Allahabad High Court
J.N. Misra And Ors. vs State Of U.P. And Ors. on 31 August, 1989
Equivalent citations: (1991)ILLJ223ALL
JUDGMENT U.C. Srivastava, J.
1. Fifty-one Private Secretaries to the Judges of the High Court of Judicature at Allahabad have approached this Court for issue of a writ of mandamus against the State of U.P., Chief Justice and the High Court directing them to grant all the petitioners the pay-scale of Rs. 1540-60-1900-EB-75-2200 by the State Government for one post of Private Secretary to the Hon'ble Judges of the High Court with effect from 1st March 1982, and to grant petitioners pay scale of Rs. 1250-50-1300-60-EB-60-1900-75-2050 which has been sanctioned by the State Government for seven up-graded posts of Private Secretaries to the Hon'ble Judges of the High Court with effect from 1st June 1979 and amend the G.O dated 16th April 1982 and G.O dated 18th February 1983. The contention of the petitioners is that even though all the Private Secretaries were historically treated to be single group, cadre, category or class from the point of view of work and pay-scale ever since 1931 and they perform the same duties and functions and their recruitment and promotional avenues are identical but the opposite parties refused to grant them same pay-scale and creation of artificial classification for the purpose is patently arbitrary, unjust and unreasonable and therefore violative of Articles 14 and 16 of the Constitution of India. It has been stated that the word "Judgment Writer" (now designated as Private Secretary) has been defined to mean in Rules of Court, 1952, which definition still stood as it was from the beginning, an officer of the Court appointed to take down notes of judgment and orders pronounced by Court, and includes any person who may for the time being be authorised by the Court to take down a judgment or order pronounced by it, The said rule which still exists unamended does not bifurcate the Cadre of Private Secretaries in four categories and entrust different duties, responsibility, quality and quantity of work. Similarly there is no such decision or categorisation in the said cadre in the Allahabad High Court (Conditions of Service of Staff) Rules, 1946 and 1976, yet in the pay-scale four categories have been created by the U.P. Government with reference to Second Pay Commissioner's recommendation given in 1980.
2. The petitioners tracing the history have pointed out that even prior to 1947 upto 1954 the Judgment Writer attached to the Chief Judge unrelated to seniority was known as Private Secretary and the only additional benefit was a special monthly pay. After the report of Pay Rationalisation Committee of 1947 the pay-scale of Personal Assistant (earlier known as Judgment Writers) was enhanced to Rs. 200-10-260-EB -14-400 and with effect from 1st April 1963 it was raised to Rs. 290-15-350-EB-15-425-EB-15-500 and with effect from 1st April 1965 it was made, 400-25-550 in view of the recommendation made by Pay Rationalisation Committee which considered the recommendations made by the High Court which treated all Personal Assistants as members of one class and deserving higher pay-scale. The Pay Rationalisation Committee opined that ail Personal Assistants formed a single group and class and they were performing the same and equal work as Personal Assistants to the Hon'ble Judges. With effect from 1st August 1967 the pay-scale of Personal Assistants was revised to Rs. 515-40-715 by the State Government keeping it at par with the pay-scale of Personal Assistants working in the Civil Secretariat. After this parity the nomenclature of Personal Assistants attached to Hon'ble Judges was changed to Private Secretaries.
3. In the year 1971-72 the State Government appointed a New Pay Commission for revising the pay-scale of the employees of the State Government including that of High Court. The Pay Commission (I Pay Commission) recommended for Personal Assistants and Private Secretaries of the High Court as follows:-
"There are 43 posts of Private Secretaries of High Court Judges. Recruitment to the posts of Private Secretaries is made from amongst the Personal Assistants working in the High Court. Appointment to the posts of Personal Assistants is reported to be made through an open competitive test conducted by the High Court. The minimum educational qualification prescribed for appearing in such an examination is a University Degree. These posts are not filled through the U.P. Public Service Commission. The present pay scale of the Private Secretary is Rs. 515-715. A demand has been made that the scale of pay of the Private Secretaries should be the same as has been revised for the Private Secretaries in the Secretariat and there should be seven posts in the Selection Grade. We have also received a communication from the Government in their letter No. 1969/7-Ka-114-69, dated 16th August 1972, in which it has been proposed that in view of the limited chances of promotion of Private Secretaries, the Pay Commission may consider the demand made .by them. We bave considered this matter and feel that the duties and responsibilities of Private Secretaries to Ministers and the Private Secretaries of the Hon'ble Judges of the High Court are not exactly the same. However, in view of the fact that the scales of pay of the Private Secretaries in the High Court and in the Secretariat have been made identical in G.O. dated 20th March 1968, we recommend that the Private Secretaries in the High Court may be allowed the same scale of pay which we have prescribed for the Private Secretaries in the Secretariat viz., 500-1000. As the Private Secretaries of the High Court are eligible to be promoted to the post of Principal Private Secretary and can get a chance to work as Assistant Principal Private Secretary, we find little justification for creation of more posts in higher scales of pay. The pay scale for Private Secretaries is attractive enough and is adequate for the job performed by them".
Thus the Pay Commission did not recommemd for putting the pay scale for Personal Assistants and Private Secretaries at par. It also recommended for creation of a single group and class of employees by providing for selection grade. Vide G.O. dated 28th January 1978 the State Government created a selection grade with pay scale of Rs. 800-50-1100 with effect from 1st November 1977 for 10% of the total number of posts of Private Secretaries to the Judges of High Court which were then 40 in number. The criterion for grant of selection grade was seniority subject to rejection of unfit. A sum of Rs. 50/-per month was also granted to the Private Secretaries to the Chief Justice, Administrative Judge And Senior Judge of the Lucknow Bench. On 22nd February 1978 another G.O. was issued by which seven posts of Private Secretaries were upgraded to the pay scale of Rs. 1000-50-1250-EB-50-1350
4. The Second Pay Commission which was constituted in the year 1979 adopted the principle of equal pay for equal work and observed that "where the requirements of work are of the same kind and the qualifications and the method of recruitment are also the same, there would be no justification for fixation of different pay'scales."
5. Regarding the pay-scale of Personal Assistants etc., the Second Pay Commission in paras 26 and 37 of its Report. Volume-2, Part-I recommended :-
"There are 77 posts of Personal Assistants in the scale of Rs. 350-700. 43 posts of Private Secretaries in the scale of Rs. 500-1000. four posts of Private Secretaries in the scale of Rs. 800-1100 and seven posts of Private Secretaries in the scale of Rs. 1300-1600. It would be seen that for 77 posts in the lower scale of Rs. 350-700, the number of promotion post is 55. The promotion prospects of Personal Assistants in the High Court are, therefore, much better than what their counter-parts in the Secretariat have. We have already recommended that the proposal of the High Court to upgrade one of the posts of Private Secretaries to the higher scale of Rs. 1720-2125 (equivalent to Deputy Registrar) maybe accepted. We are conscious of the importance of the Personal Assistant/Private Secretaries in the High Court and, therefore, recommend that:-
(i) An allowance of Rs. 25/- per month be given to such Private Secretaries/Personal Assistant, who are bilingual and who are required to work in Hindi and English both:
(ii) 15 per cent of posts of Private Secretary at present in the scale of Rs. 500-1000 be placed in the selection grade.
(iii) An allowance of Rs. 50/- per month be sanctioned to Assistant Principal Private Secretary attached to the Chief Justice, the Private Secretaries of the Administrative Judge and the senior-most Judge, at the Lucknow Bench. However, if the senior-most Judge at Lucknow Bench also happens to be an Administrative Judge the allowance admissible to the Private Secretary will be only Rs. 50/- per month".
On the basis of the recommendations of the Second Pay Commission, the State Government issued a G.O dated 16th April 1982 by which the pay scale of Rs. l540-60-1900-EB-75-2200 was sanctioned for one Principal Private Secretary to the Hon'ble the Chief Justice. Rs. 1250-50-1300-60-1660-EB-60-1900-75-2050 was sanctioned for the seven upgraded posts of Private Secretaries and Rs. 770-40-1050-EB-50-1300-60-1420-EB-60-1600 was granted for the remaining 44 posts of Private Secretaries. In addition, an allowance of Rs. 50/- per month was to be given to the Assistant Principal Private Secretary, the Private Secretaries to the Hon'ble Administrative Judges and the Private Secretaries to the Hon'ble Senior Judges of the All. High Court and the Lucknow Bench; Further there was to be one Section Officer from amongst the 44 Private Secretaries and the pay scale of the Section Officer was the same as that of the Private Secretaries ie., 770-1600. The said pay scales were enforced with effect from 1st July 1979. Since the position regarding the selection grade was not made clear by the above G.O., another G.O. dated 9th July 1982 was issued providing therein that 15% of the entire posts of Private Secretaries would be in the selection grade carrying the pay scale of Rs. 1200-50-1300-60-1420-EB-60-1720. Accordingly sanction was granted to the 5 posts in the selection grade considering 36 posts of Private Secretaries at that time in the High Court. This was done despite the fact that in the year 1982 the strength of High Court Judges was 58 and as such there were atleast 58 posts of Private Secretaries in addition to one post of Principal Private Secretary and even then 8 posts of Private Secretaries which should have been sanctioned in the selection grade was not done.
6. On 18th February 1983 the State Government issued other G.O., by which it sanctioned one post of Private Secretary. The senior pay scale Rs. 1540-60 (sic) which was upgraded with effect from 1st March 1952. As it was temporary post, it was extended from time to time and lastly it was extended vide G.O. dated 18th February 1983 without considering the nature and quantum of work. This post still exists.
7. As a result of the anomolies the State Government reconsidered the matter and decided to extend the pay scale of Rs. 1200-1720 with effect from 1st July 1985, granted to the selection grade posts of Private Secretaries to all such Private Secretaries to the Hon'ble Judges of the High Court who had completed ten years work as Private Secretaries. This was done with effect from 6th November 1985.
8. Looking into the nature of the duties which a Private Secretary has to perform there does not appear to be any difference in the duties performed by atleast four categories of Private Secretaries working in higher grade. The Allahabad High Court (Conditions of Service of Staff) Rules of 1946 and 1976 have also not divided the Cadre of Private Secretaries in four categories for the purpose of their duties, responsibility, quality and quantity of work, though admittedly additional duties have been assigned to the Principal Private Secretary to Hon'ble the Chief Justice, Private Secretary to Hon'ble Administrative Judges and Private Secretary to Hon'ble the Senior Judges of the High Court who get an allowance of Rs. 50/ per month.
9. Under Rules of 1976, referred to above, the Hon'ble the Chief Justice of the High Court of Judicature at Allahabad had classified the various posts into different classes. Only the post of Principal Private Secretary to Hon'ble the Chief Justice was placed in Class-I category, whereas all other post of Private Secretaries including the post of Assistant Principal Private Secretary to the Hon'ble the Chief Justice were classified as Class-11 posts which is provided in Rule 16 itself. Rule 16 further provides source of recruitment of Private Secretaries from amongst permanent Personal Assistants by promotion and so far as Principal Private Secretary and Assistant Principal Private Secretary to Hon'ble the Chief Justice are concerned they are appointed by transfer of the post from amongst the Private Secretaries. Rule 16 also provides source and method of recruitment to Class-II posts. It reads as under: --
"16. Sources of recruitment to Class II posts:-
The sources of recruitment to the various Class-II posts in the establishment shall be as follows:-
(a) to (c).............
Private Secretaries - By promotion from amongst permanent Personal Assistants.
(e) Assistant Prinicipal Private Secretary to Chief Justice - By transfer of one of the Private Secretary.
Explanation: Persons selected for the post of Assistant Principal Private Secretary as well as Private Secretaries to Administrative Judges and Senior Judges will maintain their seniority on the post of Private Secretary and shall be liable to be transferred back to the post of Private Secretary. No confirmation will be made on the post of Assistant Principal Private Secretary".
Rule 16 thus has not made any difference amongst the Private Secretaries which constitute a single cadre, group or category and their seniority is not disturbed notwithstanding they may temporarily be posted with Hon'ble the Chief Justice, Administrative Judges or Senior Judges of the High Court at Allahabad and Lucknow.
10. The Private Secretaries who are thus promoted from amongst the permanent Personal Assistants with minimum qualification to be Graduates having good knowledge of Hindi or English Shorthand and Typewriting are entitled to 5 the post of Principal Private Secretary and the Deputy Registrar also. The grievance of the petitioners is that even then separate pay scales have been granted to the Private Secretaries by creating a selection grade with effect from 1st 10 November 1977 which is contrary to the principle of "equal pay for equal work" and is unreasonable, there being no distinction between the nature and duties and qualification amongst them.
11. The petitioners feeling aggrieved from the 15 grant of higher grade to the Principal Private Secretary to Hon'ble the Chief Justice and 7 upgraded posts of Private Secretaries made a representation on 8th November 1985 to Hon'ble the Chief Justice for removal of their grievance 20 so that they may also get the pay scale of Rs. 1540-2200. On the representation of the petitioner-Private Secretaries the Hon'ble Chief Justice took favourable view and the Additional Registrar of the High Court by his letter dated 20th 25 January 1986 recommended to the State Government that parity regarding the pay scale should be restored between all the Private Secretaries of all the Hon'ble Judges and discrimination created with effect from 1st 30 November 1977 should be removed. The sending and receipt of the said letter has not been clearly denied in the counter affidavit. As no action has been taken in the matter, the petitioners have approached this Court for redress of thier 35 grievances.
12. In the counter affidavit which has been-filed by a Section Officer, Judicial (High Court Section), U.P Civil Secretariat, on behalf of the opposite parties and not by any other higher 40 officer, it has been pleaded that higher pay scales of Rs. 800-1100 and Rs. 1000-1350 were sanctioned to Senior Private Secretaries of the High Court not with a view to create various categories but provide them promotional avenue and to avoid or 45 remove stagnation to the senior Private Secretaries who had put in long and distinguished services. It has further been pleaded that if they have been given a benefit of higher pay scale on the same post and now they challenge it, the Government may within its right withdraw the same and treat the new entrant as Personal Assistant or Private Secretary equal to the senior-most Personal Assistant or Private Secretary as the case may be.
The G.Os. which have been issued from time to time have been correctly and justly issued for the benefit of all the Private Secretaries, It has further been pleaded that neither the recommendations of the Pay Commission are contrary to the principle of "equal pay for equal work" nor the Government Orders issued are arbitrary and discriminatory. The principle of equal pay for equal work does not apply in the case of fresh incumbents even though the pay may be identical and there is still difference of quality and effici ency and there is no bifurcation of the* cadre of Private Secretaries by granting higher pay scales or selection grades and those Private Secretaries who are doing administrative work are already getting special pay Rs. 50/- per month. It has been, stated that the Government have been benevolent to grant them the benefit of senior grade and higher pay scales where there is no or meagre promotional avenues. It has further been pleaded that the quality of work, efficiency and" disposal of work of the employees having larger experience is definitely superior to that of the employee who is fresher in the service.
13. The petitioners have reiterated that apart from those Private Secretaries who do administrative work, the other Private Secretaries perform the identical work and there is no difference in their work so far as the quality and efficiency is concerned. It has been stated that so far as the length of service and new recruits are concerned, there is always a difference arising out of the grant of time-scale increments as fresh incumbents start usually with the basic pay and with the passage of time the senior incumbents earn the time- scale increments and the upgradation of certain posts has nothing to do with the difference of seniority or quality or efficiency and there is no determination of merit while the upgraded post is being filled up and the seniority is the only criterion.
14. On behalf of the petitioners it was contended that the principle of 'equal pay for equal work' has not been followed in the matter of Private Secretaries and discrimination has been practised amongst equals and thus the same is violative of Article 14 of the Constitution.
15. The priniciple of 'equal pay for equal work' was strongly stressed in the case of Randhir Singh v. Union of India (1982-I-LLJ-344), It was observed (p. 348):
"......... .the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women' as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive Principles, as has been pointed out in some of the judgments of this Court, have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if, they are unconcerned with work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay".
In the case State of U.P. v. J.P.Chaurasia (1989-I-LLJ-309) earlier cases were considered and it was observed (PP. 317-318):
"In matters of employment the Government of socialist State must protect the weaker sections. It must be ensured that there is no exploitation of poor and ignorant. It is the duty of the State to see that the underprivileged or weaker sections get their dues. Even if they have voluntarily accepted the employment on unequal terms, the State should not deny their basic rights of equal treatment. It is against this background that the principle of 'equal pay for equal work' has to be construed in the first place. Second, this principle has no mechanical application in every case of similar work. It has to be read into Article 14 of the Constitution. Art. 14 permits reasonable, classification founded on different bases. It is now well established that the classification can be based on some qualities or characteriestics of persons grouped together and not in others who are left out. Those qualities or characteristics must, of course, have a reasonable relation to the object sought to be achieved. In service matters, merit or experience could be the proper basis for classification to promote efficiency in administration. He or she learns also by experience as much as by other means. It cannot be denied that the quality of work performed by persons of longer experience is superior than the work of newcomers".
In the case of Supreme Court Employees Welfare Association v. Union of India (1989-11-LLJ-506 at 519) it was observed:
"....... although the doctrine of 'equal pay for equal work' does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to pay scales and such classification is unreasonable and/or if unequal pay has brought about discrimination within meaning of Art. 14 of the Constitution it will be a case of equal pay for equal work as envisaged by on Art. 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved the doctrine of 'equal pay for equal work' will not have any . application even though the persons doing the same work are not getting the same pay".
Reference was also made to the case Federation of AH India Customs and Centra! Excise Stenographers (Recognised) v. Union of India, (1989 Lab IC 1157) in which it was pointed out that when there is discrimination but discrimination cannot be interfered in every matter and this principle cannot be applied in every case. It was observed (at p. 1163).
"...... There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administraton in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right".
It was further observed (at p. 1166) :-
"........The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less; it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object sought for as reiterated before, a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either in law or in fact".
In view of the principle enunciated above the discrimination cannot be complained of in every case of qualitative and quantitative difference and cannot be ignored.
16. On behalf of the petitioners it was pointed out that the duties of the Private Secretaries are much more than the Deputy Registrars of this Court. It is a different matter that for the time being they are attached to a particular Judge or the Bench. Taking into consideration over all picture and the duties which are assigned to the Private Secretaries and the degree of responsibility and the secrecy which they maintain, their duties are much more than the Deputy Registrars who enjoy all the holidays which the Private Secretary cannot. He cannot be required to take down judgments at the residence of the Judges during vacations or on non-working days. In this connection they also made reference to the cases of the Deputy Registrats C.B.L. Srivastava v. State of U.P. 1986 All WC 462 decided by this Court on 8th November 1985 in which this Court allowed parity in the pay scale of all the Deputy Registrars of this Court which earlier was not available against which Civil Appeal Nos. 57 and 58 were dismissed by Hon'ble the Supreme Court on 2nd January, 1989 in which it was observed that in view of the peculiar facts and the circumstances of the case, and having regard to the history of the creation of one cadre of Deputy Registrars by the High Court of Allahabad, we are of the opinion that the High Court was right in the view it took in respect of the two impugned orders dealt with by the High Court. The High Court in the said case after tracing the history observed that the post of Reagistars, Deputy Registrar, Assistant Registrar and Secretary to the Chief Justice existed even before 1931. The work load gradually increased and in 1974 their number swelled to ten, the break-up being 7 Deputy Registrars and 3 Assistant Registrars according to High Court, but 5 Deputy Registrars 5 Assistant Registrars according to Government and the work of Assistant Registrar was more or less same as Deputy Registrar and after grant of parity in 1968 their responsibility had also increased; therefore the Government in agreement with this Court merged the two posts and created one common cadre of Deputy Registrar in the pay scale of Rs. 800-1350 vide order dated 23rd October, 1974. In the year 1982 two more posts of Deputy Registrars were created raising the strength to 12, till 1975 the pay scale of Principal Private Secretary to Hon'ble the Chief Justice and the Assistant Registrar was the same. When 5 posts of Deputy Registrars were upgraded the post of Principal Private Secretary which in respect of pay was equal to the post of Assistant Registrar was given same scale as that of the Deputy Registrar and it was not given to the remaining Private Secretaries. This Court held that once it was recognised that duty and nature of work performed by Assistant Registrar was the same and similar as that of the Deputy Registrar and the two posts were merged and common cadre was created the cadre of Assistant Registrar became non-existent and ceased to exist in law and effect of merger was complete. The class of Deputy Registrars was and is a well defined class. It remained so even after merger and no law could be enacted to deal with members of this class differently as they were doing same and similar work. The basis of existence of five posts at the time of merger does not stand the test either of intelligible differentia or there being any reasonable nexus with the object sought to be achieved. Persons doing same work, performing same duty, belonging to same cadre were divided in two, neither on merits nor on qualifications nor on efficiency but because at one time the cadre consisted of five Deputy Registrars only. This was irrational and unreasonable and arbitrary.
17. In the case of J.P. Chaurasia (supra) Hon'ble the Supreme Court allowed the special appeal against the judgment of Allahabad High Court holding that the Bench Secretaries working in the High Court of Judicature at Allahabad are entitled to the same pay scale admissible to Section Officers. The Bench Secretaries challenged the validity and bifurcation of one Cadre into Grade-I and II and their plea was that in the same Cadres with similar duty and responsibility there cannot be two grades in different pay scales. It was also contended on behalf of the Bench Secretaries that it was well recognised class and it was superior to the Section Officer and this plea was also accepted by the High Court. The Supreme Court observed (1989-I-LLJ-309 at 315):
"More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be same, but quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best Judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration".
It was further observed (p.315):
"..........at one time, Bench Secretaries were paid more emoluments than Section Officers. But it is not known on what basis they were paid in the higher pay scale and treated as superior class' to Section Officers. The successive Pay Commissions and even Pay Rationalisation Committee, however, found no support to their superior claim. The Commissions and Committee have evaluated the respective duties and responsibilities of the two posts. It was found that the Section Officers perform enormous duties and bear greater responsibilities than Bench Secretaries. We cannot go against the opinion and indeed, we must accept that opinion. The Bench Secretaries, therefore, cannot claim as of right the pay scale admissible to Section Officers".
18. We have already made reference to the Private Secretaries and the Deputy Registrars and duties performed by them, but amongst the Private Secretaries three pay scales have been created, one for the Principal Private Secretary to Hon'ble the Chief Justice, another selection grade for 7 posts of Private Secretaries and another grade for remaining Private Secretaries who have not been given selection grade. So far as extra allowance of Rs. 50/- is concerned it is given to those Private Secretaries who are attached to Hon'ble the Senior Judges at Allahabad and Lucknow and Hon'ble Administrative Judges, but that is not dependant on seniority or juniority and it goes with the attachment only and for that it cannot be said that there is discrimination. So far as the Principal Private Secretary to Hon'ble the Chief Justice is concerned his duties and responsibilities are more than that of the other Private Secretaries- It may be that so far as judicial work is concerned it may be much less than the other Private Secretaries, but so far as work connected with administration and duty hours are concerned, the same are much more than the duties and working hours of other Private Scretaries as he has also to deal with the Judicial Officers and other Officers who come to meet the Hon'ble Chief Justice. This post goes by way of seniority. The selection grade for this post cannot be said to be arbitrary or mala fide action as it depends on the quality and quantity of work and the duties and responsibility. The principle of equal pay for equal work applies so far as other Private Secretaries are concerned as there appears to be hardly any difference in their duties, quality of work and responsibilities. It is the over all picture which is to be seen and the temporary attachment. So far as the duties and duty hours are concerned, it cannot be said that there is any difference. If one is not efficient or he tries to avoid work or he fails to discharge his duties efficiently, he may not be allowed to cross the efficiency bar. It depends on various factors including the attitude to work and shirking or avoidance of duty or inefficient way of working. If one is not up to the mark in the matter of efficiency obviously he will not be allowed to cross the efficiency bar while efficient ones will be allowed to cross it. Those who are not allowed to cross efficiency bar will get lesser pay than those who are allowed to cross it despite the fact that pay scale is the same. The creation of selection grade for few, may it be by seniority- cum-efficiency, and depriving the others even though they may not be less efficient or may even be more has no nexus with the object sought to be achieved. The creation of artificial discrimination and dissatisfaction amongst equals is not supportable by any principle. So far as promotional avenues are concerned now atleast two posts of Deputy Registrars have been given to Private Secretaries, the criterion of which is seniority subject to rejection of unfit. Similarly higher emoluments can be given atleast to two Private Secretaries, that is the Head Private Secretaries at Allahabad and Lucknow respectively. Apart from doing their normal duties they are to make arrangements in place of absentee Private Secretaries and Personal Assistants and sometime they look after the absentee's work in case of non-availability of any substitute., the office of Head Private Secretary goes by virtue of seniority.
19. In the case of Randhir Singh (supra) it was observed that the higher qualifications for the higher grade which may be either academic qualification or experience based on length of service reasonably sustain the classification of officers into two grades.
20. In the case of P. Savita v. Union of India (1986-I-LLJ-79) the prescription of two scales of pay for senior draftsmen working in the same department was assailed. The Supreme Court accepted the challenge and observed at p.83:
"Where all relevent considerations are the same, persons holding identical posts and discharging similar duties should not be treated differently".
In the case of the Private Secretaries who discarge similar work this principle has been followed by bench. It cannot be justified on the ground of experience based on length of service. The opening of promotional avenues can no longer be a ground for the same. As such the same is violative of Article 14 of the Constitution of India.
21. In the above circumstances the writ petition deserves to be allowed, but the question will be whether this Court itself can lay down a particular pay scale. Obviously it cannot. In this connection reference may be made to the case of Supreme Court Employees Welfare Association (p.518, 520) (supra) wherein it was observed:
"If there be violation of any fundamental right by virtue of any order or judgment, this Court can strike down the same, but, surely, it is not within the province of this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution. It is really the business of the Government or the management to fix the pay-scales after considering various other matters and the Court can only consider whether such fixation of pay scales has resulted in an invidious discrimination or is arbitrary or patently erroneous in law or in fact....... we ourselves cannot lay down any pay scale but can point out the discriminatory existence of pay scale, its abolition, assimilation or equalisation".
22. In view of what has been said above the creation of two grades amongst the Private Secretaries viz., selection and non-selection grade, is arbitrary and discriminatory. Consequently all the Private Secretaries attached to the Hon'ble Judges of the Court are entitled to the same grade with effect from the due date.
23. The writ petition is accordingly allowed in part. A mandamus is issued directing the State Government to make amends and issue orders for placing all the Private Secretaries in one grade expeditiously, say within a period of three months from the date of production of copy of this order. A mandamus is also issued to the State Government to decide the matter of higher emoluments to Head Private Secretaries both at Allahabad and Lucknow in view of their extra duties and responsibilities keeping in view the recommendation of the Pay Commission which favoured avenues of promotion for Private Secretaries also.
24. There will be no order as to costs.