JUDGMENT Hon'ble Ritu Raj Awasthi, J.—Heard learned Standing Counsel for the appellants as well as Mr. S.M.K.Chaudhary, learned Sr. Advocate for the respondents and perused the records. 2. This special appeal arises out of the judgment and order dated 16.2.2006, passed in Writ Petition No. 4023 (S/S) of 2002, R.K. Soni and others v. State of U.P. and others, whereby the learned Single Judge has allowed the writ petition and directed the appellants to give promotional pay scale of Rs. 2200-4000 with effect from the due dates to the respondents. 3. The brief facts of the case are that the respondents are Assistant Lecturers in Government Govind Ballabh Pant Polytechnic, Lucknow, which is governed by the U.P. Samaj Kalyan Vibhag. In the year 1998, the respondents had preferred a claim petition before the U.P. State Public Services Tribunal with regard to grant of promotional pay scale of Rs. 2200-4000 with effect from the due date after completion of 14 and 16 years of service. The said claim petition was allowed by the judgment and order dated 1.11.2000 with a direction to the appellants to consider the case of the respondents for grant of the promotional pay scale with effect from the due dates as and when they completed 14 and 16 years of service. The case of the respondents was considered by the State Government and by order dated 8.10.2001, the State Government rejected the claim of the respondents mainly on the ground that under the U.P. Samaj Kalyan Rajpattrit Adhikari Seva Niyamawali, 1991 (hereinafter referred to as ‘Niyamawali, 1991'), the Assistant Lecturers working in Government Gobind Ballabh Polytechnic, Lucknow have no avenues of promotion. Moreover, as per the Government Order dated 3.6.1989, Para-3 (10), the next promotional pay-scale is admissible to only those employees who have been regularized and have completed 6 years of satisfactory service in the selection grade. The respondents were placed in the pay scale of Rs. 1640-2900 w.e.f. 1.1.1986 and in the absence of provision of promotion the next higher pay-scale available to them was Rs. 2000-3200. By the Government Order dated 4.6.1998, the respondents have been given the said next higher scale and as such they are not entitled to get the pay scale of Rs. 2200-4000. 4. 1640-2900 w.e.f. 1.1.1986 and in the absence of provision of promotion the next higher pay-scale available to them was Rs. 2000-3200. By the Government Order dated 4.6.1998, the respondents have been given the said next higher scale and as such they are not entitled to get the pay scale of Rs. 2200-4000. 4. The said Office Order dated 8.10.2001 was challenged in Writ Petition No. 4023 (S/S) of 2002 by the respondents mainly on the ground that similarly situated persons in other Government Polytechnics controlled by the U.P. Technical Education Department have been granted the pay scale of Rs. 2200-4000 and even the persons (Instructors), who are lower in rank working in the same Polytechnic where the respondents are getting the said pay scale of Rs. 2200-4000. 5. It was also pleaded that the judgment passed by the learned Tribunal has attained finality as it was not challenged by the State Government. However, by order dated 8.10.2001, the appellants had denied the benefit of the said judgment by rejecting the claim of the respondents. 6. Learned Standing Counsel submitted that since there was no provision of promotion from the post of Assistant Lecturers working in Government Gobind Ballabh Pant Polytechnic, Lucknow in the Niyamawali, 1991, which governed the service conditions of the respondents as such they could not have been granted the pay scale of Rs. 2200-4000. The promotional avenues of Assistant Lecturers in Polytechnics run by the Director of Social Welfare are different from those of Assistant Lecturers working in the Polytechnics run by the Director of Technical Education under the Directorate of Technical Education. Thus, the post of Lecturers is to be filled from two sources; 75% of the posts to be filled by means of direct recruitment through U.P. Public Service Commission, 25% of the post of Lecturers to be filled by means of selection also through the Public Service Commission from amongst the substantively appointed Assistant Lecturers/Instructors who have rendered at least 15 years of service and having A.M.I.E. or diploma and experience of 10 years. The promotional avenues available to the Assistant Lecturers of Government Polytechnics run by the Director of Technical Education are not available to the respondents in the Government Polytechnics run under the Director, Samaj Kalyan, the post of Lecturers is to be filled up 100% by direct recruitment through the Public Service Commission. The promotional avenues available to the Assistant Lecturers of Government Polytechnics run by the Director of Technical Education are not available to the respondents in the Government Polytechnics run under the Director, Samaj Kalyan, the post of Lecturers is to be filled up 100% by direct recruitment through the Public Service Commission. There is no provision of promotion of Assistant Lecturers to the post of Lecturers in the Niyamawali, 1991. 7. It is also contended that as per the Government Order dated 3.6.1989, issued by the Finance Department and applicable to all the Government Departments, all those employees who have rendered 6 years of satisfactory service in the selection grade would be given promotional pay-scale as personal pay scale However, in those cadres/posts where there is no promotional avenues, only next higher pay scale shall be given and they shall not be entitled to get the promotional pay scale. The said Government Order dated 3.6.1989 was adopted by the Department of Harijan and Social Welfare by issuing Government Order dated 30.11.1989. 8. It is also submitted that the Finance Department had issued clarification by Government Order 8.2.1995 clarifying that only those employees in whose cadres promotional post is available would be entitled to the next promotional pay-scale. However, those employees in whose cadres there is no promotional avenues they would only be granted next higher pay scale as the personal pay scale. 9. The pith and substance of the arguments of learned Standing Counsel is that since there was no promotional avenues on the post of Assistant Lecturers in the Government Gobind Ballabh Pant Polytechnic, Lucknow run under the Director of Social Welfare, as such, the respondents working in the said polytechnic are not entitled to get the promotional pay scale of Rs. 2200-4000. 10. It is informed by the learned Standing Counsel that by the First amendment to the Niyamawali, 1991, which came into force on 26.8.2004, the promotional avenue has been made available to the respondents and hence the next promotional pay scale also became admissible and, indeed, was given to the respondents-petitioners. However, for the period from 1991 to 2004, they were not entitled to get the said benefit. 11. Mr. S.M.K.Chaudhary, learned Sr. However, for the period from 1991 to 2004, they were not entitled to get the said benefit. 11. Mr. S.M.K.Chaudhary, learned Sr. Advocate, on the other hand, submitted that the respondents are similarly situated as Assistant Lecturers working in Government Polytechnics under the Director of Technical Education, performing the same work and duties and they cannot be discriminated simply because the promotional avenues were initially not available to the respondents in the Government Gobind Balabh Pant Polytechnic run under the Director of Social Welfare. 12. It is vehemently argued by Mr.Chaudhary that once the learned Tribunal while deciding the claim of the respondents with regard to grant of promotional pay-scale had come to the conclusion that they are entitled to the said benefit and directed the State Government to consider for grant of pay scale of Rs. 2200-4000 to the respondents, it was not open for the appellants to have rejected the claim of the respondents on the same grounds which were taken by them before the learned Tribunal. Learned counsel emphasized that since the judgment passed by the learned Tribunal was not challenged by the State Government and has attained finality, as such the same was to be complied with in letter and spirit. However, the appellants by order dated 8.10.2001 had rejected the claim of the respondents in a most arbitrary and illegal manner, which was not sustainable in the eye of law. 13. It is also submitted that in the case of Instructors working in Government Gobind Ballabh Pant Polytechnic, Lucknow, this Court in the cases of Surendra Prakash Tripathi and another v. State of U.P. and others (Writ Petition No. 9413 of 1989) and Shyam Prakash Saxena and others v. State of U.P. and others (Writ Petition No. 6095 of 1988) had allowed the writ petitions with a direction to permit the next promotional pay scale of the post of Workshop Superintendent/Lecturer with effect from the due dates. 14. It is contended that the State Government has itself subsequently removed the anomaly in the service rules by providing promotional avenues to the respondents from 2004 onwards. The respondents have been granted the benefit of promotional pay scale of Rs. 2200-4000. 15. We have considered the submissions made by the parties' counsel and gone through the record. 16. 14. It is contended that the State Government has itself subsequently removed the anomaly in the service rules by providing promotional avenues to the respondents from 2004 onwards. The respondents have been granted the benefit of promotional pay scale of Rs. 2200-4000. 15. We have considered the submissions made by the parties' counsel and gone through the record. 16. Learned Single Judge while considering the present controversy has come to the conclusion that the terms and conditions of the service of the respondents are similar to the persons working on the post of Assistant Lecturers under the Director, Technical Education, as such, it would not be just and proper to deny the same benefit to the respondents which is available to the similarly situated persons in the Government Polytechnics run under the Director, Technical Education. The respondents cannot be simply discriminated because they are working in the Government Polytechnic run under the Social Welfare Department. It has also been noted by the learned Single Judge that the post of instructors, which is admittedly a post lower in rank to the Assistant Lecturers, working in the same Polytechnic in which the respondents are employed, are getting the promotional pay scale of Rs. 2200-4000, as such the respondents cannot be discriminated arbitrarily. 17. It is noteworthy that the respondents had filed a claim petition No. 2491 of 1998 before the State Public Services Tribunal claiming the promotional pay-scale of Rs. 2200-4000 (old) with effect from the due date after completion of 14 and 16 years of service and also to direct the appellants to modify the Government Order dated 4.6.1998 to that extent. The learned Tribunal has come to the conclusion that the respondents are similarly situated as Assistant Lecturers in Government Polytechnics run under the Director of Technical Education and the duties and responsibilities performed by the respondents are similar in nature to those who have been granted the promotional pay scale of Rs. 2200-4000, as such it is violative of Articles 14 and 16 of the Constitution. It was also held by the learned Tribunal that the respondents cannot be discriminated simply on the basis of service rules, as such their case deserves reconsideration at the Government level keeping in view the fact that the similarly situated and qualified other persons are getting the promotional pay scale and also because the Instructors have been kept on higher footing. 18. 18. The judgment and order dated 1.11.2000 passed in the said claim petition was not challenged by the appellants and has attained finality. However, while considering the claim of the respondents in compliance of the said judgment and order of the Tribunal, the State Government by order dated 8.10.2001, rejected the representation of the respondents denying the benefit of the pay scale of Rs. 2200-4000 on the same ground which the State Government had taken before the Tribunal. It was not open for the State Government to have reiterated its stand while rejecting the claim of the respondents. The judgment and order of the Tribunal was to be complied with in letter and spirit. In case the appellants were aggrieved by the said judgment, it was open for them to have challenged the same before the High Court. However, they did not challenge the same and as such it has attained finality. 19. We are of the firm view that the judicial order cannot be nullified by an executive order. The learned Single Judge has rightly quashed the order dated 8.10.2001 holding that the said order was not sustainable. 20. It is also to be noted that the benefit of the promotional pay-scale to the Instructors working in the Government Gobind Ballabh Pant Polytechnic, Lucknow, on the ground of right to equality and employment was considered by the High Court and it was held that they are entitled to get the benefit of promotional pay-scale as was admissible to the similarly situated persons in Government Polytechnics run under the Technical Education Department. It appears that the State Government realizing the anomaly in the service rules which governed the service conditions of the respondents, by the first amendment to the Niyamawali, 1991 on 26.8.2004, had introduced the next promotional avenues to the Assistant Lecturers working in Government Gobind Ballabh Pant Polytechnic and hence the next promotional pay scale also became admissible and was given to the respondents. 21. We do not find any infirmity or illegality in the stand taken by the learned Single Judge while allowing the writ petition. 22. In this view of the matter, the special appeal is hereby dismissed being misconceived. 21. We do not find any infirmity or illegality in the stand taken by the learned Single Judge while allowing the writ petition. 22. In this view of the matter, the special appeal is hereby dismissed being misconceived. The judgment and order dated 16.2.2006 passed by the learned Single Judge in Writ Petition No. 4023 (S/S) of 2002, is affirmed with a direction to the appellants to comply with the same at the earliest, say, within a period of two months from the date a certified copy of this order is produced before them, in case the same has not been complied with so far. No order as to costs. ——————