Sanjeet Kumar Sharma and Others vs High Court of J&K and Another

All these writ petitions raise identical question of law and fact, therefore, these are being taken up together and are being disposed of by a

common judgement.

Petitioners in all these cases applied in response to advertisement issued by the High Court of Jammu and Kashmir calling for applications for

the post of data entry operators It appears that after in response to such notice petitioners alongwith other candidates had applied and they were

asked to appear for test and interview. Thereafter, as many as eight persons were appointed at Jammu Wing of the High Court vide Order No.

347 of 1995 dated 26.8.1995 and nine number of person were appointed at Srinagar Wing of the High Court vide order Nos. 91 of 1997 dated

12.6.1997 and no. 1082 of 1998 dated 30.3.1998.

Sunil Kumar Thappa, who was appointed at Jammu Wing vide order dated 26.8/1995 left the job in his place Vikas Bharti petitioner was

appointed vide order no. 346 dated 14.10.1996.

Another fact that needs to be noticed here is that the posts which were notified were of ""Data Entry Operators"", and test and interview was also

held for this post. However, when appointment orders were issued regarding candidates at Jammu wing of the High Court, it showed the

appointment of the appointees as Data Entry Operators/Junior Assistant. In this context it may also be noted that in the notices asking for

applications for the post of ""Data Entry Operators"", minimum academic qualification prescribed was graduation and technical qualification required

was typing with minimum speed of 40 words per minute, knowledge and experience of computer feeding.

In this context it may also be noticed that in the notice a copy of which is placed on file as Annexure P/G with SWP No. 1677/97, post of

Junior Assistant is separately notified at (A) in it and its qualification is graduation and type knowing. Thus, it is obvious that when the posts of

Junior Assistants and Data Entry Operators were notified, authorities were well aware that both posts of Junior Assistants and Data Entry

Operators are separated and distinct, their nature of duties were totally different. What is its effect will be examined later on here in this judgement.

In all the three writ petitions, stand of the petitioners is identical to the effect that they are working as Data Entry Operators in both the wings of

the High Court, their duties include the following :

a) Daily feeding and up gradation of cases files (LOBIs) used for the preparation of weekly and daily cause lists.

b) Filing counter software which allows for automatic registration of cases, create matching and tracking of files among other functions.

c) Library cases law software.

d) Payroll accounting system.

e) Personnel information system.

f) Software system for the recruitment of candidates in High Court and Subordinate Courts.

In addition to this, petitioners are also carrying out the following duties while working as Data Entry Operators :

a) That the petitioners job, precisely speaking, involves the operation of specially written software packages meant to computerise the entire

business of the High Court. These software pertain to the following broad areas:

i) Daily feeding and updating of case files (LOBIs) used for the preparation of weekly and daily cause lists.

ii) Filing counter software which allows for automatic registration of cases, cavet matching and tracking of files among other functions,

iii) Library case law software,

iv) Payroll accounting system.

v) Personnel information system of Judicial Officers.

vi) Software system for the recruitment of candidates in High Court and Subordinate Courts, b) That it is relevant to acquaint the Hon'ble Court

with the kind of business which is conducted under the supervision of Software Engineer from National Information Center (a Govt. of India

Project) by the petitioners. It is an efficient performance through computers that ultimately leads to the administration of justice by the Hon'ble

Judges of the High Court in a better manner. All that is required, is the highly technical skill which cannot be ordinarily possessed by a layman or

for that matter anyone from the ministerial staff be a Junior Assistant or any other cadre of service without being technically sound in the area of

computerization.

Petitioners further claim that their counter parts in different government departments of the State of J and K are styled as Computer Operators/

Computer Assistants/ Key Punch Operators/ Console Operators etc. At the time of their entry the grade of pay offered to them was Rs. 9501500.

This according to the petitioners is neither commensurate with the qualification they possess nor is at par with what their counterparts are getting in

other departments of the State Government. With a view to support this plea reliance is placed on advertisement notice no. 3 of 1996 issued by

the J and K Services Selection Board and on its entry nos. 82 and 83. Here the post of Computer Operator is notified in the pay scale of Rs.

20003200 and qualification academic/ technical for this post required is 10+2 Diploma in Computers. In addition to this advertisement notice,

reliance is also placed on two communications one addressed by Principal Chief Conservator of Forests J and K to the Deputy Registrar (c) of the

High Court of Jammu and Kashmir. As per this communication, computer operator is placed in the Forest Department in the pay scale of Rs.

14002300 and Computer Boy in the pay scale of Rs. 9501400. Similarly, vide another communication addressed by Director of Agriculture,

Jammu to Deputy Registrar (c) of the High Court of J and K, the pay scale of the Computer Operator, sanctioned for the said Directorate was Rs.

14002300. Copies of both these communications are placed in record of writ petition no. 1677/97 as Annexure PJ and PK, which are extracted

here it below :

Office of the Pit Chief Conservator of Forests, J and K, Jammu.

No. :1231/Fst.

Dt.: 28.4.1997

To

The Deputy Registrar (Computer),

High Courts of J and K, Jammu

Sub.: Grades/ Pay Scales of Data Entry

Operator (Computer)/ Computer Operator.

Kindly refer your letter no. 181 dated 23.4.1997 regarding the subject cited above, grades of the posts in the Forest Department are mentioned

against each :

1) Computer operator Rs. 14002300

2) Computer boy Rs. 9501400

Posts of computer Operators have been created in Forest Protection Force in the grade of (20003200) for which qualification prescribed is

(10+2) and diploma in computer sciences.

sd/

Prl. Chief Conservator of Forests Directorate of Agriculture J and K Government

Jammu

To

The Deputy Registrar (Computer)

High Court of J and K, Jammu

No.: Estt. 16/97/406 dated 26.4.1997 Sub.: Grades/ Pay scales of Data Entry Operators (Computer/ Computer Operator).

Sir,

Kindly refer to your letter no. 183 dt. 23.4.1997 regarding the subject cited above. In this connection it is submitted that the pay scale of the post

of computer operator sanctioned for this Directorate is Rs. 1400401800EB/502300. This is for your information please.

Yours faithfully,

Director of Agriculture, Jammu

Petitioners submitted their representation firstly to the Registrar of the High Court of J and K vide Annexure PL and thereafter to Hon'ble Chief

Justice vide Annexure PM. Those were followed with a further representation to the Registrar General of the High Court, vide Annexure PN. In all

these three representations, grievance made by representationists was that their designation as Data Entry Operator/ Junior Assistant is a

misnamer, keeping in view the nature of job and duties to be performed by them. It was also represented by them that some of other Junior

Assistants who were placed in the same pay scale have been promoted after serving as peons, helpers and orderlies in the High Court for several

years and their educational qualification does not extend beyond prescribed qualification matriculation. Further, some out of these promoted Junior

Assistants are placed above them (representationists) and this makes them eligible for next promotion. This according to representationists was

bound to demoralize and frustrate them. They also claimed that they be placed in the pay scale of Rs. 20003200, as is being given to persons

working in the same capacity elsewhere, keeping in view the nature and load of work involved.

In the aforesaid background petitioners claim that respondents may be directed to place them in the higher pay grade of Rs. 20003200 and to

declare the petitioners and those dealing with Computer as separate cadre of service by framing proper rules with a view to safeguard their rights,

in all respects as also for removing the stagnation.

In SWP No. 1677/97 Sanjeet Kumar Sharma and Others vs. High Court of J and K and Another, notice was ordered to be issued on

15.2.1997. Since objections were not filed within the time allowed despite opportunities having been prayed and allowed, therefore, court directed

admission of the writ petition on 22.5.1998 and time for filing counter was allowed. After admission, no counter had been filed and only objections

have been filed by both the respondents in this writ petition.

In SWP No. 1458/98 Mrs. Nisha Saraf and Others vs. State of J and K and Others notice was ordered to be issued on 24.8.1998, time was

allowed for filing objections. When needful was not done, writ petition was admitted on 2.4.1999. Record of the case further indicates that counter

reply after admission has not been filed by any of the respondents.

SWP No. 772/99 Fayaz Ahmed Shah and Others Vs. High Court of J and K and Another was admitted on 1.5.1999. No counter has been

filed, though objections are filed by respondents no. 2 in this writ petition.

What is the effect of nonfiling of the counter as well as controverting the factual averments made in the writ petition will have some bearing on

the merits of the case.

All these cases were heard together and learned counsel for the petitioners were only to address the court in rejoinder, when both parties were

not at variance that on the representations made by the petitioners as detailed in the writ petitions, Hon'ble the Chief Justice has made his

recommendations to the State Government and no final decision had been taken till that date i.e. 20.7.1999, therefore, in the light of the decision of

the Supreme Court reported in JT 1999 (1) Supreme Court 441' State of Himachal Pradesh vs. Sh. P.P. Attri and Others respondents state was

directed to take a decision within four weeks after taking into account recommendations of the Hon'ble Chief Justice on the representations of the

petitioners as well as observations of the Supreme Court. Affidavit in that behalf was required to be placed on record on or before 24.8.1999.

Affidavit of Ch. Rashid Azam Inqlabi, Under Secretary to Government Law Department, dated 23.8.1999 was filed. Since this did not comply

with the directions of the court contained in the order dated 20.7.1999, therefore vide order dated 2891999 at the request of respondent State,

some more time was allowed to enable it for taking final decision and filing affidavit and the case was ordered to be listed on 16121999 before

which date affidavit was to be filed. Again affidavits of Mohd. Sayed Shah Undersecretary to Government Law Department, dated 19.11.1999

was filed. For the purpose of present writ petition, Paras iv and v are relevant which are extracted herein below:

iv) That so far as the upgradation of the posts of the Data Entry Operators are concerned the Finance Department has not accorded concurrence

as yet and have advised to seek extension of time for considering the posts of Data Entry Operators because the case has far reaching implications

because the Govt. will have to adopt a uniform policy in relations to the computer services cadre working in the High Court as well as in the

various departments of the Govt. including civil secretariat.

v. That in adopting the uniform policy with regard to upgradation of the posts of Data Entry Operators more time will be required for expediting the

process of evolving a uniform pay structure/ policy in respect of the Data Entry Operators functioning in various departments of the Govt. and in

the Hon'ble High Court also and after the formulation of the policy the case shall be rereferred to the Finance Department for according sanction

which is a time consuming process and so it is, therefore, requested that the Hon'ble Court may please extend time for finalising the case of the

petitioners"".

Incidentally, it may be mentioned that affidavit of Sh. Mohd. Sayed Shah Under Secretary, has been filed in all the three writ petitions.

In the aforesaid background case of the petitioners is that they are entitled to equal pay for equal work that is being provided by the State

Government to their counter parts working in other government departments and a few instances referred to by them in the writ petitions, have

been noted hereinabove. In addition to this it is also the case of petitioners that their duties are more onerous and arduous as compared to their

counterparts in the Government. Besides, this petitioners allege that this is a clear cut case of hostile discrimination amongst similarly situated

persons, rather by referring to advertisement notice no. 3/1996 dated 24.12.1996 (supra) they allege that the persons with lesser qualification are

being recruited at the instance of the respondent state in a much higher grade of Rs. 20003200.

Now the stand of the respondents as reflected in the objections also need to be noticed.

So far High Court is concerned, its case is that before filing the writpetitions, petitioners made representations for bringing them at par with the

grades and scales of pay enjoyed by officials having similar qualification and being similarly placed with those who are posted in other government

departments. Upon consideration of the representation of the petitioners, Hon'ble the Chief Justice recommended to the State Government for the

grant of initial grade of Rs. 14002300 (prerevised) and 25% of the available posts of the Data Entry Operators merit to be promoted to the posts

of Computer Operators in the grade of Rs. 20003200, on selection after having put in five years satisfactory service. Record in this behalf was

produced by the learned counsel appearing for the High Court. This recommendation was made somewhere in the month of February 1998. Till

the objections were filed by the High Court on 24.8.1998 reply was awaited from the respondent state. In the absence of sanction of posts and

upgradation of new scales by the State Government, the High Court was not able to proceed further in the matter.

State Government has pleaded that there is no similarity between the duties of the petitioners as well as the State Government employees with

whom they are claiming parity and that there is no question of any discrimination because Article 39(d) of the Constitution of India has no

applicability nor is it enforceable in view of Article 37 thereof. Petitioners were having not objected at the time of interview/test and subsequently

thereafter on their appointment, as such they could not challenge the grade granted to them in the present writpetition. For creation of posts and

release of higher grade, financial implication being there, therefore, correspondence is to be made with the Finance and General Administration

Department, which of course take sometime for settlement of the issue. Para VII of the objections makes an interested reading, therefore, it is

extracted herein below:

VII. That the recommendation if any made by the Registrar of the High court has no binding force till the rules are framed and correspondence

made with the appropriate authority hence, this writ petition, as already submitted is not maintainable and is liable to be dismissed"".

This is the substance of the objections tiled by the State Government.

On the basis of the aforesaid pleadings it is clear as well as from the notices issued by the High Court, Annexures PA and PG, that the nature

of duties as well as qualifications for the post of Junior Assistant and Data Entry Operator are different and there is nothing common except that

both have to be graduates. In the case of Junior Assistant, note^' )nical qualifications is required and the incumbent has to be type knowing,

whereas in the case of Data Entry Operator, a candidate must know typing with a minimum speed of 40 words per minute, besides having

knowledge of computer feeding. Thus in no case either on facts or on anology it can be said that the duties of Junior Assistant and Data Entry

Operator are either identical or similar in nature. Infact, Data Entry Operator is a separate class by itself and has to be dealt with accordingly.

As already noted, counter/ reply to the writ petitions has not been filed by the respondent state. In the peculiar circumstances, background as

well as the facts of the case, the mission appears to be intentional. Reason for such an emission is writ large. State could not feign ignorance or say

anything contrary to the decisions of the Supreme Court of India while dealing with the matter and the sanctity to be attached to recommendations

of Hon'ble the Chief Justice. In this context it may not be out of place to be noticed that the Chief Justice had made the recommendation as far

back as in February 1998 recommending the grant of pay scale of Rs. 14003200 and keeping 25% of the available posts of Data Entry Operators

in the pay scale of Rs. 20003200 (prerevised) oh selection after putting in minimum five years of satisfactory service. A reading of the affidavit

dated 23.8.1999 filed by Ch. Rashid Azam Inqlabi, Under Secretary to Government Law Department shows that it is silent as to what steps had

been taken on the recommendations of Hon'ble the Chief Justice prior to 19.7.1999 i.e. for almost about one year and more than four months.

This shows the due deference and utmost consideration shown by the State Government and it could not have slept over the recommendations.

24, How the matter has to be dealt with by the state Government after the recommendations are received from the Chief Justice of the High Court,

as in the present case, has been attending attention of the Supreme Court of India.

In JT (1989) (3) Supreme Court 188 : Supreme Court Employees Welfare Association vs. Union of India, it was observed as under :

So far as the Supreme Court and the High Courts are concerned, the Chief Justice of India and the Chief Justice of the concerned High

Court, are empowered to frame rules subject to this that when the rules are framed by the Chief Justice of India or by the Chief Justice of the High

Court relating to salaries, allowances, leave or pensions, the approval of the President of India or the Governor, as the case may be, is required. It

is apparent that the Chief Justice of India and the Chief Justice of the High Court have been placed at a higher level in regard to the framing of rules

containing the conditions of service. It is true that the President of India cannot be compelled to grant approval to the rules framed by the Chief

Justice of India relating to salaries, allowances, leave or pensions, but it is equally true that when such rules have been framed by a very high

dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should

always be granted. If the President of India is of the view that the approval cannot be granted, he cannot straightway refuse to grant such approval,

but before doing so, there must be exchange of thoughts between the President of India and the Chief Justice of India.."".

In JT 1998(2) Supreme Court 1, High. Court of Judicature for Rajasthan vs. Ramesh Chand Paliwal and Another., it was observed as under :

Since, under the constitution, Chief Justice has also the power to make rules regulating the conditions of service of the officers and servants of the

High Court, it is obvious that he can also prescribe the scale of salary payable for a particular post. This would also include the power to revise the

scale of pay. Since such a rule would involve finances, it has been provided in the Constitution that it will require the approval of the Governor

which, in other words, means the State Government. This court in State of Andhra Pradesh and Another. vs. T. Gopalakrishnan Murthi and Others

(AIR 1976 SC 123 1976 (1) SCR 1008) had expressed the hope that one should accept in the fitness of things and in view of the spirit of Article

229 that the approval, ordinarily and generally would be accorded. This was reiterated by this Court in Supreme Court Employees Welfare

Association vs. Union of India (JT1989(3) SC 188 AIR 1990 SC 334 JT 1989(3) SCR 488). We again reiterate the hope and feel that once the

Chief Justice, in the interest of High Court administration, has taken a progressive step specially to ameliorate the service conditions of the officers

and staff working under him, the State Government would hardly raise any objection to the sanction of creation of posts or fixation of salary

payable for that post or the recommendation for revision of scale of pay if the scale of pay of the equivalent post in the Government has been

revised.."".

Observations made by the Hon'ble Supreme Court of India in JT 1999(1) SC 441 State of Himachal Pradesh vs. Shri. P.P. Attri and Others

may be aptly extracted herein below :

But then the fact remains that when the Chief Justice of the Himachal Pradesh High Court made recommendations to the Governor to

redesignate/equate the posts of Senior Translatothers and Junior Translatothers in the Himac1 al Pradesh High Court to those in the Punjab and

Haryana High Court, no decision was communicated which led the respondents to approach the High Court on its judicial side. Recommendations

of the Chief Justice of the High Court are to be given due deference and utmost consideration by the State Government. It certainly cannot sleep

over the recommendations.

From the above decisions it is clear that the recommendations made by the Chief Justice of the High Court, who is placed at a higher level in

regard to framing of rules containing the conditions of service and is a very high dignitary of the State, his recommendations are required to be

looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted. RespondentState

could not straightaway refuse to grant such an approval and before doing so there has to be exchange of thoughts between the authorities

concerned.

Plea to the contrary raised in the affidavit dated 19.11.1999 by the State Government in paras iv and v, extracted hereinabove, is nothing but

an eye wash. Reason for making this observation is that there is positive material produced by the petitioners in the nature of two communications

Annexure PJ and PK, which have been extracted hereinabove, besides advertisement notices no. 3 of 1996 dated 24.12.1996 (supra), wherein

higher scale of pay at the entry point is given to the counterparts of the petitioners in other departments of the State Government. Since respondent

State would not have been in a position to either contradict or controvert this factual position regarding grant of higher pay scale to the

counterparts of the petitioners in the service of the State, therefore, that was the reason why counter/ reply to writ petitions has not been

specifically filed by the respondent State. Besides this, it is well settled by now that under the law of pleadings each statement of fact needs to be

either specifically admitted or denied. In the absence of specific denial such statement of fact shall be deemed to be admitted. In the instant case

there is no denial on the factual side of the case of the petitioners what to talk of either evasive or denial by necessary implications.

Then next question that needs to be dealt with is can the State be permitted to allow hostile discrimination between the petitioners and their

counterparts working in the State Government in different departments, as referred to herein above, suffice it to say that so long rule of law and

mandate of constitution prevails, State Government had no authority muchless legal sanction to do so. This matter need not detain us in view of the

decisions of this Court in the following cases:

SWP 987/1991 : Mohan Lal Hakim and Others Vs. State and Others

decided on 17.7.1992.

SWP 701/1992 : R.K. Kachroo and Others Vs. State and Others,

decided on 30.7.1993.

LPA 267/1993 : State vs. R.K. Kachroo, decided on 10.11.1993.

LPA253A/93 : R.K. Kachroo and Others vs. State and Others

decided on 27.5.1996.

It may be noted that against the decision of this court in LPA 267/1993, Special Leave to Appeal (Civil) No.5955/1994 was filed by the State

and Special Leave Petition was dismissed.

A Division Bench of decision of Delhi High Court in Civil Writ No. 2756/91 Hari Lal Sharma vs. Union of India and Others is also to the

similar effect.

To be fair to Sh. Baldev Singh, learned Government Advocate, his opposition to all the writ petitions also needs to be noted. According to

him, there is a ban in terms of Government Order No. 1246GAD of 1993 dated 25.9.1998 against creation of posts against nonplan budget till

further orders. He further argued that because of financial crunch also it is not possible to accept the recommendations made by Hon'ble the Chief

Justice in the case of petitioners. Lastly, he submitted that since the petitioners and their counterparts in the State Government departments are not

on comparable position considering the responsibility of the later, the principle of equal pay for equal work is not attracted. Reliance in this behalf

was placed by him on the decision of the Supreme Court reported in AIR 1998 Supreme Court 32, Associated Bank Officers Association vs.

State Bank of India and others. When a reference is made to this decision it is wholly inapplicable to the facts and circumstances of this case,

besides this it is based on its own facts. Amongst other things, the benefits claimed by the employees of the subsidiary banks of the State Bank

were in accordance with negotiated settlement as such principle of equal pay for equal work was held in applicable. In this context it may be noted

at the risk of repetition that this is not the situation in the present case, therefore, this decision does not in any manner advance the case of the

respondent State.

So far plea of financial crunch is concerned, it also cannot come in the way of enforcing constitutional provisions as well as decisions referred

to hereinabove.

Learned counsel appearing for the petitioners urged that even otherwise this plea is merely a hoax to deny the just claim of their clients. It was

urged that wherever State Government desired recruitments were made by it without any procedure/ rules, or following any criteria. By referring to

the recruitments made in the excise department of the State Government to the posts of Excise Guards and Excise Peons: it was pointed out that

the plea of financial crunch is simply to over reach and circumvent the recommendations of Hon'ble the Chief Justice. According to them these

posts in Excise Department were not sanctioned in the plan, still more than 200 persons have been recruited. Learned Government Advocate

countered this plea by saying that this argument is without being pleaded in the petitions. Because financial crunch is not a ground open to State for

ever coming Article 14 of the Constitution, so nothing needs to be said further in this behalf.

It is most unfortunate that averments have been made in the objections/ affidavits (which have been partly extracted above) by noneelse but by

the Law Department of the State Government. Those seem to have been made without application of mind as well as in the face of the decisions of

the Supreme Court of India. Least that required to be done was to examine the legal position before filing those still if the Government could make

out a case, it was for it to do so. Reason being that Law Department can't say that either it is not aware of legal position or that it will not advise

the Government to proceed according to law. This matter is left here only to the good sense of the authorities without dilating further on it.

Anything conveyed by the Registrar General of the High Court is an administrative act only, otherwise he acts on what the Chief Justice

decides in a given situation. It is the decision of the Chief Justice what is conveyed. Therefore, the objections of the State that the recommendations

made by the Registrar are not binding till rules are framed, is nothing but shows utter defiance to the authority of law of land and are in the nature of

disobedience to the same. State Government, it may be reiterated, has not choice but to obey what has been said by the Supreme Court of India

from time to time in this behalf.

No other point is urged.

In view of the aforesaid discussion, all these writ petitions are allowed and as a consequence of it respondents are directed to grant and pay

the petitioners their salary in the pay scale of Rs. 14002300 (prerevised) w.e.f. 1.3.1998. This date has been fixed after the recommendation was

made by Hon'ble the Chief Justice as noted hereinabove. Arrears to be calculated and paid within a period of six weeks of the receipt of copy of

this judgement by the respondent state who is further directed to proceed further in the matter by taking a decision on the recommendations made

by Hon'ble the Chief Justice of the High Court of Jammu and Kashmir, keeping in view the mandate of the Supreme Court of India from time to

time and to ensure that not only the petitioners are put at par in the matter of payment of the pay scales provided by the State Government to their

counterparts in the other departments of the State Government, but also to ensure that 25% of the sanctioned posts are put in higher grade of Rs.

20003200 (prerevised) on selection from amongst the Data Entry Operators after they have completed minimum five years satisfactory service.

This entire exercise is also to be completed within a period of four months of the receipt of certified copy of the judgement by the respondent

State. No costs.