TMI Blog1992 (7) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... r City and another for Jaipur District. According to the non-petitioner-appellant, the judgment of the learned single Judge is without jurisdiction. The learned single Judge has transgressed the powers conferred upon the High Court under Article 226 of the Constitution and has thereby erred in giving directions to the Executive. It has been contended that the grant of pay scales to the members of any Service is governed by the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 and the earlier Rules made by His Excellency the Governor of Rajasthan under proviso to Article 309 of the Constitution and, therefore, all directions given by the learned single Judge are legislative in character and as such, no such directions, could have been given by the learned Single Judge. It has been further contended that the Courts are not conferred any powers to legislate any legislation and, therefore, as per the appellant, the learned Single Judge has wrongly assumed the role of the legislature, which has not been conferred upon the High Court under Article 226 of the Constitution. 2. It was submitted that the learned Single Judge has failed to properly appreciate the decision re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogate to themselves these functions. It was further submitted that the Indian Administrative Service is a Service carrying higher responsibilities than the Rajasthan Higher Judicial Service. According to the appellant, when the holder of supertime scale of Rajasthan Administrative Service is promoted to Indian Administrative Service, he gets lesser pay. It was contended that the observations of the learned single Judge as to how Judges should be appointed in the High Court were also uncalled for and they be declared per incuriam because no such point was raised in the writ petition and no submissions were made before the learned single Judge about it and, therefore, a fervent plea has been made that this appeal be accepted and the impugned judgment of the learned single Judge dated 2.12.1991 as modified vide order dated 16.12.1991 be set aside and the impugned directions given in the judgment be quashed with costs of the appeal on respondent No. 1. 5. In his writ petition, the petitioner-respondent No. 1 has contended that the Rajasthan Higher Judicial Service, which consists of Additional District Sessions Judges and District Sessions Judges is definitely a superior servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paras 9 and 10 of the writ petition, it was submitted that after the formation of Rajasthan, the Rajasthan Civil Services (Unification of Pay-Scales) Rules, 1950 were brought into force with effect from 1.4.1950 and since then, the pay scales of employees of State of Rajasthan were revised from time to time. According to the petitioner-respondent No. 1, right from 1.4.1950 till 12.8.1987, the pay scales of officers of Rajasthan Higher Judicial Service have always been much higher and better than the pay scales given to the Officers of the Rajasthan Judicial Service. These averments have also not been disputed on behalf of non-petitioner-appellant. 7. In para 11 of the writ petition, it was contended in compliance of the judgment of this Court dated 18.12.1987 passed in Padam Kumar Jain, President of R.J.S. Officers Associations, Jaipur v. State of Rajasthan D.B. Civil Writ Petition No. 2216 of 1987, the State Govt. has provided the following four pay-scales to the Officers of the Rajasthan Judicial Service; with effect from 13.8.1987: Whereas the Officers of Rajasthan Higher Judicial Service were getting the following pay scales on 13.8.1987: It was sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to avoid such a situation for the Officers of the Rajasthan Higher Judicial Service and it has prescribed the ordinary scale of Rajasthan Higher Judicial Service as identical to the highest pay scale of Rajasthan Judicial Service. It was also contended in para 12 of the reply to the writ petition that the State Govt. is of the firm view that the ordinary scale of Rajasthan Higher Judicial Service, which is promotion post for Rajasthan Judicial Service Officers, should in no case be less than the highest scale of Rajasthan Judicial Service and, therefore, on prescription of supertime scale of Rajasthan Judicial Service as 3900-5300, the Ordinary scale of Rajasthan Higher Judicial Service should have been suitably revised but it was not done because it escaped notice of the Government and the concerned Officers also did not bring it to the notice of the Govt. perhaps for the reason that it was not going to effect their existing pay. It was also averred in para 12 of the reply to the writ petition that suitable revision of the ordinary scale of RHJS Officers under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1987 shall be made shortly incorporating an amendment their und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 suggested this very pay scale for ordinary scale Officers of Rajasthan Higher Judicial Service, keeping in view of the minimum of the super time scale of Officers of Rajasthan Judicial Service. It has been admitted that though, this was not in line with past practice but this recommendation was accepted to give advantage to the RHJS Officers. The State Govt. laments why Officers of Rajasthan Higher Judicial Service are raising grievance about it. Thus, this much has been admitted that this suggestion of the Equivalence Committee was not in the line of the past practice which was in vogue before 1.4.1950 to 12.8.1987. 11. It was further contended by the non-petitioner-appellant that the District Sessions Judges or the Addl. District Sessions Judges are district level Officers whereas the Secretaries to the Govt. are State-level Officers. The Secretaries to the Govt. form policies which are executed by the district-level Officers. The Secretary to the Govt. whether he be Law Secretary or any other Secretary form policies for whole of the State, participates in decision making process which affects whole of the State'; supervises work of the district level Officers; iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict Sessions Judges are concerned. 13. We have heard Mr. B.P. Aggarwal, Advocate General assisted by Mr. L.S. Udawat, the learned Additional Advocate General, Mr. M. Mridul, the learned Counsel for respondent No. 1 and Mr. N.N. Mathur, the learned Counsel for respondent No. 2 and have carefully gone through the record of the case. 14. Mr. B.P. Aggarwal, the learned Advocate General appearing for the State has contended that the powers of this Court under Article 226 of the Constitution are very limited. Neither it can legislate nor it can issue any directions to the State Govt. in the form of a writ of mandamus to make particular Rules. In support of this contention, he has placed reliance on a decision of their lordships of the Supreme Court in Mallikarjuna Rao v. State of A.P. This decision was also cited before the learned single Judge. In that case their lordships of the Supreme Court have held that it is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the There can be no doubt that no Court can direct a legislature to enact a particular law. Similarly, when an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. We may state here right and now that the learned single Judge did not give any directions to the legislation to legislate the Rules. No mandamus was issued carving out any pay scales for the Officers of the Rajasthan Higher Judicial Service so far as ordinary time scale and selection scales are concerned. These scales which have been granted to RHJS Officers as Ordinary and Selection scales already stand carved out by the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. The Ordinary and Selection scales which have been prescribed for RHJS Officers find mention in Schedule-I appended to the aforesaid Rules as Scales No. 26 27. Thus, there is no direction to legislate. The grievance of the Officers of the Rajasthan Higher Judicial Service is that they have always been treated as superior to RJS Officer keeping in view their nature of duties, nature of powers and nature of functions. This is what has been mentioned in para 8 of the writ petition; which has not been denied by then non-petitioner-appellant. Rather, it has been admitted by the non- petitioner-appellant that the Rajasthan Higher Judicial Service is a superior service than Rajasthan Judicial Service and sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, as the case may be, as has been held in the Secretary, Finance Department's case (supra). 17. The learned Advocate General drew, our attention to a decision of their lordships of the Supreme Court in K. Vasudevan Nair v. Union of India 1991 (2) SCC 124 wherein it has been held that the findings of expert bodies like Pay Commission should not be interfered with ordinarily. It is not possible for the Supreme Court to determine the question on the basis of assertions made in writ petition and counters filed on behalf of the Union of India. This authority has no application to the facts of the present case. In this case, the Pay Commission headed by Hon'ble Justice B.P. Beri (Ex. Chief Justice of Rajasthan) has granted the following pay-scales for the Officers of the Rajasthan Higher Judicial Service and Rajasthan Judicial Service with effect from 1.9.1981: However, with effect from 20.4.1983, the posts of Addl. Civil Judges-cum-Chief Judicial Magistrates were upgraded and they were also granted pay scales equivalent to the Civil Judge- cum-Chief Judicial Magistrates in the pay scale of ₹ 1600-2325. Thereafter, in the year 1986, the report of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the nature of duties, nature of functions and jurisdiction over the cases to be decided by the RHJS Officers are superior than the Officers of the Rajasthan Judicial Service, the grant of similar running pay scales of ₹ 4500-5700 to the Ordinary scale Officers of the Rajasthan Higher Judicial Service and the supertime scale RJS Officer is unjust and arbitrary and, therefore, the pay scale of ₹ 4500-5700 granted to the ordinary scale RHJS Officers deserves to be quashed. 18. It was contended by the learned Advocate General that if the grant of a particular scale is considered to be arbitrary and unjust then it can be quashed but no directions can be issued that particular pay scale should be provided to the ordinary scale RHJS Officers. The learned Advocate General was confronted with this situation that if it is held that the grant of pay scale No. 25 i.e. 4500-5700 to the ordinary scale RHJS Officers is arbitrary and unjust and therefore, it deserves to be quashed then the State Govt. is left with no other alternate than to grant pay scale No. 26 i.e. 5100-6300 to the ordinary scale RHJS Officers and the pay scale No. 27 i.e. 5900-6700 to the selection scale RHJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation to this case. 21. He has further drawn our attention to a decision of their lordships of the Supreme Court in State of UP. v. J.P. Chaurasia (1989) 1 SCC 121, wherein it has been observed that in cases of parity in employment, factors justifying differentiation depends on evaluation of duties and responsibilities besides quantity, quality which are also material. The Courts are not suited to evaluate and compare on the basis of affidavits and pleadings. Such matters should be left to the executive who should appoint an expert body for the purpose. Courts should respect such determination unless malafides are shown. Here, it is an admitted case of the non- petitioner-appellant that RHJS is definitely a superior service than Rajasthan Judicial Service keeping in view the nature of duties, responsibilities and functions and, therefore, it is not a case where the Court will have to evaluate and compare their comparative duties and functions and powers on the basis of affidavits and pleadings. It is not a case where a direction has been issued to the State Govt. to frame new ordinary and selection scales. The scales stand formulated in the Rules. The question is that when, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, it is definitely a case of treating unequals as equals. 24. This Court in Madan Gopal Kabra v. The Union of India 1951 RLW 56 has held that under Article 226 of the Constitution, the power is conferred upon the High Court to issue not only writs in the nature of various categories specified in the Article but along with the writs, it can also issue directions and orders and they may be issued not only for the enforcement of fundamental rights but for any other purpose. If Article 14 of the Constitution is given a go-bye and the equality principle is violated, this Court can issue directions. 25. In this respect, Mr. Mridul has drawn our attention to a decision of their lordships of the Supreme Court in Purshottam Lal v. Union of India AIR 1973 SC 1088, wherein although a particular report was submitted by second Pay Commission but with regard to a particular category of servants, it was not being implemented from a particular date. Rather, it was implemented from a later date recommended by the Pay Commission and, therefore, their lordships of the Supreme Court issued directions that it should be implemented from a particular date. 26. Mr. Mridul further r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same. This principle of equal pay for equal work which was firstly developed in Randhirsingli's case (supra) was later on followed in a catena of cases by their lordships of the Supreme Court and this Court. It is based on Article 39(d) of the Constitution, which proclaims equal pay for equal work both for men and women. This principle was reiterated by their lordships of the Supreme Court in P.K. Ramchandra Iyer and Ors. v. Union of India 1984 (2) SCC 141. Thus, it is clear that if two posts carry same type of work i.e. when all things are equal and all relevant considerations on the basis of which pay is to be granted are same, the persons holding identical posts cannot be treated differently. The fall-out of this principle is that if one post is superior to other post then the superior post must be given superior pay-scale. This difference is irresistible because if one acts otherwise, it will result in treating unequals as equals and, therefore, this will be a violation of Article 14 of the Constitution. As stated above, the principle of equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition bearing No. 10961/85, State of Rajasthan v. Natwarlal Thanvi and others was filed before their lordships of the Supreme Court and that too came to be dismissed on January 19, 1987. 28. A Division Bench of this Court in Ghanshyam Charon v. High Court of Judicature for Rajasthan at Jodhpur and Anr. 1987 (II) RLR 486 gave a direction that Librarians of Govt. Secretariat and of High Court have been put at par and equal pay scales have been granted to them and, therefore, the new pay scale which has been allowed to Librarians of Govt. Secretariat w.e.f. 1.1.1970 should also be granted to the Librarian of the High Court with effect from 1.1.1970. 29. In State of Rajasthan v. Mrs. Kirti Chhabra D.B. Special Appeal No. 206 of 1985, decided by Jaipur Bench on February, 19, 1992, a question arose whether the Assistant Librarian post at Jaipur, whose nature of duties, work responsibilities and functions etc. are similar to that of the Librarian posted at the Principal seat of the High Court at Jodhpur, should get similar pay scale as that of Librarian posted at the Principal seat of the High Court. While deciding that question, the Division Bench came to the conclusion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r AIR 1988 SC 1033, wherein their lordships of the Supreme Court gave a direction to the State of Bihar to provide at least two promotional opportunities to the Officers of the State Police in the wireless organisation within six months. It may be stated here and now that, that also affected materially the service conditions of the Officers of Police in Wireless Organisation but their lordships thought it proper that keeping in view the circumstances which have been placed before them, at least two promotional opportunities should be provided to them in order to achieve equal opportunities of promotions to the persons of this cadre. Thus, the contention of Mr. B.P. Aggarwal, the learned Advocate General that the service conditions are governed by Article 309 of the Constitution and they cannot be changed by the courts by issuing a writ of mandamus or directions cannot stand scrutiny in the light of the aforesaid authorities quoted supra. 33. In Employees of T F Corps. of India Ltd. v. Union of India AIR 1991 SC 1367, their lordships of the Supreme Court gave a direction to a Corporation of the Govt. to revise pay-scales of employees of A Corporation to bring them at par wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the State Govt. is convinced and is firmly of the view then it is estopped from setting a ground for grant of lower pay scale to RHJS Officer, when they are promoted from the Super-time scale of RJS. The fall-out of this submission made in para 12 of the reply is that RHJS Officers, as per the State Govt., should have been granted the scale of ₹ 3900-5300 with effect from 13.8.1987 when that scale was granted to the Super-time scale Officers of RJS, because they could not have been kept in the scale of ₹ 2750-5000 with effect from the date the aforesaid super-time scale was granted to RJS Officers. The learned single Judge could not remedy this difficulty because that was not a typographical mistake and, therefore, he could not correct the judgment under Section 152 C.P.C. 36. It may be stated here that Rajasthan Civil Services (Revised Pay Scales) Rules, 1987 lays down scales No. 30 and 31 as follows: 30. 3900-125-4400-150-5300. 31. 4275-125-4400-150-5300-200-5500. It appears that the State Govt. vide its Notification No. F., 17(42) FD (Gr.2)/82 dated 9.7.1991 has granted pay scale No. 30 i.e. 3900-5300 to Addl. District Sessions Judges/Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scales lower than the scale of ₹ 3900-5300 have been fixed in the pay scale of ₹ 4500-5700 and the only one Officer i.e. Director Education (College) who was getting the pay scale of ₹ 3900- 5300 has been fixed in the pay scale of ₹ 5100-6300. No dissimilar treatment can be meted to Ordinary scale RHJS Officers. They should have also been granted the pay scale of ₹ 5100-6300 with effect from 1.9.1988 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. In our opinion, the learned single Judge was perfectly justified in granting pay scale No. 26 to Ordinary scale RHJS Officers with effect from 1.9.1988 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989, and if pay scale No. 26 is granted to ordinary scale RHJS Officers, then there is no alternative but to grant pay scale No. 27 i.e. 5900-6700 to the Selection scale RHJS Officers with effect' from 1.9.1988 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. In this view of the matter, the judgment of the learned single Judge deserves to be upheld to this extent. 38. Mr. M. Mridul, the learned Counsel appearing for the respondents has conceded tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation's case (supra) to set up a Pay Commission for granting equal pay scales to the Higher Judicial Service Officers at all India level. How many Officers should be granted supertime grade and when they should be posted are the matters which are to be looked into by the Full Court. Ordinarily, the Courts do not usurp the functions and powers of the Full Court, which meets to decide such matters on administrative side. It is for the High Court to recommend such a scales to the State Govt. in such matters, no writ of mandamus can be issued by the High Court to the State Govt. to grant such a scale, which is not existing in the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 to 7 Judicial Officers and to post them at particular places. How appointments to the High Court should be made was not a matter sub judice before the learned single Judge and, therefore, any observations made by the learned single Judge in this respect are obiter dicta because none of the parties made any submissions about it. 40. In the result, this appeal is allowed in part. The first two directions given by the learned single Judge are modified and we direct the respondents: (1) to gra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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