# Jai Prakash Sharma & Ors v. State Of U.P. & Anr

- **Citation:** (2025) 12 ILRA 197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-02
- **Case number:** Writ A No. 4460 of 2013
- **Bench:** Rajnish Kumar, Jaspreet Singh, Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-sharma-ors-v-state-of-u-p-anr-52821
- **Pages:** 15

## Text

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12 All. Jai Prakash Sharma & Ors. Vs. State of U.P. & Anr.
197
a course would enable the State to fragment
uniform entitlements on the basis of
arbitrary or accidental circumstances, a
practice repeatedly disapproved by the
Supreme Court.

23. The learned single-judge was
therefore, correct in holding that the
respondents and other similarly situated
candidates, who were selected through the
same recruitment process of October 2018,
could not be deprived of pay protection and
service benefits extended to the first batch
of candidates, sent for the training, earlier.
Upon
independent
application
of
constitutional
standards,
we
find
no
infirmity in the conclusion recorded by
learned single-judge.

24. For the reasons recorded herein
above, we are of the view that the
differentiation made by the appellants State
among candidates placed in the same select
list, based solely on the dates on which they
were send for training, constitutes an
impermissible classification in violation of
Article 14 of the Constitution of India.

25. The benefit of pay protection and
the corresponding pay structure, extended
by the State to the first batch, cannot be
withheld from candidates of the second,
third, and fourth batches who were part of
the same recruitment process and placed in
the same selection list.

26. We, therefore, find no ground to
interfere with the judgment of the learned
single-judge. The batch of special appeals
accordingly fails and is dismissed. The
direction issued by the learned single-judge
to extend pay protection and consequential
benefits to the respondents and all other
similarly placed candidates is affirmed. The
State shall ensure compliance within twelve
weeks from the date of this order. No order
as to costs.

27. Pending applications, if any,
stands disposed of.
----------
(2025) 12 ILRA 197
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE JASPREET SINGH, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 4460 of 2013
&
Connected With Other Cases

Jai Prakash Sharma & Ors. ...Petitioners
Versus
State Of U.P. & Anr. ...Respondents

Issue for Consideration
(1) Entitlement of Statistical Assistant to get
IInd promotional pay scale in the light of G.O.
dated 02.12.2000, 03.09.2001 and 20.08.2004.
(2) Binding effect of Judgment and order of the
Supreme Court dismissing the SLP against the
decision of R.P. Shukla's case.
(3) Correctness of R. P. Shukla's case entitling
the Statistical Assistant to get IInd promotional
pay scale.

Headnotes
(A) Service law - Post of Statistical
Assistant - IInd promotional pay scale -
Entitlement - Petitioner sought benefits of
R.P.
Shukla's
case,
in
which
the
entitlement of second promotional pay
scale on the post of Statistical Assistant
had been decided - Matter was referred to
larger Bench looking into two conflicting
views expressed by two different Division
Bench in R. P. Shukla's case and Ashok
Tomar's case - Effect of G.O. dated
02.12.2000, 03.09.2001 and 20.08.2004
as well as the applicability of Rules of
1994 felt into consideration. (E-1)
198 INDIAN LAW REPORTS ALLAHABAD SERIES
Held : Where the system of promotion is on the
basis of seniority-cum-fitness as well as merit/
higher qualification/ merit, those posts will not
be
considered
as
promotional
posts
for
admissibility of time scale pay scale. In such
cases, subject to fulfillment of other conditions,
the next higher pay scale as explained in Para
4(1) of Government Order dated December 2,
2000, would be payable - In view of above and
the aforesaid applicability of the Rules of the
U.P. Town and Country Planning Service Rules,
1987, the criteria for promotion to the next post
of the petitioners is merit, therefore, it will not
qualify as next promotional post for the purpose
of grant of time scale/second promotional pay
scale in view of Paragraph No. 6 of the
Government Order dated 20.08.2004. [Para 25
and 29]
Held further : The order dated 10.04.2006 was
passed by a Division Bench of this Court in the
case of R.P. Shukla, in regard to a similarly
situated employee on the basis of Government
Order dated 02.12.2000 and the Government
Order dated 03.09.2001 but without considering
the Government Order dated 20.08.2004, by
means of which the Government Order dated
02.12.2000 was clarified and in-operation at the
time of passing of the aforesaid judgment
holding that the Government Orders issued
under Article 162 of the Constitution of India on
02.12.2000 and 03.09.2001 have full force of
law and they hold the field, whereas by that
time the Government Order dated 20.08.2004,
clarifying the said Government Orders had come
into force and was also holding the field -
Division Bench in the case of R.P. Shukla had
proceeded in deciding the case of the similarly
situated employee in that case on misreading of
the
Rule
and
without
considering
the
Government Order dated 20.08.2004, which had
come into force, therefore, the petitioners are
not entitled for any benefit of the said
judgment. [Para 31 and 32]
(B) Interpretation of Statute - Meaning of
word 'kept' - Binding effect of dismissal of
SLP by the Supreme Court - The Civil
Appeal filed against the decision of the
Division Bench passed in the R.P. Shukla's
case under Article 136 of the Constitution
was dismissed by Supreme Court vide
Judgment and order dated 13.07.2011 and
kept question of law open - How far,
dismissal of SLP against R.P. Shukla's
decision came in the way of deciding the
reference made to Larger Bench. (E-1)
Held : The dictionary meaning of 'kept' is 'to
retain in once possession or power' or 'to have
control' as per Merriam Webster Dictionary and
as per Oxford Dictionary, 'kept' means 'actively
to hold in possession'. Thus, the Hon'ble
Supreme Court kept the question of law
involved in Civil Appeal open, while dismissing
the petition under Article 136 of the Constitution
of India, which is a discretionary power of the
Hon'ble Supreme Court and in view of above,
we are of the view that the issue stands decided
by Division Bench of this Court in the case of
R.P. Shukla (Supra) and the question of law
kept open by the Hon'ble Supreme Court, may
be considered and decided by the Hon'ble
Supreme Court in an appropriate case and not
by the Court/Bench, who has decided the issue.
However, since the Civil Appeal has been
dismissed by the Hon'ble Supreme Court
without exercising discretionary power under
Article 136 of the Constitution of India,
therefore, other remedies may be available,
such as, Review or the decision as may be taken
by the Larger Bench in case of reference to
Larger Bench as per law laid down by the
Hon'ble Supreme Court. [Para 12]

Case Law Cited
Shree Chamundi Mopeds Ltd. vs. Church of
South India Trust Association CSI Cinod
Secretariat,
Madras,
1992
(3)
SCC
1;
Commissioner
of
Income
Tax
vs.
Itegra
Engineering India Ltd., 2013 SCC OnLine Guj
7389; Khoday Distilleries Limited (Now Known a
Khoday India Limited) and Others vs. Sri
Mahadeshwara Sahakara Sakkare Karkhane
Limited,
Kollegal
(Under
Liquidation)
Represented by the Liquidator, (2019) 4 SCC
376; Kunhayammed & Ors. vs. State Of Kerala
& Anr., (2000) S SCC 359; Union of India vs.
M.VS. Mohanan Nair, (2020) 5 SCC 421 -
referred to.

List of Acts
Constitution of India - Article 136 and 162; U.P.
Town and Country Planning Service Rules, 1987
- Rule 16; U.P. Government Servants (Criterion
for Recruitment by Promotion) Rules, 1994;
Government
Order
dated
02.12.2000,
Government Order dated
03.09.2001 and
Government Order 20.08.2004
12 All. Jai Prakash Sharma & Ors. Vs. State of U.P. & Anr.
199
List of Keywords
IInd
Promotional
pay
scale;
Entitlement;
Conflicting views; Reference; Kept the question
of law open; Discretionary power; Review; Nonobstacle clause; Appellate jurisdiction; Time
bound financial benefit; Recommendation of Pay
Commission; Personal promotional pay scale.

Case Arising From
Reference made to the Larger Bench looking
into two conflicting views expressed by two
different Division Bench in R. P. Shukla's case
and Ashok Tomar's case.

Appearances for Parties
Advs. for the Petitioners : Ram Pragat
Shukla, S. R. Shukla, Sudhir Chandra Srivastava
Advs. for the Respondents : Vimal Kumar
Srivastava, Additional Advocate General, Prafulla
Yadav, A.C.S.C., Pratul Kumar Srivastava, S. C.

(Delivered by Hon'ble Rajnish Kumar, J.)

(1) The following question has been
referred to be decided by the larger Bench:-

"Whether the petitioners are
entitled for the promotional pay scale or
for the next pay scale as per the Service
Rules applicable on them and Government
Order dated 2.12.2000 as clarified by the
Government Orders dated 3.9.2001 and
20.8.2004 or any other Government Orders
issued thereafter"

(2) The petitioner, Jai Prakash Sharma
and others, approached this Court by means
of Writ Petition No.99 (SS) of 2013; Jai
Prakash Sharma and Others Vs. State of
U.P.
and
Others,
claiming
second
promotional pay scale of Rs.8000-13500/-
on completion of 24 years of service on the
ground that the entitlement of second
promotional pay scale on the post of
Statistical Assistant had been decided by
the Court vide judgment and order dated
10.04.2006 passed in Special Appeal
No.1011/2005; R.P. Shukla Vs. State of
U.P. and another and the Special Leave
Petition preferred against the said judgment
before the Apex Court had been dismissed.
The Court, by means of the order dated
22.01.2013, disposed of the writ petition
with direction to the State of U.P. through
Principal Secretary, Housing & Urban
Planning, Lucknow to take appropriate
decision in accordance with law. Similar
order
was
passed
in
Writ
Petition
No.439(SS) of 2013; Narain Prasad Gupta
and Others Vs. State of U.P. and Another
on 30.01.2013 and another similar Writ
Petition No.896(SS) of 2013; Vijay Singh
Tomar Vs. State of U.P. and Another was
decided in aforesaid terms by means of
order dated 20.02.2013.

(3) In compliance of the aforesaid
orders, the representations of the petitioners
therein were decided by means of the
Office Memorandums dated 23.07.2013,
19.08.2013 and 16.08.2013 respectively in
reference to the orders passed in the
respective writ petitions. Jai Prakash
Sharma and Others challenged the orders
passed on the representations before this
Court in Writ Petition No.4460(SS) of
2013; Jai Prakash Sharma and Others Vs.
State of U.P. and Another, which was
partly allowed and a writ of certiorari was
issued quashing the order dated 23.07.2013
with a direction to consider the case of the
petitioners for grant of promotional pay
scale of Rs.8000-13500/- with effect from
the date the same became due to the
petitioners in terms of the Government
Order dated 02.12.2000 and considering the
Division Bench judgment of this Court in
the case of R.P. Shukla (Supra). Similarly
Narain Prasad Gupta and others challenged
the order passed on their representation in
Writ Petition No.5469 (SS) of 2013, which
was also allowed by means of the order
dated 28.08.2019 in identical terms as
200 INDIAN LAW REPORTS ALLAHABAD SERIES
passed in case of Jai Prakash Sharma and
Others (Supra). Vijay Singh Tomer also
challenged the order passed on his
representation in Writ Petition No.5483
(SS) of 2013; Vijay Singh Tomar Vs. State
of U.P. and Another, which was also
allowed by means of the order dated
28.08.2019 in identical terms as passed in
the case of Jai Prakash Sharma and Others
(Supra).

(4) The State of Uttar Pradesh
challenged the orders passed by the learned
Single Judge in intra-court appeals bearing
Special Appeal No.250 of 2020; State of
U.P. and Another Vs. Ashok Tomar and
Another, Special Appeal No.271 of 2020;
State of U.P. and Another vs. Narain
Prasad Gupta and Others and Special
Appeal No.273 of 2020; State of U.P. and
Another vs. Jai Prakash Sharma and
Others.

(5) The Division Bench in Special
Appeal No.250 of 2020; State of U.P. and
Anr. Vs. Ashok Tomar and Another
alongwith other connected appeals, after
considering the Government Order dated
02.12.2000, which was clarified by means
of Government Orders dated 03.09.2001
and 20.08.2004 and noticing Rule 16 of the
U.P. Town and Country Planning Service
Rules, 1987 held that the persons, who
have completed the requisite qualifying
service for the benefits claimed, would be
entitled for the next pay scale and not the
promotional pay scale of the post of
Statistical Officer. The relevant paragraph
is extracted here-in-below:-

"According to the said rule
recruitment by promotion in the case of
Statistical Officer shall be made on the
basis of merit. In view of this rule and also
the non-applicability of the Rule 1994 as
referred above on account of the post of
Statistical
Officer
falling
within
the
purview of U.P.S.C. as per the provisions
contained in Rule 5 (1) (11) of the
aforesaid rules, 1987, there is no doubt that
the criteria for promotion to the said post is
merit and therefore, it will not qualify as a
next promotional post for the purpose of
grant of time scale/promotional pay scale
in view of part no. 5 of G.O. dated
20.08.2004, as already referred. It being so
what would be available to the persons who
have completed the requisite qualifying
service for the aforesaid benefits would be
the next pay scale and not the promotional
pay scale of the post of Statistical Officer.
This aspect has not been considered by the
writ court."

(6) Thereafter, the Division Bench
considered as to whether and how far the
decision rendered in the case of R.P.
Shukla (Supra) in Special Appeal No.1011
of 2005 would apply to the case at hand
and observed as under:-

"Now
the
question
to
be
considered is as to whether and how far the
decision of a Division Bench rendered in
the case of R.P. Shukla Vs. State of U.P.
and others Special Appeal No. 1011 of
2005 will apply to the case at hand. In the
said case which also pertains to a
Statistical Officer of the same service, who
had claimed a similar benefit as claimed by
respondent(s)
herein
there
is
an
observation as pointed out by learned
counsel for opposite party to the effect -
"certain regular promotions are being
made in accordance with service rules as
per seniority-cum-merit". We have perused
the rules of 1987, which are referred in the
immediately preceding line wherein the
aforesaid observations have been made by
the Division Bench but we do not find any
12 All. Jai Prakash Sharma & Ors. Vs. State of U.P. & Anr.
201
such provision in the rules 1987. The
criteria for promotion is merit and not
seniority or seniority-cum-rejection of unfit
or seniority-cum-merit. The preparation of
eligibility
list
for
consideration
for
promotion under the U.P. Promotion by
Selection in consultation with Public
Service Commission (Procedure) Rules,
1970 is a different matter and said rules do
not lay down the criteria for promotion
which remains as merit. Therefore, we are
unable to persuade ourselves to take a view
contrary to the clear provision Rule 16 of
the Rules, 1987. Learned counsel for
opposite party also invited our attention to
another portion of the said judgment
wherein the stand of the opposite party
therein in the counter affidavit that ''such
promotion is based on the basis of merit (as
per provision of service rules) not on the
basis of seniority, so as per the time scale
of government order, he is not entitled for
the promotional scale as claimed by him
have been referred by the Division Bench
of this Court in R.P. Shukla's case'. After
referring to the said stand in the counter
affidavit, the Division Bench thereafter
proceeded to consider that other similarly
placed with the petitioner had been granted
the benefit as claimed by R.P. Shukla based
on paragraph 1 (2) and 1 (4) of the
Government Order dated 02.12.2000 and
in this context it is also observed that on
being questioned to clarify the situation
referred to above no details could be
furnished by the opposite party to justify
their action as to why it could not be made
available to the appellant while similarly
situated Statistical Officer got the benefit of
the Government order (supra). The Court
relied on Article 14 of the Constitution of
India to grant same benefit to R.P. Shukla
as had been granted to others. With
respect, Rule 16 of the Rules, 1987 very
clearly provides that the promotion to the
post of Statistical Officer shall be based on
merit. It nowhere says that it shall be based
on seniority-cum-merit or seniority-cumrejection of unfit. Therefore, so far as the
legal question is concerned, in the light of
the policy decision already referred in
above, whenever the next promotional post
is to be filled on the basis of criteria of
merit
then
while granting
the
time
scale/promotional pay scale the pay scale
of such promotional post shall not be
available as the next promotional pay
scale/time scale to the person who has
fulfilled
requisite
qualifying
service,
instead, it is the next pay scale, which
would be available. We also find from the
judgment of R.P. Shukla's case that
government
order
dated
20.08.2004
wherein this position has been clarified has
neither been referred nor considered. The
Government Order dated 20.08.2004 and
the clarification therein with respect to
point no. 6 has not been considered nor
referred in the said judgment. Now in this
context as we have been informed that the
judgment in R.P. Shukla's case was the
subject matter of challenge before the
Supreme Court and special leave petition,
after being converted into Civil Appeal,
was dismissed on 13.07.2011, therefore, we
have perused the said order. The order
dated 13.07.2011 passed by Supreme Court
of India reads as under:-

"We have heard learned counsel
for the appellants and the respondent in
person.

On the facts of the case and
without going into the merits, particularly,
the respondent is a retired person, we are
of the opinion that this is not a fit case to
exercise our discretion under Article 136 of
the Constitution of India. The appeal is
202 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed with no orders as to costs.
However, the question of law is kept open."

The Supreme Court even while
dismissing the civil appeal has kept the
question of law open for consideration
meaning thereby in subsequent cases this
question of law as to what is the policy of
the government and whether the pay scale
of the Statistical officer would be available
to the Statistical Assistants as a matter of
right in the light of the policy dated
02.12.2000 and the clarifications issued
thereafter
or
not,
is
open
for
reconsideration, which we have done as
aforesaid and on such consideration we
find that legal position in this regard is as
has been clarified/declared here-in-above,
therefore, no benefit accrues to the
respondent(s) merely because the the
special leave petition of the State of U.P.
filed against the judgment in R.P. Shukla's
case was dismissed after being converted
into civil appeal as the question of law in
this regard was left open for our
consideration."

(7) It was further observed that 22
similarly placed persons are said to have
been granted the next promotional pay
scale of the Statistical Officer as time
scale/promotional pay scale under the
aforesaid policy, but upon consideration as
to whether they have been granted the said
benefit under the aforesaid policy or not
and if they have been granted, what would
be its effect on the rights of the respondent,
if any, and found that there is no specific
assertion in the memo of writ petition as to
who are the 22 persons and when they were
granted the aforesaid benefit nor the
circumstances in which they were so
granted and remitted the matter to the
learned Single Judge for considering
accordingly.

(8) Upon remand, the learned Single
Judge, upon hearing the aforesaid writ
petitions, observed that the question of law
had been kept open by the Hon'ble
Supreme Court but the same does not
amount to setting aside of the order of the
Division Bench. It considered the law in
this regard as settled by the Hon'ble
Supreme Court in the case of Shree
Chamundi Mopeds Ltd. Vs. Church of
South India Trust Association CSI Cinod
Secretariat, Madras; 1992 (3) SCC 1,
wherein it was held that unless a judgment
is set aside by a superior Court, law settled
by it remains in force. In this backdrop, the
learned Single Judge noticing divergent
views taken by the two Division Benches
i.e. in R.P. Shukla (Supra) and Jai Prakash
Sharma (Supra), referred the aforesaid
question for decision by a Larger Bench.
The relevant paragraph No.5 is extracted
here-in-below:-

"5. The question of law is left
open by the Supreme Court, but the same
does not amount to setting aside of the
order of the Division Bench. Law in this
regard is settled by the Supreme Court in
the case of Shree Chamundi Mopeds Ltd.
vs.
Church
of
South
India
Trust
Association
CSI
Cinod
Secretariat,
Madras, 1992 (3) SCC 1, that unless a
judgment is set aside by a superior Court,
law settled by it remains in force. This
Court is expected to maintain judicial
discipline and once the decision of the
earlier Division Bench was not disturbed
by the Supreme Court and question of law
was left open to be decided by the
appropriate Court and later Division
Bench has taken a different view, judicial
discipline expects that the matter ought to
be decided by a Larger Bench instead by a
Single Judge accepting any one of the
aforesaid views.........."
12 All. Jai Prakash Sharma & Ors. Vs. State of U.P. & Anr.
203

(9) In pursuance of above order passed
by learned Single Judge, a Division Bench
was constituted. The Division Bench
passed an order in Writ A No.4460 of
2013; Jai Prakash Sharma and Others Vs.
State of U.P. and Another considering the
Allahabad High Court Rules and directed
to place the matter before the Hon'ble Chief
Justice in view of the fact that the learned
Single Judge has referred the matter to the
Larger Bench noticing two conflicting
views expressed by two different Division
Benches of this Court, therefore, it would
be more appropriate that the matter be sent
to the Hon'ble Chief Justice for considering
formation of Larger Bench i.e. the Bench
comprising of more than two Hon'ble
Judges. Consequently, the Larger Bench
has been constituted by the Hon'ble Chief
Justice.

(10) At this stage, it will be relevant to
notice that the Hon'ble Supreme Court, in
the case of Shree Chamundi Mopeds Ltd.
(Supra), observed that a distinction has to
be made between quashing of an order and
stay of operation of an order and held that
quashing of an order results in the
restoration of the position as it stood on the
date of the passing of the order which has
been quashed and the stay of operation of
an order does not, however, lead to such a
result. It only means that the order which
has been stayed would not be operative
from the date of the passing of the stay
order and it does not mean that the said
order has been wiped out from existence.
Thus, it is only after quashing of the order,
the same would stand wiped out, otherwise
not and if it has not been quashed by the
Superior Court, it would hold the field and
binding on the Court, who passed the order.
The relevant portion of paragraph No.10 is
extracted here-in-below:-

"10. ................While considering
the effect of an interim order staying the
operation of the order under challenge, a
distinction has to be made between
quashing of an order and stay of operation
of an order Quashing of an order results in
the restoration of the position as it stood on
the date of the passing of the order which
has been quashed. The stay of operation of
an order does not, however, lead to such a
result. It only means that the order which
has been stayed would not be operative
from the date of the passing of the stay
order and it does not mean that the said
order has been wiped out from existence.
This means that if an order passed by the
Appellate Authority is quashed and the
matter is remanded, the result would be
that
the
appeal
which
had
been
disposed of by the said order of the
Appellate Authority would be restored
and it can be said to be pending before
the
Appellate
Authority
after
the
quashing of the order of the Appellate
Authority. The same cannot be said with
regard
to
an
order
staying
the
operation of the order of the Appellate
Authority because in spite of the said
order, the order of the Appellate
Authority continues to exist in law so
long as it exists, it cannot be said that
the appeal which has been disposed of
by the said order has not been disposed
of and is still pending............"

(11) The Hon'ble Supreme Court, in
the Civil Appeal filed against the order
passed by the Division Bench in the case of
R.P. Shukla (Supra), dismissed the Special
Leave Petition by means of order dated
13.07.2011 and kept question of law open,
which is reproduced in the order of
Division Bench, which has been quoted in
paragraph No.6 above.
204 INDIAN LAW REPORTS ALLAHABAD SERIES

(12) In view of above, the Civil
Appeal against the Division Bench order,
passed by this Court in the case of R.P.
Shukla (Supra) has been dismissed by the
Hon'ble Supreme Court i.e. the Superior
Court. However, while dismissing the Civil
Appeal, the Hon'ble Supreme Court kept
the question of law open. The dictionary
meaning of 'kept' is 'to retain in once
possession or power' or 'to have control' as
per Merriam Webster Dictionary and as per
Oxford Dictionary, 'kept' means 'actively to
hold in possession'. Thus, the Hon'ble
Supreme Court kept the question of law
involved in Civil Appeal open, while
dismissing the petition under Article 136 of
the Constitution of India, which is a
discretionary
power
of
the
Hon'ble
Supreme Court and in view of above, we
are of the view that the issue stands decided
by Division Bench of this Court in the case
of R.P. Shukla (Supra) and the question of
law kept open by the Hon'ble Supreme
Court, may be considered and decided by
the
Hon'ble
Supreme
Court
in
an
appropriate
case
and
not
by
the
Court/Bench, who has decided the issue.
However, since the Civil Appeal has been
dismissed by the Hon'ble Supreme Court
without exercising discretionary power
under Article 136 of the Constitution of
India, therefore, other remedies may be
available, such as, Review or the decision
as may be taken by the Larger Bench in
case of reference to Larger Bench as per
law laid down by the Hon'ble Supreme
Court.

(13) A Division Bench, in the case of
Commissioner of Income Tax Vs. Itegra
Engineering India Ltd.; 2013 SCC
OnLine Guj 7389, in an identical case,
held that where the Hon'ble Supreme Court
kept the question of law open, it cannot be
said that the said question of law is kept
open by the Hon'ble Supreme Court to
consider subsequently by this Court / Coordinate Bench. It can be said that the said
question of law is kept open by the Hon'ble
Supreme Court to consider subsequently in
other cases by the Hon'ble Supreme Court.
Thus, the decision of the Division Bench of
the said Court found to be bounded unless a
contrary view is taken and the matter is
referred to the Larger Bench. The relevant
paragraph
No.10
is
extracted
herein
below:-

"10. Now so far as the submission
made by learned counsel appearing on
behalf of the revenue that though against
the decision of the Division Bench of this
Court in the case of General Motors India
(P) Ltd. v. Deputy Commissioner of Income
Tax (supra), as such, Special Leave to
Appeal was preferred before the Hon'ble
Supreme Court and the same came to be
dismissed by the Hon'ble Supreme Court on
the ground of delay and kept the question
of law open, this Court may consider the
question of law raised on merits is
concerned, the same cannot be accepted. It
is required to be noted that as such,
consideration of the question raised with
respect
to
set
off
of
unabsorbed
depreciation on merits, there is a direct
decision of the Division Bench of this Court
in the case of General Motors India (P)
Ltd. v. Deputy Commissioner of Income
Tax (supra). Against the said decision, the
Special Leave to Appeal was preferred and
the same came to be dismissed on the
ground of delay and the Hon'ble Supreme
Court kept the question of law open.
Therefore, it can not be said that the said
question of law is kept open by the Hon'ble
Supreme Court to consider subsequently by
this Court-Coordinate Bench. It can be said
that the said question of law is kept open by
the Hon'ble Supreme Court to consider
12 All. Jai Prakash Sharma & Ors. Vs. State of U.P. & Anr.
205
subsequently in other cases by the Hon'ble
Supreme Court. So far as this Court is
concerned, the decision of the Division
Bench of this Court in the case of General
Motors
India
(P)
Ltd.
v.
Deputy
Commissioner of Income Tax (supra) is
binding unless a contrary view is taken and
the matter is referred to the Larger Bench.
In view of the decision of the Division
Bench of this Court in the case of General
Motors
India
(P)
Ltd.
v.
Deputy
Commissioner of Income Tax (supra) which
has been relied upon by the learned ITAT
while passing the impugned judgment and
order, as such, no question of law much
less any substantial question of law arises
now."

(14) The Hon'ble Supreme Court, in
the case of Khoday Distilleries Limited
(Now Known a Khoday India Limited)
and Others Vs. Sri Mahadeshwara
Sahakara Sakkare Karkhane Limited,
Kollegal
(Under
Liquidation)
Represented by the Liquidator; (2019) 4
SCC 376, has held that Article 136 of the
Constitution of India opens with a non-
obstante clause and conveys a message that
even in the field covered by the preceding
articles, jurisdiction conferred by Article
136 is available to be exercised in an
appropriate case. It has further been held
that no right of appeal is conferred upon
any party; only a discretion is vested in the
Supreme Court to interfere by granting
leave to an applicant to enter in its
appellate jurisdiction not open otherwise
and as of right and enumerated legal
position in the subsequent part of paragraph
19 and reiterated the conclusions recorded
in the case of Kunhayammed & Ors. Vs.
State Of Kerala & Anr.; (2000) S SCC
359, in which it has been held that an order
refusing special leave to appeal does not
stand substituted in place of order under
challenge. Thus, in case the appeal is
dismissed in limine, the Review would be
maintainable and the issue may also be
considered by a Larger Bench on reference.

(15) Heard Sri Ram Pragat Shukla,
learned counsel for the petitioners, Sri
Vimal
Kumar
Srivastava,
learned
Additional Advocate General assisted by
Sri Prafulla Yadav, learned Additional
Chief Standing Counsel and Sri Pratul
Kumar
Srivastava,
learned
Standing
Counsel for the State.

(16)
Learned
counsel
for
the
petitioners submitted that the petitioners are
entitled for the second promotional pay
scale of Rs.8000-13500/- on completion of
24 years of service under the Government
Order dated 02.12.2000 as the claim of the
petitioners has wrongly and illegally been
rejected on the ground that subsequent to
Government Order dated 02.12.2000, a
clarificatory
Government
Order
dated
20.08.2004 was issued, in which at Serial
No.6, it has been clarified that those posts,
which are to be filled on the basis of
seniority-cum-suitability or on the basis of
merit, the pay scale of the said posts would
not be extended for the purpose of grant of
benefit in terms of the Government Order
dated 02.12.2000 rather the next pay scale
would be given in case the employee
fulfills the conditions stipulated under the
said
Government
Order
because
22
similarly situated employees have been
granted benefit of the second promotional
pay scale. Considering it, a Division Bench
of this Court, in the case of R.P. Shukla
(Supra),
by
means
of
order
dated
20.04.2006, directed the respondents to
grant benefit of the second promotional pay
scale
of
Rs.8000-13500/-
to
the
appellant/petitioner
therein
with
all
consequential benefits. The said judgment
206 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by this Court was put to challenge
before the Hon'ble Supreme Court in Civil
Appeal
No.272/2007
by
the
State
Government, which has been dismissed by
means of the order dated 13.07.2011. Thus,
the submission is that once the Division
Bench of this Court has decided the issue
and directed for extending the benefit of
promotional pay scale to a person, similarly
situated, challenge to which came to be
dismissed by the Hon'ble Supreme Court,
the respondents cannot adopt a different
yardstick so far as the case of the
petitioners is concerned. Thus, it has been
submitted that the petitioners are fully
entitled for grant of promotional pay scale
of Rs.8000-13500/- with effect from the
date, they completed 24 years of service.

(17) He further submitted that even
otherwise except the petitioners, all the
employees of the cadre of the petitioners
have
been
given benefit
of
second
promotional pay scale either by the
Government itself or on the direction
issued by this Court in the case of R.P.
Shukla
(Supra),
therefore,
also
the
petitioners are entitled for benefit of the
second promotional pay scale on the basis
of parity. It has also been submitted that
now the cadre has changed, therefore, after
the petitioners, no other employee would be
eligible or entitled for the aforesaid claim.
Thus, submission is that the petitioners are
entitled
for
benefit
of
the
second
promotional pay scale.

(18) Per contra, learned Additional
Advocate General vehemently opposed the
submissions of learned counsel for the
petitioners.
He
submitted
that
the
petitioners are not entitled for the benefit of
second promotional pay scale under the
Government Order dated 02.12.2000, as it
was clarified by means of the Government
Order
dated
20.08.2004.
He
further
submitted that though the Government
Order dated 20.08.2004 had come into
existence but the same was not considered
by the Division Bench of this Court in the
case of R.P. Shukla (Supra), therefore, the
petitioners are not entitled for any benefit
of the Division Bench judgment and the
dismissal of challenge to the Division
Bench judgment by the Hon'ble Supreme
Court. He further submitted that on account
of the Government Order dated 20.08.2004,
the petitioners are not entitled for any
parity of the other employees, to whom the
benefits
have
been
given
by
the
Government or under the order passed by
this Court. He also submitted that except
the second promotional pay scale, all the
admissible
benefits
accrued
to
the
petitioners have been extended by the
Government. Thus, the submission is that
the petitioners are not entitled for the
second promotional pay scale and the
benefit of the judgment rendered in the case
of R.P. Shukla (Supra). It has also been
submitted that none of the similarly
situated employee was given benefit of the
Government Order dated 02.12.2000 by the
Government as they had retired prior to the
said date. Thus, the reference is liable to be
answered accordingly and the petitions are
liable to be dismissed.

(19)
We
have
considered
the
submissions of learned counsel for the
parties and gone through the records,
Government Orders and relevant Rules.

(20) The petitioners were working as
Statistical Assistant. They claimed that on
account of the said working, they are
entitled for second promotional pay scale
of Rs.8000-13500/- in terms of the
Government
Order
dated
02.12.2000,
considering which the Division Bench of
12 All. Jai Prakash Sharma & Ors. Vs. State of U.P. & Anr.
207
this Court, in the case of R.P. Shukla
(Supra), has also extended the benefit to the
similarly situated employee, whereas they
have been given pay scale of Rs.55009000/- only.

(21) In view of the question referred to
the Larger Bench, it is to be considered by
this Bench as to whether the petitioners are
entitled for the promotional pay scale or for
the next promotional pay scale as per
Service Rules applicable on them and
Government Order dated 02.12.2000 as
clarified by Government Orders dated
03.09.2001 and 20.08.2004 or any other
Government Orders issued thereafter.

(22) The Government, for resolving
the problem of stagnation at different levels
in service and the hardship faced by the
employees on account of the same and lack
of
adequate
promotional
avenues,
introduced the provision for providing time
bound financial benefits and the scheme for
time bound pay scale at different levels on
the
recommendation
of
the
Pay
Commission. Consequently, the aforesaid
Government
Orders
were
issued
in
continuance of the earlier Government
Orders, which were clarified time to time
as demanded and required. The criteria for
said financial benefits were fixed by the
Government Orders keeping in view the
Service Rules applicable on the employees
so that employees may not have any
financial loss on account of stagnation in
service for various reasons.

(23) The Government Order dated
02.12.2000 has been issued providing time
bound pay-scales on the recommendation
of pay-committee (1997-99). It provides in
paragraph
No.1(4)
that
the
second
promotional/next
pay
scale
will
be
admissible individually to each regular
employee on minimum 24 years of service
including continuous satisfactory service of
5 years from the date of admissibility of
one increment as per Para-1(3) mentioned
in personal promotional/next pay scale. The
relevant paragraph 1(4) in Hindi alongwith
it's translation in English, as submitted by
State, is quoted herein below:-

Government
Order
dated
02.12.2000
(In Hindi)
 Government
Order
dated
02.12.2000
(In English)
हितीय
वैयहिक
प्रोन्नतीय
/
अगला
वेतनमान:-

प्रत्येक भनयभमत कमाचारी
को वैयभक्तक प्रोन्नतीय /
अगिे वेतनमान में उपयुाक्त
प्रस्तर-1(3) के अनु ार
एक वेतनवृभद्ध का िाि
अनुमन्य होने की भतभि े
5 वर्ा की अनवरत
 िंतोर्जनक ेवा भहत
न्यूनतन 24 वर्ा की ेवा
पर वैयभक्तक रूप े भद्वतीय
प्रोन्नतीय
/
अगिा
वेतनमान अनुमन्य होगा।
ऐ े कमाचारी भजनके िंवगा
में प्रोन्नभत के पि उपिब्ध
नहीं हैं उनको उ वेतनमान
का
अगिा
वेतनमान
वैयभक्तक रूप े िेय होगा।
Second
personal
promotional/next
pay scale:-

Second
promotional/next pay
scale
will
be
admissible
individually to each
regular employee on
minimum 24 years of
service
including
continuous
satisfactory service of
5 years from the date
of admissibility of
one increment as per
Para-1(3) mentioned
in
personal
promotional/ next pay
scale.
Such
employees in whose
cadre the post of
promotion
is
not
available, the next
pay scale of that pay
scale will be paid
individually.

(24) The aforesaid Government Order
was clarified by the Government Order
dated 03.09.2001. The relevant paragraph
208 INDIAN LAW REPORTS ALLAHABAD SERIES
No.2(ka) of the said Government Order
provides that the employees who have not
been allowed two promotional/next pay
scale (or two promotions) in respect of
direct recruitment post till the date of
completion of 24 years of service, but who
have received a promotion and they are
regular on the post of direct recruitment,
they should be allowed individually second
promotional/next pay scale in respect of the
post of direct recruitment from the date of
completion of 24 years of satisfactory
service or dated 1.3.2000, which ever is
later. The relevant paragraph No.2(ka) in
Hindi alongwith it's translation in English,
as submitted by State, is quoted herein
below:-