JUDGMENT
1. The issue raised in this writ petition is as regards seniority of the writ petitioner and respondents 4 and 5. Though respondent No. 7 has been impleaded, no relief has been claimed against him. Thus decision of this case will be confined to the respective merits of the petitioner and respondents 4 and 5.
2. Facts may be narrated in a nutshell. The petitioner was appointed temporarily and until further orders as Stenographer Grade-I in the Gauhati High Court at Principal Seat in the scale of Rs. 1125-1975 per month plus other allowances as admissible under the Rules with effect from the date of his assuming charge as such, by order dated 12th June, 1987 issued by the Registrar (Judicial).
3. The petitioner was thereafter transferred to Agartala Bench of the Gauwhati High Court in the vacancy that was caused on promotion of respondent No. 7 to the post of Private Secretary. The said order was issued on 14th March, 1988 to the following effect:-
“Shri R.S. Bhattacharjee, Grade-I Stenographer of the Gauhati High Court is transferred to Agartala Bench of the Gauhati High Court in the vacancy that has fallen vacant on the promotion of Shri Saradindu Bhattacharjee, Grade I Steno to the post of Private Secretary.”
Order of confirmation was issued on 13th May, 1991 as follows:-
“Shri Ram Sankar Bhattacharjee, Stenographer Grade-I is confirmed in his post w.e.f. 28.5.1990 at the Principal Seat of the Gauhati High Court in Guwahati.”
4. The petitioner was given appointment as Private Secretary at Agartala Bench of the Gauhati High Court by another notification
issued in this regard on 21st May, 1992. The order reads:-
“In exercise of the powers conferred under Article 229(1) of the Constitution of India read with Rule 6(a) of the Gauhati High Court (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) Service Rules, 1967, the Hon’ble the Chief Justice of Gauhati High Court is pleased to adjust Shri Ram Sankar Bhattacharjee, Stenographer Grade-I as a member of the staff of the Agartala Bench temporarily and to appoint him temporarily and until further order against the resultant vacancy in the post of Private Secretary to the Hon’ble Judges of Agartala Bench in the scale of Rs. 3000-90-3730-95-4100-100-5000 plus other allowances admissible under the Rules and to post him as Private Secretary to the Hon’ble Judges, Agartala Bench with effect from the date of taking over charge from Shri Saradindu Bhattacharjee, (Senior), Private Secretary, promoted.”
The said appointment was published in Tripura Gazette, Part-I June 20, 1992.
5. The petitioner took over charge as Private Secretary from respondent No. 7 on 23.5.1992. Annexure-7 is the certificate of transfer of charge dated 23rd May, 1992. Mr. B.B. Deb, learned counsel appearing for the petitioner submits that no grievance was taken by respondents 4 and 5 when the petitioner was given appointment as Private Secretary in place of respondent No. 7 whose promotion to the post of Assistant Registrar had caused the vacancy of the post of Private Secretary.
6. On July 24, 1992, the Registrar of Agartala Bench issued an order as regards fixation of pay of the petitioner as Private Secretary. The order is as follows:-
“Consequent on the promotion of Shri R.S. Bhattacharjee, from Stenographer, Grade-I, in the scale of Rs. 2275-4450 to the post of Private Secretary, to Hon’ble Judges in the scale of Rs. 3000-5000, vide notification No. F. 11(19)-HC/92/1759 dt. 21.5.1992. He joined in his present post on 23.5.1992 forenoon. Fixation of pay of Shri Bhattacharjee has been done as per FR 22C in the following manner :
Date
Stenographer.
Grade-I.
Private Secretary
2275-60-2395-80-2875-
EB- 100-3575- 125-4450.
3000-90-3730-75-
4100-100-5000.
23-05.1992
3950.00
23.05.1992
3950.00
4100.00″
7. It may be stated that notification dated 9th June, 1992 was issued in respect of respondent No. 5 as follows: –
“In exercise of the powers conferred under Article 229(1) of the Constitution of India read with Rule 6(1) of the Gauhati High Court (The High Court of Assam, Nagaland, Meghalaya, Manipur, Mizoram, Tripura and Arunachal Pradesh) Services Rule, 1967, the Hon’ble the Chief Justice of the Gauhati High Court is pleased to absorb Shri Manik Dey, Stenographer Grade-I (Private Secretary to the Hon’ble Mr. Justice N.G. DAS) of Principal Seat, Gauhati High Court as Stenographer Grade-I at Agartala Bench with his existing pay & allowances as admissible under the Rules.
This appointment letter is issued as per direction of the Hon’ble the Chief Justice contained in letter No.HC.V-88/90/ 12,959/Estt. dt.8.6.1992 of the Registrar (Judicial), Gauhati High Court, Guwahati.”
I may state here that respondent No.5 was allowed the scale of pay of Rs. 3000-5000 as Private Secretary with effect from 1.9.1992 vide notification dated 5th June, 1995.
8. Mr. B.B. Deb, learned counsel for the petitioner refers me to Annexure-9 dated 27th February, 1979 to say that the post of Private Secretary was made available at Agartala Bench since then and against the said post of Private Secretary respondent No. 7 was given appointment and subsequently as respondent No. 7 was promoted to the post of Assistant Registrar, the petitioner was given appointment as Private Secretary in place of respondent No. 7. In this connection, it is also submitted that respondent No. 4 was given the scale of pay of Stenographer Grade-I even as late as in May, 1996 and till then he was not enjoying the scale of pay of Private Secretary as he was not appointed as Private Secretary. Therefore, it is submitted that the claim of the writ petitioner that he should rank above respondents 4 and 5 in the inter se seniority is justified, inasmuch as he was already allowed the scale of pay of Private Secretary, that is, Rs. 3000-5000 in terms of order issued on 24.7.1992.
9. Mr. D.K. Biswas, learned counsel appears on behalf of respondents 4 and 5. It is submitted that respondent No. 4 is senior to the petitioner by virtue of length of service and also respondent No. 5 is senior to the writ petitioner because of merit in the selection. As such, it is submitted that the petitioner has been placed rightly at serial 3 in the final seniority list.
10. Counter affidavit has been filed on behalf of respondents 4 and 5. Para 4 of the affidavit states that respondent No. 4 was appointed as Stenographer Grade-I on 28.7.1986 and was posted at the Principal Seat and that respondent No. 5 and the petitioner joined service on the same day, but in the select list the position of respondent No. 5 was above that of the petitioner, though both joined on 12.6.1987. It is contended, therefore, that seniority has been rightly fixed. It is also contended in para 5 of the counter affidavit that while issuing the order of appointment as Private Secretary in respect of the writ petitioner, there was nothing to show that it was a case of promotion, inasmuch as the word “Promotion” was not used in the notification dated 21.5.1992. It is also further stated that the petitioner cannot claim seniority/ benefit of pay scale by virtue of the said notification. As regards this submission, Mr. Deb submits that the petitioner was in fact given higher pay as soon as he was given appointment as Private Secretary in place of respondent No. 7. As such, it is submitted that the petitioner indeed got financial benefit as respects the scale of pay. As regards the benefit under FR 22-C in the matter of fixation of scale of pay of the writ petitioner, respondents 4 and 5 contend that this was done wrongly by the High Court. Mr. Biswas has referred in a decision of this Court in Civil Rule 173/90. In the said case certain anomalies of pay concerning the Agartala Bench were sought to be determined. In para 19 of the said order it was pointed out that for the Stenographer Grade-I scale of pay was fixed at Rs. 2100-4530 though there is no post of Stenographer Grade-I in Tripura, as there is a separate set of rules known as Tripura Government Stenographers’ Service Rules and under the said rules, there are as many as six grades of Stenographers and for promotion to each grade, no separate test is conducted and promotion depends on the length of service and vacancy. It is also stated further:
“There is already a post in the Agartala Bench called Private Secretary to Judges, carrying pay scale of Rs. 3000 – 5000 and the practice in the High Court is that a Grade-I Stenographer when attached with an Judge, he is called Private Secretary and as such he cannot be denied the above pay scale of Rs. 3000-5000 as it will amount to discrimination and violative of the principle of equal pay for equal work, thereby Article 14 wilt be attracted.”
It appears to allow similar scale of pay and allowances to the Private Secretaries as of today is fair and there is no grievance as regards
this issue. The point at issue is as to who should be said to be senior in the facts and circumstances of the present case as regards the pay and allowances and the actual status or grade of the service as Grade-I Stenographer and also as Private Secretary, as such post was available at Agartala though such post was not available at other places including the Principal Seat at Guwahati. On careful perusal of the order dated 14th March, 1988 issued by the Registrar, Annexure-2, I am of the opinion that the post of Private Secretary was a promotional post at Agartala at the relevant time, inasmuch as the petitioner was transferred as Grade-I Stenographer against the vacancy caused on promotion of respondent no. 7 to the post of Private Secretary. It is further evident that when respondent No. 7 was given appointment as Assistant Registrar, the writ petitioner was appointed as Private Secretary against the post vacated by respondent No. 7.
11. Relying on AIR (1991) SC 295 with particular reference to para 11, Mr. Biswas draws my attention to the portion of the order which states:-
“…..The Chief Justice is the prime force in the High Court. Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the Court as may be directed by the Chief Justice. The object of this Article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appointment supporting staff with complete control over them is vested in the Chief Justice. There can be no disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law, not in the neighbourhood of sorded atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethoes and traditions of his calling.”
I may state here that the appointment of the petitioner as Stenographer Grade-I on 12th June, 1987 and the subsequent order of transfer of the petitioner on 14th March, 1988 to Agartala Bench against the vacancy caused on the promotion of respondent No. 7 who had been promoted to the post of Private Secretary were both passed by the High Court at Guwahati. However, the said
orders went unchallenged at the relevant time.
12. In AIR (1998) SC 805, it was held that classification of post into Gazetted or non-Gazetted cannot be done purely on the basis of scales of pay, inasmuch as there may be many criteria; administrative, procedural and others which have to be taken into consideration by the authorities concerned before deciding on the classification. It was also further held that the simplistic solution to classification merely based on the scales of pay might lead into various complications and might lead to administrative hierarchal imbalances in any particular organsiation. The said case is related to the employees of the Railways. The plea of the Accounts staff in the Railways that since they had been granted the scale of pay of Rs. 2000-3200 which was same as in Comptroller and Auditor General of India (CAG) and Comptroller General of Defence Accounts (CGDA) that should be correct partly improved classification with their counter-part in CAG and CGDA Organisations or in other-words they should also be granted the Group-B Gazetted status as given in CAG and CGDA was not accepted merely on the basis of parity of pay scales. The case in hand relates to the Stenographers working under the same High Court. In the light of the facts and circumstances that have been stated in the foregoing paras, in my view, the decision of this case will not be of any help to the cause of the respondents 4 and 5.
13. Mr. Ashok Chakraborty, learned counsel appearing for respondent No. 1 submits that the petitioner was given the post of Private Secretary by the Chief Justice by way of adjustment and not promotion. Therefore, it is submitted that the petitioner cannot claim seniority or superiority in any manner over the respondents 4 and 5. Mr. Chakraborty further submits that notification dated 24th July, 1992 by which fixation of pay of the petitioner was done as per FR 22-C was wrongly done. It is the submission of Mr. Chakraborty that the virtue of the aforesaid notification, if the petitioner’s cadre is distinct, then he cannot be included in the common seniority list. Para 3 of the counter affidavit filed on behalf of respondent No. 1 states that the seniority list has been finally published showing the respondents 4 and 5 above the petitioner after carefully taken into consideration the objection submitted by the petitioner, inasmuch as respondent No. 4 was appointed on 28.7.1986 as Grade-I Stenographer and joined at the Agartala Bench. It is further stated that respondent No. 4 was thereafter transferred to the Principal Seat on 2.12.1986, but he has been confirmed against the post of Grade-I Stenographer of the Agartala
Bench with effect from 2.4.1990. It is also further stated that the petitioner was appointed as Stenographer Grade-I at the Principal Seat at Guwahati on 12.6.1987 and as such he is junior to respondent No. 4. Also it is further stated that the respondent No. 5 was appointed on the same selection wherein the petitioner has been placed below the respondent No. 5 in merit and therefore the petitioner is junior to respondent No. 5. Respondent No. 5 has been confirmed against a post of the Principal Seat with effect from 27.5.1990. Mr. Chakraborty, therefore, submits that by virtue of length of service, respondent No. 4 is senior to the petitioner and also because of merit in the selection respondent No. 5 is senior to the petitioner. It appears to me that whenever Grade-I Stenographer is attached to the Judges, some allowances are allowed as far as the Principal Seat at Guwahati is concerned; whereas it seems clear that there was a difference in scale of pay between the Stenographer Grade-I and Private Secretary at the relevant time at Agartala.
14. It appears the fact that the post of Private Secretary was in existence at Agartala cannot be denied, inasmuch as the post of Private Secretary was earlier held by one Bardhan while one Deb Roy was serving as Stenographer Grade-I. Thereafter respondent No. 7 was also appointed on promotion as Private Secretary. In such appointments invariably there was a difference in the scale of pay payable to Stenographer Grade-I and the Private Secretary. Mr. B.B. Deb, learned counsel for the petitioner submits that appointment of the petitioner was by way of adjustment, but this adjustment was clearly against a higher Grade at Agartala irrespective of whether the word “Promotion” was used. According to Mr. Deb adjustment means, it is already a settled thing and in fact it is a matter of settlement by way of adjustment. It is also further submitted that it was in fact a question of appointment when the petitioner was given the scale of Rs. 3000-5000. As stated above, the appointment of the petitioner in the scale of pay of Rs. 3000-5000 and also the notification by which fixation of the scale of pay of the writ petitioner was made under FR 22-C were never challenged by the respondents.
15. It has been brought to my notice that though respondent No. 4 claims to be of Agartala Bench, his seniority is maintained at the Principal Seat at Guwahati. It may be stated that respondent No. 4 has been at the Principal Seat at Guwahati for many years, but not on deputation. That is how his inter-se seniority is counted at the Principal Seat at Guwahati. In the gradation list of
Stenographer Grade-I in the Gauhati High Court at Guwahati the name of respondent No. 4 appears at serial 9. As stated earlier the scale of pay of respondent No. 4 in May, 1996 was Rs. 2275-4450; whereas the petitioner was already in the scale of pay of Rs. 3000-5000 with effect from 21.5.1992. The respondent No. 5 came into the scale of pay of Rs. 3000-5000 only with effect from 1.9.1992 vide order dated 5th June, 1995.
16. Upon careful perusal of all the pleadings/documents filed in the present case and after hearing counsel representing the parties, this petition is allowed. In my view the petitioner will have an edge over respondents 4 and 5. The seniority list as on 25.11.1995 vide order dated 28th November, 1995 is quashed. Respondent No. 1 is directed to prepare a fresh seniority list.