)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5079 of 1994 with SPECIAL CIVIL APPLICATION No 2649 of 2001 with SPECIAL CIVIL APPLICATION No 10008 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE JAYANT PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- P J PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5079 of 1994 MR AJ PATEL for Petitioners GOVERNMENT PLEADER for Respondent No. 1 MR SN SHELAT, Ld. Adv. Gen. with MR JB PARDIWALA for Respondent No. 2 RULE SERVED BY DS for Respondent No. 3 2. Special Civil Application No. 2649 of 2001 MR MIHIR H JOSHI for Petitioners GOVERNMENT PLEADER for Respondent No. 1 MR SN SHELAT, Ld. Adv. Gen. with MR JB PARDIWALA for Respondent No. 2 RULE SERVED BY DS for Respondent No. 3 3. Special Civil Application No.10008 of 2001 MR ANAND L. SHARMA for Petitioners GOVERNMENT PLEADER for Respondent No. 1 MR SN SHELAT, Ld. Adv. Gen. with MR JB PARDIWALA for Respondent No. 2 RULE SERVED BY DS for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE JAYANT PATEL Date of decision: 06/03/2003 COMMON ORAL JUDGEMENT 1. Upon the note for fixing early date of hearing, with the consent of the parties, the matter is taken up for final hearing. 2. The short facts of the case are that the petitioners were promoted to the post of Assistant Secretaries to the Hon'ble the Chief Justice of this Court from the post of Private Secretaries to the Hon'ble Judges. At the relevant point of time, for the post of Private Secretaries, the pay-scale was Rs.2000-3500. So far as the Assistant Secretaries are concerned, the pay-scale was Rs.2500-4200. The pay-scale of the Private Secretaries to the Hon'ble Judges was thereafter upgraded and they were placed in the pay-scale of Rs.3000-4500. Since the post of Assistant Secretaries to the Hon'ble Chief Justice was higher and rather a promotional avenue from the post of Private Secretaries to the Hon'ble Judges, there should have been a revision in the pay-scale of Assistant Secretaries to the Hon'ble Chief Justice also, but there was no revision and there was only upgradation in the pay-scale of Private Secretaries, as a result thereof, the pay-scale of Private Secretaries remained as Rs.3000-4500, whereas for the post of Assistant Secretaries to the Hon'ble Chief Justice, the pay-scale remained the same as that of Rs.2500-4200. So remain the case for the posts of Additional Secretary and Secretary to the Hon'ble Chief Justice because prior to upgradation of pay-scale of Private Secretaries persons from the post of Assistant Secretaries had the further promotion avenue to the post of Additional Secretaries and Secretary of Hon'ble Chief Justice and even after upgradation, the pay-scale of Additional Secretaries and Secretary to Hon'ble Chief Justice remained same as was of Rs.2500-100-4500. 3. On account of the aforesaid anomaly, the Hon'ble Chief Justice of the High Court, through Registrar of High Court, as per the communication dated June 29, 1992, recommended to the Secretary to the Government of Gujarat, Legal Department, Gandhinagar, and it was suggested that the pay-scale of Assistant Secretaries should be of Rs.3500-5000 and for the posts of Secretary and Additional Secretaries to the Hon'ble Chief Justice, which is a further promotion avenue from the post of Assistant Secretaries, the pay-scale should be of Rs.4500-5700. It appears that in response to the recommendations by the High Court as per the aforesaid correspondence dated June 29, 1992, the State Government vide communication dated 1st October, 1993 sanctioned the pay-scale of Rs.2500-4200 for the post of Assistant Secretaries and for the posts of Secretary and Additional Secretaries to the Hon'ble Chief Justice, the pay-scale sanctioned was of Rs.4500-5700. It appears that so far as the posts of Secretary and Additional Secretaries to the Hon'ble Chief Justice are concerned, the sanctioned pay-scale was of Rs.4500-5700. However, the stand of the State Government, as reflected from the correspondence dated 1st October, 1993, is that such pay-scale was sanctioned as personal pay-scale and it was further mentioned that the new incumbent shall receive the pay-scale of Rs.2500-4200 only. The petitioners of Special Civil Application No.5079/1994 namely; Shri P.J.Patel and Late Shri T.M.Motwani were appointed as Assistant Secretaries to the Hon'ble Chief Justice, but they were not given the pay-scale of Rs.3500-5000 and were only given the pay-scale of Rs.2500-4200 and, therefore, they preferred this petition before this Court. The petitioners have also produced the correspondence dated 27-10-1993 issued by the Registrar of the High Court to the Secretary, Legal Department, in response to the communication dated 1st October, 1993 calling upon the information for not accepting the proposal made by the High Court as per the communication dated 29th June, 1992. Pending the petition, one of the petitioners i.e. petitioner No.1, Mr.P.J.Patel was appointed as Additional Secretary to the Hon'ble Chief Justice by further promotion from the post of Assistant Secretary. Petitioner No.1, Mr.P.J.Patel retired as the Additional Secretary and Petitioner No.2, Mr.T.M.Motwani retired as Assistant Secretary to the Hon'ble Chief Justice on reaching the age of superannuation and, therefore, the petitioners have, by amendment, in view of further revision of pay-scale of all employees of High Court also prayed for giving directions to the authorities to give the pay-scales of Rs.12000-16500 and Rs.14300-18300 for the posts of Assistant Secretary and Additional Secretary to the Hon'ble Chief Justice, as the case may be, and also to pay the arrears and consequential benefits including the pension etc. Pending the petition, Mr.T.M.Motwani, who retired as the Assistant Secretary, has expired and his legal heirs are brought on record. Pending the petition being No.SCA No.5079/1994 on 7-7-1994 this Court (Coram: S.M.Soni, J. as his lordship then was), while admitting the petition, passed an ad-interim order directing the State Government to issue necessary orders permitting the petitioners, who were working at that time as Assistant Secretaries to Hon'ble Chief Justice, to draw salary in the pay-scale of Rs.3500-5000 with immediate effect till it finally decides the pay-scale. The aforesaid ad-interim order came to be passed by this Court possibly upon the recommendation by the Registrar of the High Court, as per the correspondence dated June 29, 1992. The aforesaid ad-interim order has been accepted by the State Government and pursuant to which, the pay-scale of Rs.3500-5000 came to be drawn by the petitioners therein. 4. It may be stated that SCA No.2649/2001 came to be filed by the petitioners, who were working as Secretary (petitioner No.1), Additional Secretaries (petitioners No.2 and 3) and Assistant Secretaries (petitioners No.4 and 5), for appropriate writ to direct the respondent State to allow them to draw the pay-scales, which were given to earlier incumbents for the respective posts and also the revised pay-scale of Rs.12000-16500 for the posts of Assistant Secretaries, Rs.14300-18300 for the posts of Secretary and Additional Secretaries. In the said petition, on 1-5-2001 this Court (Coram: M.S.Shah, J.), while admitting the petition, passed the interim order, directing petitioners No.4 and 5 to be placed in the pay-scale of Rs.12000-16500 (pre-revised pay-scale of Rs.3500-5000) and petitioners No.1, 2 and 3 to be placed in the pay-scale of Rs.14300-18300 (pre-revised pay-scale of Rs.4500-5700), both with effect from 1-1-1996 or from the date of their appointment, whichever is later. So far as petitioner No.4, Mr.G.H.Barot is concerned, since he had already retired on 28-2-2001, it was further directed that in addition to the arrears of difference of salary, pension, gratuity and other retiral benefits shall also be computed accordingly. It is pertinent to note that the aforesaid order of the learned Single Judge of this Court was carried by the State Government before the Division Bench of this Court, by preferring LPA No.768/2001 and as per the decision of the Division Bench of this Court (Coram: M.R.Calla and N.G.Nandi, JJ.) dated 17-8-2001 modified the order of the learned Single Judge only to the extent that the benefits from 1-1-1996 or from their respective date of appointment, whichever is later, shall be arrived at notionally and actual payment shall be made from 1-5-2001 onwards pursuant to the interim order passed by the learned Single Judge. It is further reported that the State Government had carried the matter further before the Apex Court by preferring SLP(Civil) No.20342/2001 and the Apex Court passed the following order on 9-1-2002: "We are of the view of the interim salary which is 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 SLP is accordingly dismissed." 5. So far as Special Civil Application No.10008/2001 is concerned, both the petitioners therein were working, at the relevant point of time, as Assistant Secretaries. It is pertinent to note that during the pendency of SCA No.5079/1994, the Registrar of the High Court, as per the correspondence dated 9th September, 1998 upon the directions issued by the Hon'ble Chief Justice, pointed out the anomalies in the pay-scales of the posts of Secretary, Additional Secretaries and Assistant Secretaries and stated that after the revision of the pay-scales on the basis of the recommendations of the Fifth Central Pay Commission, the pay-scale of the Secretary and the Additional Secretaries to the Hon'ble Chief Justice is Rs.8500-14000, with the clarification that for the present incumbent the only pay-scale is Rs.14300-18300 and for Assistant Secretaries to the Hon'ble Chief Justice, the pay-scale is Rs.8500-272-14000. It was recommended that regular pay-scale of Rs.4500-5700 might be sanctioned to the posts of Secretary and Additional Secretaries and a regular pay-scale of Rs.3500-5000 might be sanctioned for the post of Assistant Secretaries. It was also mentioned in the said communication that the interim order dated 7-7-1994, passed by the High Court in SCA No.5079/1994 allowing the petitioners therein to draw the salary in the pay-scale of Rs.3500-5000 is accepted by the State Government as per the letter dated September 5, 1994 vide Ref. No.SCA-1994-119 and, therefore, equivalent pay scale of Rs.3500-5000 as per the revised pay-scale, is Rs.12000-375-16500. It was also suggested that there should be a regular pay-scale for the posts of Secretary, Additional Secretaries and Assistant Secretaries to the Hon'ble Chief Justice and, therefore, the regular pay-scales should be sanctioned and the anomaly should be removed. It appears that the matter remained as it is and, therefore, the petitioners of SCA No.10008/2001 preferred the petition for directing the respondent State to give the pay-scale to the petitioners on the post of Assistant Secretaries at par with the earlier incumbents of the post and also revised pay-scale of Rs.12000-16500 with all consequential benefits. In the meantime, on 2-11-2002 in SCA No.10008/2001 this Court (Coram: C.K.Buch, J.), in view of the order passed in SCA No.2649/2001 and in LPA No.768/2001 passed the interim order directing the respondents to place the petitioners therein in the pay-scale of Rs.12000-16500 on the same terms and conditions as laid down in the order dated 17-8-2001 in LPA No.768/2001. 6. On behalf of the respondent State Government, affidavit-in-reply is filed in SCA No.5079/1994, which is to be treated as common stand of the respondent State Government in all this group of petitions, as per the statement made by the learned AGP. The contention raised in the affidavit-in-reply is that so far as the revision of pay-scale is concerned, it is for the expert body to decide and it was further submitted that the posts of Assistant Secretaries to the Hon'ble Chief Justice and even Secretary and Additional Secretaries to the Hon'ble Chief Justice are not the promotional posts and it was submitted that the posts of Assistant Secretaries can be filled up either by selection or by nomination and not by promotion and, therefore, it has been submitted that the contentions of the petitioners are misconceived. It has also been contended on behalf of the State Government that the post has been upgraded in the pay-scale of Rs.2500-4200 on the basis of the strength and length of service and norms and there remained no reason to give upward revision in the pay-scale of Rs.3500-5000. The State Government have also relied upon the judgement of the Apex Court in the case of "Secretary, Finance Department and others vs. West Bengal Registration Service Association and others", reported in AIR 1992 SC, 1203 to contend that it is a policy matter and the revision of pay-scale is required to be examined by expert body. However, it is also submitted that the pay-scale of Rs.4500-5700 has been sanctioned to the posts of Secretary and Additional Secretaries to the Hon'ble Chief Justice as "personal pay-scale" as per the sanction letter and regular pay-scale to the incoming incumbents has been decided in the pay-scale of Rs.2500-4200 as per the decision making process concluded at the relevant point of time. It has also been submitted that there is neither parity or claim on both the occasions, nor the claim is based on any legally established rights and, therefore, the petitions deserve to be dismissed. 7. In view of the above, it appears that normally the revision of pay-scale is for the expert body to decide and the body which is assigned with the work for examining all the relevant aspects can opine or send recommendation. In the case of "Secretary, Finance Department and Ors. vs. West Bengal Registration Service Association and Ors. ", reported in 1992(2) Judgement Today, 27, the High Court, while exercising writ jurisdiction, had equated the post of the Sub-Registrar with the Judicial Officer and, therefore, the Apex Court, while considering the matter, observed that it is well-settled that equation of posts and determination of pay-scales is the primary function of the executive and not of the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission, etc. But in the very judgement the Apex Court has further observed as under: "But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction(emphasis supplied). Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharges of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc." The Apex Court has further observed at para 12 as under: "We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay-scales to a reasonable number. Such reduction in the number of pay-scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job-charts in a common scale. Substantial reduction in the number of pay-scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies(emphasis supplied). Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualification required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and verticle relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and verticle relativities have to be carefully balanced keeping in mind the hierarchial arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well." It is pertinent to note that the Apex Court has further observed as under: "There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice."(emphasis supplied. 8. In the case before the Apex Court, the High Court of Calcutta, under Article 226 of the Constitution of India, had issued a mandamus to award the Sub-Registrars, the pay-scale No.17 of Rs.660-1600 with all other privileges admissible to State service officers and, therefore, the Apex Court observed that when all aspects were examined by the expert bodies namely; executives, the High Court, while exercising its power under Article 226 of the Constitution of India, ought not to have issued the mandamus. 9. In view of the aforesaid decision of the Apex Court, even if the contention of the State is to be accepted, the consequential effect would be that for equation of pay-scale and for cadre, the expert bodies or the executives, who have undertaken the exercise would better be in a position to opine for it and normally the opinion of the expert bodies, which have recommended for the pay-scale should be accepted. 10. The aforesaid takes me to examine as to who can be said to be expert body in the present case; whether State Government or Chief Justice of the High Court on administrative side or his authorised officer? So far as the staff of the High Court is concerned, as per Article 229 of the Constitution of India, the same shall vest to the Hon'ble Chief Justice of the High Court or such other Hon'ble Judges or the Officer of the Court, as may be directed by the Hon'ble Chief Justice. Proviso to Article 229(2) provides that subject to the provisions of any law made by the Legislature of the State, the conditions of service of the officers and servants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice of the Court or by some other Judges or Officer of the Court authorized by the Chief Justice to make rules for the purpose. Proviso to Sub-Article (2) of Article 229 of the Constitution of India, provides 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. In other words, as per the scheme of the Constitution, so far as the officers and servants of a High Court are concerned, it is completely left under the control of the Hon'ble Chief Justice or the other Hon'ble Judges as may be directed by the Hon'ble Chief Justice. Even the legislative function for the purpose of framing of the rules is also vested with the Hon'ble Chief Justice for the purpose of regulating the conditions of the service of the officers and servants of the High Court. It is only in the case of salaries, allowances, leave and pensions, the approval of the Governor of the State is required. Therefore, in my view, as per the scheme of Article 229 of the Constitution of India, the executive as well as legislative power for the purpose of regulating terms and conditions of the service of the officers and servants of the High Court are within the power of Hon'ble Chief Justice and only in the case of rules pertaining to salaries, allowances, leave and pensions approval of the Governor of the State would be required. Considering the same, it can be said that the expert body recognized by the Constitution for the purpose of regulating the conditions of the service of the officers and servants of a High Court would be the Hon'ble Chief Justice of the High Court or the other Hon'ble Judges or Officer as may be directed by the Hon'ble Chief Justice and as observed above, the executive as well as the legislative power for the power of regulating the conditions of service shall also be vested with the Hon'ble Chief Justice of the High Court and it is only when it involves the matter pertaining to salaries or allowances or leave or pensions approval of the Governor of the State would be required. 11. At this stage, it would be pertinent to note certain observations of the Apex Court in the case of "State of Maharashtra vs. Association of the Court Stenos, P.A., P.S. and Another", reported in 2002(2) SCC, 141. The Apex Court, while considering the matter for the pay-scale of the Bombay High Court Stenographers, Personal Assistants and Personal Secretaries to have parity with the Senior Personal Assistants to Chief Secretary and Additional Chief Secretary of Maharashtra State, at para 5 has observed as under: "Under the Constitution of India, appointment of officers and servants of a High Court is required to be made by the Chief Justice of the High Court or such other Judge or Officer of the Court as the Hon'ble Chief Justice directs. The conditions of service of such officers and servants of the High Court could be governed by a set of rules made by the Chief Justice of the High Court and even the salaries, allowances, leave or pension of such officers could be determined by a set of rules to be framed by the Chief Justice, but so far as it relates the salary and allowances etc., it requires approval of the Governor of the State." 12. On a plain reading of Article 229(2) of the Constitution of India it is apparent that the Hon'ble Chief Justice is the sole authority for fixing the salaries etc., of the employees of a High Court, subject to the rules made under the said Article. Needless to mention, that rules made by Hon'ble Chief Justice will be subject to the provisions of any law made by legislature of the State. In view of the proviso of Sub-Article (2) of 229, rule relating to salaries, allowances, leave or pensions of the employees of a High Court would require approval of the Governor before the same can be enforced. The approval of the Governor, therefore, is a condition precedent to the validity of the rules made by the Hon'ble Chief Justice and the so-called approval of the Governor is not in his discretion, but as advised by the Government. It would, therefore, be logical to hold that apart from any power conferred by the rules framed under Article 229, the Government cannot fix the salary or authorise any particular pay scale of an employee of a High Court. Earlier also the view was the same, but incidently the question had arisen before the Apex Court again as to