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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.1757 of2020  

(arising out of SLP (C) No.32812 of 2018)  

STATE OF UTTAR PRADESH & ORS.        ...APPELLANT(S)   

VERSUS  

VIJAY SHANKAR DUBEY       ...RESPONDENT(S)   

J U D G M E N T  

ASHOK BHUSHAN, J.  

This is an appeal filed by the State of Uttar  

Pradesh and others challenging the judgment of Division  

Bench of the Allahabad High Court, Lucknow Bench dated  

01.11.2017 by which writ petition filed by the  

respondent seeking the benefit of higher pay scale with  

effect from 01.01.1996 has been allowed.  

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,

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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 also.   

3. 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

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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  

01.04.2001.   

4. 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

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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 respondent’s 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.  

5. We have heard Shri V. Shekhar, learned senior  

counsel appearing for the appellants and Shri P.N.  

Misra, learned senior counsel appearing for the  

respondent.   

6. Shri V. Shekhar, learned senior counsel for the  

appellants contends that the State Government after  

considering the recommendations of the Committee  

decided to amend the pay scales of various posts in the  

Prosecution Department of the State of U.P. with effect

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from 01.04.2001 which decision was consequent to the  

recommendation made by the Committee. Shri Shekhar  

submits that the date 01.04.2001 was fixed for amending  

the pay scales following the analogy in the Centre with  

regard to CBI organisation. The analogy of CBI  

Organisation was adopted for the first time for making  

pay scales of different posts in the Prosecution Branch  

of the State according to the pay scales in the CBI.  

Hence, date for implementation of said benefit was  

fixed as 01.04.2001. He submits that the Government  

order dated 02.02.2007 does not indicate that there was  

any error in the pay scale which was granted to the  

respondent on the basis of Fifth Pay Commission Report.  

He submits that there was a rational basis in fixing  

the date 01.04.2001 which cannot be validly challenged  

by the respondent. The High Court relied on the earlier  

two judgments of the High Court in the case of State  

of U.P. and others vs. Anand Kumar Mishra and others  

which was a case of the employees of U.P. Police Radio  

Department. Another judgment relied by the High Court  

in Ghanshayam Singh’s case was also a case relating not  

to the Prosecution Wing of the State. The two judgments

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relied by the High Court were in different set of facts  

and for different posts which cannot be said to cover  

the case of the respondent and the High Court erred in  

holding that the case of the respondent was covered by  

the aforesaid judgments.  

7. It was further submitted that another Division  

Bench vide its judgment dated 08.05.2018 in Writ Appeal  

No.20754 of 2013 (Sudhir Kumar Gupta vs. State of U.P.  

and others)where the petitioner retired from post of  

Joint Director(Prosecution) on 30.11.1999 and claimed  

the benefit of Government order dated 02.02.2007 with  

effect from 01.01.1996 dismissed the Writ Appeal in  

which judgment it was correctly held that the benefit  

cannot be extended to Joint Directors (Prosecution) who  

retired on 01.11.1999.   

8. Shri P.N. Misra, learned senior counsel appearing  

for the respondent refuting the submission of learned  

senior counsel for the appellants contends that two  

Division Bench judgments of the High Court relied in  

the impugned judgment were fully applicable. It is  

submitted that no appeal was filed against the judgment

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in Ghanshayam Singh’s case whereas SLP(C)No.27765 of  

2009 was filed against the judgment of the High Court  

dated 06.08.2009 in Special Appeal No.870 of 2009 which  

SLP was dismissed on 06.11.2009.   

9. Shri Misra submits that when the Fifth Pay  

Commission recommendations were implemented from  

01.01.1996, the pay scale of respondent was not  

properly fixed and that is why the Committee for  

anomalies came into existence which recommended the  

revision and amendment of pay scale into Rs.14300 to  

18500 which ought to have  been implemented with effect  

from 01.01.1996.  

10. We have considered the submissions of the learned  

counsel for the parties and perused the records.  

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

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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  

Prosecution. The relevant portion of the Government  

order dated 02.02.2007 is as follows:  

“From,  

 (illegible)  

 Under Secretary U.P. Government,  

To,  

 The Director General Prosecution,  

 Directorate of Prosecution U.P.,  

 Lucknow.  

Letter No.246/VI-P-9-07-31(49)/2000 dated  

02.02.2007.  

Sub: Regarding amendment in the Pay Scale  

of the various posts existing in the   

Prosecution Department in the State  

of Uttar Pradesh.  

This is with reference to the captioned  

matter. I have been directed to say that on  

the basis of the recommendations of the Pay  

Committee 1997-99 constituted for revision of  

pay scales etc. of the Government Personnels  

employed in the various Departments of the  

State Government of Uttar Pradesh and after  

taking into consideration such  

recommendations, the Committee headed by the  

Chief Secretary was constituted for taking  

decision in cases of incidents of anomalies  

in the pay scales etc. On the basis of the  

recommendations of the said Chief Secretary  

Committee. His Excellency the Hon’ble  

Governor of Uttar Pradesh is pleased to

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sanction a revised Higher Pay Scale, for the  

various posts, in the Prosecution Department  

as referred in Column-2 of the chart annexed  

with this Government Order, in place of the  

General Revised Pay Scales applicable with  

effect from 01.01.1996, as shown in column-3  

of the said chart, to be implemented with  

effect from 01.04.2001.  

……  ……  ……  ……  

……  ……  ……  ……”  

12. The Government order dated 02.02.2007 had  

enclosure in tabular form having columns- Designation,  

General Revised Pay Scale with effect from 01.01.1996,  

Amended Pay Scale with effect from 01.04.2001 and  

Recommendation. It is useful to extract the enclosure  

to the Government order dated 02.02.2007 which is to  

the following effect:  

Sl.  

No.  

Designation General  

Revised  

Pay Scale  

with  

effect  

from  

01.01.1996  

Amended  

Pay Scale  

with  

effect  

from  

01.04.2001  

Recommendation  

1 2 3 4 5  

1. Prosecution  

Officer  

7450-

11500  

8000-275-

13500  

--  

2. Senior  

Prosecution  

Officers  

(Ordinary  

Scale)  

8000-

13500  

10000-

325-15200  

--  

3. Senior  

Prosecution  

10000-

15200  

12000-

375-16500  

The  

designation of

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Officer(Senior  

Scale)/Deputy  

Director  

Prosecution  

Senior  

Prosecution  

Officer(Senior  

Pay  

Scale)/Deputy  

Director shall  

be re-

designated as  

Joint Director  

Prosecution.  

4. Joint Director  

(Law)/Joint  

Director  

(Prosecution)  

12000-

16500  

14300-

400-18400  

The  

designation of  

Joint Director  

(Prosecution)  

and Joint  

Director (Law)  

shall be re-

designated as  

Additional  

Director  

(Prosecution)  

and Additional  

Director (Law)  

Sd/-  

Manju Chandra  

Special Secretary”  

13. 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.4.  

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14. Learned counsel for the appellants, during the  

course of submissions, has submitted that date,  

01.04.2001 was recommended by the Committee of the  

Chief Secretary due to accepting the analogy in the CBI  

organisation of the Center. Learned counsel for the  

appellants referring to the recommendation of the  

Committee of the Chief Secretary contented that the  

higher pay scale sanctioned to the Joint Director in  

the Prosecution Department was on the basis of analogy  

of CBI organisation of the Center. In the written  

submission which has been submitted by the learned  

counsel for the appellants recommendation of Chief  

Secretary’s Committee on consideration of amendment in  

the pay scale of the post of the Prosecution Branch has  

been placed for perusal which indicates that the  

recommendations of the Committee were:  

“………In view of the above situations, the  

Committee recommends that the pay scales of  

the various categories of the prosecution  

cadre should be upgraded as per the above  

general decision on the analogy of the  

existing posts in the CBI organisation of the  

Center from 01.04.2001 as follows………“  

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15. The recommendations of the Committee of Chief  

Secretary were accepted and consequent Government order  

was issued on 02.02.2007 accordingly.   

16. 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

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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 case.   

17. Shri Misra has also placed reliance on the judgment  

of this Court in Purshottam Lal and others vs. Union of  

India and another, (1973) 1 SCC 651. In the above case,  

the petitioners were employed with the Forest Research  

Institute and Colleges, Dehra Dun which was a  

department of the Government of India, Ministry of Food  

and Agriculture. The Second Pay Commission submitted  

its report and made recommendations with regard to  

Scientific Staff. The revision of the pay scale of the  

Scientific Staff in the Forest Research Institute was

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with effect from 21.06.1962 whereas recommendation of  

Second Pay Commission was accepted by the Government  

with effect from July 1, 1959 with regard to similar  

sister Institutions. The said Scientific Staff of  

Forest Research Institute protested and submitted  

representation and thereafter filed the writ petition  

under Article 32 in this Court. Before this Court  

arguments were raised on behalf of the Government that  

Second Pay Commission did not deal with the case of the  

petitioners and they were not entitled for the benefit  

with effect from July 1, 1959 which submission was not  

accepted. In paragraphs 14,15 and 17 this Court laid  

down following:  

“14. Mr Dhebar on behalf of the Government  

maintains the same position and he says that  

the Pay Commission Report did not deal with  

the case of the petitioners. We are unable  

to accept this contention. The terms of  

reference are wide, and if any category of  

government servants was excluded material  

should have been placed before this Court.  

The Pay Commission has clearly stated that  

for the purposes of their enquiry they had  

taken all persons in the Civil Services of  

the Central Government or holding civil posts  

under that Government and paid out of the  

Consolidated Fund of India, to be Central  

Government employees. It is not denied by Mr  

Dhebar that the petitioners are paid out of  

the Consolidated Fund of India.

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15. Mr Dhebar contends that it was for the  

Government to accept the recommendations of  

the Pay Commission and while doing so to  

determine which categories of employees  

should be taken to have been included in the  

terms of reference. We are unable to  

appreciate this point. Either the Government  

has made reference in respect of all  

government employees or it has not. But if  

it has made a reference in respect of all  

government employees and it accepts the  

recommendations it is bound to implement the  

recommendations in respect of all government  

employees. If it does not implement the  

report regarding some employees only it  

commits a breach of Articles 14 and 16 of the  

Constitution. This is what the Government has  

done as far as these petitioners are  

concerned.  

17. In the result the petition is allowed  

and it is directed that the revised pay-

scales of the petitioners will have effect  

from July 1, 1959, in accordance with the  

recommendations of the Pay Commission. We  

further direct that the petitioners should  

be paid the amount payable to them as a  

consequence of the revision of the pay-scales  

with effect from July 1959. The petitioners  

will have the costs of this petition.”  

18. 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

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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 case.   

19. 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

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entitled for the benefit of amendment in the pay scale  

he having already retired on 31.01.1997.   

20. In the foregoing discussions, we are of the view  

that the judgment of the High Court is unsustainable  

and is hereby set aside. The appeal is allowed.   

............................J.  

                             ( ASHOK BHUSHAN )  

............................J.  

                          ( MOHAN M.SHANTANAGOUDAR )  

New Delhi,  

March 19, 2020.