IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 427 OF 1995 IN SPECIAL CIVIL APPLICATION NO. 3601 OF 1994 WITH LETTERS PATENT APPEAL NO. 426 OF 1995 IN SPECIAL CIVIL APPLICATION NO. 12921 OF 1994 AND LETTERS PATENT APPEAL NO. 441 OF 1995 IN SPECIAL CIVIL APPLICATION NO. 12921 OF 1994 For Approval and Signature: Hon'ble MR. JUSTICE B.C. PATEL AND Hon'ble Mr. JUSTICE S. D. DAVE ======================================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether Their Lordships wish to see the fair copy of the judgments ? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder ? No 5. Whether it is to be circulated to the Civil Judge No --------------------------------------------------------- IN LPA No.427 of 1995: STATE OF GUJARAT Versus K.S. PRASAD & ORS. IN LPA NO. 426 OF 1995: STATE OF GUJARAT Versus S.S. MURTHY & ORS. IN LPA NO. 441 OF 1995: C.G. GOVINDAN Versus STATE OF GUJARAT & ORS. --------------------------------------------------------- Appearance: In LPA No. 427 of 1995. Mr. M.R. Anand, Ld. Government Pleader for Appellant State. Ld. Counsel Mr. S.B. Vakil for Opponents-Ori. Petitioenrs No. 1 to 34. Ld. Counsel Mr.M.D. Pandya for Opponent No.35, Hob'ble The Chief Justice of High Court of Gujarat. In LPA No. 426 of 1995. Mr. M.R. Anand, Ld. Government Pleader for Appellants Ld.Counsel Mr.Mihir Joshi for Opponents No.1 & 2 Ld.Counsel Mr.D.R.Bhatt for Opponent No.3 Ld.Counsel Mr.M.D.Pandya for Opponent No.4 In LPA No. 441 of 1995 Ld. Counsel Mr. D.R. Bhatt for Appellant. Mr. M.R. Anand, Ld. Govt.Pleader for Opponents No.1 & 2 State. Ld.Counsel Mr.M.D.Pandya for Opponent No. 3 Ld.Counsel Mr.Mihir Joshi for Opponents No. 4 & 5. CORAM: MR. JUSTICE B.C. PATEL and MR. JUSTICE S.D. DAVE. Date Of Decision: October 10 ,1996 CAV JUDGMENT. PER: S.D. DAVE, J :- In this Intra Court Appeals, we are concerned with the decision rendered by the Learned Single Judge (Our Esteemed Brother M.R. Calla, J) in Special Civil Application No. 3601 of 1994 with Special Civil Application 12921 of 1994, decided on 9th./10th. March 1995. The said Special Civil Applications came to be allowed with the directions as under:- (i) The Chief Justice may consider the anomaly in the matters of pay scales of the Private Secretaries to the High Court Judges and the Private Secretaries attached to the officers drawing pay at Rs.8000/- in the Government Secretariat and keeping in view the observations made hereinabove, may consider as to what pay scales should be prescribed for the holders of the posts of Private Secretaries to the High Court Judges. (ii) In case the Chief Justice decides and prescribes that the pay scale of the Private Secretaries to the High Court Judges should be the pay scale of Rs.3000-4500 such pay scale shall be given to all the Private Secretaries to the Judges of the High Court as decided by the Chief Justice in accordance with the provisions of Article 229(2) of the Constitution of India and in accordance with the rules made by the Chief Justice in this behalf. In our opinion, the fate of the present proceedings before us, hinges on the answer which can legally be provided to the question which may be [B formulated thus:- Whether all the Private Secretaries attached to the Hon'ble Judges of this Court (who undisputedly draw the basic salary of Rs.8000/-) for the purpose of emoluments, can be or should be equated with those Private Secretaries attached to the Secretaries of the State Secretariat, drawing the basic salary of Rs.8000/- per month (or less than that in some of the cases), though said to be falling within 10 % limit of the cadre strength and said to be promoted after a service span of 15 years, as the Anti Stagnation Measure ? IN OTHER WORDS Can the Private Secretaries, attached to the Hon'ble Judges of this Court, be precluded from claiming and receiving the benefits of the accepted principle of " EQUAL PAY FOR EQUAL WORK " on the basis of De Jure inequality arising out of 10 % and 15 years criteria, ignoring the principle of De Facto Equality ? The petitioners in both the petitions were and are working as the Private Secretaries to the Hon'ble Judges of the High Court of Judicature of Gujarat at Ahmedabad. They seek and claim parity in the matter of pay scales and all other emoluments with the Private Secretaries working with the Secretaries to the Government of Gujarat, who draw the basic salary in sum of Rs.8000-00, excepting in a few cases. The petitioners have said in these petitions that, they are English Stenographers, Grade-I (Class-II) and except the petitioner no.3 in Special Civil Application No. 12921 of 1994, all the petitioners are working as such from different dates commencing from October 16, 1982. The case of the petitioners is that, the 4th Central Pay Commission came to be constituted on 1st. September 1983 to examine the then existing structure of emoluments and conditions of service, available to the Central Government Employees, Industrial and Non Industrial along with the personnel belonging to the All India Services, the Armed Forces and of the Union Territories. It was the arena of the inquiry and suggestions of the said Pay Commission to recommend and suggest the desirable and feasible changes. According to the Petitioners, the Central Government is organised into different Ministries and Departments each having a Secretariat. Secretariat posts are being manned by Officers from All India Services, Group A Central Services on Deputation and by the members of the Central Secretariat Services (CSS). The CSS was known by three branch services, namely (a) Central Secretariat Services (CSS), (b) Central Secretariat Stenographers Services (CSSS), and (c) Central Secretariat Clerical Services (CSCS). Prior to Report of the Fourth Pay Commission dated January 01, 1986, there were, amongst the Stenographers (CSSS) four grades i.e. A, B, C & D. The Fourth Central Pay Commission had recommended the merger of both Grades A and B of CSSS so as to bring about a parity with CSS at that level and had recommended the scale of Rs.2000-3500 for posts in Grade A and Grade B. With a view to provide for further satisfactory promotional avenues for the members of the CSSS, the Pay Commission had recommended that the posts of Private Secretaries to the Secretaries to the Government of India may be upgraded and be placed in the scale of Rs.3000-4500. According to the petitioners, in the High Court of Gujarat, they were working as Private Secretaries to the Hon'ble the Chief Justice and His Companion Justices. They were granted the Gazetted Status and their pay scale of Rs.650 - 1200 was recommended to be changed to Rs.2000-3500. The Government of India, vide the Ministry of Finance Notification dated March 13, 1987, accepted the recommendations of the 4th. Central Pay Commission, namely that in the CSSS, the post of the Private Secretaries to the Secretary to the Government of India and equivalent officers may be upgraded and given the pay scale of Rs.3000-4500. The President of India sanctioned the said upgradation as noticed under the Government of India Office Memorandum dated October 07, 1987. As a consequence, the Gujarat Sachivalaya and Allied Officers Stenographers Association had made a representation to the Government of Gujarat for creation of the post of Private Secretaries in the pay scale of Rs.3000-4500 as had been done in the Central Government. The Government of Gujarat had appointed a High Level Committee to examine the representation made by the aforesaid Association and having satisfied regarding the existence of a valid justification to upgrade, certain posts of Senior most Private Secretaries in the pay scale of Rs.3000-4500, the Government of Gujarat had resolved as under:- (i) Ten percent of the existing posts of Private Secretaries (English & Gujarati Stenographers Gr.I), on the Secretariat cadre, may be upgraded as Private Secretaries (Cl.I) and be given the pay scale of Rs. 3000-100-3500-125-4500. These upgraded posts may be filled up by promotion from Private Secretaries (Stenographer Gr.I) on the basis of seniority-cum-merit. For becoming eligible to this grade, the incumbent must have put in at least 15 years of service as Stenographer Grade I. (ii) Private Secretaries (Stenographers Gr.I English & Gujarati) on the Secretariat cadre, who have put in not less than 17 years service; of which 12 years in Gr. I and 5 years' in Gr.II; or 15 years' continuous service as Stenographer Gr.I in the case of direct recruits, may be promoted and placed in the higher pay scale of Rs.2500-75-2800-EB-100-4200." The Resolution in this respect came to be issued by the Government of Gujarat on February 28, 1990. In the Secretariat, at the relevant time, there were in all 112 Private Secretaries, the break-up being 40 Gujarati Stenographers Grade-I and 72 English Stenographers Grade-I. Looking to the ten percent ratio fixed by the above said Resolution, the Private Secretaries numbering eleven were therefore found to be entitled to the benefits of the above said Resolution. But because of the two Petitions, one filed by Shri. T.R.S. Nair, registered as Special Civil Application No. 3164 of 1990 and the other one filed by Gujarat Secretariat & Allied Officers Stenographers' Association, registered as Special Civil Application No. 5337 of 1990, the implementation of the said Resolution of the Government dated February 28, 1990 was suspended. Any how, on March 20, 1991 the Government of Gujarat had decided to revise the pay scale of ten percent existing posts of Stenographers Grade-I from Rs.2000-3500 to Rs.3000-4500 and thereafter, under the Resolution dated May 18, 1991, the standards for the upgradation of ten percent posts in the scale of Rs.3000-4500 and the appointment by promotion were accepted. The resultant effect was that, those ten percent of the post of Private Secretaries, working at the State Government Secretariat, existing on January 01, 1986 were required to be upgraded in the pay scale of Rs.3000-4500. It appears that, the Hon'ble The Acting Chief Justice of the High Court of Gujarat in exercise of His Lordship's powers conferred upon him under Article 229 of the Constitution of India, with the approval of His Excellency the Governor of Gujarat, directed the substitution of the entries in the High Court Notification dated July 03, 1987 showing that the revised pay scale for Secretary to the Hon'ble The Chief Justice would be Rs.2500-75-2800-100-4200 and to Rs.4500-150-5700 for the then incumbent only. For the Private Secretaries, to the Hon'ble Judges of the High Court and English Stenographers Grade-I upto the limit of ten percent of the existing posts of Stenographers Grade-I, both Gujarati and English on the Establishment of the High Court, came to be upgraded as the Private Secretaries in the Pay scale of Rs.3000-100-3500-125-4500. It appears that a representation came to be submitted by some of the petitioners to the Hon'ble The Chief Justice through the Registrar on 5th March , 1990 for the grant of pay scale of Rs.3000-4500 to all the Private Secretaries to the Hon'ble Judges of this High Court, instead of 10 % of them only. According to the Petitioners, the Private Secretaries to the Hon'ble Judges of the High Court of Delhi had filed a Writ Petition being C.W. No. 289 of 1991, claiming that, they should be placed in the pay scale of Rs.3000-4500, instead of the pay scale of Rs.2000-3500, which they were getting at the relevant time. Upon hearing the parties, the High Court of Delhi was pleased to issue a writ of mandamus to the Union of India and Others, calling upon them, to fix the salary of the Private Secretaries attached to the Hon'ble Judges of the High Court of Delhi, in the pay scale of Rs.3000-4500, with effect from 1st. January 1986. The said decision came to be carried before the Apex Court by filing the Special Leave Petition by the Union of India, which came to be dismissed on August 26, 1991. The case of the petitioners before the Learned Single Judge was that, the work and the duties of the Private Secretaries to the Hon'ble Judges of this High Court would be equal, (i) to the work and duties attached to the post of Private Secretaries to the Secretaries of the Government of India and equivalent officers and, (ii) the Private Secretaries to the Secretaries to the Government of Gujarat, including the Chief Secretary and Principal Secretaries as also to the Private Secretaries to the Judges of the High Court of Delhi. Describing their duties, the petitioners have said in their petitions and have urged before the Learned Single Judge that, the pressure of work upon them, goes on increasing enormously, posing greater and greater challenge to their skill and ability. According to them, apart from taking dictations in the Courts as well as in the Chambers of the Hon'ble Judges, the Private Secretaries were required to visit the residences of the Hon'ble Judges for dictation and transcription and they were required to carry out the necessary corrections in all the copies of the judgments and had to perform various other secretarial and confidential duties. According to them, since they were required to deal with the orders passed on the Judicial side, they were required to maintain high standards of secrecy and were required to act with utmost confidence. It was thus pleaded and canvassed before the Learned Single Judge by the petitioners that,the post of Private Secretaries to the Hon'ble Judges of this High Court would carry greater responsibility and would call for greater skill and efficiency. According to the petitioners, at the Secretariat of the State of Gujarat, there were and are only few officers whose basic pay would be of Rs.8000-00 per month and not only the Private Secretaries attached to the said officers but even the Private Secretaries attached to certain officers and Secretaries who were not in the pay scale of Rs.8000-00 are also entitled to the basic salary in the pay scale of Rs.3000-4500 per month, because of the number game of 10 % rule. Though no return came to be filed on behalf of the Hon'ble The Chief Justice, an affidavit-in-reply dated January 07,1995 came to be filed by one Mr. V.B. Gandhi, the then Deputy Secretary, Legal Department to the Government of Gujarat. An affidavit-in-rejoinder came to be filed by the petitioners on January 11, 1995. The additional affidavit-in-reply came to be filed by one Mr. H.D. Chitara, Under Secretary to the Government of Gujarat. In the affidavits in reply a stand has been taken that the petitioners were Stenographers Grade-I (Class-II) in the pay scale of Rs.2000-3500 and that the the said scale was required to be upgraded to the scale of Rs.3000-4500 pursuant to the recommendations of the 4th Central Pay Commission under the order of the Central Government dated October 07, 1987. It was sought to be contended that, the existing post of Private Secretaries to the Secretaries to the Government of India and equivalent officers were upgraded to the scale of Rs.3000-4500 with effect from 1st January 1986. The Government of Gujarat had constituted a High Level Committee under the Chairmanship of the Finance Minister to examine the matter regarding the pay and allowances of the employees of the Government of Gujarat and this High Level Committee had recommended that, only 10 % posts of the Private Secretaries working under the Government of Gujarat should be upgraded to the aforesaid pay scale of Rs.3000-4500. This recommendation of the High Level Committee came to be accepted by the Government of Gujarat as reflected in the orders dated March 20, 1991 of the Finance Department, Government of Gujarat. It was also pleaded and contended on behalf of the State that, this High Court also had asked for the upgradation of "ten percent posts" of Stenographers Grade-I only in the pay scale of Rs.3000-4500 and accordingly under the Government Resolution of Legal Department dated 19th November 1991, the recommendation of the High Court of Gujarat has been accepted and 10 % of the existing posts of Stenographers Grade-I came to be upgraded on the Establishment of the High Court and therefore, the petitioners were not justified in making a grievance that, they are not being treated at par with the Private Secretaries in the Government Secretariat. It was also pleaded and contended that, the demand of the pay scale of Rs.3000-4500 by all the Private Secretaries was not justified as only 10 % of the Private Secretaries of the Government Secretariat were getting the said pay scale and that too on the basis of the upgradation of 10% of the posts, which was done to open better avenues of promotion as recommended by the Fourth Central Pay Commission. It was also pleaded and urged by the State before the learned Single Judge that, an equal percentage of the posts of the Secretaries working at this High Court has been upgraded to the pay scale of Rs.3000-4500 as proposed by the High Court, and that, therefore, there did not appear to be a justification for the grievance made by the petitioners. It was also pleaded and urged by the State that, the scheme of higher pay scale by the interval of 9 years, 18 years and 27 years was also introduced, under which the incumbents would be entitled to higher pay scale in case of their stagnation. It was broadly on the basis of the above said say that the prayer of the petitioners in the two petitions came to be combated by the State. The Learned Single Judge, upon the consideration of various aspects, both factual and legal and upon a reference to the Delhi High Court pronouncement in Shri. P.N. Chopra And Ors. Vs. Union of India & Ors. 1981 (2) S L R, Delhi, pg.102 and in A.K. Gulati and another Vs. Union of India and Others, 1991 (6) S L R, pg. 423 was pleased to allow both the petitions. The ultimate orders pronounced by the learned Single Judge have been indicated by us at the beginning. It requires to be appreciated that, in Special Civil Application No. 12921 of 1994 one Shri. C.G. Govindan came to be added as the Petitioner No.3 at a later juncture. It was his case before the Learned Single Judge that, if at all the higher pay scale as prayed for by the petitioners were to be granted to the Private Secretaries to the Judges of the High Court, and if the same is to be granted with effect from 1st January 1986, he should not be deprived of the benefit of such a decision which would place him in the pay scale of Rs.3000-4500 from January 01, 1986, merely because at that time he was working in the City Court at Ahmedabad and came to be appointed as a Private Secretary in the High Court only after 1990. It was also his contention that, the criteria of giving the pay scale of Rs.3000-4500 to the Private Secretaries working with the Officers drawing pay scale of Rs.8000-00 was not correct, and that all the Private Secretaries whether attached with the Officers drawing the pay scale of Rs.8000-00 or not, should be given the higher pay scale of Rs.3000-4500. Learned Single Judge was pleased not to recognise the case of the newly added Petitioner No.3, by saying that, the said petitioner cannot be allowed to travel beyond the scope of the original Petition and that, the petitioner would not be entitled to such a higher pay scale with effect from 1st January,1986, because he came to be born as a Private Secretary on the cadre of the High Court only in or after year 1990. The State feels aggrieved by the orders of allowing the Petitions and therefore, they have filed the two Letters Patent Appeals indicated above. Shri. C.G.Govindan has filed the Letters Patent Appeal No. 441 of 1995, as he feels aggrieved with the above said orders of the Learned Single Judge. We have heard these three Appeals together and they shall stand decided and disposed of by the present Common Orders. Learned Government Counsel Mr. Mahendra Anand appearing on behalf of the Appellant State in two Letters Patent Appeals has urged that, the Learned Single Judge has erred in placing reliance upon the two aforementioned decisions, as the said decisions are the decisions on facts and that, the fact situation there is entirely different from the fact situation obtaining at the High Court of Gujarat. It is the contention of the learned counsel for the appellants that, the principle of Equal Pay for Equal Work could not have been invoked in the facts & circumstances of the case before the learned Single Judge, because 10 % of the Private Secretaries working in the Secretariat of the State of Gujarat have been upgraded by way of promotion and have been made entitled to the higher pay scale. It was also the contention coming from the learned Government Counsel, that the High Court through the Hon'ble Acting Chief Justice, at the relevant time, had also asked for a similar position, namely the upgradation of only 10% of the Private Secretaries to the High Court in the said pay scale and that, the same has been done. Learned Government Counsel therefore urges that, the Letters Patent Appeals filed by the State require to be allowed, and the orders under challenge require to be set aside and the petitions of the petitioners require to be dismissed. As against this, learned counsel for the Respondents-Original Petitioners Mr. S.B. Vakil has urged that, no exception can be taken with the conclusion arrived at and the reasoning adopted by the learned Single Judge, because it is an accepted principle in Service Parlance that the employees would be entitled to Equal Pay For Equal Work. In the submissions of the learned counsel, the equality should be De Facto Equality and should stand apart in contra-distinction to the so called De Jure Inequality. Mr. Vakil urges with vehemence that, the work being rendered by the Private Secretaries to the Hon'ble Judges of the High Court of Gujarat, cannot be said to be less arduous either in industry or skill than that of the Private Secretaries attached to certain Officers in the State Secretariat. According to Mr. Vakil, the 10 % and 15 years criteria appear to be artificial and that, the basic criteria would be whether a particular Private Secretary puts in equal work when he is attached to a dignitary drawing the basic salary of Rs.8000-00 per month or not. In the submissions of Mr. Vakil, the claim of the petitioners could not be derecognised only on the ground of the said artificial criteria of 10 % and 15 years. Mr. D.R. Bhatt, learned counsel for the appellant Shri. C.G. Govindan in Letters Patent Appeal No. 441 of 1995 has urged that, the learned Single Judge was at an error in coming to the conclusion that, the prayer made by the appellant in the petition could not be accorded to him. According to Mr. Bhatt, if the other Private Secretaries working at the High Court and/or to the Hon'ble Judges are to be given the benefit of the enhanced pay scale, the appellant should also get it retrospectively because he could not be deprived of the benefit, on the artificial ground that at the relevant time he was not born on the cadre of the Private Secretaries in the High Court. To these contentions coming from learned counsel Mr. Bhatt, the response of the learned Government Counsel Mr. Anand is that, at any rate the appellant before us is not entitled to any relief whatsoever. Before proceeding to examine and analyze the above said rival contentions it would, in our opinion, be profitable to visualise the Constitutional position and