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2005 DIGILAW 3307 (RAJ)

Meenaxi Dave v. State of Rajasthan

2005-12-15

KRISHAN KUMAR ACHARYA, S.N.JHA

body2005
Judgment 1. The dispute in this writ petition relates to the pay scale of the post of Reference Assistant in the Rajasthan High Court. 2. Facts of the case are that one post of Reference Assistant was temporarily created by the Government of Rajasthan for the year 1984-85 in the scale of Rs. 490-840 on 08.06.1984. By order dated 02.05.1986 another post of Reference Assistant for the scale of Rs. 490-840 was created for period upto 28.02.1987. In course of hearing, doubt arose as to whether life of the said posts continued beyond the period mentioned in the aforesaid Government orders or not. On behalf of the High Court, our attention was drawn to the orders dated 13.04.1989 and 21.05.1991 by which the posts were made permanent. In fact no dispute has been raised on behalf of the State about existence of the posts. 3. Coming to the controversy involved in the writ petition, case of the petitioner is that pursuant to the advertisement dated 17.01.1990 and the selection which followed, the petitioner was appointed on the post of Reference Assistant on 05.04.1990 in the pay scale of Rs. 950-1680. According to the petitioner, the scale of Rs. 950-1680 was the revised pay scale of the erstwhile scale of Rs. 490-840 mentioned in the Government orders as referred to above. The dispute arose on account of the fact that in the Rajasthan Civil Services Rules (Revised Pay Scales) Rule, 1989 amended by the Rajasthan Civil Services Rules, (Revised Pay Scale) (First Amendment) Rules, 1992 framed under proviso to Article 309 of the Constitution of India, the post of Reference Assistant did not find mention in the Schedule of posts. This led to chain of correspondence between the High Court and the State Government but that did not bear any result. In the circumstances, the petitioner approached the Court on judicial side in the present writ petition seeking direction upon the respondents to declare that the duties and functions of the post of Reference Assistant being the same as performed by the holders of analogous post in departments of State Government, she is entitled to the same scale of pay. In view of the revision of pay scale to Rs. 1200-2050 by RCS (Revised Pay Scale) (First Amendment) Rules, 1992, she sought directions on the respondents to allow her the said scale of Rs. 1200-2050. 4. In view of the revision of pay scale to Rs. 1200-2050 by RCS (Revised Pay Scale) (First Amendment) Rules, 1992, she sought directions on the respondents to allow her the said scale of Rs. 1200-2050. 4. Shri H.R. Soni, appearing for the State submitted that the State Government does not admit the case of the petitioner that the duties and functions of the post of Reference Assistant are the same as those of the corresponding posts in the Government departments or that the post of Reference Assistant is analogous post, but in view of the law laid down by the Supreme Court in State of Uttar Pradesh vs. Section Officer Brotherhood & Anr., AIR 2004 SCW 5441 = AIR 2004 SC 4769 , the matter may be examined by the Chief Justice on administrative side in exercise of power under Article 229 of the Constitution of India and if he comes to the conclusion that the duties and functions of the post are akin to those of the posts which have been allowed the scale of Rs. 1250-2050, that is, the post of Reference Assistant is an ‘analogous’ post, the matter may be referred to the State Government for approval. Counsel submitted that in view of the decision in State of Uttar Pradesh vs. Section Officer Brotherhood & Anr., (Supra) and other cases on the subject, the High Court cannot issue direction on judicial side while exercising power under Article 226 of the Constitution of India allowing the particular scale of pay for the State Government is supposed to act on simple recommendation of the High Court without due examination by the Chief Justice under Article 229 of the Constitution of India. Counsel invited our attention of Paragraphs 24, 25 and 28 of the Judgment which may usually be quoted as under:- “24. The Court noticed that fixation of scale of pay in favour of one class of employees have a spiralling effect and in that view of the matter it is important that the matter as regard fixation of scale of pay of officers working in different High Courts must either be examined by an expert body like the Pay Commission or any other body and in absence thereof the High Court itself should undertake the task, keeping in view of the special constitutional provisions contained in Article 229 of the Constitution of India. 25. 25. Having regard to the high and status enjoyed by the Chief Justice, it was observed, his recommendations should ordinarily be approved by the State and refusal thereof must be for strong and adequate reasons. It was opined:-“52.-The High Court, however should not ordinary issue a writ of or in the nature of mandamus and ought to refer the matter back to the Central/State Government with suitable directions pointing out the irrelevant factors which are required to be excluded in taking the decision and the relevant factors which are required to be considered therefor. The statutory duties should be allowed to be performed by the statutory authorities at the first instance. In the event, however, the Chief Justice of the High Court and the State are not ad idem, the matter should be discussed and an effort should be made to arrive at a consensus.” 28. In this case, the Chief Justice merely forwarded the representation of the Respondents dated 15.03.1994 for grant of a higher scale of pay with affect from 01.01.1986 directing the Registry to forward the same to the State Government with recommendations to consider the same on the ground of parity such forwarding of reconditions to the State Government did not involve any application of mind on the part of the Chief Justice as was required under Article 229 of the Constitution of India. The Chief Justice on his own did not arrive at any decision that the jobs performed by the concerned officers were comparable or their counterparts in the Central Secretariat or Delhi High Court. No rule was framed taking the terms and conditions of service or the scale of pay for different categories of the employees of the High Court. Only because in the forwarding letter, the State Government was asked to consider the demand of the concerned officers favourably, the same by it self would not mean that the requirements of Article 229 of the Constitution stood complied with. Only because in the forwarding letter, the State Government was asked to consider the demand of the concerned officers favourably, the same by it self would not mean that the requirements of Article 229 of the Constitution stood complied with. Unless the Chief Justice of the High Court exercises his constitutional power or acts on the basis of the recommendation of a committee constituted by him for the purpose of fixation of scale of pay and laying down other conditions of service; only forwarding of a representation to the State Government to consider the same favorably without anything more would not amount to exercise of the constitutional jurisdiction under Article 229 of the Constitution.” 5. Counsel for the petitioner in view of the fair stand taken by the State submits that the petition may be disposed of the suitable observations. 6. In the light of the decision of the Supreme Court in State of Uttar Pradesh vs. Section Officer Brotherhood & Anr. (Supra), we are of the view that the matter has to be left open for consideration by the Chief justice under Article 229 of the Constitution of India. 7. Counsel for the petitioner states that the petitioner will make representation in respect of her claim to the Chief Justice. 8. The petition is accordingly, disposed of .