Allahabad High Court
Class Iv Employees Association, High ... vs State Of U.P. And Ors. on 6 February, 1998
Equivalent citations: (1998)2UPLBEC1059
Author: O.P. Garg
Bench: O.P. Garg
JUDGMENT O.P. Garg, J.
1. With a view to espouse the cause and vindicate the grievances of its members, the Class IV Employees Association of High Court of Judicature at Allahabad and its Secretary, Manbodh Yadav, have knocked the doors of this Court in inordinate and compelling circumstances by filing the present petition under Article 226 of the Constitution of Indian to mandate the State Government of Uttar Pradesh not to back out from its commitment made and resolution adopted to accord post to post parity-in the matter of grant of pay scales which are admissible to their counterparts in Delhi High Court, w.e.f. 1.1.1986.
2. In its historical retrospect, the employees of this Court were always treated as inferior to the employees of the State Secretariat in the matter of pay scales. It was only in the year 1968 that, to ameliorate, to some extent the conditions of the employees of this Court, there was revision in the pay structure and it was brought at par with the staff of the State Secretariat. There was general unrest in the employees of the various departments of the State. They were agitating for the grant of pay parity with their counter parts in the Central Government as there was vast disparity in the pay scales of the employees of the State Government and the Central Government. Ultimately, the State Government succumbed to the pressure of the State employees and for the first time in the year 1988, took a policy decision that w.e.f. 1.1.1986, the State employees shall be paid the pay scales of Central Government on corresponding posts. It appears that certain difficulties arose to equate the various posts as being equivalent to each other and consequently, the State Government adopted a resolution known as Sankalp Sankhya Ve-A-1-3243/Dus-84(MO)-88, dated 14.10.1988 whereby an Equivalence Committee was constituted. The report of the Committee was accepted by the State Government and the pay scales admissible to the Central Government employees were made admissible to the State Government employees holding the corresponding posts w.e.f. 1.1.1986 as was envisaged by Adhyaya 2, Adhikar Adesh, at page 3 of the Report of Equivalence Committee, U.P. 1989-Part I. Chapter V of the report contains the modes and the methods by which the comparability of the post is to be devised. After all these exercise was undertaken, the State Government by order dated 30.6.1989 prescribed the pay scales for the posts manned by the officers and servants of this Court. The class IV employees were placed in two different categories of pay scales, firstly the then existing pay scale of Rs. 305-390 was enhanced and revised to Rs. 750-940 and secondly, the earlier pay scale of Rs. 315-440 was revised to Rs. 775-1025. Peons, Helpers, Farrash, Chaukidars, Sweepers, Electricians, Watermen and Liftmen fall in the pay scale of Rs. 750-940 while Jamadars, Daftarees, Bundle Litters, Head Malis, Photocopiers, Machine Operators have been placed in the pay scale of Rs. 750-1025. The grievance of the petitioners is that they have been discriminated in the matter of providing post to post parity inasmuch as, their counter parts in Delhi High Court are getting much higher pay scales. In substance, the case of the petitioners is that they are entitled to the pay scales (i) Rs. 975-1660 and (ii) Rs. 1000-1750, which are admissible to the class IV employees of Delhi High Court.
3. The petitioners made a representation dated 27th July, 1994 before the Hon'ble Chief Justice of the High Court, respondent No. 2, who after considering the matter, recommended the case of the petitioners for favourable consideration by the State Government but unfortunately, the State Government failed to take any decision in the matter.
4. A counter affidavit has been filed on behalf of the High Court and appearance has been put in through Sri S.M.A. Kazmi. High Court has supported the case of the petitioners by specifically mentioning that the Court on the administrative side has recommended the case of the petitioners to the State Government.
5. It was with great difficulty and after a number of stop orders that a counter affidavit could be obtained in the matter on behalf of the State Government-respondent No. 1. This writ petition was instituted in April, 1997. On 2nd May, 1997, the State was granted three weeks time to file counter affidavit. Thereafter, the case has been coming on Board from time to time but no effort was made to file a counter affidavit. Ultimately, the arguments were heard the judgment in the case was reserved. It was only after the case was reserved for judgment, the State filed a counter affidavit on 6.1.1998 which was taken on record and time was allowed to the petitioners to file rejoinder affidavit, which they were filed. Sri Sudhir Agarwal, learned Counsel for the petitioners, Sri S.M.A. Kazmi, learned Counsel for the High Court, and the learned Standing Counsel on behalf of the State were heard again at considerable length.
6. Refuting the claim of the petitioners, the State Government has taken the stand that the controversy raised in the present petition falls outside the domain of this Court and no mandamus of the nature as prayed for can be issued against the State Government for one simple reason that a Pay Committee presided over by J.L. Bajaj has been constituted and it is examining the matter and the proper remedy for the petitioners is to approach the said Committee for ventilation of their grievance; it is also alleged since the matter falls within the domain of the Expert Body, this Court should be slow enough to interfere. According to the State Government, if the prayer of the petitioners is acceded to, the entire pay structure would collapse and hierarchal distinction would be rendered illusory. It is asserted that the petitioners in the event of their success would become eligible to get the scale of pay which would be higher to the employees of the class III cadre of the Court and to which cadre class IV employees are also a feeding source; other employees of this Court, as well as of other departments would stand in arms to press their demand for higher pay scales which would have serious repurcussions on the public exchequer. It is also pleaded that the petitioners are getting much more benefits in the form of other allowances, which are not admissible to other employees. It has also been made clear that the pay scales of class IV employees of this Court are equivalent to that of State Secretariat staff.
7. Sri Sudhir Agarwal, learned Counsel for the petitioners vehemently urged that the petitioners are the victim of the biased approach of the State Government, which has not considered the status of the employees of this Court at par with the Central Government employees. It was maintained that the State Government is consciously making a discrimination in the matter of conditions of service involving financial burden of the employees of this Court without appreciating the fact that the Judiciary is one of the pillars 6i the State functionary which discharges one of the essential functions of the State, i.e., dispensation of justice. In support of this contention learned Counsel placed reliance on a number of decisions of the Apex Court as well as of this Court, which are to be discussed presently.
8. Fight for right is the root cause of conflict paving the way of litigation after litigation. Not because of persistence of interpretative complexities but on account of indifferent and appatethic attitude of the State Government in the matter of emoluments, the Judiciary has been in nightmare. Not only this Court but the Apex Court and the various other High Courts have been dealing with and deciding petitions after petitions from the officers and employees of various Courts of the country. Their grievance has been that they are discriminated in the matter of pay and allowances. This is precisely the content of the present writ petition in the wake of the half hearted defence of the State. The founding fathers of Constitution of India, foresighted, as they were, visualised the situation. The debates of the Constituent Assembly on the point make an interesting reading. A short and swift reference to the debate pertaining to Article 146 (Draft Article 122) is relevant. This Article deals with the officers and servants and expenses of the Supreme Court. Article 229 which governs the matters of pay scales and allowances of the officers and servants of the High Court is in parimateria with Article 146. The thoughts expressed in the debate concerning draft Article 122 are relevant to know about the back drop of Article 229 also. The draft Article 122 as it originally read, in sub-clause (2), provided that the salaries, allowances and pensions payable to, or in respect of such officers and servants shall be fixed by the Chief Justice of India, in consultation with the President. This word 'consultation' in the draft proviso was sought to be substituted by way of amendment by the word 'approval'. Some of the Hon'ble members supported the amendment. The theme was that so far as the staff of the High Court is concerned, the Chief Justice will have the primacy but the staff of the High Court should not March ahead of the other civil service in the State. Sri T.T. Krishnamachari said thus :-
"In actual practive, it is better for all these bodies (Auditor General, Union Public Service Commission, Speaker, President) to more or less fall in line with the regulations that obtain in matters of recruitment to the public services, conditions of promotion and salaries paid to the staff...."
Sri M. Ananthasayanam Ayyangar, who opposed the amendment was of the view that this will adversely affect the independence of judiciary and also the administration of justice and the Chief Justice will be subordinated to the concerned Minister or the Secretary. Pandit Thakur Das Bhargava said "The demand for the addition of these word 'approval' in place of 'consultation' betrays a fear that the judiciary might increase to such an extent the salaries of its employees as may not be acceptable to the Government. But I can say that similar apprehensions may be expressed by the officers of the judiciary with regard to the use of his powers by the President." However, Sri Krishna Chandra Sharma chose a middle path and said :-
"Necessarily the same type of work with the same capacity, ability and qualification should carry similar salaries, allowances, pensions and other emoluments...."
The divergent views expressed by the members of the Constituent Assembly were reconciled by Dr. B.R. Ambedkar by remarking as follows :-
".....The only point of differences seem to be on the proviso to clause (2)......It is undoubtedly a desirable thing that salaries, allowances and pensions payable to servants of the State should be uniform and there ought not to be material variations in these matters with regard to civil service. It is likely to create a great deal of heart-burning and might impose upon the treasury an unnecessary burden. Now, if you leave the matter to the Chief Justice to decide, it is quite conceivable that the Chief Justice might fix salaries scales of allowances, pensions-very different from those fixed for civil servants who are working in other departments, besides the judiciary and I do not think that such a state of thing is a desirable thing...."
Ultimately, the draft Article stood amended that the word 'consultation' was substituted by the expression 'approval'.
9. Thus, from the debates and discussions in Constituent Assembly regarding Articles 146 and 229 of the Constitution of India, it is apparent that there was consensus of opinion that there should be uniformity in the salaries, allowances and pensions payable to the servants of the State as well as the Staff of High Court and there ought not to be material variations. It is now in this context that the provisions of Articles 229 which is the fulcrum of the scheme of Chapter V of the Constitution of India be analysed.
10. Article 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of High Court, by Rules, on the Chief Justice of the High Court. It is not subject to any legislation of the State legislature except only in respect of the conditions of service. In the matter of a appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Article 229(1). The approval of the Governor is confined only to such rule, as relates to salaries, allowances, leave or pension. This is because the finances have to be provided by the Government. All other Rules in respect of conditions of service do not require his approval. The powers of the Chief Justice under Article 229 came up for consideration before Supreme Court in M. Gurumoorthy v. Accountant General, Assam and Nagaland, AIR 1971 SC 1850. In the context of Article 229, Grover, J speaking for the Court, neatly summed up the position, which being apposite to the point under consideration may be extracted as follows :-
"The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the Supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. This is essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judges of the High Court nor can the amount of any expenditure so charged by varied even by the legislature. Clause (1) read with clause (2) of Article 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State legislature but only in respect of conditions of service. In the matter of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (1),. The approval of the Governor, as noticed in the matter of Rules, is confined only to such Rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval......."
The matter again came to be considered by the Supreme Court in Chief Justice, Andhra Pradesh v. L.V.A. Diksthitulu, A.I.R. 1979 SC 193 in which it was observed that in shortm in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement, etc. including the power to prescribe their conditions of service, the sole preserve of the Chief Justice and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice of his nominee, except to a very limited extent indicated in the proviso. In conferring such extreme and Supreme Power in the Chief Justice the object was to ensure independence of the High Court. In sum, the Supreme Court found that, the entire scheme of Chapter V and VI in Part VI epitomised in Articles 229 and 235 has been assiduously designed to ensure independence of the judiciary.
11. The learned Standing Counsel pointed out that approval of the Governor is necessary insofar as the matter relates to salaries, allowances, leave or pension of the employees of this Court and that in the absence of approval, as required in, proviso to sub-clause (2) to Article 229, this Court would not be justified in issuing a writ of mandamus for the acceptable of the recommendations made by the Chief Justice. This submission appears to be founded on the decision of the Supreme Court in State of Andhra Pradesh and Anr. v. T. Gopal Krishnamurti and Ors., AIR 1976 SC 123, in which it was observed that if the rules made under clause (2) of Article 229 relate to salaries, allowances or pension, then since in them is involved the question of finance, the framing of the Rules requires the approval of the Governor, that means the State Government. One should except in the fitness of things and in view of spirit of Articles 229 that ordinarily and generally approval should be accorded. But surely, it is wrong to say that the approval is a mere formality and in no case, it is open to the Government to refuse to accord their approval. On the facts and in the circumstances of the case, as well as in the background of the conditions, which are prevalent in other states, the Government should have been well advised to accord approval to the suggestion of the Chief Justice. The Supreme Court went on to observe that it is however not possible to take the view that merely because the State Government does not see its way to give the required approval, it will justify he issuance of writ of mandamus under Article 226 of the Constitution as if the refusal of the State Government was ultra vires or mala fide and arbitrary. Sri Sudhir Agarwal, learned Counsel for the petitioners, in response to the above submission of the learned Standing Counsel, urged that in the instant case, where is the question of seeking the 'approval' of the Governor? It was urged that as a matter of fact it is a case in which no approval is required to be sought in view of the commitment, resolutions and the decisions already made, adopted and taken by the State Government. The learned Counsel pointed out that it is a case where the petitioners are simply seeking to enforce the decision already taken by the Government and the benefit of which has been denied to the petitioners on certain illusory and non-existent grounds. This aspect of the controversy requires unearthing of certain hidden facts.
12. The staff of various High Courts were continued to be denied parity with the respective State Secretariat staff. Way back in 1957, this burning topic was discussed in the Chief Justices, Conference. However, no decision could be taken and, hence again in 1962, the matter was discussed. It was included in item No. 11 of the agenda of the meeting. The following resolution was passed by the Chief Justices, Conference held in Bombay in 1962 :-
"The Conference took note of the fact that all the posts on the staff of the Supreme Court have been equated with the corresponding posts in the Secretariat of the Government of India. It was, therefore, decided that the same should be applied to the employees of the High Courts, vis-a-vis the corresponding State Secretariat."
Thus, in principle it was decided that the employees of every High Court will be equated with the corresponding posts in the Secretariat of the State concerned. The State of U.P. also agreed to grant parity in the pay scales and allowances to the staff of this Court with the staff of Secretariat at Lucknow by its order dated 20.3.1968.
13. There was all pervading dissatisfaction amongst the employees of the various departments of the State Government and they resorted to agitatioins to get their persistent demand for pay parity with the Central Government employees. The State Government adopted a resolution (Sankalpa) on 14.10.1988 to grant parity in the pay scales to the State Government employees with the Central Government employees and this decision of the State Government was to take effect restrospectively from 1.1.1986. As said above, certain difficulties arose in comparing the different posts and to provide corresponding pay scales. To resolve the matter, an Equivalence Committee was constituted and the main task entrusted to the Equivalence Committee was to decide the comparability of the existing posts of the Central Government and their pay scales which may be made admissible to the corresponding posts in the State Government. The Equivalence Committee went deep into the matter and made all pervasive recommendations, about the comparability of the posts which are contained in Chapter V of the Report of the Committee (Annexure-2 to the writ petition). For the purpose of the revision of the pay scales, the posts have been categorised under two heads; firstly, such posts equivalent of which are existing in the Central Government and secondly, such posts of which no equivalent posts are in existence in the Central Government. There was no difficulty about the determination and revision of the pay scales of the first category of the posts. The difficulty arose only in regard to those posts, the equivalent of which was not available in the Central Government, and, therefore, the Committee in para 5.4 (2) made the provision that in case equivalent post is found in the Union Territory, the pay scale of that post be kept in view while arriving at the comparability of the, pay scale. Obviously, some of the posts in class IV cadre of this Court are not available in the various departments of the Central Government and, therefore, it became difficult to compare and determine post to post parity. In view of the provisions contained in para 5.4 (2) of the Report, it was urged that the pay scales of class IV employees available in Delhi High Court, which is located in the Union Territory of Delhi would provide a surer foundation for fixing the pay scales of class IV employees of this Court. In view of the above facts, the claim of the petitioners for parity in pay with their counterparts in Delhi High Court cannot be said to be unreasonable or unfounded.
14. On behalf of the petitioners, reliance was placed on the decision of the Delhi High Court in writ petition No. 3464 of 1990, Madan Lal v. Registrar, Delhi High Court and Ors., decided on 4.11.1991, a copy of which is Annexure 4 to the writ petition and the subsequent order dated 10.12.1993 of the Delhi High Court in the same case, Annexure 5 to the writ petition. The result of the Decision in Madan Lal's case, has been that the class IV employees of Delhi High Court have been allowed two separate pay scales-(i) Rs. 975-1660 and (ii) Rs. 1000-1750. It is these pay scales which the petitioners are claiming on the basis of the decision of the State Government that the employee of the High Court are also entitled to post to post parity with Central Government employees and if the equivalent post is not available in the various departments of the Central Government Secretariat, the parity shall be made available with reference to the post, which is available in the Union Territory.
15. An identical situation arose in the case of Private Secretaries and Personal Assistants Brotherhood, High Court, Allahabad and Anr. v. State of U.P. and Ors., 1994 HVD (Alld) Vol. I, P.159 (hereinafter referred to as 'the PSPAS case) decided by a Division Bench of this Court on 21.12.1993. In that case, the Private Secretaries and Personal Assistant of this Court claimed post to post parity in the matter of pay scales with their counterparts in the Delhi High Court by placing reliance on the decision dated 7.5.1991 in writ petition No. 289 of 1991, A.K. Gulati and Anr. v. Union of India and Ors. All the similar arguments, as have been raised by the State Government in the present petition, were canvassed in the PSPAS case. It was held that whenever pay scales are revised, similarly situated employees automatically get the benefit of the same and there is no question of Governor's approval for one simple reason that the Government of Uttar Pradesh itself had taken the policy decision vide Adhyay 2, Adhikari Adesh on page 3 of the Report of the Equivalence Committee, U.P. 1989 part-I to pay central pay scales and granted Central pay scales to the staff of the High Court with the approval of the Governor. This decision, which has been upheld by Supreme Court, is virtually a complete answer to the various submissions made on behalf of the State Government in the present petition. It is, however, necessary to deal with certain points raised on behalf of the State.
16. On behalf of the State Government it was submitted that the proper course for the petitioners is to approach J.L. Bajaj Pay Committee, which has been constituted by the State Government for reviewing the various pay scales of the State Government employees. It was pointed out that the Pay Committee is the expert body and since it is seized of the matter, the grievance oft he petitioners may properly be sifted and ventilated by the said body. In short, the submission of the learned Standing Counsel is that the Pay Commission goes into the problem at great depth and happens to have a full picture before it and, therefore, it is the proper authority to decide upon the issue. According to the learned Counsel, it is not within the province or even competence of this Court to venture into such 'exclusive thickets' to discover ways out when the matters are appropriately left to the wise experts of immense experience. It is true that equation of post and equation of salaries is a complex matter, which is best left on expert body unless there is a cogent material on record to come to a firm conclusion that grave error has crept in while fixing the pay scale for a given post an Court's interference is absolutely necessary to undo the injustice. Job evaluation is both difficult and time consuming task. This calls for a constant study of the external comparisions and material relatives on account of the changing nature of job requirements. It is for this reason that it is said that carefully evolved, pay structure ought not to be ordinarily disturbed as it may upset the balance and cause ripples in other cadres as well. This aspect of the matter was considered by the Supreme Court also in the case of Secretary, Finance Department v. West Bengal Registration Service Association, 1993 Suppl. (1) SCC 153. It was held that Court has jurisdiction and the aggrieved employees have a remedy only if they are unjustly treated by arbitrary state action of inaction. Therefore, it cannot be said that the controversy raised in the present petition is completely outside the domain of this Court. It would be apposite to quote the following observations of the Supreme Court in Randhir Singh v. Union of India and Ors., A.I.R. 1982 SC 879 :-
"If is true that equation of posts and equation of pay are matters primarily for the executive Government and expert bodies like the Pay Commission and not for Courts but where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same."
The law laid down in Randhir Singh's case (supra), is firm and stout; it still holds the field. Even in PSPAS case (supra), the Division Bench of this Court took immaculate care to compare, equate and decide that the posts of Private Secretaries attached to Hon'ble Judges of this Court are equivalent to the post of Private Secretary to the Secretary to Government of India, or Private Secretary to Hon'ble Judge of Delhi High Court.
17. Now the next question to be determined in the present petition is as to who has to decide about the equation of the post and equalization of the salaries and scales of pay which may be admissible to the petitioners. The service conditions of the staff of the High Court are governed by 'The Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rule, 1976 (hereinafter referred to as 'the Rules of 1976'), Rule 36 of the Rules of 1976 provides for pay which is admissible to various categories of posts in the establishment of High Court and Rule 40 (3) of the Rules of 1976 confers power upon the Chief Justice of this Court to decide the equivalence of the post in the establishment of the High Court with the posts in the State Government. For ready reference, extracts of Rule 36 and Rule 40 (3) of Rules of 1976 are quoted below :-
"36. Pay-The scales of pay admissible to persons appointed to the various categories of posts in the establishment, whether in a substantive or officiating capacity or as a temporary measure shall be such as may be determined by the Chief Justice from time to time with the approval of the Governor of U.P."
.....
40. (1).....
(2) .....
(3) if any doubt arises in regard to a particular post in the establishment being corresponding to a post in the State Government the matter will be decided by the Chief Justice."
There are many factors which have to be taken into consideration while equating two types of posts. It was only in this view of the matter that a Division Bench of this Court in Civil Misc. Writ No. 20550 of 1995 in the case of Bench Secretaries of this Court referred the matter regarding determination of equality of the Bench Secretaries of this Court and that of the Delhi High Court, for decision of the Hon'ble Chief Justice. After the decision in PSPAS. case (supra), the petitioner made representation to the Hon'ble Chief Justice of this Court. A copy of the representation dated 27.7.1994 is contained in Annexure 9 to this writ petition. On the strength of judgment of Delhi High Court in Madan Lal's case (supra), in identical situation, the petitioners claimed the pay scales as are admissible to the class IV employees of Delhi High Court. This representation of the petitioners was examined at the Registrar level of this Court and the Hon'ble Chief justice, agreeing with the petitioners, directed the Registrar of the Court to seek approval of the State Government for the grant of the pay scales to the petitioners as are admissible to the class IV employees of the Delhi High Court. The letter of the Registrar sent to the State Government in the month of September, 1994 is Annexure 10 to this writ petition. The employees of this Court perform no less onerous and arduous duties than their counterparts in Delhi High Court. The recommendations made by the Hon'ble Chief Justice could not lightly be brushed aside or ignored by the State Government. The majesty of the high office which the Chief Justice holds should be beyond the high watermark of any controversy and cannot be allowed to suffer. The staff of the High Court is under the protective umbrella of the Chief Justice. Officers and servants of this Court, though in a strict sense, may be Government servants but they are positioned in entirly different circumstances and free from the control of the Government. Their Service Conditions are regulated by the Chief Justice. They are recruited under the Rules framed by the Chief Justice and they cannot be transferred from High Court to any other department of the Government. The control over them is vested in the Hon'ble Chief Justice and this Control as said above, under Article 229 of the Constitution, is exclusive and not dual in nature, comprehensive in extent, and effectvat in operation. In short, the control of the Chief Justice is deep and all pervasive in all the matters except for a very limited purposes indicated above. The idea which inspired the constitutional provisions is that the Judiciary should be independent of the executive. To effectuate this purpose, all matters relating to service conditions are in the exclusive hands of the Hon'ble Chief Justice.
18. As I see, the controversy is linked with the independence of judiciary. Independence of judiciary which is an essential and vital ingredient of our legal system and the treat-by denying the legitimate claims at the whims and caprice of the executive-constitutes a major in road in that sphere. The concept of independence of judiciary is not limited or restricted only to the Judges who . man the Courts. The officers and servants of the High Courts are the integral, inseperable and inter-woven part of the entire fabric of the judiciary. No Judge can perform the judicial function, or say, the administration of justice is not possible unless there is active participation of the officers and the servants of the High Courts. It is for this reason, that even the independence of the officers and servants of the High Court has been ensured by making a special provision in Article 229 of the Constitution .While dealing with the question whether the Hon'ble Chief Justice could pass an order of dismissal without the previous consultation with the Public Service Commission, as provided by Article 320 of the Constitution, the Supreme Court in Pradyat Kumar Bose v. Hon'ble, the Chief Justice, Calcutta, A.I.R. 1966 SC 285, pointed out that the members of the High Court staff are not 'persons serving under the Government of a State' a phrase used in Article 320(3)(c) of the Constitution. The officers and servants who are doing work in connection with administration of justice are not officers servants who can be transferred to the executive side or to other department and it is essential that the cadre of such officers and servants who are associated with the administration of justice should have undiluted loyalty to the judiciary which it serves. Though the Judges are most visible actors in the administration of justice and their decisions are most publicly visible, the importance of the officers and the servants of the High Court cannot be undermined or overlooked. It is for all these reasons that even the staff of the High Court has been well insulated from the executive influence. On the coordination of the judiciary as a whole, depends our future, our liberty and every other thing which we want to develop. People rely on the judiciary because it is independent; they have confidence because it acts in a free, fair and impartial atmosphere. If the establishment of the judiciary has to look for preferment or for other previleges towards certain outside quarters including the executive, it is likely to sap the independence of judiciary. Therefore, unless the judiciary has sufficient control over its own establishment, its independence may become illusory. The society expects that the justice delivery system, of which staff members are a part, must be neat and clean. They must be men of high integrity, honesty and of moral vigour, ethical fairness and impervious to corrupt or venial influences. They are required to keep most exacting standard of propriety in the discharge of their duties. Any conduct which tends to besmear public confidence in the integrity and impartiality of the Court would be deleterious to the efficiency of judicial process. It is, therefore, basic requirement that the personal conduct of the officers and servants of the Court is free from impropriety; the same must be in tune with the high standards of probity. One cannot but imagine the difficulties of the Court staff and the constaints under which they work. Suffice it to say, Judicial Office, which include the office occupied by various staff members, is essentially a public trust and the credibility of the system has to be maintained at all costs.
19. The Hon'ble Justice is the highest functionary in the state on the judicial side. He is the head and heart of the judicial system at the State level. The proposal submitted by the Hon'ble Chief Justice to the Government, though as said above, did not require approval in view of the decision of PSPAS case (supra), has the imprimatur of the highest judicial authority of the State. It is backed with the judicial pronouncement and it was expected that the impartiality of the recommendations would have weighted without the State Government in the ordinary course. It was possible to obliterate the distinction in the matter of pay scales between the class IV employees of this Court and their counter parts in the Delhi High Court. There did not seem to be any good and justifiable reason for continuing and maintaining the distinction. The petitioners have been the silent sufferers. They belong to a disciplined service. They are comparatively well behaved, courteous, and dutyful. They do not indulge in the rowdyism or resort to strikes. The agitational methods are unknown to them. It is enough that their mentor, i.e., the Hon'ble Chief Justice under whose protection they are serving, recommends their case. It is pity and painful to note that the State Government not only failed to take a decision in the matter but exhibited a sense of callous indifference and adopted an apathetic attitude. After all, the petitioners-hard pressed as they are-are clamouring not for buttered leaves but only for their bere livelihood and means to make their both ends meet. The State, therefore, cannot be permitted to raise a demagogic slogan, as contained in their belated counter affidavit that the grievance of the petitioners may be well looked into and considered by J.L. Bajaj Committee. This suggestion neither consoles nor provides succour to any hard hit employee. The petitioners cannot be treated as the merest microbe in the mighty organism of the State, a little clog in a giant wheel. In my view, the petitioners, petty howsoever, they may be, in their status, work as excel a round which the giant wheel of justice rotates. They are seeking the interference of this Court with touching faith and confidence in Court. A Judge of this Court, has the duty to redeem my constitutional oath and do justice no less to the class IV employees than to the high and the mighty. The glory of our constitution is that it enables the petitioners to directly approach this Court for redressal of their grievance if the State is not prepared to take notice of the recommendation of the highest judicial functionary of the State. It cannot be said that this Court has no power to issue a mandamus. On earlier occasions, as and when the necessity arose, this Court has risen to the occasion and has issued mandamus to the State in the similar situations. In other High Courts also, mandamus of the type claimed by the petitioners, has been granted as would be evident from the decision of the Delhi High Court in the case of A.K. Gulati (supra) and Madan Lal (supra), as well as the decisions of this Court in PSPAS case (supra), J.P. Upadhayay v. State of U.P. and Ors., Civil Misc. Writ No. 643 of 1983, Lucknow Bench decided on 31.3.1986 and Nisthith Verma and Ors. v. State of U.P. and Ors., Civil Misc. Writ No. 2117 of 1987, decided on 26.2.1988.
20. From the above discussions, it is well established that the decision of Hon'ble the Chief Justice under Rule 40 (3) of Rules of 1976 is final, insofar as, it relates to the equivalence between different posts. This determination by Hon'ble the Chief Justice is not subject to any interference by Government unless some other provision of the Constitution has been violated by him. Certainly the Government cannot interfere with the determination made by Hon'ble the Chief Justice. The seemingly innocuous act of the State Government, i.e. executive in not according approval, which for the reasons stated above, was not necessary to be sought, as held in PAPAS case (supra), amounts to a potential threat to the independence of judiciary. All such attempts of eroding the independence of judiciary have to be thwarted.
21. Now, at this juncture, it would be worthwhile to make a reference to the three decisions relied upon by learned Standing Counsel on behalf of the State. They are, Union of India v. S.K. Sareen, J.T. 1997 (8) SC 410 : (1997) 3 UPLBEC 2131 (SC), Union of India and Ors. v. P.V. Hartharan and Ors., JT 1997 (3) SC 569 and State of U.P. and Ors. v. Ministerial Karmachari Sangh, J.T. 1997 (8) SC 415: (1997) 3 UPLBEC 2125 (SC). I have thoroughly scrutinised the facts and circumstances of the aforesaid three cases, in which various observations of the Supreme Court came to be made. In all these three cases, the question of 'equal pay for equal work', fixation of pay scales, and categorisation of employees came to be raised and on facts it was held that pronafile of 'equal pay for equal work" cannot be involved and the High Court, or the Tribunal was not justified in embarking upon the enquiry, which was outside its domain. These three decisions are not germane to the controversy in hand for one simple reason that as a matter of fact no policy decision is to be taken by the Government as in view of the previous commitment made, and, resolutions adopted in favour of the State Government employees by the Government of Uttar Pradesh. The simple question in the present petition is about the implementation of those resolutions and commitments and the hostile discrimination, if any, to which the petitioners have been subjected by not granting post to post parity as is available to their counter parts in the Delhi High Court. If there is abrasion, there should be some solution, which can be arrived at by the Court.
22. A passing reference may be made to another submission on behalf of the State that in case the petitioners are granted pay scales as are admissible to their counter parts in Delhi High Court, they will surpass the pay scales, which is presently admissible to the class II employees, who are recruited under Rule 8 of Rules of 1976 and to which post, promotions are made from class IV cadre. In short, the submission is that the scale of pay of that post, to which the class IV employees claim promotion would be lesser than the pay scale of class IV employees, which would become higher if the relief claimed by the petitioner is granted.
23. So far as the present petitioners are concerned, undoubtedly they are class IV employees. Rule 4 of the Rules of 1976 deals with the recruitment to class IV posts in the establishment of this Court. A perusal of Rule 4 shows that Peon, Fan-ash, Coolie, Bhisti, Sweeper, Mali, Fireman, Chawkidar and Liftman are appointed by direct recruitment. Jamadar and Daftari are promotional posts. Jamadar is appointed by promotion of Peons and Daftari by promotion of Peons Farrashes and Liftmen. Bundle Liftness are promoted from Peons, Farrashes and Liftmen and the post of Head Mali is filled in from amongst the permanent Mails, provided a suitable person is available, otherwise, by Direct recruitment of a person possessing requisite knowledge and experience of gardening and ability to supervise the work of Mails. Rules 5 prescribe academic qualifications. Peon and Farrash must possess the educational qualifications of class V pass whereas a candidate for recruitment to the post of Liftman must possess requisite knowledge and experience of running a lift apart from his being class V pass. For the posts of Coolie, Bhisti, Sweeper, Mali, Fireman and Chowkidar, no academic qualifications is prescribed. But, he should be a literate person. Similarly a candidate for the post of Mali must possess the requisite knowledge and experience of the work of a Mali. Knowledge of cycling is essential for the post of Peon.
24. True it is that the class IV employees have a promotional quota in class III cadre. So far as submission that if the relief claimed in this petition is grant, the pay scale of the petitioners will become equivalent (or even more) to the promotional post, is concerned, A.K. Gulati and another (supra) and PSPAS case (supra), give a complete answer to this submission. A similar argument was raised in A.K. Gulati's case. By granting pay scale of Rs. 3000-4500 (which was previously Rs. 2000-3500) the Private Secretaries of Delhi High Court were brought at par with the promotional post in Delhi High Court. The Court observed that mere grant of a particular pay scale will not amount to promotion. Similar is the situation is PAPAS case (supra), as well. Personal Assistants of this Court were in the pay scale of Rs. 1640-2900 and now, by virtue of decision of this Court in PSPAS case (supra), upheld by Apex Court, they are in the pay scale of Rs. 2000-3500, which scale is available to the Section Officers of this Court. Mere grant of pay scale has not resulted in their promotion. Private Secretaries of this Court were enjoying class II status under Rule 16 of Rules of 1976. Private Secretaries considered feeder cadre for promotion to the post of Deputy Registrar under Rule 20 of the Rules of 1976, which happens to be a class I post. Prior to the Revision of pay scales w.e.f. 1.1.1986, Deputy Registrar of this Court were in the pay scale of 1250-2050 while the Private Secretaries (Senior Scale) were in the pay scale of Rs. 1250-2050. Even then, the Private Secretaries constituted feeder cadre for promotion to the posts of Deputy Registrar. It is noteworthy that one post of Private Secretary was in the higher scale of pay, i.e., Rs. 1540-2200 (subsequently revised to Rs. 3700-5000) and even that post constituted feeder cadre for promotion to the post of Deputy Registrar. Therefore, this cannot be a ground to deprive the petitioners of their legitimate right. The contention is thoroughly misconceived and deserves rejection.
25. A mention was also made about the fact that the over all conditions of service of class IV employees of this Court are better than their counter parts in Delhi High Court, keeping in view the fact that they are getting a number of other allowances and privileges which otherwise are not admissible to other employees. This submission is also not acceptable since the matter of grant of special allowance or special pay is concluded by the decision of this Court in J.P. Upadhayay and Ors. v. State of U.P. and Ors., Writ Petition No. 643 of 1983, Lucknow Bench decided on 31.3.1986. It has now become final between the parties. No one, especially the respondent No. 1 State Government, has any right to go beyond the mandate in the said judgment. The Stage Government is bound by the said judgment and cannot deny the special allowance to the staff of this Court.
26. Insofar as other allowances, including the special allowance is concerned, a Division Bench of this Court in Nishith Varma and others (supra), issued a mandamus directing the State of UP. to maintain the parity in allowances in the same manner and style as stipulated for the State Government employees. Their Lordships Hon'ble1 B.N. Sapru, J. and Hon'ble R.S. Dhavan, J. further observed as follows:-
"..............This Court further hopes that the issue like would never be permitted to be raised by the State Government so that the employees who are not in Secretariat and are otherwise at par with such employees further get a feeling that as they are not part of the Secretariat they would be considered as second category State employees."
Therefore, from the aforementioned two decisions of this Court, it stands concluded that the staff of this Court is entitled to the same allowances in the existing pay scales, as are admissible to the State Government employees in the State Secretariat. The State Government cannot go beyond the mandate of the aforesaid two judgments, which still hold the field.
27. Moreover, in this case, the recommendation of Hon'ble the Chief Justice relates only to the salary (pay scales) of the petitioners. There was no claim by the petitioners relating to allowance and, Hon'ble the Chief Justice, in exercise of his power under Article 229 of the Constitution, has not considered the variation of the allowance nor any recommendation has been made by him relating to variation of the allowances. Therefore, the State Government, on its own, unless so requested/recommended to accord approval to the variation of the allowances, cannot usurp the power of Hon'ble the Chief Justice under Article 229 of the Constitution and Rule 40 (3) of the Rules of 1976, and vary any allowances admissible to the staff of the High Court.
28. To sum up, the controversy boils down the this; the petitioners are claiming equal treatment with other employees of the Central Government, inasmuch as they claim post to post parity with the Central Government employees in the Secretariat in the light of the decision of the State Government dated 14.10.1988 and the subsequent report of the Equivalence Committee of 1989. Since parity of post is not available in the Central Secretariat in view of para 5.4 (2) of the Report of the Equivalence Committee, the parity is to be reckoned with reference to the corresponding post in the Union Territory, Delhi High Court was, at the relevant point of time, in the Union Territory, of Delhi. Therefore, the only post to post parity, which the class IV employees of this Court could claim, would have been with their counter parts in the Delhi High Court. A policy decision was also taken by the State Government that as and when there is a revision of pay scales of the Central Government employees, its benefits shall also be available to the State Government employees. The pay scales of the counterparts of the petitioners in the Delhi High Court have been revised and enhanced in the light of the mandamus issued by Delhi High Court in Madan Lal's case (supra). The petitioners, therefore, made a representation for the revisions of their pay in keeping with the pay scales of class IV employees of Delhi High Court. The Hon'ble Chief Justice, after examining the matter, from all the angles as he is empowered under Rule 40 (3) of Rules of 1976, equalised the post of class IV employees of this court with that of the Delhi High Court. In all fairness, since burden was to go on the public exchequer, Hon'ble the Chief Justice thought it prudent to make a reference and to seek approval of the Governor, though on the judicial side, as said above, such an approval was not at all called for. State Government sat tight over the matter, perhaps on the as sumption that if the judiciary asks for something that ought not to be done. In the normal course, the recommendations of Hon'ble the Chief Justice, who happens to the highest functionary of the State on the judicial side, have to be respected and given due weight. In the instant case, unfortunately, the State Government did not find it proper even to extend the courtesy of sending a reply, one way or the State Government did not find it proper even to extend the courtesy of sending a reply, one way or the other. The right pleaded by the petitioners is not an abstract right. They are not claiming any special privilege for any particular class of servants of consideration do novo of the pay scales so that the matter has to go to the expert body like Pay Committee. There can be no dispute about the determination made by Hon'ble the Chief Justice under Rule 40 (3) of the Rules of 1976 that the class IV employees of this Court are performing the duties, which are, in any manner, inferior or distinct from the duties of the class IV employees of Delhi High Court. The petitioners were required to be treated, with all fairness, in the matter. The principles 'equal pay for equal work' between two sets of employees, if they are discharging similar functions but are getting different pay scales, is a facet of the principle of equality in the matter of employment guaranteed under Articles 14 and 16 of the Constitution of India. The right to equality can be claimed when there is a hostile discrimination by the State. In the instant case, the discrimination is writ large, inasmuch as, other employees have been given the benefits of the revised pay scales admissible in view of the report of the Equivalence Committee while the petitioners have been denied the same benefits for no justifiable reasons. The petitioners are not remedy-less. It is a constitutional goal capable of attainment through the constitutional remedies by enforcement of constitutional rights. It is of no relevance that the petitioners are getting certain benefits in the nature of allowances. Allowances, as said above, are given on particular considerations and to reimburse an employee to the extent he has been out of pocket on account of certain special requirements. The grant of allowances had nothing to do with the pay scales. The two categories of benefits should not be confused or mixed up. Therefore, independent of the allowances which the class IV employees of this Court are receiving, they are entitled to the same pay scales which are admissible to their counter parts in Delhi High Court.
29. In Madan Lal's case (supra), the Delhi High Court has granted the benefit of the revised pay scales to class IV employees with retrospective date and it has been generous enough in directing the State to pay interest on the arrears. Likewise, as matter of fact, I would have readily granted the relief of arrears also to the petitioner w.e.f. 1.1.86 in view of the declared policy of the Government, but for the fact that the petitioners were getting the salary equivalent to the staff of the State Secratariat and they raised the issue only in 1994 by making representation before Hon'ble the Chief Justice and slept over their rights for long six years. I feel, it would be just and proper and in the fitness of things that the petitioners should be granted the benefit w.e.f. 1.7.1994 of the revised pay scales, as claimed by them.
30. For the reasons stated above, present writ petition succeeds and is allowed. The respondents are hereby directed to pay salary in the pay scale of Rs. 975-1660 to all those class IV employees who are presently in the pay scale of Rs. 750-940 and the salary of Rs. 1000-1750 to all such class IV employees who are presently in the pay scale of Rs. 775-1025 without affecting, in any manner, the allowances which they are presently getting. The revised pay scales shall be made available to the class IV employees of this Court w.e.f. Ist July, 1994 (1.7.1994). The petitioners shall be paid the salary in the revised scales of pay, as said above, for the month of February payable on Ist March, 1998. So far as arrear part is concerned (w.e.f. 1.7.1994 to January, 1998 payable in February, 1998) the same shall be payable only after issuance of Government order in the light of directions contained in this judgment. Costs easy.