State of J&K vs Tarsem Kumar Arora

Mr. N. Paul Vasanthakumar, C.J. - This appeal is filed against the order of the learned Single Judge made in SWP No. 437/2014 dated

29.12.2014, allowing the prayer made in the writ petition for grant of pay scales in terms of Rule 5 of SRO 386 of 2008 in favour of the writ

petitioners category, as has been done in favour of their counterparts working in the Civil Secretariat and for direction to give the benefit of release

of higher pay scale of Rs. 12000-16500 with provision of release of next higher pay scale of Rs. 14300-18300 in terms of the said SRO with all

consequential benefits from the date they are entitled depending upon their length of service. Another prayer made seeking direction to the

appellants to consider and treat the services of the petitioners' category as one of the feeding services for induction into Kashmir Administrative

Services as has been done in favour of their counter-parts working in the Civil Secretariat, has been rejected and the said rejection has been

accepted by the writ petitioners-respondents. The State having aggrieved about the first two prayers made has chosen to file this appeal.

The main ground raised in this appeal is that the respondents herein are governed by the Jammu and Kashmir High Court Staff (Conditions of

Service) Rules, 1968, therefore, SRO 386 of 2008 issued to the Kashmir Administrative Services, is not applicable to them. The process of

constitution of new rules governing the service of respondent nos. 1 to 4 being pending, during the pendency of the same the writ petition was

preferred seeking extension of the benefit of SRO 386 of 2008. The representation submitted by the Personal Staff of the High Court before the

Registrar General-5th respondent herein, was forwarded to the appellants by the Registrar General on 28.05.2012 and no new rules having been

framed by the High Court, the prayer made by the Secretaries of the High Court seeking up-gradation, which has been ordered by the learned

Single Judge, is not justified.

Mrs. Seema Khajuria Shekhar, the learned AAG, stressed the said grounds and argued that unless and until the Rules are amended and

approved by the Government, the private respondents are not entitled to seek the benefits.

Mr. Sunil Sethi, learned senior counsel appearing for the private respondents, on the other hand, argued that eligibility of respondent Nos. 1 to 4

to claim parity with the pay scales of the persons working in Civil Secretariat was already considered by this Court in the decision reported in

1994, KLJ 179: JKJ Soft JKJ/3024 (Mohan Lal Hakim v. State of J&K) by the learned Single Judge of this Court which was affirmed by

the Division Bench and upheld by Hon'ble the Supreme Court, wherein it was held that Personal Assistants of the Judges of the High Court were

to be treated identically with the Personal Assistants working in the Civil Secretariat and they were to be designated as Private Secretaries. The

said judgment was implemented. Learned senior counsel also argued that Private Secretaries working in the Civil Secretariat, when they are

inducted into Kashmir Administrative Services, can raise up to the level of Super Time Scale and the Private Secretaries of the Judges of the High

Court have been given promotional avenues up to Secretaries in the pay scale of Rs.10,000-15200 and only two posts of Joint Registrars equal to

the Selection Grade of Rs. 12000-16500 are available in the High Court and four further posts are available to the Private Secretaries working in

the civil secretariat. Due to the said fact the personal staff association made a representation to remove the disparity and the Registrar General on

the directions of the Chief Justice on 28.05.2012 recommended for extending the benefit as is being given to the officers of the Secretariat

Administrative Services and no action being taken the writ petition was filed which was allowed by the learned Single Judge. The learned senior

counsel further submitted that once the High Court/Chief Justice has recommended the claim for upgrading the posts with similar scale of pay as is

being given to the private secretaries in the Civil Secretariat, the government is bound to accept it and it cannot delay or deny the scale of pay in

terms of Section 108 of the Jammu and Kashmir Constitution, which is in pari materia with Article 229 of the Constitution of India. Hence the

learned Single Judge was right in allowing the writ petition insofar as prayer Nos. 1 and 2 are concerned.

Mr. Amrish Kapoor, learned counsel appearing for the High Court also argued that the recommendations having been made on the orders of

the Chief Justice, who is vested with the powers under the Constitutional provisions mentioned above and having regard to the earlier order of this

Court which was affirmed by Hon'ble the Supreme Court, subsequent up-gradation/higher salary, as has been given to the Private Secretaries

working in the Civil Secretariat, should automatically be extended and the High Court has forwarded a copy of the order of the learned Single

Judge and still no action is taken.

We have considered the rival submissions.

The Personal Staff Association of the High Court submitted a representation which was duly recommended as per the orders of the Chief

Justice and communicated to the Government to give scales of pay in terms of SRO 386 of 2008 and the said representation having not been

positively considered, the respondents herein have filed the writ petition.

When the matter was taken up for hearing before the Writ Court on 07.03.2014, the Secretary to Government, Department of Law, Justice and

Parliamentary Affairs was directed to file the statement regarding the steps taken on the recommendations of the Chief Justice, which were

forwarded by the Registrar General on 28.05.2012. It was replied that the matter was taken up with the General Administration Department which

in turn on 24.07.2014 has suggested the course of action to be adopted and by communication dated 28.07.2014 request was made to the

Registrar general to formulate a draft scheme for personal staff of the High Court in order to better their promotional avenues similar to one

available to the State Government employees under KAS Rules. It was also stated therein that as and when a proposal is received by the Law

Department the same will be placed before the Government in consultation with Finance and General Administration Department.

The learned Single Judge having noticed the fact that the genuine grievance of the respondents has been conceded by the Law Department and

the General Administration Department and having regard to the fact that the judgment in the earlier round of litigation, namely, Mohan Lal

Hakim v. State of J&K (supra) having been implemented after dismissal of the Special Leave Petition by the Hon'ble Supreme Court, held that

for the purpose of extending the benefit of release of scales of pay as per Rule 5 of SRO 386 dated 01.12.2008, it is not imperative to amend the

Rules governing the respondents. In the said judgment it was held that Personal Assistants of Judges of the High Court of Jammu and Kashmir with

designation as Private Secretaries are bound to be treated identically with the Personal Assistants working in the Civil Secretariat attached with

Ministers and Ministers of State, are entitled to get the benefit of higher pay scales which are being paid to their counter-parts working in the Civil

Secretariat and while implementing the said judgment no amendment in the Rules was either sought for or made to extend the benefits and the

appellants have implemented the order in the light of the positive directions given to treat the Personal Assistants attached with Judges of the High

Court at par with the Personal Assistants working in the Civil Secretariat, attached with Ministers and Ministers of State for purposes of payment

of emoluments.

Again in SWP No. 295/1998 a similar direction was issued when the next higher grade to the extent of 25% of the cadre strength of the

Private Secretaries working in the Civil Secretariat was released. The said writ petition was allowed by this Court on 07.04.2000 and after

dismissal of the appeal preferred the State Government implemented the said judgment without insisting for amending the Rules.

In the year 2003, further benefit of promotion in the next higher scale was granted to the Principal Private Secretaries working in the Civil

Secretariat. For extending the similar benefits, the Principal Private Secretaries of the High Court again filed SWP No. 762/2003 and the same

was also allowed by order dated 17.03.2006. The LPA as well as the Special Leave Petition filed having been dismissed the said judgment was

also implemented without amending the Rules.

The learned Single Judge, considering the above facts, held that it is not imperative to amend the Rules governing the writ petitioners' cadre. It

was also held that number of senior cadre posts would be relatable to the number of Secretaries attached to the Judges of the High Court, which is

As per Sub-rule (3) of Rule 5 of the KAS Rules, 30% of the senior cadre posts will have to be in the Selection Grade and as such 4 posts of

Secretaries in selection grade is applicable to the High Court. In the next scale, namely, Special Scale, as per clause (iv) of Sub-rule (1) of Rule 5

and Sub-rule (2) of Rule 5, 20% of the total senior cadre posts shall be in the Special Scale out of which 10 posts shall be in the Super Time

Scale. 20% of 14 posts of Secretaries would come to 2.8 posts i.e. three posts. The learned Single Judge also noticed the fact that there are

already two posts designated as Joint Registrar in the scale of Selection Grade as per Rule 5(1) (iii) of the KAS Rules and as such there is

deficiency of two posts in the said scale' of pay. The learned Single Judge also held that it is unnecessary to require the Registrar General to frame

any scheme for the cadre of the respondents and the Government could have itself done the needful on the basis of scheme of KAS Rules, based

on the earlier decisions of this Court and ultimately directed as follows:-

Summarizing what has been discussed above in context of the reliefs prayed for in this petition, the petitioners' cadre is held entitled to:

(i) In all four posts of Secretaries in the Selection Grade of Rs. 12000-16500 above the Time scale of Rs. 10000-15200 as envisaged by Rule

5(1)(iii) read with Rule 5(3) of the KAS Rules. Since two posts designated as Joint Registrars in the said scale of pay stand already sanctioned for

promotion of the members of the said cadre, this leaves the deficiency of 2 posts in the said scale;

(ii) Three posts of the Secretaries in the Special Scale of Rs. 14300-18300 as envisaged by Rule 5(1) (iv) read with Rule 5(2) of the KAS Rules;

(iii) However, in terms of the Rule 5(1) (v) read with the second part of Rule 5(2), the petitioners' cadre is held not to be entitled to any post in the

Super Time Scale of Rs. 18400-22400.

The learned Single Judge also gave directions to the Registrar General to formulate the requisite scheme, keeping in view the discussions and

observations made, as well as the judgment referred above and forward the same to the 2nd appellant within a period of ten days.

The only objection in this appeal being that requisite scheme for upgrading the posts in terms of the judgment of the learned Single Judge having

not been sent by the Registrar General, the Government is unable to release the benefit to the respondents.

In such circumstances, while dismissing the appeal filed by the State, the Registrar General is directed to send a proposal for upgrading the

posts of Secretaries in terms of the judgment of the learned Single Judge, from the date they have become eligible for the same, to the 2nd

appellant within a period of two weeks from the date of receipt of copy of this order and on receipt of the same the judgment rendered by the

learned Single Judge is directed to be implemented within a period of four weeks therefrom, in the light of the decision rendered in Mohan Lal

Hakim v. State of J&K (supra) and other decisions referred by the learned Single Judge, which were implemented by the appellants.

It is pertinent to mention at this juncture that once the High Court recommends the up-gradation of the posts, the appellants have no power to

sit over the same except to implement the proposal to be submitted by the Registrar General in terms of the judgment of Hon'ble the Supreme

Court in the decision reported in JT 1998 (2) SC 1, (High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr.) where it

is held thus:

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 Anr. v. T. Gopalakrishnan Murthi and

Ors., (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 v. Union of India (JT 1989 (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.

In the decision reported in JT 1999 (1) SC 441 (State of Himachal Pradesh v. Shri P. D. Attri and Ors.) it is held thus:

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

designate/equate the posts of Senior Translators and Junior Translators in the Himachal 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:.

No costs.