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2015 DIGILAW 488 (JK)

Budh Singh & Ors. v. State of J&K & Ors.

2015-09-10

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT N. Paul Vasanthakumar, C J. 1. These writ petitions are filed by drivers of this Court (Jammu & Srinagar Wings). Writ Petition No. 917/2009 was filed praying for issuing writ of mandamus directing the respondents to grant and pay monthly allowance equivalent to two and half days pay retrospectively as granted in favour of drivers working in other Government Departments on the basis of the Government Order No. 274-H&ME of 1991, dated 04.03.1991 and as approved by the Full Court Resolution dated 29.08.2009. 2. In writ petition No. 484/2010, the petitioners pray for quashing the Government Order No. 2101-LD (Lit) of 2009, dated 25.09.2009 and for directing the respondents to grant and pay two and half days pay as monthly allowance retrospectively as granted in favour of drivers working in other Government Departments. 3. It is case of the petitioners that they are permanent residents of Jammu & Kashmir State and citizens of India. The petitioners are drivers working in this Court. They do not avail any off day in performance of their duties and they are denied the benefits as are given to the drivers working in similar set of circumstances in other Government departments. The drivers working in other Government departments like Health and Medical Education Department are being paid monthly allowance equivalent to two and a half days pay who too do not avail any off day in performance of their duties. The said position is made clear in the Government Order No, 274-H&ME of 1991, dated 04.03.1991. The drivers of the High Court of J&K are performing their duties on the same pattern as the drivers of the Health and Medical Education Department and they are also not availing any holiday due to busy schedule of Hon'ble Judges of the High Court and other officers of the Registry of the Court. On this count, the petitioners jointly submitted a representation to respondent No. 2 claiming two and half days pay and allowance as monthly allowance. The said representation was placed before the Full Court and the Full Court in its meeting held on 29.08.2009 approved the demand and accordingly, a proposal was submitted to the Government. On this count, the petitioners jointly submitted a representation to respondent No. 2 claiming two and half days pay and allowance as monthly allowance. The said representation was placed before the Full Court and the Full Court in its meeting held on 29.08.2009 approved the demand and accordingly, a proposal was submitted to the Government. As no action was taken by the Government, the petitioners preferred SWP No. 917/2009 and this court by an interim order dated 29.06.2009 directed respondent No.1 to take a decision regarding the grant of two and a half days pay in favour of drivers of the High Court pursuant to Government Order No. 274-H and ME of 1991, dated 04.03.1991. 4. After the said interim order was passed claim of the petitioners was considered and by the Government order rejected by stating that the drivers of the High Court are not performing roster duty and are even availing off days, hence claim for payment of two and a half days salary as monthly allowance is not justified and if the demand of the drivers of the High Court is considered there will be similar claims from drivers of the other departments including the State Motor Garages on the ground of equal pay for equal work. 5. The said order is challenged by the petitioners in SWP No. 484/2010 by contending that drivers employed in the High Court who are attached with the Hon'ble Judges, Officers of the High Court Registry and Protocol Section are working without off days. They are attending the court or residence of the Hon'ble Judges as well as the Officers of the Registry and Airport and therefore, duty time is not eight hours like other Government staff. They have to report at the residence of the Hon'ble Judges or Registry Officers before 8 AM and can go home only after 9 PM and even some days they have to report for duty in the early morning and they complete their duty only in late hours and there is no rotation duty roster provided as drivers attached with the Hon'ble Judges and Registry Officers permanently. It is also the contention of the petitioners that only one driver is provided to each Hon'ble Judge for official duty and attend the personal work of the Hon'ble Judges, and therefore, they have to remain available round the clock in all seven days in a week. It is also the contention of the petitioners that only one driver is provided to each Hon'ble Judge for official duty and attend the personal work of the Hon'ble Judges, and therefore, they have to remain available round the clock in all seven days in a week. 6. It is the contention of learned counsel for the petitioners that the Government had not considered the said facts, namely, performance of over time duty by the drivers and their obligation to report at the residence of the Hon'ble Judges, Registry Officers and to do protocol duty on holidays when the Hon'ble Judges and Registry Officers go for official visit has rejected the proposal sent to it by the High Court after being approved by the Full Court. The said order of rejection has been passed without application of mind and in arbitrary manner. There is discriminatory treatment as the Government is paying additional remuneration of two and a half days salary and allowance to drivers of Health and Medical Education Department. 7. The respondents have justified the said action by filing objections by stating that the petitioners cannot compare themselves with the drivers of the Health and Medical Education Department who are on roster duties in various Health and Medical Institutions and who do not avail any off day, hence monthly allowance equivalent to two and a half days pay and allowance cannot be paid. There cannot be any similarity regarding working of drivers of the High Court and other departments like Health and Medical Education Department, therefore, the decision taken was correct. 8. We have considered the rival submissions. 9. The drivers of the High Court are appointed by the High Court in exercise of power vested under Article 229 of the Constitution of India read with Section 108 of the Constitution of J&K for assisting the Hon'ble Judges and Registry Officers to discharge their judicial administration in the State. It is not in dispute that one driver alone is attached to each Hon'ble Judge and the Registry Officers, namely, Registrar General, Registrar Vigilance, Principal Secretary to Chief Justice, Registrar Judicial etc. The Hon'ble Judges of the High Court as well as the above said Registry Officers will have to attend the court work not only during the working hours but also before and after the working hours and sometimes on holidays too. The Hon'ble Judges of the High Court as well as the above said Registry Officers will have to attend the court work not only during the working hours but also before and after the working hours and sometimes on holidays too. Even at their residences, they are attending the judicial work, namely, writing and correction of judgments, reading the case files and also administrative work like perusing the administrative files for taking administrative decisions. Similarly, the Registry Officers have to go through the files, prepare notes and assist the Hon'ble Judges in all administrative matters. The Registry Officers presence is required by the Hon'ble Judges on holidays for getting clarifications in administrative matters for which drivers are very much needed. It is important to mention at this juncture that sitting time of the Court may be for fixed hours but before and after the court hours, the Hon'ble Judges have to write judgments, corrections etc. During the private or official visits of the Judges, the services of the drivers is required. As already stated, one driver having been attached to each Hon'ble Judge, drivers are not availing any off day or roster duty as in the case of drivers of Health and Medical Education Department who are also doing emergency duties. Thus the principle of equal pay for equal work will apply. Denial of equal pay for equal work is violative of Article 14,16 and 39(d) of the Constitution of India as held by the Hon'ble Supreme Court in the judgment reported in AIR 1982 SC 879 (Randhir Singh v. Union of India). In the said judgment, it is held that claiming equal pay for equal work is constitutional right as guaranteed under Article 14 and 16 of the Constitution of India. The said doctrine would apply on the premise of similar work as held by the Hon'ble Supreme Court in the decision reported in AIR 1988 SC 1504 (Jaipal v. State of Haryana). The only requirement is that Court should be satisfied with regard to the similarity of the work and other relevant factors from clear and acceptable material as held by the Hon'ble Supreme Court in the decision reported in 1989 Suppl. (1) SCC 205 (All India Sainik Schools Employees' Assn. v. Sainik Schools Society). In the decision reported in (2006) 9 SCC 321 (State of Haryana & Ors. (1) SCC 205 (All India Sainik Schools Employees' Assn. v. Sainik Schools Society). In the decision reported in (2006) 9 SCC 321 (State of Haryana & Ors. v. Charanjit Singh and others), it was held that equal pay for equal work principle is applicable if everything is identical. 10. In the case of the drivers of the High Court also the academic and technical qualification prescribed for the post and scale of pay are one and the same as in the case of drivers appointed in Health and Medical Education Department of the State. There is no weekly off and they have to be available on the calling of the Hon'ble Judges/ Registry Officers at all times on all days as only one driver is attached to the Hon'ble Judge/ Registry Officers. Thus there is functional identity of the drivers of the High Court with that of the drivers working in the Health and Medical Education Department. 11. The decision of the Government dated 04.03.1991 granting monthly allowance to drivers of the Health and Medical Department was considered by the Full Court while examining the representation submitted by the petitioners and the Full Court passed a resolution on 29.08.2009 and submitted the proposal to the Government. The Government has not approved the proposal submitted to it and simply presumed that drivers are availing off days in a week and they are performing only eight hours duty on working days. The said reason given by the Government is contrary to the facts which are narrated above. The said decision is not in tune with the spirit of Article 229 (2) of the Constitution of India. 12. The issue as to whether the Government can reject the request of the High Court/ Chief Justice regarding fixing of salary of High Court staff was considered by the Hon'ble Supreme Court in the decision reported in JT 1998 (2) SC 1, (High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal & Anr.) and it was held thus: "Since, under the Constitution, Chief Justice has also the power to make rules regulating the conditions of service of the officers and servants of the High Court, it is obvious that he can also prescribe the scale of salary payable for a particular post. This would also include the power to revise the scale of pay. This would also include the power to revise the scale of pay. Since such a rule would involve finances, it has been provided in the Constitution that it will require the approval of the Governor which, in other words, means the State Government. This Court in State of Andhra Pradesh & Anr. v. T. Gopalakrishnan Murthi & Ors., ( AIR 1976 SC 123 = 1976 (1) SCR 1008 ), had expressed the hope that "one should accept in the fitness of things and in view of the spirit of Article 229 that the approval, ordinarily and generally, would be accorded." This was reiterated by this Court in Supreme Court Employees Welfare Association v. Union of India (JT 1989 (3) SC 188= AIR 1990 SC 334 = JT 1989 (3) SCR 488 ). We again reiterate the hope and feel that once the Chief Justice, in the interest of High Court administration, has taken a progressive step specially to ameliorate the service conditions of the officers and staff working under him, the State Government would hardly raise any objection to the sanction of creation of posts or fixation of salary payable for that post or the recommendation for revision of scale of pay if the scale of pay of the equivalent post in the Government has been revised." In the decision reported in JT 1999 (1) SC 441 (State of Himachal Pradesh v. Shri P.D. Attri & Ors., it is held thus: "7. But then the fact remains that when the Chief Justice of the Himachal Pradesh High Court made recommendations to the Government to redesignate/ equate the posts of Senior Translators and Junior Translators in the Himachal Pradesh High Court to those in the Punjab & Haryana High Court, no decision was communicated which led the respondents to approach the High Court on its judicial side. Recommendations of the Chief Justice of the High Court are to be given due deference and utmost consideration by the State Government. It certainly cannot sleep over the recommendations..............:" Before this Court also a question arose with regard to upgradation of pay scales of Data Entry Operators. The Data Entry Operators appointed in the High Court were being paid lower pay scale than their counterparts working in the State Government Departments. The Full Court recommended up-gradation of pay scales of the Data Entry Operators to the State Government. The Data Entry Operators appointed in the High Court were being paid lower pay scale than their counterparts working in the State Government Departments. The Full Court recommended up-gradation of pay scales of the Data Entry Operators to the State Government. As no action was taken by the State Government, the Data Entry Operators working in the High Court filed SWP Nos. 1677/1997, 1458/1998 and 772/1999, which were allowed by Single Bench of this Court at Jammu by a common order dated 27.01.2000. The appeal against the order of the learned Single Judge was dismissed by Division Bench of this Court on 11.06.2002. The Special Leave Petition No. 19137-19139/2002 preferred by the State was also dismissed by the Hon'ble Supreme Court on 08.10.2002. Therefore, the impugned order denying the two and a half days salary per month to the petitioners/drivers attached with the Hon'ble judges and officers of the Registry inspite of the approval granted by the Full Court is unsustainable. The writ petition filed seeking two and a half days salary as monthly allowance is bound to be sanctioned and paid by the Government. 13. In view of the above findings, impugned order which is challenged in SWP No. 484/2010 is set aside and the 1st respondent is directed to sanction and pay two and a half days salary as monthly allowance to the drivers of the High Court who are attached with the Hon'ble the Chief Justice, Hon'ble Judges, Registry Officers and the Protocol Wing of the High Court from the date of the Full Court Resolution dated 29.08.2009. The arrears payable shall be calculated and paid to the above said drivers after getting a list from the 2nd respondent within six weeks from the date of receipt of copy of this order. 14. The writ petitions are allowed with above direction. No costs. Petitions allowed