Case: THE STATE OF UTTAR PRADESH &amp; ORS Vs. VIJAY SHANKAR DUBEY

2. The brief facts of the case for deciding this appeal are: The respondent was initially appointed as Assistant Public Officer on 11.02.1963. On 12.06.1964 the respondent was promoted as Joint Director, Prosecution, Class I post. The respondent attained the age of superannuation on 31.01.1997. At the time of retirement he was in the pay scale of Rs.3700-5000 as per Fourth Pay Commission Report. On the recommendations of the Fifth Pay Commission Report the pay scale for the post of Joint Director, Prosecution was revised upward to Rs.12000-16500 in place of Rs.3700-5000. Accordingly, pay scale of respondent was revised and he was given revised pension also3. To consider various representations and objections regarding the pay scale consequent to Fifth Pay Commission Report, accepted by the Government on 02.02.1997, a Committee under the Chairmanship of Chief Secretary was constituted. It is also referred as Committee to consider anomalies. The said Committee considered the amendment in the pay scale of the post of the Prosecution Branch also. The Committee recommended that the pay scale of various categories of Prosecution cadre should be upgraded as per the analogy of the post existing in the CBI Organisation of the Center with effect from 01.04.2001. For the post of Joint Director, Prosecution the pay scale was recommended to be revised into Rs.14300-18500 with effect from 01.04.2001. The recommendation of the said Committee was accepted by the Government and an order dated 02.02.2007 was issued accepting recommendation for amending the pay scale of Joint Director, Prosecution as Rs.14330-18500 with effect from 01.04.2001. The amendments in the pay scales with regard to other categories, were also amended from the same date i.e. 01.04.2001. The respondent who had retired on 31.01.1997, after the Government order dated 02.02.2007 submitted a representation on 21.07.2011 praying that he be given the benefit of the Government order dated 02.02.2007 and his pension be revised with effect from 01.01.1996. On 30.11.2012, the Director, Pension, Uttar Pradesh informed the respondent that he is not entitled for any revised pension since he has already retired from the services on 31.01.1997 and the amendment in the pay scale was enforced from 01.04.20014. The respondent filed a Writ-A No.18687 of 2013 in the High Court. The High Court by the impugned judgment allowed the writ petition relying on two earlier judgments of the High Court i.e. judgments of the High Court in Special Appeal (D) No.870 of 2009 (State of U.P. and others vs. Anand Kumar Mishra and others) and Special Appeal No.115 (SB) of 2009 (State of Uttar Pradesh and others vs. Ghanshayam Singh and another). The High Court held that the respondents case being fully covered by the judgment of the High Court in State of U.P. and others vs. Anand Kumar Mishra and others, the respondent is entitled to the benefit of amended pay scale with effect from 01.01.1996. The aggrieved with the judgment of the High Court this appeal has been filed by the State of U.P. and others.

Reasoning:
11. Between the parties there is no dispute that Fifth Pay Commission revised pay scale of Joint Director, Prosecution from Rs.3700-5000 to Rs.12000-16500. The respondent was extended the benefit of Fifth Pay Commission Report from 01.01.1996 and his pension was thus revised accordingly. The State Government accepted the recommendations of Fifth Pay Commission vide Government order dated 23.12.1997 and decided to revise the pay scale from 01.01.1996. Several objections and representations were submitted by several Departments including Officers working in the Directorate of Prosecution13. A perusal of the above enclosure indicates that pay scales of all the officers of Prosecution Department were not amended, amendments were made only for the Senior Prosecution Officer (Senior Scale)/Deputy Director Prosecution and Joint Director (Law)/Joint Director (Prosecution) with effect from 01.04.2001 as mentioned in column No.416. The High Court in the impugned judgment relying on two earlier judgments of the High Court, in Ghanshyam Singh and Anand Kumar Mishra and others, held that the case of the respondent is covered by the said judgments, hence, the writ petition is to be allowed. The High Court had not opined as to how the cut off date was fixed as 01.04.2001 is unsustainable. The Report of anomaly of the Committee with regard to different Departments recommending different pay scales is based on pay structure of different Departments and merely because employees of wireless department has been given higher scale with effect from 01.01.1996 that cannot be the ground to declare the date, 01.04.2001 fixed for implementation of the amendment of pay scale of the Joint Director, Prosecution illegal. We find substance in the submission of the learned counsel for the appellants that amendment in the pay scale of Joint Director, Prosecution was recommended by the Committee of the Chief Secretary on the analogy of the CBI organisation of the Center. Thus, the benefit of upgradation of pay scale as per pay scale in CBI organisations was accepted for the first time. The representation of Prosecution Wing was accepted by the Committee of the Chief Secretary agreeing to extend the benefits of the CBI organisation of the Center. When the amendment in the pay scale is being affected, we do not find any arbitrariness in fixing uniform date, 01.04.2001. The submission of Shri Misra that amendment of the pay scale ought to relate back from 01.01.1996 which was the date fixed by the Fifth Pay Commission cannot be accepted in the facts of the present case18. In the above case, this Court has considered a case which was also covered by the Second Pay Commission but benefits were not extended whereas benefits to the similar sister Institutions were extended. This Court, thus, allowed the writ petition and directed the benefit to writ petitioners also with effect from July 1, 1959. The above case has no bearing on the facts of the present case. The sequences and events in the present as noted above are based on different set of facts and the above judgment does not help the respondent in the present case19. We, thus, are of the view that the cut off date, 01.04.2001 for amendment of pay scale of the post of Joint Director, Prosecution on the basis of the recommendation of the Committee of the Chief Secretary was a conscious decision, the amendment in the pay scale was made following the analogy in the CBI organisation of the Center. When a benefit for the first time is extended to a category of employees, the State can always fix a rational cut off date and it was not obligatory for the State to extend the benefit of analogy of the CBI organisation of the Center with effect from 01.01.1996 which was the date of the recommendations of the Fifth Pay Commission. The respondent being not covered by the Government order dated 02.02.2007 was rightly informed that he was not entitled for the benefit of amendment in the pay scale he having already retired on 31.01.1997.