VERMA, J. - (1.) - Instructions issued by Government of Rajasthan vide Annex. 5 dated 25. 1. 1992 provide three selection grades to the employees in Class IV, Ministerial and Subordinate Services on the expiry of 9 years, 18 years and 27 years of service, in case the incumbent of the post does not get any promotion and is stagnated. The first selection grade is admissible after 9 years, if there is no next promotion post in the same service/cadre for 9 years and the second selection grade is admissible in case, there is no second promotional post in the same service or cadre or the employee does not possess the academic qualification and similarly third selection grade is admissible when there is no third promotion post in the same service/cadre. The relevant part of the instructions are reproduced as under: 1. This order shall be applicable to all Government Servants in Class IV, Ministerial and Subordinate Services and those holding isolated posts and drawing pay in Revised Pay Scales, 1989 the maximum of which does not exceed Rs. 3200/ -. This order shall not apply to Government servants in the State Services as defined in the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 and to those who have got Selection Grade of Rs. 2200-4000 in terms of this order. 2 (i) The first Selection grade shall be granted from the day following 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 in his existing cadre and the first Selection Gra- de granted to him was lower than the pay scale of Rs. 2200-4000. (iii) The third Selection Grade shall be granted from the day following the day on which one completes service of twenty seven years, provided that the employees has not got three promotions earlier as might be available in his existing cadre and the first or the second Selection Grade granted to him, as the case may be, was lower than the pay scale of Rs. 2200-4000.
(2.) A curious proposition leading to very anamolous situation, arisen in the present writ petition, is that if some of the employees get all three promotions, admittedly, they cannot avail of the benefit of the instructions reproduced above and in case the scale of the promotional post happens to be lower than the respective selection grade, they are placed in a disadvantageous situation viz-a-viz their juniors who do not either fulfil the qualification or have failed to pass the requisite test and are, therefore, not promoted at all, but still they do fall under the ambit of the instructions (Annex. 5) and are permitted to avail the selection grade which selection grade is higher than the scale of the post of promotion in which they would have been placed in case they had passed the test. This situation results in hostile discrimination viz-a-viz their seniors who laboured hard, prepared for the test, got first, second and third promotions and are placed in the scale of promotional post, but juniors of such promotees who some how do not come up to the expectance either because of the reason that they do not possess the requisite qualification or unable to qualify the test, are placed on higher padestrial so far as the pay-scale is concerned after expiry of 9, 18 and 27 years as the case may be, i. e. such employees who are awarded the selection grade as per Annex. 5, even if they happen to juniors, get more emoluments in selection grade than employees who are senior, but are posted on promotional post, scale of which post happens to be lower than the selection scale. What should be done in such circumstances, is a matter of concern in the present writ petition. Should the seniors in the same cadre who had qualified the test for the next promotions and are promoted, be allowed to remain in lower scale than to their juniors who do not pass any test of promotion, but still are placed on higher scale because of the said instructions? If it is allowed, will it not encourage those employees who do not appear or qualify the test and but still get the selection grade, which incidently is better than the promoted post, or will it not discourage the incumbants of the cadres to compete for higher post as they know that Non-competition would entail better results than qualifying the competition, so far the emoluments are concerned. In the present case, the petitioner who had joined as LDC in the year 1960 was promoted as UDC on 12. 11. 73 vide Annx. 2. He was governed by Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 and after passing the qualifying test for the promotions to the post of Court-fee Examiner/stamp Reporter, he was promoted as Fee Examiner/stamp Reporter in the year 1984 vide Annex. 3 i. e. on 7. 4. 84. He was again promoted as Bench Reader vide Annex. 4 dt. 28. 10. 1989 which post is promotional post, but the pay-scale of Court-fee Examiner/stamp Reporter and that of Bench Reader are the same. The only benefit, which the incumbent of Stamp Reporter gets, on being promoted as Bench Reader, is the benefit of Rule 26 of the Rajasthan Service Rules. The scale of Court-fee Examiner, Stamp Reporter and Bench Reader is 1400-2600 in scale no. 12. These posts are equated, so far the pay-scale are concerned, with the post of Office Assistant in the Government Secretariat i. e. the pay-scale of Court-fee Examiner/stamp Reporter and promoted post of Bench Reader and the Office Assistant carry the same pay-scale no. 12 i. e. 1400-2600. The petitioner had completed 27 years' of service and on the third promotion, he is in the scale of 1400-2600. He submits that even after completing 27 years' of service, he is facing stagnation on having attained maximum of pay-scales and, therefore, prays that he is entitled to third selection grade as per instruction Annex. 5 dt. 25. 1. 1992. He submits that some other employees of the High Court were allowed such benefits vide order dated 10. 8. 92 and 9. 12. 93 vide Annex. 6 & 7. He further submits that junior persons who were junior to the petitioner on the post of LDC and also on the post of UDC, but could not be promoted, either on the post of Court-fee Examiner/stamp Reporter/office Assistant in the scale of 1400-2600, have been granted this third selection grade in the pay-scale of 2000-3200 in accordance with instructions Annex. 5. Sarav-Sh. Om Prakash Soni, Motilal Vyas, Kishan Gopal Mantri, Om Prakash Chouhan and Bharat Dan Charan who were juniors in the cadre of LDC and UDC could not get the promotion, but had been placed in the scale of Rs. 2000-3200 after 27 years of service; whereas the petitioner who had cleared the test of next promotion post of Court-fee Examiner/stamp Reporter and Bench Reader is running in the scale of 1400-2600 even though he had more service and was senior. The petitioner submits that it would have been better for him not to compete in any examination for the purpose of promotion and in that situation, he would have been given the scale of 2000-3200 and only because of the reason that he had high hopes of promotions with promotional scale, he had been put lower in the scale viz-a- viz juniors. The petitioner submits that in any case, the third promotional post from the Stamp Reporter to Bench Reader should not be considered as promotion for the reason that it carries the same pay-scale i. e. 1400-2600, but only a benefit of Rule 26-A of the Rajasthan Service Rules is awarded and that too, has already become ineffective because of the reason that he has been allowed personal pay of Rs. 60/- per month w. e. f. April 1993 and thus even this benefit awarded under Rule 26-A of the Rajasthan Service Rules has been rendered ineffective. The submission that promotion to the post of Bench Reader is not a promotional post, cannot be accepted as under the Rules, Bench Reader is promotional post which is admitted fact and, therefore, even though it carries the same pay-scale, it cannot be held that Bench Reader is not promotional post from the post of Stamp Reporters. The petitioner had already exausted the maximum scale in the pay-scale of 1400-2600 since 1991. The submission of the petitioner is, of two folds i. e. either he should be awarded the third selection grade which has been awarded to his juniors who have not passed the test for the second or third promotion or on the principle that juniors cannot be paid more than the seniors, the petitioner should also be awarded the scale of 2000-3200. The representation in this regard made by the petitioner was rejected on 25. 7. 94 vide Annex. 9. A reply has been filed on behalf of respondent nos. 2 and 3. It is stated that under Rule 4 of the Rules, post of Bench Reader is promotional post and benefit under Rule 26-A of the Rajasthan Service Rules had been awarded to the petitioner on having qualified the test for the post of Bench Reader from the post of Stamp Reporters/court-fee Examiner. It is stated that because of the reason that petitioner had earned three promotions, therefore, he is not entitled to any third selection grade as contended by the petitioner. It is stated that above named five persons who who were juniors are either the Office Assistant or UDCs and some how they could not qualify for the promotional post, therefore, on the expiry of the period as mentioned in the instructions (Annex. 5), they have been rightly awarded the grade of Rs. 2000-3200. It will be relevant to mention here that for various scales of various posts, there are three channels of promotions from the post of LDC i. e. is promoted to UDC, Office Assistant and then Superintendent, the second channel, from the post of LDC is to the post of UDC, Translator, Sr. Translator and then Superintendent and the third channel is to the post of UDC, Stamp Reporter, Bench Reader, Sr. Bench Reader/ Superintendent. UDC's carries the scale of 1200-2050. Translators / Stamp Reporters/court-fee Examiner and Bench Readers and Office Assistant carries the scale of 1400-2600; whereas the Superintendent or Sr. Bench Reader carries the scale of 2000-3200. Incumbent of UDC in the scale of 1200-2050 who some how does not qualify or could not qualify the examination for the higher promotion is automatically given the scale of 1400-2600 after 9 years from the date he was promo- ted to UDC and the scale of 2000- 3200 after another 9 years. Similarly Office Assistant who does not qualify the next examination, is also allowed to jump from 1400-2600 to 2000-3200, if after promotion of O. A. , he is unable to qualify the test for the promotion to the post of Superintendent, after the stipulated period as per Annex. 5, but still the UDC's or O. A. as the case may be, are put in the scale of 2000- 3200 as has been done in the case of five junior persons who are working on the post of UDC as narrated above without qualifying any examination. This is the import of the instructions (Annex. 5 ). But those UDC's who do not qualify the two examinations for the post of Stamp Reporter and Bench Reader are placed in the scale of 1400-2600 and they continue in the same scale even after expiry of 27 years of service whereas the UDC who do not qualify any test and are not eligible for next two promotions are placed in the scale of Rs. 2000-3200 after 27 years of service. The result is alarming and the situation is most unfortunate. Such situation does damper the spirit of those efficient and hard working employees who opt for hard labour and claim promotion by way of competition but ultimately find that their juniors in lower cadres are allowed to steel-march so far as pay-scale is concerned and are put in an advantageous position. What should be done in the present situation and in the case in hand and what relief can be given to such employees like the petitioner, is to be determined. If a UDC in the scale of 1200-2050 after gap of 9 years and 9 years i. e. total 18 years can be placed in scale of 2000-3200. Why cannot the senior UDC who got two promotions as well, should run in the scale of 1400- 2600 after the same lapse of total period of 27 years of service, counting from the post to which he was recruited i. e. as LDC. Non-providing of such benefit to the Senior and placing the Senior in the lower Scale, may be in the higher promoted post to that of his junior, who is in lower post, shall amount to total arbitrariness and violating the Art. 14 and 16 of the Constitution of India.
(3.) THE Division Bench of this Court is DB Special Appeal No. 127/94 decided on 11. 12. 1995 had held as under: "6. A person is appointed not just for a job, but for whole career and he should be given an opportunity to advance, but should not be humiliated for his being more meritorious. THE respondent was found to be more meritorious than Dr. S. N. Mathur and was placed above latter, therefore, he cannot be given lesser pay than that of Dr. S. N. Mathur. THE doctrine of justice and fair play requires that the person, who is higher in merit does not draw less salary. THE status of the senior or more meritorious candidate in the matter of fixation of emoluments viz-a-viz person, who is placed in lower merit in the same scale is required to be safeguarded. It would be quite unfair to fix him in a lower pay scale than that of lesser meritorious and junior candidate. 7. It is not inherently unfair if someone has more than anybody else, but only if others are done out of their due. THErefore, in our opinion, on the doctrine of justice and fair play the respondent is entitled to have his emoluments stepped up equal to that of Dr. S. N. Mathur. 8. THE doctrine of justice and fair play also requires that a man cannot be unfairly treated with his own consent. We think that the direction given by the learned Single Judge to the appellant University to step up the pay of the respondents to the same which was accorded to Dr. S. N. Mathur w. e. f. the date of his appointment on the post of Rea- der in the Department of Mathematics alongwith the arrears that may fall due as a result of the stepping up has done justice between the parties in the matter. We would, therefore, like to decline to interfere with the judgment of the learned Single Bench as it has broadly done justice between the parties. " For the reasons and the discussion above, it is held that petitioner is also entitled to the same pay-scale which had been awarded to the junior UDC's after 27 years of service from the date of initial recruitment and which would have been awarded to the petitioner after lapse of 27 years of service, had he not competed for the promotional post. The petitioner shall be entitled of the scale of 2000-3200 from the date when any of his junior in UDC cadre has been awarded such grade. Writ petition is also allowed on the principle that if after completing 9, 18 and 27 years of service, if first, second or third selection grade is awarded to an employee who was junior in Lower cadre, but placed in higher pay-scale because of granting of selection grade as per instruction Annex. 5, than to any of his senior, who happens to remain in lower pay-scale because of promotion. Such senior shall be entitled to atleast the same scale which has been awarded to his junior in the lower cadre, if such scale is higher than the promotional post. To my opinion, this can be the only relief which could be given by the Court in view of the anamolous position created in the present case. The writ petition is allowed with a direction to the respondents to award the grade to the petitioner of Rs. 2000-3200 in view of the above direction from the date when any of his junior in UDC cadre had been granted such pay scale and order to be complied with within three months from the receipt of certified copy of order. No costs. . ;