H L SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) These petitions, C.W.P. 462183, by Assistants, and C.W.P. 937 83, by Junior Readers, working in this Court raise a common question as to the entitlement of these categories of employees to higher scale to bring them as par, in the matter of scales of pay, with the Senior Translators and are part of a chain reaction following therecoromen dations of the Third Pay Commission.

(2.) The following facts and circumstances provide the historical backdrop. The Third Pay Commission set up by the Central Government, to make recommendations inter alia, with regard to the pay and allowances of the Central Government employees submitted its report in March, 1073, setting out its recommendations with regard to various categories of the Central Government employees. The Commission made separate recommendations, in respect of the Union Territories, including Delhi. By virtue, however, of Article 229 of the Constitution of India, the staff of this Court was considered outside the scope of the recommendations and but for the provision contained in that Article, the recommendations of the Commission would have applied to them by virtue of the fact that Delhi, being a Union Territory, the staff of this Court, including the petitioners, would be treated as employees of the Union and their salaries are paid out of the Consolidated Fund of India. In view, however, of the recommendations and their eventual acceptance by the Central Government, the then Chief Justice of this Court recommended to the Central Government the extension of the benefits of the recommendationsto the staff of this Court. The benefit of the recommendations have since, by and large, been conferred on the different categories of the staff of this Court. There was, however, some controversy as to the precise classification of certain categories of the staff of this court for the purpose of giving benefit of the recommendations because the Commission did not deal with certain categories and, therefore, had no occasion to consider the question of their equation with the existing categories of the staff of the Central Government or the Union Territories. with which it had to deal. The Private Secretaries to Hon'ble Judges of this Court and the Readers of this Court, now designated as Court masters, were among the categories of the staff of this Court which presented some problem with regard to classification for the purpose of extending the benefit of the recommendations to the staff of this Court. While the Delhi Administration seemed to have taken the view, consistent with the position that obtained under Rule 3 of the Delhi High Court Ofiicers and Servants (Salaries, Leave, Allowances and Pension Rules, 1970, for the purpose of leave, pension and allowances, that the Private Secretaries and Readers could be equated with the Superintendents in the Delhi Administration, the Central Government expressed the view that such an equation for the purpose of salary would not be appropriate although it could be justified for the purpose of leavs, allowances and pension, apparently because of the obvious distinction between the nature of the two benefits. A plea was, therefore, made to the Delhi Administration that the question of equating the posts of Private Secretaries and Readers be considered. The Delhi Administration, however, did not . relent with the result that -the Private Secretaries and Readers were equated with the Superintendents of Delhi Administration in terms of the .recommendation of the commission, and their scales were revised accordingly. The Private secretaries and Readers were, however, dissatisfied and assailed the classification and the consequent revision and sought a direction for their reclassification as being equivalent to the Reporters in the Delhi Administration and, therefore, sought consequential enhancement of their scale, inter alia in the ground that the aforesaid equation was erroneous and militated against the Fundamental right of equality of opportunity in the matter of employment. In the hallenge, which became subjectmatter of a petition under Article 226 (1) to this Court, the Private Secretaries and Readers sought support from the fact that in somewhat similar situation, the President of India had directed that the Private Secretaries and Readers of the Punjab and Haryana High Court be equated with the Private Secretaries in the Punjab Civil Secretariat, which gave them the benefit of superior scale to which they had laid a claim. In that case (Supra) a Division Bench of this Court expressed the view that the classification of the Private Secretaries and Readers with the Superintendents in the Delhi Administration was not based on a consideration of the relevant factors and being directly contrary to the Presidential Order, B made in relation to the. staff of the Punjab & Haryana High Court, must be held to be improper. This Court, however, was unable to give any relief to these two categories of staff because of the amended Article 226 of the Constitution, as it stood then, even though this Court expressed the view that it was unfair that as a result of the impugned classification, two equivalent categories of staff of two High Courts, with identical duties and other conditions of service, would be differently classified for the purpose of scale of pay, which have the effect of two sets of persons being paid differently for the same work, contrary to the principle of equal pay for equal work, which had the sanction of the Directive Principles of State Policy enshrined in Article 39 of the Cinstiution of India. The petition was accordingly dismissed but not without giving expression to a feeling that by improper classification, injustice had been done to the said two categories of employees and a hope that the Administration would consider the matter of classification of the said two categories afresh keeping in view the various relevant factors and considerations. The Delhi Administration, however, did not relent, although the Registrar of this Court had taken up the matter afresh with the Delhi Administration in the light of the observations made by this Court in the above petition. This is how the Private Secretaries and Readers filed a fresh petition in this Court and succeeded on the basis of the earlier Judgment of this Court and because the difficulty arising out of clause (b) of Article 226 of the Constitution, as it then stood, had sines been removed, by 44th Amendment of the Constitution, and the Article in so far as it affected that case, had been restored to the Position as obtained before the Forty-second Amendment of the Constitution. A Division Bench of this Court, therefore, issued a mandamus directing the Administration to equate the posts of Private Secretaries and Readers to that of a Private Secretary to the Chief Secretary Delhi Administration with retrospective effect from January 1, 1973 O. Before parting with the case, this Court referred to the similar demand made by the Superintendents of this Court and expressed the hope that in view of the Judgment of this Court, the question of giving the same benefit to the Suprintendents will also receive immediate and sympathetic consideration at the hands of the Administration. This addendum was perhaps considered necessary by this Court less it be taken that the Judgment of this Court was in any way adverse to the claims of the other category of staff of this Court, which was not party to the earlier proceedings. Delhi Administration, however, continued to maintain its position with the result that the Superintendents of this Court successfully sought a mandamus (3) on the ground that what this Court held earlier in the case of Private Secretaries and Readers applied with full force to the Superintendents as well, as they constituted "a common category", and were, , therefore, entitled to the scale of pay to which the Private Secretaries and Readers had already been held entitled. The following passage from the aforesaid Judgment brings out the rationale for the conclusion :-

(3.) It is in this background that the claim of the Assistants and Junior Readers to parity with the Senior Translators of this Court, in the matter of pay scale, has to be examined. The claim to superior scales of pay, unlike the clairin by Private Secretaries and Readers, as indeed the Senior Stenographers and Senior Translators, is not based on any equivalent category in Delhi Administration, but is based primarily on the ground that, according to the various Rules applicable to the petitioners, posts held by the petitioners and the posts of Senior Tianslators are "equal status posts", carrying at one time an identical scale, governed by common Rules and constitute a common channel of promotion to the next higher posts of Superintendents A and Court Masters. It is, therefore, urged that any dispanty in the scale of pay between the petitioners, on the one hand, and the incumbents of the equal status post of Senior Translators would not only be arbitrary but be tantamount to treating equals as unequal and, therefore, militates against tundamental rights embodied in Articles 14 and 16 of the Constitution. It was further urged that the Assistants in various other High Courts, like Punjab and Haryana, Himachal Pradesh, Assam and Karnatka are entitled to higher scales of pay than is being claimed by the petitioners, and in all the said High Courts, the Assistants have the benefit of a selection grade which is still higher. It was, therefore, urged that such a disparity would militate against the principle of "equal pay for equal work" which is not only enshrined in Article 39 of the Constitution of India, but must also be treated as part of the mandate of Article 14 and 16 of the Constitution of India.