HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No.762 of 2003 Raghbir Lal Kohli & Ors Petitioners State of J&K and Ors Respondents ! Mr.Sunil Hali, Advocate for the Petitioners. ^ Mr.S.C.Gupta, AAG for respondents No.1 & 3. ^ Mrs.Deepika Mahajan,Advocate for resp.No.2. ^ Mr.Amrish Kapoor, Advocate for resp. No.4. Coram The Hon'ble Mr.Justice Permod Kohli Date : 17/03/2006 : JUDGMENT :
1. It is unfortunate that the judicial employees are compelled to seek
judicial
remedies time and again for the redressal of their grievances particularly while
seeking
parity with the Government Employees working in the Secretariat. As far the
Secretariat
Employees are concerned, they are allowed benefit of the promotion/higher pay
scales
voluntarily by the Government and when it comes to conferment of the similar
benefits
on the basis of the entitlement of the judicial employees impediments are being
created
on one pretext or the other forcing the judicial employees to seek legal
remedies.
Petitioners herein are judicial employees and this is their third round of
litigation for the
redressal of their grievances through judicial intervention. It may be useful to
briefly
noticed the background where under the petitioners have been forced to approach
this
court in series of litigation.
2. All the petitioners are presently posted as Principal Private Secretaries
to the
Hon’ble Judges of this Court and are placed in the pay-scale of 9000-14100.
Being
denied similar treatment as given to the Private Secretaries working with the
Ministers
and Ministers of State in the State Government falling under J&K Secretariat
(Gazetted
Service), some of the petitioners filed writ petition No.987/91 invoking
principle of equal
pay for equal work and parity with their counter parts working with the
Ministers,
Minister of State and Head of the Department in the executive. This writ
petition was
allowed vide judgment dated 17th July, 92 and appeals preferred there from right
up to the
Apex Court came to be dismissed. As a consequence of the aforesaid judgments,
petitioners were treated at par with the Private Secretaries working in the
Secretariat,
referred to above. Subsequently the Private Secretaries working in the
Secretariat were
placed in the selection grade of Rs.9000-14100 equivalent to 25% of the cadre
strength
with at least 5 years service in the regular grade of 2125-3600 (pre-revised)
vide
Government Order No.476-GAD of 1996 dt.3rd July, 96. The benefit of Selection
Grade
was allowed w.e.f. 2nd June, 96. This was followed by Government Order No.142-
GAD/98 dated 19-11-1998 whereby eleven more Private Secretaries working in the
Secretariat were granted Selection Grade of Rs.9000-14100. Though petitioners
were
earlier treated at par with the private secretaries working in the Secretariat,
they were not
allowed similar benefits. Denial of such a benefit compelled the petitioners to
file another
writ petition (SWP) No 295/98 for grant of the similar benefits as were allowed
to their
counter-parts in the Secretariat Service. This writ petition also succeeded vide
judgment
dated 7-4-2000 by the writ court. After observing that the petitioners are at
par with the
private secretaries working in the Secretariat, the writ court thus observed: –
“iv)That benefit of selection grade of Rs.2500-4000 (Old) now revised to
Rs.9000-300-14100 would be given to the 25% of cadre strength of petitioners
from the same date i.e. 22.6.1996, from which date it has been given to the
Private
Secretaries falling in J&K Secretariat (Gazetted) Service (Vide Government
Order No.476-GAD of 1996 dated 3-7-1996) along with all consequential benefits
including arrears.”
3. While issuing aforesaid direction, respondents were given 90 days time to
implement the judgment failing which interest was ordered @ 12%. This judgment
dated
7-4-2000 was appealed against before the Division Bench of this court, however,
in the
meanwhile State issued Government Order No.705/LD(A) of 2001 dated 17-3-01
whereby sanction was accorded for the creation and up-gradation of various posts
in High
Court and sub-ordinate judiciary which inter-alia included grant of selection
grade of
Rs.9000-14100 for 25% of the sanctioned number of posts of Private Secretaries.
With
the sanction of aforesaid posts High Court issued Order No.181 dated 28th May,
01 re-
designated the petitioners as Principal Private Secretaries from the date they
were placed
in the Selection Grade of Rs.9000-14100. Government also issued Government Order
No.2642-LD(a) dated 16-10-01 providing selection grade of Rs.9000-14100 for the
25%
sanctioned number of posts of Private Secretaries. This order was, however,
subject to the
outcome of the appeals pending before the Division Bench i.e. LPA(W) 268/2000
and
LP(W) no.27/2000. Both these LPA’s were dismissed on 29th November,01 by a
common
order. As a consequence of the dismissal of the LPA petitioners have been placed
in the
Selection Grade of 9000-14100 w.e.f. following dates:-
Petitioners No.1 and 2 : 22/06/96
Petitioner No.3 : 01/10/96
Petitioner No.4 : 22/04/2000
Vide Order No.14899-900/GS dated 29-1-03.
4. While the petitioners were granted benefits equivalent to their counter
parts in the
Secretariat through judicial intervention, the State Government issued another
Government Order No.80-GAD of 2003 dated 16-01-03 pursuant to Cabinet Decision
No.4/1 dated 16th January, 03 whereby nine Principal Private Secretaries working
in the
Grade of Rs.9000-14100 in the J&K Secretariat (Gazetted) Service-II PSS have
been
inducted into Kashmir Administrative Service and given higher grade of
Rs.10,000-
15,200/-. Out of these nine inductees to KAS three of the Principal Secretaries
have been
re-designated as Special Assistants and Deputy Secretaries respectively vide
Government
Order No.120-GAD/03 dated 22nd January, 03. Petitioners are seeking similar
treatment
as has been granted to the Principal Private Secretaries working in the J&K
Secretariat
(Gazetted Service) on the doctrine of equal pay for equal work and parity.
5. Despite notice of this petition to the respondents, objections were not
filed. This
petition was admitted to hearing on 17th October,03 and thereafter various
opportunities
were provided for filing counter. On the failure of the respondents to file
counter, right to
file counter was closed on 4th March, 04. Petition finally heard for final
disposal.
6. Only question needs to be examined is whether the petitioners are entitled
to be
placed in the higher pay-scale of Rs.10,000-15200 on the ground of parity and
equal pay
for equal work. With a view to find out whether the principle of equal pay for
equal work
is applicable or not, it is useful to refer to above mentioned judgment of this
court.
Relevant part of the judgment dated 17-7-92 passed in Writ Petition
No.987/91 be
quoted as under:-
“It has not been disputed by the respondents that under the General Clauses Act
of
the State the expression “Minister” includes “Judges of the High Court” for the
purposes of protocol, status and other benefits. It is also not disputed that
the PAs
now private Secretaries of the Ministers and the PAs of the Judges were
performing the same type of duties and the fact that they form one class of the
employees similarly situate. The respondents have not been in a position to
justify
their action of making discrimination in respect of making different provisions
for
the grant of salary to the petitioners who were similarly situate along with the
PAs
of the Ministers and Ministers of the State. When the nature, character and
duties
of the posts are the same, the petitioners cannot be treated differently in the
matters of emoluments.”
7. Above observations by this court clearly establish that the petitioners
are similarly
situate as the Private Secretaries in the Secretariat belong to J&K Secretariat
(Gazetted
Service) were. It is also no denial of the fact that the nature of the duties of
Private
Secretaries of the Judges of the High Court and those working with the Hon’ble
Ministers
and Minister of State and head of the departments are same. Duty of the Private
Secretaries working with the Hon’ble Judges is more onerous and sensitive. They
have to
maintain utmost secrecy. Their responsibilities are also atleast equal, if not,
more than the
Private Secretaries working with the Hon’ble Ministers. Therefore, they cannot
be treated
differently, separately and with hostility. They have to be treated equally and
at par with
their counter parts working in the Secretariat. Merely because the State has the
financial
control over the employees of the judiciary, the State cannot be permitted to
treat
similarly situated employees of the High Court and those working in the
Government
differently. The question of their similarity of job already stands adjudicated
upon by this
court and the findings have been confirmed by the Apex Court. Therefore,
petitioners are
to be treated at par with the Private Secretaries working in the Secretariat. No
doubt
petitioners cannot be inducted into KAS as has been done in case of the Private
Secretaries Vide Government Order No.80-GAD/03 dated 16-1-03, but definitely
they
have to be placed in the pay-scale equivalent to the pay-scale of the inductees
i.e.
Rs.10,000-15,200. It is also relevant to note here that the State has issued
Government
Order No.705-LD(a) of 2001 dated 17-3-01 whereby certain posts have been
upgraded in
the High Court in the pay-scale of Rs.10,000-15,200, the pay-scale equivalent to
the pay-
scale of inductees into KAS. Relevant extract of this Government Order is quoted
hereunder for reference:
“Government Order No.705-LD(A) of 2001.
D a t e d : 17-03-2001.
Sanction is accorded to the creation/upgradation of the following posts in
the High Court and Sub-ordinate Judiciary:-
I.High Court-
(1) Creation of two posts of Deputy Registrars in the pay scale of
Rs.10,000-15,200;
(2) Creation of two posts of Protocol Officers in the pay scale of Rs.7500-
12000 by corresponding reduction of two posts of Court Officers
(Rs.6500-10500);
(3) Provision of selection scale of Rs.9000-14100 for 25% of sanctioned
number of posts of Private Secretaries (Rs.7500-12000);
(4) Provision of selection scale of Rs.9000-14100 for 25% of the
sanctioned number of posts of Readers (Rs.7500-12000); and
(5) Creation of one post of Registrar (Rules/Protocol) in the scale of
Rs.12000-16500 by corresponding reduction of one post of Deputy
Registrar (Rules) in the scale of Rs.10000-15200.
II..”
8. This Government Order clearly establish that an equivalent pay-scale i.e.
Rs.10,000-15200 is available in the High Court and there is no reason that the
benefit of
this pay-scale be not allowed to the petitioners. What designation is to be
given when
petitioners are given the benefit of higher pay-scale, be left to the wisdom of
the High
Court, but in so far as the financial benefit is concerned State/Respondent is
under legal
obligation to give the same benefits to the petitioners as has been allowed to
the Private
Secretaries working in the Secretariat. This petition accordingly succeeds and a
direction
is issued to the respondent/State to place the petitioners in the higher pay-
scale of
Rs.10,000-15200 w.e.f. 16-1-03, the date similarly situated persons in the J&K
Civil
Secretariat (Gazetted) Service-II PSS were given. The salary/emoluments of the
petitioners shall be fixed accordingly.