1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.9536/2005. : : Prabhu Lal Meghwal Vs. State of Rajasthan & Ors. : : Date of Order 26.8.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Amit Jindal for Mr.S.K.Jindal for the petitioner. Mr.Shyam Sunder Sharma, Govt.Counsel for the State. The writ petition has been filed by the petitioner challenging the order of respondents in delaying grant of his third selection grade in terms of the Circular dated 25.1.1992 by 10 years. Mr.Amit Jindal, learned counsel for the petitioner has contended that the respondents have granted him selection scale after 10 years though it became due to him on 18.6.2000. As a result of this, the petitioner would be getting third third selection scale on 18.6.2010. Learned counsel argued that the grant of selection scale cannot be equated with promotion. Learned counsel relied on Division Bench judgment of this Court in Devi Singh Vs. State of Rajasthan & Ors. : 2004 WLC (Raj.) UC, 327 and argued that the selection grade only confers higher pay in the same post 2 and is intended to prevent stagnation. The Division Bench in the said case has held that the censure cannot be made basis for withdrawal of the selection scale granted. It is, therefore, prayed that action of the respondents in delaying the grant of selection scale to the petitioner by 10 years be held to be illegal and respondents be directed to grant him selection scale w.e.f. 18.6.2000 instead of 18.6.2010. Mr.Shyam Sunder Sharma, learned Govt.Counsel opposed the writ petition and argued that according to Government Circular dated 25.1.1992 the selection scale is granted on the basis of satisfactory service record and, therefore, the parameters that are applicable the case of promotion would equally apply when the employee is considered for grant of selection scale. It was argued that the petitioner was during the relevant period awarded 10 penalties which included eight penalties of censure and two penalties of stoppage of one annual grade increment. The Finance Department had issued a circular dated 17.2.1998, according to which the grant of selection scale has to be deferred by one year for each penalty and, therefore, the petitioner would become entitled to get third selection grade by 10 years late. 3 Having heard the learned counsel for the parties and perused the material available on record and also the Division Bench judgment in Devi Singh (supra), I find that Division Bench considered this very question in the context of withdrawal of the selection grade already granted. In that case too, the selection grade was withdrawn because of the punishment awarded to a constable. In the present case also, the respondents are seeking to delay the grant of selection scale to the petitioner on account of eight penalties of censure apart from two penalties of stoppage of one annual grade increment. The Division Bench observed that the grant of selection scale could not be equated with promotion as selection scale has to be granted to every person on completion of specified period of service without having any promotion. It is a personal amelioration scheme which is intended to prevent stagnation of the employees of lower echelons of service who have not got any promotion before 9, 18 & 27 years of their service, as the case may be. In para Nos.19 to 21, it was observed that :- “Likewise, Union of India Vs. S.S.Ranadey (1995) 4 SCC 462 was a case in which promotion to the Selection Scale was not automatic and personal to incumbent but involved an element of selection and 4 higher pay scale was restricted to certain number of posts. Admittedly, this case also cannot be applicable for considering the grant of Selection Scale to the employees in Class IVth Ministerial and Subordinate Services. Likewise, in State of Rajasthan Vs. Fateh Chand Soni (1996) 1 SCC 562 it has been held that the Selection Scale could not be granted without considering the suitability and merit of the employee. The case of Lalit Mohan Vs. Union of India & Ors., AIR 1972 SC 995 was a case in which the Pay Commission has recommended that a certain percentage of the posts in the grade, usually 10 per cent should carry a somewhat higher scale of pay even though there will be no change in the duties. Following the terminology in vogue these posts have been described as selection grade posts. With this background, the Hon'ble Supreme Court emphasized that it well recognized that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale and are therefore, created in the interest of greater efficiency. The present is not a case of that nature. It is not dependent on the availability of certain percentage of posts in the higher pay scale but it is for those who have not received any promotion for many years on the basis of completion of number of years of service. In these circumstances, he extension of principles that 5 the Selection Scale under the circular dated 25.1.1992 involves an element of selection for discharging higher duties or more efficient duties and being restrictive in nature, cannot be accepted as right premise for deciding the controversy before us. Admittedly, the petitioner had completed twenty seven year of service on 15.1.1992 as on the date no notice has been issued to the petitioner. We have already noticed the charge with which the petitioner was subjected to be punished. In these circumstances, in our opinion and the background of the incident for which he was awarded the punishment of censure did not affect at all his suitability for the post which he was holding to carry selection scale on completion of minimum number of years of service. It may be noticed that the order has been passed as late as on 13.11.1992 after the issuance of circular dated 25.1.1992 and on the completion of twenty seven years of service during which there was no blemish on his service. Therefore, the passing of the censure order subsequent to 15.1.1992 or 25.1.1992 in our opinion, shall otherwise have no effect on the grant of selection scale in the case of the petitioner, which was otherwise to be due to him on 15.1.1992.” The view taken by the Division Bench thus is that the grant of selection grade neither constitutes a separate cadre nor involves an element of selection. It is rather automatic and personal to incumbent and involves an 6 element of selection. Unlike promotion higher pay scale is not restricted to certain number of posts. The aforesaid observations made in the context of penalty of censure whereas the substantive penalty of stoppage of annual grade increment has to be viewed in a different way. What is true of censure may not be applicable to the substantive penalty of stoppage of annual grade increments. In any case, however the action of respondents in deferring the grant of selection scale to the petitioner for the penalty of eight censure awarded to the petitioner cannot be justified but his third selection grade could be delayed maximum by two years for two penalties of withholding of annual grade increments. This writ petition, therefore, deserves to be partly allowed. In the result, this writ petition is partly allowed with direction to the respondents to grant third selection scale to the petitioner by 18.6.2002. Compliance of the judgment be made within three months from the date copy of the judgment is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.53.