STATE OF U.P. AND ORS.versusDR. OM PRAKASH SINGH

                       STATE OF U.P. AND ORS.                                  A
                                     v.
                       DR. OM PRAKASH SINGH

                          SEPTEMBER 3, 2004

               [ARIJIT PASAYAT AND B.P. SINGH, JJ.]                            B

      Service Law-Revised pay scale-Entitlement to-Services ofRespondent
 terminated on closure ofState Horticulture Corporation in I 990--Government
 order provided for appointment of retrenched employees of the Corporation,
with protection of the last pay drawn-Respondent was subsequently given        c
appointment in the State Jail Services in 1991 and his pay scale fixed with
a view to protect his pay-He was granted various benefits as available in
law, including benefit of pay enhancements, after such appointment-Jn
 1998, Respondent made representation stating that he should be covered by
the revised pay scale w.ef !. I. 1986 in the Horticultural Corporation and
that pursuant to decision of the State Government his last pay should be       D
protected in that scale-Revised pay scales prescribed but not adopted-
 Representation rejected by State Government-Tribunal holding that the last
pay protection would be in the revised scale-Affirmed by High Court-On
appeal, held : mere prescription of a revised scale of pay is really of no
consequence unless adopted by the employer-Revised scale ofpay was not         E
adopted by the time the Corporation was closed-Hence claim ofRespondent
for revised scale of pay not tenable.

     Respondent was appointed in the U.P. State Horticultural Produce
Marketing and Processing Corporation Ltd. (HORTICO). The said
Corporation was closed in 1990. At the time of closure, Respondent was
                                                                               F
drawing pay of Rs. 1060 in the pay scale of Rs. 900-1770. In 1991
Government issued order providing for appointment of retrenched
employees of HORTICO on posts available for direct employment and
outside the purview ofU.P. Public Service Commission as a compassionate
measure. It also provided that the last pay drawn by concerned employees       G
of HORTICO would be protected. Respondent was given temporary
appointment and posted as Deputy Jailor in the U.P. Jail Services. He
was placed in the pay scale of Rs. 1400-2300. By an order passed in 1997
the Government fixed his pay at Rs. 2250 in the pay scale of Rs. 1400-
2300 with a view to protect his pay. In 1998 Respondent made a                 H
                                     53
    54                  SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A   representation stating that he should be covered by the revised pay scale
    of Rs. 2200-4000 w.e.f. 1.1.1986 in HORTICO and pursuant to the
    decision of the State Government his last pay should be protected in
    that scale. The representation was rejected by the State Government on
    the ground that the rrevised pay scale was not adopted by HORTICO
B   and that in any event, HORTICO having been closed, the question of
    accepting the Respondent's claim did not arise.

          Respondent filed writ petition before High Court which dismissed
    the same on the ground that there was alternative remedy provided
    before the State Public Service Tribunal Claim Petition was filed by
C   Respondent before Tribunal which held that the last pay protection
    would be in the revised scale, that Respondent was being given Rs. 1060
    which was in the corresponding pay scale of Rs. 515-860 and, therefore,
    illegal. It was held that the pay protection as envisaged by the
    Government order was not done. The State of U.P. and its functionaries
    filed a writ petition before High Court which by the impugned order
D
    dismissed the same. It was held that the s:ale of Rs •. 900-1770 stood
    revised and Respondent No. 2 became entitled for the revision of the
    pay scale with effect from 1.1.1986, that his claim for the revision of pay
    scale could not be defeated simply because actual revision of pay scale
    was not done for couple of years and in the meantime closure of the
E   Corporation was declared.

          In appeal before this Court, the State of U.P. calls in question
    legality of judgment rendered by Hihg Court affirming the order passed
    by the State Public Service Tribunal. Appellants submitted that when
    the .revised pay scale was not adopted by HORTICO, the question of
F
    extending benefits of the revised pay scale did not arise; that the basic
    pay of Rs. 1060 as per the pay scale operative at the time of closure of
    the Corporation was given to Respondent; that. by a hypothetical
    conclusion the Tribunal came to hold that the same was relatable to the
    revised pay scale of Rs. 515-860 and that the High Court's reasoning
G   that closure of the Corporation was irrelevant cannot be maintained in
    law.

         Per contra, Respondent submitted that the pay protection in respect
    of last pay drawn was assured by the Government; thi,lt the natural
H   corollary is th.at when the pay scale was revised th.at same should have
                             STATE v. O.P. SINGH                           55
r

     been made applicable to Respondent and, therefore, the conclusions of       A
     the Tribunal and the High Court do not suffer from any infirmity.

..        Allowing the appeal, the Court

          HELD : 1.1. Both Tribunal and the High Court have fallen in
     grave error by overlooking the basic fact thai. at no point of time         ,B
     HORTICO had adopted the revised scale of pay. Mere prescription of
     a revised scale of pay is really of no consequence unless adopted by the
     concerned employer. [58-C)

          1.2. In the instant case as found by both the Tribunal and the High    c
     Court revised scale of pay was not adopted by the time the Corporation
     was closed. That being so, the claim of Respondent that he is entitled to
     the revised scale of pay is clearly untenable. [58-C-D]

           1.3. The Tribunal seems to have proceeded on the basis that the · D
     basic pay of Rs. 1060 as was given to Respondent is relatable to the
     revised scale of pay of Rs. 515-860. This is clearly erroneous. Unless the
     revised scale of pay was adopted the question of such presumptuous
     conclusion is indefensible. The High Court's conclusion that mere closure
     of the Corporation would not deprive Respondent of the revised scale of
     pay is equally unsustainable. It has to be noted that Respondent's services E
     were terminated on the closure ofHORTICO. He was given compassionate
     appointment subsequently. When the Additional Inspector General (Jail),
     U.P., Lucknow brought to the notice of the U.P. administration about the
     claim of respondent it was clearly indicated in reply that the revised pay
     scale was not applicable to the Corporation and, therefore, the question    F
     of pay fixation in the revised scale does not arise. It further appears from
     records that the pay scale of Deputy Jailor was revised from 25.11.1994
     and the same was made Rs. 1400-2600. The respondent benefited from
     the fixation of pay scale and his salary was fixed at Rs. 2420 w.e.f.
     1.10.1995. In accordance with the recommendations of the subsequent
     Pay Commission the pay scale of Deputy Jailor stood revised to Rs. 5000- G
     8000 w.e.f. 1.1.1996 and consequently the pa)" of respondent was fixed at
     Rs. 7850 w.e.f. 1.1.1997. The benefit of another pay enhancement w.e.f.
     1.10.1998 was extended to the respondent and his basic pay was fixed at
     Rs. 8,000. The respondent has thus been granted various benefits as
     available in law after his appointment as Deputy Jailor in the Jail H
    56                    SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A   Department of the State. (58-D-H]

          1.4. In the aforesaid background, the inevitable conclusion is that
    both the Tribunal and the High Court had not considered the controversy
    in the proper perspective and their conclusions cannot be sustained. The
    orders of the Tribunal and the High Court are set aside. [59-A)
B
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5706 of2004.

         From the Judgment and Order dated 16.2.2004 of the Allahabad High
    Court in W.P. No. 236(S/B) of 2004.
c
         Ravi Prakash Mehrotra and Garvesh Kabra for the Appellants.

         M.C. Dhingra and Gaurav Dhingra for the Responent.

         The Judgment of the Court was delivered by
D
         ARIJIT PASA YAT, J. : Leave granted.

         The State of U.P. calls in question legality of judgment rendered by a
    Division Bench of the Allahabad High Court at Lucknow, by whi~h the High
    Court affirmed the order passed by the State Public Service Tribunal,
E   Lucknow (in short the 'Tribunal').

          Backgron!l.d facts necessary for disposal of the appeal are essentially a~
    follows:

F         Respondent was appointed in the U.P. State Horticultural Produ~e,
    Marketin~ and Processing Corporation Ltd. (in short the 'HORTICO'). The
    said Corporation was closed w.e.f. 15.7.1990. At the time of closure,
    respondent was drawing pay in the pay scale of Rs. 900~ 1770 and was
    drawing a basic pay of Rs. 1060. On 26.4.1991 the Government issued an
    order providing for appointment of retrenched employees of HORTICO on·
G   posts available for direct employment and which are outside the purview of
    U.P. Public Service Commission (in short the 'Commission') as a
    compassionate measure. The Government order dated 26.4.1991, inter alia,
    provided that .the last pay drawn by the concerned employee of HORTICO
    would be protected. Oh l.l 0.1991, respondent was given temporary
H   appointment and posted as Deputy Jailor in the U.P. Jail Services. He was
                 STATE v. O.P. SINGH [PASAYAT, J.]                           57

placed in the pay scale of Rs. 1400-2300. By order dated 3.10.1997 the              A
Government fixed pay of the respondent at Rs. 2250 in the pay scale of Rs.
1400-2300 with a view to protect his pay. On 16.3 .1998 the respondent made
a representation stating that he should be covered by the revised pay scale
of Rs. 2200-4000 w.e.f. l.1.1986 in HORTICO and pursuant to the decision
of the State Government his last pay should be protected in that scale. The         B
representation was rejected by the State Government on 24.&.1999. It was
noted that the rev_ised pay scale was not adopted by the HORTICO. In any
event, HORTICO having been closed the question of accepting the prayer
of the respondent did not arise.

     ·Respondent filed a writ petition before the High Court which dismissed        C
the same on the ground that there was an alternative remedy provided before
the Tribunal. A Claim Petition No. 586/2000 was filed by the respondent
before the Tribunal which held that the last pay protection would be in the
revised scale. The respondent was being given Rs. I 060 which was in the
corresponding pay scale of Rs. 515-860 and, therefore, illegal. It was held         D
that the pay protection as envisaged by the Government order was not done.
The State of U.P. and its functionaries filed a writ petition before the High
Court which by the impugned order dismissed the same. It was, inter alia,
observed as follows:

                "From the record, it is evident that the scale of Rs. 900- I 770    E
          stood revised and respondent No.2 became entitled for the revision
          of the pay scale with effect from 1.1.1986. His claim for the revision
          of pay scale could not be defeated simply because actual revision
          of pay scale was not done for couple of years and in the meantime
          closure of the corporation was declared. It is not the case of the        F
        . petitioners that the pay revision or the revised pay scale could not
          be given to the petitioner for want of funds for any other valid
          reason, or that the said benefit of revision of pay scale was not given
          to any other employee of the Hortico".

       Learned counsel for the appellants submitted that when the revised           G
pay scale was not adopted by HORTICO, the question of extending benefits
of the revised pay scale did not arise. The basic pay of Rs. 1060 as per the
pay scale operative at the time of closure of the Corporation was given to
the respondent. By a hypothetical conclusion the Tribunal came to hold that
the same was relatable to the revised pay scale of Rs. 515-860. The High            H
    58                   SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A   Court's reasoning that closure of the Corporation was irrelevant cannot be
    maintained in Jaw.

         Per contra, learned counsel for the respondent submitted that the pay
    protection in respect oflast pay drawn was assured by the Government. The
    natural corollary is that when the pay scale was revised the same should have
B   been made applicable to the respondent and, therefore, the conclusions of the
    Tribunal and the High Court do not suffer from any infirmity.

          We find that both the Tribunal and the High Court have fallen in grave
    error by overlooking the basic fact that at no point of time HORTICO had
c   adopted the revised scale of pay. Mere prescription of a revised scale of pay
    is really of no consequence unless adopted by the concerned employer. In
    the instant case as found by both the Tribunal and the High Court revised
    scale of pay was not adopted by the time the Corporation was closed. That
    being so, the claim of the respondent that he is entitled to the revised scale
    of pay is clearly untenable. The Tribunal seems to have proceeded on the
D   basis that the basic pay of Rs. I 060 as was given to the respondent is relatable
    to the revised scale of pay of Rs. 515-860. This is clearly erroneous. Unless ·''
    the revised scale of pay was adopted the question of such presumptuous
    conclusion is indefensible. The High Court's conclusion that mere closure
    of the Corporation would not deprive the respondent of the revised scale of
E   pay is equally unsustainable. It has to be noted that the respondent's services
    were terminated on the closure of HORTICO. He was given compassionate
    appointment subsequently. When the Additional Inspector General (fail),
    U.P., Lucknow brought to the notice of the U.P. administration about the
    claim ofrespondent it was clearly indicated in reply that the revised pay scale
    was not applicable to the Corporation and, therefore, the question of salary
F
    fixation in the revised scale does not arise. It further appears from records
    that the pay scale of Deputy Jailor was revised from 25.11.1994 and the same
    was made Rs. 1400-2600. The respondent benefited from the fixation of pay
    scale and his salary was fixed at Rs. 2420 w.e.f. 1.10.1995. In accordance
    with the recommendations of the subsequent Pay Commission the pay scale
G   of Deputy Jailor stood revised to Rs. 5000-8000 w.e.f. 1.1.1996 and
    consequently the pay of respondent was fixed at Rs. 7850 w.e.f. 1.1.1997.
    The benefit of another pay enhancement w.e.f. 1.10.1998 was extended to
    the respondent and his basic pay was fixed at Rs. 8000. The respondent has
    thus been granted various benefits as available in law after his appointment
H   as Deputy Jailor in the Jail Department of the State.
\

                     STATE v. O.P. SINGH{PASAYAT, J.]                          59

         In the aforesaid background, the inevitable conclusion is that both the     A
    Tribunal and the High Court had not considered the controversy in the proper
    perspective and their conclusions cannot be sustained. The orders of the
    Tribunal and the High Court are set aside. The appeal is allowed with no order
    as to costs.

                                                                                     B~
    B.B.B.                                                       Appeal allowed.