Government
of Andhra Pradesh Vs. P. Hari Hara Prasad & Ors [2002] Insc 435 (10 October 2002)
Y.K.Sabharwal
& H.K. Sema. Y.K. Sabharwal, J.
The
respondents are the writ petitioners who have succeeded before the High Court
in their claim of parity of pay. The writ petitions were filed by the employees
of the High Court of Judicature, Andhra Pradesh, Hyderabad and also by employees of various subordinate courts in the
said State claiming that their scales of pay should be on par with the
Assistants, Typists and Steno-typists of the Andhra Pradesh Secretariat
Service. Their claim was based on G.O.Ms. No.316 dated 13th September, 1971 and G.O.Ms. No.80 dated 28th March, 1973. These Government Orders have been
issued by Finance (Pay-Commission), Department of Government of Andhra Pradesh.
The 1971 order was issued to comply with judgment of the High Court of Andhra
Pradesh in Writ Petition No.3713 of 1969 filed by certain L.D.Cs., Typists and
Steno-typists working in the Departments of Secretariat. By that order the
Government directed that the revised pay scale of Rs.110-225 be given to all
graduate L.D.Cs., graduate Typists and graduate Steno-typists. The 1973
Government Order was issued extending the same benefit of non-graduates on
acceptance of their representations. The writ petitioners submitted before the
High Court that the benefit of these two Government Orders was not extended to
them, viz. employees of the High Court and subordinate courts and they were
kept in dark till filing of the writ petitions.
In opposition
to the writ petition, it was submitted that the Government Order dated 13th September, 1971 was not applicable to the employees
of the High Court and the subordinate courts and that it was applicable only to
the employees of the Secretariat. Reliance was also placed by the Government
upon a judgment of a learned Single Judge of the High Court in Writ Petition
No.4357 of 1982 dated 3rd September, 1987 wherein dealing with the
applicability of Government Order d ated 13th September, 1971, it was held that
the claim of the members of the Andh ra Pradesh Judicial Ministerial Service
for payment of the salaries and allowanc es on par with the LDCs and
Steno-typists in the Secretariat is unfounded and ca nnot be granted. It was
further pleaded by the Government that the claim of the writ petitioners was
barred by latches. On another learned Judge expressing the view that the
aforesaid judgment requires reconsideration, the writ petitions of the
respondents were heard by a Division Bench of the High Court. Allowing the writ
petitions by the impugned judgment dated 31st March, 1992, the High Court has
held that the posts of LDCs and Typists in the High Court Service or in the
Judicial Ministerial Service and in the Secretariat Service are not only
identical but also involve the performance of same nature of duties and,
therefore, it will be unreasonable and unjust to discriminate between the two
in the matter of pay. It was held that the writ petitioners are also entitled
for the same scale of pay as was being drawn by the Secretariat employees in
the same or equivalent posts from time to time from 1969. Their pay was
directed to be fixed from 1969. It was directed that the pay be revised on par
with that of the employees working in the Secretariat. The High Court, however,
directed that the writ petitioners were not entitled for the arrears of salary
till 3rd September,
1987, when the
decision was rendered in writ petition No.4357 of 1982 holding that the claim
of parity is unfounded and the petitioners having slept over the matter for a
long time thereafter. It has been further noticed in the impugned judgment that
majority of the employees filed writ petitions in the year 1992. It was,
therefore, directed that they are entitled to half of the arrears of salary
from 1987 to 1992 and full pay after re-fixation from f1st April, 1992. The
further direction that has been issued is that the order would be applicable
not only to the petitioners but all employees of the High Court and the
subordinate courts who are similarly situated. In Civil Appeal Nos.247-251 of
1993, the Government has challenged the correctness of the impugned judgment.
There
are two sets of the respondents before us:
(1) employees
of various subordinate courts and
(2)
the employees of the High Court.
First
we would consider the case in respect of employees of subordinate courts. The
pay scales claimed by them on the basis of Government Order of 1971 have been
accepted by the High Court holding that posts in two services are identical and
the officials in two different services perform same nature of duties. The two
set of employees are governed by different Rules and, therefore, their pay
scales and other conditions of service are to be governed by the respective
Rules applicable to them. Ordinarily, it is not permissible to go into the
nature of duties of employees while exercising writ jurisdiction under Article
226 of the Constitution of India and on that basis direct grant of pay scales
which are applicable to employees of a different service. The question of grant
of parity of pay to the employees of the courts came up for consideration
before a three Judge Bench in State of Maharashtra v. Association of Court Stenos., P.A., P.S. & Anr. [(2002)
2 SCC 141]. Referring to the decision in Supreme Court Employees' Welfare
Association v. Union of India & Anr. [(1989) 4 SCC 187], it has been held
therein that the judgment of the High Court in exercise of its jurisdiction
under Article 226 issuing writ of mandamus directing a particular scale to be
given to the courts stenographers, Personal Assistants and Personal Secretaries
attached to the Hon'ble Judges of the High Court cannot be sustained. It has
further been held 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 scales to such
employees. The position is almost same here.
In
view of the aforesaid, the issue of the writ of mandamus, directing the parity
of pay scales on the assumption that posts are identical and the two sets of
employees performs the same nature of duties cannot be sustained insofar as the
employees of the subordinate courts are concerned.
Mr. Nageshwar
Rao, learned counsel appearing for the employees, submitted that, in fact, what
was being sought by the employees of the subordinate courts was not parity of
pay scales but they were claiming difference of Rs.20 that was paid less to
them when compared to the Secretariat staff. We are, however, unable to accept
this submission. The main relief claimed in the writ petition was the scales of
pay of these employees must be at par with the Assistants, Typists and
Steno-typists of the Andhra Pradesh Secretariat Service. The claim was based on
the two Government Orders referred to earlier. It is apparent that the said
Government Orders are not applicable to the employees of the subordinate
courts. Those Government Orders were applicable to the employees of the Andhra
Pradesh Secretariat Service. Benefit of the said orders has been given to the
corresponding employees of the subordinate courts in judgment under appeal
holding that duties performed by them were similar. On principles, the present
case is not different from that of State of Maharashtra referred to above. In view thereof, the impugned judgment
in relation to employees of subordinate courts cannot be sustained.
Now we
would examine the case of employees of High Court.
In
respect of the employees of the High Court, the Government Order GOMs. No.426
dated 15th November,
1961, on the subject
of revision of pay scales, stipulates as under :
"16.
With the concurrence of the Chief Justice, High Court, the revised pay scales
are also made applicable to persons serving on the staff of the High
Court." It may also be noticed that the Andhra Pradesh High Court Officers
and Staff Scales of Pay Rules, 1975 which came into force on 1st January, 1974
and apply to all employees of the High Court, whether temporary, regular or
permanent, appointed before 1st January, 1974, stipulate that for the purpose
of pay and allowances the posts in column (1) of Schedule-II shall correspond
to the posts in the Secretariat of the Government of Andhra Pradesh specified
in column (2) thereof. The Schedule refers to the post with which we are
concerned. It would, thus, be seen that under G.O. dated 15th November, 1961 and the aforesaid Rules, the
revised pay scales were made applicable to persons serving on the staff of the
High Court. The controversy in these matters is, however, restricted to the
period from 1969 to 1974. It appears that the Government Order dated 13th September, 1971 was not received by the High Court.
It does not appear to have been endorsed to the High Court. The stand that the
said order was not received by the High Court has been accepted in the impugned
judgment. The Government Order dated 28th March, 1973, however, bears an endorsement in
token of that order having been sent to the Registrar of the High Court. It
seems that the problem in the concerned employees of the High Court not getting
the benefit of the Government Order dated 13th September, 1971 arose on account of non-receipt of
that order by the High Court. Except for the period between 1969 till 1st January, 1974, the employees of the High Court
were being given the revised pay scales at par with the employees of the
Government. In view of above, the direction in the impugned judgment in
relation to the employees of the High Court is unassailable.
For
the aforesaid reasons, we partly allow the appeals and set aside the impugned
judgment to the extent it directs that the employees of the subordinate courts
are entitled for the same scale of pay as was being drawn by the Secretariat
employees in the same or equivalent post from time to time from 1969. The writ
petitions filed by the employees of subordinate courts before the High Court
would stand dismissed. Consequently, the Special Leave Petitions are also
dismissed. In the facts and circumstances of the case, parties are left to bear
their own costs.
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