{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5394 OF 2008 Anant s/o Manoharrao Joshi Age-43 years, Occ-Service as Private Secretary to the Honourable Judge, High Court Bench at Aurangabad R/o “Durvankar” Plot No.42, Meher Nagar, Garkheda Area Aurangabad PETITIONER VERSUS 1. The State of Maharashtra Through its Principal Secretary, Law & Judiciary Department, Mantralaya, Mumbai 400 032 2. The Registrar General, High Court (Appellate Side), Fort, Mumbai 400 032 3. The Registrar (Administration) High Court of Judicature at Bombay Bench at Aurangabad. RESPONDENTS ....... Mr.A.N.Irpatgire, Advocate for the petitioner, Mr.S.K.Tambe, AGP for respondent No.1 Mr.P.M.Shah, Senior Counsel for respondents No.2 and 3 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] RESERVED ON : 16.09.2009 PRONOUNCED ON : 08.10.2009 {2} JUDGMENT (PER A.V.POTDAR, J.) : 1. In this petition, rule came to be issued on 10.09.2008. The record and proceedings show that the petitioner has moved a civil application No.10187/2008 praying to fix the writ petition for early hearing. It appears that after hearing the parties and considering the urgency expressed in the civil application, this Court, on 25.09.2008, allowed the civil application and directed that the writ petition be listed for final hearing in the week commencing from 13 th October 2008. It further appears that thereafter the petition was circulated for final hearing and accordingly this petition was heard and was closed for orders. Thereafter, since this Bench required certain clarification on some of the issues, again the petition was directed to be listed for hearing and after hearing learned counsel for the parties, this Court closed the matter for judgment on 16.09.2009. 2. The petitioner, by this petition, under Article 226 of the Constitution of India, prays for issuance of a writ of mandamus for placing the petitioner in the pay scale of Rs.10,000-15200, attached to the post of Private Secretary to the Honourable Judge with effect from 01.04.2005 i.e. from the date on which the petitioner has been appointed on that post and to fix his initial pay in the said pay scale from that date and to pay him the arrears accruing on account of such fixation. The petitioner has also prayed for quashing and setting aside the Government Resolution dated 07.06.2007 or for suitable modification in the said resolution so as to give effect to the said resolution to the petitioner w.e.f. 01.04.2005. {3} 3. The fact which gave rise to file the present petition can be summarized as follows : The petitioner claims that he is in service since last 24 years in various capacities and at present he is working as a Private Secretary on the establishment of the High Court Bench at Aurangabad. It is contended that prior to 1 st April 2005 the staff attached to the Judges of this High Court was categorized in four cadres viz. Court Stenographer, Personal Assistant, Personal Secretary and Private Secretary. Out of these four categories the staff in the first three categories was put in the pay scale of Rs.7450-11500, except for grant of special pay of Rs.400/- in case of promotional post of Personal Secretary. According to the petitioner, for the post of Private Secretary, which was next promotional post, pay scale of Rs. 10,000-15200 was applicable. By virtue of Government Resolution dated 18.03.2005, the above mentioned four cadres are amalgamated into two cadres, namely Personal Assistant and Private Secretary, w.e.f. 01.04.2005 in the pay scale of Rs.8000-13500 and Rs. 10,000-150200, respectively. These cadres are amalgamated pursuant to the recommendation of the Recruitment Rules Committee which has submitted report to that effect on 24.03.2004. As per the report / recommendation of the said committee, each Judge of the High Court is to be provided with one Personal Assistant and one Private Secretary. In pursuance of the Government Resolution dated 18.03.2005, the High Court of Bombay issued a notification, which was published in Government Gazette, on 13.10.2005, by which the {4} staff in the four cadres, which existed prior to 01.04.2005, was placed in amalgamated cadres of Personal Assistant and Private Secretary w.e.f. 01.04.2005 as per the seniority of the incumbents in the previous four cadres. 4. The petitioner has further contended that prior to 01.04.2005, he was working in the cadre of Personal Assistant in the pay scale of Rs.7450-11500. It is also contended that prior to 01.04.2005 the petitioner had been granted the pay scale of Rs. 7450-11500 plus Rs.400 as special pay, attached to the then exiting promotional post of Personal Secretary under the Assured Career Progress Scheme introduced by the State Government vide resolution dated 20.07.2001. It is further contended that after the merger of these four cadres, the petitioner came to be appointed on the post of Private Secretary in the pay scale of Rs.10,000-15200 w.e.f. 01.04.2005 and was placed at serial No.10 in that cadre, vide Government notification dated 13.10.2005. The said appointment of the petitioner, on the post of Private Secretary, relates to the appointees in those two cadres, on the establishment of the Aurangabad Bench. It is contended that since the date of such merger and appointment of the petitioner on the post of Private Secretary, i.e. 01.04.2005, the petitioner is discharging and performing the duties of the Private Secretary. It is the grievance of the petitioner that though the petitioner is placed in the promotional cadre of the Private Secretary yet the petitioner is getting the salary in the pay scale of Rs. 7450-11500. According to the petitioner the petitioner is getting a pay scale, which after amalgamation of the cadres, no longer exists. {5} 5. The Government by issuing resolution dated 07.06.2007, gave prospective effect to the appointment of the petitioner on the post of Private Secretary from the date of the said resolution. The petitioner has contended that though the annual increment of the petitioner was due yet the same was not released and hence the petitioner submitted a letter of request to the Deputy Registrar (Administration), on 11.01.2008. It appears that the petitioner was informed by the office of the Deputy Registrar (Administration) that since he had reached the maximum of his present pay scale of Rs. 7450-11500+Rs.400 as special pay, hence the annual increment was not granted to him in November 2007. He was also informed that the appointment of the petitioner,on the post of Private Secretary, was made prospective from the date of issuance of the impugned Government Resolution. It is further contended that though the petitioner was appointed on the post of Private Secretary w.e.f. 01.04.2005 and since then he is discharging and performing the duties of the said post yet he has not been paid the salary in the pay scale attached to the said post, after the merger of the earlier four cadres. It is also contended that subsequent to the appointment of the petitioner, five employees, who are junior to the petitioner, working on the establishment of the Aurangabad Bench, have been appointed on the posts of Private Secretaries and all of them are put in the pay scale of Rs.10,000-15200 from the date of their respective appointments. It is contended by the petitioner that the Private Secretaries, who are junior than the petitioner and who are appointed subsequent to the petitioner, are drawing more salary than the {6} petitioner. It is also contended that inspite of several requests and representations made to the authorities, the petitioner is not granted the pay scale of the post on which he is working. It is further contended by the petitioner that due to such action on the part of the administration the petitioner stands to lose his seniority pursuant to impugned government resolution and the juniors of the petitioner will become senior of the petitioner in service. 6. In response to the notice of this Court, the respondents appeared and filed their respective affidavit in replies. In the affidavit in reply filed on behalf of respondent No.1, it is contended that as per Government Resolution dated 18 th March 2005, forty six posts of Personal Assistant/Personal Secretary have been converted into Private Secretary in the pay scale of Rs.10,000-15200 w.e.f. 01.04.2005. It is further contended that thereafter, on the basis of said Government Resolution the High Court had issued a notification on 30.08.2005 thereby appointing the erstwhile Personal Assistants / Personal Secretaries as Private Secretaries. It is the contention of respondent No.1 that the appointments of others, who were appointed on the post of Private Secretary, by virtue of the said notification of the High Court, were subject to the sanction by the government and this was done prior to the issuance of the impugned government resolution. It is further contended that two posts of Personal Assistants / Private Secretaries, had been surrendered by the High Court and hence as per the decision of the High Power Committee, the Government accorded sanction to four posts, with prospective effect by issuing resolution on 07.06.2007 and thus allowed the {7} conversion of the posts as Private Secretary. It is further contended that at the time of the appointment of the petitioner as Private Secretary, no sanctioned post was available. It is also contended that though the High Court had issued the notification, the petitioner was not entitled for the pay scale, which he has claimed i.e. Rs. 10000-15200 w.e.f. 01.04.2005. According to respondent No.1, it is not possible for the Government to accord pay scale of Rs.10000-15200 to the petitioner w.e.f. 01.04.2005 due to several administrative difficulties. 7. The respondents No.2 and 3, in the affidavit in reply have not disputed the conversion of the post, by which petitioner was placed in the post of Private Secretary. The respondents No.2 and 3 have contended that vide government resolution dated 07.06.2007 the post of the petitioner is converted into the post of Private Secretary in the pay scale of Rs.10000-15200, however with prospective effect i.e. w.e.f. 07.06.2007 and not with retrospective effect i.e. w.e.f. 01.04.2005. It is further contended by these respondents that as per the directions issued by the Honourable the Chief Justice of the High Court of Bombay, the High Court has already moved the State Government for conversion of the 4 posts of private secretaries in the pay scale of Rs.10000-15200 w.e.f. 01.04.2005 and as such the matter is pending with the Government for further orders. It is also contended that the High Court has sent reminders to the Government. It is further contended in the affidavit in reply that again and again these respondents have reiterated that the High Court has sent reminders to the State Government for issuance of orders with {8} regards to the grant of the pay scale of Rs.10000-15200 to the petitioner w.e.f. 01.04.2005 and the High Court is insisting that the orders be issued in the matter. 8. After the respondents have filed affidavit in replies, the petitioner has field affidavit in rejoinder to the said replies. The petitioner, in the affidavit in rejoinder, has contended that the petitioner was appointed as Private Secretary w.e.f. 01.04.2005 and the date 07.06.2007 as per Government Resolution dated 07.06.2007 creating the post of Private Secretary that date is a fictitious one. It is further contended that the petitioner would be adversely affected inasmuch as those personal assistants, who are promoted as Private Secretaries subsequent to the appointment of the petitioner would gain in seniority inspite of the fact that the petitioner is senior to them in the cadre. According to the petitioner, he is senior not only in cadre of Private Secretary, but also in the feeder cadre of Personal Assistant. It is contended by the petitioner that due to the actions of the respondents No.2 and 3 though he is senior yet junior employees became senior to him in the new cadre of the Private Secretary and are drawing higher salary and pay scale than the petitioner. It is contended that pursuant to the report of the Recruitment Rules Committee headed by Honourable Mr.Justice V.G.Palshikar (as His Lordship then was), a meeting was arranged between the Honourable the Chief Justice and the Honourable the Chief Minister of the State of Maharashtra on 02.02.2005. Thereafter, the Government issued a resolution on 18.03.2005 accepting the scheme recommended by the Recruitment Rules Committee and was approved by the Honourable {9} the Chief Justice. It is also contended that the effect of this unification of the cadre was to be given from 1 st April 2005. It is contended that the petitioner is working as Private Secretary from 01.04.2005. It is further contended that on 21.07.2005, the High Court has communicated to the Principal Secretary and the R.L.A. Government of Maharashtra requesting for conversion of four out of six excess posts of Personal Assistants into that of Private Secretary, w.e.f. 01.04.2005, so that each Honourable Judge is provided with one Private Secretary from 1 st April 2005 in terms of the Government Resolution dated 18.03.2005. It is also contended that the delay in issuing the resolution is fully attributable to the Government and in such circumstances, the petitioner cannot be made to suffer adversely as the petitioner not only stands to lose his seniority but also stands to be adversely affected in terms of monetary loss. 9. During the course of submissions, Mr.A.N.Irpatgire, learned counsel appearing for the petitioner, contended that once the Government had issued Resolution on 18.03.2005 by which effect was given to the unification of the cadres w.e.f. 01.04.2005 then the Government cannot take a stand to give sanction to these post with prospective effect by subsequent resolution dated 07.06.2007. It is also urged before us that as the petitioner has been discharging and performing duties as Private Secretary w.e.f.01.04.2005, the petitioner is entitled for the pay scale of Rs.10000-15200 in the cadre of Private Secretary w.e.f. 01.04.2005. In the premise, if the impugned Government Resolution is not struck down then the private secretaries, who are junior than the petitioner and appointed {10} subsequent to the appointment of the petitioner as Private Secretary, would become senior in the cadre and would also get higher pay scale than the petitioner inspite of the fact that the petitioner is entitled for seniority not only in the cadre but also in the pay scale. 10. It is urged by the learned AGP that as the appointment of the petitioner was subject to sanction accorded by the Government and accordingly, by virtue of issuance of GR dated 07.06.2007 sanction has been granted prospectively from the date of issuance of the impugned government resolution, and hence the petitioner is not entitled for any relief as claimed for. It is also urged by the AGP that the government has sufficiently explained the delay caused in issuance of the impugned government resolution. 11. Mr.P.M.Shah, learned senior counsel has urged on behalf of respondents No.2 and 3 that the High Court is time and again corresponding with the Government and requesting the Government to accord sanction to the pay scale of Rs.10000-15200 to the appointment of the petitioner as Private Secretary, w.e.f. 01.04.2005, however the Government has not responded and instead issued the impugned resolution granting sanction to the conversion of the post as Private Secretary, prospectively from the date of issuance of the said resolution. 12. Considering these submissions, we frame a question for consideration i.e. whether the petitioner is entitled in law for the pay scale of Rs.10000-15200 for the post of Private Secretary w.e.f. {11} 01.04.2005 and whether the petitioner is entitled to have his seniority protected in the said cadre? 13. From the discussion adverted to above it is clear that the four cadres came to be amalgamated and unified and in that merger / unification, the petitioner came to be appointed on the post of Private Secretary by virtue of the notification issued by the High Court dated 13.10.2005. It is also not disputed that this notification was issued by the High Court on the basis of the government resolution dated 18.03.2005. It is also undisputed that the petitioner came to be appointed as Private Secretary on 01.04.2005 w.e.f. 01.04.2005. It is also not disputed that since 01.04.2005 the petitioner is discharging and performing the duties as a Private Secretary. In the premise, according to us, the petitioner is entitled for the salary in the pay scale of Rs.10000-15200, which pay scale is applicable to the post of Private Secretary w.e.f. 01.04.2005. It cannot be disputed that the appointment of the petitioner was subject to sanction of the government, however it was expected that the government would issue a resolution within a reasonable period. On careful perusal of the affidavit in reply filed by respondent No.1, we do not find any plausible explanation for the inordinate delay in issuing resolution dated 07.06.2007. It is contended in para 6 of the said affidavit that the government has to consider all the administrative aspects and budgetary provisions of the State Government and then to consider to accord sanction to these posts, for which some considerable time would be required and thereafter the necessary resolution has been issued. According to us, by virtue of the delay, which has occasioned {12} by the Government in issuing the Government Resolution dated 07.06.2007, the petitioner has not only been deprived of the pay scale to which he is entitled to in law but also lose seniority. It is categorically pleaded by the petitioner in the petition that persons appointed after his appointment as Private Secretary would now become senior than the petitioner. It is also pleaded by the petitioner that though he is senior even in the feeder cadre yet due to the delay on the part of the government in issuing the resolution the petitioner is adversely affected monetarily as well as in respect of his seniority in the cadre. As we have pointed out to above that no acceptable explanation is coming forth from respondent No.1 in respect of the said delay, inspite of repeated reminders made by the High Court to issue notification, the inordinate delay has been caused in issuing the said resolution. Consequently, the petitioner has suffered adversely. In the premise, according to us, the petition deserves to be allowed. 14. In the result, the writ petition succeeds. We hereby direct that the petitioner shall be entitled to all the benefits of the post of Private Secretary on which he is appointed w.e.f. 01.04.2005. The aforesaid effect be given within 8 weeks from today. 15.. Rule is thus made absolute on the above terms with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp5394-08