JUDGMENT
A.K. Yog. J.
1. Sri S.C. Budhwar, Senior Advocate and Sri Shailendra, Advocate on behalf of the petitioners; Sri Vinod Swaroop, Addl. Advocate General assisted by Sri M.S. Pipersenia, Standing Counsel on behalf of respondent No. 1, and Sri K.R. Sirohi, Advocate on behalf of respondents No. 2 and 3 present and heard. Perused the record of the case.
2. Association, called-‘The Bench Secretaries’ Brotherhood, High Court, Allahabad’, as well as Rama Kant Lai, one of its member are the petitioners in the leading Writ Petition No. 47197 of 1999 under Article 226, Constitution of India, wherein they claim following reliefs:
“(A) To issue a writ or order or direction in the naturte of certiorari, quashing the decision dated 6.10.1998 of Hon’ble Chief Justice (Administrative side) in pursuance of the report of three Hon’ble Judges Committee dated 9.2.1998 and 13.4.1998 to the extent it denied benefit of pay scale equivalent to Court Masters to Bench Secretaries Grade-II.
(B) To issue a mandamus directing the respondents to place Bench Secretaries Grade-II of this Court in the pay scale of Rs. 3000-4500 with effect from 1.1.1986 as is admissible to the Court Masters of Delhi High Court in view of the fact that Bench Secretaries Grade-II of this Court have post to post party of Court Masters of Delhi High Court and in view of State Government resolution dated 14.10.1988 as implemented in respect of the State Government employees and staff of this Court and to
gtive further consequential revision of pay with other consequential benefits, i.e. arrears of pay etc.
(C) To issue a writ or order or direction in the nature of direction respondents No. 2 and 3 to proovide certified copy of order of Hon’ble Chief Justice dated 6.10.1988 and report dated 9.2.1988.and 13.4.1988 of Hon’ble Judges Committee constituted by Hon’ble the Chief Justice in compliance of judgment of the Hon’ble Court dated 1.11.1996 in Writ Petition No, 26550 of 1995 as petitioners have already applied for the same.
(D) To issue any other writ, order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case.
(E) To award costs throughout to the petitioners.”
3. In order to appreciate the controversy in the present writ petitions, it is essential to notice salient facts of the case.
4. In the said writ petition respondent No. I/State of U.P. filed counter affidavit sworn by S.M.A; Abdi, the then Special Secretary Law/L.R., U.P. Government, Lucknow, A rejoinder affidavit in its reply has been filed. counter affidavit, sworn by Sri T.M. Khan, O.S.D. (Litigation), High Court Allahabad, has been filed on behalf of respondents No. 2 and 3/Hon’ble the Chief Justice, High Court, Allahabad and High Court through its Registrar. A rejoinder affidavit in its reply, has also been filed. Petitioner has also filed a supplementary affidavit dated 15.9.2002 (after serving a copy of it upon the Counsel representing High Court, Allahabad on 15.9.2000) annexing copy of the report of Three Judges’ Committee appointed by Hon’ble the Chief Justice dated 9.2.1998 (in pursuance of the judgment of the Division Bench in Civil Misc. Writ Petition No. 26550 of 1995) as well as its supplementary report dated 13.4.1998 (Annexure Supplementary Affidavit-1 and Supplementary Affidavit-2 respectively). Aforesaid annexures Supplementary Affidavit-2 and Supplementary Affidavit-2 to the said supplementary affidavit have also been annexed as Annexure CA-1 and CA-2 to the counter affidavit of respondents No. 1 and 2 as directed by the Division Bench in this Writ Petition, vide the order dated 11.11.1999.
5. The respondents, however, did not file copy of the order of the Hon’ble the Chief Justice dated 6.10.1998 which has, however, been brought on record in pursuance to our orders dated 16.5.2003.
6. It will not be but of place to note here that a supplementary counter affidavit has been filed in pursuance to our order dated 16.5.2003 wherein the Court required respondents No. 2 and 3 to submit information before the Court to our specific queries whether there was any difference in the source of recruitment, mode of selection, duties, nature and quality of work, degree of responsibilities, quantum of work, work field etc. pertaining to the post of Bench Secretaries Grade I on one hand and Bench Secretaries Grade II on the other hand if there was any difference of distinguishing features may be brought on record.
7. Respondents No. 1 and 2 have avoided to answer the said query in categorical manner. Record of the present case, contain no pleading or document from which one may find out that there is any difference between the Bench Secretaries of Grade I and Grade II vis-a-vis their nature of work, quantum of work, the responsibilities borne by them.
8. Allahabad High Court Registerial establishment is constituted and governed by Allahabad High Court (Condition of Service of Staff) Rules 1946, called Rules, 1946; copy of the Rules, 1946 has been filed as Annexure-1 to the writ petition/Rule 9 of said Rules contemplates cadre of Bench Readers (Subsequently) redesignated as Bench Secretaries). There was no diversification of pay scale among Bench Secretaries in Allahabad High Court. Subsequently, with effect from July 13, 1976 the Allahabad High Court Officers and Staff (Condition of Service and Conduct) Rules, 1976 were brought in force by the Hon’ble the Chief Justice of the High Court exercising powers under Article 229(2), Constitution of India, called Rules, 1976 which were again subsequently amended; copy of said amended Rules is Annexure-2 to the writ petition.
Rules 4 to 18, 40, 41 and 42 are relevant.
Rule 8 deal with recruitment of Class III and IV posts; relevant extract of it is reproduced :
“(a) to (d)……………………………………………………………………
(e)(a) Bench Secretaries Grade II:
(Continuous Service in Class III By selection through competitive
posts) examination to be conducted by the
appointing authority open to the
permanent Upper Division
(Amended vide Notification dated Assistants and permanent Lower
28.5.92) Division Assistants having not less
than ten years service on that post.
Preference shall however be given
to candidates. possessing a Law
Degree.
Rule 9.........................................................................................................
Rule l0........................................................................................................
11. Method of selection to the post of Bench Secretary.-(1) Whether it is required to make selection to fill up any vacancy/vacancies in the post of Bench Secretary the
apointing authority shall invite applications from the eligible permanent Upper Division Assistants for admission to the competitive examination.
(2) The procedure and the syllabus relating to the competitive examination shall be such as may be prescribed by the appointing authority from time to time.
(3) The rest of the procedure of selection and the period during which the select list shall hold good shall be the same as laid down in Rule 10.
16. Sources of recruitment to Class II posts.-The sources of recruitment to the various Class II posts in the establishment shall be as follows :
(a).....................................................................................................
(b) Bench Secretaries, Grade I. By transfer of one of the Section Officers of General Office or Bench Secretary, Grade I.
(c), (d),
(e)..........................................................................................
18. Method of selection for all promotion posts.-
(ii) Criterion of selection for each case shall be merit with due regard to seniority.
Rule 40. Regulation of other matters.-(1) All officers and servants of the Court shall be subject to the superintendence and control of the Chief Justice.
(2) In respect of all matters (not provided for in these Rules) regarding the conditions of service of officers and servants of the Court including matters relating to their conduct, control and discipline, the Rules and orders for the time being in force and applicable to Government servants holding corresponding posts in the Government of Uttar Pradesh shall apply to the officers and servants of the Court subject to such modifications, variations and exceptions, if any, as the Chief Justice may, from time to time, specify :
Provided that no order containing modifications, variations or exceptions in Rules or orders relating to salaries, allwances, leave or pensions shall be made by the Chief Justice except with the approval of the Governor :
Provided further that the said powers exercisable under Rules and orders of Government of Uttar Pradesh by the Governor shall be exercised by the Chief Justice or by such officer as he may, by general or special order, direct.
(3) If any, doubt arises in regard to a particular post in the establishment being corresponding to a post in the State Government, the matter will be decided by the Chief Justice.
41. Residuary powers.-Nothing in these Rules shall be deemed to affect the power of the Chief Justice to make such orders, from time to time, as he may deem fit in regard to all matters incidental or ancillary to these Rules not specifically provided for herein or in regard to matters as has not been sufficiently provided for :
Provided that, if any, such order relates to salaries, allowances, leave or pensions, the same shall be made with the approval of the Governor of U.P.
42. Interpretation.-All question relating to the interpretation of these Rules shall be referred to the Chief Justice, whose decision thereon shall be final.”
9. Posts, called Bench Secretaries Grade-I, carry a little higher pay scale than the posts of Bench Secretaries Grade II so as to avoid stagnation and to maintain the expectations alive of the person working as Bench Secretaries. Diversification in pay scale of Bench Secretaries was done by placing some of them as Bench Secretaries Grade-I (in Class II Posts) on the basis of seniority and as per Rules with a view to open up avenues for a little higher pay scale. The Bench Secretaries were, thus, divided in two groups- Bench Secretaries Grade I and Bench Secretaries Grade II, but without change in qualifications, nature of work and duty, responsibility etc., as is evident from G.O. dated July 2, 1976/Annexure 3 to the writ petition. Para 4 of the said G.O. clearly mentions that the duties and responsibilities of Bench Secretaries Grade-I Bench Secretaries Grade-II shall be the same.
10. Petitioners contend that Government of Uttar Pradesh, had finally decided by taking a ‘policy decision’ to remove anomalies and bring party on the principle of ‘Equal Pay for Equal Work’ and for this purpose, it constituted an ‘Equivalence Committee’ vide Government Notification dated October 14, l988/Annexure-4 to the writ petition.
11. Equivalence Committee, U.P. carried out the exercise and submitted its report-Titled “Prativedan-Samta Samiti, U.P., 1989” (Armexure-5 to the writ petition).
12. According to this report, criteria for equivalence of posts was to be done on the basis of (i) prescribed qualification, (ii) source of recruitment, (iii)
selection process, (iv) duties, (v) responsibilities, (vi) work load and (vii) work field. Para 5.4 (2) of the report provides that pay scale aplicablelk to an equivalent post in Central Government shall be kept in mind while fixing pay scale in the State of U.P.. It also gave details of said posts in a list, said to have been given at page 39-40 of the report. Para 5.9 mandated for merger/assimilation of two pay scales with too little difference in the two Pay Scales and if it created anomaly in promotion, it could be taken care of by requisite amendments in the concerned Rules.
13. Para 6.26 of the report reaffirmed the decision of the State Government that the pay scales applicable in the Secretriat of U.P. Government will be applicable, apart form other, to the High Court employees also.
14. The petitioners’ Brotherhood which is comprised of both Bench Secretaries Grade I and II filed representation dated 4/12,2.1993 (Annexure-7 to the writ petition) stating that it was conscious that corresponding post of Bench Secretaries was not available either in the State Secretariat or in the Central Secretariat, and that their post was comparable and corresponded to the post of the ‘Court Master’ of Delhi High Court. On that basis, it is coontended that they are entitled to the same scale of pay as was admissible to the ‘Court Masters’ of Delhi High Court; that there is no rationale to treat them differently when the duties and responsibilities of the Bench Secretaries of the Allahabad High Court and those of Court Masters of Delhi High Court are virtually the same comparable with each other.
15. A representation under Rule 40 (3) of Rules, 1976 (Annexure-8 to the writ petition) was addressed to the Hon’ble the Chief Justice mentioning that the Bench Secretaries Grade II be allowed pay scale of Rs. 3000-4500 (as in the case of Court Masters of Delhi High Court) and Bench Secretaries Grade I be allowed pay scale of Rs. 3000-4750.
16. The then Registrar of the High Court, vide D.O. Letter dated February 21, 1994 addressed to Judicial Secretary/L.R., U.P. Government, Lucknow
(Annexure-9 to the writ petition), submitted details of the posts in the cadre of Bench Secretaries in the establishment of the High Court, as follows :
(i) Sixty eight (68) post of Bench Secretaries Grade II’ in the pay scale of Rs. 2000-3200;
(ii) Nineteen (19) post of ‘ Bench Secretaries Grade I’ in the pay scale of Rs. 2000-3500;
(iii) One (1) post of ‘Section Officer Bench Secretaries Section-in the pay scale of Rs. 2000-3500;
(iv) Two (2) posts of Bench Sectaries in the Senior Pay Scale of Rs. 3000-45000;
Total-90 posts.
17. In the said D.O. Letter the then Registrar, High Court, Allahabad stated-
“However in the instant case there is no question of Governors’ approval
because the Government of Uttar Pradesh itself took the policy decision (vide Adhyay-2 Adhikardesh on page 3 of the report of Equivalence Committee, U.P., 1989, Part I) to pay Central Pay Scale and granted Central Pay Scales to the staff of Allahabad High Court with the approval of the Governor but the State Government committed an error in not comparing the petitioners with their counterparts attached with the Secretaries to Government of India as well as with the Judges of Delhi High Court who are holding exactly
correcponding posts in the Central Government rather it compared them with others in the Central Government. Considering all the factors which were taken into account by this Hon’ble Court in the aforesaid Writ Petitions, the Secretary of the Bench Secretaries Brotherhood has pointed out that the Bench Secretaries Grade II are also entitled to minimum scale of Rs. 3000-4500 and Bench Secretaries Grade I to Rs. 3000-4750.
I am, therefore, to request that demand of the Bench Secretaries for grant of the aforesaid pay scales may kindly be considered favourably in the light of observations made in the aforesaid two Writ Petitions,
orders of Government in the matter may be obtained and communicated to the Court at an early date.”
18. Since the grievance of the Bench Secretaries was not redressed, Writ Petition No. 26550 of 1995, Sri Ramji Yadav and Anr. v. State of U.P. and Ors., was filed. The said writ petition which was filed by Bench Secretaries (both Grade I and II), was decided by
Division Bench presided by Hon’ble R.A. Sharma and Hon’ble S.R. Alam, JJ., vide judgment and order dated November 1, 1996; copy filed as Annexure-10 to the writ petition.
Relevant excerpts of the said judgment are reproduced :
“…….Petitioners, therefore, made representation before the Hon’ble the Chief Justice claiming the pay-party with Court Masters in Delhi High Court. This has been sent to the Government with recommendation by this Court. There being no response from the Government and Hon’ble the Chief Justice, the petitioners have filed this writ
petition for writ of mandamus “directing the respondents to grant pay scale of Rs. 3000-4500 to the petitioners working as Bench Secretaries Grade II and pay scale of Rs. 3000-4750 to the petitioners working as Bench Secretaries Grade I with effect from 1.1.1986 with all consequential benefits.”
Grievance of the petitioners is that although the Bench Secretaries in this Court perform the same functions which are performed by the Court Masters of Delhi High Court, but they have not been given the same pay scale which is paid by the Delhi High Court to its Court Masters. In this connection learned Counsel for the petitioners have invited attention of the Court various paragraphs in the writ petition, the rejoinder affidavit and the documents annexed thereto. But those averments have been disputed in the counter affidavit. It has also been stated in Paragraph 3 (ii) of the counter affidavit filed on behalf of the State Government, that the employees of this Court are entitled to the party with the employees working in the U.P. Secretariat; but they cannot claim party with the employees of the High Court at Delhi. This fact has, however, been disputed by the
petitioners in their rejoinder affidavit. This question is, however, no more res Integra, because it has already been decided by a Division Bench of this Court in Private Secretaries and Personal Assistants Brotherhood High Court, Allahabad v. State of U.P. and Ors. (Writ Petition No. 1408 of 1993), decided on 21.12.1998 upholding the claim of the Private Secretaries and Personal Assistants attached to the Judges of this Court for party in pay scales with their counter-parts in Delhi High Court. In the said case the Division Bench has held the Additional Sessions Judge, follows :
(i) The employees of this Court are entitled to the party in pay scales with their counter-parts in Delhi High Court;
(ii) The question as to whether a particular post on the establishment of this Court corresponds to a post in Delhi High Court, is the question to be decided by Hon’ble The Chief Justice…………………………….However, in the instant case, there is no question of Government approval because the Government of Uttar Pradesh itself took the policy decision (vide Adhyay-2 Adhikaradesh on Page 3 of the Report of Equivalence Committee, U.P., 1989, Part “I”) to pay Central Pay Scales. But the State Government committed an error in not comparing the petitioners with their counterparts attached with the Secretaries to Government of India as well as with the Judge of Delhi High Court who arc holding exactly corresponding posts in the Central Government rather it compared them with others in the Central Government. The doubt regarding equation of a particular post in the establishment of Allahabad High Court was to be resolved by the Chief Justice of Allahabad High Court, which in the instant case stands resolved by the Chief Justice while approving the claim of petitioners, which was communicated to Government by the Registrar of this Court.”
19. After quoting sub-rule (3) of Rule 40 Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, said judgment went on to
observe :-
“It is relevant to notice that at the time of framing of aforesaid Rules the Staff of High Court was being paid the pay scales of State Government and not the Central Government, therefore, after the policy decision of Government of U.P. to pay the pay scales of Central Government the terms ‘State Government’. Accordingly, the question in regard to a particular post in the establishment of High Court being corresponding to a post in the Central Government is to be decided by the Chief Justice of Allahabad High Court.
Sri Rakesh Dwiyedi, learned Additional Advocate General has, in this connection fairly stated that neither the State Government nor any of the committee, appointed by it, has considered the demand of the petitioners for party in their pay-scale with the Court Masters of the Delhi High Court. Mr. Dwivedi has, therefore, submitted that this matter should be decided by Hon’ble the Chief Justice. Learned Counsel for the petitioners, however, opposed the above contentions of Sri Dwivedi and have prayed for decision by this Court on the basis of the material available on the record. The contention of the learned Counsel for the petitioners cannot be accepted for two reasons; viz, (i) whether a particular post on the establishment of this Court corresponds to a post on the establishment of Delhi High Court, is a question to be decided by Hon’ble the Chief Justice, as held by the Division Bench in the case of Private Secretaries and Personal Assistants Brotherhood v. State of U.P. and Ors. (supra); and (ii) there is serious dispute between the parties regarding the duties, functions and the status of the Bench Secretaries of this Court and Court Masters of Delhi High Court. Such a dispute cannot be resolved under Article 226 of the Constitution. We are of the considered view that this matter should be remitted to Hon’ble the Chief Justice.
In this connection it may be mentioned that the learned Counsel for the petitioners have pressed this petition only for the grant of pay-scale of Rs. 3000-4500 to the Bench Secretaries Grade I and II on the basis of party in the pay-scale with the Court Masters of Delhi High Court. Learned Counsel for the petitioners have accordingly not pressed the writ petition for the grant of pay-scale of Rs. 3000-4750 to Bench Secretaries Grade I. Therefore, the ground question regarding the entitlement of the Bench Secretaries Grade I to the pay scale of Rs. 3000-4750 has not been dealt with by us.
For the reasons given above, this writ petition is partly allowed. Hon’ble the Chief Justice of this Court is requested to decide the question as to whether the posts of Bench Secretaries Grade I and II on the establishment of this Court correspond to the posts of Court Masters of Delhi High Court, as expeditiously as possible. It will be open to Hon’ble the Chief Justice to get this question considered by a Committee consisting of one or more Hon’ble Judges of this Court and pass appropriate order after receipt of the report of the said Committee. In case it is found that the posts of Court Masters in Delhi High Court correspondent to the posts of Bench Secretaries of this Court, appropriate action will be taken for fixation of pay scale of the petitioners. In view of the facts and circumstances of the case there shall be no order as to costs.
November 1, 1996.
Sd./-
R.A. Sharma, J.
S.R. Alam, J”
20. We are informed by the learned Counsels for both side that two Special Leave Petitions against the aforesaid decision of the Division Bench, one by High Court and the other by the State Government, were filed before the Supreme Court. Appeal filed by this Court was dismissed as withdrawn, whereas the appeal filed by the State Government was dismissed on merits.
21. In pursuance to the aforesaid judgment in the case of Ramji Yadav and others (supra), Hon’ble the Chief Justice in exercise of power vested under Article 229(2), Constitution of India, constituted and Committee of ‘Three Hon’ble Judges.’
22. The State Government placed its stand by submitting a written statement which has been made part of letter dated May 10, 1997 written by the then Principal Secretary (Judicial)/L.R. to the High Court informing that Special Leave Petition against the aforementioned Division Bench Judge in the case of Sri Ramji Yadav (supra) was pending and hence requesting for hearing to be deferred, Annexure 12 to the writ petition. 23. It has come on record that the said Special Leave Petition has been dismissed by the Apex Court, vide its judgment dated 7.7.1997 (Annexure-14 to the writ petition) and hence the Division Bench judgment in the case of Sri Ramji Yadav (supra) attained finality and thus binding between the parties to the aforesaid writ petition.
24. The petitioners have annexed a chart, showing comparative status/position of Court Masters of Delhi High Court and Bench Secretaries of Allahabad High Court as Anncxurc-17 to the writ petition.
25. We may also refer to the copy of the Government Letter dated December 23, 1997 (Annexure-18 to the writ petition) wherein two pay scales of Rs. 2000-3200 and 2000-3500 (applicable to Bench Secretaries Grade II and I respectively) were recommended to be merged into one scale and proposed to be revised to Rs. 6500-10,500.
26. Petitioners have filed copy of letter dated June 3, 1999 (Annexure-20 to the writ petition) to show that they made request for obtaining copy of the report of Three Judges’ Committee and the order dated 6.10.1998 passed by the Hon’ble The Chief Justice thereon accepting the report. It is stated in the writ petition that petitioners were denied the above. This is not controverted by the concerned respondents.
27. In the counter affidavit filed on behalf of respondent No. 1, main plea, apart from
others, is to the effect that ‘Three Hon’ble Judges’ Committee’ found that ‘Post of Bench Secretaries Grade II was not equivalent to the post of ‘Court Master’ of Delhi High Court, and therefore, Bench Secretaries Grade II cannot claim party with them and hence not entitled to the pay scale of Rs. 3000-4500.
28. Curiously, no endeavour, has been made by the said Respondent No. 1 in its counter affidavit to point out ‘features of distinction’ between post of ‘ Bench Secretaries Grade I’ and post of ‘Bench Secretaries Grade II’.
29. In the rejoinder affidavit, the petitioners have laid stress upon the Division Bench Judgment dated 1.11.1996 (Annexure 10 to the writ petition) requesting the Hon’ble the Chief Justice (or the Committee constituted by him) to examine as to whether posts of Bench Secretaries Grade I and II and on the establishment of this Court correspond to the posts of Court Masters for Delhi High Court.
30. In the counter affidavit of respondents No. 2 and 3, we find that it recitses history relating to creation of the post of Bench Secretaries Grade I and II, report of ‘Three Judges’ Committee’ and order dated 6.10.1998 passed by Hon’ble The Chief Justice which is being justified by repeating the ground contained in the report of the ‘Three Judges’ Committee; namely, judgment of the Supreme Court in the case of State of U.P. and Ors. v. J.P. Chaurasia and
Ors., (1989) 1 SCC 121 : AIR 1989 SC 19.
31. Learned Counsel for the petitioners referred to the report of ‘Three Judges’ Committee’ and submitted-
“(i) The Committee of Three Hon’ble Judges, having come to the conclusion that the duties and all the relevant features, like responsibility, workload, work-field, qualification, recruitment of Bench Secretaries Grade-II being more or less, identical without difference of any kind, and being fully comparable to Delhi Court Masters, the Committee failed to appreciate that they could not denied party of pay scale on the principle of ‘Equal pay for equal work’ accepted and implemented by the State Government. The argument of the learned Counsel for the petitioners is that the Committee having recorded a finding that the duties, responsibilities, workload and nature of work attached to the post of Bench Secretaries Grade II being at par with the Court Masters of Delhi High Court, the Bench Secretaries Grade II were entitled to the same treatment as is given to Bench Secretaries Grade I on the annalogy of the principle of ‘Equal pay for equal work’ on the ground that the duties and responsibilities of Bench Secretaries Grade I were comparable to Delhi Court Masters. Emphasis is on the fact that till date none of the respondents made an endeavour to point out any distinguishing feature in the workload, responsibilities, work-field, source of recruitment and qualification etc. between the Bench Secretaries Grade I and II and therefore, in view of the fact that the Committee had granted party to the Bench Secretaries Grade I with Court Masters of Delhi High Court, there is no rational basis to deprive party with Court Master to Bench Secretaries Grade II.
(ii) The learned Counsel for the petitioners submitted that the case of J.P. Chaurasia (supra) is of no avail and on its basis Bench Secretaries Grade II could not be deprived of benefit of pay scale applicable to the Court Master of Delhi High Court. According to the petitioners, Supreme Court has not at all whittled down or deviated from the settled principle of ‘Equal pay for equal work’ inasmuch as in the case of J.P. Chaurasia the Court was seized of altogether different issue, viz, whether there can be diversification of pay scales in the posts in one cadre. In contrast in the case in hand issue is whether Bench Secretaries Grade II, who are comparable to Delhi Court Masters, are entitled to party with their pay scale.
(iii) Learned Counsel for the petitioners referred to Para 19 of the Judgment in the case of J.P. Chaurasia (supra) wherein their Lordship observed that,”……………all Bench Secretaries in the High Court of Allahabad are undisputedly having same duties…………..”
32. Petitioners also rely upon the D.O. letter of the then Registrar dated February 21, 1996 (Annexure-9 to the writ petition), referred to above.
33. It is being argued that in view of the stand of the High Court itself, as reflected in the said D.O. Letter, the Bench Secretaries Grade II were on the principle of party and Equal Pay for Equal Work, entitled to the same pay scale as is admissible to the Court Masters of Delhi High Court.
34. In short, argument of petitioners is that Bench Secretaries Grade II are entitled to party in pay scale with the Court Masters of Delhi High Court since they are comparable with them and in case, it is further advised or desired or deemed appropriate, there can be further diversification of pay scale applicable to (as was done in the past) between Bench Secretaries Grade I and II; respectively as approved by the Apex Court in the case of J.P. Chaurasia (supra). According to the petitioners Bench Secretaries Grade-II cannot be denied their lawful claim on the basis of party (which is established on record) with Delhi Court Masters on the alleged pretext of the Judgment by Apex Court in J.P. Chaurasia which is otherwise not at all relevant to their claim/case.
35. Sri K.R. Sirohi Advocate, appearing on behalf of Respondents No. 2 and 3, made statement after seeking instructions, that the duties, responsibilities pertaining to the posts of Bench Secretaries Grade I and II are identical except that Bench Secretary Grade I was appointed on the basis of seniority as contemplated under Rule 18 of Rule, 1976 and by ‘virtue of it Bench Secretary Grade I becomes entitled to a little lighter pay scale, but without change in their duties, nature of work responsibility etc.
36. Sri Vinod Swaroop, learned Addl. Advocate General, appearing on behalf of respondent
No. 1, referred to the reliefs claimed in the writ petition, quoted earlier and submitted that {he same cannot be granted by the Court in exercise of its jurisdiction under Article 226, Constitution of India. He seeks to rely upon the case State of Maharashtra v. Association of Court Stenos, P.A., P.S. and
Anr., (2000) 2 SCC 141 (Paragraphs 5, 6 and 7).
37. It is being argued that Hon’ble the Chief Justice cannot fix pay scale by himself without framing relevant Rules which should have approval of the Governor of the State as contemplated under Article 229(2), Constitution of India.
38. The Apex Court, in the case of State of Maharashtra (supra), observed :
“…………….The approval of the Governor, therefore, is a condition precedent to the validity of the Rules made by the Chief Justice and the so-called approval of the Governor is not on his discretion, but being advised by the
Government. It would, therefore, be logical to hold that apart from any power conferred by the Rules framed under Article 229, the Government cannot fix the salary or authorize any particular pay scale of an employee of the High Court…………..In the aforesaid premises, it requires consideration as to whether the High Court in its discretionary jurisdiction
under Article 226 of the Constitution, can itself examine the nature of work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the judgment under challenge the Court appears to have applied the principle of “equal pay for equal work” and on an enaluation of the nature of duties discharged by the Court Stenographers, Personal Assistant and Personal Secretaries, has issued the impugned directions. In Supreme Court Employees’ Welfare Association v. Union of India, this Court has considered the powers of the Chief Justice of India in relation to the employees of the Supreme Court in the matter of laying down the service conditions of the employees of the Court, including the grant of pay scale and observed that the Chief Justice of India should frame Rules after taking into consideration all relevant factors including the recommendation of the Pay Commission and submit the same to the President of India for his approval. What has been stated in the aforesaid judgment in relation to the Chief Justice of India vis-a-vis the employees of the Supreme Court, should equally apply to the Chief Justice of the High Court vis-a-vis the employees of the High Court.
Again the Apex Court has observed that in view of the aforesaid decision of this Court, it is difficult for us to sustain the impugned judgment, where under the High Court in exercise of its jurisdiction under Article 226, has issued the mandamus, directing a particular pay scale to be given to the Court Stenographers Personal Assistant and Personal Secretaries attached to the Hon’ble Judges of the Court…………It is no doubt true that the doctrine of “equal pay for equal work” is an equitable principle but it would not be appropriate for the High Court in exercise of its discretionary jurisdiction under Article 226 to examine the nature of work discharged by the staff attached to the Hon’ble Judges of the Court and direct grant of any particular pay scale to such employees, as that would be a matter for the learned Chief Justice within his jurisdiction under Article 229(2) of the Constitution. We, however, hasten to add that this may not be construed as total ouster of jurisdiction of the High Court under Article 226 to examine the nature of duties of an employee and apply the principle of “equal pay for equal work” in a appropriate case…………But we refrain from expressing any final opinion on the same, as in our view this would be a matter for the learned Chief Justice of the Court to decide in exercise of power under Article 229(2) of the Constitution rather than a matter for a Court to issue a mandamus on the judicial side. We, therefore, set aside the impugned directions given by the Bombay High Court and observe that it would be a matter for the learned Chief Justice of the High Court to frame the appropriate Rules in accordance with the constitutional provisions, which could be duly approved by the Governor, so that the grievances of the employees of the Court could be mitigated.”
39. Learned Counsel for Respondent No. 1 then referred to the case Supreme Court Employees’ Welfare Association v. Union of India and
Anr., (1989) 4 SCC 187. The said judgment is referred to in the aforesaid case of State of Maharashtra (supra) and, therefore, no useful purpose will be served to deal with it separately.
40. In the case of Union of India and Ors., v. Indu Lal and Ors., (2002) 9 SCC 62, Court was considering appointment of Law Assistant and
Chief Law Assistant in Railway Establishment. On the other hand, in the instant case, we are dealing with the establishment of Allahabad High Court governed by Rule, 1976. ‘Comparability of party’ is to be decided by Hon’ble the Chief Justice under Rule 40 (3) read with Rule 41 of Rules, 1976. In view of Rule, 1976, governing the subject matter, the said decision renders no assistance to the respondents.
41. The learned Addl. Advocate General further submitted that the direction contained in ‘Three Hon’ble Judges Committee Report’ dated February 9, 1998 exceeded in its jurisdiction and went beyond the scope of direction contained in the Division Bench judgment and order dated 1.11.1996 (Annexure-10 to the writ petition) which required Hon’ble Chief Justice of the Court to decide the question as to whether the post of Bench Secretaries Grade I and II corresponds to the post of Court Masters of Delhi High Court.
42. It is not disputed that it is the discretion of Hon’ble the Chief Justice to get this question considered by a Committee consisting of one or more Hon’ble Judges of the Court.
43. We have carefully read the direction given by the Division Bench in its judgment dated 9.2.1998 (Annexure-10 to the writ petition).
44. Relevant passage of the Committee report may be reproduced for convenience:-
“We, therefore, recommend that the Bench Secretaries Grade I, of the Allahabad High Court should be given the pay scale of Rs. 3000 to 4500 (as admissible prior to the recommendation of the Vth pay Commission at par with the Court Masters of the Delhi High Court. It is gathered that the Bench Secretaries are now drawing certain allowances at par with certain officials of the Secretriat. Once they claim and get parity with the Court Masters of Delhi High Court, this allowance given to them in addition to their pay must be stopped. The scale of pay given to the Bench Secretaries Grade I may not, however, be claimed by the Bench Secretaries Grade II of the Allahabad High Court as their claim of party with the Grade I Bench Secretaries had already been rejected by the Apex Court and that decision is final on that question.
Submitted to the Hon’ble the Chief Justice for consideration and necessary action.”
45. We do not find any thing, which may be in conflict and in excess of the direction contained in the Division Bench judgment in the case of
Ramji Yadav and Anr. (supra). Supplementary report, dated April 13, 1998, also cannot be assailed on the ground suggested by the learned Addl. Advocate General.
46. The additional report of the Committee reads-
“We, therefore, find no reason to give a go-by to this classification only for the reason that the Government has decided to unify the two pay scales of Rs. 2000-3200 and Rs. 2000-3500. In our view, again, this difference in pay scales, in between the two grades of the Bench Secretaries should be maintained, as the higher scales could be deemed to be a promotional one for the persons in lower scale and they will have to establish their competence before claiming a promotion to the higher scale and this would create a healthy atmosphere of learning the work and of ocmpetition in the persons in the lower grade. To synopsis our view on this point, we are to say that the Notification of the Government dated 23.12.1997 does not, really affect our opinions given earlier and the transition from the old pay scale to the new one does not create any real difficulty as the Bench Secretaries in Grade I would, if our opinion is accepted, get the corresponding new scale for the old scale of Rs. 3000-4500 while the Bench Secretaries Grade II would get the hew scale corresponding to the old scale of Rs. 2000-3200 (which has been equated for the purpose of the new scale with old scale of Rs. 2000-3500).”
47. The Addl. Advocate General referred to, in support of his preposition, that no mandamus can be issued for fixation of pay scale.
48. We find, as also noted above, that in the case like present one, where the respondents are unable to point out any distinguishing feature; the ‘Three Hon’ble Judges Committee’ on comparing relevant material and circumstances, had come to the conclusion that the duties, nature of work, responsibilities, mode of selection, source of recruitment etc. correspond and are comparable to that of the post of Court Masters of Delhi High Court. The State Government had taken Policy decision, Equivalence Committee also laid down criterion and in the past judgments of this Court (referred to earlier) no approval as required and did exist, the Committee has not done any thing on this score which is not warranted.
49. We are of the opinion that in the fact of this case, Court, in exercise of jurisdiction under Article 226 of the Constitution, can issue a mandamus for granting a particular pay scale.
50. In the instant case, curiously it is found that none of the respondents made any serious attempt to find out any distinguishing feature on any relevant score between the Bench Secretaries Grade I and II.
51. That being so, the petitioners are rightly aggrieved and they can well legitimately contend in view of the report of ‘Three Judges Committee’, itself, that they should not be denied the pay scale admissible to the Court Masters of Delhi High Court on the basis of policy of party declared by the State Government.
52. In our considered opinion, the only issue in the present petition is whether the denial of party of pay scale by the ‘Three Judges Committee” to the Bench Secretaries Grade II on the excuse of the decision of the Apex Court in the case of J.P. Chaurasia (supra) is justified and valid.
53. As noted earlier, in the case of J.P. Chaurasia (supra), contention of the Bench Secretaries (both Grade I and II) was that two pay scales in one cadre of Bench Secretaries (who performed similar duties) was not legal. But this plea did not find favour with the Apex Court which held that diversification in pay scale was justifiable in law. The Supreme Court has nowhere laid down that a Bench Secretaries, who is placed in lower scale, but doning similar work, should not be allowed the pay scale of a comparable post (i.e., Court Masters in Delhi High Court).
54. To our mind, the Committee felt shy in extending benefit of ‘Equal Pay for Equal Work’ on the ground that it may probably create some anomalies requiring amendments in the Rules with respect to other cadres considering structure of pay scales of other respective posts.
55. We have no doubt that all claims and privileges on the principle of party, which have been granted to the Bench Secretaries Grade I, must go to Bench Secretaries Grade II also and to that extent, we respectfully decline to agree with the report of ‘Three Judges Committee’ and to recommend, with the modesty at our
command, that Hon’ble the Chief Justice in exercise of the powers conferred under Article 229(2) of the Constitution, may get the matter of Bench Secretaries Grade II only reexamined and decided afresh in accordance with law.
56. The writ petition stands allowed to the extent indicated above.
57. No order as to costs.
Civil Misc. Writ Petition No. 30234 of 2001 :
58. Coming to the above mentioned connected writ petition, we do not propose to burden our judgment by narrating facts of the case. The writ petition deserves to be dismissed on the preliminary objection raised by Shri Shailendra, Advocates, representing “Bench Secretaries Brotherhood Association” Petitioner in Connected Writ Petition No. 47197 of 1999, that necessary party, namely “Bench Secretaries Brotherhood Association” has not been impleaded. Moreover, we have rejected impleadment Application No. 22047 of 2003 filed in Court on the ultimate day of hearing of the case vide our judgment and order dated 20.5.2003 which is reproduced:
59. Learned Counsel Sri A.K. Chaudhari holding brief of Sri K.R. Sirohi Advocate today, requested that respondents No. 2 and 3 in this case be allowed one month’s time to file counter affidavit, without furnishing explanation as to why counter affidavit was not filed so far. We do not appreciate the request particularly when we had already started dictating judgment in the case since yesterday. Further, we note that no fruitful purpose will be served by granting time to file counter affidavit, when High Court has already filed its counter affidavit in the connected Writ Petition and its case/defence is already on record before the Court. Lastly, we cannot ignore that such a prayer is made to compel the Court to adjourn hearing of the case at a highly belated stage. This request is uncalled for and hence rejected.
60. An application No. 92047 of 2003 with the prayer to permit the petitioner to implead ‘Bench Secretaries Brotherhood through its Secretary’ as respondent No. 3 in the writ petition filed by the State of U.P. (copy of which has been served on Sri Shailendra Advocate in the Court today) has been filed.
61. Sri Shailendra Advocate, however, strongly objected to the prayer on three grounds, namely-
(i) in Para 2 of the affidavit (sworn by S.N. Pandey, S.O., Law Department, U.P. Secretariat, Lucknow filed in support of above impleadment application) it is stated that the petitioner came to know of the report of ‘Three Hon’ble Judged Committee’ in pursuance of the order dated 1.11.1996 passed by the Division Bench in Civil Misc. Writ Petition No. 26550 of 1995 and that the reports were challenged by the Bench Secretaries Brotherhood by filing Writ Petition No, 47197 of 1999 whereupon the present petition challenging the aforementioned reports (to the extent it recommended party to the Bench Secretaries Grade I to the Delhi High Court’s Court Masters) was filed. It may be noted that said writ petition by the State of U.P. has been presented in the Court on August 10, 2001, whereas this Writ Petition No. 47197 of 1999 filed by Bench Secretaries Brotherhood, High Court, Allahabad was, after serving a copy of it upon the office of the Chief Standing Counsel on 28.10.1999, presented in the High Court on November 5, 1999 and the counter affidavit of the State of U.P. in the said writ petition sworn by S.M.A. Abdi, the then special Secretary Law and A.L.R., Lucknow was got sworn on 7.2.2000 and presented in the Court on February 9, 2000.
(ii) State of U.P. made no attempt to get copy of the report and order of Hon’ble Chief Justice till date even though the State of U.P. (petitioner) in Writ Petition No. 30234 of 2001 had acquired knowledge of the said impugned decision of the three Hon’ble Judges Committee and that of Hon’ble the Chief Justice dated 6.10.1998 from the writ petition filed by the Bench Secretaries Brotherhood being Writ Petition No. 47197 of 1999.
(iii) The affidavit filed in support of the impleadment application contains wrong averment on oath which is evident from the contradictions noticed on reading of Paragraphs 2 and 3 of the said affidavit of S.N. Pandey, S.O., Law Department, U.P. Sri Shailendra Advocate drew our notice to Para 2 of the Writ Petition, No. 30234 of 2001 wherein it is stated on oath that “in the present writ petition, State of U.P. is challenging the report of the Committee constituted under orders of Hon’ble the Chief Justice, Allahabad High Court in terms of the decision of Division Bench in Civil Misc. Writ Petition No. 26550 of 1995 dated 1.11.1996. The Hon’ble Committee has submitted its report dated 9.2.1998 and supplementary report dated 13.4.1998 which has been-approved by Hon’ble the Chief Justice and communicated to the ‘State of U.P. through Special Secretary Law’, vide letter dated 27.11.1998. A true copy of the reports dated 9.2.1998 and 13.4.1998 is filed herewith and marked as Annexures I and 2. The letter of the Registrar, High Court of Judicature at Allahabad through Joint Registrar (Accounts) intimating the State of U.P. that both the reports of the Hon’ble Judges Committee have been accepted and implemented by Hon’ble Chief Justice vide his Lordship’s order dated 6.10.1998. A true copy of the communication dated 27.11.98 is filed as Annexure 3 to the writ petition.” Sri Shailendra Advocate submitted that aforesaid categorical statement on behalf of the State of U.P. the averments made in Para 2 of the affidavit sworn by aforementioned S.N. Pandey, in support of the impleadment application are abslutely incorrect and misleading.
In Paragraphs 27 and 28 of Writ Petition No. 39234 of 2001 filed by the State of U.P. the reference is made to the Writ Petition No. 47197 of 1999 filed by the Bench Secretaries Brotherhood against the same, three Hon’ble Judges Committee report and order of the Hon’ble Chief Justice 6.10.1998 and it is, categorically mentioned that having seen that writ petition has already been filed challenging the said order dated 6.10.1998 based on reports, therefore, it was advised that if the said Writ Petition No. 47197 of 1999 is decided in the absence of filing of present writ petition on behalf of the State by bringing correct facts in the notice of this Hon’ble Court, the entire purpose would be frustrated and as such, it was decised to file present writ petition so that no further order be passed against the interest of the State Government. From the aforesaid categoricaly averments made in the writ petition in paragraphs 2, 3, 27 and 28 of the Writ Petition No. 30234 of 2001 filed by the State of U.P. we have no doubt that the grounds taken in Paragraph 3 of the affidavit of aforementioned S.N. Pandey, filed in support of the impleadment application are nothing but an attempt to hood wink the Court. We do not appreciate such affidavit being filed. Moreover, this Bench would like to remind once again the earlier Division Bench judgment containing direction that no affidavit should be filed on behalf of the State of U.P. by an officer below the rank of Under Secretary.
In view of the above, we find that the objections raised by Sri Shaildra Advocate appearing on behalf of Bench Secretaries Brotherhood, High Court, Allahabad are well founded. This application is accordingly rejected.”
62. Considering the importance of the ease, we propose to deal with The petition on merit, ignoring above objection, which, in this case, reduced to a technicality because Bench Secretaries Brotherhood Association is represented in the connected writ petition.
63. The argument of the learned Addl. Advocate General is that the Chief Justice or the Committee constituted by him could not provide higher Grade to Bench Secretaries Grade I (on the ground of party with Delhi Court Master) without prior
approval of the State Government.
64. Learned Counsel for the respondent, Sri Sirohi, referred to the judgment and order dated 21.12.1993 passed by Division Bench (Hon’ble B.M. Lal and Hon’ble S.R. Misra, JJ.) in Writ Petition No. 1403 of 1993, Private Secretaries and Personal Assistants
Brotherhood, High Court, Allahabad, through its Secretary and Ors. v. State of U.P. and 2
Ors.. We quote, from the said judgment, relevant paragraph:
“However, in the instant case, there is no question of Governor’s approval because the Government of Uttar Pradesh itself took the policy decision (vide Adhyay-2 Adhikaradesh on Page 3 of the report of Equivalence Committee, U.P., 1989, Part I) to pay Central Pay Scales and granted Central Pay Scales to the staff of Allahabad High Court with the approval of the Governor, but the State Government committed an error in not comparing the petitioners with their counterparts attached with the Secretaries to Government of India as well as with the Judges of Delhi High Court who are holding exactly corresponding posts in the Central Government rather it compared them with
others in the Central Government. The doubt regarding equation of a particular post in the establishment of Allahabad High Court was to be resolved by the Chief Justice of Allahabad High Court, which in the instant case stands resolved by the Chief Justice while approving the claim of petitioners, which has been communicated to Government by the Registrar of this Court.”
65. Reference is also made to the case of Section Officer Brotherhood and Anr. v. The State of Uttar Pradesh and
Ors., (2000) 1 UPLBEC 371. Relevant Paragraphs 17 and 34 are reproduced :
“It was, however, further in the instant case, there is no question of Governor’s approval, because the State Government itself took the policy decision (vide Adhyay 2 Adhikaradesh on the Page 3 of the report of Equivalence Committee, U.P., 1989, Part 1) to pay Central Pay Scales and granted Central Pay Scales to the staff of the Allahabad High Court, with the approval of the Governor, but the State Government committed an error in not comparing the petitioners with their counter-parts attached with the Secretaries to the Government of India, as well as the Hon’ble Judges of the Delhi High Court, who are holding exactly corresponding posts the Central Government, rather it compared them with the others in the Central Government.
It is well established that the decision of the Hon’ble the Chief Justice under Rule 40 (3) of Rules of 1976 is final in so far as it relates to the equivalence between different posts. This determination by Hon’ble the Chief Justice is not subject to any interference by Government, unless some other provisions of the Constitution has been violated by him. Certainly, the Government cannot interfere with the determination made by Hon’ble the Chief Justice. The seemingly innocuous act of the State Government i.e. executive, in not according approval, which for the reasons stated above, was not necessary to be sought, as held in Private Secretaries and Personal Assistants case (supra), amounts to a potential threat to the independence of judiciary. AH such attempts of eroding the independence of judiciary have to be thwarted.”
66. The petitioners then referred to the decision in the case, Civil Misc. Writ Petition No. 15211 of 1997, Class IV Employees Association of High Court of Judicature at Allahabad
and Anr. v. The State of U.P. and Ors. Relevant passage is quoted below :
“To the sum up, the controversy boils down to this : the petitioners are claiming equal treatment with other employees of the Central Government, inasmuch as they claim post to post party with the Central Government employees in the Secretariat in the light of the decision of the State Government dated 14.10.1988 and the subsequent report of the Equivalence Committee of 1989…………………………….The Hon’ble the Chief Justice, after Examining the matter, from all the angles as he is empowered under Rule 40 (3) of Rules of 1976, equalized the post of Class IV employes of this Court with that of the Delhi High Court. In all fairness, since burden was to go on the public exchequer, Hon’ble the Chief Justice thought it prudent to make a reference and to seek approval of the Governor, though on the judicial side, as said above, such an approval was not at all called for.”
67. In view of the aforesaid decision of the Court that the State Government has now no role and it is not open to the State Government to challenge the finding and decision of the Hon’ble the Chief Justice in the matter covered under Rule 40 (3), Rules, 1976.
68. The above passage shows that the learned Single Judge also found that Hon’ble The Chief Justice was not required to seek approval and the same was uncalled for in view of Rule 40 (3) of Rules, 1976.
69. The petitioners, however, attempted to place reliance upon the case of Randhir Singh v. Union of India and
Ors., AIR 1982 SC 879 (Paras 6, 8 and 9).
For convenience, relevant paragraphs are being reproduced :-
“Para 6.-The counter-affidavit does not explain how the case of the drivers in the police force is different from that of the drivers in other departments and what special factors weighed in fixing a lower scale of pay for them. Apparently in the view of the respondents, the circumstance that persons, belong to different departments of the Government is itself a sufficient circumstances
of justify different scales of pay irrespective of the identity of their powers, duties and responsibilities. We cannot accept this view. If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from department to department, notwithstanding that their powers, duties and responsibilities are identical. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated idfferentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the post held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
Para 8.-It is true that the principle of ‘equal pay for equal work’ is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Article 39(d) of the Constitution proclaims “equal pay for equal work for both men and women” as a Directive Principle of State Policy. ‘Equal pay for equal work for both men and women’ means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights, as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality
before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any officer under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay.
Para 9.-There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the power, functions and privileges of a Police Officer’, their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay for equal work is not a principle which the Courts may recognize and act upon…………”
70. Petitioner them cited judgment of P. Savita and Ors. v. Union of India and
Ors., AIR 1985 SC 1124. Paragraphs 1 and 11 of this judgment are quoted below:
“Para 1.-The question involved in this appeal brings to force how the equality doctirne embodied in the Constitution of India is attempted to be flouted by some authorities under cover of artificial divisions, dividing persons doing the same work into two groups without any justification and denying to one group by way of pay and emoluments what the other group gets. We do not propose to examine the width of the equality provisions contained in Article 39(d) in all its manifold aspects but world like to restrict it in its application to the facts fo this case, in our attempt to seek whether the High Court was justified or not, in declining relief to the petitioners.
Para 11.-It has to be borne in mind that this differentiation is not based on any intelligible ground. The group of Draughtsmen entitled to the higher scale of pay, is not selected by any process nor is it based on any merit-cum-seniority basis, but is based only on seniority-cum-fitness. There is no denial anywhere that both these types of Draughtsmen do the same work and discharge the same functions and duties. According to the recommendations of the Third Pay Commission, a Draughtsman has to get Rs. 330-10-380-EB-12-500-EB-15-560, while Senior Draughtsman, like the appellants, who have become so on promotion, will continue to get the same scale of pay and not the higher scale of pay, In other words, the promoted persons like the appellants, are without any monetary benefit to them. The pay that they would get as Senior Draughtsman, would be the same as a Draughtsman would get under the Third Pay Commission. That is, for the same work and same functions, the appellants would get less pay than the, other group of Senior Draughtsmen. The explanation is that this division is based on seniority. This cannot be accepted as sufficient to meet the requirements of law. By seniority, a Senior Draughtsman will get higher pay with the increments that he earns proportionate to the number of years he is in service. Here that is not the case. It is the classification of the Senior Draughtsman into two groups that is responsible for the higher pay. For this classification, the Government must be able to satisfy the Court of certain other tests which are non-existent, in this case, since it is not in dispute that Senior Draughtsmen, belonging to the two Divisions, do equal and same work. In view of the total absence of any plea on the side of the respondents, that the Senior Draughtsmen who are placed in the advantageous group do not (six) perform work and duties more onerous or different from the
work performed by the appellants, group, it will have to be held that this grouping violates Article 14 of the Constitution.”
71. We have already observed that Hon’ble the Chief Justice or the Committee appointed by his Lordship, in exercise of the power conferred under Article 229(2), Constitution of India, is the competent authority under law to decide party and whether a post in the establishment of the High Court corresponds to a post in Delhi High Court.
72. The argument of the learned Addl. Advocate General that the post of Court Masters in Delhi High Court is not post in the State Government or Central Government and no party can be claimed, has no substance in view of Equivalence Committee Report referred to in the judgment in connected writ petition of Bench Secretaries Brotherhood Association. The State of U.P. has made no endeavour to point out any distinguishing feature so far as party part is concerned in respect of Bench Secretaries Grade I and Bench Secretaries Grade II vis-a-vis comparable and corresponding post of Court Masters in Delhi High Court.
73. In view of the above, there is no justification to interfere with the report of Three Judges Committee’ with respect to Bench Secretaries Grade I and to that extent the writ petition stands dismissed. There shall, however, be no order as to costs.
74. Learned Counsel for the Bench Secretaries Brotherhood Association made a request that, decision of the Committee be ensured within a fixed time frame. We do not feel proper to give any such direction since we feel confident that Hon’ble the Chief Justice or the Committee constituted by his Lordship shall be more than anxious to ensure expeditious decision in the matter.
75. Writ Petition is dismissed both on the ground of non-impleadment of necessary
party as well as on merit.
76. No order as to costs.