Allahabad High Court
State Of U.P. vs Class Iv Employees Association, High ... on 25 February, 2003
Equivalent citations: 2004(1)AWC27
Author: K.N. Ojha
Bench: K.N. Ojha
JUDGMENT
S. P. Srivastava and K. N. Ojha, JJ.
1. Feeling aggrieved by the judgment and order passed by the learned single Judge allowing the writ petition giving rise to this appeal in part, which had been filed by the Class IV Employees Association High Court of Judicature at Allahabad and another and issuing a direction to the respondents, which included the present appellants, requiring them to pay salary in the pay scale of Rs. 975-1,660 to all those class IV employees employed in the establishment of the High Court who had been put in the pay scale of Rs. 750-940 and the salary in the time scale of pay Rs. 1,000-1,750 to all such class IV employees who had been put in the pay scale of Rs. 725-1,025 without affecting in any manner the allowances which they were presently getting and further directing that the revised pay scale shall be made available to the class IV employees of this Court w.e.f. 1.7.1994 and so far as the arrears part was concerned it was directed that the same be paid only after issuance of the Government Order in the light of the direction contained in the judgment, the State of U. P. has now come up in appeal seeking redress praying for setting aside of the impugned judgment and order.
2. We have heard the learned counsel for the appellant as well as the learned counsel for the respondents in quite detail and have carefully perused the record.
3. The writ petition giving rise to this appeal had been filed claiming the following relief :
"(1) to issue a writ, order or direction in the nature of mandamus directing the respondents to grant pay scales of Rs. 975-1,660 to class IV employees appointed and recruited under Rule 4A of The Allahabad High Court Officers and Staff (Conditions of Services and Conduct) Rules, 1976, with effect from 1.1.1986 with all consequential benefits and the scale of Rs. 1,000-1,750 to class IV employees appointed by promotion under Rule 4B (c), (d), (e) of the Allahabad High Court Staff and Officers (Conditions of Service and Conduct) Rules, 1976, with effect from 1.1.1986 with all consequential benefits.
4. The petitioners had claimed that they were being discriminated and were being paid lesser pay scale which was available to comparable posts available in the Central Government as they were discharging the same and identical duties. It was also asserted that the denial of the benefit claimed by the petitioners by the State Government was arbitrary and discriminatory and vlolative of Articles 14, 16 and 21 of the Constitution of India. It was further asserted that the petitioners were being denied the benefit of the principle "equal pay for equal work" in an arbitrary and discriminatory manner in violation of Articles 14 and 21 of the Constitution of India.
5. The learned single Judge was of the view that the Government should have been well advised to accord approval to the suggestion of the Chief Justice reflected in the letter of the Registrar dated 16th September, 1994. He was further of the view that in principle the State Government had taken a decision that the employees of the High Court will be equated with a corresponding post in the Secretariat of the State concerned. Later on the State Government had also adopted a resolution on 14.10.1988 to grant parity in the pay scales to the State Employees with the Central Government Employees and this decision, of the State Government was to take effect retrospectively from 1.1.1986.
6. According to the learned single Judge the claim of the petitioners for parity in the pay with their counterpart in Delhi High Court could not be said to be unreasonable or unfounded.
7. The learned single Judge treated the expression "favourable consideration" as contained in the letter of the Registrar dated 16.9.1994 to be a proposal submitted by Hon'ble the Chief Justice to the Government which did not require approval of the Governor of the State as it was possible for the State Government to obliterate the distinction in the matter of pay scales between the class IV employees of this Court and their counterparts in Delhi High Court and there did not seem to be any good and justifiable reason for continuing and maintaining the distinction,
8. The learned counsel for the appellant has urged that the impugned judgment of the learned single Judge proceeds on wrong assumptions and is based on strained reasonings. It is further urged that in the facts and circumstances as brought on record, no justifiable ground could have been said to have been made out for the issuance of the impugned directions specially when the petitioners had never challenged the order passed by the State Government dated 15.11.1994 which had attained finality.
9. Learned counsel for the respondents, however, tried to support the impugned judgment on the reasonings contained therein.
10. Much stress has been laid by the respondents on the resolution of the Uttar Pradesh Shasan notified on 14.10.1988 while constituting an equivalence committee which indicates that the State Government had in principle accepted the demand of the State employees that they should be given pay scales equivalent to the pay scales admissible to the posts existing in the Central Government which stood at par. The equivalence committee was being constituted for those posts where no post which could be said to be at par was available in the Central Government. The most significant thing which deserves to be noticed in the aforesaid resolution is that the demand of the State employees which had been accepted in principle was for the payment of time scale of pay admissible to a post which was at par with the post in the Central Government.
11. It may, however, be noticed that the provisions contained in Rule 36 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, is of great significance. The aforesaid provision is to the following effect :
"36. Pay.--The scales of pay admissible to persons appointed to the various categories of posts in the establishment, whether in a substantive or officiating capacity or as a temporary measure shall be such as may be determined by the Chief Justice from time to time with the approval of the Governor of U. P."
12. The determination referred to in Rule 36 of the aforesaid Rules necessarily involves consideration of various aspects and a conclusion preceded by a reasoning or disclosure of grounds for the conclusion. The petitioners had prayed for their being put in an entirely new time scale of pay. This was a time scale of pay other than the time scale of pay in which the post held by them had been kept by the Chief Justice under the said Rules.
13. Shri Sirohi learned counsel representing the respondent Nos. 3 and 4 had stated during the course of hearing of this special appeal that no determination as contemplated under Rule 36 of the Rules of 1976 had been done by Hon'ble the Chief Justice in regard to the grant of pay scale to the class IV employees of the establishment of Allahabad High Court equivalent the pay scale in which the class IV employees of Delhi High Court stood placed.
14. Much stress has also been laid by the learned counsel for the petitioners-respondents on the D.O. Letter No. 329794 dated 16th September. 1994, sent by the Registrar of this Court to the Legal Remembrance Judicial Secretary, Uttar Pradesh Shasan. Lucknow, in which it had been indicated that the demand of Class IV Employees Association for granting the same pay scale to class IV employees of this Court as has been granted to class IV employees of Delhi High Court, i.e., Rs. 975-1,660 may be considered favourably and the orders of the Government in the matter may be obtained and communicated to the Court. What has been urged in this connection is that since the aforesaid letter had been sent to the State Government with the approval of Hon'ble the Chief Justice it has to be taken that the request made indicated the determination as contemplated under Rule 36 of the Rules of 1976. The contention made in this regard is totally devoid of merit. The aforesaid letter had been prepared by the Registrar and the Registrar acting in accordance with the procedure regulating the communication between the High Court and the State Government had sought the approval of Hon'ble the Chief Justice regarding sending of the letter to the State Government. The request for favourable consideration of the demand was. however, rejected as the State Government on 19.5.2000 vide a detailed order giving various reasons had specifically refused to grant higher pay scale to the class IV employees, a copy of the order passed by the State Government dated 19.5.2000 has been filed as Annexure-1 to the affidavit of Narendra Kumar Srivastava filed along with the Application No. 48735 of 2000 along with which the compliance report was submitted which report was directed to be placed on the record vide the order passed by the Division Bench dated 10.7.2000.
15. In its decision in the case of Supreme Court Employees' Welfare Association v. Union of India and Anr. 1989 (4) SCC 187, the Apex Court had pointed that it is no doubt true that the doctrine of 'equal pay for equal work' is an equitable principle but it would not be appropriate for the High Court in exercise of its discretionary Jurisdiction under Article 226 to examine the nature of work discharged by the staff attached to the Hon'ble Judges of the Court and direct grant of any particular pay scale to such employees, as that would be a matter for the learned Chief Justice within his jurisdiction under Article 229(2) of the Constitution. It was, however, clarified that this may not be construed as total ouster of jurisdiction of the High Court under Article 226 to examine the nature of duties of an employee and apply the principle of 'equal pay for equal work' in an appropriate case.
16. in its another decision in the case of Chandigarh Administration and Anr. v. Jagjtt Singh and Anr., AIR 1995 SC 705. the Apex Court had pointed out that 'Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for Issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose ; ................................ Giving effect to such pleas would be prejudicial to the Interest of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law ............. The High Court cannot Ignore the law and the well-accepted norms governing the writ Jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise".
17. it may further be noticed that some what similar situation had arisen in the case of State of Himanchal Pradesh v. P. D. Attari and Ors., decided by the Apex Court in 1999 (3) SCC 217, certain employees of a particular category employed in the establishment of High Court of Himanchal Pradesh had filed a writ petition seeking benefit of re-designation and equation of posts with the certain posts in the establishment of Punjab and Haryana High Court. The High Court of Himanchal Pradesh had directed the State Government to accord and convey the approval for the re-designation and equation of the post of senior translators and junior translators with revisers and translators and equate them with the post of Superintendents Grade II and Assistants in the Himanchal Pradesh Civil Secretariat from 23.1.1975 within 2 months from the date of the order and on receiving the approval, the second respondent was required to take the consequential steps within one month thereafter and grant such other and further reliefs to the petitioners that they may flow out of the same. The State of Himanchal Pradesh challenged the aforesaid Judgment and order of the High Court of Himanchal Pradesh before the Apex Court. The Apex Court had set aside the Judgment and order of the Himanchal Pradesh High Court. It was, however, clarified that once the Chief Justice, in the interest of the High Court Administration takes 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. A perusal of the judgment of the Apex Court referred to hereinabove in the case of Himanchal Pradesh (supra) makes it abundantly clear that no law commands the State Government to follow the Rules applicable to the employees of any other High Court to the employees of its High Court Rules of which High Court have to be examined Independently and there cannot be any such law that a particular High Court has to suo moto follow the same Rules as applicable on the employees working in other High Court.
18. In the facts and circumstances of the present case the ratio of the decision of Apex Court in the case of State of Himanchal Pradesh (supra) stands squarely attracted. The State Government was not bound to follow the Rules applicable to the class IV employees of the Delhi High Court. So far as the resolution granting pay scale admissible to a post which was at par with that in the State is concerned, no decision in this regard had been taken either by the Equivalence Committee/Samta Committee which could justify the grant of the enhanced pay scale as ordered by the learned single Judge specially when Hon'ble the Chief Justice of this Court has not so far taken any decision contemplated under Rule 36 of the Rules of 1976 and further there has been no occasion for taking any decision as contemplated under Rule 36 of Rules of the Court.
19. The contesting respondents have stressed on the finding of the learned single Judge that Hon'ble the Chief Justice of this High Court, after examining the matter, from all the angles as he is empowered under Rule 40 (3) of the Rules of 1976 had equalised post of class IV employees of this Court with that of the Delhi High Court. It was also observed that "there can be no dispute about the determination made by Hon'ble the Chief Justice under Rule 40 (3) of the Rules of 1976 to the effect that class IV employees of this Court are performing the duties which are, in any manner, inferior or distinct from the duties of the class IV employees of Delhi High Court".
20. It was in the aforesaid view of the matter that the learned single Judge had expressed the opinion that the petitioners were required to be treated with all fairness in the matter and were entitled to the same pay scale which were admissible to their counterpart in the Delhi High Court.
21. The provisions contained in Rule 40 of the Rules of 1976 is to the following effect :
"40. Regulation of other matters,--(1) All officers and servants of the Court shall be subject to the superintendence and control of the Chief Justice.
(2) in respect of all matters (not provided for in these rules) regarding the conditions of service of officers and servants of the Courts including matter relating to their product, control and discipline, the rules and orders for the time being in force and applicable to Government servants holding corresponding posts in the Government of Uttar Pradesh shall apply to the officers and servants of the Court subject to such modifications, variations and exceptions, if any, as the Chief Justice may, from time to time, specify :
Provided that no order containing modifications, variations or exceptions in rules or orders relating to salaries, allowances, leave or pensions shall be made by the Chief Justice except with the approval of the Governor :
Provided further that the said powers exercisable under rules and orders of Government of Uttar Pradesh by the Governor shall be exercised by the Chief Justice or by such officer as he may, by general or special order, direct.
(3) If any doubt arises in regard to a particular post in the establishment being corresponding to a post in the State Government, the matter will be decided by the Chief Justice."
22. As has already been indicated hereinabove, the State Government had formed an equivalence committee (Samta Samiti) for finding out an equivalent post where was a doubt and no post prima facie could be taken to be at par with any post in the Central Government. This Committee had not made any recommendation favouring the petitioners-respondents.
23. We are further of the view that in fact, there is neither any material on the record nor any such document could be pointed out which could lead to an inference that either a doubt had arisen as contemplated under Rule 40 (3) of the 1976 Rules or any decision had been taken in this regard by Hon'ble the Chief Justice. The finding to the contrary returned by the learned single Judge is purely speculative and conjectural and not liable to be sustained. These findings are consequently set aside.
24. In view of what has been indicated hereinabove, the impugned judgment passed by the learned single Judge cannot be sustained in law and is hereby set aside providing, however, that it will be open to Hon'ble the Chief Justice to take a decision in regard to the grant of the higher pay scale as sought for by the petitioners taking into account the aspects indicated in the order of the State Government dated 15.11.1994, if it is found in the interest of the High Court (Administration) specially to ameliorate the service conditions of class IV employees of this Court.
25. We hope and feel, that in case such a decision is taken by Hon'ble the Chief Justice, it will be looked upon with respect and unless there is very good reason not to grant approval, the approval will be granted. If the State Government of U. P. is of the view that approval cannot be granted, it will not straightway refuse to grant such approval, but before doing so, there will be exchange of thoughts between the Chief Justice of U. P. and the Governor of U. P. After seeking concurrence of the State Government of U. P. the rule of 1976 will be amended before extending benefit to the class IV employees which will be available only from the date of amendment of the rules.