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1992 DIGILAW 604 (RAJ)

State of Rajasthan v. Shri Khem Chand Sharma (13)

1992-07-23

J.R.CHOPRA, Y.R.MEENA

body1992
Hon. JR. CHOPRA, J.—This special appeal under s. 18 of the Rajasthan High Court Ordinance, 1949 is directed against the Judgment dated December 2, 1991 passed by a learned single Judge of this Court. which was modified on 16.12.1991 in S.B. Civil Review Petition No. 77 of 1991, whereby the learned single Judge has accepted the writ petition filed by the petitione-respondent No. 1 Shri Khem Chand Sharma and following directions were issued to non-petitioner-appeliant : (i) To grant an ordinary time scale of Rs. 5100-150-5700-200-6300 to all RHJS Officers w.e.f. 13.8.1987. (ii) to grant a Selection Scale of Rs. 5900-200-6700 to RHJS Officers w.e.f. 01-9.1988. (iii) to grant a Supertime Scale of Rs. 7300-7600 to seven Officers of the RHJS from amongst those who are already in Selection Scale w.e.f. 1.1.1992 and post them as District Judge-at five Divisional Headquarters other than Jaipur and two at Jaipur, one for Jaipur 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 Art. 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 Art. 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 2 6 of the Constitution. 2. It was submitted that the learned single Judge has failed to properly appreciate the decision rendered by their lordships of the Supreme Court in Mallikarjuna Rao vs. State of Andhra Pradesh (1). It was further submitted that the impugned judgment of the learned Single Judge runs counter to the Judgment of their lordships of the Supreme Court in State of Jammu & Kashmir Vs. A.R. Zakki (2). It was further submitted that the impugned judgment of the learned Single Judge runs counter to the Judgment of their lordships of the Supreme Court in State of Jammu & Kashmir Vs. A.R. Zakki (2). wherein the apex court of the Country has defined jurisdiction of the High Court to issue writs in the nature of mandamus to the Executive and it has been observed that a writ of mandamus cannot be issued to the Legislature to enact a particular legislation and that the same is true as regards the Executive when it exercises the powers to make rules which are in the nature of subordinate legislation. As per the appellant, the learned single Judge has failed to appreciate the powers conferred under Art. 233 and 235 of the Constitution. The matter relating to grant of pay-scales being a condition of Service is to be regulated by the Rules made by the Government and, therefore, no such directions should have been issued as has been given by the learned single Judge. 3. According to the appellant, the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 do not lay down the pay-scale of Rs. 7300-7600 and, therefore, simply because certain other States have granted the pay scale of Rs. 7300-7600 to District Judges no directions can be issued to the non-petitioners appellants to create such a pay-scale for its District Judges. The conditions of service of the Rajasthan Higher Judicial Service cannot be equated with such conditions in the other States viz.. State of Madhya Pradesh. It is well established principle of law that the pay scales available in one State cannot form the basis to issue directions in the nature of legislation in other States because in such matters, Arts. 14 and 16 of the Constitution are not attracted. Even as per r.55 of the High Court Rules, the learned single Judge could not issue such directions sitting singly. The directions given by the learned single Judge to grant these pay-scales to the RHJS Officers are arbitrary, unreasonable and unfair. 4. It was submitted that the pay-scales to RHJS Officers have been granted after considering their equalisations by the Pay-Commissions appointed by the State Govt. The Pay Commissions are expert-bodies on the subject. The Court cannot arrogate to themselves these funtions. 4. It was submitted that the pay-scales to RHJS Officers have been granted after considering their equalisations by the Pay-Commissions appointed by the State Govt. The Pay Commissions are expert-bodies on the subject. The Court cannot arrogate to themselves these funtions. It was further submitted that the Indian Administrative Service is a Service carrying higher responsibilities than the Rajasthan Higher Judical Service. According to the appellant, when the holder of super-time scale of Rajasthan Administrative Service is promoted to Indian Administrative Service, he get 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 16.121991 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 service than Rajasthan Judicial Service, which consists of Munsif-cum-Judicial Magistrates, Addl. Munsif-cum-Judicial Magistrates, Judicial Magistrates, Additional Civil Judge-cum-Additional Chief Judicial Magistrates and Civil Judge-cum.Chief Judicial Magistrates. The powers of the Munsif Magistrates are to hear civil suits upto a sum of Rs. 5,000/- and on criminal side, they are empowered to impose sentence of imprisonment upto three years and fine of Rs. 5000/ whereas Civil Judges-cum-Additional Chief Judical Magistrates and Civil Judges-cum-Chief Judicial Magistrates hear and decide civil suits, the value of which do not exceed Rs. 10,000/- and on criminal side, they are empowered to impose sentence of imprisonment upto 7 years and fine without any limit. The jurisdiction of Addl. District & Sessions Judges and District and Sessions Judges as regards civil cases is unlimited. They also hear and decide civil appeals arising from the judgments and decrees given by Munsiffs and Civil Judges. 10,000/- and on criminal side, they are empowered to impose sentence of imprisonment upto 7 years and fine without any limit. The jurisdiction of Addl. District & Sessions Judges and District and Sessions Judges as regards civil cases is unlimited. They also hear and decide civil appeals arising from the judgments and decrees given by Munsiffs and Civil Judges. On criminal side, they are empowered to inflict any sentence as per law upto the capital sentence viz., even hanging a person till death, subject to the confirmation by the High Court, for its execution. The comparative duties of the Officers of the Rajasthan Judicial Service and the Officers of the Rajasthan Higher Judicial Service are set out in paras 4 to 7 of the writ petition and in para 8 of the writ petition, it has been contended that keeping in view heirarchy powers, jurisdiction, mode of selection, qualifications and experience, it is clear that the duties and functions of Officers of Rajasthan Higher Judicial Service are more arduous, strenuous and involve greater responsibilities than those of Officers of Rajasthan Judicial Service. These averments have not been disputed in the reply that has been filed on behalf of non-petitioner-appellant. In reply to para 8 of the writ petition, the non-petitioner-appellant has submitted that looking to the duties, functions and higher responsibilities attached to Rajasthan Higher Judicial Service, suitable and commensurate pay scales have already been prescribed. Thus, it is an admitted case of the non-petitioner-appellant that duties, functions and responsibilities attached to the Officers of the Rajasthan Higher Judicial Service are higher than the Officers of the Rajasthan Judicial Service. 6. In paras 9 and 10 of the writ petition, it was submitted that after the formation of Rajasthan, 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 Oficers of Rajasthan Higher Judicial Service have always been much higher and better than the pay scales given to the Officers of the Rajasihan Judicial Service. These averments have also not been disputed on behalf of non-petitioner-appellant. 7. According to the petitioner-respondent No. 1, right from 1.4.1950 till 12.8.1987, the pay scales of Oficers of Rajasthan Higher Judicial Service have always been much higher and better than the pay scales given to the Officers of the Rajasihan 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 RJ.S. Officers Association, Jaipur vs. State of Rajasthan (3), that the State Govt. has provided the following four payscales to the Officers of the Rajasthan Judicial Service with effect from 13.8.1987: (i) Super-time Scale Rs. 3900-5300 (ii) Selection Scale Rs. 2975-4700 (iii) Senior Scale Rs. 2540-3900 (iv) Ordinary Scale Rs. 2200-4000 Whereas the Officers of Rajasthan Higher Judicial Service were getting the following pay scales on 13.8,1987: (i) Selection Scale Rs. 4275-5500 (ii) Ordinary Scale Rs. 2750-5000 It was submitted that inspire of grant of aforesaid four pay-scales of the Officers of the Rajasthan Judicial Service with effect from 13.8.1987, no corresponding change was made in the pay-scales of the Officers of Rajasthan Higher Judicial Service and as a result thereof, for the first time since the formation of the State of Rajasthan, the ordinary scale of the Officers of the Rajasthan Higher Judicial Service came to be much less than highest scale of the Officers of Rajasthan Judicial Service. The aforesaid pay scales were again revised with effect from 1.9.1988 vide Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 as under : RAJASTHAN JUDICIAL SERVICE (i) Ordinary Scale 2200-4000 (ii) Senior Scale 3000-4500 (iii) Selection Scale 3700-5000 (iv) Supertime Scale 4500-5700 RAJASTHAN HIGHER JUDICIAL SERVICE (i) Ordinary Scale 4500-5700 (ii) Selection Scale 5100-6300 Thus, with effect from 1-9.1988, the Ordinary pay scale of the Officers of the Rajasthan Higher Judicial Service was brought at par with the super-time scale of the Officers of Rajasthan Judicial Service and in between 13-8.1987 to 1.9.1988, the ordinary scale of the officer of the Rajasthan Higher Judicial Service remained lower than the selection scale of the Officers of the Rajasthan Judicial Service. 8. 8. The contention of the non-petitioner-appellant is that from 1.9.1986 to 12.8.1987, there were only two pay scales for the Officers of the Rajasthan Judicial Service : (1) Munsif cum Judicial Magistrates 1720-3350 (2) Civil Judges & Chief Judicial Magistrates or Addl. Chief Judicial Magistrates 2600-4150 and with effect from 13.8.1987, the following four pay scales were granted to the Officers of the Rajasthan Judicial Service : (i) Ordinary Scale 2200-4000 (ii) Senior Scale 3000-4500 (iii) Selection Scale 3700-5000 (iv) Super-time Scale 4500-5700 According to the non-petitioner-appellant, if the earlier two pay scales were allowed to continue for the Officers of the Rajasthan Judicial Service, there would have been no difficulty in maintaining differences between the highest pay scale of the Officers of the Rajasthan Judicial Service and the lowest pay scale of the Officers of the Rajasthan Higher Judicial Service. The super-time scale for the Officers of the Rajasthan Judicial Service has been introduced on the analogy of such a scale made available to the Officers of the Rajasthan Administrative Service, Rajasthan Police Service and Rajasthan Accounts Service. 9. It was further contended by the non-petitioner-appellant that the super-time scale Officers of Rajasthan Administrative Service are promoted to the Senior Scale of Indian Administrative Service, which carries pay-scales of Rs. 3200-4700. The Indian Administrative Service is also a superior service than the Rajasthan Administrative Service. However, the State Govt. has endeavoured 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 a 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 390 J-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 thatit was not going to effect their existing pay. perhaps for the reason thatit 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 in incorporating an amendment therein under powers conferred vide Article 309 of the Constitution. Thus, it has been admitted on behalf of the non-petitioner-appellant that the RHJS is a promotion post from RJS and it should be provided with adequate scale of pay, which should not be less than the highest scale of Rajasthan Judicial Service. Although, the non-petitioner-appellant has admitted that RHJS being a superior service was always granted better pay scales from 1.4.1950 to 12.8.87 but now it says that it is firmly of the view that ordinary scale of RHJS, which is promotion post for RJS Officers should in no case be less than the highest scale of RJS. Although, in reply to Para 10 of the writ petition, it obliquely suggests that when a super-time scale Officer of the Rajasthan Administrative Service is promoted to the senior scale of Indian Administrative Service, he is fixed in the pay-scale of Rs. 3200-4700. Thus, on promotion to a higher service, he gets lower pay-scales. Thus, the non-petitioner appellant wants to suggest that although, they are unjust to their own Officer in the Administrative side but they do not want to be unjust towards the Judicial Officers and on promotion to Rajasthan Higher Judicial Service from Rajasthan Judicial Service. They at least want to grant them similar scales which are admissible to the supsr-time scale Officers of Rajasthan Judicial Service. It was further suggested that it is not unknown that even on promotions, similar scales of pay may be provided because on promotion, one gets the benefit of r.26-A of the Rajasthan Service Rules. It has also been admitted in reply to para 14 of the writ petition that it is true that prior to 1.9.1988 there was a large difference between the minimum pay of both the Services but that hardly matters. It has also been admitted in reply to para 14 of the writ petition that it is true that prior to 1.9.1988 there was a large difference between the minimum pay of both the Services but that hardly matters. The large difference as per them is rather disadvantageous to the incumbents of the posts and if there is a smaller difference, the incumbent of the lower post would reach minimum of the scale of the higher post much before his promotion and in that case, his pay in the scale of the higher post would be fixed at a stage higher than the minimum of the pay scale. According to the appellant it is surprising that the petitioner is aggrieved with the advantage given to him. 10. The appellant has further contended that the Equivalence Committee appointed by the State to suggest the revised pay scale with effect from 1.9.1988 suggested this very pay scale for ordinary scale Officers of Rajasthan Higher Judicial Service, keeping in view the minimum of the super-time scale of Officers of Rajasthan Judicial Service.It has been admitted that though, this was not in line wish 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 Add!. 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; issues necessary guide-lines and instructions whenever necessary; and is answerable directly to the State Govt. The district level Officers implements policies framed at the State level and report to the State-level authorities. Thus, it was claimed that on account of higher responsibilities, the Secretaries to the Govt. are allowed higher pay scales than the district level Officers. 12. The district level Officers implements policies framed at the State level and report to the State-level authorities. Thus, it was claimed that on account of higher responsibilities, the Secretaries to the Govt. are allowed higher pay scales than the district level Officers. 12. It may be stated here and now that this analogy which has been claimed on behalf of the State Govt. is totally misconceived sofaras District & Sessions Judges are concerned. The Law Secretary, who is Secretary to the Govt. in the Department of Law may formulate any policy for whole of the State and may participate in the decision-making process, which may effect the whole of the State but he has no right either to give any directions to the District & Sessions Judges how to decide mattets on the Judicial side or to supervise their work. Rather, the posts of District & Sessions Judges and the Law Secretary are interchangeable. The District & Sessions Judges have been categories as Head of the Department other than Class-I Officers and they are not answreable to the Secy to the Govt. in the Law Department. They are not obliged to implement the policies framed by the State Govt. or by the Law Secretary, and, therefore, this simile, which has been set out in para 20 of the reply to the writ petition for grant of higher pay scales to the Secretaries to the Government and branding District & Sessions Judges as district - level Officers cannot withstand scrutiny even for a moment. All District & Sessions Judges discharge their judicial functions independently. It is only the High Court, which can supervise their work. The Secretary to the Govt. has no power to supervise their work. The control of the High Court over the District & Sessions Judges is total complete and exclusive. Even the High Court does not interfere in their judicial functions i. e. it cannot give any guidance to the Distt. & Sessions Judges as to how they should decide judicial matters pending before them. The District & Sessions Judges are free to decide cases pending in their courts in their own way. Thus the simile which has been put forth and which may have prevailed with the Equivalence Committee appointed by the State Govt. is totally misplaced and misconceived and is inapplicable sofaras the District & Sessions Judges are concerned. 13. We have heard Mr. Thus the simile which has been put forth and which may have prevailed with the Equivalence Committee appointed by the State Govt. is totally misplaced and misconceived and is inapplicable sofaras the District & 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 Art. 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 AP. (supra). 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 the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. The Special Rules have been framed under Art. 309 of the Constitution and the power under Art. 309 of the Constitution to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State, as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Govt. to legislate under Art. 309, of the Constitution. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule-making power in any manner. The Courts cannot assume to itself a supervisory role over the rule - making power of the executive under Art. 309 of the Constitution. to legislate under Art. 309, of the Constitution. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule-making power in any manner. The Courts cannot assume to itself a supervisory role over the rule - making power of the executive under Art. 309 of the Constitution. In para 11 of the judgment, their lordships have relied on a decision in Asif Hameed V. State of Jammu & Kashmir (4) wherein it was observed as under : "When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the Court must strike down the action. While doing so, the Court must remain within its self-imposed limits. The Court sits in the judgment on the action of a coordinate branch of the Govt. While exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere or legislature or executive". Mr. B.P. Aggarwal has next referred to a decision of their lordships of the Supreme Court in State of Jammu & Kashmir V. A.R. Zakki (supra) which has also been quoted in the memo of appeal. That was a case, in which the High Court in a writ petition directed the State Govt. to amend the Rules in the light of the proposals made by the High Court and carry the process of amending the Rules to its logical conclusion within a period of three months. The letters patent appeal filed before the Division Bench was dismissed sumim-arily. This direction of the High Court was assailed before their lordships of the Supreme Court and it was observed as under: "In our opinion, there is considerable merit in this submission. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Sec. 110 of the J&K. Constitution, which is on the same lines as Art. 234 of the Constitution of India, vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial service of the State of J&K and for framing of such Rules, the Governor is required to consult the Commission and the High Court. This power to frame Rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Govt. to make the Rules in accordance with the proposal made by the High Court." While relying on their earlier decision rendered in Supreme Court Employees Welfare Association V. Union of India (5), wherein it has been observed : "There can be no doubt that no Court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority." Their lordships of the Supreme Court have held that it need hardly be emphasised that while construing the recommendations of the High Court, the State Govt. would proceed on the basis that in such matters, the opinion of the High Court is entitled to the highest regard. Thus, although, it was held that no mandamus can be issued to the legislature to enact a particular legislation and such a mandamus is also not possible to be issued against the executive when it exercises powers to make Rules, which are in the nature of subordinate legislation but recommendations of the High Court should receive highest regards. 15. It was, however, strenuously contended by Mr. M.Mridul, the learned counsel appearing for the petitioner respondent No. 1 that this Court did not issue any mandamus to the executive to legislate. 15. It was, however, strenuously contended by Mr. M.Mridul, the learned counsel appearing for the petitioner respondent No. 1 that this Court did not issue any mandamus to the executive to legislate. In this respect, he has drawn our attention to a decision of their lordships of the Supreme Court in The Secretary, Finance Department V. The West Bengal Registration Service Association (6), wherein it has been held that it is the primary function of the executive and not the judiciary to determine the pay scales and equation of posts. The Courts can interfere only when employees have been unjuetly treated by arbitrary state action or inaction. It was further held that the State Govt. ought to re-examine the question of the appropriate pay scale for Sub-Registrars in view of upward revision of the educational qualification. It was also held that the view of the High Court treating Sub-Registrars as equivalent to the Judicial Officers was an exercise to compare unequals as equals. The duties of Munsiffs and Judicial Magistrates are more onerous than those of Sub-Registrars and therefore, unequals cannot be treated as equals. The entire thrust of this decision is that ordinarily, the determination of the pay scales and equalisation of posts is the primary duty of the Executive but unequals cannot be treated as equals and if they are treated as such then the Courts can interfere if the employees have been unjustly treated by arbitrary state action or inaction. 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 sofaras 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 and 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 Officers keeping in view their nature of duties, nature of powers and nature of functions. 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 Officers 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 the 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 since after formation of the State of Rajasihan till 12.8.1987, the Officers of the Rajasthan Higher Judicial Service were getting higher pay scales than the Officers of the Rajasthan Judicial Service. It is only when the judgment of this Court in Padam Kumar Jains case (supra) was implemented by the State Govt. this long standing superiority was distuibed with effect from 13.8.1987 and in between 13.8.1987 to 31.8.1988, the Officers of the ordinary scale of Rajasthan Higher Judicial Service were put in lower scale than the Officers of the super-time scale of Rajasthan Judicial Service. This fact has been admitted by the non-petitioner-appellant in para 12 of their reply and it was submitted that the State Govt. wants to correct this anamoly which has occurred between 13.8.1987 to 31.8.1988 by making suitable amendments in the Rules and after 1.9.1988 the Ordinary scale RHJS Officers have been put in the same running pay scale of 4500-5700 which is available to the Super-time scale RJS Officers. 16. The contention of Mr. M. Mridul, the learned counsel appearing for the petitioner-respondent No. 1 is that Art. 14 not only stands violaied when equals are treated as unequals but it stands equally violated when unequals are treated as equals. The learned single Judge, in this respect, has refemd to a decision of their lordships of the Supreme Court in Mohd. Usman V. State of A.P. (7) wherein their lordships have held that the proposition of law that the doctrine of equality is attracted not only when equals are treated as unequals but also when unequals are treated as equals and that Art. 14 is offended both by finding difference when there is none and by making no difference when there is one is unexceptionable. But the rule of equality is intended to advance justice by avoiding discrimination. But the rule of equality is intended to advance justice by avoiding discrimination. Thus, in this case, this Court has not given any direction to the legislature to legislate the Rules. The claim of the RHJS Officers is that the state-action is arbitrary when it has granted equals pay scales to the Officers of the Ordinary scale of RHJS and Officers of the Super-time scale of Rajasthan Judicial Service, though it has admitted that the RHJS is a superior service than the RJS. In such circumstances, a direction can be given by this Court to the State Govt. to rectify this unjust and arbitrary state action or inaction, as the case may be, as has been held in the Secretary, Finance Departments 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 (8). wherein it has been held that the findings of expert bodies like Pay Commission should not be interferred with ordinarily. It is not possible for 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 Honble 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: RAJASTHAN HIGHER JUDICIAL SERVICE : (i) District & Sessions Judges (Selection Scale) 2800 Fixed (ii) District & Sessions Judges (Ordinary Scale) 1700-2600 RAJASTHAN JUDICIAL SERVICE (i) Civil Judges-cum Chief Judicial Magistrates 1600-2325 (ii) Addl. Civil Judges-cum Chief Judicial Magistrates 1210-2040 (ii) Munsif-cum-Judl. Magistrates 1000-1800 However, with effect from 20.4.1983, the posts of Addl. Civil Judges-cum-Chief Judicial Magistrates were upgraded and they wete also granted pay scales equivilentto the Civil Judge-cum-Chief Judicial Magistrates in the pay scale of Rs. 1600-2325. Thereafter, in the year 1986, the report of the Fourth Pay Commission set up Govt. of India under the Chairmanship of Honble Justice P.N. Singhal (Ex-Chief Justice of Rajasthan and a Judge of the Supreme Court) was submitted to the Govt. of India and Central Govt. employees were granted new pay scales with effect from 1.1.1986. The employees of the Govt. of India under the Chairmanship of Honble Justice P.N. Singhal (Ex-Chief Justice of Rajasthan and a Judge of the Supreme Court) was submitted to the Govt. of India and Central Govt. employees were granted new pay scales with effect from 1.1.1986. The employees of the Govt. of Rajasthan also demanded similar central pay scales and, therefore, the Govt. of Rajasthan has revised the pay scales of its employees vide Rajasthan Civil Services (Revised Pay Scales) Rules, 1987 with effect from 1.9.1986 and those revised pay scales granted to the RHJS and RJS Officers are as under : RAJASTHAN HIGHER JUDICIAL SERVICE 1. District & Sessions Judges (Selection Scale) 4275-5500 2. District & Sessions Judges (Ordinary Scale) 2750-5000 RAJASTHAN JUDICIAL SERVICE 1. Civil Judges & Chief Judl. Magistrates or Addl. Chief Judl. Magistrates 2600-4150 2. Munsifcum Judl. Magistrates 1720-3350 Thus, difference in pay scales of RJS Officers and RHJS Officers was maintained. However, when the State Govt. granted four pay-scales to the Officers of the Rajasthan Administrative Service, Rajasthan Police Service and Rajasthan Accounts Service, a writ petition was filed and in Padam Kumars case (supra), this Court directed the State Govt. to grant similar four scales of pay to the Officers of Rajasthan Judicial Service and accordingly, in compliance of the judgment of this Court in Padam Kumars case (supra), the State Govt. has granted the following four pay scales to the Officers of the Rajasthan Judicial Service with effect from 13.8.1987. RAJASTHAN JUDICIAL SERVICE 1. Ordinary Scale 1720-3350 2. Senior Scale 2540-3000 3. Selection Scale 2975-4700 4. Supertime Scale 3900-5300 and the following two scales of pay remained untouched as regards Officers of the Rajasthan Higher Judicial Service. 1. RHJS 1. Ordinary Scale 2750-5000 2. Selection Scale 4275-5500 Thus, it is clear that it was from 13.8.1987 that the pay scale of Ordinary scale of RHJS Officers was brought lower to the Selection and Supertime Scales RJS Officers and it remained lower upto 31.8.1988. However, the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 came into force with effect from 1.9.1988 and the following pay scales were granted to the Officers of the Rajasthan Higher Judicial Service and Rajasthan Judicial Service: RAJASTHAN HIGHER JUDICIAL SERVICE 1. District & Sessions Judges (Selection Scale) 5100-6300 2. District & Sessions Judges 4500-5700 RAJASTHAN JUDICIAL SERVICE : 1. Ordinary Scale 2200-4000 2. Senior Scale 3000-4500 3. Selection Scale 3700-5000 4. District & Sessions Judges (Selection Scale) 5100-6300 2. District & Sessions Judges 4500-5700 RAJASTHAN JUDICIAL SERVICE : 1. Ordinary Scale 2200-4000 2. Senior Scale 3000-4500 3. Selection Scale 3700-5000 4. Supertime Scale 4500-5700 Thus, with effect from 1.9.1988, the super-time scale Officers of Rajasthan Judicial Service were brought at par with the Ordinary Pay Scale of the Officers of Rajasthan Higher Judicial Service. Thus, it is clear that the Officers of the Rajasthan Higher Judicial Service were brought at par with the Officers of the Super-time scale of Rajasthan Judicial Service not on the advice of any expert body. When it has been admitted by the State Govt that the Rajasthan Higher Judicial Service is a superior service than the Rajasthan Judicial Service and 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 Rs. 4500-5700 to the Ordinary scales Officers of the Rajasthan Higher Judicial Service and the supertime scale RJS Officers is unjust ana abitrary and therefore, the pay scale of Rs. 4500-5700 granted to the ordinary scale RHJS Officers deserves to be quashed. 19. It was contended by the learned Advocate General that if the grant of a particular scale is considered to be arbitrary and unjust them it can be quashed but no directions can be issued that a 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 RHJS Officers. Sufficient time was granted to the learned Advocate General and the Additional Advocate General to come out with its own proposal and even the learned Addl. Advocate General after conclusion of the arguments requested the Court that the matter may not be decided during summer vacations and he will apprise the State Govt. Sufficient time was granted to the learned Advocate General and the Additional Advocate General to come out with its own proposal and even the learned Addl. Advocate General after conclusion of the arguments requested the Court that the matter may not be decided during summer vacations and he will apprise the State Govt. of this situation that if the grant of any scale No. 25 i.e. 4500-5700 to the ordinary scale RHJS Officers is quashed, there will be no alternative but to grant pay scale No. 26 i.e. Rs. 5100-6300 to the Ordinary Scale RHJS Officers and Pay scale No. 27 i.e. Rs. 5900-6700 to the Selection scale RHJS Officers. We waited till the end of the summer vacations and after the end of summer vacations, the learned Additional Advocate General was called and asked as to what decision has been taken by the State Govt. He informed us that no decision has been taken by the State Govt. as yet. Thus, after taking sufficient time to re-examine the matter, the State Govt. did not take any decision sofar. 20. Mr. Aggarwal then drew our attention to a Division Bench decision of the Andhra Pradesh High Court in K. Ch. Veerabhadra Rao. V. G.O.I. Ministry of Finance (9). That was a case of Andhra Bank Officers. A particular settlement, was arrived at and in pursuance of that settlement, it was held that if difference in pay either in toto or in part is agreed to be paid, it cannot be held that it was paid as ex-gratia or grace. In such a case, it should be treated as a part of the settlement and therefore, it was held that there is force in the contention for the petitioners that the arrears payable under para 8 of guidelines in relation to Regulation 8 can be claimed by the Officers as of right and it is not a payment by grace or ex-gratia. This authority has no application to the facts of the present case. Here, nothing has been paid by the Court to RHJS Officers as part of the settlement. 21. Our attention was next drawn to a decision of the Central Administrative Tribunal, Madras in N. Thangaraj V. The Union of India (10), wherein the Department had already directed to frame scheme to regularise daily labour. Here, nothing has been paid by the Court to RHJS Officers as part of the settlement. 21. Our attention was next drawn to a decision of the Central Administrative Tribunal, Madras in N. Thangaraj V. The Union of India (10), wherein the Department had already directed to frame scheme to regularise daily labour. It was held that the applicants services shall not be terminated but they should be regularised as and when vacancy is available. On facts, this authority has no application to this case. 22. He has further drawn our attention to a decision of their lordships of the Supreme Court in State of U.P. V. J.P. Chaurasia(ll), wherein it has been observed that in cases of parity in employment, factors justifying differentiation depends on evaluation of duties and responsibilities besides quantity and 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 tnalafides 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, responsi-bili ties 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, ever since the formation of the State of Rajasthan, the RHJS having been treated as a superior service than RJS, higher pay scales were granted to the Officers of the RHJS than the Officers of Rajasthan Judicial Service and thus, the grant of similar pay scales to the Officers of RHJS (Ordinary scale) and RJS (supertime scale) being unjust and arbitrary deserve to be quashed then which particular scales should be granted to the Officers of Rajasthan Higher Judicial Service so that the vice of arbitrariness and unjustness is remedied and the principle of equality enshrined in Art. 14 of the Constitution stands complied with. 23. 23. While relying on the decision of their lordships of the Supreme Court in Charanjitlal v. Union of India (12) it was contended by Mr. Mridul that a law applying to one person or one class of persons is constitutional, if there is sufficient basis or reason for it. Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed. It was further contended that Art. 14 lays down an important fundamental right which should be closely and vigilantly guarded but in construing it, the Court should not adopt a doctrinaire approach which might choke all beneficial legislation. 24. As stated above.it is an admitted case of the parties that RHJS is a superior service than RJS and ever since 1.4.1950 to 12.8.1987, RHJS Officers have always been given higher pay scales than RJS Officers. Simply because super-time R. A. S. Officers who are promoted to Indian Administrative Service are put in lesser pay scale i e. from pay scale 4500-5700 to 3200-4700, which as per the reply filed by the non-petitioner-appellant appears to be unjust and unfair and, therefore, the State Govt. itself thought it proper that RHJS Officers in no case should be put in a lower grade than RJS Officers and, therefore, by granting similar running pay scales to ordinary scale RHJS Officers and super-time scale RJS Officers, it cannot be said that the classification that has been made equalising RJS Officers (super-time grade) with ordinary scale RHJS Officers is just and reasonable. The Officers of RHJS and the Officers of RJS have never been treated as equals and, therefore, it is definitely a case of treating unequals as equals. 25. This Court in Madan Gopal Kabra V. The Union of India (13) has held that under Art. 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 alongwith 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 Art. 14 of the Constitution is given a go-bye and the equality principle is violated, this Court can issue directions. If Art. 14 of the Constitution is given a go-bye and the equality principle is violated, this Court can issue directions. 26. In this respect, Mr. Mridul has drawn our attention to a decision of their lordships of the Supreme Court in PurshottamLal vs. Union of India (14) wherein although a particular report was submitted by second Pay Commission but with regard to a paritcular 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. 27. Mr. Mridul further referred to a decision of their lordships of the Supreme Court in S.K. Verma Vs. Industrial Tribunal-cum-Labour, Court New Delhi (15) wherein it has been observed that a welfare Statutes must of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. Mr. Mridul has submitted that grant of pay scales is also a welfare statute and it must receive a broad interpretation. In making equalisation, certain broad facts which are admitted cannot be overlooked and if on the basis of admitted facts, unequals have been treated as equals, the Court can redeem that mischief and it cannot be estopped from doing so on the technical plea that this is the exclusive function of the executive and, therefore, no mandamus or directions should be issued. According to Mr. Mridul, the grant of pay-scales is a condition of service, which is governed by the Rules framed by the Governor under Art. 309 of the Constitution and if in applying those Rules, the Govt. action becomes arbitrary and unjust or it smacks of capricious-ness and the State is not able to honous its obligations on the ground that it will entail financial responsibilities. The matter cannot be allowed to rest at that. If the provisions of Art. 14 are violated, the consideration of financial implications will have to be relegated to the background. India being a country ruled by Law, if the provisions of Art. 14 of the Constitution are violated then such considerations of financial implications will have to be brushed aside. 28. Mr. If the provisions of Art. 14 are violated, the consideration of financial implications will have to be relegated to the background. India being a country ruled by Law, if the provisions of Art. 14 of the Constitution are violated then such considerations of financial implications will have to be brushed aside. 28. Mr. Mridul next placed reliance on a decision of their lordships of the Supreme Court in Randhir Singh V.Union of India (16), wherein their lordships of the Supreme Court have held. : "that it is true that equations of posts and equation of pay are matters primarily for the Executive Govt. and expert bodies like the Pay Commission and not for Courts but where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of Course, if Officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such Officers 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 principles of equal pay for equal work which was first developed in Randhirsinghs 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 Art. 39(d) of the Constitution, which proclaims equal pay for equal work both for men and woman. This principle was reiterated by their lordships of the Supreme Court in P.K. Ramchandra Iyer V. Union of India (17). 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 principles is that if one post is superior to other posts then the superior post must be given super for pay-scale. This inference is irresistible because if one acts otheiwise, it will result in treating unequals as equals and therefore this will be a violation of Art. 14 of the Constitution. This inference is irresistible because if one acts otheiwise, it will result in treating unequals as equals and therefore this will be a violation of Art. 14 of the Constitution. As stated above, the principle of equality as enshrined in Art. 14 of the Constitution is violated not only when equals are treated as unequals but when unequals are also treated as equals and when there is a violation of Art.14 of the Constitution, the Courts do interfere either by giving directions or by issuing a writ of rnandamus. It is true that a writ of mandamus cannot be issued directing the legislature to legislate. It is further true that subordinate legislation is framed by the Executive under Art. 309 of the Constitution. When the Executive has framed or carved out certain pay scales by a subordinate legislation under Art. 309 of the Constitution but in implementing them, their act is unjust, unreasonable or arbitrary i e. it is violative of Arts. 14 and 16 of the Constitution as the principle of equal pay for equal work is not followed and the unequals are treated as equals, the Courts have a right to interfere and they do interfere in such matters. If any authority is needed in support of this proposition, Mr. M. Mridul, the learned counsel appearing for the respondent has drawn our attention to a decision of this Court in S.K. Ghosh V. State of Raj. (18). Against that Judgment, a special appeal was filed and that too came to be decided by a Division Bench of this Court in Natwarlal Thani V. State of Rajasthan (19), wherein the Division Bench of this Court has held that the High Court can give a direction in the nature of mandamus to State Govt. to amend Rules and to provide pay scales and status to Private Secretaries attached to Chief Justice and Judges of High Court equivalent to these of Private Secretaries of Commissioners and Secretaries to State Govt. It was further held that such scales are to be granted from a particular date. Although this direction affected the service conditions of the Private Secretaries attached to Chief Justice and Judges of the High Court but such a direction was given by the High Court in the shape of a writ of mandamus to the State Govt. It was further held that such scales are to be granted from a particular date. Although this direction affected the service conditions of the Private Secretaries attached to Chief Justice and Judges of the High Court but such a direction was given by the High Court in the shape of a writ of mandamus to the State Govt. to grant them pay scales equal to the Private Secretaries of the Commissioners and Secretaries to the Govt. No new scale was carved out. The scale already existed but in-equalities in grant of pay-scales did exist and that was set right by issuing a direction in the shape of a writ of mandamus. It may be stated here that against this judgement of the Division Bench, a special leave petition bearing No. 10961/85, State of Rajasthan V Natwarlal Tnanvi (supra) was filed before their lordships of the Supreme Court and that too came to be dismissed on January 19, 1987. 29 A Division Bench of this Court in Ghanshyam Charan V. High Court of Judicature for Rajasthan at Jodhpur (20) 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 30. In State of Rajasthan Vs. Mrs. Kirti Chhabra (21 )a question arese whether the Assistant Librarian posted 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 that when the principle of equality is violated, a direction can be given that the equalisation which is essential keeping in view the nature of duties should be established and a particular pay-scale which was higher to the one available to the Assistant Librarian posted at Jaipur Bench should be made available to him/her. Although this direction affected the service canditions but such a direction was given in the nature of mandamus by this Court. 31. When the State Govt. Although this direction affected the service canditions but such a direction was given in the nature of mandamus by this Court. 31. When the State Govt. has decided to grant four scales of pay to the Officers of Rajasthan Administrative Service, Rajasthan Police Service and Rajasthan Accounts Service and it did not grant those scales to the Officers of the Rajasthan Judicial Service, Shri Padam Kumar Jain, who was the Pre ident of Rajasthan Judicial Service Association filed a writ petition before this Court bearing No. D.B Civil Writ Petition No. 2216 of 1987 (Padam Kumar Jain V. State of Rajasthan(supra),which was decided by this Court at its Jaipur Bench on Dec 18, 1987, which has been reported in 1988 (1) RLW 45. In that case, it was held that equality of opportunity in matter of public em-ployement must be established. If four scales have been granted to the Officers of Rajasthan Administrative Service, Rajasthan Accounts Service and Rajasthan Police Service then they should also be made available to the Officers of the Rajasthan Judicial Service and consequently, a writ of mandamus was issued to the State Govt. in order to do justice to Rajasthan Judicial Service Officers and similar four pay scales were allowed to them Against that judgment, a special leave petition was filed before their lordships of the Supreme Court and that too came to be rejected. 32. Our attention was also drawn to a decision of their lordships of the Supreme Court in Teerath Narain Mallick V. State of Bihar (22); wherein a direction was given to the State Govt. by their lordships of the Supreme Court to increase the existing strength of Reserve Inspectors by 20% for better promotional prospects of Reserve Sub-Inspectors. The matter related to the conditions of service of Reserve-Sub-Inspectors and such a direction was held to be proper in the facts and circumstances of that case. 33. Our attention was next drawn to a decision of their lordships of the Supreme Court in Raghunath Pd. Singh V. Secy. Home (Police) Department, Govt. of Bihar (23); 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. Singh V. Secy. Home (Police) Department, Govt. of Bihar (23); 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 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 order. Thus, the contention of Mr. B.M. Aggarwal, the learned Advocate General that the service conditions are governed by Art. 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 quotted supra. 34. In Employees of T&F Corpn. of India Ltd v. Union of India(24) 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 with pay-scales enjoyed by employees of B Corporation. In a recent decision rendered by their lordships of the Supreme Court in All India Judges Association V. Union of India (25) a number of directions which affect the service of conditions Judicial Officers were issued by their lordships of the Supreme Court. 35. Mr B.P. Aggarwal, the learned Advocate General while relying on a decision of their lordships of the Supreme Court in Chandigarh Administration Vs. Manpreet Singh (26) has contended that the High Court cannot assume appellate jurisdiction while exercising power under Art. 226 of the Constitution. It can strike down an impugned rule on stated ground of invalidity and direct the authorities to reframe it and act accordingly but cannot itself reframe it and issue direction, order or writ on that basis without hearing the affected parties. In this case, so far as the first two directions given by the learned single Judge are concerned, they do not result in re-framing the scales. The scales were existing in the Rajasthan Civil Services (Revised Pay Scales) Rules, 1987 and 1989. In this case, so far as the first two directions given by the learned single Judge are concerned, they do not result in re-framing the scales. The scales were existing in the Rajasthan Civil Services (Revised Pay Scales) Rules, 1987 and 1989. What has been contended is that in granting certain scales, unequals have been treated as equals and that violates Art. 14 of the Constitution and, therefore, in such a circumstance, if the Court is convinced that the grant of a scale to a particular wing of Officers is unjust, unreasonable and unfair, it can certainly strike down that scale and can grant appropriate scales, which are existing in the Rules. In doing so, the court does not reframe the Rules. Simply because on promotion from R.A.S. to I.A.S., the pay of an R.A.S. Officer is reduced, it cannot be said that same thing should happened to RJS Officers when they fare promoted to RHJS. If any inequality exists in any cadre, that should be removed but that cannot be set up as a ground for treating unequals as equals. It would be better for the State Govt. to remove that disparity rather than set it up for denial of higher scale to the Officers of RHJS, when they are promoted from the cadre of RJS. 36. In para 12 of the reply to the writ petition filed on behalf of the State of Rajasthan, the State Govt. has categorically stated that it is of the firm view that the ordinary scale of RHJS, which is a promotion post for RJS should in no case be less than the highest scale of RJS. Thus, when the State Govt. is convinced and is firmly of the view then it is estopped from setting for grant a ground of lower pay scale to RHJS Officers, 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 Rs. 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 Rs. 3750-5000 with effect from the date the aforesaid super-time scale was granted to RJS Officers. should have been granted the scale of Rs. 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 Rs. 3750-5000 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 s. 152 C.P.C. 37. 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/District and Sessions Judges with effect from 13.8.1987. When the State Govt. itself has granted the scale of Rs. 3900-5300 to the ordinary scale Officers of Rajasthan Higher Judicial Service then it ought to have granted the next higher pay scales to the selection scale Officers of Rajasthan Higher Judicial Service and as per the Rajasthan Civil Services (Revised Pay Scales) Rules 1987, the next higher scale is scale No. 31 i.e. 4275-125-4500-150 -5300-200-5599-which has been granted to all Officers, who were getting fixed pay of Rs. 2800/-. Thus we accordingly direct the respondents to grant pay scale No. 31 i.e. 4275-5500 to the Selection Scale Officers of the Rajasthan Higher Judicial Service with effect from 13.8.1987. 38. We have already held above that the District Judges are not district level Officers and we have given our reasons for that. It was contended that RHJS being a State Service, all other Officers similarly situated were fixed in the pay scale of Rs. 4500-5700 with effect from 1.9.1988 as per the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. In this respect, the learned Advocate General drew our attention to certain Officers, who were earlier getting the pay scale of Rs. 3900-5300 or less than it have been fixed in the pay scale of Rs.4500-5700 with effect from 1.9.1988. According to Mr. Aggarwal, the Addl. Chef Engineer (PHED), Addl. Chief Engineer (Irrigation), Addl. Chief Engineer (PWD) who were getting pay scale of Rs. 3900-5300 or less than it have been fixed in the pay scale of Rs.4500-5700 with effect from 1.9.1988. According to Mr. Aggarwal, the Addl. Chef Engineer (PHED), Addl. Chief Engineer (Irrigation), Addl. Chief Engineer (PWD) who were getting pay scale of Rs. 3550-5100 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1987 have been fixed in the pay scale of Rs. 4500-5700 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. Likewise, the Addl. Director, Medical and Health Department Professors in the Medical Colleges, Addl. Director (Mining), Director, Rajasthan Police Forensic Laboratory, Director, Rajasthan Police (Wireless) and Deputy Chief Town Planner who were getting the pay scale of Rs. 3350-5000; 3150-4 00; 3550-5150; 3550-5150; 3550-5150 and 3550-5150 have been fixed in the pay scale of Rs. 4500-5700 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. He has further submitted that the Director Education (Co lege) who was getting the pay scale of Rs. 3900-5300 has been fixed in the pay scale of Rs. 5100-6300. Thus, it is clear that all those Officers who were getting the pay scales lower than the scale of Rs. 3900-5300 have been fixed in the pay scale of Rs 4500-5700 and the only one Officer i.e. Director Education(Coilege) who was getting the pay scale of Rs. 3900-5300 has been fixed in the pay scale of Rs. 5100-6300. No dissimilar treatment can be meted to Ordinary scale RHJS Officers. They should have also been granted the pay scale of Rs. 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 judgement of the learned single Judge deserves to be upheld to this extent. 40. Mr. In this view of the matter, the judgement of the learned single Judge deserves to be upheld to this extent. 40. Mr. M. Mridul, the learned counsel appearing for the respondents has contended that if the impugned order of the High Court promotes justice between the parties their lordships of the Supreme Court have held that in special leave to appeal they would decline to interfere with it notwithstanding the fact that the High Court might have erred in point of jurisdiction. In this respect, he has drawn our attention to the decisions in Jagansingh v. STAT (27); S.J. Aggarwal V. Karji Narayanbhai (28); Mohd. Swalleh V. IIIrd Addl. District Judge, Meerut, (29) and Council of Scientific & Industrial Research V. K.G.S. Bhatt (30). We are convinced that by granting ordinary scale of RHJS similar to Supertime Scale of RJS, unequals have been treated as equals and that definitely violates Art. 14 of the Constitution. It also violates the principle of equality as enshrined in Art. 39 (d) of the Constitution i.e. equal pay for equal work and higher pay for higher work. In this view of the matter, the first two directions given by the learned single Judge i.e. to grant pay scale No. 26 i.e. 5100-6300 to ordinary scale RHJS Officers and pay scale 5900-6700 (Scale No. 27) to selection scale RHJS Officers with effect from 1.9.1988 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 deserves to be maintained. 41. So far as the third direction given by the learned single Judge is concerned, i.e. to grant a supertime scale of Rs.7300-7600 to seven Officers of RHJS from amongst those who are already in selection scale with effect from 1.1.1992 and post them as District Judges at five Divisional Headquarters other than Jaipur and two at Jaipur, one for Jaipur City and another for Jaipur District, that direction results in giving a mandamus to carve out the new scale and that is beyond the scope of Art. 226 of the Constitution. That is what has been held by their lordships of the Supreme Court in Mallikarjuna Raos case (supra), Asif Hameeds case (supraj and State ofJammu & Kashmirs case (supra). That is what has been held by their lordships of the Supreme Court in Mallikarjuna Raos case (supra), Asif Hameeds case (supraj and State ofJammu & Kashmirs case (supra). A particular scale which has been made available to the Higher Judicial Officers m Madhya Pradesh cannot be a ground to grant such a scale to the Officers of the Rajasthan Higher Judicial Service through a writ of mandamus. At best, a direction could have been given to the State Govt. in the light of the decision of their lordships of the Supreme Court in All India Judges Associations 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 where 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 subjudice before the learned single Judge and, therefore, any observations made by the learned single Judge in this respect are obiterdicta because none of the parties made any submissions about it. 42 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 grant ordinary time-scale of Rs. 5100-150-5700-200-63(0 to all RHJS Officers with effect from 1.9.1988 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989; (2) to grant selection scale of Rs. 4275-125-4400-150-5300-200-5500 to RHJS Officers with effect from 13.8.1987; under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1987; and (3) to grant selection scale of Rs. 5900-200-6700 to RHJS Officers with effect from 1.9.1988 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. However, the theird direction given by the learned single Judge to grant super-time scale of Rs. 4275-125-4400-150-5300-200-5500 to RHJS Officers with effect from 13.8.1987; under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1987; and (3) to grant selection scale of Rs. 5900-200-6700 to RHJS Officers with effect from 1.9.1988 under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. However, the theird direction given by the learned single Judge to grant super-time scale of Rs. 7300-7600 to seven Officers of the RHJS from amongst those who are already in selection scale w.e.f. 1.1.92 and post them as District Judges at five Divisional Headquarters other than Jaipur and two at Jaipur: one for Jaipur City and another for Jaipur District is set aside. It is for the High Court to recommend for grant of such a supertime scale to the RHJS Officers to the State Govt. and it is for the State Govt. to consider and decide such a request, if made by Honble the Chief Justice on behalf of the Full Court within a reasonable time so that no heart-burning may persist in this wing of administration of justice. 43. In the circumstances of this case, the parties are left to bear their own costs of this appeal.