=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.159 OF 2007 NO.159 OF 2007 NO.159 OF 2007 Maharashtra State Judicial Bailiffs Employees’ Confederation, through Vice President Mr Gulab D. Rathod, Buldhana, Maharashtra ...Petitioners v/s The Registrar General, High Court of Judicature at Bombay and others ...Respondents Mr Y.S. Jahagirdar with Mr V.P. Patil for Petitioners. Mr A.H. Palekar, AGP for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND J.P. DEVADHAR JJ. : D.K. DESHMUKH AND J.P. DEVADHAR JJ. : D.K. DESHMUKH AND J.P. DEVADHAR JJ. DATE DATE DATE : 23RD SEPTEMBER 2008 23RD SEPTEMBER 2008 23RD SEPTEMBER 2008 =2= P.C.- 1. This is a petition filed by the Association of personnel who are holding the posts of Bailiffs in Courts throughout the State of Maharashtra excluding the City of Bombay. Their principal grievance is that though the post of Head Bailiff exists in the State of Maharashtra excluding Bombay in each district, there is no separate pay-scale prescribed to the post of Head Bailiff. Presently, the Head Bailiff is being paid the pay-scale of the post of Bailiff which is Rs.3050-4590 plus Rs.150/- as special pay whereas a person holding the post of Head Bailiff in the City of Bombay is given the pay-scale of Rs.5500-9000. A person holding the post of IInd Bailiff in Bombay City is given the pay-scale of Rs.4000-6000. The State of Maharashtra has filed affidavit opposing the prayer of the petitioners on several grounds including difference in duties. A reply has been filed on behalf of the State of Maharashtra as also on behalf of the High Court. In the affidavit filed on behalf of the State of Maharashtra, it is admitted that the post of Head Bailiff exists in the State of Maharashtra excluding Bombay also. 2. We have heard learned counsel appearing for =3= both the sides. It appears from the record that for the post of Bailiff, after the Vth Pay Commission, pay-scale of Rs.3050-4590 was sanctioned. It appears that the Government introduced the scheme by Resolution dated 8th June 1995 of giving pay-scale of higher post to a person who holds lower post for a period of 12 years where due to less number of promotional post it is not possible for the Government to give promotion. By Government Resolution dated 3rd August 2001, it was directed that where in some cases promotional post is not provided for at all, then after completion of 12 years of service, pay in the higher category should paid to such an Officer. In so far as the city of Bombay is concerned, the pay-scale given to the post of Bailiff is Rs.3050-4590. The post of IInd Bailiff is above the post of Bailiff and the pay-scale is Rs.4000-6000 and therefore, in terms of the Government Resolutions dated 3rd August 2001 and 17th May 2003, personnel who have completed 12 years of service in the post of Bailiff were given the pay-scale of Rs.4000-6000 in some Districts. This resulted in anomalous situation inasmuch as a Bailiff who is actually promoted to the post of Head Bailiff was being paid the pay-scale of Rs.3050-4590 plus Rs.150/- as special pay whereas a person who is actually not promoted to the post of Head Bailiff but completes 12 years of service was being paid Rs.4000-6000. This anomaly, it appears, was pointed out =4= to the State Government. The State Government, instead of remedying the anomaly by providing for the post of Head Bailiff higher pay-scale, directed that the Bailiffs in the rest of the State of maharashtra are not entitled to the benefit of scheme of giving higher pay-scale on completion of 12 years of service only because for the post of Head Bailiff in the rest of State of Maharashtra excluding Bombay, higher scale of pay is not provided. It is the case of the petitioners that every Taluka place in the State of Maharashtra as also at every District place there exists a post of Head Bailiff. The duties of the post of Head Bailiff are different, in the sense, the Head Bailiff has higher responsibilities than the Bailiff and therefore, according to the petitioners, a person holding the post of Head Bailiff in the rest of State of Maharashtra is entitled to a higher scale of pay than a person holding a post of Bailiff. The fact that the post of Head Bailiff exists in the rest of State of Maharashtra excluding Bombay is not disputed by the State Government. In paragraph 3 of the affidavit filed on behalf of the respondent Nos.2 to 4 dated 5th August 2008 the respondent Nos.2 to 4 have stated thus :- "3. It is submitted that the post of Head Bailiff is a promotional post as per the Civil Manual and therefore, while fixing the pay, =5= recourse is taken to the provisions of Rule 11 of Maharashtra Civil Services (Pay) Rules." In paragraph 6, it is stated thus :- "6. It is submitted that the Government has accepted the recommendations of the Vth Pay Commission and the pay scale of Rs.3050-4590 has been given to the post of Bailiff. The Scheme as envisaged in the subordinate posts in regard to the post of Bailiff is that there is a post of Bailiff and one post of Head Bailiff under the jurisdiction of District Judge." . Thus, it is not in dispute that the post of Head Bailiff exists and is a promotional post for Bailiffs. In our opinion, therefore, the Head Bailiff has to be given higher scale of pay. 3. The petitioners are claiming parity in the pay-scale of Head Bailiff in the rest of State of Maharashtra with the post of Head Bailiff in the City of Bombay. In the City of Bombay the pay-scale available to the post of Head Bailiff is Rs.5500-9000. In the City of Bombay there is also in between post viz. the post of IInd Bailiff for which the pay-scale prescribed =6= is Rs.4000-6000. There is a dispute between the parties whether the nature of duties performed by the Head Bailiff in the rest of State of Maharashtra excluding Bombay and the Head Bailiff in Bombay is the same or there is substantial difference. Therefore, we do not propose to enter into and decide that controversy. In our opinion, it is for the State Government to decide whether for the post of Head Bailiff in the rest of State of Maharashtra excluding Bombay, the same scale of pay as is available to the post of Head Bailiff in Bombay is to be made applicable or a different scale of pay is to be given. It is essentially a policy decision which will have to be taken by the State Government after comparing the nature of duties performed by the personnel holding different posts. In our opinion, however, as observed above, as the post of Head Bailiff in the rest of State of Maharashtra excluding Bombay is a promotional post for Bailiffs, the Government is under a duty to prescribe a definite higher scale of pay for the post of Head Bailiff so that the scheme of scale of pay to the promotional post to a person who has put in 12 years of service can also be made applicable to the Bailiffs. What presently is happening is because there is no higher scale of pay prescribed for the promotional post of Head Bailiff, the personnel holding the post of Head Bailiff are not being given higher scale of pay after completing 12 years of service as Bailiff, but =7= even in Districts where they were paid for some time and steps are being taken to recover the amount from them. In our opinion, therefore, following order would meet the ends of justice. 4. The respondent No.2 - State of Maharashtra is directed to consider the question of prescribing a different, separate and higher pay-scale for the post of Head Bailiff in the State of Maharashtra excluding Bombay. The State Government is also directed to determine the date from which such higher scale of pay is to be paid. It is directed that such decision shall be taken by the State Government after considering representations if any made by the petitioner - Association and its members. The petitioner - Association and its members are at liberty to make representations to the State Government in that regard within a period of six weeks from today. The State Government shall take final decision on this question as expeditiously as possible and in any case within a period of six months from today. It is further directed that after prescribing the scale of pay for the post of Head Bailiff as directed above, the scheme for payment of higher scale of pay after completion of 12 years of service which is made applicable by the State of Maharashtra shall also be made application to the personnel holding the post of Bailiff. =8= 5. Till the State Government takes final decision and intimates it to the petitioner - Association, recovery if any on account of payment that may have been made to the members of the petitioner - Association under the scheme of payment of higher scale of pay on completion of 12 years of service shall not be made. Rule is made absolute accordingly with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( J.P. DEVADHAR J.)