PRADIP MOHANTY, J & S.K.MISHRA, J. O.J.C. No. 370 of 1993 (Decided on 12.08.2011) KULAMANI MOHANTY & ORS. ……Appellants. .Vrs. STATE OF ORISSA & ORS. … … Respondents. For Petitioner - M/s Saktidhar Das, AK.Nayak and S.K.Samanta ray For Opp.Party - Addl Standing Council.( For Op. 1& 2) S.K.MISHRA, J The petitioners in this case call in question the fixation of yardstick of Head Typists in the judgeship of Cuttack in violation of recommendation of the 4th Pay Committee. The also challenge the alleged discrimination in fixation of yardstick with regard to other heads of the departments and that of the judiciary. 2. The petitioners claim that as per the Finance Department Notification No. 43301/ F dated 28.8.1980, the judgeship of Cuttack, i.e., the District and Sessions Judge, Cuttack is the Head of the Department. The 4th Pay Committee recommended for amalgamation of two grades of Head Typists, i.e., Senior and Junior into one and the Government accordingly implemented the recommendations. The State Government in their Resolution No. SC/6-1/78-12130/Gen. dated 1st June, 1978 decided that after amalgamation of two grades of Head Typists into one on recommendation of 4th Pay Committee, the yardstick of the Heads of the Departments fixed in Political and Services Department Resolution No. 17156/Gen. dated 6.11.1964 became inoperative and incapable of implementation. It was further stated that the Home Department had issued orders in their Resolution No. SE.2-26/75-52845 dated 20.11.1976 revising the yardstick for sanction of post of the Head typist in various departments of the Secretariat. The Government have, therefore, decided that a post of Head Typist in the office of Heads of Department will be admissible for every six Typists in an office. When the number of Junior and Senior Grades Typists in an office will be more that 30% of the above yardstick another supervisory post of Head Typists will be admissible. Such Resolution superseded all previous Resolutions of the Political and Services Department on the subject. 3. On 9th April, 1980 the Government in Political and Services Department in their office memorandum clarified that even Head Typist is in charge of one Section having six Typists, but no posts exist in the Issue Section to co-ordinate the work of Head Typists and to be in over all charges of Issue Section. As difficulties were being experienced regarding distribution of work among the Head Typists, maintenance of Registers, Log Books, Stamp Accounts, etc., there was need for creation of a post higher in rank than the post of Head Typist. After careful consideration, the Government decided that the post of Typist, both Junior and Senior, sanctioned on yardstick and non- yardstick basis for Issue Section of Heads of Departments would form base posts for the purpose of sanctioning of posts of Head Typists. It was further decided that 20% of the number of base postsas formed subject to marginal adjustments, would indicate the number of Head Typists admissible for the Section. It was further resolved that in case of the existing number of posts of Head Typists sanctioned for the section falls short of the number arrived at on the basis of 20% of the base posts, the balance number of post of Head Typists may be created. For sections of which the total number of posts of Head Typists as sanctioned in four or more, one of the posts of the Head Typists will be converted to the post of a Superintendent, who is to co-ordinate the work of the Head Typists and to be in over all charge of the Issue section of Head of Department as mentioned above. It was decided that the post of Superintendent would be filled up from among the Head Typists of the Issue Sections of the Officers of the Heads of Departments. The post of Superintendent will be included for the purpose of creation of Leave Reserve Posts in accordance with Home Department Resolution No. 11634/H dated 8.3.1979. 4. Thus the post of Superintendent, which was created, was to be filled up from among the Head Typists of the Issue Sections of the Office of the Heads of the Department. The post of Head Typists was to be filled up in the Issue Section of the Heads of Department in accordance with the said principle. 5. It is further averred by the petitioners that in the judgeship of Cuttack, 57 posts of Junior and Senior Typists are available. This Court by judgement dated 22.2.1991 passed in O.J.C. No. 950 of 1985 held that the recommendation of the 4th Pay Committee has been accepted and 50% post of Junior Grande Typists have been upgraded as Senior Grade Typist vide Government Order No.7512 of the Law Department dated 8.5.1987. The post of Head Typist, if not created, be created within a period of three months from the date of receipt of the order of the Court. 6. The petitioners plead that in any judgeship two different establishments are maintained. One is maintained by the Home Department for the purpose of sessions and criminal cases and the other is maintained by the Law Department for civil and other matters. It is further averred that though there were 61 posts of Junior and Senior Grade Typists available in the judgeship of Cuttack, the Home Department in their Notification dated 5th September, 1991 bearing No. 61154 have been pleased to create three posts of Head Typists and the Law Department in their Notification No. III-J-51/87-3221/L dated 25.2.1992 have been pleased to create two posts of Head Typists. Thus in all five posts of Head Typists have been created in the Judgeship of Cuttack whereas according to strength following norms and ratio of yardstick as has been fixed in various Departments of the State, the requirement of ten posts are available to be created for the post of Head Typist, but for the reasons best known to the authorities, no further post of Head Typists have been created and only five posts have been created. As a result of such action, the petitioners are suffering a lot and have been deprived of getting their legitimate dues. The authorities have adopted a step motherly attitude, for which on an earlier occasion of O.J.C. No. 950 of 1985 was filed wherein this Court gave direction for creation of Head Typist. The same was created, but it was not in accordance with the yardstick as has been created in the other Departments of the Government. 7. It is pleaded by the petitioner that in the judiciary the workload is no way inferior, but may be more than any of the Heads of Departments of the State. The Typists are even working beyond the scheduled office hours for discharging their duties, but they 2 have been treated unequally along with similarly situated persons though it has been decided on principle of the State Government that in each six posts, one Head Typist shall be created for any and other Heads of Department, but in respect of the Judgeship of Cuttack where sixty one posts of Typists are available, only five posts of Head Typists are created though the Government have decided that in every six posts, there should be one Head Typist. 8. The petitioners further plead that it would be clear from the gradation list relating to the Director General of Police, Orissa, that the Typists posted under different Deputy Inspector Generals, Orissa, are not only inter-transferable, but also there is a common cadre in respect of the Typists belonging to the Director General as well as in different other places of posting. This would go to show that the Resolution of the Government referred to the Head of Department in Resolution dated 1.6.1978, the Head Typists refers to Typists in that office and also includes Typists working under its jurisdiction but posted at different places. Similar is the case in the Directorate of Handicrafts and Cottage Industries. 9. It is further pleaded that the Typists in other Departments working under one Heads of Departments but posted at different places are treated to be working under the same Heads of Departments and considered for promotion to the next higher grades. The Typists, who have been posted at various courts subordinate to the District Judge, Cuttack belonging to the same cadre, are entitled to be considered as working under the District Judge, Cuttack while considering their case for promotion to the next higher grade. Not treating the Typists under the District Judge, Cuttack, as their counter parts in other Heads of Departments of the State Government are being treated, amounts to discrimination and violates the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India, hence liable to be interfered with. As all the representations to the authorities yielded no result, the petitioners filed this writ application to issue a mandamus for creation of post of Head Typist as per the Government Resolution. Later on, on change of designation of the Head Typist in the Secretariat, the prayer was amended for creation of Superintendent Level-II and Superintendent Level-I, as per the direction of the Government in respect of the Heads of the Departments, in the judgeship of Cuttack. 10. Opposite Party No.1 have filed their written statement in which they have tried to justify the non-creation of Head Typist in accordance with the ratio which has been made applicable to Heads of the Department of the Secretariat on the ground that the Pay Commission recommendation was for creation of post of Head Typist in the office of District Judge only. Since the District Judge controls the Sub-ordinate Courts and the cadre of Typists under the Judgeship includes the Typists working in the Court of Magistrates and Munsifs of outlaying stations also, the yardstick prescribed for Heads of Department is not applicable in the cases of all Typists working in other courts under the Judgeship. It is further pleaded that the decision of the P and S Department for the purpose of creation of post in the Heads of the department is not applicable to the entire Judgeship but at best confined to the office of the District Judge alone. It is further pleaded that since the Head Typist of the Judgeship has no scope to supervise the work of a Typist of Magisterial Court of outlying station, the erstwhile P & S Department Resolution is not applicable in this case. On such plea the opposite party no.1 pleaded that the writ petition should be dismissed. 3 11. Opposite party No. 2, i.e. the Secretary to Government, Law Department through the Joint Secretary has filed his counter affidavit. Opposite party No. 2 pleads that there is no separate district establishment like the Heads of Department and District establishment. The District Judges have been declared as the Heads of department for certain limited purposes. But the Ministerial establishment of the District Judges and sub-ordinate Judges belong to District cadre like the Ministerial establishment of the District. Sub-ordinate Offices under different Departments of Government Heads of Department controls the District Offices. The control over the District and Sub-ordinate judiciary rests with the High Court under Article 235 of the Constitution of India. The Heads of Department has got jurisdiction all over the State. But the jurisdiction of the District Judge is limited to the district only. In case of the ministerial staff, the District Judge is the appointing and disciplinary authority, but the High Court is the appellate authority. The ministerial staff of the District Judge and Sub-ordinate Judges are transferred within the district. Their appointment and condition of service are regulated by the Orissa District and Sub-ordinate Court’s Ministerial Services (Method of Recruitment and Conditions of Service) Rules, 1969. So the Ministerial staff of the Sub- ordinate judiciary is purely of district cadre, though the District Judges have been declared as the Heads of Department. So the principle fixed, i.e. one Head Typist for twelve Junior and Senior Typists taken together for Sub-ordinate judiciary in compliance to this Court’s Order in O.J.C. No.950 of 1985 is just and reasonable and cannot be at par with the principle meant for Heads of the department as they belong to District cadre. Any change in principle will put Government in embarrassing position in meeting the demands of ministerial staff of the District Offices under other Department of Government. On the administrative side, the views of the High Court was once sought for and the demands of the All Orissa Judicial Employees’ Association for giving them status of employees of the Heads of Department was not accepted by this Court. So it is pleaded that the prayer of the petitioners merits no consideration and, therefore, opposite party no.2 pray that the same be dismissed. 12. The Registrar (Administration) of the High Court has also filed a counter affidavit wherein it is pleaded that out of eighteen petitioners, petitioners 1 to 7, 17 and 18 have retired in the meantime on attaining the age of superannuation. Petitioner Nos.1 to 6 and 17 have retired as Head Typists and petitioner nos.7 and 18 retired as Senior Typist. It is further admitted that the Government of Orissa. Finance Department Memorandum No.43301/F, dated 28.8.1980, Appendix-3 of the Orissa Service Code containing the list of Heads of Department has been substituted and under the heading of “Law Department” in the said list, the District and Sessions Judges have been given the status of “Heads of Department”. Accordingly, the District and Sessions Judge, Cuttack is deemed to be a Head of the Department, for all practical purposes. 13. It is further pleaded that pursuant to the order passed by this Court in O.J.C. No.950 of 1985 the Home Department and Law Department have created the post of Head Typists for different Judgeships of the State, which appears to have fallen short of the decision of this Court, since no proportions have been maintained. It is further admitted that in the Judgeship of Cuttack, five posts were created by the Home Department by Notification dated 5.9.1991 and two posts were created by the Law Department by Notification dated 25.2.1992. In view of the fact that there are 69 base 4 level posts of Junior and Senior Grade Typists in the judgeship of Cuttack, apart from two posts of Junior Typists for the Special Courts, nine posts of Head Typist and three posts of Superintendent are admissible in terms of the Government Resolution dated 9.4.1980. The Registrar (Administration) has further pleaded that neither the number of posts of Head Typist has been enhanced nor any post of Superintendent has been created in the Judgeship of Cuttack till date. The Registrar has further pleaded that the work load for the Typists in the Judiciary is not inferior to that of the Typists of other Heads of Department of the State. Considering the heavy work-load, the Typists in the judiciary use to work even beyond the scheduled office hours, without any extra remuneration. It is further pleaded that unlike other Government establishments of District Cadre, such as the Collectorate, the District Judgeship of the State enjoy the status of Heads of Department as declared by the State Government in Annexure-1 to the writ petition. Accordingly, posts of Heads Typists have been created as per the direction of this Court in the Sub-ordinate judiciary, which posts are not available in the District Cadre establishments. Hence the grievance of the petitioners regarding their entitlement to the benefits at par with the Typists of other Heads of Departments of the State Government appears to be genuine. The Registrar has further clarified that the Government in its General Administration Department Resolution No.2320/Gen. dated 31.1.1997 have been pleased to designate the post of Head Typist as Superintendent Level-II and Superintendent Level-I respectively. 14. From the above pleading it is clear that all the parties agree that the District and Sessions Judge, Cuttack have been declared as the Head of the Department. In fact Annexure-1, which has been issued on 28.8.1980, declares all the District and Sessions Judges at Sl.No.3 to be the Heads of the Department. Now the question remains whether such an order declaring the District and Sessions Judge as Heads of the Department is for any limited purpose or otherwise. Learned counsel for the State has failed to draw attention of the Court to any specific Notification/Resolution/Standing Order or any statute which indicates that the District and Sessions Judges are Heads of the Department only for some limited purpose and not for creation of the post like ministerial staff etc. 15. Annexure-2 is the Resolution of the Political and Service Department issued on Ist. June, 1978 is titled as “Revision of the yardstick of Head Typists in the Office of the Heads of Department”. It provides that after amalgamation of the two grades of Head Typists (Senior and Junior) into one on the recommendation of the 4th Pay Committee, the yardstick of the Head Typists as fixed in the Political and Services Department Resolution No.17156-Gen. dated 6.11.1964 became inoperative and incapable of implementation. It is further resolved that in the meantime the Home Department have also issued orders in their Resolution No.SE.2- 26/75-52845 dated 20.11.1976 revising the yardstick for sanction of posts of Head Typists in the Departments of Secretariat. Government have, therefore, been pleased to decide that a post of Head Typist in office of Heads of Department will be admissible for every six Typists in that office. When the number of Junior and Senior Grade Typists in an office will be more than 30% of the above yardstick another supervisory post of Head Typist will be admissible. It is further resolved that such Resolution supersedes all previous Resolution of the Political and Services Department on the subject and it was ordered that the Resolution to be 5 published in the Gazette and copies be sent to all concerned for information and necessary action. 16. The plea taken by opposite party no.1 appears to be misconceived as the Resolution in question does not speak of any particular place of posting or does not provide that the Typists and the supervising Head Typist or the Superintendent Typist should be posted at one place. The Magistrates working in the outlying stations come under the control of the District and Sessions Judge and their staff also come within the jurisdiction of the District and Sessions Judge in his administration side. The District and Sessions Judge being the Heads of the Department and being the appointing and also the disciplinary authority, there appears to be no reason why they should be treated at a different footing than the treatment meted to other Heads of the Departments in the Secretariat or in other establishments. Thus, the plea taken by opposite party no.1 appears to be fallacious and unacceptable. 17. This Court as per order dated 22.2.1991 in O.J.C. No.950 of 1985 has taken into consideration that the Government pursuant to recommendation of the 4th Pay Committee upgraded the post of Junior Grade Typist as Senior Grade Typist. The post of the Head Typist was to be created later on. This Court, therefore, directed that opposite party nos.2 and 3 shall create such post within a period of three months from the date of receipt of the order. In principle the recommendation of the 5th Pay Commission has been accepted. The employees of the District judiciary being equal to the employees of the Secretariat working under the different Heads of the Department should also get the benefits that are being given to the employees working in the Secretariat . In this connection, the opposite parties cannot make any distinction between the Heads of the Department. In doing so they have violated the principles of equality and equal opportunity as enshrined under Articles 14 and 16 of the Constitution. 18. Hence the writ petition is allowed. The opposite parties are directed to create, within six months of receipt of this order, posts of Superintendent Level-II and Superintendent Level-I in consonance with the latest decision of the Government and by applying the revised yardstick of Head Typist in the office of the Heads of Department as per Political and Services Resolution dated Ist June, 1978 in respect of the Heads of the Department in the Judgeship of the Cuttack. The opposite parties shall also create such posts with respect to all other District Judgeships. No costs. Writ petition allowed. 6