Jammu & Kashmir High Court - Srinagar Bench
J&K Subordinate Judicial Process ... vs High Court Of Jammu And Kashmir on 19 September, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 238 of 2009 J&K Subordinate Judicial Process Servers Welfare Association Petitioners Honble High Court and Ors Respondents !Mr.R.A.Jan, Sr. Advocate Mr. Anees, Advocate ^Mr. Z. A. Shah, Sr. Advocate Mr. A.Hanan, Advocate Mr. R.A.Khan, AAG for respondent No. 4 Mr. S.A.Makroo, ASGI for respondent No. 5 Honble Mr. Justice Virender Singh, Judge Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 19/09/2013 : J U D G M E N T :
Muzaffar HussainAttar Appellants were holding the posts of Orderlies. Vide Order No.309 dated 17.07.1987, all the posts of Orderlies shown in High Court Order No.90 dated 1st May 1984 and created thereafter till the date of issuance of Order No.309, were declared as the posts of Process Servers, w.e.f the date of issuance of the said order viz. 17.07.1987.
The process servers of the Excise Department of the State Government were placed on a higher pay scale than that of the appellants. The appellants registered grievance on the ground that by putting them in lower pay scale than that of the process servers of the Excise Department, they have been subjected to invidious discrimination. When the aforestated grievance projected by them did not evoke any response from the concerned authorities they were constrained to file writ petition, which was registered as SWP No.1683/1992. The following prayers were made in the said writ petition:
...i. A Writ of the nature of Mandamus or any other appropriate Writ commanding the respondents to fix the scale of pay of the petitioner process servers of the Excise Department with effect from 1st. of January, 1982 be issued in favour of the petitioner Association and against the respondents; ii. Writ of the nature of Mandamus or any other appropriate Writ commanding the respondents to apy the petitioner process servers at least at the rate of scale of pay at which the process servers of the Excise Department are and have been paid since 01.01.1992 be also issued in favour of the petitioner Association and against the respondents;
iii. Writ of the nature of Mandamus or any other appropriate Writ directing the respondents to pay and/or cause to pay the arrears accruing due to the petitioner process servers in consequence of removal of impugned disparity in terms of the fixation of pay scale of the petitioner process servers on part with pay scale of the process servers of the Excise Department with effect from 01.01.1982, be also quashed in favour of the petitioner-Association and against the respondents... The Writ Court vide its judgment dated 30.08.1994 allowed the writ petition in the following terms:
...The result, therefore, is that I allow this Petition and by a Writ of Mandamus hereby command the respondents to fix the pay scale of the petitioners at par with the process servers of the Excise Department with effect from the date, when the latest revision of the pay scales was made by the Government. They are also directed to pay them the arrears of pay accordingly... Respondent No.4 viz., State of J&K feeling aggrieved of the said judgment challenged the same by filing Letters Patent Appeal (LPA No.112/1994).
The LP Bench of this Court dismissed the appeal vide its judgment dated 31st October, 1996 in the following terms:
... It appears from the Appellants Affidavit that the case of the petitioner has not been properly understood by it and the pay Commission. Members of the petitioner have been taken to be Orderlies and not Process Servers . That is why, they have been granted lower scale of pay and the recommendations of the High Court and Clarification of their Status as Process Servers have been ignored erroneously and without proper application of mind.
No other point was urged;
From the aforesaid discussion, it is absolutely clear that the members of the petitioner are at least entitled to pay parity with process servers of Excise Department in the State Government. Accordingly, we see no merit in this appeal and the same is dismissed. Judgment of Single Judge is upheld and confirmed;
However, the parties are left to bear their respective costs. Special Leave Petition was filed before Honble Supreme Court which was dismissed vide order dated 17th March, 1997. Review petition filed by respondent No.4 in respect of the said order was also dismissed by the Honble Supreme Court vide order dated 5th August, 1998.
Respondent No.4, in implementation of the judgment of the Court, issued Government Order No.194-LD(A) of 1999 dated 26.02.1999. Sanction was accorded to the placement of members of Appellant Association in the same pay scale which was being paid to the Process Servers of the Excise Department as per J&K Civil Service (Revised Pay) Rules, 1992, for short Rules of 1992, which Rules were in force at the time the Writ Court allowed the writ petition vide its order and judgment dated 30th August, 1994.
The members of the Appellant Association were, accordingly, placed in the pay scale in which the Process Servers of the Excise Department were carried in terms of Rules of 1992. In pursuance of the orders of the Government dated 26.02.1999, respondent No.3 issued Order No.1034 dated 16th March, 1999 and Order No.5648 dated 14th July, 1999, whereunder, the members of the Appellant Association were placed in the pay scale of Rs.950-1500 from the date of promulgation of Rules of 1992 viz., 01.04.1992.
Respondent No.3 sought clarification from respondent No.4 about payment of pay scale of Process Servers to the members of Appellant Association. Respondent No.4 vide its communication dated 26th October, 1999, on the basis of opinion received from the State Finance Department, observed that since the latest pay rules of 1992 issued vide Notification SRO 75 dated 30.03.1992 were effective notionally from 01.04.1987 and monetarily from 01.04.1990, the court judgment dated 30.08.1994 be given effect accordingly. The members of the Appellant Association were, accordingly, given monetary benefits of the pay scale in terms of the Rules of 1992 w.e.f 01.04.1990.
Those of the members of the Appellant Association who satisfied the requirements of Jammu & Kashmir Civil Service (Higher Standard Pay Scale Scheme) Rules of 1996, for short Rules of 1996, were also extended benefits of in-situ promotion.
The members of the Appellant Association, in view of the aforestated developments, started drawing salary more than that of some of the non-gazetted employees of the Judicial Department. Jammu and Kashmir Judicial Welfare Association filed representation. Honble Chief Justice constituted Committee to look into grievance of the members of J&K Judicial Welfare Association. On the recommendations of the Committee, Honble Chief Justice ordered that the benefit of grade to Process Servers in terms of the Court Judgment shall be effective from 01.04.1990 only. It was further provided that consequent increase in grade and in-situ promotion allowed in their favour beyond their entitlement stand cancelled. Order No.713 dated 28.03.2005 was issued. All the Principal District Judges were directed to re-fix the pay of Process Servers in terms of the order of the Honble Chief Justice. The Principal District Judges were directed to furnish reports regarding quantum of amount, if any drawn, by the Process Servers in excess of their entitlement under pay re-fixation. It was directed that recovery of excess drawls should be made after giving opportunity of being heard.
Order was implemented. The members of the Appellant Association feeling aggrieved of the order challenged the same in SWP No.336/2005. Writ Court repelled the contentions of the appellants and while maintaining the impugned order vide its judgment dated 09.10.2009 provided that after proper re-fixation of the salary of the Process Servers, if any amount was found to have been received in excess, same was directed to be adjusted, instead of being recovered.
The appellants are aggrieved of this judgment of the Writ Court and have challenged the same in this LPA.
Mr. R.A.Jan, Sr.Advocate appearing for the appellants, in support of the appeal, submitted that in terms of the Rules of 1992, the Government in implementation of the judgment of the Court had correctly ordered for re-fixation of the pay scale of the members of the Appellant Association on notional basis from 01.04.1987 and with monetary benefits from 01.04.1990. Learned counsel submitted that Honble Chief Justice had neither power nor authority to undo the benefits which had accrued to the appellants in pursuance of the judgment of the Court and which judgment was implemented by the State Government.
Learned counsel further submitted that fixation of pay scales is prerogative of State Government and in terms of the revised pay rules the different pay scales are fixed for different categories/class of posts. Learned counsel submitted that in terms of Rule 6(1) of the Rules of 1992, the members of the Appellant Association were entitled to be placed in the revised pay scale w.e.f 01.04.1987, as that is the mandate of the said rule. It was further submitted that in compliance of the judgment of the Court and on the basis of Rule 6(1) of the Rules of 1992, the members of the Appellant Association were to be placed in the pay scale of Rs.800-1500 (pre-revised) w.e.f 01.04.1987 notionally and with monetary benefits from 01.04.1990.
Learned counsel submitted that the claim of the petitioners in original writ petition was that they were discriminated in the matter of fixation of pay scale vis-`-vis the Process Servers of the Excise Department. The writ Court by allowing the writ petition upheld the plea of the appellants that they were subjected to discrimination. The members of the Appellant Association were thus rightly given the benefit in terms of Government Orders and the Honble Chief Justice on administrative side could not pass the order which was impugned in the writ petition. Learned counsel further submitted that rules have not been made by the High Court in terms of Section 67 of J&K Constitution Act of 1996 (svt). Learned counsel accordingly submitted that in absence of power conferred on Honble Chief Justice, the order impugned in the writ petition could not be passed. Learned counsel also referred to Section 30 of the Civil Courts Act and submitted that appointments made under Section 30 would be regulated by such rules which the High Court may prescribe. The learned counsel submitted that the expression High Court may prescribe is referable to rules made by the High Court in terms of Section 67 of The Jammu and Kashmir Constitution Act, 1996 read with Section 102 of the Constitution of J&K. Learned counsel submitted that there is no other power conferred on the High Court to make rules. Learned counsel submitted that Notification No.87 dated 28.03.1968 issued by High Court does not clothe Honble Chief Justice with powers to pass orders which were impugned in the writ petition. Learned counsel referred to the judgments reported in AIR 1984 SC 850, AIR 1981 SC 561, SCC 1988(4) 534, SCC 2003(4) 239, SCC 1978(2) 102, SCC 2003(8) 117, SCC 1979(2) 34, SLJ 2001(1) 133, , AIR 1966 A.P 137, AIR 1956 A.P 161 and prayed for allowing this appeal.
Mr. Z.A.Shah, learned Sr.Advocate appearing for respondent No.3 submitted that Honble Chief Justice in terms of the Notification 87 of 1968 has power to pass the orders the like of which has been called in question by the appellants. Learned counsel further submitted that a serious anomaly was created because of wrong fixation of the pay scales of the members of the Appellant Association, inasmuch as, those of the employees of the judicial department who are holding higher posts, were getting lower pay scales than those of the Process Servers. Learned counsel submitted that on representation of the Judicial Welfare Association, a Committee was ordered to be constituted by Honble Chief Justice to examine the matter. Learned counsel submitted that the recommendations of the Committee were considered by Honble Chief Justice which resulted in passing of the order which was challenged by the appellants in the writ petition. Learned counsel also referred to the Full Court Judgment of this Court titled Gh. Qadir Sheikh v High Court, reported in 2001 SLJ 133 and submitted that power exercised by Honble Chief Justice cannot be called in question in view of the findings recorded in that judgment. Learned counsel further submitted that no fault can be found with the judgment of the Writ Court and prayed for dismissal of the appeal.
Before dealing with the submissions of learned counsel, it is deemed appropriate to take note of Section 30 of Civil Courts Act, Section 67 of J&K Constitution Act, Notification No.87 dated 28.03.1968 , Para 14 to 16, 22 and 24 of the Full Court Judgment, Jammu and Kashmir Civil Services (Revised Pay) Rules, 1992 and Jammu and Kashmir Civil Services (Higher Judicial Pay Scale Scheme) Rules, 1996, Section 30 of Civil Courts Act:
30. Ministerial officers of subordinate Courts (1) The ministerial officers of the District Courts shall be appointed, and may be suspended or removed by the Judges of those Courts respectively.
(2) The ministerial officers of all courts controlled by a District Court, other than Courts of Small Causes, shall be appointed, and may be suspended or removed by the District Court.
(3) Every appointment under this section shall be subject to such rules as [the High Court] may prescribe in this behalf, and in dealing with any matter under this section, a Judge of a Court of Small Causes shall act subject to the control of the District Court.
(4) Any order passed by a District Judge under this section shall be subject to the control of the High Court. Section 67 of J&K Constitution Act:
67. (1) The High Court may, consistently with the laws for the time being in force, make rules:-
(a) to regulate the practice of the Court;
(b) to regulate the practice of the Courts subordinate thereto;
(c) to provide for the forms to be used in the High Court and the courts subordinate thereto for such proceedings, books, entries, statistics, and accounts as it thinks fit;
(d) to provide for the inspection of courts subordinate thereto and the supervision of the work thereof.
(e) to regulate all such matters as it may think fit with a view to promote the efficiency of the judicial and ministerial officers of the High Court and of the courts subordinate thereto, and the maintaining of proper discipline among those officers; and
(f) prescribing the qualification for and admission of the persons to be Advocates, Vakils and Attorneys-at-law of the High Court and providing for the removal or suspension from practice on reasonable cause, of the said Advocates, Vakils and Attorneys-at-law.
(2) Such rules shall be made with the approval of a majority of the Judges of the Court and the sanction of [ the Sadar-i-
Riyasat.] Notification No. 87 Dated 28th March, 1968.
In exercise of the powers conferred by Section 30 of the Civil Courts Act, 1977 , the High Court is pleased to make the following rules:-
(1) These rules may be cited as the rules relating to appointment of the Ministerial officers of the subordinate courts;
(2) In these rules;
(i) Court means the High Court of Jammu and Kashmir;
(ii) Chief Justice means the Chief Justice of Jammu and Kashmir High Court.
(iii) Act means the Civil Courts Act, 77.
(iv) Judge means a Judge of the High Court.
(v) Ministerial Officer means and include every member of the non-gazetted staff of a District Court and the Courts controlled by it or by the High Court. (3) No District Judge shall appoint by promotion any ministerial officer in a grade other than the lowest grade of clerks and menials without previously informing the Chief Justice about the vacancy in that other grade; (4) The control to be exercised by the High Court under Sub-Section (4) of Section 30 of the Act shall be exercised through he Chief Justice.
(5) An appeal against the order of punishment passed by a District Judge in his original or appellate jurisdiction in respect of a ministerial officer shall lie to the Chief Justice whose orders shall be final subject to further appeal against the order of the Chief Justice imposing or up-holding a penalty of dismissal or removal from service which shall lie to a committee of two judges to be constituted by the Chief Justice.
(6) The ministerial officers may be transferred by the District Judge concerned in accordance with the instructions that may be issued from time to time in this behalf by the Chief Justice; provided that the transfer of ministerial officer from one district to another shall be made by the Chief Justice. (7) All or any of the powers under these rules may, in the discretion of the Chief Justice, be assigned to any Judge nominated him. Para 14 to 16, 22 and 24 of Full Court Judgment titled Gh.
Qadir Sheikh vs. High Court of Jammu and Kashmir, reported in 2001 SLJ, 133:
...14. In Ghulam Qadir Sheikhs case this aspect of the matter was taken note of. Division Bnech found itself in complete agreement with the observations that by a circular it is possible to monitor the power of appointment exercised by the District Judge under Sub-Section (4) but came to be the conclusion that this observation runs counter to what has been said in Para 11 of the judgment in Chanchal Singhs case. At this state it would be apt to refer to notification No. 87 dated 28.03.1968 by which rules relating to appointment of ministerial staff of the subordinate courts have been framed. For facility of reference these are reproduced below:-Notification No. 87
Dated 28th March, 1968.
In exercise of the powers conferred by Section 30 of the Civil Courts Act, 1977 , the High Court is pleased to make the following rules:- (1) These rules may be cited as the rules relating to appointment of the Ministerial officers of the subordinate courts;
(2) In these rules;
(i) Court means the High Court of Jammu and Kashmir;
(ii) Chief Justice means the Chief Justice of Jammu and Kashmir High Court.
(iii) Act means the Civil Courts Act, 77.
(iv) Judge means a Judge of the High Court.
(v) Ministerial Officer means and include every member of the non-gazetted staff of a District Court and the Courts controlled by it or by the High Court.
(3) No District Judge shall appoint by promotion any ministerial officer in a grade other than the lowest grade of clerks and menials without previously informing the Chief Justice about the vacancy in that other grade;
(4) The control to be exercised by the High Court under Sub-Section (4) of Section 30 of the Act shall be exercised through he Chief Justice. (5) An appeal against the order of punishment passed by a District Judge in his original or appellate jurisdiction in respect of a ministerial officer shall lie to the Chief Justice whose orders shall be final subject to further appeal against the order of the Chief Justice imposing or up-holding a penalty of dismissal or removal from service which shall lie to a committee of two judges to be constituted by the Chief Justice.
(6)The ministerial officers may be transferred by the District Judge concerned in accordance with the instructions that may be issued from time to time in this behalf by the Chief Justice; provided that the transfer of ministerial officer from one district to another shall be made by the Chief Justice. (7) All or any of the powers under these rules may, in the discretion of the Chief Justice, be assigned to any Judge nominated him.
15. A perusal of Rule (4) makes it apparent that the control to be exercised by the High Court under sub-Section (4) of Section 30 of the Act is to be exercised through he Chief Justice. This aspect of the matter is vital and important for the determination of the controversy in this case.
After examining the arguments put across by the learned counsel for the parties and perusing the provisions of Section 30 of the Act and also the rules framed under it, it becomes apparent that so far as the power of appointment of ministerial officers is concerned this vests in the District Courts, meaning thereby the District Judge. There can be no two opinions about it. So far as this aspect of the matter is concerned, there is no conflict in the views recorded in Ghulam Qadir Sheikhs Case and in Chanchal Singhs case. There is again no conflict with regard to the power of the High Court to monitor these appointments. The learned single Judge in Ghulam Qadir Sheikhs case has gone to the extent rightly so to hold that as a controlling authority the High Court is within its power to issue circulars, frame policies, rules and guide-lines, which the District Judges are bound to follow in making appointments in terms of Section 30 of the Civil Courts Act. it has again been rightly observed that being the controlling authority the High Court is not powerless to quash and recall the appointments, if the appointments have been made by the District Judge in contravention of the policies and circulars.
16. It is this view which to some extent comes in conflict with the view expressed in Chanchal Singhs case. After conceding that the High Court has got requisite power to monitor the process of appointment, the Division Bench in Chanchal Singhs case has express a view that this control cannot be exercised unless rules exist on the subject. It is with this view the later division Bench was unable to agree and this led to the formulation of the questions of law, which have been referred to this Bench.
We are of the opinion that the view expressed by the learned Single Judge in Ghulam Qadir Shiekhs case that short of actual appointments all other steps can be taken by the High Court, is a view which is the correct approach to look at the matter. Under the rules issued by Notification No. 87 (Supra) whereby the control which is to be exercised by te High Court under Sub-Section (4) of Section 30 of the Act is to be exercised through the Chief Justice. Therefore, when an observation is made that the High Court is to exercise the control then it would mean that this control has to be exercised through the Chief Justice. To this extent observations made in Chanchal Singhs case are not be treated as good law and therefore, what is said in Para 11 of the judgment in this behalf in Chanchal Singhs case is over ruled.
(Emphasis supplied)
22. We are accordingly of the view that the Chief Justice in pursuance of the powers conferred on him under Rule 4 of the rules framed vide Notification No. 87 re-produced a t page 10 of this judgment can exercise the powers which are vested in the High Court and in the exercise of this power of control he can exercise all those powers, which are noticed while taking note of definition of the word control.
(Emphasis supplied)
24. As a matter of fact there is nothing new in the interpretation we have placed. The Union Public Service Commission in the case of Union of India and the State Public Service Commissions in the case of States, make recommendations for making appointments and it is ultimately if accepted by the appointing authority it leads to an order of appointment being issued. The appointing authority comes into picture only after the recommendations are made. On the same analogy if the executive instructions are issued by the Chief Justice in the exercise of the powers conferred on him and the method, manner of appointment and procedure to be adopted is indicated, then this would be within the ambit of section 30 (4) of the Act, read with the rules framed there under. The issuance of rules is not a condition precedent to the exercise of this power. This leads to uniformity in the method and manner of selection process. Leaving this process at District level can lead to different criteria being adopted by different District Judges. If the Honble Chief Justice of this Court wishes to regulate or has regulated this procedure by issuing instructions and method or manner stands determined by the executive order then this would be well within the four corners of the statutory scheme and the rules.
Question No. 1.
We are accordingly of the view that the power of control under Sub-Section (4) of Section 30 of the Act conferred on the Chief Justice under rule (4) of the rules relating to the appointment of the ministerial officers of the subordinate Courts is not dependent on Sub Section (3) of Section 30.
Question No. 1 is answered accordingly.
Question No. II.
The power of appointment of ministerial officers vested in the District Judges can be regulated by the Chief Justice by exercising the power of control under Sub-Section (4) of Section 30 when there exist no provision determining the mode and method of recruitment.
Question No. III.
In the exercise of powers conferred on the Chief Justice under Section 30 of the Act, the Chief Justice can regulate the mode and method of recruitment of ministerial officers. This would include the power to constitute the Selection committees and issue orders/instructions, dealing with criteria to be adopted.
The three questions formulated by the Division Bench are answered accordingly. Jammu & Kashmir Civil Services (Revised Pay) Rules, 1992
1........................
2 3
4. In these rules unless the context otherwise requires:-
(a) Existing basic pay means basic pay in the existing scale excluding special pay, personal pay, N.P.A and all other allowances but including stagnation personal pay.
(b) Existing scale means the relevant pay scale prescribed under Jammu and Kashmir Civil Services (Revised Pay) Rules, 1987.
EXPLANATION:
..
(c) Existing pay Rules means the Jammu and Kashmir Civil Service (Revised Pay Rules), 1987.
FIXATION OF PAY IN THE REVISED SCALE:
6. (1) The initial pay of a Government servant who was in service on 1-4-1987 and to whom existing Pay Rules applied shall be fixed notionally w.e.f.1.4.1987 in the following manner, namely:-
(a) If the existing basic pay in the existing pay scale as on 1-4-1987 [ to the exclusion of benefit provided under Note (2) below Rule (9) of Jammu and Kashmir Civil Services (Revised Pay) Rules, 1987, if any] ;
i) is less than the minimum of the revised pay scale, the pay shall be fixed notionally at that minimum;
ii) coincides with a stage in the revised pay scale, the pay shall be fixed notionally at that stage;
iii) falls between the two stages in the revised scale the pay shall be fixed notionally at the next stage.
(b) To the initial pay thus notionally fixed as per sub-clause (a) above, shall be notionally added such number of increments in the revised scale as were available of by him or were due to him in the existing pay scale to arrive at his basic pay in the revised scale as on 1-4-1990:
Provided that any such employee may elect to opt for a date later than 1-4-1987 but up to 31-3-1990, for notional fixation of his pay in the revised pay scale in which case provisions of sub-clauses (a) and (b) of sub-rule (1) of this rule shall apply to him from such date opted for:
Provided further that an employee may opt for a date later than 31-3-1990 for fixation of his pay in revised pay scale, in which case provisions of sub-clause (a) of sub-rule (1) shall apply to him from such date opted for. Jammu & Kashmir Civil Services (Higher Judicial Pay Scale Scheme) Rules, 1996.
4. Definition- In these Rules unless the context otherwise requires,-
a) Scheme means the Higher Standard Pay Scale Scheme.
b) Existing Pay Scale means the pay scale of the entry post applicable from 1/4/1987 as per Jammu and Kashmir Civil Service (Revised Pay) Rules, 1992, as indicated in Column 2 of the Schedule 1, held by the Government employee at the time of his/her promotion IN- SITU under this scheme.
Explanation.
(c) Promotion In-Situ means elevation from the existing pay scale to the prescribed Higher Standard Pay Scale without change of designation, responsibility or inter-se-seniority. The admitted and accepted fact position is that the members of the Appellant Association were working as Orderlies till 16th July, 1987. In terms of Order No.309 dated 17th July, 1987 all the posts of Orderlies shown in High Court Order No.90 dated 1st May, 1984 and those created after the date of issuance of aforesaid order were declared as the posts of Process Servers w.e.f the date of issuance of said order. The members of the Appellant Association were thus holding the posts of Orderlies till 16th July, 1987. From 17th July, 1987 these posts were designated as those of Process Servers and members of the Appellant Association accordingly were holding the posts of Process Servers from the aforesaid date. In terms of J&K Civil Services(Revised Pay) Rules, 1987, for short Rules of 1987, which rules came into effect from 1-4-1987, the members of the Appellant Association were working in the pay scale of 630-940. The Process Servers of Excise Department in terms of Rules of 1987 were placed in the pay scale of 800-1500. The members of the appellant Association were not working as Process Servers on 1-4-1987, as the posts held by them were declared the posts of Process Servers w.e.f 14-07-1987.
The grievance projected by the appellants in SWP No.1683/1992 was that they were subjected to discrimination vis-`- vis the Process Servers of Excise Department in the matter of payment of pay scale. The writ court vide its judgment dated 31.08.1994, while allowing the writ petition, commanded respondents to fix the pay scale of appellants at par with the Process Servers of Excise Department with effect from the date when the latest pay revision was made by the Government. It was also directed that they should be paid arrears of pay.
Revised pay rules of 1992 were in force at the time the judgment was pronounced by the writ court. The members of the Appellant Association were thus to be paid the salary in accordance with the revised pay rules of 1992. The rules of 1992 provided for giving the monetary benefits from 01.04.1990 and notional benefits from 01.04.1987.
Rule 6(1) of the Rules of 1992 provide that the initial pay of a Government servant who was in service on 1-4-1987 and to whom existing Pay Rules applied shall be fixed notionally w.e.f 01-04-1987 . The monetary benefit in terms of Rule 5 of the Rules of 1992 were allowed from 1-4-1990.
In terms of the relief granted in the writ petition the appellants were to get benefit of the rules of 1992 in the matter of payment of pay scales. The grievance of the appellants, as already stated, was that they were discriminated in the matter of payment of pay with the process Servers of Excise Department. The appellants were declared to be Process Servers w.e.f 17th July, 1987. Their grievance of discrimination vis-`-vis the Process Servers of Excise Department would both in fact and law commence from 17th July, 1987. A conjoint reading of Rule 4(a) (b) and Rule 6(1) of Rules of 1992 vividly demonstrate that for getting notional benefits, an employee had to be in the particular pay scale on 1-4-1987. Admittedly, on 01.04.1987 the appellants were not holding the posts of Process Servers. So they were not being paid the pays scales of Process Servers on 01-04-1987. Instead on 01-04-1987 they were in the pay scale of Rs.630-940 as on that date they were only Orderlies. The appellants in this admitted factual and legal position cannot notionally be fixed in the pay scale of Process Servers w.e.f 01-04-1987. The appellants in terms of the judgment of the writ court were entitled to get pay scale of Process servers w.e.f 01-04-1990. The order of the Honble Chief Justice passed on the administrative side in clarifying this position in respect of the payment of salary to the appellants is held to be legal and justified in the facts and circumstances of the case.
The rules of 1996 have come into force w.e.f 01.04.1995. In terms of Rule 4(b) existing pay scale has been defined to mean the pay scale of the entry post applicable from 01.04.1987 as per the rules of 1992. In view of the facts enumerated hereinabove, the appellants were not holding pay scale of 800-1500 on 01.04.1987. Their claim for grant of in-situ promotion in the manner suggested by them cannot be accepted. The Honble Chief Justices order in this behalf cannot be also found fault with.
The contention of learned counsel for the appellants that the Notification No.87 dated 28.03.1968 cannot be construed to confer power on the Honble Chief Justice, in view of the findings recorded by the Full Bench in Ghulam Qadir Sheikhs case, merits no consideration and is, accordingly, rejected.
The pay scale fixed by the rules of 1992 have neither been modified nor changed, in any manner, whatsoever, by the order of Honble Chief Justice. The pay rules infact have been given actual and real effect and the anomaly created by misconstruing the said rules has been removed. In fact the control has been exercised by the Honble Chief Justice to enforce the rules. The Honble Chief Justice has been conferred with the powers to exercise control which in terms of Sub Section 4 of Section 30 of Civil Courts Act is being exercised by the High Court.
At para 17 of the judgment of the Honble Supreme Court titled Dayaram Asanand v. State of Maharashtra and Ors, reported in AIR 1984 SC 850 it has been ruled that pay scale to which a judicial officer is entitled to is a condition of service which can be regulated by a statute or rules made under the proviso to Article 309 or by instructions issued under Article 162 of the Constitution. It has been further ruled that it cannot come within the range of the expression Control in Article 235 of the Constitution.
In this case as already stated there is no modification of the pay scale made by the impugned order. Honble Chief Justice has in essence given effect to the pay rules in their proper and correct perspective.
The contention of the learned counsel for the appellants that rules can be framed only in terms of Section 67 of the Constitution of J&K Act, cannot be accepted in view of the full court decision of this Court in Ghulam Qadir Sheikhs case. Even otherwise reference to Sub Section (1) of Section 67 of the J&K Constitution Act, 1996 would show that the rules can be made in respect of these matters under this provision of the constitution which are specifically delineated therein.
The other judgments cited at bar by learned counsel for the appellants deal with the control as defined in Article 235 of the Constitution of India on the subordinate judiciary. In the facts of this case these judgments are not applicable. In view of Order No.87 of 1968, the Control in respect of the issue raised in these proceedings, rests with the Honble Chief Justice.
For our above stated reasons, we find no merit in this appeal, which is, accordingly, dismissed and writ court judgment is maintained.
(Muzaffar Hussain Attar) (Virender Singh)
Judge Judge
Srinagar
19.09.2013
Sarveeda