JUDGMENT
Devinder Gupta, J.
1. Directions are sought in this petition against the respondents to forthwith revise the existing pay scales for the post of Assistant Registrars and posts higher thereto as per the recommendations made by Chief Justice in his letter dated 15.10.1991 and to pay to them the revised scales of pay w.e.f. 1.1.1986, the date with reference to which . scales of pay for the posts of Superintendents, Court Masters and Private Secretaries were revised.
2. The petitioners are employees of this Court. It is their case that Fourth Pay Commission was set up through Resolution dated 29.7.1983, which was required to inquire into and make recommendations inter-alia, on the structure of. emoluments and conditions of service of different classes of Central Government employees and those of union territories. Employees of Supreme Court and Delhi High Court were outside the scope of inquiry of commission, in view of provisions of Articles 146 and 229 of the Constitution of India. After Fourth Pay Commission submitted its report, Chief Justice of Delhi High Court made recommendation to Government of India for revision of pay scales of the employees of High Court, as required under Clause (2) of Article 229 of the Constitution of India. Government of India approved the following pay scales amongst others for the following categories of the posts on the establishment of High Court w.e.f. 1.1.1986:-
(1)
Registrar
Rs.5900-6700
(2)
Joint Registrar
Rs.4500-5700
(3)
Deputy Registrar
Rs.3700-5000
(4)
Assistant Registrar
Rs.3000-4500
(5)
Superintendents/Court
Masters/Private Secretaries
Rs. 2000-3500
3. The petitioners claim that three categories of posts, namely Superintendent, Court Master and Private Secretaries are the feeder posts for promotion to the next higher post of Assistant Registrar. Thus the post of Assistant Registrar is a higher post. Delhi High Court was established under Delhi High Court Act, 1966. Ever since its inception and establishment, post of Assistant Registrar as well as Superintendent, Court Master and Private Secretary existed and the post of Assistant Registrar has always been treated as promotional post for Superintendent, Court Master and Private Secretary. The post of Assistant Registrar always carried a higher scale of pay than the pay scale attached to the feeder posts. Assistant Registrar has not only enjoyed higher status than those categories below, namely Superintendent, Court Master and Private Secretary, but enjoyed a higher Scale of pay. There had never been an occasion when pay scales of the feeder category of Superintendent, Court Master and Private Secretary has been same or equivalent to that of the higher post of Assistant Registrar. It is also alleged that same pattern of hierarchy persisted in Punjab High Court of which a circuit Bench used to be maintained in Delhi. Even prior to partition of the Country, Punjab High Court at Lahore had maintained the same hierarchy in the establishment of the High Court.
4. As per the rules, appointment to the post of Deputy Registrar is made by selection on merits from amongst the Assistant Registrars and Principal Private Secretary-cum-Assistant Registrar. Likewise appointment to the post of Joint Registrar is made as per the rules by promotion on the basis of seniority-cum-merit from amongst Deputy Registrars. Pay scales to the post of Deputy Registrars have always been higher than the pay scales attached to the post of Assistant Registrar. Similarly for the post of Joint Registrar, pay scales have been higher than the pay scales attached to the post of Deputy Registrar. Registrar of the Court exercise power of the Court in 44 categories of matters on Original Side. Under Rules 6 of Delhi High Court Original Side Rules, the Chief Justice can assign/delegate to Joint Registrar, Deputy Registrar any functions required by rules to be exercised by the Registrar. It is alleged that Joint Registrars/Deputy Registrars have been conferred with such powers and they have been exercising the same.
5. After narrating the history and circumstance under which the pay scales attached to the posts of Superintendent, Court Master and Private Secretary were enhanced to Rs. 3000-4500, it is claimed by the petitioners that imbalance has been created as regards pay in hierarchy of posts which has given rise to many administrative problems. Since the pay scale available to the posts of Superintendent, Court Master and Private Secretary w.e.f. 1.1.1986 is now Rs. 3000-4500 instead of Rs. 2000-3500, any promotion of Superintendent, Court Master and Private Secretary to the post of Assistant Registrar will be illusory. In addition prescription of the same pay scales for the posts of Superintendent, Court Master and Private Secretary as also Assistant Registrar is in violative of the basic principles laid down in Fundamental Rule 22-C, which provides that an officer performing the duties and functions of post involving higher responsibility should draw higher pay. It is claimed that since anomalous situation was created as the pay scales of feeder and promotional posts had become the same, Assistant Registrars, Deputy Registrars and Joint Registrars made representation for allocation of higher pay scales to them. Hon’ble the Chief Justice was pleased to refer the representation to a Committee of three Judges for their consideration. After much deliberations, the Committee of Judges opined that revision of pay scales of the posts of Superintendent, Court Master and Private Secretary had caused imbalance in the pay structure of the posts higher thereto and the same had resulted in anomalous situation, which required remedial measures to be taken. Accordingly, the Committee recommended the following pay scales w.e.f. 1.1.1986:-
Assistant Registrar-cum Principal
Private Secretary to the Chief
Justice/ Assistant Registrar
Rs,3700-5000
Deputy Registrar
Rs.4500-5700
Joint Registrar
Rs.5900-6700
Registrar
Rs.7300-7600
6. Report of the Committee was submitted to Hon’ble the Chief Justice, who agreed with the recommendation made by the Committee and accordingly, the Court proposed to revise the existing pay scales of Assistant Registrar-cum-Principal Private Secretary to Hon’ble the Chief Justice/Assistant Registrar, Deputy Registrar, Joint Registrar and Registrar w.e.f. 1.1.1986 in his letter dated 15.10.1992 addressed to the Minister of State for Law and Justice, Government of India for obtaining requisite sanction from the concerned authorities. The petitioners claimed that the respondents failed to sanction the revised pay scaled for the posts in question. Therefore, they were constrained to file this petition. Respondents No. l and 2 have refused to act upon the recommendation made by Hon’ble the Chief Justice. Accordingly, a direction has been sought aforementioned.
7. Notice was issued to the respondents to show cause why rule nisi not be issued. Respondents No. 1 and 2 filed their reply on the affidavit of P.N. Singh, under Secretary, Department of Justice, Ministry of Law and Justice opposing the writ petition. In the reply it is stated that the scale of pay of Rs. 3000-4500 was specifically recommended by Fourth Pay Commission to Private Secretaries to the Secretaries to Government of India and equivalent officers. Reply further states that para 9.39 of the Fourth Central Pay Commission Report says that “in order to provide further satisfactory promotional avenues for the Members of Central Secretariat Stenographers Service (CSSS), we recommend that posts of Private Secretaries to Secretaries to Government of India and equivalent officers may be upgraded and given the scale of Rs. 3000-4500.” Further Pay Commission vide para 9.42 has also recommended that “the Stenographers working in other organisations, which are not participating in the CSSS but where the posts are in comparable grades and pay scales and the method of their recruitment through open competitive examination is also the same, may be placed in the same grades of pay as have been recommended for CSSS.” The spirit behind recommending the higher pay scale of Rs. 3000-4500 to the Members of CSSS was with the specific objective to provide promotional avenues to the cadre of CSSS. Accordingly, the scale has been extended to the Private Secretaries belonging to the CSSS cadre only. Respondents No. 1 and 2 have further stated that constant view of Government of India has been that although the Rules provide that the posts of Superintendents, Court Masters and Private Secretaries are of equal status, the functions and responsibilities pertaining to each of the posts are totally different and depending on various criteria including nature of duties, the pay scales have been fixed and as such it is not feasible to have equal pay scales for all the three posts. The Private Secretary attached to the Secretary to the Government of India and Additional Secretary, Government of India were in the same scale of pay of Rs. 650-200 (per-revised). Further Section Officers in the Central “Secretariat also hold the same scale of pay. All these were equal in the matter of duties and responsibilities while the Fourth Pay Commission recommended the revised scale of pay of Rs. 2000-3500 for all such posts. It made an exception in case of Private Secretary to Secretary to the Government of India by recommending higher pay scale of Rs. 3000-4500 to the Private Secretaries to Secretary in the Government of India. This means that old relativities or equality in duties and responsibilities in respect of these posts was not considered valid to be continued and the Fourth Pay Commission established new relativities by allowing higher scale of pay only to the Private Secretaries to Secretaries to the Government of India. It does not mean that all posts which were in the same pre-revised scale of Rs. 650-1200 and revised scale of Rs. 2000-3500 should be placed in higher scale of Rs. 3000-4500 on the grounds that hitherto all the posts were equal in status, duties and responsibilities. On the same analogy, if a Private Secretary is attached to the Judge of the High Court of Delhi, he has been allowed a higher scale of Rs. 3000-4500, it does not mean that this higher scale was justified for all posts which were in pre-revised scale of Rs. 650-1200 or revised scale of Rs. 2000-3500 in Delhi High Court. It also does not justify that it should further disturb the vertical relativities in respect of all posts in higher hierarchy.
8. The respondents in their reply have justified fixation of pay scales of the posts of Superintendent, Court Master and Private Secretary in the pay scale of Rs. 2000-3500 and that of Assistant Registrar at Rs. 3000-4500 having regard to the provisions of the Central Civil Services (Revision of Pay) Rules, 1986. It is alleged that the Fourth Central Pay Commission has rationalised the pay structure of the Government servants. In this process it has reduced the number of scales of pay from 153 to 36 only. Certain scales of pay have been clubbed and in lieu thereof, a single revised scale of pay has been recommended. This has also resulted in the same revised scales of pay being prescribed, in a number of cases, for two distinct posts one promotional to another. In such cases, where the same scale of pay has been prescribed by the Pay Commission for two posts, one. promotional to another, the stand of the Government is that old relativities are no more valid and new relativities have been established by the Commission. Thus the two posts are treated equal/merged. Thus after 1.1.1986, no promotion is made from the feeder cadre .to the promotional cadre where the posts of Private Secretary/Court Masters/Superintendents and those of Assistant Registrars may deem to have merged. In certain cases, because of specific distinct duties attached to the two posts, the posts have not been treated as merged. In such cases the posts are treated as equated and appointment from one post to another post is made by transfer and not be promotion. It is further submitted that if the scale of pay of the post of Superintendent/Court master/Private Secretary and Assistant Registrar has become one, the posts should be treated to have been equated and there should be no promotion from one post to another as hitherto. Respondents No. l and 2 claimed that if on the analogy of Private Secretaries to Secretaries of Government of India, Private Secretaries to Judges of Delhi High Court have been allowed a higher scale of Rs. 3000-4500, it does not mean that it should further disturb the vertical relativities in respect of posts in higher hierarchy and there was no move to consider the revision of pay scales and in case pay scales of the posts of Assistant Registrar and above of Delhi High Court are revised, it will have wider repercussions on officers of the equivalent rank of Central Government, who will in turn agitate for higher pay scales.
9. The petitioners have filed rejoinder to the reply filed by respondents No. 1 and 2. Respondent No. 3 has not filed any reply tq the writ petition.
10. Before we consider the respective stand of parties, it will be but appropriate to give the background in which pay scales of Superintendents, Court Masters and Private Secretaries were revised. Private Secretaries and Court Masters of this Court, after the Third Pay Commission Report, filed a writ petition seeking parity of scale with that of Private Secretary to the Chief Secretary, Delhi Administration. The said writ petition was allowed. Decision is reported as P.N. Chopra and Ors. v. Union of India and Ors., 1LR (1981) II Delhi 102. The Court directed that Private Secretaries and Court Masters should get the same scale of pay as that of Private Secretary to the . Chief Secretary, Delhi Administration.
11. Sangram Singh, who was a Superintendent, filed CW 2812/81 claiming that he and either Superintendents should got same scales of pay as was being paid to Private Secretaries and Court Masters. Division Bench of this Court allowed the said writ petition upholding the contention of Sangram Singh solely on the ground that according to the Rules, post of Superintendent was equal status post as that of Private Secretary and Court Master. Therefore, the Superintendents should not be treated differently than Private Secretaries and Court Masters. Decision of this Court in Sangram Singh and Others was challenged by Union of India by filing SLP No. 8934/82. The said SLP 8934/82 (Union of India v. Sangram Singh) was dismissed on 3.12.1982.
12. In S.B. Mathur and Ors. v. Hon’ble the Chief Justice of Delhi High Court and Ors., , it was held that three categories of posts, namely Private Secretary, Court Master and Superintendent are equal status posts and that they are also interchangeable. In other words a person, who is appointed as Private Secretary, may be transferred to the post of Superintendent and/or to the post of Court Master or vice-versa. Supreme Court in the said decision noticed the fact that the functions and duties of these three categories of officers though may not be exactly similar, but they were not very different either.
13. Prior to Fourth Pay Commission Report, pay scale of Private Secretary was Rs. 775-1200, so was the position with respect to Court Master and Superintendent. After Fourth Pay Commission Report and pursuant to the recommendations of Hon’ble the Chief Justice, all the three categories of employees were placed in the pay scale of Rs. 2000-3500. A.K.Gulati, Private Secretary filed CW 289/91, inter alia, contending that decision of Fourth Pay Commission was that Private Secretaries, who were working with Secretary to Government of India, who were drawing salary of not less than Rs. 8000, should be placed in the pay scale of Rs. 3000- 4500. Accordingly, he laid a claim that Private Secretaries of this Court were also entitled to be placed in the pay scale of Rs. 3000-4500. This contention was accepted and the writ petition was allowed on 7.5.1991 directing that Private Secretaries be placed in the pay scale of Rs. 3000-4500. Union of India challenged the decision of this Court by filing SLP 13229/91, which was dismissed by Supreme Court on 26.8.1991.
14. Superintendents and Court Masters also felt aggrieved and filed CW 2756/91 claiming parity of pay scales with Private Secretaries. The said CW 2756/91 (Hari Lal Sharma v. Union of India and Ors.) was allowed on 14.11.1991 relying upon the decision of S.B. Mathur’s case (supra) that the posts of Private Secretary, Court Master and Superintendent were equal status posts. Accordingly, Court Masters and Superintendents were directed to be placed in the same pay scale of Rs. 3000-4500 w.e.f. 1.1.1986. It was directed that their pay should be fixed within three months and arrears, if any, should be paid to them within one month thereafter.
15. In the aforementioned background, the petitioners had represented for alloca ion of higher pay scales to them on a number of grounds. As noticed above, a Com mittee was constituted for considering the representation. The Committee submitted its report recommending higher pay scales. Hon’ble the Chief Justice agreed with the recommendations made by the Committee. The reasons which prevailed with the
Chief Justice in agreeing with the recommendations of the Committee may be stated as follows:-
“(i) FR 22-C lays down that an officer performing duties and functions in volving higher responsibility should draw higher pay. Admittedly, the post of Assistant Registrar carries duties and functions of a higher responsibility than those attached to the posts of Private Secretaries, Court Masters and Superintendents.
(ii) The Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972 lay down the mode of appointment to the post of Deputy Registrar and Joint Registrar. These posts carry the pay scales of Rs. 3700-5000 respectively. These officers besides administrative work, also hold Court in accordance with the powers delegated to them under the High Court Rules and Orders, as also under Delhi High Court (Original Side) Rules. The responsibilities attached to these posts are higher than those of the Assistant Registrar.
(iii) The Registrar who is a senior Officer of Higher Judicial Service is the Head of the Office of this Court. Apart from administrative functions, the incumbent to the post of Registrar has also to discharge judicial functions and hold Court in exercise of powers under the High Court Rules and Orders and Original Side Rules of this Court. The present pay scale of the post of Registrar is Rs. 5900-6700.
(iv) If the imbalance as stated above, is allowed to continue, it will, besides causing hardship, lead to frustration and heart-burning amongst the officers of this Court which would be detrimental to the smooth and efficient functioning of the Registry. Thus, in public interest, it is essential that the imbalance created in the pay structure of the officers of this Court be removed without undue delay.”
16. Despite the recommendations made by the Chief Justice, pay scales have not been revised by the respondents and the reason assigned in the affidavit is that in case pay scale of the post of Assistant Registrar and above of Delhi High Court are revised, it will have wider repercussions on officers of the equivalent rank of the Central Government, who will in turn, agitate for similar higher pay scales. This ground cannot be a valid ground to deny to the petitioners their claim in case they otherwise are entitled to higher pay scales. The respondents have not refuted and cannot legitimately refute the fact that the post of Assistant Registrar is a higher status post attaching to it higher responsibility and moreover it is a promotional post from the post of Superintendent, Court MasteV and Private Secretary. Similar is the position with respect to the post of Deputy Registrar and Joint Registrar vis-a-vis the post of Assistant Registrar. In the counter affidavit, respondents No. 1 and 2 have tried to lay emphasis on the fact that Private Secretaries were not entitled to be put in the higher pay scale of Rs. 3000-4500, since the spirit behind recommending higher pay scale of Rs. 3000- 4500 to the members of Central Secretariat Stenographer Service was with the specific objective to provide promotional avenues to the cadre of Central Secretariat Stenographers Service, but Private Secretaries of this Court were not entitled to the same scale and similarly Court Masters and Superintendents were not entitled to pay scale of Rs. 3000-4500. This stand taken by the respondent is now not relevant inasmuch as the Private Secretaries, Court Masters and Superintendents are now entitled to the pay
scale of Rs. 3000-4500 w.e.f. 1.1.1986 and this matter stands concluded by the decisions in writ petition filed by A.K. Gulati (CW 289/91) and Hari Lal Sharma (CW 2756/91). Such a contention on the part of respondents No. 1 and 2 is misconceived and has no substance.
17. Another stand taken by respondents No. 1 and 2 in their reply affidavit that in case same scales of pay have been prescribed by Pay Commission for two posts, one promotional to another, the old relativities are no more valid and new relativities have been established by the Commission and the two posts are treated equal/merged. In other words after 1.1.1986, no promotion can be made from the feeder cadre to the promotion cadre since the post of Private Secretary, Court Master, Superintendent and those of Assistant Registrar will be deemed to have merged. This contention is also not tenable since as per the rules, promotion is made and is being made to the post of assistant Registrar from only three feeder cadres of Superintendent, Court Master and Private Secretary and from no other source. These posts cannot be said to have deemed merged as alleged.
18. Article 229(1) of the Constitution of India empowers Chief Justice to frame rules relating to the salary, allowances, leave or pension. The petitioners contend that rules to be made relating to salary, allowances, leave or pension require approval of the Governor of States. In case of Delhi High Court in terms of Rule 2 of Delhi High Court Officers and Servants (Salaries, Leave, Allowances and Pension) Rules framed under Article 229 of the Constitution of India, the officers and servants of High Court are entitled to be paid salaries and allowances specified in First Schedule annexed to the Rules, which prescribe the scales of pay. As per the observations made by Supreme Court in Supreme Court Employees Welfare Association v. Union of India and Ors., , when such a recommendation is made, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted. As regards recommendations of Chief Justice of India made to the President, it was observed that if President of India is of the view that approval cannot be granted, he cannot straightaway refuse to grant such approval, but while doing so, there must be thoughts exchanged between President of India and Chief Justice of India. The petitioners have contended that in the light of the directions issued in T.R.L. Narayanan and Ors. v. Union of India and Ors. (CW 2901/81) decided on 18.12.1985, direction deserves to be issued since the petitioners are entitled to a writ of mandamus directing Union of India to accord its approval to the proposed revision of scales of pay. In T.R.L. Narayanan’s case (supra), this Court issued writ of mandamus directing Union of India to accord its approval to the proposal of Chief Justice for revision of pay scales attached to the posts of Joint Registrar, Deputy Registrar and Assistant Registrar on the ground that situation created by revision of pay scales of the three feeder posts would suffer from the vires of arbitrariness and unreasonableness and that the recommendations of Chief Justice had been duly concurred with by Delhi Administration. Union of India was acting unreasonably in dealing with the matter by not according its concurrence. In State of U.P. and Ors. v. Renusagar Power Co. and Ors. , it was held that exercise of powers whether legislative or administrative would be set aside if there is manifest error in exercise of such powers or exercise of power is manifestly arbitrary. Similarly if the power has been exercised on non-consideration or non-application of mind to relevant factors, exercise of powers will be regarded as manifestly erroneous. If the power whether legislative or administrative is exercised on the basis of facts, which do not exist and which are patently erroneous, such exercise of power will stand vitiated.
19. As noticed above, Fundaments! Rule 22-C entitles an officer performing duties and functions involving higher responsibilities to a higher scale. It is not disputed that the post of Assistant Registrar carries duties and functions more onerous and superior in nature and enjoin upon higher responsibility than those attached to the three feeder categories of Superintendents, Court Masters and Private Secretaries, It is also not disputed that Joint Registrar and Deputy Registrar besides administrative work also hold Court in accordance with the powers delegated to them under High Court Rules and Orders and also under Delhi High Court (Original Side) Rules, responsibilities attached to these posts are higher than the three feeder category posts. The responsibilities attached to the post of Joint Registrar and Deputy Registrar are higher than those of Assistant Registrar. It is also not in dispute that imbalance has been created in the pay structure of the officers of this Court for which on thorough deliberations, the Committee of three Judges submitted its report to Chief Justice, who accepted the recommendations. Chief Justice in turn on acceptance of the recommendations, proposed to enhance pay scales for which purpose a reference was made to Union of India. Such a recommendation of Chief Justice was required to be looked upon with respect. Union of India had challenged the decision of this Court when Private Secretaries were directed to be placed in the pay scales of Rs. 3000-4500, which challenge ultimately failed on judicial side. There is no other reason why approval should be withheld. Exercise of powers in not accepting the recommendations of the Chief Justice is thus arbitrary and is vitiated in terms of decision in T.R.L. Narayanan’s case (supra). Direction deserves to be issued, as prayed for, in the writ petition.
20. Resultantly, the petitioners would, therefore, be entitled to writ of mandamus directing Union of India to accord its approval to the proposed scales of pay with effect from the same date from which the revised scales of pay were allowed to the three feeder posts, i.e. on 1.1.1986. Accordingly, the petition succeeds. Rule is made absolute. Direction is issued to Union of India lo accord its approval to the revision of the pay scales attached to the aforesaid posts, in accordance with the recommendations of the Chief Justice w.e.f. 1.1.1986 with all consequential benefits. Approval be accorded within a period of three months from today. Arrears will be worked out and paid within a period of one month thereafter.