STATE OF PUNJAB AND ANR.versusKULDIP SINGH AND ANR.

                         STATE OF PUNJAB AND ANR.                                    A
                                     v.
                           KULDIP SINGH AND ANR.

                                   JULY 8, 2002

                [D.P. MOHAPATRA AND BRIJESH KUMAR, JJ.]                              B


         Service Law :

          Sub-Divisional Engineer-Selection Grade Pay-<Jrant of-From the
    date when junior officers in the cadre given higher pay or from the date when    C
    an employee completes I 5 years of service in the cadre-Held, as per the
    Government Circulars an employee has to complete 15 years of service to
    claim Selection Grade Pay-Government Circulars-Interpretation of

          Officers junior to respondents-Sub-Divisional Engineers were               D
    granted higher ·pay. Respondents filed writ petition praying for Writ of
    Mandamus directing the State Government to grant selection grade pay
    scale with effect from_ the date when officers juniors to them were granted
    higher pay. Appellants contended that the respondents could not be given
    the selection grade pay before they completed 15 years of service which
    is the eligibility condition for such benefit under the Government               E
    Circulars. High Court allowed the petition.

           In appeal before this Court appellants contended that the judgment
    passed by the High Court is unsustainable and is liable to be set aside as
    it is contrary to the circulars prescribing the eligibility criteria for the
    purpose of grant of selection grade pay.                                         F

I
         Allowing the appeal, the Court

          HELD: 1.1. As per the relevant Go_:ernment Circulars an employee
    in order to be eligible to get the selection grade pay has to complete 15
    years of service and he is not to be given such scale of pay before he fulfils   G
    the said eligibility criteria. It follows as a consequence that no employee
    can claim selection grade pay before completing 15 years of service on
    any ground including the ground that an employee junior to him has
    already been given such grade of pay. The position is further clarified in
    a circular that in the event of a junior employee getting the selection grade    H
                                         39
    40                         SUPREME COURT REPORTS [2002) SUPP. l S.C.R.

A   pay earlier the post in the said grade may be kept vacant for the senior
    employee who may be given the benefit of the pay prescribed for the
    selection grade only after he completes 15 years of service. The interest
    of the senior employee in such cases is safeguarded by making the
    provision in the inter se seniority between the two employees which will
B   remain undist.urb~d despite the junior employee getting the selection grnde
    pay earlier than the senior employee. (43-G, H; 44-A, BJ

          1.2. !he claim of an employee for a selection grade post was to be
    dealt with only in accordance with the provisions in the circular. The
    reasons state~ -in the judgment of the High Court that the respondents
C   were entitled to the higher grade pay with effect from the date when the
    employees _junior to them were granted such pay is .extraneous and
    irrelevant for the purpose. High Court overlooked the provisions in the
    circulars while directing the appellants to grant selection grade pay to the
    respondents before they completed 15 years of service and thus was clearly
    in error in' i~uing a Writ of Mandamus apparently against the
D   Government Circulars which were binding on the parties. [44-C, D)

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3643 of
    2002.

         From the Judgment and Order dated 25.3.1998 of the Punjab and
E   Haryana High Court in CWP 15263/97.

            P.P. Rao, H.S. Munjral and Rajeev Sharma for the Appellants.

        Jitendra Sharma, A.S. Chahil, Ms. S. Janani, P.N. Jha and R.D.
    Upadhyay (N.P.) for the Respondent.
F
            The Judgment of the Court was delivered by

            D.P. MOHAPA TRA, J. L~ave is granted.

            This appeal filed by the State of Punjab, through the Secretary in the
G P.W.D. (B & R) Mini Secretariat and the Chief Engineer, P.W.D. (B & R)
    Branch, is directed against the judgment/order dated 25.3.1998 of the High
    Court of Punjab and Haryana allowing Civil Writ Petition No.15263 of 1997
    filed by the respondents herein. The controversy raised in the case relates to
    the date from which the respondents are entitled to get Selection Grade Pay
    as Sub Divisional Engineers in the Public Works Department of the State;
H   whether it is with effect from 1.1.1978 when Shri Devender Singh Sekhon,
            STATE v. KULDIP SINGH [D.P. MOHAPATRA, J.]
                                                                         . 41
a Sub Divisional Engineer junior to them got the Selection Grade Pay or             A
from the date when the respo-ndents completed 15 years of service in the
cadre. in the judgment under challenge the High Court took the view that
since Shri A.S. Mann and Shri Devender Singh Sekhon who are juniors to
the respondents were granted Selection Grade Pay from lst January, 1978 the
respondents being senior to them and if they are within the 20% posts of the        B
cadre of Sub Divisional Engineers then there was no reason why they should
not be granted Selection Grade Pay with effect from that date. Accordingly,
the High Court allowed the writ petition and directed the appellants that ifthe
 respondents fulfilled the aforementioned conditions then they should be given
the Selection Grade Pay with effect from the date their juniors were given
such grade and arrears should be released as was done in the case of Shri           C
 Devender Singh Sekhon. From the discussions in the judgment/order it appears
that the High Court based its judgment on the principle that when a junior
 in the cadre is given a higher scale of pay a person senior to him could not
draw lesser pay unless a higher scale of pay was made personal to the junior
officer by order.
                                                                                    D
       The factual matrix of the case, so far as relevant for the purpose of this
proceedings may be stated thus: Shri Kuldip Singh, respondent no. I herein,
and Shri Devender Singh Sekhon were directly appointed as Sub Divisional
Engineers in the Public Works Department of the State of Punjab. While Shri
Kuldip Singh joined the post on 11th November, 1970 and Shri Teekam                 E
Chander Bali on 17th November, 1970; Shri Devender Singh Sekhon joined
the post on 18th November, 1970. Another officer Shri A.S. Mann, who had
been appointed as Junior Engineer on 28th April, 1956 was promoted as Sub
Divisional Engineer with effect from 22nd December, 1971. Shri A.S. Mann
filed a suit claiming Selection Grade Pay with effect from 1.1.1978 on the
ground that persons junior to him had already been granted such grade. The          F
suit was decreed on 24th September, 1985. The appeal preferred by the State
was dismissed. The Second Appeal preferred by the State was also dismissed
on 22nd September, 1986. Thereafter the Selection Grade Pay was released
in favour of Shri A.S. Mann on 21st April, 1989.

                                                                                    G
      Shri Devender Singh Sekhon who was senior to Shri A.S. Mann as Sub
Divisional Engineer filed the writ petition-C.W.P. No.14777/95 claiming the
Selection Grade Pay. The writ petition was allowed by the High Court on
12th September, 1996 on the ground that Shri A.S. Mann who was junior to
the writ petitioner having been given the higher scale of pay the writ petitioner
was entitled to get the Selection Grade Pay. The Special Leave Petition filed       H
    42                         SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A   by the State, SLP (C) No.11409of1997 was dismissed in limini on 10th July,
    1997.

        Thereafter the respondents herein filed the writ petition, C. W .P .No.15263
  of 1997 praying for writ of Mandamus directing the State Government to
  grant the Selection Grade Pay scale with effect from 1.1.1978 when officers
B junior to them like Shri A.S.Mann and Shri Devender Singh Sekhon were
  granted the higher pay. The writ petition was contested by the appellants
  herein mainly on the ground that the petitioners could not be given the
  Selection Grade Pay before they completed 15 years of service which is the
  prescribed eligibility condition for such benefit under the Government
C Circulars. The Government Circulars relied upon by the appellants were No.8/
  30/78-FR(5)1845, dated 3.3.1980 and Circular No.7/93/85-4FPI/5956 dated
   18th May, 1987. Regarding the grant of benefit of Selection Grade pay to
  Shri A.S.Mann the case of the appellants herein was that they had completed
   15 years of service in the grade of junior engineer and Sub Divisional Engineer
  by 1.1.1978 and therefore, there was no legal impediment in granting them
D the Selection Grade Pay. Regarding Shri Devender Singh Sekhon the appellants
  have accepted the position that grant of Selection Grade Pay to him before
  completion of 15 years was not in accordance with the Government Circulars
  and therefore, erroneous. The appellants felt bound to release the Selection
  Grade Pay in his favour in view of the judgment of High Comt and the order
E passed by this Court dismissing the Special Leave Petition filed by the State.
           Shri P.P. Rao, learned senior counsel appearing for the appellants
    contended that the judgment/order passed by the High Court is unsustainable
    inasmuch as it is contrary to the circulars prescribing the eligibility criteria
    for the purpose of grant of selection grade pay and the judgment/order is
p   liable to be set aside. Shri Jitendra Sharma, learned senior counsel appearing
    for the respondents supported the judgment/order of the High Court on the
    reasons stated therein.

         On the facts and the case of the parties as discussed above the question
    formulated earlier arises for determination.
G
          The answer to the question depends on the interpretation of two
    Government Circulars issued on 3 .3 .1980 and 18.5 .1987 respectively. The
    said circulars deal with the criteria for grant of Selection Grade Pay in the
    cadre of various services and implementation of recommendations of the
    Second Punjab Pay Commission. It is provided in the circulars that Selection
H   Grade Pay will be provided in cases where the number of higher posts (of
                  STATE v. KULDIP SINGH [D.P. MOHAPATRA, J.]                          43

      levels taken together) to which employees in a particular case can seek               A
      promotion, is less than half the strength of that cadre of service and further
      that the number of Selection Grade posts at each level should not exceed
      20% of the strength of the basic scale for which the Selection Grade posts are
      to be sanctioned. For the purpose of calculating the number of Selection
      Grade posts, all posts including temporary posts, which have been in existence        B
      for three years are to be taken into account. In para (iii) of the Circular dated
      3.3.1980 it is specifically stated that Selection grade will not be admissible
      to an officer unless he has completed 15 years service. The service should
      either be in the basic scale where appointment to the basic scale is from the
      point of fresh entry into service or as the sum total of the employee's service
      in the basic scale and in the one scale next below. In the circular issued on         C
       18th May, 1987 one of the subjects dealt with was the grant of Selection
       Grade to a junior employee who became eligible earlier than a senior employee.
       It was reiterated in the said circular that the Selection Grade will not be
      admissible to an officer unless he has completed 15 years of service and that
       such service should either be in the basic scale where appointment to the
      basic scale is from the point of fresh entry into service or as the sum total         D
      of the employee's service in the basic scale and in the one scale next below.
      Further clarifying the position in a case where a junior employee in the event
      of becoming eligible for placement in the Selection Grade by following
      prescribed criteria earlier than a senior employee whether the junior employee
      can be allowed the Selection Grade before the senior employee, it was stated          E
      that a junior employee becoming eligible for placement in the Selection
      Grade earlier than a senior employee can be allowed the Selection Grade
      earlier than a senior employee by keeping a post (in the Selection Grade)
      reserved for the senior employee and appointing the senior employee against
      the post when he became eligible for selection grade pay. It was further
      clarified in the circular that allowing selection grade to a junior employee          F
...   will not adversely affect the seniority of the senior employee. It was specifically
      stated in the circular that other conditions regarding placement in the selection
       grade will continue to be operative as hereto-fore.

            From the contents of the two circulars it is manifest that an employee          G
      in order to be eligible to get the selection grade pay has to complete 15 years
      of service and he rs not to be given such scale of pay before he fulfils the
      said eligibility criteria. It follows as a consequence that no employee can
      claim selection grade pay before completing 15 years of service on any
      ground including the ground that an employee junior to him has already been
      given such grade of pay. The position is further clarified in the circular            H
    44                        SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A   issued in May, 1987 wherein it is provided that in the event of a junior
    employee getting the selection grade pay earlier the post in the said grade
    may be kept vacant for the senior employee who may be given the benefit
    of the pay prescribed for the selection grade pay only after he completes 15
    years of service. The interest of the senior employee in such cases is
    safeguarded by making the provision in the inter se seniority between the
B   two employees will remain undisturbed despite the junior employee getting
    the selection grade pay earlier than the senior employee.

          In view of the position communicated in the circulars the claim of an
    employee for a selection grade post was to be dealt with only in accordance
C   with the provisions in the circular. The reasons stated in the judgment/order
    of the High Court that the respondents were entitled to the higher grade pay
    with effect from 1.1.1978 as employees junior to them were granted such pay
    by that date is extraneous and irrelevant for the purpose. The High Court
    overlooked the provisions in the circulars while directing the appellants herein
    to grant selection grade pay to the respondents before they completed 15
D   years of service. The High Court was clearly in error in issuing a writ of
    mandamus apparently against the Government Circulars which was binding
    on the parties. The judgment/order passed by the High Court is, therefore,
    unsustainable. Accordingly, the appeal is allowed, the judgment/order is set
    aside and the writ petition filed by the respondents is dismissed. It is made
E   clear that if the respondents have already drawn any amount in pursuance of
    the judgment/order of the High Court, the same will not be recovered from
    them. No costs.

    N.J.                                                          Appeal allowed.