether such an act of purportedly promoting from the
post of Court Fee Examiner/Stamp Reporter to the post of Bench
Reader, in the event of both posts carrying the same pay
scale, would amount to promotion, or not, has come to be
decided by the Division Bench of this Court, in the case of
Laxmi Narain Mathur Vs. High Court of Judicature for
Rajasthan, reported in 1988(2) WLN-607, wherein it was held as
under:-
“We may also state that it appears from the perusal of
the grades of Senior Bench Readers, Private Secretaries
and Judge Writers (Selection Grade) and Superintendents
etc. that all of them are in the same pay scale No. 17
which was earlier used to be 620-1100, later on raised to
820-1550 and further revised to 1490-3050 we are unable
to understand the logic or rationality of promoting a
person from one post in the same scale of pay to the
7other post in the same scale. When the pay scale and
grade of Senior Bench Readers, the then Private
Secretaries and Judgment Writers (Selection Grade) and
Officer Superintendents is the same i.e. Scale No. 17,
where does the question of making promotion to the post
of Office Superintendent from Senior Bench Readers and/or
Private Secretaries cum-Judgment Writers (Selection
Grade) arises.”
Thus, so far as this Court is concerned, since no
contrary judgment has been cited before us, whether of this
Court, or of the Hon’ble Supreme Court, throwing any light on
the aspect, and taking the view, that there could be promotion
from one post to another, even if both the posts are carrying
the same pay scale; as the things stand, as on the date, we
stand better advised to follow the judgment of this Court, in
Laxmi Narain’s case. This decides one aspect of the matter,
required by the Hon’ble Supreme Court to be decided.
Then, the other aspect contemplated by the Hon’ble
Supreme Court is, with reference to nature of duties
performed, with additional responsibility attached to the post
of Bench Reader. In this regard, after perusal of the record,
what we find is, that there are no pleadings on the side of
the writ petitioner in the writ petition. Then, so far as the
respondents are concerned, all that has been pleaded is, in
the reply, in the concluding part at page-3 para-3 of the
running page-36 as under:-
“The post of Bench Reader admittedly carries higher
responsibilities and it is rightly treated as
promotion…………”
Beyond this there is no elaboration in the entire
reply, as to how the duties of Bench Reader, carry higher
8responsibilities: Rather it is not even shown, as to what are
the responsibilities or duties of Bench Reader, vis-à-vis the
duties of Court Fee Examiner/Stamp Reporter. It is a different
story, that in absence of there being any pleading in this
regard in the writ petition, there cannot arise any occasion
for pleading “admittedly”.
Then, instead of standing to ceremonies, since the
matter had been remanded by Hon’ble the Supreme Court, we did
try to undertake the exercise, with the assistance of learned
counsel for the appellant, and requested him, even now to
point out, even without any pleading, as to what are the
nature of duties of the Court Fee Examiner/Stamp Reporter vis-
à-vis Bench Reader, and convince us, as to how the post of
Bench Reader carries higher responsibilities, as pleaded in
para-3 of the reply, but to the best of his ability, and to
the best of assistance rendered by the Registry, we are not
convinced in this regard either, that the post of Bench Reader
carries any higher responsibilities.
In view of the above, we are left not to conclude
anything else, except that, since the two posts of Court Fee
Examiner/Stamp Reporter and Bench Reader carry the same pay
scale, and in absence of anything being shown to us about the
post of Bench Reader carrying any higher responsibility, it
cannot be said that it is a promotion. Obviously, therefore,
it cannot be said, that when the petitioner was promoted
(appointed) to the post of Bench Reader from the post of Court
Fee Examiner/Stamp Reporter, he cannot be said to have been
accorded promotion, say third promotion, within the meaning of
expression contemplated, and used in Annexure-5, so as to deny
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the grant of third selection grade to the petitioner on
completion of 27 years of service.
The result is, that though for different reasons,
and deciding the aspect, as directed by the Hon’ble Supreme
Court, we see no ground to interfere in the impugned order of
the learned Single Judge.
The appeal is, therefore, dismissed.
( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/