(Per : 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 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 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-cum-rejection 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 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.  "

(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.

(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 / Co-ordinate 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 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 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 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.5500-9000/- 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:-

                 

                 

 (24) The aforesaid Government Order was clarified by the Government Order dated 03.09.2001. The relevant paragraph 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:-

                 

                 

(25) The Government Orders dated 02.12.2000 and 03.09.2001 were further clarified by means of the Government Order dated 20.08.2004. The relevant paragraph No.6 of which provides that promotional post for a post holder for admissibility of personal promotional pay scale under time scale pay scale system means that post, on the basis of Service Rules or executive orders, the concerned employee is promoted on the basis of seniority-cum-suitability. In such a situation, 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. The relevant paragraph No.6 in Hindi alongwith it's translation in English, as submitted by State, is quoted herein below:-

                 

                 

(26) In view of above, in terms of paragraphs No.1(4) of the Government Order dated 02.12.2000, as clarified by means of the Government Order dated 03.09.2001 and the Government Order dated 20.08.2004, benefit of second promotional pay scale would be admissible to a 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, in case, he has received a promotion and is regular on the post of direct recruitment on the basis of Service Rules or executive orders on the criteria of seniority- cum-suitability but where the system of promotion is based on the criteria 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 and in such cases, subject to fulfillment of other conditions, the next higher pay scale as explained in Para-4(1) of the Government Order dated 02.12.2000 would be payable.

(27) Adverting to the facts of the present case, the next promotional post of the petitioners was Statistical Officer. The provisions of U.P. Town and Country Planning Service Rules, 1987 are applicable on the service of the petitioners. The Rule 16, thereof, provides that the promotion on the post of Statistical Officer shall be made on the basis of merit. Rule 16 is extracted herein below:-

                  "16. Recruitment by promotion in the case of Assistant Town Planner, Assistant Planner, Personal Assistant (Technical), Assistant Architect, Assistant Engineer, Statistical Officer and Research Officer shall be made on the basis of merit and in the case of Town Planner, Associate Planner, Senior Planner, Senior Architect, Executive Engineering on the basis of seniority subject to the rejection of the unfit from amongst the eligible candidates in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rule 1970 as amended from time to time."

(28) The U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 is not applicable on the service of the petitioners as amended time to time in view of the provisions made therein, in which the next promotional post of Statistical Officer falls within the purview of U.P.P.S.C., therefore, the criteria for promotion mentioned therein will not prevail or apply over the criteria, which is mentioned in the Statistical Service Rules pertaining to the service/cadre in question.

(29) 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. It may also not be good in the interest of service and may create heart burning among the officers because the persons, who could not be promoted on the promotional post on the criteria of merit, may get the promotional benefits, which may have been acquired by the promotees on the criteria of merit. Even otherwise it does not seem to be just and proper that an employee may get the promotional pay scale of a post of merit without being judged on merit and without the responsibilities of the said post.

(30) The aforesaid Government Orders have also not been challenged by any of the parties. Even otherwise the provision for time bound pay scale on completion of certain period, subject to fulfillment of certain conditions, was made only to provide the relief on account of stagnation at various levels. However, the promotional pay scale without assuming the responsibility of promotional posts and discharging the same cannot be granted because, if it is granted, it may adversely affect the efficiency of administration. The Hon'ble Supreme, in the case of Union of India Vs. M.V. Mohanan Nair; (2020) 5 SCC 421, has held that the object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee.

(31) The order dated 10.04.2006 was passed by a Division Bench of this Court in the case of R.P. Shukla (Supra), 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. The relevant portion is reproduced as under :-

                  "Keeping in mind the view of the Hon'ble Apex Court, we are of the view that the Government Orders issued under Article 162 of the Constitution of India on 2.12.2000 and 3.9.2001 have full force of law and they hold the field. Thus appellant can successfully claim the benefit of the Government Orders. Appellant is entitled to next promotional pay scale in accordance with para 1(2) of the Government Order dated 2.12.2000 and para 1(4) of the Government Order dated 3.9.2001. Thus, on this count we are in respectful disagreement with the finding of the learned Single Judge that appellant is not entitled to next promotional pay scale."

(32) The Division Bench also observed that the petitioner's services is regulated by the Service Rules of 1994 and he is entitled for promotional avenues as per Rules of 1987 and certain regular promotions are being made in accordance with Service Rules and as per seniority-cum-merit. Thus, the avenues of promotion is available to the petitioner and other similarly situated officers as per Service Rules and there is no denial from the side of the appellant about the same, whereas the Service Rules of 1994 are not applicable on the services of the petitioners and the criteria in the Service Rules of 1987 for promotion on the next post of Statistical Officer is merit and not seniority-cum-merit or seniority subject to rejection of unfit. Therefore, we are of the view that the Division Bench in the case of R.P. Shukla (Supra) 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.

(33) In view of above, we are of the view that the petitioners are not entitled for the promotional pay scale as per the Service Rules applicable on them and the Government Order dated 02.12.2000 as clarified by means of the Government Orders dated 03.09.2001 and 20.08.2004. No Government Orders issued subsequent thereto has been pointed out by learned counsel for the petitioners, on the basis of which, the petitioners may be entitled for the promotional pay scale, as claimed.

(34) One of the argument of learned counsel for the petitioners was that now the cadre has changed, therefore, after the present petitioners, no other employee in the cadre of the petitioners would be eligible or entitled for the aforesaid claim. This submission is based on the principle of parity with the employees, who have been granted the benefit under the aforesaid Government Orders by the Government or on the orders passed by this Court, which can be considered by the learned Single Judge only subject to the pleading in this regard of the petitioners and considering the law on the issue. However, it is noticed that the respondents had argued that none of the similarly situated employee was given benefit by the Government under the Government Order dated 02.12.2000 and they had retired prior to that also, therefore, if the petitioners had completed 24 years of service prior to the said Government Order and eligible under any prior Government Order or scheme, it can also be considered by learned Single Judge subject to pleading and not by this Bench.

(35) The reference is answered accordingly.

(36) Let the matter be placed before the learned Single Judge within next two weeks for appropriate decision in the matter.