( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 4085 OF 1996 1. Shri Arun s/o. Ambadasrao Deshmukh, Age : Major, Occupation : Service, R/o. Ramtara Housing Society, Near Sahakar Nagar, Aurangabad. 2. Shri Ratnakar L. Kendhe, Age : Major, Occupation : Service, R/o. Block No.1/6, Kotla Colony, Aurangabad. 3. Shri Mustafa Kamal Sahabaz, Age : Major, Occupation : Service, R/o. Behind Dargh Nizamoddin Awaliya, Rajabazar, Aurangabad. 4. Ziauddin Abdulrahim Kazi, Age : Major, Occupation : Service, R/o. Block No.25/148, Kotla Colony, Aurangabad. 5. Shri Avinash Vasant Naigaonkar, .. Petitioner no.5 Age : Major, deleted. Occupation : Service, R/o. New Shreyanagar, Behind Pawan Gas, Aurangabad. ( 2 ) 6. Shri Deelip s/o. Rangnathrao Dhat, Age : Major, Occupation : Service, R/o. Ramtara Housing Society, Aurangabad. 7. Mrs. Supriya w/o. Suresh Dhongde, Age : Major, Occupation : Service, R/o. N-3, CIDCO, Aurangabad. 8. Mrs. Megha w/o. Vijay Bhinge, Age : Major, Occupation : Service, Block No.23/164, Kotla Colony, Aurangabad. 9. Shri Ashok Uttamrao Deshmukh, Age : Major, Occupation : Service, R/o. N-7, F-54-11, Ayodhya Nagar, CIDCO, Aurangabad. 10. Padma D. Goyal, Age : Major, Occupation : Service, R/o. Deewan Deodi, Aurangabad. 11. Shri Bhaskar s/o. Dattatraya Deshpande, Age : Major, Occupation : Service, R/o. N-7, High Court Colony, CIDCO, Aurangabad. 12. Shri Mohd. Ayub, Age : Major, Occupation : Service, R/o. Block No.8/43, Kotla Colony, Aurangabad. ( 3 ) 13. Shri Nandkishor L. Pathak, Age : Major, Occupation : Service, R/o. Pawan Nagar, HUDCO, Aurangabad. 14. Shri Pundlik S. Undirwade, Age : Major, Occupation : Service, R/o. N-5, CIDCO, Aurangabad. 15. Shri Arvind Bhaskar Deshpande, Age : Major, Occupation : Service, R/o. Block No.1/3, Kotla Colony, Aurangabad. 16. Gulam Ahmed Jaffari, Age : Major, Occupation : Service, R/o. Ganesh Colony, Aurangabad. 17. Shri Rajendra Keshavrao Kulkarni, Age : Major, Occupation : Service, R/o. N-7, High Court Colony, CIDCO, Aurangabad. 18. Shri Laxmikant Uttamrao Sonwane, Age : Major, Occupation : Service, R/o. Block No.7/40, Kotla Colony, Aurangabad. 19. Shri Hanumant Ravan Jaybhay, Age : Major, Occupation : Service, R/o. Block No. 7/38, Kotla Colony, Aurangabad. ( 4 ) 20. Mrs. Medha w/o. Madhukar Dole, Age : Major, Occupation : Service, R/o. Nutan Colony, Aurangabad. 21. Mrs. B.R.G. Shete, Age : Major, Occupation : Service, R/o. Block No.35/209, Kotla Colony, Aurangabad. 22. Shri Ramesh M. Dubey, Age : Major, Occupation : Service, R/o. Nakshtrawadi, Aurangabad. 23. Smt. Shubhada w/o. Sunil Kulkarni, Age : Major, Occupation : Service, R/o. Maithini Apartment, Tilak Nagar, Aurangabad. 24. Shri R.P. Menon, Age : 33 years, Occupation : Service, R/o. Block No.5/30, Kotla Colony, Aurangabad. 25. Shri V.K. Wagh, Age : 40 years, Occupation : Service, R/o. Jawahar Colony, Aurangabad. 26. Shri M.A. Yusufzai, Age : Major, Occupation : Service, R/o. Old Osmanpura, Aurangabad. ( 5 ) 27. Shri Anil s/o. Prabhakar Arankalle, Age : 37 years, Occupation : Service, R/o. Block No.30/179, Kotla Colony, Aurangabad. 28. Shri D.M. Tupkar, Age : 40 years, Occupation : Service, R/o. Bhanudas Nagar, Behind Akashwani, Aurangabad. .. Petitioners. versus 1. The State of Maharashtra, through the Principal Secretary, Law and Judiciary Department, Mantralaya, Bombay. 2. The Honourable the Chief Justice, High Court of Judicature of Bombay, at Bombay. 3. The Registrar, High Court of Bombay (Appellate Side), Bombay. 4. The Additional Registrar, High Court of Judicature at Bombay, Bench at Aurangabad. .. Respondents. ....................... ( 6 ) Mr. S.S. Deo, Advocate, for the petitioners. Mr. N.B. Khandare, Government Pleader, for respondent no.1. Mr. P.M. Shah, Senior Advocate, for respondent nos.2 to 4. ........................ CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 30TH JULY 2010 ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. By way of present petition, the petitioners, who are working as Section Officers in the establishment of the High Court, are seeking a direction to the respondents, that the cadre of Section Officer of the Bombay High Court should be placed in the revised pay scale of Rs. 3000-4500 with effect from 1-1-1986. 2. The petitioners were initially appointed as Clerks in the establishment of the High Court and thereafter were promoted, from time to time, and at the time of filing of the petition, are working as Section Officers. Prior to creation of the cadre of Section Officer, there were two cadres in existence, ( 7 ) namely, Superintendent and Senior Superintendent. Vide notification dated 16th April 1992, these two cadres were amalgamated and one cadre of Section Officer in Class-II was provided. 3. The State Government in the year 1977, had taken a decision that no separate Pay Commission would be appointed by the State Government to revise the pay scales of State Government employees and the recommendations of the Pay Commission appointed by the Central Government would be made applicable to the employees of the State Government. The State Government had appointed Equivalence Committee vide notification dated 20th November 1986. The said Equivalence Committee has categorized the ministerial staff in four cadres, namely (1) Clerk, (2) Senior Clerk, (3) Head Clerk, and (4) Superintendent. The Equivalence Committee held that the post of Superintendent was equivalent to the post in the Central Government which carried pay scale of Rs. 500-900 and Rs. 550-950 and recommended the revised pay scale of Rs. 1640-2900. 4. The petitioners contend that the Private Secretaries, attached to the Honourable Judges of the Delhi High Court, had filed Writ Petition, being Writ Petition No. 289/1991, seeking pay scale of Rs. 3000-4500, instead of the pay scale which was ( 8 ) granted to them, of Rs. 2000-2500, and the said petition came to be allowed by the Delhi High Court. It is further submitted by the petitioners, that the Court Masters and Superintendents of the Delhi High Court had also filed a petition, being Writ Petition No. 2756/1991, and they were also given benefit of higher pay scale. The petitioners contend that though the aforesaid judgments and orders passed by the Delhi High Court were challenged before the Apex Court, the Apex Court dismissed the Special Leave Petitions and confirmed the orders of the High Court. 5. The petitioners submit that the employees in the cadre of Superintendent and Senior Superintendent were getting higher pay scale and after amalgamation, their pay scale has been reduced. It is submitted that considering the nature of the work which the employees like the petitioners are performing, it was necessary that a higher pay scale, which is given to the similarly circumstanced employees working in the secretariat of the Union of India, ought to have been given to the petitioners. It is also the contention of the petitioners, that the Private Secretaries of the Honourable Judges, who have been held to be on par with the Section Officers and the Court Masters, by the Delhi High Court, have been given benefit and are getting a higher pay scale. ( 9 ) 6. The petitioners had earlier filed Writ Petition No. 1777/1994, which was allowed to be withdrawn with liberty to the petitioners to make a representation to the High Court. Subsequent to the withdrawal of the said petition, the petitioners had made a representation to the High Court. However, as the same was not decided, the petitioners have approached this Court. 7. Mr. S.S. Deo, learned Counsel appearing for the petitioners, submits that the nature of the duties which the Section Officers of the High Court are required to discharge, cannot be compared with the nature of duties which the Section Officers in the Mantralaya discharge. An exhaustive list of duties to be performed and discharged by the Section Officers and Court Masters has been annexed to the petition. Shri Deo further submits that it is only on account of an erroneous equivalence granted by the Equivalence Committee, to the Section Officers working in the High Court establishment, with the Section Officers working in Mantralaya, the petitioners have been deprived the benefit of higher pay scale. It is submitted that as a matter of fact, prior to the implementation of the report of the Equivalence Committee, the Superintendents and the Senior Superintendents, working in the establishment of the High Court, were getting a higher pay scale which is denied to them on account of report of the Equivalence Committee. ( 10 ) 8. Mr. Deo, learned Counsel appearing for the petitioners, further submits that the Delhi High Court itself has found that the nature of duties performed by the Private Secretaries, Court Masters and the Superintendents of the Delhi High Court, was equivalent, if not more, to the Private Secretaries of the Secretaries working in the Union of India. The Delhi High Court, vide its judgment and order dated 7th May 1991, in C.W. No. 289 of 1991, had granted pay scale of the Private Secretaries to the Secretaries of the Union of India, to the Private Secretaries of the Honourable Judges working in the Delhi High Court. He further submits that the Apex Court has also dismissed the Special Leave Petition which was filed challenging the said judgment and order. It is further submitted that the Delhi High Court had also allowed the petition, being C.W. No. 2756/1991, filed by the Court Masters and Superintendents of the Delhi High Court and granted the same pay scale as was granted to the Private Secretaries to the Secretaries in the Union of India. He submits that applying the same analogy, the present petitioners are also entitled to the same pay scale. 9. Mr. N.B. Khandare, learned Government Pleader appearing for respondent no.1, on the contrary, submits that the Government had accepted the proposal dated 11th May 1989, ( 11 ) forwarded by the High Court, thereby accepting the parity between the pay scales of the High Court staff with the staff of Mantralaya, upto the level of Superintendent, and since then the pay scales of all the posts in High Court, up to the level of Superintendent, were similar to the equivalent posts in Mantralaya. He submits that the post of Assistant Secretary in Mantralaya was equivalent to the post of Senior Superintendent in the High Court. It is submitted that the post of Assistant Secretary and the post of Superintendent in Mantralaya were amalgamated into one cadre of Section Officers, in the pay scale of Rs. 600-1150 with effect from 1st January 1986. It is submitted that the High Court had proposed to amalgamate the posts of Superintendent and Senior Superintendent in the cadre of Section Officers, in the same pay scale. It is submitted that accordingly the Government had amalgamated the said cadres. It is submitted that since the posts of Section Officers in Mantralaya are found to be equivalent to the Section Officers in the High Court, in accordance with the report of the Equivalence Committee, they have rightly been placed in the same pay scale. It is, therefore, submitted that the petitioners are not entitled to higher pay scale, as claimed. 10. Mr. P.M. Shah, learned Senior Counsel appearing for respondent nos.2 to 4 / High Court, submits that the High Court had forwarded proposal to the Government for revision of pay ( 12 ) scale. However, the same has been rejected by the State of Maharashtra. He submits that the ultimate authority vests with the State Government which has rejected the proposal. 11. The question, as to whether this Court sitting in its extraordinary jurisdiction under Article 226 of the Constitution of India, could issue a writ of mandamus, to give a particular pay scale to the employees of the High Court, is no more res integra. The Apex Court, in the case of Union of India and another Vs. S.B. Vohra and others (2004 AIR SCW 321), had an occasion to consider the said question. In the said case, recommendation was made by the Honourable the Chief Justice of High Court of Delhi, for revision of pay scales of the Assistant Registrars working in the Delhi High Court. Before making the recommendation, the Honourable the Chief Justice had constituted a Committee to go into the said matter. The Committee had submitted its report, which was accepted by the Honourable the Chief Justice. Since despite recommendation of the Honourable the Chief Justice, the Government had not taken any action, a petition was filed by the Assistant Registrars of the Delhi High Court. The High Court had allowed the petition and directed higher pay scale to be granted to the Assistant Registrars of Delhi High Court. Challenging that judgment, the Union of India had approached the Apex Court. The Apex Court, after considering its earlier judgments on the scope of judicial review ( 13 ) in such matters, observed thus : " CONCLUSION : 49. The matter as regard fixation of scale of pay of the officers working in the different High Courts must either be examined by an expert body like Pay Commission or any other body but in absence of constitution of any such expert body the High Court itself is to undertake the task keeping in view the special constitutional provisions existing in this behalf in terms of Art. 229 of the Constitution of India. 50. We agree with the submission of the learned Addl. Solicitor General to the effect that the decision of the High Court had been rendered having its origin in A.K. Gulati (C.W. No. 289/91) which had a spiraling effect particularly in the case of Assistant Registrars. That was more a reason why a competent authority of the appellant should have taken immediate steps in holding a meeting with the Chief Justice or an authorised officer of the High Court. 51. Having regard to the aforementioned authoritative pronouncements of this Court there cannot be any doubt whatsoever that the recommendations of the Chief Justice should ordinarily be approved by the State and refusal thereof must be for strong and adequate reasons. In this case, the appellants even addressed itself on the recommendations made by the High Court. They could not have treated the matter lightly. It is unfortunate that the recommendations made by a high functionary ( 14 ) like the Chief Justice were not promptily attended to and the private respondents had to file a writ petition. The question as regard fixation of a revision of the scale of pay of the High Court being within exclusive domain of the Chief Justice of the High Court, subject to the approval, the State is expected to accept the same recommendations save and except for good and cogent reasons. 52. The High Court, however, should not ordinarily issue a writ of or in the nature of mandamus and ought to refer the matter back to the Central/State Government with suitable directions pointing out the irrelevant factors which are required to be excluded in taking the decision and the relevant factors which are required to be considered therefor. The statutory duties should be allowed to be performed by the statutory authorities at the first instance. In the event, however, the Chief Justice of the High Court and the State are not ad idem, the matter should be discussed and an effort should be made to arrive at a consensus. 53. We are further of the opinion that only in exceptional cases the High Court may interfere on the judicial side, but ordinarily it would not do so. Even if an occasion arises for the High Court to interfere on its judicial side, the jurisdiction of the High Court should be exercised with care and circumspection. " 12. In view of this settled legal position, we are of the considered view that a writ of mandamus, in the nature that is ( 15 ) sought in the petition, cannot be issued. It is to be noted that the judgments of the Delhi High Court, which have been relied by the learned Counsel for the petitioners, were also noticed by the Apex Court in the aforesaid judgment. The contention of the petitioners, that since the Special Leave Petitions, challenging the judgments of the Delhi High Court, were dismissed by the Apex Court, it should be held that the Apex Court has upheld the view of the Delhi High Court, in our view, is without substance. Merely dismissal of a Special Leave Petition by the Apex Court would not amount to laying down law by the Apex Court, which was laid down by the High Court. In any event, when there is clear pronouncement of law by the Apex Court, we are bound to obey the same. 13. The Apex Court, in the aforesaid case, has in unequivocal terms, held that the High Court should not ordinarily issue a writ in the nature of mandamus. In the said case, the Apex Court has clearly held that the High Court should have referred the matter back to the Central/State Government with suitable directions. The Apex Court has further held that the statutory duties should be allowed to be performed by the statutory authorities at the first instance. The Apex Court, in paragraph 53 of the judgment, has given words of caution, observing that only in exceptional cases the High Court may interfere on the judicial side, but ordinarily it would not do so. ( 16 ) 14. In that view of the matter, it will not be possible for us to grant the relief claimed in the petition. The petition, therefore, will have to be dismissed. 15. However, it is to be noted that in the said judgment itself, the Apex Court has observed that the fixation of scale of pay of the officers working in the different High Courts must either be examined by an expert body like Pay Commission or any other body, but in absence of constitution of any such expert body the High Court itself should undertake the task keeping in view the special constitutional provisions existing in this behalf in terms of Article 229 of the Constitution of India. Clause 2 of Article 229 of the Constitution of India empowers the Honourable Chief Justice of a High Court to prescribe by rules, the conditions of service of officers and the servants of the High Court. However, such rule is subject to the provisions of any law made by the legislature of the State and the approval of the Governor of the State, so far it relates to salaries, allowances, leave or pensions. 16. The Apex Court, in the aforesaid case of Union of India and another S.B. Vohra and others, has observed thus : ( 17 ) " There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in clause 2 of the Article 229 of the Constitution of India and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course. " 17. In the affidavit in reply filed on behalf of the High Court, it is stated thus : " The said representation was placed before the Honourable the Chief Justice by joint submission dated 10-11-1994 of the Registrar and Prothonotary when the Honourable the Chief Justice orally directed to make enquiries about the pay scale of those posts mentioned in the representation from the Registrars of Calcutta, Madras and Allahabad High Courts. The said information was received and again on 2-11-1995 by joint submission signed by the Registrar and Prothonotary and Senior Master the subject was placed before the Honourable the Chief Justice when His Lordship directed on 23-12-1995 to move the Government to accept the said pay scales mentioned in the representation. " ( 18 ) 18. It is, thus, clear that when the representation of the present petitioners was placed before the Honourable the Chief Justice, the Honourable the Chief Justice had directed enquiries to be made from the Registrars of Calcutta, Madras and Allahabad High Courts and after receipt of the information and after considering the same, the Honourable the Chief Justice had directed to move the Government to accept the pay scales mentioned in the representation. It, thus, prima facie appears that the Honourable the Chief Justice had found substance in the representation made by the petitioners. However, as held by the Apex Court, in the case of Union of India Vs. S.B. Vohra (supra), the recommendations by the Honourable the Chief Justice could not be equated with the rules to be framed by the Honourable the Chief Justice under Article 229 of the Constitution of India. 19. We, therefore, feel it appropriate to direct the Registry to place the matter again before the Honourable the Chief Justice for considering, as to whether the rules are required to be framed under Article 229 of the Constitution of India, for giving a particular pay scale to the Section Officers working on the establishment of the High Court, like the petitioners. On the matter being placed before the Honourable the Chief Justice, Honourable the Chief Justice may consider appointing a Committee for examining the claim of the petitioners and on ( 19 ) consideration of the report of the Committee, may consider framing the rules under Article 229 of the Constitution of India. As has been observed by the Apex Court, in the case of Union of India Vs. S.B. Vohra (supra), if such rules are framed by the Honourable the Chief Justice, approval would ordinarily be granted by the State Government as a matter of course. 20. Subject to the observations in para 19 above, the petition is dismissed. Rule is discharged. However, there shall be no order as to costs. 21. Copy of this judgment be immediately forwarded to the Registrar General of this Court, for taking appropriate steps in accordance with the aforesaid observations. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/4085WP