1 wp2464.99.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION KJ WRIT PETITION NO.2464 OF 1999 1 Shri Pandit Mukund Borole ) Aged 57 years, Occupation-Service ) R/o.8, Durgesh, Kastur Park, ) Borivali (W), Mumbai-400 092 ) 2 Shri Yashwant Shankar Arekar ) Aged 60 years, Occupation-Nil (Retired) ) R/o. Bldg. No.15, Room No.622, ) Fisherman Colony, Mahim, Mumbai-16 ) 3 Shri Ganpat Krishnaji Thorat ) Aged 60 years, Occupation-Nil (Retired) ) R/o. 16/9, Rawji sojpal Chawl, T.J.Road, ) Sewri, Mumbai-400 015 ) 4 Shri Ramchandra Govind Naik ) Aged 45 years, Occupation-Service ) R/o. Sector 29, Premsagar Co-op. Hsg. ) Society Ltd., E-37/2, Vashi, Navi Mumbai- ) 400 703 ) 5 Shri Baburao Honaji Nikale ) Aged 59 years, Occupation-Nil (Retired) ) R/o. 137/4072, Kannamwar Nagar, ) Vikroli, Mumbai-400 083 ) 6 Shri Pathak Vidyadhar Waman ) Aged 54 years, Occupation-Service ) R/o.5, Geetanjali Co-op. Hsg. Society ) Sant Namdeo Path No.3, Dombivli (E), ) Dombivli-421 201 ) 2 wp2464.99.sxw 7 Shri Eknath Yeshwant Lahane ) Aged 61 years, Occupation-Nil (Retired) ) R/o.B-29, Ravi Darshan Housing Society ) Arunoday Nagar, Mulund (East), ) Mumbai-400 081 ) 8 Shri Padghe Lingappa Pentappa ) Aged 59 years, Occupation-Nil (Retired) ) R/o. Jodiya Mansion, 1st Floor, R.No.165, ) Ganpatrao Kadam Marg, Lower Parel, ) Mumbai-400 013 ) 9 Shri Jaywant Dwarkanat Potdar ) Aged 57 years, Occupation-Service ) R/o. 4/27, Neelkanth Mahadeo Gopal ) Nagar, Road No.2, Dombivli (East)-421 201) 10 Shri C.B.Malkapurkar ) Aged-56 years, Occupation-Service ) R/o. 70, Omkar Co-op.Hsg.Society ) New Anand Nagar, Santacruz (East), ) Mumbai-400 055 ) 11 Shri Jagannath Ramchandra Dixit ) Aged-57 years, Occupation-Service ) R/o.Mandar, 1st Floor, Ayere Road, ) Tukaram Nagar, Dombivli, Dist. Thane ) 12 Shri Balkrishna Kashiram Shinde ) Aged- 55 years, Occupation-Service ) R/o. 11/823, Jai Maharashtra Nagar, ) Tatapower House, Borivali (E), ) Mumbai-400 066 ) 3 wp2464.99.sxw 13 Shri Rajaram Sawaleram Kakad ) Aged-58 years, Occupation- Retired ) R/o. A-12, Kshitij Co-op. Hsg.Society ) Plot No.132, R.D.P. 7, Sector-4, Charkop, ) Kandivli (W), Mumbai-400 067 )....Petitioners Versus 1 The State of Maharashtra ) through the Secretary, Law & Judiciary ) Department, Mantralaya, Mumbai-400 032) 2 The Chief Metropolitan Magistrate ) Esplanade, Mumbai ) 3 The Registrar, ) High Court (A.S.), Bombay )....Respondents W I T H WRIT PETITION NO.2465 OF 1999 1 Shri Ramchandra Mahadeo Mulay ) Aged-63 years, Occupation-Nil (Retired) ) R/o.6/447, Abhuday Nagar ) Kalachowki, Mumbai-400 033 ) 2 Kum.Rohini Narayan Kamath ) Aged-66 years, Occupation-Nil (Retired) ) R/o. Taraporewala Building No.1, 1st floor, ) R.No.13, August Kranti maidan, ) Kemp’s Corner, Mumbai-400 036 ) 3 Shri Sharad Vishnu Patankar ) Aged-63 years, Occupation-Nil (Retired) ) R/o. Navalkar Building, Room No.8, ) 1st Floor, N.C. Kelkar Rd.Dadar, Mumbai-28) 4 wp2464.99.sxw 4 Shri Ravindranath Shankarrao Kalyankar ) Aged-63 years, Occupation-Nil (Retired) ) R/o. 31/782, Nehru Nagar, ) Kurla (East), Mumbai )....Petitioners Versus 1 The State of Maharashtra ) through the Secretary, ) Law & Judiciary Department, ) Mantralaya, Mumbai-400 032 ) 2 The Chief Metropolitan Magistrate ) Esplanade, Mumbai ) 3 The Registrar, ) High Court (A.S.) Bombay )....Respondents ---- Shri N.V.Bandiwadekar for the petitioners. Ms.A.H.Helekar AGP for the Respondent No.1/State. Mr.Sanjay Udeshi for the Respondent Nos.2 & 3. ---- CORAM : P.B.MAJMUDAR & MRS.MRIDULA BHATKAR,JJ DATE : 22/12/2010. ORAL JUDGMENT ( PER : MRS.MRIDULA BHATKAR,J) 5 wp2464.99.sxw 1 In these two petitions, the petitioners have challenged the decision of the Respondent/State of Maharashtra of not giving them the pay scale of the judicial clerks and refusing to give the arrears from the date they have worked as judicial clerk. All the petitioners initially have worked as interpreters in the Court of Metropolitan Magistrate, Mumbai and subsequently they all were appointed and worked as judicial clerks. 2 Learned Counsel Mr. Bandiwadekar for the petitioners has submitted that the pay scale of the interpreter and the judicial clerk in the year 1976 was same. However, subsequently the scale of the interpreters was fixed at Rs.365-760 and judicial clerks were placed in the pay scale of Rs.395-800. That difference in the pay scale was maintained and in the year 1996-99 when the petitions were filed, interpreters were placing in revised pay scale of Rs. 4500-125-7000 and the judicial clerks were getting pay scale of Rs. 5000-150-8000. He submitted that the orders issued to the petitioners while giving them post of judicial clerk specifically mentioned that it was an appointment on promotion and this 6 wp2464.99.sxw being the promotional post, having more pay scale between Rs. 5000-8000, the petitioners claimed the same pay scale. He submitted that the petitioners have put in the service as judicial clerks nearly 7 to 8 years and thereafter they were given promotion as Superintendent and Assistant Registrar. However, the Government has refused to pay the pay scale of the judicial clerk to the petitioners of the said period when they worked as a judicial clerk and their pay is not fixed at the same pay scale which subsequently affected adversely the fixation of their pension. Learned Counsel further submitted that the other employees who were promoted to the post of judicial clerks from interpreters have been paid the salary at the scale of judicial clerk. However, the petitioners were deprived of such salary. Therefore, on the ground of parity the petitioners should have been given the same scale of judicial clerk. 3 High Court-Respondent No.3 has filed an affidavit supporting the petitioners. It is contended that as interpreters, petitioners were working at lower pay scale and due to their 7 wp2464.99.sxw promotion as judicial clerk, they were shifted to the higher pay scale. Respondent/State has also filed an affidavit opposing the claim of the petitioners. 4 Learned AGP appearing for the State has pointed out that the appointment of the judicial clerk is made by adopting three modes, i.e by promotion from the cadre of lower grade clerk, by transfer from the post of interpreter to judicial clerk and by nomination from the persons who are Law Graduates or working as Advocates. She submitted that the petitioners were appointed as judicial clerks by adopting the 2nd mode i.e transfer, so the post of the judicial clerk is not a promotional post and therefore, they were not entitled to higher pay scale. Learned Counsel further relied on the Service Rules framed by the Government for the post of the judicial clerk and for the post of interpreter in the courts of the Presidency Magistrate for Greater Bombay, State of Maharashtra. She relied on Rule No.2A which reads as under :- “2(a) If the appointment of a Judicial Clerk is made by 8 wp2464.99.sxw transfer of an Interpreter for the purpose of Rule 1(b), the appointment will be regarded as one made by nomination if the Interpreter was appointed as Interpreter by nomination. It will be regarded as one by promotion if the Interpreter was appointed as an Interpreter by promotion.” Relying on this rule, she submitted that though the interpreter is transferred to the post of Judicial clerk, his post is to be treated in the cadre of interpreter it being his initial appointment and higher pay scale cannot be granted. 5 We have considered the respective submissions. For the post of appointment of the Judicial clerk and also for the post of appointment of the interpreter, Lower Division Clerk (LDC) is a feeder cadre. A clerk can be promoted as an interpreter or a judicial clerk. Though the pay scale of interpreter and judicial clerk are different from 1976, the employee who is working on these two posts, can be transferred interse i.e. from judicial clerk 9 wp2464.99.sxw to interpreter and vice versa, therefore, considering the rules and the submissions of the learned AGP, it is clear that post of Judicial clerk is not a promotional post for interpreters. The 3rd mode of the appointment of both the posts is by nomination wherein eligibility criteria for both the posts are same. Thus both the posts are to be considered as posts in the same cadre. There can be different posts or grades in one cadre, drawing different salary depending on the factors like nature of the work, degree of responsibility, area of the work etc. Mere difference in the pay scale cannot be necessarily understood as a difference in the cadre. Though post of judicial clerk and interpreter are different posts, they belong to the same cadre. The promotional post for interpreter and judicial clerk is a post of Superintendent or Assistant Registrar. All these petitioners have worked as judicial clerks for a considerable period of 7 to 8 years and they have performed the same duties, same work of the judicial clerk. Undoubtedly, on the ground of parity, they are entitled to get the same scale which is prescribed for the judicial clerk. 10 wp2464.99.sxw 6 The petitioners were not given benefit of pay scale prescribed for Judicial Clerk. Even on the basis of parity of work, petitioners are entitled to have the same pay scale of Judicial Clerk. Since they have worked on the aforesaid post, the pay scale prescribed for Judicial Clerk is required to be given to the petitioners also. The action of the State Government is therefore, arbitrary and violative of the provisions of Article 16 of the Constitution of India, as other Judicial Clerks were placed in the higher pay scale. Considering the facts and circumstances of the case, both the Writ petitions are required to be allowed and are accordingly allowed. It is held that the petitioners are entitled to the benefit of pay scale prescribed for Judicial Clerk from the date on which they were assigned the work of Judicial Clerk. The respondent-State is directed to pay the arrears to the petitioners in this behalf within a period of three months from today. Since the petitioners have retired, the pension of the petitioners should be re-fixed, treating them as retired in the pay scale prescribed for Judicial Clerk. Appropriate orders regarding re-fixation of pension should be passed within a period of three months from today. Consequently, 11 wp2464.99.sxw the order of recovery passed against the petitioners is quashed and set aside. Rule is made absolute to the aforesaid extent. (MRS.MRIDULA BHATKAR,J) (P.B.MAJMUDAR,J)