CW3440/2004 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.3440/2004 Murari Lal Agarwal Vs. The Director, Pension Department, Jyoti Nagar, Jaipur and Another Date of Order ::: 24.11.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Sharat Chand Sethi, Counsel for petitioner Shri Nalin G. Narain, Deputy Government Counsel for respondents #### By the Court:- This writ petition has been filed by petitioner challenging action of respondents in not granting him third selection grade on completion of 27 years of service in terms of government circular dated 25.1.1992. Shri Sharat Chand Sethi, learned counsel for petitioner, has contended that respondents have not granted third selection grade to petitioner on completion of 27 years of service though it became due to him in 2001, on the ground of penalty of censure awarded to him on 28.06.1988. Learned counsel argued that 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 selection grade only confers higher pay in same post and is intended to prevent stagnation. The Division Bench in said case has held that censure cannot be made basis for non-grant of selection scale. It is, therefore, prayed that action of respondents in not granting selection scale to petitioner be held to be illegal and they be directed to grant him selection scale on completion of 27 years of service. CW3440/2004 // 2 // Shri Nalin G. Narain, Deputy Government Counsel appearing on behalf of respondents, opposed writ petition and argued that according to Government Circular dated 25.1.1992 selection scale is granted on the basis of satisfactory service record and, therefore, parameters that are applicable case of promotion would equally apply when employee is considered for grant of selection scale. It was argued that petitioner was during relevant period awarded penalty of censure. Having heard learned counsel for parties and perused material available on record and also Division Bench judgment in Devi Singh (supra), I find that Division Bench considered this very question in context of withdrawal of selection grade already granted. In that case too, the selection grade was withdrawn because of punishment awarded to a constable. In present case also, the respondents are seeking not to grant selection grade on completion of 27 years of service on ground of penalty of censure awarded on 28.06.1988. Division Bench observed that grant of selection scale could not be equated with promotion as selection scale has to be granted to every employee on completion of specified period of service without having any promotion. It is a personal amelioration scheme which is intended to prevent stagnation of 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 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 CW3440/2004 // 3 // 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 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 CW3440/2004 // 4 // 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 Division Bench thus is that 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 element of selection. Unlike promotion higher pay scale is not restricted to certain number of posts. The aforesaid observations made in context of penalty of censure whereas 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 substantive penalty of stoppage of annual grade increments. In any case, however action of respondents in not granting third selection grade on completion of 27 years of service to petitioner on account of penalty of censure awarded him cannot be justified. This writ petition, therefore, deserves to be partly allowed. In result, this writ petition is allowed with direction to respondents to grant third selection scale to petitioner on completion of 27 years of service and pay him consequential benefits together with interest at rate of 6% per annum. Compliance of the judgment be made within three months from the date copy of the judgment is produced before the respondents. (Mohammad Rafiq) J. //Jaiman//