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REPORTABLE  IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8404  of 2011

[Arising out of S.L.P. (C) No.30570 of 2010]      

State of Rajasthan  & Ors.     ...Appellants Versus

Shankar Lal Parmar                            ...Respondent W I T H

C.A.No.8405/2011[Arising out of SLP(C) No.9847 of 2011]; C.A.No.8406/2011[Arising out of SLP(C) No.17093 of 2011]; C.A.No.8414/2011[Arising out of SLP(C) No.14480 of 2011]; C.A.No.8407/2011[Arising out of SLP(C) No.14789 of 2011]; C.A.No.8408/2011[Arising out of SLP(C) No.14951 of 2011]; C.A.No.8409/2011[Arising out of SLP(C) No.20326 of 2011];

A N D C.A.Nos.8410-8411/2011[Arising out of SLP(C) Nos.22755-22756 of 2011].

J U D G M E N T

Deepak Verma, J. 1. Leave granted. 2. The solitary question that arises for our consideration  

in the instant and the connected appeals is whether an

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employee would be entitled for the grant of 'Selection  Grade', automatically, at the first instance, after the  completion of 9 years, at the second instance, after the  completion  of  18  years  and  at  the  third   and  last  instance, after the completion of 27 years of service,  even when he has earned censure in the past years of  service.  

3. In  fact,  on  the  strength  of  an  Order  pronounced  by  Division Bench on 12.12.2003 in the matter of  Devi Singh  Vs. State of Rajasthan & Ors. [reported in 2004 (2) CDR-925  (Raj)], several matters came to be filed in the High Court  of Judicature of Rajasthan both at the Principal Bench at  Jodhpur and at the Bench at Jaipur claiming entitlement for  the  Selection  Grade.  Unfortunately,  the  learned  Judges,  either sitting in Single Bench hearing Writ Petitions of  the employees or in Division Bench, hearing Writ Appeals of  the State, without properly appreciating or adverting to  the ratio decidendi of the case, in a stereotype manner,  went on allowing the Writ Petitions filed by the employees  and dismissing the appeals preferred by the State.  The  approach adopted by the High Court in all such cases would

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reflect that the judgment in Devi Singh’s case has not only  been misread but has also been misinterpreted by them. In  fact,  it  was  the  duty  of  the  learned  Advocate  for  the  Appellants,  who  had  appeared  in  the  High  Court  to  have  pointed out the distinction, but apparently it appears that  he failed to do so which has led to erroneous judgments.  The  controversy  has  been  pending  before  this  Court  for  quite some time, therefore, we deem it fit to decide it, by  a reasoned judgment to iron out the creases and clear the  clouds.   4. It is relevant to mention here that a Special Leave  Petition filed by the State, against one Bheem Singh was  dismissed  by  this  Court  on  06.01.2010  on  the  ground  of  delay.  The Order reads as under:

“Heard  learned  Counsel  for  the  Petitioners. The Special Leave Petition is dismissed  on the ground of delay as also on merits. However, the question of law is kept open  to be decided in an appropriate case.”

Since the Special Leave Petition was dismissed on the  ground of delay and the question of law was clearly left

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open, thus there is no difficulty in deciding these appeals  on merits, because the said Special Leave petition was not  decided on merit. 5. Brief facts material for deciding the instant case are  given hereinbelow:  With a view to provide relief to employees, Class IV,  Ministerial Subordinate Services and those holding isolated  posts,  Selection  Grades  were  prescribed  for  the  lowest  posts in these services, so as to resolve the problem of  stagnation.  With this intention, first Office Order was  issued  by  the  State  of  Rajasthan  on  25.01.1992.   The  salient and important features of the said Order, relevant  for  the  purpose  of  these  appeals  are  reproduced  hereinbelow:

“2.(i) The first selection Grade shall be  granted  from  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  on  his  existing  cadre  an  the  first  selections

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grade granted to him was lower than the  pay scale of Rs. 2200-4000. (iii)  The third Selection Grade shall be  granted  from  the  day  on  which  one  completes service of twenty seven years,  provided  that  the  employee  has  not  got  three promotions earlier as first or the  second Selection Grade granted to him, as  the case may be was lower that the pay  scale of Rs.2200-4000.

6. Another important and relevant Clause in the said Order  for our perusal is 7, which is also reproduced hereinbelow:

“7.  Selection  Grades  in  terms  of  this  Order  shall  be  granted  only  to  those  employees  whose  record  service  is  satisfactory.   The  record  of  service  which makes one eligible for promotion on  the  basis  of  seniority  shall  be  considered  to  be  satisfactory  for  the  purpose of grant of the Selection Grade.”

7.  Clause 7 makes it clear that only those employees would  be entitled for grant of Selection Grades, whose service  record has been satisfactory and is otherwise eligible for  promotion on the basis of seniority but is not able to get  the same as there might not be any channel of promotion or  for want of sanctioned posts in the cadre.

8. Another Department of the Appellant-State, Office of  Director  General  of  Police  (Rajasthan)  in  its  wisdom,

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deemed it fit to further clarify the position and issued  another Circular dated 23.07.1992.  The relevant portion of  the said circular is reproduced hereinbelow:

“As  far  as  there  is  question  of  censure,  it  shall  be  not  taken  into  account as unsatisfactory service record  for the purpose of grant of selection pay  scale, and it shall not be obstructive in  grant of selection pay-scale. The period  of last seven years shall be counted from  the year, for which he is to be given  promotion.”

On account of the first Office Order dated 25.01.1992  and the subsequent Circular dated 23.07.1992, as reproduced  hereinabove, State started granting Selection Grades to all  those  employees,  who  had  completed  requisite  number  of  years  in  service,  even  if  they  had  earned  censure  in  previous years but had not been promoted. 9. To remove the doubts which cropped up on account of the  

Circular dated 23.07.1992, which created confusion and  doubts in the mind of the Heads of Department, as to  whether an employee would be automatically entitled to  receive  the  Selection  Grades,  after  completion   of  9  years, 18 years  and 27 years of service, irrespective of  his earning censure or other such remarks, another Office

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Order/letter dated 24.07.1995 was sent, by the Finance  Department (Rules Division) to the Director General of  Police,  Rajasthan.  The  relevant  portion  thereof  is  reproduced hereinbelow:

“I am directed to refer to your letter  No.F.15(10) P.F./Kani/90 dated 24.04.1995  on  the  above  noted  subject  and  to  say  that one of the conditions for grant of  selection  grade  is  that  the  service  record  of  that  employee  should  be  satisfactory for the purpose of grant of  Selection  grade.   The  promotion  of  Government  Servants,  who  have  been  awarded  the  penalty  of  censure,  is  postponed by one year. Since, penalty of  censure effects promotion by one year, it  effects grant of Selection Grade also by  one year.  In the second para of your  Circular  No.  F.15  (10)  P.Force/Const./90/3439  dated  23.07.1992  it  has  been  clarified  that  penalty  of  censure shall have no effect for granting  of  selection  grade.   This  is  not  in  accordance with the rules/order.”

This  office  order/  letter  made  it  clear  that  if  an  employee has earned censure during his service, then his  grant of Selection Grade would be deferred by one year. But  this clarification was issued by the State after expiry of  almost more than 3 years from the date of issuance of the  first office order on 25.01.1992.

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10. However,  during  the  interregnum  period  between  25.01.1992 to 24.07.1995, certain employees were granted the  benefit  of  the  Selection  Grades,  despite  having  earned  censure.   But  after  issuance  of  the  subsequent   Office  Order/ letter dated 24.07.1995, Appellant-State started the  recovery  of  the  amounts  from  those  employees  who  were  granted  Selection  Grades  even  though  they  had  earned  censure.  This led to filing of several Writ Petitions in  the  High  Court,  the  1st being  Devi  Singh’s  case  (supra)  referred  hereinabove.   All  the  subsequent  line  of  cases  followed the same process.  11. To further clarify the Circular dated 23.07.1992 issued  by Director General of Police, Rajasthan, relevant portion,  reproduced  at  Para  8  hereinabove,  another  clarificatory  Circular  dated  24.08.1995  was  issued.  Thus,  vide  this  subsequent  Circular,  the  last  paragraph  containing  the  following words “as far as there is question of punishment  of censure, it shall not be considered in service record as  unsatisfactory in grant of selection grade and shall not be  impediment in grant of selection grade” mentioned in last  paragraphs of Circular No. V. 15(10)P.Force/Const./90/3439

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dated 23.07.1992 issued by this office, being contrary to  Rules, was withdrawn with immediate effect. This Circular  alongwith  the  office  order/letter  of  Finance  Department  (Rules Division) dated 24.07.1995, clearly stipulates that  for the purposes of grant of Selection Grade, in cases where  an employee has earned a censure, the censure should not be  treated  either  as  an  impediment  or  obstruction  for  consideration of his promotion but his case for such a grant  would be deferred by one year. 12. This earning of censure would be a bar for the employee  to be granted Selection Grade for one year only.   This is  how it should have been interpreted, and the first office  Order dated 25.01.1992 was to be understood.  However, with  regard to issuance of Office Orders from time to time and  clarificatory  Circular  issued  by  the  State,  the  things  became  much  more  complicated  and  confusing,  leading  to  filing of many Writ Petitions and passing of several orders  by Single Benches and Division Benches of the High Court.  We are thus called upon to set the controversy at rest. 13. In the light of the aforesaid, we have heard Dr. Manish  Singhvi, learned AAG and Mr. V.N. Raghupathy, Advocates for

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the Appellants and Mr. Puneet Jain, Mr. H.D. Thanvi, Dr.  Monika Gusain and Mr. Rishabh Sancheti, Advocates for the  Respondents at length and have also perused the records. 14. As mentioned hereinabove, the first judgment that came  for the benefit of the Respondent-employee was rendered on  12.12.2003, i.e., Devi Singh's case (supra). However, in the  said case, what has been decided was that an employee  who  has already been granted the benefit of Selection Grade,  such benefits could not be taken back by the Appellant- State, without issuance of a Show Cause Notice to him in  this regard.  Thus, primarily and basically, it was decided  in  favour  of  Devi  Singh  on  the  ground  of  violation  of  Principles  of  Natural  Justice.  However,  the  cases  filed  subsequently  either  before  the  Single  Bench  or  Division  Bench were not same, but on account of casual and general  approach  of  learned  counsel  appearing  on  behalf  of  the  parties who argued and showed that the matters were squarely  covered by Devi Singh's case and hence prayed that these  matters were to be  disposed of accordingly, the courts in  their wisdom proceeded to do so. It is relevant to further  mention that the said case of Devi Singh was also followed

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in  the  matter  of  Bheem  Singh  Versus  State  of  Rajasthan  (SBCWP No.3284/2005) decided on 17.01.2007. 15. There is no doubt that an employee, who has completed 9  years of service, would be entitled for the grant of first  Selection Grade and would further be entitled for the grant  of second Selection Grade after the completion of 18 years  of service and third Selection Grade would be granted to him  after  completion  of  27  years  of  service,  provided  that  during the interregnum period, he has not earned promotion  as may be available in his existing cadre  and has also not  earned censure in the past years.  This appears to be the  main theme and the purpose for which the first office order  was issued. 16. Clause 7 further makes it clear that only those/such  employees would be entitled to be granted Selection Grade  whose service record has been satisfactory.  This implicitly  shows that the person who has an untainted, unblemished,  clean and unpolluted record in service would be treated on a  higher  pedestal  than  those  who  have  either  tainted,  blemished,  unclean  or  polluted  record.    This  obviously  appears to be a reasonable classification and is under the

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ambit  and  touchstone  of  Article  14  of  the  Constitution.  There is neither any ambiguity nor any doubt in the same.  17. However, with an intention to clarify the controversy,  a subsequent office order/letter dated 24.07.1995 was sent  by Finance Department (Rules Division) to Director General  of Police, Rajasthan wherein it was provided that the record  of service which made an employee eligible for promotion on  the  basis  of  seniority  was  also  to  be  considered  to  be  satisfactory for the purpose of granting 'Selection Grade'.  It further laid down that if an employee has earned censure,  then his case for grant of Selection Grade would be deferred  by one year.  In other words, he would be entitled to get it  but after 1 year, i.e. to say on completion of 10 years of  service  as  compared  to  others,  who  would  get  it  on  completion of 9 years of service. 18. It has not been disputed before us that censure is a  minor penalty and has a minimum penalty as prescribed under  the Rules of Rajasthan.  Thus, it cannot be said that an  employee  who  has  earned  censure  would  automatically  be  entitled for promotion or respective Selection Grade after  the completion of 9, 18 or 27 years of service.

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19. However, we need to clarify that during the interregnum  period between the first Office Order, issued on 25.01.1992  and the subsequent clarificatory office order/ letter dated  24.07.1995, some of the employees were granted the benefit  of Selection Grade.  The Appellant – State would not be  entitled  to  claim  refund  from  such  employees  who  have  already been granted benefit in this period.  The subsequent  office Order/ letter further makes it clear that all those  employees who have earned censure in service shall also be  entitled for the selection grade but the grant of Selection  Grade to them would be deferred by one year. This appears to  be an absolutely reasonable and perfect classification as  otherwise every employee who has a clean image and another  employee, who has earned censure would be treated at par.  This is not permissible in the service jurisprudence and is  also violative of Article 14 of the Constitution. 20. It is settled principle of law that “like should be  treated alike”.  This is the mandate and command of Article  14 of the Constitution, which we are required to follow.  In  any case, those who have earned censure cannot be treated at  par with those who have had a clean service record.  As

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mentioned hereinabove, an employee with blemished, polluted,  tainted, unclean service record cannot be equated with other  employee  who  has  enjoyed  clean,  unblemished,  unpolluted,  untainted  and  impeccable  service  record.  Such  differentiation would not be violative of Article 14 while  dealing with the principles of equality.   21. Since the appeals are to be decided on the touch-stone  of Article 14 of the Constitution, in short we would like to  deal with it.  This Article has two essential ingredients.   

(i) Equality before Law  (ii) Equal protection of Law The  forefathers  of  our  Constitution  in  their  wisdom  

incorporated the provision of Equality before Law to attain  justice:  social,  economic  and  political.   While  Equal  protection of Law was incorporated so that amongst equals,  the law could be equally administered and similarly placed  persons could be placed in a similar manner.  But this has a  caveat.  State still has the power to differentiate amongst  different  classes  of  people.   That  is  to  say,  it  can  positively  discriminate  on  the  basis  of  reasonable  classification and distinction but this must be based upon

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an intelligible differentia, which inherently separates such  persons from the others. 22. In the case in hand, it is a question of grant of  Selection Grade. A Selection Grade has higher pay but in the  same post. A promotion post is a higher post with higher  pay.  A Selection Grade is intended to ensure that capable  employees who may not be able to get a chance of promotion  on account of limited outlets of promotion, should at least  be placed in the Selection Grade to prevent stagnation at  the maximum of the scale.  Selection Grade was created to  remove stagnation in service and consequently leading to  greater efficiency.  State has permitted grant of Selection  Grade to those who had good service record but for those who  had earned censure, the same has been deferred by one year.  Thus, according to us, it would clearly fall in the category  of  reasonable  classification  which  is  permissible  in  accordance with the mandate of the Constitution and also on  account of various judgments pronounced by this Court on  this topic from time to time. 23. Thus, in our opinion, there is a basic and fundamental  difference  between  the  two  categories  of  the  employees.

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Appellant-State  was  fully  justified  in  issuing  the  subsequent Office Order/ letter dated 24.07.1995, putting  all controversies at rest.  We do not find that any case of  discrimination has been made out against the Respondents/  Employees.  Subsequent Office Order/ letter cannot be said  to  be  illegal,  arbitrary,  unconstitutional  or  without  authority of law.  We find merit in the arguments advanced  by Dr. Manish Singhvi, Advocate for the Appellants and thus,  have no hesitation in allowing these Appeals.  It is also  pertinent to mention here that Respondents/Employees had not  challenged  the  subsequent  Office  Order/  letter  dated  24.07.1995, as being illegal, unconstitutional, arbitrary or  without jurisdiction.  As long as this Office Order/ letter  holds good, it is to be implemented in the same manner and  spirit in which it was issued. 24. In the light of the foregoing discussion, we are of the  considered opinion that the impugned orders passed by the  learned Judges of the Division Benches cannot be sustained  in law.  Hence, the same are hereby set aside and quashed.  However,  looking  into  the  controversies  which  have  been

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there in the State of Rajasthan since 1992, we deem it fit  and proper to pass the following orders:

(i)   The  Appellant-State  would  not  be  entitled  to  recover financial benefits already extended to  the  employees,  pursuant  to  the  first  office  order issued by Appellant on 25.01.1992.

(ii)  The  Appellant  would  not  also  be  entitled  to  recover any amount which might have been paid to  the employees even after issuance of the second  clarificatory  office  Order/  letter  dated  24.07.1995 as according to us, recovery of such  amount  would  cause  great  hardships  to  the  employees.

(iii)The employees who have earned censure in the past  years  for  their  service  record  will  not  be  entitled  to  be  granted  ‘Selection  Grade’  alongwith those who have a clean and unblemished  record.  They would be granted ‘Selection Grade’  only one year thereafter.

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(iv) Any employee who has been promoted before the  said period would not be entitled for the grant  of ‘Selection Grade’.

25. With the aforesaid direction, this and the connected  appeals  are  allowed.  Impugned  orders  as  mentioned  hereinabove are set aside.  Parties to bear their respective  costs.

.........................J. [DALVEER BHANDARI]

.........................J. [DEEPAK VERMA]

New Delhi September 30, 2011