Bombay High Court
Ms. Adeline Rodrigues vs The State Of Maharashtra on 7 August, 2013
Author: V.M. Kanade
Bench: V. M. Kanade, K. R. Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 868 OF 2008
1. MS. ADELINE RODRIGUES )
Registrar (Original Side), )
Prothonotary & Senior Master, )
High Court, Bombay.
ig )
)
2. G.T. MESTHA )
Commissioner for taking Accounts, )
O.S., High Court, Bombay. )
)
3. U.G. MUKADAM )
Addl. Registrar, O.S./Prothonotary )
& Senior Master, High Court, )
Bombay. )
)
4. D.V. SAWANT )
at present posted as Registrar, )
(Judicial-II), High Court, )
Appellate Side, Bombay. )
)
5. Y.C. PARIKH, )
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Official Assignee, O.S/Prothonotary )
& Senior Master, The High Court, )
Bombay. )
)
6. ANIL KUMAR S. SWAMI )
Master & Assitt. Prothonotary,(Adm)
High Court, Bombay. )
)
7. A.P. KOTHARI )
High Court, Bombay.
Deputy Official Assignee, O.S., )
)
)
8 S.P. MATKAR )
Master & Asstt. Prothonotary(Judl) )
O.s. High Court, Bombay. )
)
9. V.L. INDULKAR )
Insolvency Registrar, O.S., High )
Court, Bombay. )
)
10. MRS A.A. UPADHY, )
Master and Asstt. Prothonotary )
(Judl), High Court, Bombay. )
)
11. B.M. GORE )
Taxing Master, O.S. High Court, )
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Bombay. )
)
12. M.D. NARVEKAR, )
Company Registrar, O.S. High )
Court, Bombay. )
)
13. D.V. DEOKAR )
Third Asstt. Master, High Court, )
Bombay. )
14. SHRI SHRIRAM T. KAPSE
)
)
First Asstt Master, High Court, )
Bombay. )
)
15. C.R. BHOGAONKAR, )
Accounts Officer, High Court, )
Bombay, )
All of Mumbai Indian Inhabitants, )
having their Office address at )
High Court, Mumbai- 400032 )....Petitioners.
V/s
1. THE STATE OF MAHARASHTRA )
through the Chief Secretary, )
Mantralaya, Bombay. )
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)
2. THE PRINCIPAL SECRETARY )
Ministry of Finance, Mantralaya )
Bombay. )
3. THE PRINCIPAL SECRETARY )
Law & Judiciary Department, )
Mantralaya, Bombay. )
)
High Court, Bombay.
4. THE REGISTRAR GENERAL )
) ...... Respondents.
Ms. Rajani Iyer, Senior Counsel, with Mr. Sanjay Jain, Ms.
Sneha Iyer and Mr. Lalit S. Jain i/b L.J. Law for the
Petitioners.
Mr. G.W. Mattos, AGP for Respondent Nos. 1 to 3.
Mr. Rajesh Datar for Respondent No.4.
CORAM: V. M. KANADE &
K. R. SHRIRAM, JJ.
DATE: 7th August, 2013
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ORAL JUDGMENT: (Per V.M. Kanade, J.)
1. By this Petition which is filed under Article 226 of the Constitution of India, Petitioners are seeking an appropriate writ, order and direction, directing Respondents to implement the Shetty Commission Recommendation contained in its Report dated 11/11/1999 and also to implement the directions which were given by Hon'ble Chief Justice dated 11/11/2003 in exercise of the powers vested in him under Article 229 of the Constitution of India.
2. Brief facts which are necessary for the purpose of deciding this Petition are as under:-
3. The Central Government constituted the First National Judicial Pay Commission under the Chairmanship of Hon'ble Mr. Justice K. Jagannath Shetty, popularly called "the Shetty Commission" on 21/04/1996. On 11/11/1999, the Shetty Commission submitted its Report making recommendations for revision of pay-scales of Judicial officers. On 21/03/2002, the Apex Court vide its judgment and order accepted the recommendations of the Shetty Commission with certain modifications and further gave directions for payment of higher pay-scales and allowances to the Judicial Officers. The Supreme Court also gave directions to all States and the Union of India to make necessary budgetary provision in their ::: Downloaded on - 06/01/2014 03:49:44 ::: 6/30 (WP868.2008) respective budgets for the implementation of the higher pay-
scales and dearness allowance to the Officers of the subordinate judiciary. Accordingly, State of Maharashtra implemented recommendations of the Shetty Commission.
4. So far as the Bombay High Court is concerned, it also has an Original Side. The Officers appointed on the Original Side and on the Appellate Side till the implementation of the recommendations of Shetty Commission were getting the same pay-scales. However, since the implementation of the Shetty Commission recommendation is available only to Judicial Officers, the Officers who are working on the Original Side are not getting benefits of these recommendations and, as a result, an anomaly is created whereby the Officers working on the Appellate Side of the High Court and those working as Judicial Officers in subordinate judiciary received higher pay and, therefore, situation of disparity in the pay- scales of Officers on the Original Side and Officers on the Appellate Side existed, after implementation of the recommendations of Shetty Commission from 04/07/2003.
5. As a result of anomaly which is created in view of implementation of the Shetty Commission's recommendations, a representation was made by the Officers on the Original Side of the Bombay High Court to the Hon'ble Chief Justice on 04/11/2003, seeking parity in ::: Downloaded on - 06/01/2014 03:49:44 ::: 7/30 (WP868.2008) revision of pay-scales. It was urged in the said representation that revision of pay-scales should also be extended to the Officers working on the Original Side of the High Court. The said representation was approved by the then learned Chief Justice Mr. Justice C.K. Thakkar who also directed the High Court to move Respondent No.1 for according administrative approval and sanction of necessary funds to meet the contingent requirements. In view of the directions given by the Hon'ble Chief Justice, a letter was written by the Prothonotary & Senior Master, High Court (Original Side), Bombay on 7/11/2003 to Respondent No.3.
However, Respondent No.3 neither gave any reply nor took any action on the said directions given by the Hon'ble Chief Justice in exercise of powers vested in him under Article 229 of the Constitution of India. On 26/02/2004, a reminder was sent to Respondent No.3. On 21/06/2005, Respondent No.1 gave reply, stating therein that Finance Department has not approved the representation, stating as under:-
"Shetty Commission has made recommendations to give revised pay scale specifically to the officers in the judicial services of the subordinate courts only. Basically, the duties of the Judges are of a specific nature. Hence, they should be given different pay scale than other ::: Downloaded on - 06/01/2014 03:49:44 ::: 8/30 (WP868.2008) administrative officers, with this purpose only, the judicial Pay Commission was set up. Therefore, except the officers in the judicial services, there does not arise a question of giving to other gazetted officers the pay scales equivalent to them (judicial officers)."
In view of the reply given by Respondent No.1, Petitioners once again made a representation to the then learned Chief Justice Mr. Justice Dalveer Bhandari of this Court on 14/09/2005. In the said representation, Petitioners referred to the Judgment of the Apex Court in Union of India and Anr. vs. S.B. Vohra and Ors1. The Hon'ble Chief Justice approved the said representation and gave directions that Respondent No.1 should be informed about the recommendations and it should be asked to reconsider the proposal in the light of the observations made by the Hon'ble Supreme Court. In view of the said directions given by the Hon'ble Chief Justice, the Prothonotary & Senior Master wrote one more letter dated 11/10/2005 which was addressed to Respondent No.3. On 23/01/2006, Respondent No.3 gave a reply, seeking clarification whether any Rules existed in the present case and further stating that whenever financial implications are involved in the revision of pay-scales, it would require the approval of Respondent No.1. No further steps, however, 1 JT 2004 (1) SC 38 ::: Downloaded on - 06/01/2014 03:49:44 ::: 9/30 (WP868.2008) were taken by Respondent No.3 to forward the said proposal for approval to His Excellency the Governor of Maharashtra. On 27/01/2006, Respondent No.4 gave reply to the said letter dated 23/1/2005 informing Respondent No.1 that Hon'ble Chief Justice with the approval of the Governor of Maharashtra has made applicable different Maharashtra Civil Service Rules to the Officers and staff members of the High Court and requested Respondent No.4 to move the Government/Governor to accord approval to the proposal High Court regarding the revision of pay scales of the Officers of the (Appellate Side and Original Side) as recommended by the Hon'ble Chief Justice. Respondent No.4 had also been informed vide letter dated 11 th October, 2005 by the Prothonotary & Senior Master, High Court Bombay to reconsider the proposal in the light of the Judgment in Union of India vs. S.B. Vohra and Ors1, as directed by the the Hon'ble Chief Justice Mr. Justice Dalveer Bhandari. Respondent No.1 once again rejected the proposal to revise the pay-scales of the Officers working on the Original Side of the High Court by letter dated 31/7/2006. It was stated in the said letter that in view of the provisions of Article 229 sub-section (2), proposal of the Hon'ble Chief Justice requires assent of the Governor. Petitioners thereafter approached this Court by filing this Petition.
6. Respondent No.1 filed an affidavit-in-reply. It is 1 JT 2004 (1) SC 38 ::: Downloaded on - 06/01/2014 03:49:44 ::: 10/30 (WP868.2008) contended in the said reply that criteria which is made applicable to the Judicial Officers who are appointed to the post of Registrar, Deputy Registrar could not be and never applied to the Officers who are working on the Original Side of the High Court. It is, therefore, contended that the attempt made by the Petitioners to equate all Officers working on the Appellate Side of the High Court and in turn equate them with the Officers working on the Original Side is misleading and contrary to the Recruitment Rules. It is contended that only the Registrar (Judicial-1) perform the judicial duties as provided in High Court (Appellate Side) Rules. It is further contended that there was never any parity in the pay-scales and service conditions between both the cadres.
7. Ms Rajani Iyer, the learned Senior Counsel appearing on behalf of the Petitioners invited our attention to Article 229 of the Constitution of India and submitted that Rules framed by the Hon'ble Chief Justice while exercising powers vested in him under Article 229 of the Constitution of India have to be followed by Respondent No.1 and assent of the Hon'ble Governor is a formality which is required to be complied with. She submitted that it was not open for Respondent Nos. 1 and 3 to take a view which is contrary to the view taken by the Hon'ble Chief Justice while exercising the powers vested in him under Article 229 of the Constitution of ::: Downloaded on - 06/01/2014 03:49:44 ::: 11/30 (WP868.2008) India. She submitted that, though separate Rules were not framed the Registrar General, High Court, Bombay had clearly informed Respondent No.1 vide letter dated 27/1/2006 that the Maharashtra Civil Services Rules were adopted and in view of that it was not open for Respondent No.1 not to follow the said directions given by the Hon'ble Chief Justice. She invited our attention to the Judgment of the Apex Court in Union of India and Anr. Vs. S.B. Vohra and Ors1. She invited our attention to the Division Bench Judgment of the Gujarat High Court in Letters Patent Appeal No.1016 of 2006 and also the judgment of the Apex Court in All India Judges' Association vs. Union of India in I.A. No.71A & 142 in Writ Petition (Civil) No.1022 of 1989. She submitted that though Rules were not specifically framed by the Hon'ble Chief Justice, in view of the directions given by the two learned Chief Justices viz Chief Justice C.K. Thakkar and Chief Justice Dalveer Bhandari, it was not open for Respondent No.1 to question the decision of the Hon'ble Chief Justice. She submitted that Respondent No.1 did not even extend courtesy of forwarding the directions of the Hon'ble Chief Justice to the Hon'ble Governor for the State of Maharashtra. She has invited our attention to the observations made by the Apex Court in S.B. Vhora's case (supra) and the judgment of the Division Bench of the Gujarat High Court in Letters Patent Appeal No.1016 of 2006. She submitted that this Judgment given by the Division 1 JT 2004(1) SC 38 ::: Downloaded on - 06/01/2014 03:49:44 ::: 12/30 (WP868.2008) Bench of the Gujarat High Court was challenged by the State of Gujarat in the Apex Court and, after the matter was heard for some time, the State of Gujarat withdrew the said SLP which they had filed in the Supreme Court.
8. On the other hand, the learned Counsel appearing on behalf of the State of Maharashtra submitted that Rules had not been framed before forwarding the directions given by the Hon'ble Chief Justice. He invited our attention to the judgment of the Apex Court in State of Maharashtra vs. Association of Court Stenos, P.A., P.S and another 1. He submitted that in the said case, Petition was filed under Article 226 of the Constitution of India and Division Bench of this Court had granted parity of pay-scales on the principle of equal pay for equal work. He submitted that, however, the Supreme Court set aside the judgment and observed that such a direction could not have been given in the Petition filed under Article 226 on the judicial side but it was held that the said decision could be taken only by the Chief Justice under Article 229 of the Constitution of India, subject to approval of the Governor. He submitted that the averments made in the affidavit which was initially filed were withdrawn by the subsequent affidavit.
9. After having heard both the learned Counsels at length, we are of the view that there is much substance in the 1 (2002) 2 SCC 141 ::: Downloaded on - 06/01/2014 03:49:44 ::: 13/30 (WP868.2008) submissions made by the learned Senior Counsel appearing on behalf of the Petitioners.
10. Before taking into consideration the rival submissions, it is necessary to take a look at provisions of Article 229 of the Constitution of India which read as under:-
"229. Officers and servants and expenses of High Courts.- (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other ::: Downloaded on - 06/01/2014 03:49:44 ::: 14/30 (WP868.2008) Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose.
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a
High
Court, including all
allowances and pensions payable to or in salaries, respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund."
11. The Apex Court had an occasion to consider issue of the powers vested in the Hon'ble Chief Justice under Article 229 of the Constitution of India of framing Rules in the S.B. Vohra' case1 (supra) and the Apex Court in its judgment in the said case has observed in paragraphs 10, 34, 40, 41 and 45 as under:-
"10. Independence of the High Court is an essential feature for working of the democratic 1 JT 2004 (1) SC 38 ::: Downloaded on - 06/01/2014 03:49:44 ::: 15/30 (WP868.2008) form of the Government in the country. An absolute control, therefore, have been vested in the High Court over its staff which would be free from interference from the Government subject of course to the limitations imposed by the said provision. There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in Clause 2 of the Article 229 of the Constitution of India and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course."
"34. The Chief Justice of the High Court in this case was not bound to accept that the posts of Assistant Registrar and Court Masters should be merged. The question as regard merger of the two posts was within the exclusive domain of the Chief Justice. Whether the post of Assistant Registrar should be a promotional post or not, thus, could not fall for decision of the Central Government."
"40. In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Another [JT 1998 (2) SC 1 : 1998 (3) SCC 72] , a Division bench of this Court inter alia held that the Chief Justice has the requisite power to revise the scales of pay subject of course to the approval granted in this behalf by the Governor. This Court in no certain terms observed :
"We again reiterate the hope and feel that once the Chief Justice, in the interest of ::: Downloaded on - 06/01/2014 03:49:44 ::: 16/30 (WP868.2008) High Court administration, has taken a progressive step specially to ameliorate the service conditions of the officers and staff working under him, the State government would hardly raise any objection to the sanction of creation of posts or fixation of salary payable for that post or the recommendation for revision of scale of pay if the scale of pay of the equivalent post in the Government has been revised."
"41. In State of Maharashtra v. Association of Court Stenos, PA, PS and Anr. [JT 2002 (1) SC 55 : (2002) 2 SCC 141] this Court interpreted the provisions Article 229 and proviso appended thereto in the following terms :
"....................Needless to mention, notwithstanding the constitutional provision that the rules framed by the Chief Justice of a High Court, so far as they relate to salaries and other emoluments are concerned, require the prior approval of the Governor. It is always expected that when the Chief Justice of a High Court makes a rule, providing, a particular pay scale for its employees, the same should be ordinarily approved by the Governor, unless there is any justifiable reason, not to approve the same............"
"45. Decisions of this Court, as discussed hereinbefore, in no unmistakable terms suggest that it is the primary duty of the Union of India or the concerned State normally to accept the suggestion made by a ::: Downloaded on - 06/01/2014 03:49:44 ::: 17/30 (WP868.2008) holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The appellant unfortunately did not perform its own duties."
12. The Division Bench of the Gujarat High Court also had an occasion to consider this issue in State of Gujarat Trough the Chief Secretary to Govt. vs. P.J. Patel, Asst. Secretary to Hon'ble Chief Justice and 3 Others in Letters Patent Appeal No.1016 of 2006. In the said case, the Hon'ble Chief Justice of the Gujarat High Court had directed the Government of Gujarat State to maintain parity of pay-scales, after revision of pay scales, of the Post of Secretary, two Additional Secretaries and two Assistant Secretaries to the Chief Justice of the Gujarat High Court in view of the anomaly which had surfaced from July/November, 1991 onwards and in view of the effect which was given to the Resolutions from 1/1/1986, pay-scales of Secretary and Assistant Secretary were lower than the pay-scale of Stenographer Grade I in the Selection Grade from which cadre the Assistant Secretaries were appointed. In order to remove the said anomaly, the Hon'ble Chief Justice had recommended that parity should be maintained and recommended the pay-scales of Rs 4500- ::: Downloaded on - 06/01/2014 03:49:44 ::: 18/30 (WP868.2008) 5700 for the posts of Secretary and Additional Secretary to the Chief Justice and Rs 3500-5000 for the post of Assistant Secretary to the Chief Justice. The recommendations made by the Hon'ble Chief Justice of the Gujarat High Court were not accepted by the Gujarat Government. Division Bench of the Gujarat High Court, when a Petition was filed, has considered the said issue and observed in paragraphs 49, 50, 58 and 60 as under:-
"49. It was as far back as in 1971 that the Constitution Bench of the Hon'ble Supreme Court in M. Gurumoorthy vs. Accountant General, Assam and Nagaland, 1971 (2) SCC 137 held in the following emphatic terms :-
"11. The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. This is essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution- makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause (1) read with ::: Downloaded on - 06/01/2014 03:49:44 ::: 19/30 (WP868.2008) Clause (2) of Article 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1). The approval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. Even under the Government of India Act the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chief Justice of the Court under S. 242 (4) read with S. 241 of the Government of India Act, 1935.
12. ...... Thus Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service. These can be prescribed by rules made by him. Apart from the special situation contemplated by the proviso to clause (1) the only exception is that the Governor's approval must be sought to the extent the rules relate to salaries, leave or pension. This exception, it is abundantly clear, has to be made because the finances have to be provided by the Government and to the extent there is any involvement of expense ::: Downloaded on - 06/01/2014 03:49:44 ::: 20/30 (WP868.2008) the Government has to approve of it."
[emphasis supplied] "50. Again in State of U.P vs. CL Agrawal, (1997) 5 SCC 1, the Constitution Bench of the Apex Court has held as under :-
"12. Article 229 does not state that posts in the High Court are to be created by the Governor; it does not even deal with the creation of posts. Clause (1) thereof empowers the Chief Justice to make the appointments of officers and servants of a High Court. Clause (2) empowers the Chief Justice to make rules prescribing the conditions of service of officers and servants of a High Court with the proviso that so far as these rules relate to salaries, allowances, leave or pensions, they require the Governor's approval. Clause (3) requires the administrative expenses of the High Court to be charged upon the Consolidated Fund of the State."
[Emphasis supplied) "58. While accepting the above submission of the learned Advocate General as the correct legal principle, we are afraid the acts of commission and omission have not remained mere notings on the file.
We are sorry to note that the unpleasant disagreements and the proceedings before this Court for the last two years could have been easily averted if the Law Secretary and Remembrancer of Legal Affairs had brought to ::: Downloaded on - 06/01/2014 03:49:44 ::: 21/30 (WP868.2008) the notice of the Hon'ble the Chief Justice of this Court, through the Registrar, the decision of the State Government taken at the highest level on 26.4.2004 and inquiring whether the Hon'ble the Chief Justice was agreeable to the suggestion made in para (2) of the said decision. Far from not inviting the attention of the Hon'ble the Chief Justice to such an important decision, the Law Secretary went on the committee of Secretaries which did nothing short of finding faults with the recommendations of the Hon'ble the Chief Justice made since 1992/1998 and conveyed the same to the Hon'ble the Chief Justice through letters dated 13/14.10.2005 and 7.6.2006, inter alia, treating the Secretary, Additional Secretaries and Assistant Secretaries to the Hon'ble the Chief Justice as nothing but a group of Stenographers working as personal staff of the Hon'ble Chief Justice and making an innuendo that they were claiming higher pay-scales recommended by the Hon'ble the Chief Justice merely because they happened to be in the Chief Justice's Secretariat. The contents and the tenor of the letters dated 13/14.10.2005 and 7.6.2006 of the Law Secretary are not only in bad taste but they also run counter to the provisions of Article 229(2) of the Constitution as interpreted by the Constitution Bench of the Hon'ble Supreme Court right from M. Gurumoorthy vs. Accountant General, Assam and Nagaland, 1971 (2) SCC 137 and several other decisions referred to hereinabove."
"60. The various acts of commission and omission need to be seen in the context of the crucial role expected to be played by the Law Secretary as explained by the Apex Court in Gauhati High Court Vs. Kuladhar Phukan ::: Downloaded on - 06/01/2014 03:49:44 ::: 22/30 (WP868.2008) (2002) 4 SCC 524 (para 20).
'In almost all the States and Union Territories in the country serves of judicial officers are loaned by High Courts to the Governments for being utilized in litigation, judicial, law and legislative affairs departments of the Governments, by whatever name the departments may be called. The Secretary (Law) or a Legal Remembrancer serving under the Government though is a judicial officer whose services have been placed at the disposal of the Government by the High Court has a crucial role to play. He is a vital link of communication between the High Court and the Government and his relationship with the two wings strategically enables a healthy and appropriate relationship being maintained between the two."
[emphasis supplied] The Law Secretary has sadly not come upto the above expectations. For the present, we do not make any further observations against the Law Secretary, a young judicial officer, who has spent the last about five years only doing administrative work (including last more than three and a half years in the State Government Secretariat)."
13. So far as the judgment in State of Maharashtra vs. Association of Court Stenos, P.A., P.S and another 1 on which the reliance is placed by the learned Counsel appearing on 1 (2002) 2 SCC 141 ::: Downloaded on - 06/01/2014 03:49:44 ::: 23/30 (WP868.2008) behalf of Respondents is concerned, in our view, ratio of the said judgment is not applicable to the facts of the present case. On the contrary, observations made by the Apex Court in para 5 of the said judgment supports the case of the Petitioners. In the said case Court Stenographers, Personal Assistants and Personal Secretaries to the Bombay High Court Judges had filed a Petition under Article 226 of the Constitution of India, claiming parity of pay-scales as was given to Senior Personal Assistants to the Chief Secretary of the State pursuant to the 5th Central Pay Commission Report. The High Court, while exercising its jurisdiction under Article 226 of the Constitution of India had held that there was a parity in the pay-scales of the said two set of employees and after following the principle of equal pay for equal work, State Government was directed to pay the same pay-scales to the said Petitioners in Writ Petition. Apex Court, however, held that such a direction could not be given under Article 226 of the Constitution of India. In our view, ratio of the said case will not apply to the facts of the present case. On the contrary, in para 5 of the said judgment the Apex Court has observed that Hon'ble Chief Justice is the sole authority for fixing the salaries of the employees of the High Court, subject to rules framed under the said Article. In view of the aforesaid law laid down by the Supreme Court, we will have to consider the rival submissions.
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14. In our view, Respondent No.1 and 3 have committed an error of law which is apparent on the face of record and which is contrary to the law laid down by the Apex Court. It is surprising that Respondent No.3, Principal Secretary, Law and Judiciary and Respondent Nos. 1 and 2 have taken a very callous and casual attitude while rejecting the directions given by the Hon'ble Chief Justice. Perusal of Article 229 clearly reveals that Hon'ble Chief Justice has the sole prerogative of fixing the pay-scales and salaries of the employees of the High Court and it is not open for the State Government to brush aside the directions given by the Hon'ble Chief Justice under Article 229 of the Constitution of India. We are pained at the language used by the Respondents in their affidavit-in-reply, which, in our view, is not only contemptuous but falls nothing short of committing contempt of this Court, particularly after directions were given by the Hon'ble Chief Justice under Article 229 of the Constitution of India. The Article envisages that not only the appointments of Officers and Servants of the High Court shall be made by the Chief Justice but even the conditions of service of Officers and Servants of the High Court shall be such as may be determined by the Rules framed by the Chief Justice. In the present case, it is an admitted position that Maharashtra Civil Services Rules have been adopted by the Hon'ble Chief Justice and this fact was brought to the notice of Respondent No.1. The Hon'ble Chief Justice of this ::: Downloaded on - 06/01/2014 03:49:44 ::: 25/30 (WP868.2008) Court had directed the Prothonotary to inform the decision taken by the Chief Justice to the Respondents. However, Respondent Nos. 1 to 3 have not complied with the directions which were given by the Hon'ble Chief Justice. The attitude of Respondent Nos. 1 and 3 is reflected from the language used in the affidavit in reply. In para 6 of the Affidavit in reply, Joint Secretary Pradeep Bavkar has stated as under:-
"6........It is not known as to what exercise or homework was done before the decision regarding revision of pay scales was taken..."
It is true that subsequently when the learned Advocate General appeared, the said observations were sought to be withdrawn by filing another affidavit-in-reply. Be that as it may, the said language clearly indicates the attitude of Respondent No.3 to the directions which were given by the Hon'ble Chief Justice.
15. In our view, even if the Rules have not been framed by the Hon'ble Chief Justice, directions were given to give parity in pay-scales to the Officers working on the Original Side of the High Court with Judicial Officers working on the Appellate Side of the High Court. It has to be noted here that the said directions were not followed with the remark "Rules are not framed" but, in our view, that cannot be the reason for not ::: Downloaded on - 06/01/2014 03:49:44 ::: 26/30 (WP868.2008) complying with the directions. It is obvious that in spite of the fact that judgment of the Apex Court in S.B. Vohra's case1 (supra) was brought to the notice of Respondent Nos. 1 and 3, the State Government has chosen to take the same adamant attitude. Even the State of Gujarat had filed SLP in the Apex Court against the judgment of the Division Bench of the Gujarat High Court in P.J. Patel (supra) but after the matter was heard by the Supreme Court for sometime, the learned Counsel for the State of Gujarat made a statement that the State of Gujarat had no objection for implementing the judgment. The Order of the Supreme Court in the said SLP reads as under:-
ORDER "Heard learned counsel for the parties The counsel appearing for the State of Gujarat has submitted that the Government has no objection in implementing the judgment and it would be implemented within six weeks.
It is pointed out that in the impugned judgment certain observations have been made against the then Law Secretary. The observations made on paras 58, 59, 60 and 61 against the then Law Secretary are expunged.
1 JT 2004 (1) SC 38 ::: Downloaded on - 06/01/2014 03:49:44 ::: 27/30 (WP868.2008) The Special Leave Petition is disposed of as no other issue survives."
16. It has to be noted here that if the directions given by the Hon'ble Chief Justice are implemented, there wont be any financial burden on the State of Maharashtra, since, as of today, salary drawn by the Class-I Officers on the Original Side and Appellate Side is almost equivalent and there is negligible difference in the said salaries drawn by two sets of Officers on both sides.
ig Be that, as it may, even if the question of financial implication is concerned, that could not be a ground to reject the recommendations made by the Chief Justice. Under these circumstances, we are of the view that the impugned decision communicated by Respondent No.1 to 3 will have to be quashed and set aside and the Petition will have to be allowed.
17.. In the result following order is passed:-
ORDER
(i) Petition is allowed. The impugned decision communicated to the High Court by Respondent Nos. 1 and 3 is quashed and set aside.
(ii) Respondent Nos. 1 to 3 are directed to comply with ::: Downloaded on - 06/01/2014 03:49:44 ::: 28/30 (WP868.2008) the directions given by the Hon'ble Chief Justice that the pay-scales and service conditions of the Officers on the Original Side of the High Court, Bombay should be fixed on par with the Mufussil Judiciary and Officers working on the Appellate Side, as recommended by the First National Judicial Pay Commission (Shetty Commission) and we further direct that the Government of Maharashtra should grant/sanction the necessary funds to meet the contingent requirements.
(iii) We also issue the following directions:-
(a) The Registrar(O.S.)/Prothonotary & Senior Master High Court, Bombay, shall within one month from the date of receipt of this judgment forward the proposal with the Rules as per the recommendations already made by the Hon'ble Chief Justice of the High Court through the letters written by the Prothonotary & Senior Master dated 7/11/2003 and 11/10/2005 to come into force from 1/7/1996.
It is, however, clarified that the said pay-scales should be given to the Officers of the Original Side of the High Court, Bombay from the date on which the Judicial Officers were given the pay-scales on the Appellate Side i.e 4/7/2003.
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(b) The Registrar(O.S.)/Prothonotary & Senior Master High Court, Bombay, shall also forward a statement of calculations regarding the additional financial burden likely to be cast upon the State Exchequer upon acceptance of the aforesaid recommendations dated 7/11/2003 and 11/10/2005 with regard to the Basic Pay and Gross Pay of the Officers appointed on the Original Side of the High Court, Bombay by the Hon'ble Chief Justice.
(c) that as per this judgment, refusal of the State Government is held to be unreasonable and arbitrary.
(d) The State Government shall within one month from the date of receipt of the Rules to be forwarded by the Registrar(O.S.) /Prothonotary & Senior Master High Court, Bombay, as aforesaid, place before His Excellency the Governor of Maharashtra for approval under the provisions of Article 229(2) of the Constitution, the Rules for revision of pay-scales of the Officers working on the Original Side of the High Court, Bombay alongwith relevant documents.
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(e) Compliance Report be given by Respondent Nos. 1 to 3.
Rule is made absolute accordingly.
Matter be placed on board for directions on 21 st October, 2013.
(K.R. SHRIRAM, J.) ig (V.M. KANADE, J.) B.D. Pandit, PS. ::: Downloaded on - 06/01/2014 03:49:44 :::