2002 JTR(SC) 661
2002 AIR(SC) 2492 ; 2002 AIR(SCW) 2800 ; 2002 2 BLJR 1596 ; 2002 94 FLR 871 ; 2002 5 JT 205 ; 2002 LIC 2621 ; 2002 3 LLN 763 ; 2002 5 Scale 124 ; 2002 5 SCC 756 ; 2002 SCC(L&S) 814 ; 2002 Supp1 SCR 39 ; 2002 3 SCT 672 ; 2002 4 SLR 770 ; 2002 3 UPLBEC 2060 ; 2002 KHC 1702 ; 2002 4 Supreme 542
2002(4) Supreme 542
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
D.P. Mohapatra & Brijesh Kumar, JJ.
State of Punjab & Anr. -Appellants
versus
Kuldip Singh & Anr. -Respondents
Civil Appeal No. 3643 of 2002
(Arising out of SLP (C) No. 1158 of 1999)
Decided on 8-7-2002
Counsel for the Parties :
For the Appellants : Mr. P.P. Rao, Sr. Advocate, Mr. H.S. Munjral and Mr. Rajeev Sharma, Advocates.
For the Respondents : Mr. Jitendra Sharma, Sr. Advocate, Mr. A.S. Chahil, Ms. S. Janani, Mr. P.N. Jha and Mr. R.D. Upadhyay (N.P.), Advocates.
IMPORTANT POINT
High Court should not have based its judgment to grant Selection Grade Pay on the principle that when a junior in the cadres is given a higher scale of pay a person senior to him could not draw lesser pay in view of specific Govt. Circulars dated 3-1-1980 and 18-5-1987 prescribing 15 years of service in the cadre to qualify for Selection Grade Pay.
Act Referred :SERVICE JURISPRUDENCE : .
(A) The referenced statutory provisions from the Government Circulars issued on 3.3.1980 and 18.5.1987 govern the eligibility for Selection Grade Pay in the cadre of Sub Divisional Engineers, stipulating that such pay is only admissible to an officer upon completion of 15 years of service, calculated as either service in the basic scale or the aggregate of service in the basic scale and the next lower scale, and that no officer can be granted this pay before fulfilling this criterion. These circulars further clarify that where a junior officer becomes eligible earlier than a senior officer, the junior may be appointed to a reserved post without affecting the seniors pay or seniority, and that the senior officer is entitled to the pay only upon completing the requisite service. These provisions directly apply to the dispute over whether the respondents are entitled to Selection Grade Pay from 1.1.1978 merely because junior officers received it earlier, as the High Court erroneously disregarded the statutory eligibility conditions.
(B) The core legal principles elucidated include that statutory service eligibility criteria in government circulars are binding and cannot be overridden by considerations of parity or seniority, the grant of pay scales must strictly comply with prescribed conditions, and the interests of senior employees are safeguarded through inter-se seniority provisions even if juniors receive benefits earlier.
Facts of the case:
The respondents, directly appointed as Sub Divisional Engineers in the Public Works Department of Punjab, joined in November 1970, while a junior officer, Shri A.S. Mann, was promoted to the same cadre in December 1971. Mann obtained Selection Grade Pay from 1.1.1978 following decrees in his favor, leading the respondents to claim identical pay from the same date on the grounds that junior officers had already been granted the benefit. The High Court allowed the respondents writ petition, directing the grant of Selection Grade Pay from 1.1.1978, while the States Special Leave Petition was dismissed in limini.
Findings of Court:
The High Court was found to have erred in applying a principle that junior officers receiving higher pay necessitates senior officers drawing the same without fulfilling eligibility conditions, and in issuing a writ mandamus against binding government circulars. The appellate court held that the circulars requirement of 15 years of service is a mandatory condition precedent, and no deviation is permitted on grounds of seniority or parity, rendering the High Courts judgment unsustainable.
Issues:
Whether respondents are entitled to Selection Grade Pay with effect from 1.1.1978 by virtue of junior officers receiving it earlier, and whether the High Court correctly interpreted the Government Circulars mandating 15 years of service as a precondition.
Ratio Decidendi:
The entitlement to Selection Grade Pay is strictly governed by statutory circulars requiring completion of 15 years of service; neither seniority nor parity can override this condition, and a junior officers earlier grant of pay does not create a right for a senior officer before fulfilling the eligibility criteria.
Result:
The appeal is allowed, the High Courts judgment/order is set aside, and the writ petition filed by the respondents is dismissed without costs.
(A) The referenced statutory provisions from the Government Circulars issued on 3.3.1980 and 18.5.1987 govern the eligibility for Selection Grade Pay in the cadre of Sub Divisional Engineers, stipulating that such pay is only admissible to an officer upon completion of 15 years of service, calculated as either service in the basic scale or the aggregate of service in the basic scale and the next lower scale, and that no officer can be granted this pay before fulfilling this criterion. These circulars further clarify that where a junior officer becomes eligible earlier than a senior officer, the junior may be appointed to a reserved post without affecting the seniors pay or seniority, and that the senior officer is entitled to the pay only upon completing the requisite service. These provisions directly apply to the dispute over whether the respondents are entitled to Selection Grade Pay from 1.1.1978 merely because junior officers received it earlier, as the High Court erroneously disregarded the statutory eligibility conditions.
(B) The core legal principles elucidated include that statutory service eligibility criteria in government circulars are binding and cannot be overridden by considerations of parity or seniority, the grant of pay scales must strictly comply with prescribed conditions, and the interests of senior employees are safeguarded through inter-se seniority provisions even if juniors receive benefits earlier.
Facts of the case:
The respondents, directly appointed as Sub Divisional Engineers in the Public Works Department of Punjab, joined in November 1970, while a junior officer, Shri A.S. Mann, was promoted to the same cadre in December 1971. Mann obtained Selection Grade Pay from 1.1.1978 following decrees in his favor, leading the respondents to claim identical pay from the same date on the grounds that junior officers had already been granted the benefit. The High Court allowed the respondents writ petition, directing the grant of Selection Grade Pay from 1.1.1978, while the States Special Leave Petition was dismissed in limini.
Findings of Court:
The High Court was found to have erred in applying a principle that junior officers receiving higher pay necessitates senior officers drawing the same without fulfilling eligibility conditions, and in issuing a writ mandamus against binding government circulars. The appellate court held that the circulars requirement of 15 years of service is a mandatory condition precedent, and no deviation is permitted on grounds of seniority or parity, rendering the High Courts judgment unsustainable.
Issues:
Whether respondents are entitled to Selection Grade Pay with effect from 1.1.1978 by virtue of junior officers receiving it earlier, and whether the High Court correctly interpreted the Government Circulars mandating 15 years of service as a precondition.
Ratio Decidendi:
The entitlement to Selection Grade Pay is strictly governed by statutory circulars requiring completion of 15 years of service; neither seniority nor parity can override this condition, and a junior officers earlier grant of pay does not create a right for a senior officer before fulfilling the eligibility criteria.
Result:
The appeal is allowed, the High Courts judgment/order is set aside, and the writ petition filed by the respondents is dismissed without costs.
JUDGMENT
D.P. Mohapatra, J.-Leave is granted.
2. This appeal filed by the State of Punjab, through the Secretary in the P.W.D. (B&R) Mini Secretariat and the Chief Engineer, P.W.D. (B & R) Branch, is directed against the judgment/order dated 25.3.1998 of the High Court of Punjab and Haryana allowing Civil Writ Petition No. 15263 of 1997 filed by the respondents herein. The controversy raised in the case relates to the date from which the respondents are entitled to get Selection Grade Pay as Sub Divisional Engineers in the Public Works Department of the State; whether it is with effect from 1.1.1978 when Shri Devender Singh Sekhon, a Sub Divisional Engineer junior to them got the Selection Grade Pay or from the date when the respondents completed 15 years of service in the cadre. In the judgment under challenge the High Court took the view that since Shri A.S. Mann and Shri Devender Singh Sekhon who are juniors to the respondents were granted Selection Grade Pay from 1st January, 1978 the respondents being senior to them and if they are within the 20% posts of the cadre of Sub Divisional Engineers then there was no reason why they should not be granted Selection Grade Pay with effect from that date. Accordingly, the High Court allowed the writ petition and directed the appellants that if the respondents fulfilled the aforementioned conditions then they should be given the Selection Grade Pay with effect from the date their juniors were given such grade and arrears should be released as was done in the case of Shri Devender Singh Sekhon. From the discussions in the judgment/order it appears that the High Court based its judgment on the principle that when a junior in the cadre is given a higher scale of pay a person senior to him could not draw lesser pay unless a higher scale of pay was made personal to the junior officer by order.
3. The factual matrix of the case, so far as relevant for the purpose of this proceedings may be stated thus: Shri Kuldip Singh, respondent No.1 herein, and Shri Devender Singh Sekhon were directly appointed as Sub Divisional Engineers in the Public Works Department of the State of Punjab. While Shri Kuldip Singh joined the post on 11th November, 1970 and Shri Teekam Chander Bali on 17th November, 1970, Shri Devender Singh Sekhon joined the post on 18th November, 1970. Another officer Shri A.S. Mann, who had been appointed as Junior Engineer on 28th April, 1956 was promoted as Sub Divisional Engineer with effect from 22nd December, 1971. Shri A.S. Mann filed a suit claiming Selection Grade Pay with effect from 1.1.1978 on the ground that persons junior to him had already been granted such grade. The suit was decreed on 24th September, 1985. The appeal preferred by the State was dismissed. The Second Appeal preferred by the State was also dismissed on 22nd September, 1986. Thereafter the Selection Grade Pay was released in favour of Shri A.S. Mann on 21st April, 1989.
4. Shri Devender Singh Sekhon who was senior to Shri A.S. Mann as Sub Divisional Engineer filed the writ petition C.W.P. No. 14777/95 claiming the Selection Grade Pay. The writ petition was allowed by the High Court on 12th September, 1996 on the ground that Shri A.S. Mann who was junior to the writ petitioner having been given the higher scale of pay the writ petitioner was entitled to get the Selection Grade Pay. The Special Leave Petition filed by the State, SLP (C) No. 11409 of 1997 was dismissed in limini on 10th July, 1997.
5. Thereafter the respondents herein filed the writ petition, C.W. P. No. 15263 of 1997 praying for writ of Mandamus directing the State Government to grant the Selection Grade Pay scale with effect from 1.1.1978 when officers junior to them like Shri A.S. Mann and Shri Devender Singh Sekhon were granted the higher pay. The writ petition was contested by the appellants herein mainly on the ground that the petitioners could not be given the Selection Grade Pay before they completed 15 years of service which is the prescribed eligibility condition for such benefit under the Government Circulars. The Government Circulars relied upon by the appellants were, No. 8/30/78-FR(5)1845, dated 3.3.1980 and Circular No.7/93/85-4FPI/5956 dated 18th May, 1987. Regarding the grant of benefit of Selection Grade pay to Shri A.S. Mann the case of the appellants herein was that they had completed 15 years of service in the grade of junior engineer and Sub Divisional Engineer by 1.1.1978 and therefore, there was no legal impediment in granting them the Selection Grade Pay. Regarding Shri Devender Singh Sekhon the appellants have accepted the position that grant of Selection Grade Pay to him before completion of 15 years was not in accordance with the Government Circulars and therefore, erroneous. The appellants felt bound to release the Selection Grade Pay in his favour in view of the judgment of High Court and the order passed by this Court dismissing the Special Leave Petition filed by the State.
6. Shri P.P. Rao, learned senior counsel appearing for the appellants contended that the judgment/order passed by the High Court is unsustainable inasmuch as it is contrary to the circulars prescribing the eligibility criteria for the purpose of grant of selection grade pay and the judgment/order is liable to be set aside. Shri Jitendra Sharma, learned senior counsel appearing for the respondents supported the judgment/order of the High Court on the reasons stated therein.
7. On the facts and the case of the parties as discussed above the question formulated earlier arises for determination.
8. The answer to the question depends on the interpretation of two Government Circulars issued on 3.3.1980 and 18.5.1987 respectively. The said circulars deal with the criteria for grant of Selection Grade Pay in the cadre of various services and implementation of recommendations of the Second Punjab Pay Commission. It is provided in the circulars that Selection Grade Pay will be provided in cases where the number of higher posts (of levels taken together) to which employees in a particular case can seek promotion, is less than half the strength of that cadre of service and further that the number of Selection Grade posts at each level should not exceed 20% of the strength of the basic scale for which the Selection Grade posts are to be sanctioned. For the purpose of calculating the number of Selection Grade posts, all posts including temporary posts, which have been in existence for three years are to be taken into account. In para (iii) of the Circular dated 3.3.1980 it is specifically stated that Selection grade will not be admissible to an officer unless he has completed 15 years service. The service should either be in the basic scale where appointment to the basic scale is from the point of fresh entry into service or as the sum total of the employee s service in the basic scale and in the one scale next below. In the circular issued on 18th May, 1987 one of the subjects dealt with was the grant of Selection Grade to a junior employee who became eligible earlier than a senior employee. It was reiterated in the said circular that the Selection Grade will not be admissible to an officer unless he has completed 15 years of service and that such service should either be in the basic scale where appointment to the basic scale is from the point of fresh entry into service or as the sum total of the employee s service in the basic scale and in the one scale next below. Further clarifying the position in a case where a junior employee in the event of becoming eligible for placement in the Selection Grade by following prescribed criteria earlier than a senior employee whether the junior employee can be allowed the Selection Grade before the senior employee, it was stated that a junior employee becoming eligible for placement in the Selection Grade earlier than a senior employee can be allowed the Selection Grade earlier than a senior employee by keeping a post (in the Selection Grade) reserved for the senior employee and appointing the senior employee against the post when he became eligible for selection grade pay. It was further clarified in the circular that allowing selection grade to a junior employee will not adversely affect the seniority of the senior employee. It was specifically stated in the circular that other conditions regarding placement in the selection grade will continue to be operative as hereto-fore.
9. From the contents of the two circulars it is manifest that an employee in order to be eligible to get the selection grade pay has to complete 15 years of service and he is not to be given such scale of pay before he fulfils the said eligibility criteria. It follows as a consequence that no employee can claim selection grade pay before completing 15 years of service on any ground including the ground that an employee junior to him has already been given such grade of pay. The position is further clarified in the circular issued in May, 1987 wherein it is provided that in the event of a junior employee getting the selection grade pay earlier the post in the said grade may be kept vacant for the senior employee who may be given the benefit of the pay prescribed for the selection grade pay only after he completes 15 years of service. The interest of the senior employee in such cases is safeguarded by making the provision in the inter se seniority between the two employees will remain undisturbed despite the junior employee getting the selection grade pay earlier than the senior employee.
10. In view of the position communicated in the circulars the claim of an employee for a selection grade post was to be dealt with only in accordance with the provisions in the circular. The reasons stated in the judgment/order of the High Court that the respondents were entitled to the higher grade pay with effect from 1.1.1978 as employees junior to them were granted such pay by that date is extraneous and irrelevant for the purpose. The High Court overlooked the provisions in the circulars while directing the appellants herein to grant selection grade pay to the respondents before they completed 15 years of service. The High Court was clearly in error in issuing a writ of mandamus apparently against the Government Circulars which was binding on the parties. The judgment/order passed by the High Court is, therefore, unsustainable. Accordingly, the appeal is allowed, the judgment/order is set aside and the writ petition filed by the respondents is dismissed. It is made clear that if the respondents have already drawn any amount in pursuance of the judgment/order of the High Court, the same will not be recovered from them. No costs.
(N.K.R.) Appeal allowed.
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