Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3829 (ALL)

SHESHANAND TIWARI v. STATE OF U. P.

2016-11-29

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is working as a Private Secretary to the Hon’ble Executive Chairman, Uttar Pradesh State Legal Services Authority, Lucknow, who happens to be the senior-most Hon’ble Judge of the High Court of Judicature at Allahabad. He has instituted this writ proceeding for issuance of a writ of certiorari to quash the order dated 26th June, 2014 passed by the first respondent, whereby the prayer of the petitioner for grant of pay scale equal to the Private Secretaries Grade-II to the Hon’ble Judges of the Allahabad High Court and the Private Secretaries to the State Law Officers in the office of the Advocate General of the State i.e. Pay Band-III (Rs.15,600-39,100) plus Grade Pay Rs. 6,600/- has been rejected. He has also prayed for issuance of writ of mandamus directing the respondents to grant him the said pay scale. 2. The essential facts are that the petitioner was initially appointed on the post of Personal Assistant on 15th September, 1997 in the Uttar Pradesh State Legal Services Authority, Lucknow (for short, the “UPSLSA”). He earned his promotion on the post of Private Secretary to the Hon’ble Executive Chairman of the UPSLSA on 26th March, 2010 in Pay Band-II (Rs.9,300-34,800) plus Grade Pay Rs. 4,200/-. The petitioner claims that his work and conduct has always been exemplary and appreciated throughout his career and he has never been subjected to any adverse remarks during his service career. The petitioner is holding the post of the Private Secretary to the Hon’ble Executive Chairman, UPSLSA (the senior-most Judge of the Allahabad High Court) and he performs all the duties of a Private Secretary including taking of instructions & dictation from the Hon’ble Executive Chairman and other connected and ancillary duties as directed by the Hon’ble Executive Chairman from time to time. It is stated that the service conditions of the petitioner are governed under the Uttar Pradesh Legal Services Authorities and Committees (Employees) Service Rules, 2009 (for short, the “Rules, 2009”). Regard may be had to the fact that the senior-most Judge of the Allahabad High Court holds the post of the Executive Chairman of the UPSLSA in pursuance of a judgment of the Supreme Court in the case of Supreme Court Bar Association v. Union of India and others, 2007(2) ESC 349 (SC). 3. Regard may be had to the fact that the senior-most Judge of the Allahabad High Court holds the post of the Executive Chairman of the UPSLSA in pursuance of a judgment of the Supreme Court in the case of Supreme Court Bar Association v. Union of India and others, 2007(2) ESC 349 (SC). 3. The post of the Private Secretary to the Hon’ble Executive Chairman, as mentioned above, is in Pay Band-II (Rs.9,300-34,800) with the Grade Pay of Rs. 4200/-, whereas even the Personal Assistants to the Hon’ble Judges in the Allahabad High Court are drawing their pay in Pay Band-II (Rs.9,300-34,800) plus Grade Pay Rs. 4,800/-. It is stated that the Private Secretaries Grade-II attached to the Hon’ble Judges of the Allahabad High Court are drawing salary in Pay Band-III (Rs.15,600-39,100) plus Grade Pay Rs. 6600/-. Thus, although the post of Private Secretary is a promotional post from the post of Personal Assistant, yet the petitioner is getting the pay scale which is much less than that is paid to the Personal Assistants to the Hon’ble Judges of the High Court. 4. The grievance of the petitioner is that the Private Secretaries working in the office of the Advocate General are in Pay Band-III (Rs.15,600-39,100) with Grade Pay of Rs. 6,600/-, which is much higher grade than that the petitioner is getting. Therefore, he may also be granted the same pay scale which the Private Secretaries in the office of the Advocate General are getting. 5. The petitioner made a representation to the then Hon’ble the Acting Chief Justice of the Allahabad High Court, who is the Patron-in-Chief of the UPSLSA, for upgradation of the post and the pay scale. Upon the said representation of the petitioner, Hon’ble the Acting Chief Justice vide His Lordship’s communication dated 28th September, 2012 to the Hon’ble Chief Minister has made a strong recommendation for upgradation of the post and pay scale. In the said recommendation, His Lordship has pointed out that the Executive Chairman of the UPSLSA happens to be the senior-most Judge of the Allahabad High Court and in UPSLSA there is only one post of Private Secretary, which is created in the pay scale of Rs. 9,300-34,800 plus Grade Pay Rs. In the said recommendation, His Lordship has pointed out that the Executive Chairman of the UPSLSA happens to be the senior-most Judge of the Allahabad High Court and in UPSLSA there is only one post of Private Secretary, which is created in the pay scale of Rs. 9,300-34,800 plus Grade Pay Rs. 4,200/- (Pay Band-II), and as per the provisions of the Legal Services Authorities Act, 1987 (for short, the “Act, 1987”), the said post is meant only for the Executive Chairman, UPSLSA. It was also pointed out that the Personal Assistants attached to the Hon’ble Judges in the Allahabad High Court are getting salary in Pay Band-II (Rs.9,300-34,800) plus Grade Pay Rs. 4,800/-. Besides, the Private Secretaries to the State Law Officers in the office of the Advocate General are getting salary in Pay Band-III (Rs.15,600-39,100) plus Grade Pay Rs. 6,600/-, which scale of pay is also admissible to the Private Secretaries Grade-II to the Hon’ble Judges in the High Court. It has been recorded in the communication of Hon’ble the Acting Chief Justice that the duties discharged by the Private Secretary to the Executive Chairman, UPSLSA are not dissimilar or lesser than those discharged by the Private Secretaries to the Hon’ble Judges, the Private Secretaries in the office of the Advocate General and the Private Secretaries in Uttar Pradesh Secretariat. Hence, Hon’ble the Acting Chief Justice made a recommendation that the Private Secretary attached to the Hon’ble Executive Chairman be placed on the same pedestal and granted the same scale of pay as is admissible to the Private Secretaries to the State Law Officers in the office of the Advocate General. His Lordship has also mentioned that earlier the State Government vide its order dated 18th September, 2012 has rejected the representation of the petitioner, hence, in his opinion, the State Government was asked to reconsider the matter. A copy of the recommendation of Hon’ble the Acting Chief Justice dated 28th September, 2012 is on the record as annexure-5 to the writ petition. 6. The then Hon’ble Executive Chairman of the UPSLSA has also directed the Member Secretary, UPSLSA to move the State Government for upgradation of the post and pay scale of the Private Secretary, as mentioned above. 6. The then Hon’ble Executive Chairman of the UPSLSA has also directed the Member Secretary, UPSLSA to move the State Government for upgradation of the post and pay scale of the Private Secretary, as mentioned above. In compliance thereof, the then Member Secretary, UPSLSA has also made a recommendation to the State Government on 05th May, 2014 for upgradation of the post and pay scale of Private Secretary to the Hon’ble Executive Chairman, UPSLSA at par with the Private Secretaries to the State Law Officers in the office of the Advocate General i.e. from Pay Band-II (Rs.9,300-34,800) plus Grade Pay Rs. 4,600/- to Pay Band-III (Rs.15,600-39,100) plus Grade Pay Rs. 6,600/-. Consequent upon the said recommendations, the matter was reconsidered by the State Government and has been rejected by the impugned order dated 26th June, 2014 only on the ground that the services of the UPSLSA are not at par with the Secretariat. A counter-affidavit has been filed by the respondents, wherein the same stand, as taken in the impugned order, has been reiterated. 7. As the impugned order dated 26th June, 2014 is bereft of reasons and similarly the counter-affidavit also does not give the detailed reasons, this Court vide its order dated 22nd November, 2016 directed the learned Standing Counsel to produce the original record of the matter. In compliance thereof, the original record was produced before the Court on 24th November, 2016. The original record indicates that an office-note, wherein there is reference of the recommendations of Hon’ble the Acting Chief Justice, was prepared by the Under Secretary, Government of U.P., Lucknow which has been approved by all the concerned officials. The principal reasons which have been recorded in the minutes are that: (i) the parity of the office of the Advocate General cannot be granted for the reason that the Private Secretaries in the office of the Advocate General have been granted higher pay scale on the direction of the High Court and the Supreme Court; and (ii) in case the recommendation of Hon’ble the Acting Chief Justice is accepted, it will open the Pandora box and the Private Secretaries in other departments will also raise the same demand. No other ground is mentioned. 8. I have heard Sri Rakesh Kumar Singh, learned counsel for the petitioner, and learned Standing Counsel. No other ground is mentioned. 8. I have heard Sri Rakesh Kumar Singh, learned counsel for the petitioner, and learned Standing Counsel. Learned counsel for the petitioner submits that the impugned order is completely bereft of the reason and the recommendation of Hon’ble the Acting Chief Justice has been completely ignored. The similarly placed persons in the office of the Advocate General are getting pay in Pay Band-III (Rs.15,600-39,100) with Grade Pay Rs. 6,600/-. It was also urged by the learned counsel for the petitioner that the duties and responsibilities of the Private Secretary to the Hon’ble Executive Chairman, UPSLSA and that of the Private Secretaries in the office of the Advocate General and in the U.P. Secretariat are similar, hence the claim of the petitioner has been rejected without application of mind. Lastly, it was urged that in the entire State there is only one post of Private Secretary to Hon’ble the Executive Chairman, UPSLSA, hence there would not be any financial burden on the State exchequer. Learned Standing Counsel has justified the grounds mentioned in the impugned order. 9. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. The petitioner is Private Secretary to the Hon’ble Executive Chairman, UPSLSA. The Legal Services Authorities Act, 1987 has been enacted to achieve the objective enshrined in Article 39A of the Constitution of India. The object of the Act, 1987 is to constitute legal services authorities to provide free and competent legal service to the weaker sections of the society and to organise Lok Adalats to secure the operation of the legal system to promote justice on the basis of equal opportunity. 10. A National Legal Services Authority (the Central Authority) has been constituted under the provisions of the Act, 1987. Hon’ble the Chief Justice of India is the Patron-in-Chief and a serving or retired Judge of the Supreme Court is nominated by the President in consultation with the Chief Justice of India as the Executive Chairman thereof. Section 4 of the Act, 1987 provides various functions of the Central Authority. Hon’ble the Chief Justice of India is the Patron-in-Chief and a serving or retired Judge of the Supreme Court is nominated by the President in consultation with the Chief Justice of India as the Executive Chairman thereof. Section 4 of the Act, 1987 provides various functions of the Central Authority. It introduces, amongst others, several important functions to the said Authority to achieve the goal of the said Act, such as, to lay down policies and principles for making legal services available under the Act; to frame effective and economical schemes; to utilise the funds at its disposal; to organise legal aid camps especially in rural areas, to encourage the settlement of disputes by way of negotiations, arbitration and conciliation; to undertake and promote research in the field of legal services; and, to monitor and evaluate implementation of the legal aid programmes at periodic intervals and provide for independent evaluation of programmes and schemes. 11. Section 6 of the Act, 1987 provides constitution of State Legal Services Authority in each State which consists of the Chief Justice of the High Court, who is the Patron-in-Chief, and a serving or retired Judge of the High Court to be nominated by the Governor, in consultation with the Chief Justice of the High Court, as Executive Chairman thereof, and other members. Pertinently, as noticed above, the Supreme Court in its judgment in Supreme Court Bar Association v. Union of India and others (supra) has issued certain directions for the nomination and appointment of the Executive Chairman of the State, and the senior-most Judge of the High Court becomes the Executive Chairman of the State authority. The functions of the State Authorities are to conduct Lok Adalats; to undertake preventive and strategic legal aid programmes; to give legal service to the persons who satisfy the criteria laid down under the Act; and, to act in cooperation with the other agencies and it also complies with the directions issued by the Central Authority from time to time. The aforesaid scheme of the Act, 1987 clearly indicates the importance of functioning of the Executive Chairman of the UPSLSA. 12. It transpires that the petitioner’s prayer for higher pay scale in Pay Band-III with Grade Pay of Rs. 6,600/- was rejected earlier also by the State Government. The aforesaid scheme of the Act, 1987 clearly indicates the importance of functioning of the Executive Chairman of the UPSLSA. 12. It transpires that the petitioner’s prayer for higher pay scale in Pay Band-III with Grade Pay of Rs. 6,600/- was rejected earlier also by the State Government. Hence, Hon’ble the Acting Chief Justice, who is the Patron-in-Chief of the UPSLSA, has made a recommendation to the State Government wherein several reasons have been mentioned by His Lordship for upgradation of the post and grant of higher pay scale. It has been recorded in the said recommendation that the duties and responsibilities of the Private Secretary to the Executive Chairman are not lesser than those of the Private Secretaries to the Hon’ble Judges and the Private Secretaries to the State Law Officers in the office of the Advocate General. The relevant part of the recommendation dealing with the similar work and duties is in the following terms: “...Since the duties discharged by the Private Secretary to the Executive Chairman, UPSLSA, are not dissimilar nor lesser than those discharged by the Private Secretaries to the Hon’ble Judges, the Private Secretary to the Advocate General and the Private Secretaries in the U.P. Secretariat, therefore, the Private Secretary attached to the Executive Chairman, UPSLSA should be placed on the same pedestal and granted the same scale of pay, pay band and grade pay.” 13. From the original record, which was summoned, it transpires that the aspects mentioned by Hon’ble the Acting Chief Justice in His Lordship’s recommendation have not been considered in proper perspective. Article 234 of the Constitution of India lays down that the Chief Justice has primacy in respect of the service conditions and pay scales of the officers of the Court. Although the petitioner is not governed under the statutory rules which regulate the service conditions of the employees of the High Court, but the fact remains that the Legal Services Authority is a statutory body and its functioning is related to the administration of justice. The Executive Chairman of the Authority is the senior-most Judge of the High Court. Once Hon’ble the Acting Chief Justice has recorded his satisfaction about the similar nature of the work and duties performed by the Private Secretary to the Executive Chairman, the State Government was not justified in rejecting it on the most non-justified grounds. 14. The Executive Chairman of the Authority is the senior-most Judge of the High Court. Once Hon’ble the Acting Chief Justice has recorded his satisfaction about the similar nature of the work and duties performed by the Private Secretary to the Executive Chairman, the State Government was not justified in rejecting it on the most non-justified grounds. 14. The first ground for rejection that the parity claimed by the petitioner with the Private Secretaries working in the office of the Advocate General cannot be granted as they have been granted higher pay scale due to the direction of the Court, is not correct. I have gone through the judgment of the Division Bench of this Court passed in the case of Private Secretaries Brotherhood and others v. The State of U.P. & The Advocate General, U.P., Civil Misc. Writ Petition No. 17885 of 1996, dated 29th July, 1998, in respect of the Private Secretaries to the State Law Officers in the office of the Advocate General. Against the said judgment, a special leave petition was filed by the State Government which was rejected by the Supreme Court and the review application was also rejected. A perusal of the judgment of the Division Bench clearly indicates that on the basis of the detailed reasoning the Court was satisfied that the Private Secretaries working in the office of the Advocate General are entitled for the same pay scale of the Private Secretaries working in the High Court. The relevant part of the judgment of the Division Bench is extracted herein-below: “The judgments dated 31.3.1986 and 26.2.1988 have attained finality in as much as the State Government did not file any appeal against the aforesaid judgments. It is thus evident that the employees working in the office of the U.P. State Law Officers are being treated to be similarly situated with the employees of the High Court holding correspondent post in pursuance of the concept of parity as provided in the G.O. dated 11.9.1974 in respect of their pay scale and allowances as well as with regard to their source & method of recruitment etc. and are getting the same pay scale and allowances as is paid to the employees of the High Court, holding correspondent posts. and are getting the same pay scale and allowances as is paid to the employees of the High Court, holding correspondent posts. Right from 11.9.1974 till 21.12.1993 (the date on which the judgment was pronounced in writ petition No. 1408 of 1993) the scale of pay of the Private Secretaries working in the High Court as well as that of the office of the U.P. State Law Officers continued to be one and the same. As on 21.12.1993 situated and being the holders of equal status post. From the year 1988 all the employees, whether of the State Government or of the High Court, are getting the same pay scale as is admissible to the corresponding posts of the Central Government and the said decision was taken with effect from 1.1.1986, according to the report of Equivalence Committee, U.P.” 15. The said judgment, as mentioned above, was not interfered with by the Supreme Court in the special leave petition and the review application and it has attained finality. A simple reading of the judgment of the Division Bench clearly indicates that the Court was satisfied with regard to nature of duties and responsibilities, hence the direction was issued for grant of similar pay. It was not a direction in persona that it would be binding on a particular person but it was a judgment which was binding on the State Government in respect of all the Private Secretaries working in the office of the Advocate General. The representation of the petitioner as well as the recommendation of the Hon’ble Acting Chief Justice has taken note of the said fact. Thus, one of the reasons for rejecting the claim of the petitioner that the order of the Court has been complied with in respect of the Private Secretaries in the office of the Advocate General, is not acceptable. Moreover, once this Court in the case of Private Secretaries Brotherhood and others (supra) has declared the law, it was binding on the State Government in respect of other similarly placed persons also and the same cannot be denied on the ground that higher pay scale has been granted in compliance with the order of the Court. Moreover, once this Court in the case of Private Secretaries Brotherhood and others (supra) has declared the law, it was binding on the State Government in respect of other similarly placed persons also and the same cannot be denied on the ground that higher pay scale has been granted in compliance with the order of the Court. The State Government is bound to comply with the directions of the Court not only in respect of the petitioner in the said case, but the law laid down in the said judgment is also binding in respect of other similarly placed persons too. 16. The next ground mentioned in the original record as well as in the counter-affidavit is that in case the demand of the petitioner is accepted, then similar demand would be raised by the persons in other departments also, is not a valid ground on which the claim can be rejected. Insofar as the stand taken by the respondents that in case the recommendation of Hon’ble the Acting Chief Justice is accepted, similarly placed persons in other departments will also raise the same demand, has been considered by the Supreme Court in the case of Union of India and another v. S.B. Vohra and others, (2004) 2 SCC 150 . The relevant part of the judgment, being paragraph-48, is quoted below: “48. It has to be further borne in mind that it is not always helpful to raise the question of financial implications vis-a-vis the effect of grant of a particular scale of pay to the officers of the High Court on the ground that the same would have adverse effect on the other employees of the State. Scale of pay is fixed on certain norms; one of them being the quantum of work undertaken by the officers concerned as well as the extent of efficiency, integrity etc. required to be maintained by the holder of such office. This aspect of the matter has been highlighted by this Court in the case of the judicial officers in All India Judges’ Assn. v. Union of India, (1992) 1 SCC 119 , as well as the report of the Shetty Commission.” 17. This Court has also considered the issue regarding recommendation of the Chief Justice in the case of Class-IV Employees Association H.C. and another v. State of U.P. and others, 2016(3) ADJ 308 . 18. v. Union of India, (1992) 1 SCC 119 , as well as the report of the Shetty Commission.” 17. This Court has also considered the issue regarding recommendation of the Chief Justice in the case of Class-IV Employees Association H.C. and another v. State of U.P. and others, 2016(3) ADJ 308 . 18. After careful consideration of the matter and for the reasons discussed herein-above, I find that the impugned order passed by the first respondent dated 26th June, 2014 (annexure-1 to the writ petition) is not sustainable and is liable to be set aside. Accordingly, it is set aside. The matter is remitted back to the State Government to consider it afresh in the light of the observations made herein-above expeditiously, preferably within a period of three months from the date of communication of this order. Accordingly, the writ petition is allowed. No order as to costs.