1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 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 ----- 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 2 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. 3 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 4 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, 5 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 6 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 7 other 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 8 responsibilities: 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 9 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/