LPA/1016/2006 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1016 of 2006 In MISC.CIVIL APPLICATION No. 66 of 2004 In SPECIAL CIVIL APPLICATION No. 5079 of 1994 With LETTERS PATENT APPEAL No. 1285 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE K.M.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT THROUGH THE CHIEF SECRETARY TO GOVT. - Appellant(s) Versus P.J.PATEL ASST.SECRETARY TO HON'BLE THE CHIEF JUSTICE & 3 - Respondent(s) ========================================================= Appearance : MR KAMAL B TRIVEDI, ADVOCATE GENERAL with MR SUNIT SHAH, GOVERNMENT PLEADER with MS SANGEDTA VISHEN, AGP for Appellant(s) : 1 MR PM THAKKAR, SR. ADVOCATE WITH MR GAUTAM JOSHI i/b MR ANAND L SHARMA for Respondent(s) : 1, 4 MR JB PARDIWALA for Respondent(s) : 2, Director of Pension for Respondent(s) : 3 ========================================================= LPA/1016/2006 2 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE K.M.MEHTA Date : 10/10/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) The issues arising in both these appeals involve common questions of law and fact regarding revision of pay-scales of the posts of Secretary, two Additional Secretaries and two Assistant Secretaries to the Hon'ble Chief Justice of this Court. At the joint request of the learned counsel for the parties, we have taken up these appeals for final disposal and having heard the learned counsel for the parties we proceed to dispose of both the appeals by this common judgment. 2. Since the subject matter of the appeals is revision of pay-scales for different posts and for different periods, it will be necessary to refer to the chart indicating the posts, their pre-revised pay-scales and revised pay-scales and the other relevant details to get a broad overview of the controversy involved in these appeals. The said chart is accordingly to be treated as part of this judgment and marked as Chart-I. Also for the sake of convenience, here is LPA/1016/2006 3 JUDGMENT the index to the judgment. Facts Paras 2 to 9B Anomalies & Chief Justice's recommendations Para 4 and 9 Interim orders in petitions (1994, 2001) Paras 6 & 10 Pleadings of State Government Paras 12 to 14 Findings/directions of learned Single Judge in judgment dated 6.3.2003 Paras 15 and 16 Subsequent judicial orders of learned Single Judge after Judgment dated 6.3.2003 Paras 17 and 18 Rival submissions Paras 21 to 23 Discussion (including assessment of additional financial burden) Paras 24 to 34 Developments after the judgment dated 6.3.2003 Paras 34 to 47 Further discussion Paras 48 to 55 How the proceedings have been conducted by State Govt. Officers Paras 56 to 61 DIRECTIONS Paras 62, 67 LPA/1016/2006 4 JUDGMENT 3. The post of Secretary to the Hon'ble Chief Justice came into existence along with the establishment of this High Court on 1.5.1960. When the Government revised the pay-scales pursuant to the Third and Fourth Pay Commission recommendations, the post carried one pay-scale for regular incumbents, but a higher pay-scale for the existing incumbent. While the pay-scale for regular incumbent of the post of Secretary to the Hon'ble Chief Justice was prescribed as Rs.2500-4200 with effect from 1.1.1986, the then incumbent was given the scale of Rs.4500- 5700. Similarly one post of Additional Secretary to the Hon'ble Chief Justice was created by the Government Resolution dated 29.6.1988 in the following pay-scale:- “Rs.2500-75-2800-100-4200 Rs.4500-150-5700 (for the first incumbent to be appointed immediately on creation of this post)” Thereafter, by Government Resolution dated 13.10.1988 the State Government created two posts of Assistant Secretaries in the Secretariat of the Hon'ble Chief Justice in the pay-scale of Rs. 2500- 4200. LPA/1016/2006 5 JUDGMENT Before any anomaly or controversy arose, in the year 1990 the relevant posts and their pay-scales were as under :- Secretary to the Chief Justice (personal scale to the then incumbent) 2500-4200 (4500-5700) Additional Secretary to the Chief Justice (Personal scale to the then incumbent) 2500-4200 (4500-5700) Assistant Secretary to the Chief Justice 2500-4200 Stenographer Grade I 2000-3500 4.0 Anomalies arose in 1991 w.e.f. 1.1.1986 4.1 However, the Pay Scale of Stenographer Grade I came to be upgraded as under:- By Government Resolution dated 5.7.1991 the Government introduced the scheme of granting higher pay-scales, to holders of various posts including Stenographers Grade-I upon completion of 9/18/27 years of service. Under this scheme Stenographers Grade I in the pay-scale of Rs.2000-3500, upon completion of 9 years' service, were to get the higher pay-scale of Rs. 2500-4200 w.e.f. 1.1.1986. By another Government Resolution dated 19.11.1991 the State Government upgraded 10% of the existing posts of Private Secretaries to the Hon'ble Judges of the LPA/1016/2006 6 JUDGMENT High Court (Stenographer Grade I) (Class II) as Private Secretaries (Stenographer Grade I) (Class I) in the pay-scale of Rs.3000-4500 with effect from 1.1.1986. However, no corresponding revision was made to the pay-scale of Secretary/Additional Secretary to the Hon'ble Chief Justice or to the pay-scale of Assistant Secretary to the Hon'ble Chief Justice with the resultant anomalies becoming apparent in the chart that follows. 4.2 In view of the anomalies which surfaced from July/November 1991 onwards and which Resolutions were given effect from 1.1.1986, the pay-scales of Secretary and Assistant Secretary to the Hon'ble Chief Justice were lower than the pay-scale of Stenographer Grade I in the Selection Grade from which cadre the Assistant Secretaries were appointed. The Hon'ble Chief Justice of the High Court, therefore, by Registrar's letter dated 29.6.1992 recommended the pay-scale of Rs.4500-5700 for the posts of Secretary and Additional Secretary to the Chief Justice and Rs.3500-5000 for the post of Assistant Secretary to the Chief Justice. As stated earlier, the Government by GR dated 29.6.1988 had already granted the pay-scale of Rs.4500-5700 to the first incumbent of the post of Additional Secretary to the Chief Justice. The same pay-scale was also given to the then incumbent of the post of Secretary to the Chief Justice also but as personal pay-scale. LPA/1016/2006 7 JUDGMENT 4.3 Chart showing Anomalies and Chief Justice's Recommendation Anomalies surfaced in 1991 (with effect from 1.1.1986) As per Chief Justice's recommendation dated 29.6.1992 Secretary to the Chief Justice (scale for regular incumbent) (personal scale to the then incumbent) Rs. 2500-4500 (4500-5700) Rs.4500-5700 Additional Secretary to the Chief Justice (scale for regular incumbent) (personal scale to the then incumbent) Rs. 2500-4500 (4500-5700) Rs.4500-5700 Assistant Secretary to the Chief Justice Rs. 2500-4200 Rs.3500-5000 10% of the Private Secretaries to the High Court Judges (Stenographer Grade I) (Class I) - upgraded in November 1991 w.e.f. 1.1.1986 Rs. 3000-4500 Stenographer Grade I with 9 years' service – upgraded in July 1991 w.e.f. 1.1.1986 Rs. 2500-4200 Stenographer Grade I Rs. 2000-3500 5. In response to the aforesaid letter dated 29.6.1992 of the Hon'ble the Chief Justice, the State Government by letter dated 1.10.1993 stated as under:- “Secretary and Additional Secretary to the Hon'ble the Chief Justice have been granted the pay-scale of Rs. 4500-5700, instead of regular pay-scale of Rs. 2500-4200, as personal pay-scales. This pay-scale is LPA/1016/2006 8 JUDGMENT personal. The new incumbent will get the pay-scale of Rs. 2500-4200.” 6. After the aforesaid communication, Mr PJ Patel and Mr Motwani holding the posts of Assistant Secretary to the Hon'ble Chief Justice filed Special Civil Application No. 5079 of 1994 praying for appropriate directions for removal of the above anomaly. After given the respondents an opportunity of being heard, by ad-interim order dated 7.7.1994 a learned Single Judge of this Court (Coram : Hon'ble Mr Justice SM Soni) directed the State Government to issue necessary orders permitting the petitioners to draw their salary in the Pay Scale of Rs. 3500-5000 with immediate effect till it finally decides to revise the pay-scale of the petitioners. On 30.11.1994 another learned Single Judge of this Court (Coram: Hon'ble Mr Justice JM Panchal) confirmed the previous order and directed the State Government to fully comply with the previous order dated 7.7.1994 and also directed the Government to grant all consequential benefits to the petitioners on revision of pay-scales. The orders of the learned Single Judge were challenged by the State Government in Letters Patent Appeal No. 480 of 1995 which came to be dismissed by order dated 31.8.1995. The matter was carried by the State Government before the Hon'ble Supreme Court but the Special Leave Petition also came to be dismissed. 7. The Hon'ble the Chief Justice again LPA/1016/2006 9 JUDGMENT reiterated his recommendations through the Registrar's letter dated 22.8.1995. The Government response was to wait till the recommendations of the Central Fifth Pay Commission. Thereafter, as part of the exercise for revising the pay-scales of civil services, the State Government revised the pay- scales for various posts by making the Gujarat Civil Services (Revision of Pay) Rules, 1997. w.e.f. 1.1.1986 w.e.f. 1.1.1996 Various posts 4500-5700 14300-18300 Various posts 3500-5000 12000-16500 Steno. Grade-I Selection grade (10% post) 3000-4500 10000-15200 Steno. Grade-I with 9 years service 2500-4200 8500-14000 Steno. Grade-I 2000-3500 6500-10500 In view of the above revision of pay- scales, the Hon'ble the Chief Justice made recommendation dated 27.1.1998 for corresponding revision of pay-scales of the officers on the establishment of the High Court with effect from 1.1.1996. It was also clearly mentioned in the said letter that the question of some anomalies existing in the present pay-scales of the staff was already taken up with Government and that while recommending corresponding revisions, the Chief Justice had not taken those questions in consideration and that the said questions would be taken up with the Government LPA/1016/2006 10 JUDGMENT thereafter. 8. By Government Resolution dated 27.2.1998, the State Government accorded sanction to revision of pay-scales of the Officers and Staff on the establishment of the High Court with effect from 1.1.1996 as per the Schedule appended with the said Government Resolution read with corrigendum dated 24.4.1998. Some of the relevant entries in the said Schedule to the Government Resolution dated 27.2.1998 were as under:- Designation Present Scale i.e. prior to 31.12.1995 Rs. Revised scale i.e. 1.1.1996 onwards Rs. Secretary to the Hon'ble the Chief Justice 2500-4200 (Rs. 200 special pay)* 8500-14000 Additional Secretary to the Hon'ble the Chief Justice 2500-4200 (4500-5700 for the present incumbent only) 8500-14000 (14300-18300 for present incumbent only) Assistant Secretary to the Hon'ble the Chief Justice 2500-4200 8500-14000 Private Secretary to Hon'ble Judge and Stenographer Grade-I 2000-3500 (Rs.80/- p.m. Special Pay to those attached to Judge) 6500-10500 10% of the existing cadre upgraded in the scale of Stenographer Grade-I (Class- I) 3000-4500 10000-15200 *Note : Post of Secretary to the Hon'ble Chief LPA/1016/2006 11 JUDGMENT Justice was lying vacant from 4.2.1995 to 16.8.1998. 9. Since there were obvious anomalies even upon revision of the pay-scales with effect from 1.1.1996 under the above Government Resolution dated 27.2.1998, by Registrar's letter dated 9.9.1998, the Hon'ble the Chief Justice recommended for removal of the anomalies forthwith by giving the pay-scales as under :- Post As per GR dated 27.2.98 CJ Recommended on 9.9.1998 1. The Secretary to Chief Justice 8500-14000 14300-18300 2. The Additional Secretary to the Chief Justice 8500-14000 (14300-18300 to the present incumbent only) 14300-18300 3. The Assistant Secretary to the Chief Justice 8500-14000 12000-16500 9A. Thereafter, by Government Resolution dated 10.12.1998 the State Government accorded sanction for creation of one temporary post of Additional Secretary to the Hon'ble Chief Justice in the pay- scale of Rs. 14300-400-18300. However, by subsequent Resolution dated 31.3.1999 the pay-scale was changed to Rs. 8500-275-14100 without indicating any reason whatsoever. 9B. In the meantime, the State Government by LPA/1016/2006 12 JUDGMENT communication dated 29.3.1999 provisionally placed the Assistant Secretaries in the pay-scale of Rs.3500-5000 pending disposal of the writ petition admitted in the year 1994. However, the Assistant Secretaries were not given the corresponding revised pay-scale of Rs.12000-16500 nor were the Secretary and Additional Secretary to the Hon'ble Chief Justice given the pay-scale of Rs.14300-18300 inspite of the recommendations made by the Hon'ble the Chief Justice. Hence, the officers in the Chief Justice's Secretariat made a representation dated 28.3.2000 to the Hon'ble Chief Justice. Interim orders in petitions filed in 2001 10. We may now refer to filing of two more writ petitions besides the one filed in 1994, which was still pending. 10.1 From 1996 to April 2001, the Officers then holding the posts of Secretary to the Hon'ble the Chief Justice, Additional Secretaries to the Hon'ble Chief Justice (except Mr SB Pathan who died in September 1998 as Secretary to the Hon'ble Chief Justice) and Assistant Secretaries to the Hon'ble Chief Justice were being paid salary only in the pay- scale of Rs. 8500-14000 (corresponding to pre-revised scale of Rs.2500-4200) which was the pay-scale for Stenographer Grade I with 9 years' service and, therefore, four officers in the Chief Justice's LPA/1016/2006 13 JUDGMENT Secretariat filed Special Civil Application No.2649 of 2001 with a grievance that apart from the anomalies required to be removed by the State Government, the State Government ought to respect the interim orders passed by this Court in Special Civil Application No. 5079 of 1994 as far back as on 7.7.1994 and confirmed on 30.11.1994 by which the petitioners in that petition (two Assistant Secretaries to the Hon'ble the Chief Justice) were required to be given pay-scale of Rs. 3500-5000 corresponding to revised pay-scale of Rs. 12000-16500 and similarly the Secretary and the Additional Secretaries to the Hon'ble Chief Justice were required to be given the higher pay-scale of Rs. 14300-18300 corresponding to the pre-revised pay- scale of Rs. 4500-5700. After hearing the State Government, one of us sitting as a Single Judge passed interim order dated 1.5.2001 directing the respondents i.e. the State Government and the High Court on the administrative side to give the petitioners the following Pay Scales :- Secretary/Additional Secretary to the Hon'ble the Chief Justice Rs. 14300-18300 (pre-revised Pay Scale Rs. 4500-5700) with effect from 1.1.1996 or from the date of their appointment, whichever is later Assistant Secretaries to the Hon'ble the Chief Justice Rs. 12000-16500 (pre-revised Pay Scale Rs. 3500-5000) with effect from 1.1.1996 or from the date of their appointment, whichever is later By the same interim order, the respondents LPA/1016/2006 14 JUDGMENT were also directed to fix the pay of the petitioners in the aforesaid pay-scales and thereafter to pay the arrears of difference of salary and allowances with effect from 1.1.1996. It was also directed that where the Officers holding any of the above posts had retired, the pension, gratuity and other retiral benefits shall be computed on the basis of the above directions and that in future also when an officer would retire, the retiral benefits shall be computed on the basis of the above directions. 10.2 The above interim order was carried in appeal and by order dated 17.8.2001 in Letters Patent Appeal No. 768 of 2001, the Division Bench confirmed the above interim order dated 1.5.2001 with the only modification that no arrears of difference of salary were to be paid for the period prior to 1.5.2001, though the notional pay fixation shall be made with effect from 1.1.1996 or the date of appointment, whichever is later. The said order in the LPA was challenged before the Hon'ble Supreme Court in SLP (Civil) No. 20342 of 2001 which came to be dismissed on 9.1.2002 in the following terms:- “We are of the view that the interim salary which has been directed to be paid to the respondents is subject to the decision of the writ petition. We are, therefore, not inclined to interfere in the matter. The Special Leave Petition is, accordingly, dismissed.” LPA/1016/2006 15 JUDGMENT 10.3 In the third petition filed by two other officers in the Chief Justice's secretariat (Special Civil Application No. 10008 of 2001), another learned Single Judge of this Court passed similar interim orders on 2.11.2002 following the order dated 17.8.2001 of the Letters Patent Bench in Letters Patent Appeal No. 768 of 2001. Pleadings of State Government 11. All the three petitions ultimately reached final hearing before the learned Single Judge. In view of the intervening events, amendments were also permitted to be made to the petition filed in the year 1994 for giving the petitioners corresponding revised pay-scales of Rs.12000-16500 for the posts of Assistant Secretary and Rs.14300-18300 for the posts of Secretary/Additional Secretary to the Hon'ble the Chief Justice. 12. Affidavit dated 4.4.1998 of Mr GH Makwana, Under Secretary, Legal Department filed in Special Civil Application No. 5079 of 1994 did not deal with the major grievance of the petitioners that there were serious anomalies in the matter of pay-scale of Secretary/Additional Secretary to the Chief Justice and in the pay-scale of Assistant Secretary to the Chief Justice. The defence, if at all it can be so considered, pleaded in the affidavit in reply was “there are no recruitment rules for the post of Assistant Secretary; that the post of Assistant LPA/1016/2006 16 JUDGMENT Secretary having been upgraded in the pay-scale of Rs.2500-4200 on the basis of strength and length of service and norms and there remains no reason to give upward revision in the pay-scale of Rs.3500-5000. ... ..... creation of ladder, financial powers, liabilities and responsibility require examination by experts and there cannot be revision from the respective date in a particular time scale. ... ... It is submitted that the matter was examined by the Government in the Finance Department pursuant to transmission of various facts by the administrative side of the Hon'ble High Court. ... ... It is submitted that the pay-scale of Rs.4500-5700 has been sanctioned to the post of Secretary and Additional Secretary to the Hon'ble Chief Justice as personal pay-scale as per the sanction accorded by the administration upto Hon'ble Chief Minister and regular pay-scale to the incoming incumbent has been decided and fixed in the pay-scale of Rs.2500-4200, as per the decision making process concluded at the relevant time”. It was also contended that revision of pay- scales is a policy matter and is required to be examined by the expert body. Affidavit in reply was also filed by Mr NG Hareja, Under Secretary to the State Government in the Legal Department in Special Civil Application No.2649 of 2001 contending that :- LPA/1016/2006 17 JUDGMENT “all the posts of Stenographer (Asstt. Secretary, Additional Secretary, Secretary) in the Chief Justice's secretariat are of equal rank and status, as the recruitment rules for the same provide for common provision of promotion and selection from amongst the feeding posts/cadre of Private Secretary (Steno Grade-I, Class-II) and when the proposal for creation of posts of Assistant Secretary was made, it was made in the pay scale of Secretary and, therefore, it was equated with posts of Secretary and therefore all these posts in the office of the Chief Justice's Secretariat can not be filled in by persons working in other Class- I non feeding cadre carrying the scale of pay Rs.10,000-14,100/- (?).” The deponent of the reply affidavit did not specifically deal with the recommendations made by the Hon'ble the Chief Justice through the Registrar's letters dated 29.6.1992 and 9.9.1998 and kept harping back on the position which was prevailing prior to 1991. It was even contended in the affidavit that there was no anomaly in the pay-scale of Secretary and Assistant Secretary to the Chief Justice. 13. At the hearing of the three petitions before the learned Single Judge, the learned Advocate General appearing for this Court on the administrative side made a statement that the earlier recommendations contained in the communications dated 26.9.1992 and 9.9.1998 were made in exercise of the power of the Hon'ble Chief Justice under Article 229 of the Constitution. LPA/1016/2006 18 JUDGMENT 14. In view of the obvious anomalies, the reply affidavits on behalf of the State Government would not have been a sufficient defence even in an ordinary service matter of employees of the State Government, much less in a matter involving the provisions of Article 229 of the Constitution which read as under:- “229. Officers and servants and the expenses of High Courts.- (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct : Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. (3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be LPA/1016/2006 19 JUDGMENT charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.” [emphasis supplied) Findings & directions of learned Single Judge 15. The learned Single Judge gave the following findings on merits :- (i) there were anomalies arising from the upgradation of the posts of Stenographer Gr.I in July 1991 and November 1991 w.e.f. 1.1.1986, but in absence of revision of pay- scales of the Secretary/ Addl. Secretary, those officers were placed in the pay-scale lower than Stenographer Gr.I in the selection grade w.e.f 1.1.1986. (ii) Once the pay-scale of Rs.4500-5700 was given to the incumbents of the posts of Secretary/Additional Secretary, such pay- scale could not be considered as “personal pay-scale”. The post of Secretary to the Hon'ble the Chief Justice is the same, irrespective of the incumbent. Nature of duties and responsibilities is also same, irrespective of the incumbent and the work is also same, irrespective of the incumbent. Hence, the Government decision not to give higher pay-scale of Rs.4500-5700 to subsequent appointees on the posts of Secretary/ Addl. Secretary to the Hon'ble LPA/1016/2006 20 JUDGMENT Chief Justice was violative of Articles 14 and 16 of the Constitution on the face of it. (iii) Once the pay-scale for the post of Secretary and Additional Secretaries to the Hon'ble Chief Justice is sanctioned at Rs.4500- 5700, the State Government ought to have revised the pay-scale of Assistant Secretaries to the Hon'ble Chief Justice to Rs.3500-5000 by suitably amending the relevant rules for the purpose of placing the matter for approval before the Governor in view of the provisions of Article 229(2) of the Constitution of India. (iv) As regards the power of the Hon'ble Chief Justice under Article 229 of the Constitution :- “14. Therefore, the only conclusion inevitable is that the powers as per Article 229 of the Constitution of India vest in the Hon'ble Chief Justice for regulating the terms and conditions of the staff of the High Court and it is only in the matter where it involves the financial aspects, like the payment of salaries, leave, pension, etc., the approval of the Governor would be required.” 16. The learned Single Judge gave the following directions in para 21.1 of the judgment :- LPA/1016/2006 21 JUDGMENT “21.1 The State Government shall consider the mater keeping in view the observations made by this Court in the above judgment and shall also take