Kashivishwanath Atmaram Desai vs State of Maharashtra and Others

A.P. Shah, J.—By this petition under Article 226 of the Constitution, the petitioner is seeking a direction to the State of Maharashtra to convey the approval of the Governor under Article 226 of the Constitution to the proposal made by the Chief Justice in the letter of the Prothonotary and Senior Master dated 18.4.1991 proposing the upgradation of the scale of pay of Accounts Officer to that of the Deputy Registrar on the Appellate Side and to give the scale of pay of Rs. 1100-1700 (unrevised) and the scale of pay of Rs. 3700-5000 (revised) with effect from 1st April, 1986 and to grant all consequent benefits to the petitioner. The petitioner joined the Court as an Interpreter in October, 1965 in the City Civil Court, Mumbai. In the year 1971 he was promoted as a Sheristedar. He was selected and ap pointed as an Associate on the Original Side of the Bombay High Court on 1st November, 1980 and was confirmed in the said post in the year 1986. Thereafter, he was promoted to the post of 3rd Assistant Master, 2nd Assistant Master and then to the post of Company Registrar. While working as Assistant Master, the petitioner also acted as Registrar, Parsi Matrimonial Court for a period of seven months. He worked as Company Registrar for aggregate period of three and half years. He has also worked as Taxing Master for three months. he is now working as an Accounts Officer since 1st December, 1989. It is the case of the petitioner that the post of Accounts Officer is liable to be equated with the post of Deputy Registrar on the Appellate Side. It has been pointed out that the post of Accounts Officer is a Class-I Gazetted post since its creation in the year 1951. The Accounts Officer is the Head of the Accounts Office, High Court. He holds fiduciary position and holds Government and other securities and money belonging to the minors with various banks. He makes periodical payment of interest accrued on the invested amounts to the guardian of the minor appointed by the Court. He has to distribute the amounts of interest which comes to about several lakhs. He is holding about 6000 accounts of the minors with various nationalised banks in Fixed Deposits, National (Savings Certificates and other Government Securities. It has also been pointed out that the Accounts Officer in the High Court is a legally qualified person. The post of Accounts Officer is a promotional post for the post of Associates. If the post of Associate is equated to the post of Assistant Registrar on the Appellate Side and given revised pay scale of Rs. 3000-4500, then it is said that the there is full justification for equating the post of Accounts Officer with the post of Deputy Registrar and given the revised scale of pay of Rs. 3700-5000, It has been pointed out that the Prothonotary and Senior Master by his letters dated 31st December, 1990 and 8th April, 1991 forwarded the proposal of the Chief Justice to the State Government for upgradation and revision of pay scales of the post of Accounts Officer by bringing the said post on par with the post of Deputy Registrar on the Appellate Side. It is contended that the State Government has failed to give approval of the proposal made by the Chief Justice for no reason whatsoever. It is also contended that the inaction on the part of the State Government is totally arbitrary and violative of the petitioner''s fundamental right under Article 14 of the Constitution.

At this stage it is necessary to state briefly how scales of pay of officers and servants of the High Court have undergone revision from time to time. It appears that some time in 1965, the Government had, in principle, accepted parity in pay scales for the High Court Officers with that of the Officers in Mantralaya. By virtue of the recommendations of the Bhole Pay Commission, the Government granted parity in part, upto the level of Superintendents, and thus non-gazetted employees were granted the same pay scales as their counterparts in Mantralaya. This point was again agitated before the Bhole Pay Commission, which in 1977, recommended parity only upto the level of Assistant Registrars and the equivalent posts on the Original Side in the High Court. However, Officers holding higher posts, both on the Original Side and the Appellate Side, were not given parity of pay scales as are paid to their counterparts in Mantralaya, viz., Deputy Secretary, Additional Secretary, Secretary, etc. Similarly, it was not ''clarified before the Bhole Pay Commission that certain categories of officers, such as the 2nd Assistant Master, 1st Assistant to the Official Assignee, 2nd Assistant to the Court Receiver, 3rd Assistant and the Associates were discharging functions similar to that of the Assistant Registrar on the Appellate Side, though such equation could have been legitimately done by the Chief Justice himself. The concerned officers therefore began agitating about the disparity of pay scale. Thereafter, the Prothonotary and Senior Master (O.S.) and the Registrar (A.S.) by their joint letter dated 17th February, 1983 conveyed to the State Government the proposals of the Chief Justice, namely, (i) that the Associates shall be given the same scale of pay as given to the Assistant Registrar, and (ii) that the post of 1st Assistant Master, Company Registrar, Accounts Officer and the Chief Translator and Interpreter should be equated with the post of Deputy Registrar on the Appellate Side. However, the State Government by its letter dated 8th April, 1983 informed the High Court that the question of revision of pay scale of the Government Officers in the High Court cannot be reopened since the matter of revision of pay scale had been carefully considered at the highest level of Chief Minister and the Honourable Chief Justice. Some 16 Associates filed Writ Petition No. 1526 of 1986 seeking a direction of the Court for upgradation of their post to that of Assistant Registrar on the Appellate Side and giving them the scale of pay of Rs. 1000-50-1500. By order dated 6th December, 1986, Pendse, J. (as he then was) directed the Government to equate the post of Associate to that of Assistant Registrar and to give the scale of pay of Rs. 1000-50-1500 with effect from 1st April, 1983. The State of Maharashtra filed an appeal against the Judgment of the learned single Judge being Appeal No. 620 of 1987. The Division Bench comprising P.B. Sawant, J. (as he then was) and Suresh, J., by their Judgment dated 11th August, 1989 dismissed the Appeal.

It is not necessary for me to deal with the judgments of the single Judge and the Division Bench in detail suffice it to reproduce the paragraph from the judgment of the Division Bench which reads as follows :

"But what is important is that High Court recommended to Government to eliminate these anomalies. Firstly, when the High Court recommended that respondents No.2 should be brought on par with that of the Assistant Registrar on the Appellate Side having regard to the fact that they do the some work as that of the latter. The High Court also recommended that the First Assistant Master and the Company Registrar who are in the pay scale of Rs. 1000-1500 which is in the pay scale of Assistant Registrar on the Appellate Side should also be promoted to the category of Deputy Registrar, which is the higher post on the Appellate Side. It appears that in the post, the pay scale of the Assistant Master was higher than that of the Deputy Registrar and in 1977 when the pay scale was fixed it ought to have been equated with that of the Deputy Registrar, but instead it was equated with that of the Assistant Registrar, the work was comparable to that of Deputy Registrar and that therefore, they ought to have been paid a higher grade".

Having regard to the above observations made by the Division Bench, it is clearly seen that the Division Bench was of the opinion that it was incumbent upon the State Government to accept the recommendation made by the Chief Justice in revision of pay scales under letter dated 17th February, 1983.

Pursuant to the judgment of the Division Bench the Prothonotary and Senior Master by his letter dated 31st December, 1990 addressed to Shri More, Secretary, Law and Judiciary Department of the State of Maharashtra invited his attention to the observations made by the Division Bench and conveyed the considered opinion of the Chief Justice that the observations of the Division Bench should be read in conjunction with the High Court''s recommendation made to the Government vide letter dated 17th February, 1983 for the revision of pay scale and upgradation of the posts of First Assistant Master, Company Registrar and Accounts Officer so as to bring them on par with the Deputy Registrar on the Appellate Side (i.e. Rs. 3700-5000). The proposal was again put forward before the State Government by the Prothonotary and Senior Master by his letter dated 8th April, 1991, addressed to the Secretary to the Government of Maharashtra, Law and Judiciary Department for upgradation and revision of pay scales of seven posts including that of Accounts Officer with justification for the same.

For nearly one year there was no response from the Government to the proposal made by the Chief Justice which was communicated under the letters of the Prothonotary and Senior Master. It is regretted that inspite of categorical judicial pronouncement by the Division Bench the State Government avoided to consider the recommendation of the Chief Justice. Finally by letter bearing No. HCT-1786/3032 (474)-III-A dated 1st June, 1992 addressed jointly to the Prothonotary and Senior Master and the Registrar, the Government of Maharashtra proposed that the revised pay scales agreed to by the Government may be accepted for the present, so that the incumbents would get their pay in the revised pay scales with effect from 1st January, 1986. It was further proposed that thereafter the Government should be moved to grant higher scales as proposed by the High Court giving sufficient justification. Pursuant to the said letter a meeting was held between the representatives of the State Government and the High Court for acceptance of the proposals of the High Court on 25th November, 1992. However, the said meeting also failed to resolve the issue. Thereafter, by letter dated 9th May, 1994, the then Additional Registrar requested the Government to obtain the approval of the Governor to the pay scale as revised by the Government. On perusal of the correspondence it is clear that the said letter dated gth May, 1994 was addressed by the Additional Registrar to the State Government in response to the letter of the State Government dated 1st June, 1992. The proposal was mooted by the Additional Registrar was only for the time being and as and by way of temporary arrangement in order to ensure that the incumbents whose proposals for parity are pending should not be prejudiced and deprived of their pay scale. By letter dated 29th September, 1994 the proposal of the Additional Registrar was accepted and approval was given by the Government of Maharashtra to the revised pay scales of officers and other staff members of the High Court was duly sanctioned. Needless to mention that the issue of granting parity to the post of Accounts Officer with that of the Deputy Registrar on the Appellate Side remained unresolved and pending.

Now taking advantage of the letter of the Additional Registrar dated gth May, 1994 it is contended in the affidavit of Aruna, J. Agarwal, Under Secretary to Government of Maharashtra, Law and Judiciary Department that the petition has become infractions in view of the approval granted by the State Government vide letter dated 29th September, 1994. In fact this is the only defence raised in the petition. It is no where stated that the justification given by the High Court for giving parity to the Accounts Officer was in any way erroneous. Beyond saying that the reasons are not admitted, there is no justification in the affidavit of the Under Secretary as to why the Accounts Officer should not be given parity as per the recommendation of the Chief Justice. The affidavit also fails to deal with the contention of the petitioner that the petitioner''s case is covered by the Division Bench Judgment.

I do not find any justification on the part of the Government in not accepting the recommendation made by the Chief Justice in the letter of the Prothonotary and Senior Master dated 18th April, 1991 proposing the upgradation of the scale of pay of Accounts Officer to that of the Deputy Registrar on the Appellate Side. It is well-settled infractions that ordinarily and normally the recommendation of the Chief Justice should be accepted and more so when the Chief Justice makes a recommendation, there is inevitable presumption that it has been made with full sense of responsibility and circumspection and after having weighed various public interest as well as the financial implications in the matter. In my opinion, the inaction on the part of the State Government clearly indicates that the State Government has no reason to refuse approval to the recommendations and failure to do so is required to be remedied by issuance of writ of mandamus. In fact, the question of upgradation of the post of Accounts Officer is clearly covered by the Division Bench Judgment of Sawant and Suresh, JJ., dated 11th August, 1989. In these circumstances, I have no hesitation to make the rule absolute and accordingly, rule is made absolute in terms of prayer clause (a). The Government is directed to implement this order within six weeks from today.