In the High Court of Punjab and Haryana, Chandigarh L.P.A. No. 148 of 2005 Date of Decision: February 4, 2009 State of Haryana and others …Appellants Versus Nath Singh and another …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE H.S. BHALLA Present: Mr. Sanjeev Kaushik, Addl. AG, Haryana for the appellants. Mr. R.K. Malik, Senior Advocate, with Mr. Yashdeep Singh, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This order shall dispose of L.P.A. No. 148 of 2005 and C.W.P. No. 1664 of 2006 as common questions of law and facts are involved. However, the facts are being referred from L.P.A. No. 148 of 2005. This appeal filed under Clause X of the Letters Patent is directed against judgment dated 8.12.2004, passed by the learned Single Judge of this Court in C.W.P. No. 1477 of 2001. Learned L.P.A. No. 148 of 2005 Single Judge has accepted the prayer made by the petitioner- respondents by granting them the pay scale of Rs. 10000-13900 plus Rs. 400/- special pay w.e.f. the date of filing of petition i.e. 30.1.2001. Brief facts of the case necessary for disposal of the controversy raised are that the petitioner-respondents have been working on the post of Assistant Legal Remembrancer-cum-Under Secretary in the Law and Legislative Department, Haryana. The un- revised pay scale of the post of Assistant Legal Remembrancer-cum- Under Secretary was Rs. 2200-4000 but w.e.f. 1.1.1986 it was revised to Rs. 8000-13500. They made representation dated 27.7.1999 (P-4) for granting them the higher pay scale alleging that their posts are equivalent in status and having same responsibilities as the Under Secretaries in other departments of the State of Haryana, who draw the pay scale of Rs. 3000-4500. They also claimed parity with the Assistant Legal Remembrancer-cum-Under Secretary who are substantive members of the Haryana Civil Service (Judicial Branch), and have been working on deputation in the Law and Legislative Department. Their pay scale is Rs. 10000-13900 plus Rs. 400 special pay. The representation made by the petitioners was rejected on 16.2.2000 (P-5). Learned Single Judge noticed the stand of the appellant State that the petitioner-respondents who were substantive holder of the post of Assistant Legal Remembrancer and were merely given the additional designation of Under Secretary enabling them to discharge 2 L.P.A. No. 148 of 2005 certain administrative functions, could not be equated for the purposes of pay scale with the officers working in the cadre of Under Secretary. The appellant State had further taken the stand that the work of Under Secretaries was entirely different who were stated to be holding more responsible administrative posts. Learned Single Judge proceeded to grant the higher pay scale of Rs. 10000-13900 by observing as under:- “……It is not clear and has not been made out as to how the Under Secretary of other departments of the government are carrying or discharging more onourous functions than the Assistant Legal Remembrancer cum Under Secretary in the Law Department is discharging. The Assistant Legal Remembrancer cum Under Secretary in the department is a law graduate also, whereas in the other departments, it may not be so. In these circumstances, the action of the respondent-State in rejecting the representation of the petitioners to grant them equivalent scale of Rs. 10,000- 13900/- plus Rs. 400/- as Special Pay, as applicable to other Under Secretaries of the Government, is without any basis and it is discriminatory. However, it appears even prior to 1.1.1996 the pay scale of Assistant Legal Remembrancer cum Under Secretary had been less than that of the Under Secretary of the other departments. The petitioners had 3 L.P.A. No. 148 of 2005 made representation only on 27.7.1999 after more than three years of the enforcement of the new pay scales. The same was rejected on 2.3.2000. Still the petition was filed on 30.11.2001. Taking into account the facts and circumstances of the case, this petition is allowed to the extent that petitioners shall be entitled to pay scale of Rs. 10,000-13900/- plus Rs. 400/- Special Pay w.e.f. the date of filing of petition i.e. 30.1.2001. The exercise regarding fixing of pay in the revised scale and payment of arrears be completed within a period of three months. No costs.” We have heard learned State counsel as well as learned counsel for the petitioner-respondents at a considerable length. There is no dispute that the post of Assistant Legal Remembrancer is distinct than the post of Under Secretary (General). The post of Assistant Legal Remembrancer is regulated by the statutory rules known as ‘Haryana Law and Legislative Department, State Legal Service (Group A) Rules, 1979 (for brevity, ‘the Rules’). Rule 7 of the Rules provide for appointment on the post of Assistant Legal Remembrancer by way of promotion, transfer/deputation and direct recruitment. The aforesaid Rule alongwith Appendix ‘B’ reads as under:- 4 L.P.A. No. 148 of 2005 “7. No person shall be recruited to the Service, unless he is in possession of qualifications and experience specified in Appendix B to these rules. APPENDIX B (See rule 7) Serial No. Designation of posts Qualifications and Experience For promotion For transfer or deputation For direct recruitment 1 2 3 4 5 1 & 2 xxx xxx xxx xxx 3 Assistant Legal Remembrancer (a) B.A., L.L.B. and (a) B.A. L.L.B.; (a) B.A., L.L.B.; (b) who has worked in the law and Legislative Department against the post of- (b) knowledge of Hindi up to Matric standard; and (b) knowledge of Hindi up to Matric standard; and (i) Codifica- tion and Publication Officer (English) for a period of not less than two years; or (c)(i) who is member of the Haryana Civil Service (Judicial Branch) having experience of not less than seven years; (c) who has practised at the bar for a period of not less than seven years, or has held an assign-ment involving legal work for a period of not less than ten years 5 L.P.A. No. 148 of 2005 (ii) Superinten- dent (Legal) for a period of not less than five years (ii) who is already in the service of the Government of India or a State Government who has held a post of involving Legal work for a period of not less than ten years” A perusal of the aforesaid rule would show that the post of Under Secretary is entirely in a different cadre and cannot be included in the cadre of Assistant Legal Remembrancer merely because for administrative purposes an additional designation of Under Secretary has been given to the incumbent of the post of Assistant Legal Remembrancer. In any case, such an additional designation could not constitute a valid basis for granting them the pay scale of Under Secretary. However, Mr. R.K. Malik, learned senior counsel for the petitioner-respondents has raised another argument. According to learned counsel once a member of the Haryana Civil Service (Judicial Branch) having experience of not less than 7 years could be appointed by transfer or deputation then the pay scale of the Assistant Legal Remembrancer cannot be different than the one given to the promotees like the petitioners and the other to be given to those who have been appointed by transfer or by deputation. The argument raised by the learned counsel suffers from inherent fallacy because 6 L.P.A. No. 148 of 2005 the member of the Haryana Civil Service (Judicial Branch) do not become member of the Service regulated by the Rules. The service conditions of the member of the Haryana Civil Service (Judicial Branch) are regulated by separate and distinct statutory Rules known as Punjab Civil Service (Judicial Branch) Rules, 1951 (as applicable to Haryana) for all intents and purposes. Their cadre controlling authority under Article 235 of the Constitution is the High Court, as has been held by Hon’ble the Supreme Court in the cases of Chief Justice of A. P. v. L.V.A. Dikshitulu, (1979) 2 SCC 34 and P.K. Sarin v. State of U.P., (1995) 1 SCC 468. Therefore, no comparison would be possible between the members of the Haryana Civil Service (Judicial Branch) who are sent on deputation as Assistant Legal Remembrancer in the Law and Legislative Department, Haryana because their service conditions are regulated entirely by the Punjab Civil Service (Judicial Branch) Rules, 1951 (as applicable to Haryana), whereas the service conditions of Assistant Legal Remembrancer are governed by the Rules. Their avenues of promotion are also entirely different apart from the fact that they discharge duties which are different in nature and contents. Merely because for a small period the High Court grant them permission to go on deputation would not provide a basis for the members of the Service of the cadre of Assistant Legal Remembrancer to seek parity in the pay scale with the members of the Haryana Civil Service (Judicial Branch). They have no inter se seniority in the cadre of 7 L.P.A. No. 148 of 2005 Assistant Legal Remembrancer with the members of service like petitioners. Such a comparison would amount to treating un-equals equally. Even otherwise we are of the view that judicial service cannot be equated with administrative or executive service. In the case of All India Judges’ Association v. Union of India, (1993) 4 SCC 288, Hon’ble the Supreme refused to review its earlier order rendered in (1992) 1 SCC 119 in this respect that the judicial service is not service in the sense of ‘employment’. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. Their parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of other services, therefore, cannot be placed on a par with the members of the judiciary, either constitutionally or functionally. Therefore, while determining service conditions of the members of the judiciary, a distinction can be made between them and the members of the other services. 8 L.P.A. No. 148 of 2005 As sequel to the aforementioned discussion, the judgment passed by the learned Single Judge, dated 8.12.2004, is liable to be set aside. For the reasons aforementioned L.P.A. No. 148 of 2005 succeeds. The order of the learned Single Judge, dated 8.12.2004 is set aside. The writ petition filed by the petitioner-respondents is dismissed. As a necessary corollary, the connected writ petition bearing C.W.P. No. 1664 of 2006 is also dismissed. (M.M. KUMAR) JUDGE (H.S. BHALLA) February 4, 2009 JUDGE Pkapoor 9