State
of Maharashtra Vs. Assn. of Court Stenos. & Anr
[2002] Insc 14 (9
January 2002)
G.B.
Pattanaik, R.P. Sethi & Doraiswamy Raju Pattanaik, J.
Leave
Granted.
This
appeal by grant of special leave is directed against the judgment of Bombay
High Court. The respondents are the Court Stenographers, Personal Assistants
and Personal Secretaries attached to the Honb'ble Judges of Bombay High Court.
They approached the High Court alleging that prior to 30th September, 1990, they were getting the same scale
of pay, as was being paid to the Senior Personal Assistants, attached to the
Chief Secretary and the Additional Chief Secretary in the State of Maharashtra, but that parity has not been
maintained after 1st
October, 1990. Prayer
was, therefore made by the Association that the Pay-scale should be fixed in
the same scale, as the Senior Personal Assistant attached to the Chief
Secretary and the Additional Chief Secretary in the Govt. of Maharashtra, has
been fixed by the Fifth Central Pay Commission. The High Court by the impugned
judgment, came to the conclusion that there was a parity of pay between the
Court Stenographers, Personal Assistants and Personal Secretaries to the Judges
of the High Court with the Senior Personal Assistants to the Chief Secretary of
the State of Maharashtra and when the Fifth Central Pay Commission has revised
the pay scale of the Senior Personal Assistants to the Chief Secretary and
fixed it at the scale of Rs. 10,000-15,200, there is no reason why these
respondents would not be entitled to the same. The Court, therefore, directed
applying the principle of "Equal pay for equal work" that the writ
petitioners are entitled to the pay scale of Rs.10,000-15,000 w.e.f. 1.1.1996.
In case of Private Secretaries to the Senior Administrative Judges of the
Court, the Court went further and directed special allowance should be granted,
as may be deemed fit by the High Level Committee.
Mr.
S.K. Dholakia, the learned senior counsel, appearing for the State, contended
that the High Court was not justified in issuing the direction in the manner in
which it has directed, which tantamounts to granting a specific scale by the
Court in exercise of its jurisdiction under Article 226.
According
to Mr. Dholakia, the Court might be justified in issuing the direction to the
Chief Justice to perform his duty under Article 229(2) by framing a set of
rules and fixing any pay scale therein. But by no stretch of imagination, the
Court would be justified in granting a particular scale of pay to a particular
class of employees in exercise of its jurisdiction under Article 226. On facts
also, Mr. Dholakia submits that it is not correct that uptill 1991, a parity
was being maintained between the pay-scale of Private Secretary to the Judges
and Senior Personal Assistant to the Chief Secretary inasmuch as in the High
Court, while Court Stenographers, Personal Assistants and Personal Secretaries
were getting the pay-scale of 2375-3500, but the Private Secretary to the
Judges were getting the pay scale of Rs.3000-4500 and under the Government, the
Senior P.A. to the Chief Secretary and Additional Chief Secretary was getting
the pay scale of Rs.2375-3500. The same was the position until the Fifth Pay
Commission considered the pay structure and made the necessary recommendation. Under
the Fifth Pay Commission's Recommendation, the Private Secretary to the Judges
were given the pay-scale of Rs.10,000-15,200 which is in pari materia of the
pay scale given to the Senior Personal Assistant to the Chief Secretary and the
Additional Chief Secretary, whereas the Court Stenographers, Personal
Assistants and Personal Secretaries were given the pay scale of Rs. 7450-11500,
which is the pay scale given to the Selection Grade Stenographers in Mantralaya.
According to Mr. Dholakia, it is, therefore, wholly unreasonable for the Court
to direct that the Court Stenographers, Personal Assistants and Personal
Secretaries in the High Court would be given the pay scale of Rs.
10,000-15,200.
Mr.
A.K. Sanghi, appearing for the respondents on the other hand, contended that
the staff attached to the Court, including the Stenographers, Personal
Assistants and Personal Secretaries, discharge much more arduous and onerous
duties, as compared to the stenographers attached to the Chief Secretary/
Additional Chief Secretary in Mantralaya. The Hon'ble Judges of the High Court
possess a higher status than the Chief Secretary or Additional Chief Secretary
in Mantralaya. These stenographers, Personal Assistants and Personal
Secretaries were getting the same scale of pay as the Senior Personal Assistant
to the Chief Secretary and Additional Chief Secretary before the Fourth Pay
Commission and after the Fourth Pay Commission, as well as in 1986 to 1990,
though there has been some variation from 1990 onwards. That being the
position, it is highly un-equitable to equate these Court Stenographers,
Personal Assistants and Personal Secretaries with the Selection Grade
Stenographers in Mantralaya. According to Mr. Sanghi, the High Court,
therefore, was fully justified in issuing the impugned directions. According to
Mr. Sanghi, so far as the Private Secretaries attached to the Senior
Administrative Judges of the Court are concerned, even though they are being
given the same scale of pay as the pay scale of Senior Personal Assistants to
the Chief Secretary and Additional Chief Secretary, the Court was justified in
directing that some special allowance should be given to them.
Under
the Constitution of India, appointment of officers and servants of a High Court
is required to be made by the Chief Justice of the High Court or such other
Judge or officer of the Court as the Chief Justice directs. The Conditions of
Service of such officers and servants of the High Court could be governed by a
set of rules made by the Chief Justice of the High Court and even the salaries
and allowances, leave or pension of such officers could be determined by a set
of rules to be framed by the Chief Justice, but so far as it relates to salary
and allowances etc., it requires approval of the Governor of the State. This is
apparent from the Article 229 of the Constitution. On a plain reading of
Article 229(2), it is apparent that the Chief Justice is the sole authority for
fixing the salaries etc of the employees of the High Court, subject to the
rules made under the said Article. Needless to mention, rules made by the Chief
Justice will be subject to the provisions of any law made by the Legislature of
the State. In view of proviso to sub-Article (2) of Article 229, any rule
relating to the salaries, allowances, leave or pension of the employees of the
High Court would require the approval of the Governor, before the same can be
enforced. The approval of the Governor, therefore, is a condition precedent to
the validity of the rules made by the Chief Justice and the so-called approval
of the Governor is not on his discretion, but being advised by the Government.
It would, therefore, be logical to hold that apart from any power conferred by
the Rules framed under Article 229, the Government cannot fix the salary or authorise
any particular pay scale of an employee of the High Court. It is not the case
of the employees that the Chief Justice made any rules, providing a particular
pay scale for the employees of the Court, in accordance with the constitutional
provisions and that has not been accepted by the Governor. In the aforesaid
premises, it requires consideration as to whether the High Court in its
discretionary jurisdiction under Article 226 of the Constitution, can itself
examine the nature of work discharged by its employees and issue a mandamus,
directing a particular pay scale to be given to such employees. In the judgment
under challenge, the Court appears to have applied the principle of "equal
pay for equal work" and on an evaluation of the nature of duties
discharged by the Court Stenographers, Personal Assistants and Personal
Secretaries, has issued the impugned directions. In the Supreme Court
Employees' Welfare Association vs. Union of India & anr., 1989(4) S.C.C.
187, this Court has considered the powers of the Chief Justice of India in
relation to the employees of the Supreme Court in the matter of laying down the
Service Conditions of the employees of the Court, including the grant of pay
scale and observed that the Chief Justice of India should frame rules after
taking into consideration all relevant factors including the recommendation of
the Pay Commission and submit the same to the President of India for its
approval. What has been stated in the aforesaid judgment in relation to the
Chief Justice of India vis-à-vis the employees of the Supreme Court, should
equally apply to the Chief Justice of the High Court vis-à-vis the employees of
the High Court. Needless to mention, notwithstanding the constitutional
provision that the rules framed by the Chief Justice of a High Court, so far as
it relates 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. The aforesaid assumption is on the
basis that a high functionary like the Chief Justice, before framing any rules
in relation to the Service Conditions of the employees of the Court and
granting any pay scale for them is expected to consider all relevant factors
and fixation is made, not on any arbitrary basis. It is important to notice
that in the aforesaid judgment, the observation has been made:
"It
is not the business of this Court to fix the pay scales of the employees of any
institution in exercise of its jurisdiction under Article 32 of the
Constitution. 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." The
Court also expressed the view in the aforesaid case that the Chief Justice of
India is the appropriate authority to consider the question as to the
distinctive nature and personality of the employees of the Supreme Court and
before laying down the pay scales of the employees, it may be necessary to
ascertain the job contents of various categories of employees and nature of
duties which are performed by them. Further at the time of preparing the rules
for prescribing the Conditions of Service, including the fixation of the pay
scales, the Chief Justice of India will consider the representations and
suggestions of the different categories of employees of the Supreme Court, also
keeping in view the financial liability of the Government. In view of the
aforesaid decision of this Court, it is difficult for us to sustain the
impugned judgment, whereunder the High Court in exercise of its jurisdiction
under Article 226, has issued the mandamus, directing a particular pay scale to
be given to the Court Stenographers, Personal Assistants and Personal
Secretaries attached to the Hon'ble Judges of the Court. In the All India
Judges' Association vs. Union of India and Ors., 1992(1) SCC 119, after a
thorough analysis of Articles 233 to 235 of the Constitution, this Court no
doubt has issued certain directions, ameliorating the Service Conditions of the
Presiding Officers of the Subordinate Courts and also dealt with the
appropriate pay scales for such Presiding Officers, but ultimately did not
propose to finally examine the propriety of the pay scale nor directed that any
particular pay scale should be fixed. 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. We however hasten to
add 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.
That
apart, it appears that between the period 1986 to 1990, the pay scale of Court
Stenographers, Personal Assistants and Personal Secretaries was same as that of
the Selection Grade Stenographers in Mantralaya viz. Rs.2375- 3500, the same
was the position also for the period 1990 to 1996 and after the Fifth Pay
Commission after 1996, it has become Rs. 7450- 11,500, the claim of a parity
with the pay scale attached to Senior Personal Assistants to Chief Secretary
and Additional Chief Secretary, so far as Court Stenographers, Personal
Assistants and Personal Secretaries attached to the Hon'ble Judges are
concerned, possibly is not equitable. But we refrain from expressing any final
opinion on the same, as in our view this would be a matter for the learned
Chief justice of the Court to decide in exercise of power under Article 229(2)
of the Constitution rather than a matter for a Court to issue a mandamus on the
judicial side.
We,
therefore, set aside the impugned directions given by the Bombay High Court and
observe that it would be a matter for the learned Chief Justice of the High
Court to frame the appropriate rules in accordance with the constitutional
provisions, which could be duly approved by the Governor, so that the
grievances of the employees of the Court could be mitigated.
This
appeal is accordingly allowed. There will be no order as to costs.
..........................................J.
(G.B.
PATTANAIK) ....J.
(R.P.
SETHI) ...J.
(DORAISWAMY
RAJU) January 09, 2002.
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