Gauhati High Court
Nandeswar Kalita And Ors. vs Registrar (Judicial) Gauhati High ... on 22 July, 2002
Equivalent citations: (2003)1GLR28
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. The appellants herein were the petitioners in Civil Rule No. 4538 of 1996 wherein they prayed for an appropriate Writ and/or direction against the official respondents to step up their basic pay to that of their juniors in the cadre of Stenographer Grade-I in service of this court at its principal Seat. The learned Single Judge by judgment and order dated 25.11.1998 has dismissed the writ petition. Being aggrieved, the writ petitioners have preferred this appeal.
2. We have heard Mr. D. K. Mishra, learned senior Advocate assisted by Mr. H. Roy and Mr. R. Agarwal, Advocates for the appellants as well as Mr. D. P. Chaliha, learned senior Advocate for the respondent Nos. Mr. B. K. Sarma, learned senior Advocate assisted by Mr. M. K. Choudhury, Advocate for the respondent Nos. 4 to 8 has also been heard.
3. The appellants had filed the above Civil Rule contending inter alia, that they were all serving as Grade-I Stenographers in this Court, having been appointed under the relevant Rules. The petitioner No. 1 after being initially appointed as Stenographer Grade-II, was temporarily appointed as Stenographer Grade-I by Notification dated 27.2.1982 and he joined as Stenographer Grade-I w.e.f. 1.3.1982. He was, thereafter, confirmed in the said post with effect from 1.3.1983 and, thereafter, was temporarily posted as Senior Grade Stenographer with effect from 10.12.1993. The petitioner Nos. 2, 4, 8, 9, 11 and 13 were appointed on various dates as Stenographer Grade-I in this court whereas, the petitioner Nos. 3, 5, 6, 7, 10 and 12 were initially appointed as Stenographer Grade-II and, thereafter, were promoted as Stenographer Grade-I on different dates. The respondent No. 5 was appointed as Grade-I Stenographer and, respondent Nos. 6, 7 and 8 were initially appointed in the Grade-II and, thereafter, were promoted as Grade-I Stenographers on various dates. The respondent No. 4 served as Stenographer Grade-I till 31.3.1982 whereafter, he resigned from service and joined the Bar. Subsequently, he again approached this court for being appointed in the service. Accordingly, by order dated 8.12.1984, he was appointed temporarily as Stenographer Grade - I in the scale of pay of Rs. 1125-1975 with effect from the date of assumption of charge. The appointment order clearly mentioned that his appointment was a fresh one and that he would not be entitled to any benefit of his past services. The respondent No. 4 accepting this stipulation contained in the said order of appointment, joined as Stenographer Grade-I on 2.4.1985 as a fresh appointee. However, later on, on the representation made by him, his pay was refixed by taking note of the services rendered by him prior to his resignation on 31.13.1982 and to that extent, the order of appointment dated 8.12.1984 was modified by an order dated 6.5.1986 passed by the then chief Justice of this Court. To have a birds eye view of the relevant service particulars of the petitioners and the respondent Nos. 4 to 8, it is profitable to extract hereinbelow a chart provided by the appellants-petitioners in the writ petition.
"1.
Height = 132 cm
2. Weight = 28 Kg
3. Teeth = 12 in uppar jaw 11 in lower jaw (one teeth in the lower jaw is broken)
4. Breast = not developed
5. Auxilary hair = absent
6. Pubic hair = absent
7. Vulva & vagina not fully developed
8. Abression on hymen .5 mm at the posterior aspect near forechettee from where slight bleeding present. No other violence mark present.
9. Visal swab for sparmatozowa No spermatozowa is seen in smear supplied."
It may be mentioned that as would be evident from the above, the particulars with regard to the basic pay are as in July, 1996 when the writ petition was filed.
4. The grievances of the appellants/petitioners as recorded in the writ petition are that though the respondent No. 4 was appointed as Stenographer Grade-I on 2.4.1985 as a fresh appointee, his basic pay eventually was fixed at Rs. 4450 per month, higher than the basic pay of the petitioner Nos. 1, 2 and 3 who were senior to him in service. With regard to respondent No. 5, the contention of the appellants-petitioners is that he was appointed as Stenographer Grade-I on 18.12.1986 and, therefore, was junior in the service in the said cadre to the appellants-petitioners 1, 2, 3, 4, 5. 6 and 7 but his basic pay had been fixed at Rs. 4450, higher than the basic pay of the aforesaid appellants-petitioners. Similarly, the respondent No. 6 who was initially appointed as Grade-II Stenographer and later on promoted as Stenographer Grade-I, on 14.11.1990 has been awarded a basic pay of Rs. 3655 per month, higher than the basic pay of the appellants-petitioners 4, 5, 6, 7, 8, 9 and 10 who are all senior to him in that grade. The grievance of the appellants/petitioners with regard to the respondent No. 7 is that he was initially appointed as Grade-II Stenographer and, thereafter, promoted as Stenographer Grade-I on 10.6.1991 and though the appellants-petitioners 4, 5, 6, 7, 8, 9, 10, 11 and 12 were all appointed before him in the grade of Stenographer Grade-I, his basic pay had been fixed at Rs. 3700, higher than that of theirs. Likewise, the basic pay of the respondent No. 8, who was initially appointed as Stenographer Grade II and was thereafter, promoted as Grade-I Stenographer on 9.7.1992, had been fixed at Rs. 3575 higher than that of the appellants-petitioners 6, 7, 8, 9, 10, 11, 12 and 13 who were all senior to him in the same grade.
5. The appellants-petitioners thus contended that the fixation of basic pay of the respondent Nos. 4 to 8 above that of theirs as indicated above, has resulted in hostile discrimination amongst persons similarly situated. According to them, the grant of higher basic pay to the respondent Nos. 4 to 8 is not based on any rational, reasonable or intelligible criteria and, therefore, is not sustainable in law. In the writ petition, the appellants-petitioners had mentioned about a memorandum dated 10.5.1983, issued by the Finance Department. Government of Assam to remove, a similar anomaly relating to drawing of higher pay by the juniors in service than their seniors. According to them, the same analogy applies in the present case and, therefore, they are entitled to have their pay stepped up to that of the respondent Nos. 4 to 8. They contended that as they perform the same work and shoulder the same responsibilities as these of respondent Nos. 4 to 8, the basic pay in the common cadre needs to be fixed on the basis of length of service of the incumbents and this not having been done, the fixation of higher basic pay in respect of respondent Nos. 4 to 8 is arbitrary and discriminatory to the great detriment and prejudice to the appellants-petitioners. They asserted that the higher basic pay granted to the respondent Nos. 4 to 8 is not because of any advance increment awarded to them on account of any higher qualification or better eligibility and, therefore, the action of providing them with higher basic pay by disregarding the longer tenure of service of the appellants-petitioners, is illegal, unfair and unjustified. According to them, the appellants-petitioners and the respondent Nos. 4 to 8 have been inducted in the cadre of Stenographer Grade-I of this court through same selection process with same eligibility criteria and, therefore, such a discriminatory treatment in the matter of fixation of basic pay cannot be countenanced in law. Such fixation of higher basic pay in favour of respondent Nos. 4 to 8, according to the appellants/petitioners, is not only violative of the principles of "equal pay for equal work" but also has resulted in infringement of their rights guaranteed under Article 14, 16 and 39(d) of the constitution of India. Further grievance of the appellants-petitioners is that they had submitted several representations before the chief Justice of this Court pointing out the above, requesting for stepping up of their pay to the level of their respective junior colleagues but, inspite of verbal assurances, no appropriate steps were taken to redress their grievances.
6. The appellants-petitioners, therefore, in the writ petition prayed for an appropriate Writ to direct the official respondents to step up their basic pay as hereunder :
Appellants/Petitioners To that of Respondents P1 .2 .3 ....
R4 P4. 5 .6.
....
R5. 6. 7 P8. 9. 10 ....
R7 P11. 12.
....
R7 P13 ....
R8
7. The respondent No. 1, Registrar (Judicial), Gauhati High Court, Guwahati in his affidavit refuted the contentions raised on behalf of the appellants-petitioners regarding illegality, unfairness and discrimination in the matter of fixation of their pay. The affidavit discloses that the stand of the Registry of this court is that the pay of the appellants-petitioners was fixed in accordance with the relevant Rules and that all the Stenographers Grade-I are receiving the same scale of pay though their basic pay are different. With regard to the respondent No. 4, it was clarified that though after his resignation from service, he was appointed as Stenographer Grade-I by order dated 8.12.1984 on the condition that he would not claim the benefit of his past services, the said order was modified by a subsequent order dated 17.6.1986 by which his pay was refixed by fixing his initial pay at Rs. 1435 per month in the pay scale of Rs. 1125-1975 with effect from 2.4.1985, the date of his joining as Stenographer Grade-I in terms of the order dated 8.12.1984. The affidavit discloses that the respondent No. 5 before joining the establishment of this Court was an employee of the Government of Tripura and on his appointment in the services of this Court, he was granted pay protection and his pay was fixed on the basis of his pay he was drawing at the time of his appointment in the services of this Court. Similarly, the respondent No,6 was working as Stenographer Grade-Ill in the establishment of standing counsel. Government of Mizoram before joining the establishment of this court and his pay in the High Court Service was fixed on the basis of his last pay drawn in the previous post. It was further stated in the affidavit that the respondent No. 7 before joining his service of this court was an employee of the Government of Arunachal Pradesh and on his joining the post in the High Court service, he was afforded pay protection while fixing his pay. It was asserted therein that all these Grade-I Stenographers are getting same scale of pay though the respondent Nos. 4 to 8 are getting higher pay due to the fact that their pay was fixed on the basis of the last pay drawn by them in the parent departments. The applicability of the office memorandum dated 10.5.1983 issued by the Finance Department, Government of Assam in the facts of the present case was denied in the affidavit. The stand of the Registry is that the contentions of the appellants-petitioners that fixation of higher basic pay in respect of respondent Nos. 4 to 8 had resulted in discrimination and that this resulted in violation of the principles of "equal pay for equal work" and the rights of the appellants-petitioners under Article 14, 16 and 39(d) of the Constitution of India are wholly unfounded and untenable. According to the Registry, the appellants-petitioners are, therefore, not entitled in law to have their basic pay stepped up to that of the respondent Nos. 4 to 8.
8. In their affidavit, the respondent Nos. 5, 6, 7 and 8 denied the allegation of discrimination in the matter of fixation of pay as alleged. They further contended that the grievance of the petitioners that the fixation of their pay was not based on relevant criteria as unfounded. They asserted that the claim of the petitioners to have their pay stepped up to that of their pay was not tenable and, therefore, the petitioners were not entitled to any relief. The answering respondents further stated that the respondent No. 5 was initially appointed as Stenographer under the Government of Tripura in the month of July, 1980 pursuant to his selection by the Tripura Public Service Commission. While he was serving in the Directorate of Fisheries, Govt. of Tripura, Agartala, he applied in response to the advertisement for the post of Grade-I Stenographer issued by the Registrar (Judicial), Gauhati High Court, Guwahati through proper channel and on being selected, was given appointment pursuant to which, he joined the services of the High Court as Stenographer Grade-I on 12.8.1986 at the Agartala Bench keeping lien in his parent Department. Initially his lien was extended from time to time and eventually, the respondent . No. 5 was permanently absorbed in the service of this Court with effect from 2.4.1990. During the subsistence of this lien, a revision in the pay scale of the Tripura Government was effected from 1.1.1986 and the benefit of such revision of pay scale was granted to the respondent No. 5 by fixing his pay in conformity with the provisions of FR 22(a)(i) with effect from 1.1.1986 and his pay was fixed at Rs. 1735 as on 12.8.1986.
9. With regard to respondent No. 6, it was averred in the affidavit that he was originally appointed as Stenographer Grade-Ill in the establishment of standing counsel. Government of Mizoram where he had been serving since 16.8.1976 in the pay scale of Rs. 330-560 (pre-revised). After the revision of pay scale w.e.f. 1.1.1986, his basic pay was fixed at Rs. 1520 in the revised pay scale of Rs. 1440-2640. He applied in the year 1989 pursuant to an advertisement issued by this court for the post of Grade-II Stenographer. The Government of Mizoram, Department of Personnel, forwarded his application to this Court and on his selection, he was appointed as Grade-II Stenographer. He was released by the Government of Mizoram, Department of Personnel and hejoined the service of this Court on 13.6.1989. On the basis of the Last Pay Certificate, his pay was fixed at Rs. 1500 as Stenographer Grade-II and that was in accordance with the provisions of FR 22(c). It was further mentioned in the affidavit that the petitioner Nos. 8, 10, 11, 12 and 13 were also granted similar protection of their pay in the parent department.
10. The affidavit further discloses that the respondent No. 7 was Initially appointed as Stenographer in Arunachal Pradesh Secretariat in the year 1980 and was posted to the Office of the Senior Govt. Advocate, Arunachal Pradesh, Gauhati High Court. He submitted his application through proper channel pursuant to an advertisement published in the issue dated 31.3.1990 of the daily Assam Tribune for the post of Stenographer Grade-I of this Court. On his selection, he was appointed as Stenographer Grade-II by order dated 13.11.1990 in the pay scale of Rs. 670-1500 (pre-revised). On the request of the Registrar (Admn.) of this Court, the Government of Arunachal Pradesh released him and he joined the service of this court on 10.12.1990. He was also allowed to hold his lien in the Arunachal Pradesh Secretariat initially for a period of 2 years which was subsequently extended by another year. His pay was fixed in this court taking into account the Last Pay Certificate issued by the Government of Arunachal Pradesh. Thereafter, following a competitive examination/interview, he was promoted as Stenographer Grade-I in the pay scale of Rs. 2275-4450 from 10.6.1991.
11. With regard to respondent No. 8, it was stated in the affidavit that he was originally appointed as Stenographer in the Arunachal Pradesh Secretariat in April, 1980 and was posted in the office of the Arunachal Pradesh Secretariat (General Administration) Department at Naharlagun. While he was serving as Stenographer in the office of the Commissioner (Border), Ministry of Home Affairs, Govt. of India on deputation, he submitted an application in response to the advertisement published in the issue dated 11.1.1989 of the daily Sentinel for filling up the posts of Grade-II Stenographers of this court. On being selected, he was appointed in the post of Stenographer Grade-II by order dated 24.6.1989 and was released by his parent department on 4.7.1989. He thereafter joined the service of this Court on 7.7.1989. On the basis of the Last Pay Certificate from the Arunachal Pradesh Secretariat, the respondent No. 8 was granted pay protection as per Rules. Eventually following a competitive examination, he was promoted to the post of Stenographer Grade-I and he assumed the charge of the promotional post on 9.7.1992. The joint stand of the answering respondents, therefore, is that they have been recruited from different sources on the basis of competitive examinations and as they were working in other Government departments prior to joining the services of this court, they have been granted the pay protection on the basis of their Last Pay Certificate issued by the former. They therefore contended that the petitioners cannot legitimately claim themselves to be similarly situated like them and pray for stepping up of their pay, alleging discrimination. They contended that the memorandum dated 10.5.1982 of the Finance Department of the Government of Assam was not applicable to the facts of the instant case and that seniority alone cannot be the basis to claim stepping up of pay. According to them, they were borne in a separate cadre and their pay had been fixed taking into account their earlier pay on the basis of Last Pay Certificate issued by the respective parent departments and the pay fixation has been done in terms of the relevant Rules and, therefore, there is no room for the petitioners to be aggrieved. They contended that in the facts of the present case, the claim of the petitioners for stepping up of their pay on the basis of the principles of "equal pay for equal work" is not tenable.
12. The petitioners in their reply affidavit while reiterating their stand in the writ petition inter alia, contended that the last pay drawn by the respondent Nos. 5, 6, 7 and 8 cannot be an acceptable basis for grant of higher pay to them and that the provisions of F.R. 22 does not apply to the facts of the present case. They contended that in any view of the matter, no justification has been provided by the respondents in granting higher pay to the respondent No. 4 after being appointed afresh with an express stipulation that his past services before the resignation would not be granted for the said purpose. It was further contended that no order of the competent authority exists, fixing the pay of the respondent Nos. 5, 6, 7 and 8 by applying F.R. 22 or 22 (c) as the case may be. With regard to the averment of pay protection enjoyed by the petitioner Nos. 8, 10, 11, 12 and 13 as mentioned in the affidavit filed by the respondent Nos. 5 to 8, it was clarified that the cases of the said petitioners were on a different footing inasmuch as, they had been serving under the Government of Assam prior to joining the service of this court and that the pay scale of Stenographers in the establishment of this court was the same as that of Stenographers in the service under the State of Assam. Moreover, according to them, even after granting such pay protection to the said petitioners, their pay was not fixed at a level higher than that of their seniors in service.
13. The learned Single Judge, after considering the materials on record together with the related records produced on behalf of the Registry dismissed the petition holding that the action of the official respondents in protecting the earlier pay of the respondent Nos. 5 to 8 could not be faulted with. It further held that fixation of pay of the respondent No. 4 at Rs. 1435 per month which was his pay when he left the service of the High Court on 31.3.1982 could not be said to be arbitrary and discriminatory in the facts and circumstances of the case inasmuch as, the said respondent was granted only the benefit of the basic pay that he drew before his resignation and that no other benefit was granted to him. In coming to the said conclusion, the learned Single Judge took note of the fact that the respondent Nos. 5 to 8 were drawing higher basic pay before they joined the Services of this Court and the concerned authorities on a consideration of all relevant materials including those relating to their basic pay in their parent departments worked out their pay in conformity with the provisions of F.R, 22(c) and the Hon'ble Chief Justice of this court approved the same. It held that the principle of "equal pay for equal work" cannot be looked into in isolation and though it is a facet of the equity principle enshrined in the Article 14 of the Constitution of India, a reasonable classification is permissible on intelligible criteria. It held that in the instant case, the concerned authorities on due consideration of relevant factors granted the pay protection to the respondent Nos. 5 to 8 by applying the relevant provisions of the Rules and that no mala fide or improper exercise of power could be inferred. With regard to respondent No. 4, the learned Single Judge held that the competent authority only protected his basic pay without affording him any other benefits and, therefore, for all other purposes he was treated as a fresh appointee. In the considered opinion of the learned Single Judge, therefore, it was not a fit case for interference in exercise of power of judicial review.
14. Mr. D. K. Mishra, learned senior counsel appearing for the appellants has argued that fixation of basic pay of the respondent Nos. 4 to 8 above that of the appellants-petitioners is ex facie, illegal and discriminatory inasmuch as, the appellants-petitioners are senior to them in service and are performing the same duties and shouldering the same responsibilities like the said respondents. He has further argued that as the appellants and the respondent Nos. 4 to 8 have been recruited to the service of this court by similar process of selection, such unequal treatment in the matter of fixation of pay is unfair and arbitrary. According to him, the impugned action of granting higher basic pay to the respondent Nos. 4 to 8 who were junior to the appellants is also opposed to fundamental principles of Service Jurisprudence. He further contended that in the instant case, the provisions of F.R 22(c) was not attracted as the respondent Nos. 4 to 8 admittedly had not been appointed to the posts of higher responsibility, a condition precedent for application thereof. The learned senior counsel further argued that the respondent Nos. 4 to 8 did not hold any lien or a suspended lien in the posts under their parent departments and, therefore, F.R. 22 being not applicable to their cases, the impugned action of the official respondents in granting higher basic pay to them by purportedly acting under FR 22 is illegal and without any authority of law. Referring in details to the statements made in the writ application supporting the contentions of the appellants, the learned senior counsel urged that the fixation of basic pay of the respondent Nos. 4 to 8 above that of the appellants was manifestly illegal, arbitrary, unfair and unjust and is liable to be adjudged as such. He contended that the conclusion of the learned Single Judge that the impugned action of fixing the basic pay of the respondent Nos. 4 to 8 above that of the appellants was unexceptional, is based on an erroneous appreciation of the materials on record and the provisions of F.R. 22 and 22 C. He argued that the facts and circumstances of the case clearly proclaimed that it was a fit case where an appropriate writ or order be issued by this court to the official respondents to step up the basic pay of the appellants to that of the respondent Nos. 4 to 8. In support of his submissions, the learned senior counsel placed reliance on two decisions of the Apex court reported in (1976) 1 SCC 226, T. R. Sharma, Appellant v. Prithvi Singh and Ors., Respondents and (1989) 4 SCC 99, Ramlal Khurana (Dead) by LRS, Appellant v. State of Punjab and Ors., Respondents.
15. Mr. D. P. Chaliha, learned senior counsel appearing on behalf of the respondent No. 1 while supporting the stand taken by the Registry in its affidavit and also the findings and the reasonings recorded by the learned Single Judge argued that the plea taken on behalf of the appellants in course of the hearing that the provisions of F.R. 22 and 22 C were not applicable to the facts in the instant case, had not been taken in the writ petition. He therefore contended that such a plea being a departure from the pleadings should not be entertained at this belated stage of the proceedings.
16. Mr. B. K. Sharma, learned senior counsel appearing for the respondent Nos. 4 to 8 strenuously urged that the provisions of FR 22 were squarely applicable in the facts of the present case. He endorsed the arguments of Mr. Chaliha that the plea of non-applicability of FR 22 had not been taken up in the writ petition and such a departure from the pleadings at this stage is not permissible. He argued that the concerned authorities on a dispassionate consideration of the materials on record, keeping in view the fact that the respondent Nos. 5 to 8 were receiving higher basic pay in their parent departments, decided to grant the pay protection to them by applying the relevant provisions of the Rules. He argued that this was wholly within the power and jurisdiction of the concerned authorities and it is not a case where such decision had been taken on any irrelevant or extraneous consideration. With regard to the respondent No. 4, the learned senior counsel argued that admittedly the said respondent had served this court before he had resigned from service and, therefore, after his reappointment, if the concerned authorities, acting on his representation had granted him the benefit of his basic pay on the basis of his past services, the same cannot be assailed as illegal or arbitrary. He therefore submitted that the grievances of the petitioners in the available factual scenario were without any basis and, therefore, the learned Single Judge rightly dismissed the writ petition.
17. Before adverting to the rival contentions of the parties, it would be appropriate to refer to the decisions relied upon by the learned senior counsel for the appellants. In T. R. Sharma (supra), the Apex Court was examining the issue whether the conclusion of the majority judges of the Punjab and Haryana High Court that the lien of the appellant on the post of Agricultural Inspector had stood terminated, was sustainable in the facts and circumstances of that case. The appellant therein had joined the Agricultural Department of the Punjab Government as Agricultural Inspector in 1945. The private respondents had joined as Agricultural Inspectors as well in the said department between 1950 and 1958. The appellant was confirmed as Agricultural Inspector in 1959. He was thereafter, appointed against a temporary post of Block Development and Panchayat Officer in the Development Department of the State. Thereafter, he was made substantive permanent Block Development and Panchayat Officer with effect from 1.4.1964. Following the partition of Punjab, the appellant as well as the private respondents were allocated to the State of Haryana. Thereafter, the appellant was deconfirmed on his request from the post of Block Development and Panchayat Officer with effect from 26.2.1969. He was, thereafter, promoted as District Agricultural Officer in Haryana Agricultural Services Class II. In the writ petitions filed by the private respondents challenging such promotion, the learned Single Judge of the said High court inter alia, held that on the confirmation of the appellant as Block Development and Panchayat Officer as above, he had ceased to be a member of Haryana Agricultural Services and his lien on the post of Agricultural Inspector automatically stood terminated under Rule 3.12 of the Punjab Civil Services Rules, Volume I, part I. The matter was ultimately carried to the Full Bench of the High Court which upheld the said finding of the learned Single Judge. In that factual background, the Apex Court held that when the appellant was appointed as Block Development and Panchayat Officer in a substantive permanent capacity, it was imperative for the competent authority as required under Rule 3.14(a)(2) to suspend the lien of the appellant on the permanent post of Agricultural Inspector which he held substantively. However, as the competent authority failed to suspend the lien, the appellant could not be made to suffer because of such inaction or omission on the part of the competent authority. The Apex Court while making that observation noticed that it was nobody's case that a written request was made by the appellant for terminating his suspended lien on the post of Agricultural Inspector. It was, therefore, held that the promotion of the appellant as District Agricultural Officer in his parent Agricultural Department did not suffer from any legal infirmity.
18. On a reading of this decision, we are of the view that the legal proposition that can be culled out is that when a Government servant holding a post in substantive capacity in which he has a lien, is appointed in a substantive capacity to a permanent post outside the cadre, the competent authority should suspend the lien of such Government servant on the permanent post which he earlier held substantively and in case there is any omission on the part of the competent authority to do so, the incumbent cannot be made to suffer any adverse consequence therefor.
19. In the next decision relied upon by the learned senior counsel for the appellants in Ramlal Khurana (supra), the appellant therein who was a clerk in the Police Department in the State of Punjab, appeared for selection to the post of Excise Sub-Inspector in the Excise Department of the State. He was selected and appointed as such and continued in the post for a number of years. He was thereafter, repatriated to his parent department. The appellant challenged the order of repatriation in a suit which was decreed holding that the appellant held the post in the Excise Department, in substantive capacity. The appellant was thus, allowed to continue in the Excise Department and was eventually compulsorily retired from service. The appellant challenged the said order before the Punjab and Haryana High Court mainly on the ground that the Excise Commissioner was not competent to make that order since he belonged to the Police Department. He-claimed that he had lien in the Police Department and that the same was not removed. His contention in other words, proceeded on the premises that the lien against the original post in the Police Department could not vanish even though the appellant was holding a substantive post in the Excise Department. Referring to the relevant Rules applicable to the facts of the case which required that the competent authority should suspend the lien of a government servant when he is appointed in a substantive capacity to a permanent post outside the cadre of which he was borne, the Apex Court observed that such Rule could not be operated to the prejudice of a government servant who on his own had acquired legal right to an ex cadre post and that the rule is for the benefit of such government servant who intends to return to his parent department. Analysing the factual situation therein, the Apex Court concluded that the appellant had never wanted to return to his parent department and that, therefore, he denied himself the benefit of that rule. Dealing with the meaning and purport of the word 'lien', the Apex Court held that it connotes the right of a civil servant to hold the post substantively to which he is appointed and generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post and then the lien against his previous post automatically disappears. The Apex Court observed that the well accepted principle of Service Jurisprudence is that no government servant can have simultaneously two liens against two posts in two different cadres. We respectfully concur with the view expressed by the Apex Court as above. There cannot be any doubt that a government servant can have simultaneously two liens against two posts in two different cadres. The question is whether the above proposition of law has any relevance for the purpose of resolving the controversy in the present appeal.
20. It has been the specific case of the respondent Nos. 5, 6, 7 and 8 that before joining the services of this High Court, they were serving under different State Governments/offices drawing higher scale of pay and that after being selected for appointment in the High Court service, they were granted pay protection on the basis of last pay drawn by them in their parent departments/offices by invoking the provisions of F.R. 22/22c, by the competent authority of this court. The aforesaid stand of the respondent Nos. 5 to 8 has been supported by the Registry of this Court. Mr. Chaliha, learned senior counsel appearing for the respondent No. 1 confirmed the above position by producing the connected official records, on the prayer made on behalf of the appellants, their learned counsels were permitted by this court to examine the records to controvert the above stand. Nothing has been pointed out to us to suggest otherwise. It is nobody's case that the respondent Nos. 5 to 8 did not hold lien against the posts held by them in the parent departments/offices. It is not in dispute that they were selected for appointment in the High Court service. It is not the case of the appellants that F.R. 22/22c is not applicable to the employees/staff of this Court. The contention raised on behalf of the appellants is that the precondition for application of F.R. 22 and/ or 22c are not satisfied in the instant case. The exercise of fixation of initial pay of the respondent Nos. 5 to 8 after their selection for appointment in the High Court had to be undertaken either prior to or simultaneously with their appointment. It is not the case where the basic pay of the respondent Nos. 5 to 8 had been fixed years after their appointment in the service of this court. It is not in dispute that they were drawing higher pay before their appointment to the High Court service. To hold that immediately upon their selection for appointment to the High Court service, the lien of respondent Nos. 5 to 8 in their posts in the parent departments/offices ceased to exist would render F.R. 22 otiose for all purposes. In our view F.R. 22 to be meaningful and realistic in its meaning and content, the lien held by an incumbent on an earlier post would continue till he is appointed substantively in another post, his initial pay is fixed and he acquires Hen thereto. Our view is reinforced by the provisions of F.R. 14 A which lays down that a government servant's lien on a post in no circumstances would be terminated even with his consent if the result will be to leave him without a lien or a suspended lien a permanent post and that his Hen on a post would stand terminated on his acquiring a Hen on a permanent post outside the cadre in which he is borne. The materials on record disclose that the competent authority of this Court granted pay protection to respondent Nos. 5 to 8 on the basis of the pay which they were drawing in their parent departments/offices. With regard to submission made by the learned senior counsel for the appellants that F.R. 22/22c could be applied only if the incumbent concerned is appointed to a post carrying duties and responsibilities of greater importance, suffice it to mention that such an assessment would involve an element of value judgment and has to be left to the wisdom of the competent authority. As alluded above, the competent authority on a consideration of the materials on record decided to fix the basic pay of the respondent Nos. 5 to 8 on the basis of their higher pay in their parent departments/offices by invoking provisions of F.R. 22/22c. On the face of the records, no illegality, mala fide or improper exercise of power is discernible.
21. The grievance of the appellants with regard to the respondent No. 4 is that though in his order of reappointment, it was mentioned that it was a fresh one and that he would not be entitled to any benefit of his past services, the competent authority subsequently refixed his initial pay counting his past services and his initial pay was thus fixed at Rs. 1345 per month in the pay scale of Rs. 1125-1975 with effect from 2.4.1985, i.e., the date of his joining on reappointment. It is the case of the appellants that such fixation was done by the competent authority of this court acting on a representation submitted by the respondent No. 4 in that regard. That the respondent No. 4 was initially appointed as Stenographer Grade-II on 2.7.1975 in the services of this Court and that he served till 31.3.1982 is an admitted fact. Thus in the above premises, if the competent authority after considering his representation and taking note of other relevant factors, had reconsidered its earlier decision of not granting the benefit of his past services and had recognised his past services only for the purpose of fixation of his initial pay after his reappointment, we do not consider that there exists any reasonable or legitimate ground for the appellants to be aggrieved thereby. Moreover, in our opinion, such a decision besides being wholly within the competence of the concerned authority of this court, having been taken on an assessment of the materials on record does not all for any interference from this court in the exercise of its power of judicial review.
22. This takes us to the plea relating to the principle of equal pay for equal work'. This aspect of the matter has been very succinctly dealt with by the Apex Court in its decision reported in (1989) 2 SCC 290, State of Andhra Pradesh and Ors., Appellants v. Sreenivasa Rao and Ors., Respondents, extensively quoted by the learned Single Judge in the impugned judgment. The question which fell for consideration before the Apex Court was whether payment of less salary to a senior than his junior in the same cadre having the same pay scale is violative of the principle of "equal pay for equal work" enshrined in Article 39(d) read with Articles 14 and 16 of the Constitution of India. It was held that the doctrine of 'equal pay for equal work' cannot be put in a strait-jacket and though in terms of various judgments that right to 'equal pay for equal work' has been held to be an accompaniment of equality clause enshrined in Articles 14 and 16 of the Constitution of India, the abstract doctrine of 'equal pay for equal work' cannot be read in Article 14 and a reasonable classification, based on intelligible criteria having nexus with the object sought to be achieved, is permissible. We extract hereinbelow the relevant portion of the Judgment which according to us, is a complete answer to the contentions raised on behalf of the appellants on this issue :
"15. 'Equal pay for equal work' does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily great of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive inductions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work."
A bare reading of the above abstruct would unequivocally proclaim that when pay fixation is done under valid statutory rules/executive instructions granting pay protection and thereby, a junior in service is granted higher pay, the senior cannot invoke the equality doctrine.
23. While dwelling on this aspect, we consider it profitable to refer to another decision of the Apex Court reported in (2002) 2 SCC 141, State of Maharashtra, Appellant v. Association of Court Stenos., P. A., P. S. and Anr., Respondents, The respondents in the appeal before the Apex Court were court Stenographers, Personal Assistants and Personal Secretaries attached to Bombay High Court Judges, At their instance, the High Court, in exercise of its writ jurisdiction held them to be entitled to same pay scale as was given to Senior Personal Assistants to the Chief Secretary of the State pursuant to the Fifth Central Pay Commission's report. The relief was granted to the respondents by applying the principle of 'equal pay for equal work'. The Apex Court while allowing the appeal preferred by the State of Maharashtra, inter alia, observer that though the doctrine of 'equal pay for equal work' is an equitable principle but it would not be appropriate for the High Court in exercise of its discretionary jurisdiction under Article 226 to examine the nature of work discharged by the staff attached to the Judges of the court and direct grant of any particular pay scale to such employees as that would be a matter for the Chief Justice within his jurisdiction under Article 229(2) of the Constitution. We have referred to this judgment in the context of the grievance of the appellants that the initial pay of the respondent Nos. 4 to 8 should not have been fixed at a level higher that of theirs and that F.R.22c was not applicable as because the appointments of the respondent Nos. 5 to 8 were not to the posts carrying duties and responsibilities of greater importance than those attached to the posts held by them. The above observation of the Apex Court highlights the primacy of the Chief Justice of the High Court in such matters. Keeping in view the facts and circumstances of the case and the proposition of law as laid down by the Apex Court as above, the contention of the learned senior counsel for the appellants in this regard fails.
24. The appellants have sought to invoke the power of judicial review of this Court. The parameters of judicial review have by now crystallized. The Writ court in the exercise of its power of judicial review is concerned with the legality of exercise of power to ensure that the action of the authority is taken lawfully within the legal limits of the power, statutory provisions are lawfully construed, discretion conferred on the authority is exercised properly and the decision making authority has acted justly, fairly and reasonably. Judicial review, however, is not to ensure that the authority after according a fair treatment reaches on a matter, which it is autriorised or enjoined by law to decide for itself, a conclusion which is correct in the eye of law, as had been held in chief constable of the North Wales Police v. Evans reported in (1982) 3 AER 141. Judicial Review is distinct from an appeal and action to reappraise the facts. The scope of judicial review has been exhaustively dealt with by the Apex Court in its of-quoted decision reported in (1994) 6 SCC 651, Tata Cellular, Appellant v. Union of India, Respondent wherein, it inter alia, observed that judicial review is concerned with reviewing not the merits of the decision in support of which application for judicial review is made but the decision making process itself. It classified the grounds upon which an administrative action was subject to control by judicial review as under ;
"(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness, (iii) Procedural impropriety."
25. While elaborating the principle of Wednesbury unreasonableness, the Apex Court referred to the following passage in council of Civil Service Unions v. Minister for Civil Service, (1984) 3 AER 935 :
"By "irrationality" I mean what can not be succinctly referred to as "Wednesbury unreasonableness". (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn.) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at,"
26. In a recent decision of the Apex Court rendered in Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. reported in (2002) 3 SCC 497 while reiterating its earlier view on a scope and extent of judicial scrutiny/judicial review of administrative action, it held as hereunder :
"....Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an Appellate Authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of Administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have "a right to choose between more than one possible course of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred" (as per Lord Diplock in Secy. of State for Education and Science v. Metropolitan Borough Council of Tameside, All ER at p. 695). The court cannot substitute its judgment for the judgment of administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court intervent."
27. Keeping in view the above authoritative observations of the Apex Court, we are of the view that the facts and circumstances of the present case do not call for any interference with the impugned actions/decisions of the competent authority of this court as well as the official respondents herein. The materials on record do not demonstrate any illegality, unfairness or unreasonableness warranting interference by this Court in exercise of its power of judicial review. According to us, the competent authority of this Court has acted in terms of the relevant rules by dispassionately taking into consideration the relevant factors and, therefore, we are unable to lend our concurrence to the contentions raised on behalf of the appellants assailing the impugned actions/decisions of the competent authority recorded hereinabove. Moreover, as the impugned decisions/actions constitute official acts, there is always a presumption of their validity in law unless proved otherwise. The appellants herein have failed to indicate any material on record to the contrary.
28. The learned Single Judge in passing the impugned judgment and order has exhaustively dealt with all the relevant aspects of the matter and we are in respectful agreement with the findings and conclusions contained therein.
In the light of the above discussions, we are of the considered opinion that the appeal is devoid of any merit and it is thus dismissed. There would, however, be no order as to costs.