ORDER
A.R. Lakshmanan, J.
1. The Tamil Nadu Civil Courts Senior Bailiffs Association (hereinafter referred to as the Association) is the petitioner in both the writ petitions.
2. The prayer in W. P. No. 6641 of 1991 is as follows : To issue a writ of certiorarified mandamus calling for the records relating to the orders passed by the 1st respondent issued in G. O. Ms. No. 666, Finance (Pay Commission) Department, dated 27.6.1989 and quash Entry No. 53 in Column No. 3 pertaining to Senior Bailiffs at page 135, shown as Rs. 825-1200 and direct the respondents to revise and fix the pay of the Senior Bailiffs in the scale of Rs. 975-25-1150-30-1660 on par with the scale of employees in similar categories.
3. The prayer in W. P. No. 1187 of 1992 is as follows : To issue a writ of certiorarified mandamus calling for the records relating to the orders passed by the 1st respondent in G. O. Ms. No. 666, Finance (Pay Commission) Department, dated 27.6.1989 and quash Entry No. 53 in Column No. 3 pertaining to Senior Bailiffs at page 135, shown as Rs. 825-1200 and direct the respondents to revise and fix the pay of the selection Grade Senior Bailiffs in the scale of Rs. 1,200-30-1560-40-2040 with effect from 1.6.1988 on par with the scales of pay of employees of similar categories.
4. First I will take up W. P. No. 6641 of 1991. The petitioner – Association is a recognised service association as per the orders passed by the Government of Tamil Nadu in G. O. Ms. No. 1805. Home (Courts VII) Department, dated 25.8.1989. The post of Bailiff was originally known as Amin in the Mofussil. Prior the First Pay Commission, the scale of pay of Amins was Rs. 25-2-35-1-45 and there was no time scale of pay for the Copyists, who were paid a fixed pay of Rs. 30 per month. The First Pay Commission recommended equal scale of pay to the Copyists and Amins, i.e., on the scale of Rs. 70-2-100. Accordingly, the Government issued orders revising the scale of pay of Amins and Copyists as Rs. 70-2-100. When the Second Pay Commission was appointed, the High Court recommended for revision of scale of pay for Amins as Rs. 90-4-110-3-140 and for the Copyists as Rs. 90-3-120. However, the second Pay Commission recommended the same scale of pay of Rs. 150-4-170-5-225 to Amins and Copyists. The Government accepted the recommendations of the Second Pay Commission and revised the scale of pay of Amins and Copyists as Rs. 150-4-170-5-225 by merging the dearness allowance with pay.
5. The copyists subsequently made a representation and the Government in G. O. Ms. No. 762, Home Department, dated 14.3.1972, revised the scale of pay of Copyists as Rs. 200-5-250-10-300, which was the scale of pay applicable to Junior Assistants. Taking note of the said Government order, the High Court recommended to the Third Pay Commission in 1977 for revision of the scale of pay of the Copyists, Readers and Examiners on par with Junior Assistants, and that of the Amins in the Mofussil Courts on par with the Senior Bailiffs in the city, as their duties and responsibilities are onerous and they are doing more or less the same duties in the matter of execution of court’s orders as Senior Bailiffs. But, on the recommendation of the Third Pay Commission, the Government in G. O. Ms. No. 1050, Finance Department, dated 5.10.1978, revised the scale of pay of Amins lower than the scale of pay of copyists, Readers and Examiners.
6. On the representation made by the Tamil Nadu Amins Association, the High Court, taking note of the fact that the work done by the Amins in the Mofussil and the senior Bailiffs in the City is substantially the same and identical, recommended for redesignation Amins as Senior Bailiffs. The Amins Association also made representation for the revision of scale of pay of Amins at least on par with the Copyists though not on par with the Junior Assistants. Later, they also made representations to the High Court for revising the scale of pay of Amins on par with the Senior Bailiffs, which was identical with the scales of pay for Copyists, Readers and Examiners. The High Court also recommended for the revision of the scale of pay of Amins by fixing the same scale of pay as is applicable to the senior Bailiffs, Copyists, Readers and Examiners. However, the Government failed to take any decision in the matter and no order was passed on the revision of scale of pay sought for by the Amins.
7. Aggrieved by the orders of the Government passed in G. O. Ms. No. 1050, Finance Department, dated 5.10.1978, the Tamil Nadu Amins Association filed W. P. No. 5160 of 1982. That writ petition was allowed by G. Ramanujam J., on 27.10.1983. The Government of Tamil Nadu preferred W. A. No. 768 of 1984, which was dismissed by a Division Bench of this Court on 15.4.1986. Thereafter, the Government filed a Special Leave Petition in the Supreme Court and the same was also dismissed. Thereupon, the scale of pay of Amins was revised and fixed on par with the scale of pay of Copyists, Examiners and Readers.
8. Subsequently, the Fourth Pay Commission recommended for the revision of scale of pay for Amins as Rs. 555-970 and this recommendation was accepted by the Government. It is pertinent to note that the said scale of pay was on par with the scale of pay for Copyists, Readers, Examiners and Senior Bailiffs. However, the Fifth Pay Commission recommended for the revision of the scale of pay of Rs. 825-1200 for Amins who have since been re-designated as Senior Bailiffs, as per G. O. Ms. No. 1085, Home (Courts VII) Department, dated 25.8.1989. It may be noted in this connection that the educational qualification prescribed for the post of Amins/Senior Bailiff is a Minimum General Educational Qualification viz., a pass in S. S. L. C. according to the orders issued in G. O. Ms. No. 316, Home (Ser. I.) Department, dated 12.2.1990, which has got effect of amending Rule 19 of the Special Rules for Tamil Nadu Judicial Ministerial Service. As already stated, the scale of pay for Senior Bailiffs has been revised and fixed as Rs. 825-1200. This scale of pay is shown in Item No. 53 at page 135 of the G. O. Ms. No. 666, Finance (Pay Commissioner) Department, dated 27.6.1989.
9. My attention was drawn to the fact that the employees who were drawing lower scales of pay viz., Rs. 505-845, on the recommendations of the Fourth Pay Commission, have now been given higher scales of pay as per G. O. Ms. No. 666, Finance (Pay Commission) Department, dated 27.6.1989, even though their educational qualification is lower than the one prescribed for Senior Bailiffs. The Association made a representation to the 1st respondent for revising the scale of pay of Senior Bailiffs as Rs. 950-20-1150-25-1500. Another representation was also made on 13.3.1990 to the Law Minister. The Association sent a reminder to the Home Secretary on 13.8.1990 and a further representation to the Tamil Nadu Three Members Committee for pay fixation and to the first respondent on 14.12.1990. However, there had been no reply or response to the above representation, which compelled the petitioner-Association to come before this Court for redressal of their grievance.
10. It is contended by Mr. N. R. Chandran, learned Senior Counsel for the petitioner, that the impugned order passed by the 1st respondent in fixing the scale of pay of Senior Bailiffs at Rs. 825-1200 is lower than the scale of pay fixed for other employees of lower categories, which is ex facie arbitrary and discriminatory besides being unjust and unreasonable. He invited my attention to G. O. Ms. No. 236, Home Department, dated 29.1.1958, which had recognised that the duties and responsibilities of the Amins were of greater importance than those of Copyists, Readers and Examiners. The duties and responsibilities of the Senior Bailiffs are arduous and onerous since they have to execute the Court’s warrants like arrest and delivery and discharge functions as those of the Police Head Constables.
11. Learned Government Advocate, who appears for the respondents, also is not in a position to deny that in the absence of Junior Assistants, the Amins/Senior Bailiffs do the clerical work since there is no other Junior Assistant in the Nazir’s Office. They also attend to the work of writting accounts, receiving batta memos and entering the same in the ‘A’ and ‘B’ Registers, and filling up the batta memos. This apart, the Amins were in the higher category and the posts of Copyists, Examiners, Readers, Record Clerks and Process Servers/Senior Bailiffs were the feeder categories. Therefore, as rightly contended by Mr. N. R. Chandran, there is every justification for the Amins/Senior Bailiffs to claim a higher scale of pay than those in the feeder posts.
12. The Joint secretary to Government, Finance Department, filed a counter affidavit on behalf of the 1st respondent stating that the scales of pay, based on the Fifth Pay Commission recommendations, have been revised based on the Government of India pattern and also based on the nature of work qualification and other duties responsibilities attached to the posts. As such, the learned Government Advocate contended, that the old pay parity cannot be claimed as a matter of right consequent on the implementation of the Central scales of pay. Therefore, the learned Government Advocate submits that the requests of the Association are liable to be rejected. He further contended that the Fifth Pay Commission has also examined various aspects and recommended the scale of pay of Rs. 825-1200 to the Senior Bailiffs/Amins on par with that of Copyists, Readers and Examiners, based on the nature of work, job responsibilities attached to the posts, etc. The scale of pay of Rs. 825-1200 granted to the post of Senior Bailiff/Amin on par with Copyists, Readers and Examiners, according to the learned Government Advocate, is therefore, quite appropriate and deserves no change.
13. The 2nd respondent/Registrar, High Court, filed a separate counter-affidavit. It is sated therein that the High Court recommended to the Fourth Pay Commission that the pay scales as recommended for the posts of Copyists, Readers and Examiners on par with Junior Assistants, may also be given to Amins/Senior Bailiffs. But, the Government, on the recommendation of the Fourth Pay Commission, fixed the same scale of pay to the Copyists, Readers, Examiners and Amins as Rs. 555-970, but below the scale of pay of Junior Assistants, i.e., Rs. 610-1975. Again, the High Court recommended to the Fifth Pay Commission that the scale of pay of Amins/Senior Bailiffs be revised as recommended for Junior Assistants. But, the Government in G. O. Ms. No. 666, Finance, dated 27.6.1989, the recommendation of the Fifth Pay Commission, fixed the scale of pay as follows :
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Name of the post Pre-revised scale Revised scale ------------------------------------------------------------------ Junior Assistant Rs. 610-1075 Rs. 975-1660 Copyists, Reader and Examiner Rs. 555-970 Rs. 825-1200 Amins Rs. 555-970 Rs. 825-1200 Senior Bailiff, Court of Small Causes, Madras Rs. 555-970 Rs. 825-1200
14. At the time of hearing it is brought to my notice that the posts of Examiner and Reader come under Class IV Category 6 of the Tamil Nadu Judicial Ministerial Service, and that the posts of Amins and Copyists come under Class V of the Tamil Nadu Judicial Ministerial Service. It is submitted that the Government have fixed the same scale of pay i.e., Rs. 825-1200 for the posts of Reader and Examiner (higher posts) and to the Amins (lower post). It is also submitted that the scale of pay of Copyists also is Rs. 825-1200. The Copyists have to turn our minimum of 84,000 words per month to claim their pay in the said scale. They are also eligible at 10 paise for every 100 words typed over and above the minimum turn over 84,000 words. Further, they are entitled to machine allowance of Rs. 30 per month since they bring their own typewriters. The educational qualification is Minimum General Educational Qualification. Besides, they should also pass the typewriting examinations by higher grade in English and Tamil.
15. It is contended by Mr. N. R. Chandran, learned Senior Counsel for the Association, that once the High Court recommended to the Government requesting them to revise the scale of pay of Amins on par with that of Copyists, Examiners, Readers and Junior Assistant, the Government cannot ignore the said recommendation on filmsy grounds. As already seen, W. P. No. 5160 of 1982 was filed by the Amins Association challenging G. O. Ms. No. 1050, Finance, dated 5.10.1978 and that writ petition was allowed by G. Ramanujam, J., on 27.10.1983. The writ Appeal and the special leave petition filed by the State were dismissed by a Division Bench of this Court and the Supreme Court respectively. Thereupon, the scale of pay of Amins was revised and fixed on par with the scale of pay of Copyists, Examiners and Readers. Likewise, the Fourth Pay Commission recommended for the revision of scale of pay for Amins as Rs. 555-970 and this recommendation was accepted by the Government. It is pertinent to note that the said scale of pay was on par with the scale of pay for Copyists, Readers, Examiners and Senior Bailiffs. However, the Fifth Pay Commission has not accepted the recommendation of the High Court for the revision of the scale of pay of Amins and fixed their scale of pay on par with Copyists. It is also pertinent to notice at this juncture that W. P. No. 12737 of 1994 filed by the Readers and Examiners claiming salary on par with Junior Assistants was allowed by this Court on 23.5.1995.
16. The posts of Amins/Senior Bailiffs, Copyists, Readers and Examiners are to be found only in Courts and that no such posts exist in the Government. Consequently, the Government is unable to appreciate the nature of the duties performed by these personnel. In my opinion, High Court is the only authority who is in the best position to determine and assess the nature of the duties and responsibilities and the equivalence of these posts with similar posts in the court. In the instant case, the Hon’ble Chief Justice of this Court, after considering all the relevant matters, had recommended that the scale of pay in the post of Senior Bailiffs be fixed on par with that of Copyists, Examiners and Readers. As already seen, the Minimum General Educational Qualification for the post of Junior Assistant in the Judicial Department as also for the post of Readers, Examiners and Amins is S. S. L. C., and that fact is not disputed by the learned Government Advocate appearing for the respondents. The reason given by the 1st respondent for not acting on the recommendations made by the Hon’ble Chief Justice of this Court, according to the averments made in the counter-affidavit, are far from satisfactory. In my opinion, the reasons given by the 1st respondent for not acting on the recommendations of the Hon’ble Chief Justice are wholly untenable and cannot be sustained.
17. Art. 229 of the Constitution provides that any appointment of officers and servants of the High Court shall be made by the Chief Justice of the Court or by such other Judge or Officer of the Court as he may direct and subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of the High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judges or Officers of the Court authorised by the Chief Justice to make rules for the purpose, provided further that the rules made under these clauses shall, so far as it relates to salaries, allowances, leave or pension, required the approval of the Governor of the State. Mr. N. R. Chandran therefor, submitted that unlike Art. 309 of the Constitution, which gives to the Executive Government of the State the power to make rules, Art. 229 gives power to the Hon’ble Chief Justice of the High Court to make the rules and the role of the Governor of the State comes only for approval of the rules made by the Hon’ble Chief Justice insofar as they relate to salary, allowance, leave or pension. In this connection, it is contended that the role assigned to the Governor under the Proviso to Clause I of Art. 229 of the Constitution is exclusive to him and he is not required to act with the aid and advice of the Council of Ministers as in Art. 163 of the Constitution, wherein it is stated that there shall be a council of Ministers with the Chief Minister at the Head to aid and advice the Governor in the exercise of his functions. Therefore, I am of the view, that insofar as the High Court is concerned, there cannot be any interference whatsoever by the Executive Government of the powers of the Hon’ble Chief Justice by interfering with the independence of the Judiciary or with the service conditions of the employees of the High Court. In this view of the matter, it is to be noticed that in exercise of the powers under the Proviso to Clause I of Art. 229 of the Constitution, the Governor is not required to act with the aid and advice of the Council of Ministers and hence ought to give his approval to the recommendation of the Hon’ble Chief Justice.
18. A Division Bench of the Court consisting of P. S. Mishra J., as he then was, and Janarthanam J., in Review Application Nos. 72 and 73 of 1991 in writ Appeal Nos. 413 and 414 of 1991 dated 5.12.1991 on an interpretation of Art. 229 of Constitution, has taken the view that when the Hon’ble Chief Justice of the High Court makes a recommendation regarding the pay and allowances of officers and servants of the High Court, unless there is a compelling and valid reason not to approve, the Government should approve the recommendation. This is the view of the Apex Court also. In the instant case, since the Hon’ble Chief Justice has made the recommendation and the recommendation is based on the benefit extended to similar category of employees in the Judicial Department, who have always been treated on par, it would be grossly arbitrary, illegal and violative of Arts. 14 and 16 of the Constitution besides being in violation of Art. 229 of the Constitution, if the recommendation of the Hon’ble Chief Justice is not accepted by the Government.
19. The Supreme Court in State of Tamil Nadu v. K. V. Sesadri, J. T. (1988) 1 S. C. 262, while considering the claim of the Personal Assistants and Judgment Writers attached to the Judges at par with the Reporters in the Legislative Assembly, has directed the Government of Tamil Nadu to pay a special pay of Rs. 100 in addition to the special pay already being received by them. The Supreme Court has also held that they are entitled to special pay from 1.4.1984.
20. The reasoning is this :
“Heard learned counsel for the parties. We find that the learned Chief Justice of the High Court of Madras had recommended to the State Government to put the Personal Assistants and the Judgment Writers attached to the Judges at par with the Reporters in the Legislative Assembly in regard to payability of the special pay of Rs. 100 per month in addition to pay. While disposing of the writ petition, the High Court had directed that the respondents would get special pay of Rs. 100 in addition to the special pay which they have been received already. This obviously was not the recommendation of the learned Chief Justice. On the basis of the recommendation the respondents become entitled to Rs. 100 as by way of special pay and Mr. Shanti Bhushan appearing for State has no objection to accept that part of the decision relating to monthly payment of Rs. 100 as special pay to each of the respondents.
We accordingly modify the decision of the High Court and direct that the special pay admissible to the respondents shall be confined to Rs. 100 per month from 1.4.1984. It is open to the respondents to give any further representation they like to make in this regard and if and when made, the same may be disposed of on its own merit.”
20. For the foregoing reasons, I am of the view that W. P. No. 6641 of 1991 is to be allowed as prayed for and a direction is to be issued to the 1st respondent to revise and fix the pay of Senior Bailiffs in the time scale of pay of Rs. 975-25-1150-30-1660.
21. During the pendency of W. P. No. 6641 of 1991 the Association filed W. M. P. No. 18114 of 1991 to permit the Association to add the words “and of the Selection Grade Bailiffs in the scale of Rs. 1200-30-1560-40-2040 with effect from 1.6.1968” in paragraph 10 of the affidavit filed in support of the writ petition, and also in the writ petition after the figure ‘1500’ and before the word ‘on’. The said petition was dismissed by S. Govindaswami J., on 27.11.1991 as the learned Judge felt that a separate writ petition should be filed in respect of the Selection Grade Bailiffs. Therefore, the petitioner-association has filed W. P. No. 1187 of 1992, the prayer of which is extracted supra. For the reasons stated supra while disposing of W. P. No. 6641 of 1991,
I am of the view, that the petitioner-Association is entitled to succeed in this writ petition also.
22. In the result, both the writ petitions are allowed as prayed for. The respondents are directed to revise and fix the pay of the Senior Bailiffs and the Selection Grade Senior Bailiffs as mentioned supra with effect from 1.6.1988. The 1st respondent is given three months time from the date of receipt of a copy of this order either from this Court or on production of the same by the petitioner, whichever is earlier, to implement the direction given in this order. There will, however, be no order as to costs.
23. Petitions allowed.