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2001 DIGILAW 278 (BOM)

Abdul Munaf Mohammed Kazi v. State of Maharashtra

2001-03-22

A.P.SHAH, S.J.VAZIFDAR

body2001
JUDGMENT - VAZIFDAR S.J., J.:---Rule. By consent of the parties Rule is made returnable forthwith. 2. The petitioner is at present working as a Deputy Sheriff in the office of the Sheriff of Mumbai. 3. The petition under Article 226 of the Constitution of India, challenges the respondents refusal to grant parity of pay scale to the petitioner with the post of the first Assistant Master in the office of the Prothonotary and Senior Master of this Court. 4. The petitioner was appointed as the Deputy Sheriff on 1st March, 1990. The petitioners case is that the nature of work and responsibilities of the Deputy Sheriff are more arduous as compared to those of the first Assistant Master. We may mention before going any further that on facts it is clearly established that the work and responsibilities of the Deputy Sheriff are at least equal to if not more arduous than those of the first Assistant Master. Neither the relevant Rules, nor pleadings nor the submissions before us at the hearing indicated otherwise. In fact the same viewed with the past conduct and stand of the respondent established the petitioners case in this regard beyond doubt. It is necessary therefore, at this stage, to compare the nature of the duties and responsibilities of the Deputy Sheriff and compare them to the responsibilities of the first Assistant Master. 5. (a) The Deputy Sheriff discharges judicial and administrative functions and duties. The Deputy Sheriff represents the Sheriff of Mumbai before the High Court, City Civil Court and other courts as per the power of attorney executed by the Sheriff in favour of the Deputy Sheriff. In discharging his duties, the petitioner is contacted during and outside office hours in the Court as well as at his residence. The scope of the Deputy Sheriffs functions duties and powers described below have not been disputed by the respondents. Neither have the respondents disputed the petitioners case that the functions and duties of the Deputy Sheriff are at least equal to if not more arduous than that of the first Assistant Master. (b) The Deputy Sheriff is required inter alia to get processes such as summons, notices, warrants of arrest, warrants of attachment, warrants of sale, injunction etc. Neither have the respondents disputed the petitioners case that the functions and duties of the Deputy Sheriff are at least equal to if not more arduous than that of the first Assistant Master. (b) The Deputy Sheriff is required inter alia to get processes such as summons, notices, warrants of arrest, warrants of attachment, warrants of sale, injunction etc. of various courts served/executed; through bailiffs of various courts; ensure that the processes are returned to the respective courts well in time; call meetings for settling the terms and conditions of auction sale under Order 21 of the Civil Procedure Code, 1908; take precautions for selling available properties pursuant to the orders of courts; submit a report before High Court and City Civil Court for confirmation of auction sales conducted by the Court; arrest contemners in contempt proceedings pursuant to warrants of arrest issued by the High Court; arrest vessels all over Indian territorial waters in admiralty matters and sell them, if necessary; verify claims lodged by the claimants in admiralty and other matters and after hearing them, put up reports before the courts; issue realisation certificates in suits where amounts have been released and supervise and check the poundage register, recover poundage and see that the poundage amount is credited to the Government well in time. (c) The administrative duties of the Deputy Sheriff include various functions. The Deputy Sheriff is a drawing and disbursing officer and also a Class I Gazetted Officer. He is the administrative head of the office of the Sheriff of Mumbai. For discharging administrative functions, the Deputy Sheriff has under him a large staff including special bailiffs and watchmen to supervise the properties attached by this office. He is required to supervise the work of these officers, maintain discipline and check in person and prepare confidential reports of the staff members. The Deputy Sheriff exercises the powers conferred upon him by the letters patent to check and examine daily account books, initial waste book entries, sign and issue cheques in execution matters, to examine cash books, bank pass book, personal ledger book etc. He has also to check and examine the balance-sheet, annual budget and correspondence with various Government authorities and organise functions and conferences. 6. He has also to check and examine the balance-sheet, annual budget and correspondence with various Government authorities and organise functions and conferences. 6. The first Assistant Master inter alia has to work as the chamber Registrar attached to the Court hearing various kinds of chamber matters; discharge duties as guardian-ad-litem of minors of whom he is appointed; sanction sale on behalf of minors; scrutinize plaints, petitions and appeals under the proceedings filed in the Court and to check compliance of the requisitions thereon; adjudicate the payment of proper Court fees on the said documents, attend Court hearings, counter-check the drafts of decrees and orders checked by junior officers, administer oath to parties and take evidence de bene esse. 7. As stated above the averments regarding the nature of duties of the chamber Registrar have not been denied by the respondent. It is not the case of the respondent that the responsibilities and duties of the Deputy Sheriff are any less than that of the first Assistant Master. In fact the respondent has not denied the petitioners averment that the nature of work and responsibilities of the Deputy Sheriff are more arduous as compared to those of the first Assistant Master. 8. In an unreported judgment in the case of (B.L. Mengane another v. Shri Nana Chudasama others)1, in Writ Petition No. 959 of 1990 dated 18th September, 1991, a Division Bench of this Court considered the question as to whether a petition pertaining to the selection of a Deputy Sheriff is to be transferred to the State Administrative Tribunal on the Constitution of the State Administrative Tribunal under the Administrative Tribunal Act, 1985. Under section 2(c) of the Administrative Tribunal Act, 1985, the provisions thereof are not applicable to "any officer or servant of the Supreme Court or of any High Court." The Division Bench while referring to Chapter XXVIII of High Court Rules on the Original Side, set out various duties of the Deputy Sheriff. The Division Bench has also referred to "A treatise on the offices of Sheriff, under Sheriff, bailiff etc.", by George Atkinson, 5th edition, published as far as back in 1869, in which it is stated that--- "The Sheriff is the immediate officer of the Court to execute writs and the like" (page 5). The Division Bench has also referred to "A treatise on the offices of Sheriff, under Sheriff, bailiff etc.", by George Atkinson, 5th edition, published as far as back in 1869, in which it is stated that--- "The Sheriff is the immediate officer of the Court to execute writs and the like" (page 5). The Division Bench has further referred to Clause 8 of the Letters Patent of 1865 which authorises and empowers the Chief Justice of the High Court to appoint inter alia ministerial officers as shall be found necessary for the administration of justice and the due execution of all the powers and authorities granted and committed to the High Court by these letters patent. The due execution of all orders of the High Court are carried out by the office of the Sheriff of Bombay. The Division Bench held as under:--- "In our view, looking to the nature of duties discharged by the office of the Sheriff of Bombay and by the Deputy Sheriff of Bombay, Deputy Sheriff falls within the term "officer of the High Court" under section 2(c) of the Administrative Tribunal Act, 1985." Under Article 229 of the Constitution of India, Sheriff of Bombay, with the concurrence of the Chief Justice of the Bombay High Court, appointed the petitioner as the Deputy Sheriff. In view thereof, the Division Bench came to the conclusion that the Deputy Sheriff was an officer of High Court within the meaning of that expression in section 2(c) of Administrative Tribunal Act, 1985. 9. The facts leading to the filing of this petition are as under:--- Prior to 1976 the pay scale of the first Assistant Master was 980-1179 and the pay scale of the Deputy Sheriff was 875-1179. Several representations were made by the Sheriff of Mumbai for upgrading the pay scale of the Deputy Sheriff. Ultimately, the Bhole Commission in 1976 recommended Grade 16 (10,000-15,000) for the post of Deputy Sheriff. It is important to note the following observations of the Bhole Pay Commission:-- "We have recommended the same scale as for the first Assistant Master on the Original Side of the High Court. Ultimately, the Bhole Commission in 1976 recommended Grade 16 (10,000-15,000) for the post of Deputy Sheriff. It is important to note the following observations of the Bhole Pay Commission:-- "We have recommended the same scale as for the first Assistant Master on the Original Side of the High Court. We would also recommended the integration of this post with the hierarchy in the High Court so that the present isolation of this post is brought to an end." It is even more important to note that the respondent accepted the recommendation of the Bhole Pay Commission and granted parity of pay scale to the Deputy Sheriff and the first Assistant Master. 10. In 1986 certain officers of the Original Side of this Court, including associates, filed Writ Petition No. 1526 of 1986. By an order and judgment dated 5th/6th December, 1986 of a learned Single Judge of this Court, revised and upgraded the pay scale of the petitioners therein from 680-1250 to 1000-50-1500 with effect from 1st April, 1983. The judgment was confirmed by the Division Bench in Appeal No. 620 of 1989, by a judgment dated 31st August, 1987. 11. The petitioner was appointed as the Deputy Sheriff at Mumbai on 1st March, 1990 by the Sheriff of Bombay with the concurrence of Honble Chief Justice of the Bombay High Court under Article 229 of the Constitution of India. Prior thereto, the petitioner was working as an Associate in the office of the Prothonotary Senior Master of this Court on the pay scale of 680-40-1000-50-1250. The petitioner pay scale as the Deputy Sheriff from 1st March, 1990 was 1000-50-1500, which was equivalent to that of the first Assistant Master. Thus the pay scale fixed for the Deputy Sheriff was the same as for the post of the first Assistant Master. This was obviously pursuant to the recommendations of the Bhole Commission being accepted by the respondent. However integration of the two posts as recommended by the Bhole Commission was not introduced. 12. In view of the aforesaid judgment in Writ Petition No. 1526 of 1986, a representation was made by the first Assistant Master to the Government of Maharashtra for upgrading and revising the pay scale as suggested by the Honble Chief Justice in his proposal dated 17th February, 1983. As there was no response to the representation, some of the officers filed Writ Petition No. 978 of 1996. As there was no response to the representation, some of the officers filed Writ Petition No. 978 of 1996. By an order dated 28th June, 1996, one of us (A.P. Shah, J.) passed an order in terms of the minutes of order, tendered by the Counsel. By that order, the pay scale of the first Assistant Master was revised with effect from 1st January, 1986 from 3700-4500 to 3700-5000. 13. The petitioners case therefore is that the Deputy Sheriff was entitled to the grade of the first Assistant Master viz. 3700-5000 with effect from 1st January, 1986 and consequential benefits arising therefrom and further revised pay scale with effect from 1st January, 1996. To this end, several representations were made on behalf of the Deputy Sheriff to the respondent. The petitioner by this letter dated 13th April, 1999, addressed to the respondent, stated some of the above facts. The petitioner stated that at present the pay scale granted to the Deputy Sheriff is 10,000-15,000. The petitioner contended that he should also have been granted the revised pay scale given to the first Assistant Master i.e. the pay scale of Rs. 16,400-20,000. The representations having been rejected, the petitioner has filed the present petition. 14. As recorded in our order dated 30th January, 2001, Shri Belosey, the learned A.G.P., appearing on behalf of the respondent informed us that the Government had received a report of the Anomaly Committee in respect of the post of Deputy Sheriff which was under consideration. We directed the respondent to take a decision on the report of the Anomaly Committee on or before 10th March, 2001. The respondents decision in the G.R. dated 9th March, 2001, so far as the petitioner is concerned is as follows:--- "In the revised pay scale of Rs. 10,000-15,200, prescribed for the cadre post, Deputy Sheriff, from 1st January, 1996, recommendation viz. "No Anomaly" is made by Pay Anomaly-High Level Committee. The said recommendation is accepted by the Government." The decision contains no reasons. 15. On behalf of the respondent, an affidavit dated 21st March, 2001 was filed by one N.M. Shinde, Section Officer, Law and Judiciary Department. 16. "No Anomaly" is made by Pay Anomaly-High Level Committee. The said recommendation is accepted by the Government." The decision contains no reasons. 15. On behalf of the respondent, an affidavit dated 21st March, 2001 was filed by one N.M. Shinde, Section Officer, Law and Judiciary Department. 16. Shri Belosey, submitted that the pay scale of State employees are generally revised after every 10 years; that after the IVth pay commission came into effect, the recommendations of the Bhole Commission ceased to apply; that the recommendation of the IVth Pay Commission were taken into consideration for the purpose of revision of pay scale which was effected from 1-1-1986 to 31-12-1995 and that for the period 1996 to 2005, the Vth Pay Commission became applicable, which takes into consideration the nature of work, duties and responsibilities and the fixes pay accordingly. Thus Mr. Belosey submitted, the recommendations of the Bhole Commission are how redundant. 17. At the cost of repetition, it must be noted that the respondent has not challenged the petitioners submission that the nature of work and responsibilities of the Deputy Sheriff are more arduous than that of the first Assistant Master. The comparative chart containing the administrative and judicial duties of the Deputy Sheriff and the first Assistant Master handed over by Mr. Sathe was not disputed by Mr. Belosey. We have earlier in this judgment referred to some of these duties of the two posts. Examining the chart, the pleading and the Rules of the High Court, we hold that the duties of the Deputy Sheriff are at least equal to those of the first Assistant Master. 18. Mr. Beloseys submission that the recommendations of the Bhole Commission ceased to apply after the IVth Pay Commission came into effect really misses the point. What is important is that by accepting the recommendations of the Bhole Commission, the respondent recognised the fact that the duties of the Deputy Sheriff are equal to those of the first Assistant Master. Thus parity in pay scale had to be and in fact was granted to the two posts. It is not the respondents case that there was any change in the duties of the two posts, thereafter that warranted disparity. There was no suggestion to this effect at the hearing before us either. Thus the factual position in regard to the nature of duties of the two posts remained unchanged. It is not the respondents case that there was any change in the duties of the two posts, thereafter that warranted disparity. There was no suggestion to this effect at the hearing before us either. Thus the factual position in regard to the nature of duties of the two posts remained unchanged. There is no explanation as to why the respondent has after almost ten years set the clock back. It is also important to note in this regard that the State Government has not at any stage rejected the recommendations of the Bhole Commission, regarding integration of the two posts. 19. Having come to the conclusion that the work carried out by the petitioner is equal to if not more than that of the first Assistant Master the doctrine of "equal pay for equal work" comes into operation. This doctrine is well-established in a catena of judgments including of the Apex Court. It is sufficient to refer to the judgment of the Apex Court in the case of (Randhir Singh v. Union of India)2, reported in 1982(1) S.C.C. 618 , where the question which fell for consideration in a petition under Article 32 of the Constitution of India, was whether a driver constable in the Delhi Police Force under the Delhi Administration was entitled to the same pay scale as of other drivers in the service of the Delhi Administration. Mr. Justice Chinnappa Reddy speaking for the Court held paragraph 8 as follows:--- "It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims "equal pay for equal work for both men and women" as a Directive Principle of State Policy. Equal pay for equal work for both men and women means equal pay for equal work for everyone and as between the sexes. Directive Principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay." 20. As held by the Supreme Court in the case of (Alvaro Noronha Ferriera v. Union of India)3, reported in 1999(4) Bom.C.R. (S.C.)110, the parameters for invoking this principle would include, inter alia, nature of work and common employer. In view of our findings above, these two parameters are satisfied and apply to the facts of the present case. 21. We therefore, hold that the respondents refusal to grant parity in pay scale to the Deputy Sheriff with the post of the first Assistant Master is violative of Article 14 of the Constitution of India. 22. Moreover the decision of the Anomaly Committee and the respondents acceptance thereof are devoid of any reasons. The affidavit in reply filed on behalf of the respondent does not even attempt to furnish any reasons for the disparity. The affidavit in reply contains no particulars in support of a bare allegation in paragraph 1(ii) thereof that the Vth Pay Commission "takes into consideration the nature of work, duties and responsibilities and fixes pay accordingly". In Randhir Singhs case (supra) the respondent made a bare allegation before the Supreme Court that the pay scale of the drivers of the Delhi Police has been fixed after duly considering all the circumstances and that the drivers in the other department are not similarly situated as the petitioner ............." On the other hand the petitioners before the Supreme Court gave details establishing their case of equal if not more arduous work as compared to the other drivers in the service of the Delhi Administration. The Supreme Court rejected the respondents submission observing that the counter affidavit did not explain how the case of the two sets of drivers is different and what special factors weighed in fixing a lower scale of pay for the petitioners. Even at the hearing before us, Shri Belosey did not attempt to furnish any reasons or particulars in support of his case though that may not be permissible in the absence of and contrary to the pleadings. On this ground also, we hold that the decision of the respondent and the Anomaly Committee that there was no anomaly is erroneous and arbitrary. 23. In the circumstances, we quash and set-aside the G.R. dated 9th March, 2001 in so far as it pertains to the petitioner and direct the respondent to grant to the petitioner pay scale at par with the first Assistant Master from the date of the petitioners appointment i.e. 1st March, 1990 and further upgradation to the pay scale of Rs. 12,000-16,500 with effect from 1st January, 1996 including all consequential benefits. 24. In the circumstances, we pass the following order:--- "ORDER Rule is made absolute in terms of prayer Clauses (a) and (aa), which are as under:--- Prayer Clause (a).That this Honble Court be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other writ, direction or order directing the Government of Maharashtra to grant to the petitioner pay scale at par with first Assistant Master from the date of petitioners appointment from 1st March, 1990 and further upgradation to the pay scale of Rs. 12,000-16,500 with effect from 1-1-1996 including all consequential benefits; Prayer Clause (aa).That this Honble Court be pleased to issue a writ of certiorari or any other appropriate writ order or direction under Article 226 of the Constitution of India calling for the records and proceedings pertaining to the Government Resolution dated 9th March, 2001 in so far as it pertains to the petitioner, and after examining the validity, legality and propriety thereof the same be quashed and set aside." We however, direct that the arrears be deposited in the general provident fund of the petitioner on or before 31st July, 2001. No order as to costs. Parties to act on an ordinary copy of this order, duly authenticated by the Associate of this Court. -----