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CASE NO.: Appeal (civil)  1449 of 2000

PETITIONER: Manmatha Nath Ghosh & Ors.

RESPONDENT: Baidyanath Mukherjee & Ors.

DATE OF JUDGMENT: 26/04/2005

BENCH: K.G.Balakrishnan & B.N.Srikrishna

JUDGMENT: J U D G M E N T

SRIKRISHNA, J.

       This appeal by special leave impugns the judgment of the Special  Bench of five Judges of the High Court of Calcutta, which allowed two  Letters Patent Appeals Nos. APO 601/87 and APO 604/87 and dismissed  Appeal No. 187/88 and Writ Petition No. 5497/87. Appeals, APO 601/87  and APO 604/87 arose out of the judgment of a learned Single Judge (Ajit  Kumar Sengupta, J.) in Writ Petition No. 1033/84. Appeal No. 187/88 and  Writ Petition No. 5497/87 that raised similar issues were also referred to the  Full Bench. The Full Bench by a common judgment decided all the matters  assigned to it.

       In all the Chartered High Courts, which exercise Original Jurisdiction,  there has been traditional rivalry between the officers working on the  Appellate Side and those working on the Original Side. The case on hand is  yet another example of this rivalry resulting in expenditure of judicial time  and talent which could have been utilised for better purposes.

Facts:

       The appellants before us are officers on the Original Side of the  Calcutta High Court designated as Recording Officers (Court). They were  traditionally and historically treated as equal in status with Assistant  Registrar (Court) on the Appellate Side. Before the First Pay Commission’s  recommendations, the pay scales applicable to these two categories were the  same.  Prior to 1961 the pay scale was Rs. 250-400; after 1961 pay revision  the pay scale applicable to both the categories was Rs. 500-700 and on and  after 24.10.1968 both the categories of officers were placed in the pay scale  of Rs. 300-900.  The First Pay Commission recommended that the same  emoluments be paid to these two categories of officers.

       The Recording officers on the Original Side were earlier styled as  ’Shorthand Writers’. The High Court on the Original Side maintained that  the post of Shorthand Writer on the Original Side was comparable to that of  Court Officer on the Appellate Side.  Successive Chief Justices reiterated  this position and recommended to the State Government that parity be  maintained in the emoluments payable to these two categories.  The  Shorthand Writers on the Original Side of the High Court represented to the  Hon’ble Chief Justice by a petition dated 30.5.1972 that their designation be  changed from "Shorthand Writer" to "Court Reporting Officer". By an  Order of  27.7.1972 the designation of Bench Clerks / Court Officers of the  Appellate Side were changed to Assistant Registrars (Appellate Side).  Immediately thereafter, on 10.8.1972, the Shorthand Writers petitioned the  Chief Justice and requested that they be equated with Assistant Registrars on  the Original Side.  On 6.12.1972, the Chief Justice constituted a Special Committee of  five learned Judges to consider the following:

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"(a)    The representation of the Assistant Registrars (Court) on  the Appellate Side for revision of their scale of pay; (b)     The representation of the Assistant Court Officers on the  Appellate Side for revision of their scale of pay and their  designation; (c)     The representation of the Shorthand Writers and  Interpreters on the Original Side for changing their  designations."

       The Special Committee considered the matter and by its Report dated  26.4.1973 made the following recommendations:    

"(a)    The Assistant Registrars (Court), Appellate Side be given  the same salary, scale of pay, emoluments and status as  those of the Assistant Registrars, Original Side.

(b)          The claim of the Assistant Court Officers to be  designated as Court Officers be not accepted but their  scale of pay of Rs.600-860/- be recommended to the  Government for acceptance.

(c)          The designation of the Shorthand Writers on the Original  Side be changed to "Court Recording Officers".

(d)          The designation of the Interpreters on the Original Side  be changed to "Court Interpreting Officers".

Recommendations of the Special Committee were considered in a Full  Court Meeting held on 22.8.1973 and the Full Court of the High Court  passed the following relevant Resolution:

"1. To consider the  matter relating to the  report of the Special  Committee in  representation of the  Assistant Registrars  (Court), Assistant  Court Officer,  Shorthand Writers and  Interpreters for  revision of scale of  pay and change of  designation which was  adjourned at the Full  Bench Meeting held  on 22.6.73 for further  discussion. Resolved that the report of the Special  Committee be accepted subject to the following  namely-

i)      that the Assistant Registrar (Court),  Appellate Side be given the same salary,  scale of pay, emoluments and status as  those to the Assistant Registrar, Original  Side in suppression of the previous  recommendations sent to the Government  more particularly in the letters of the  Original Side one dated the 6th January,  1971 and the other dated the 23rd March,  1971 relating to the pay of the Shorthand  Writers and Interpreters; ii)     that the scale of pay of Rs. 425-825/- be  recommended to the Government for the

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Assistant Court Officers for acceptance; iii)    that the designation of the Shorthand  Writers on the Original Side be changed  to "Recording Officer (Court)"; and iv)     that the designation of the Interpreters on  the Original Side be changed to  "Interpreting Officer (Court)."

    Resolved further that the Recording Officer  (Court) and Interpreting Officer (Court) be not  treated on par with the Assistant Registrars  (Court) on the Appellate Side and they be not  equated with the Assistant Registrars on the  Original Side and Assistant Registrars (Court)  on the Appellate Side or the Assistant Court  Officers on the Appellate Side in matters of  salary, scales of pay, emoluments and funds."

In 1977 the State Government constituted the Second Pay  Commission for revision of the pay scales applicable to Government  servants. By a Communication dated 23.3.1978, on behalf of the Chief   Justice of  Calcutta High Court,  the  Registrar  communicated  to  the State  Government:  " \005 I am directed to say that the court has  no  objection to the said  Pay Commission considering the making its recommendations on the pay  structures of all categories of High Court employees, even though no  representation is made by the employees, individually or collectively, and  kindly note that the findings of the Pay Commission in this regard which  may be forwarded by the Government to the Hon’ble the Chief Justice for  his Lordship’s consideration, would not, by themselves, be binding on the  Court."

       Sometime in 1981, the Pay Commission made its recommendations  with regard to a common scale of pay and special pay to the Recording  Officers (Court) on the Original Side and the Assistant Registrars (Court) on  the Appellate Side. A copy of the recommendations was forwarded to the  High Court for its views.         By a communication dated 22.12.1981 addressed by the Registrar of  the High Court to the State Government it was pointed out that the proposed  pay scales had upset the position of the Assistant Registrars (Court) as  decided by the Full Court. It was pointed out that, according to the Full  Court decision dated 22.8.1973, the Assistant Registrars (Court) were  superior to those of the Recording Officers (Court), who were the erstwhile  Shorthand Writers on the Original Side. An apprehension was expressed that  the considered view of the Full Court of the High Court had not been taken  into account by the Government, and by prescribing the same pay scale for  the Assistant Registrars (Court) and the Recording Officer (Court), "the rank  and status of the  Assistant Registrar (Court) have been lowered and hence  they feel seriously prejudiced." The High Court, therefore, requested the  State Government to consider the recommendations made  by it in this  regard and prescribe appropriate pay scale and the special pay for these  categories of officers.  Certain recommendations were made with regard to  the pay scales of these two categories of officers by the said letter.   

As a result of discussions and consultations between the High Court  and the State Government, a set of Rules prescribing the pay scales for  different categories of High Court employees were brought into force by the  Chief Justice and notified in the Official Gazette of 13.4.1982. These Rules  were styled as "Calcutta High Court (Appellate Side) Services (Revision of  Pay and Allowance) Rules, 1981, Part I". The Rules were brought into force  retrospectively with effect from 1.4.1981.The revised pay scale of Assistant  Registrar and Special Officer notified in Schedule B was Rs. 660-1600 plus  special pay of Rs. 100 per month. By another set of  Rules styled as  "Calcutta High Court Services (Revision of Pay and Allowance) Rules,  1981, (Original Side), Part I", notified in the Official Gazette of 30.4.1982,

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and made operative retrospectively from 1.4.1981, the pay scales of the  Original Side employees were revised.  The revised pay scale applicable to  the Recording Officer (Court) on the Original Side was Rs. 660-1600 plus  special pay of Rs. 100 per month.

       Despite the Notification of the Rules and prescription of identical pay  scale to the two categories of the High Court employees, it appears that the  High Court was of the view that certain amount of differentiation was to be  maintained and this view was communicated to the State Government by  D.O. letter dated 13/16.6.1983 forwarding certain proposals for further  revision of the pay scales of certain categories of employees of the High  Court on Appellate Side. By its letter dated 19.9.1983, the State Government  agreed that in respect of the post of Assistant Registrar (Court) the pay scale  should be Rs. 660-1600 plus a special pay of Rs. 150/- per month. Certain  other proposals made were not accepted by the State Government.

       The Recording Officers moved Writ Petition No. 1033/84 before the  High Court praying that the State Government and the High Court be  restrained from giving effect to the Government’s proposals contained in its  letter dated 19.9.1983 and granting an additional special pay of Rs. 50/- per  month to the Assistant Registrars (Court) on the Appellate Side, or in the  alternative, that they also be given the additional special pay of Rs. 50/- per  month. This writ petition was allowed by a learned Single Judge by his  judgment dated 14.8.1987. The learned Single Judge directed, "the Senior  Recording Officer (Court) and all the Recording Officers (Court) on the  Original Side of this Court shall be entitled to the same special pay as  admissible to the Assistant Registrars (Court) on the Appellate Side of this  Court including the benefits in terms of order No. 24382-J/JIE-56/81(Pt. II)  dated 19.9.1983 with effect from 1.4.1981."  

       Appeal Nos. 601/87 and 604/87 were filed on the Original Side  challenging the judgment of the learned Single Judge.  As already said, these  appeals together with two connected matters were referred to the Special  Bench which set aside the judgment of the learned Single Judge and passed  consequential  orders.

Contentions:         We have been taken through the record by the learned counsel for the  appellants.  We have also heard the learned counsel on both sides. The crux  of the issue is that by the writ petition, the Recording Officers (Court)   challenged (i) the correctness of the Full Court’s Resolution dated  22.8.1973; (ii)  the letter of the High Court dated 22.12.1981; and  (iii) the  State Government’s Order dated 19.9.1983. The efficacy  of the challenge to  these three shall determine the fate of this appeal.

       Learned counsel for the State Government took a neutral attitude and  submitted that the State Government had acceded to what it thought was a  reasonable and justified recommendation, and that the State would abide by  whatever decision of this Court takes in the matter.

       Although, in the writ petition before the High Court, the petitioners  did seek an injunction to restrain the High Court and the State Government  from giving the benefit of additional special pay to the appellants before us,  such a prayer does not appear to have been pursued before the learned Single  Judge, as seen from the written submissions filed and the judgment itself.  The written submissions restricted the relief sought to upgradation of the  special pay of Assistant Registrars (Court). The judgment of the learned  Single Judge also does not indicate that the relief for an injunction was either  pressed or sought.  On the other hand, the only relief which appears to have  been pressed for, and granted by the learned Single Judge, was the relief of  additional fifty rupees to the writ petitioners before him.

       We are of the view that the challenge to the Full Court Resolution  dated 22.8.1973 must fail for more than one reason.  The learned counsel  contended that the Full Court Resolution had gone much beyond the

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recommendations made by the Special Committee on 26.4.1973. The  contention has no merit.  The Special Committee was constituted to  investigate the matters and express its views.  Merely because the Special  Committee expressed its views, the Full Court of the High Court was not  obliged to accept its recommendations as made.  It was perfectly within the  competence of the Full Court of the High Court to reject, accept or accept  with modification the recommendations made by the Special Committee.  The Resolution of the Full Court dated 22.8.1973 specifically goes on record  to say that the Recording Officers (Court) and Interpreting Officers (Court)  shall not be treated on par with the Assistant Registrars (Court) on the  Appellate Side and they be not equated with the Assistant Registrars (Court)  on the Original Side and Assistant Registrars (Court) on the Appellate Side  or the Assistant Court Officers on the Appellate Side in matters of salary,  scales of pay, emoluments and funds.  This was a decision arrived at by the  High Court on the basis of its intimate knowledge of the job contents of  these officers.  Merely because designations are changed, the responsibility  invested in the incumbent or the calibre of the incumbent to discharge  certain duties does not change.  We have not been able to appreciate any  substantial ground on which the concerned Resolution of the Full Court of  the High Court could be impugned. In the face of this Full Court’s  Resolution, it is not open to the appellants to contend that the concerned two  categories of the employees of the High Court must necessarily be treated as  identical for all purposes including the question of special pay.

Secondly, the Full Court Resolution was passed in the year 1973. It is  not as if the employees concerned were not aware of the Full Court’s  Resolution or that they did not know the benefits or disadvantages flowing  therefrom. In fact, the change of designation of Shorthand Writers on the  Original Side to "Recording Officers (Court)" and the change of designation  of Interpreters to "Interpreting Officers (Court) came about only because of  this Full Court Resolution. A challenge to this Resolution of 1973 in the year  1984 should fail on that very ground.

       Further, the Rules prescribing the pay scale of the officers on the  Original Side and the Appellate Side have themselves not been challenged.   The only contention urged in this connection is that, despite the Rules  having been framed in which the two concerned categories were granted  identical pay scale and special pay, it was not open to the High Court or the  State Government to increase the special pay of the Assistant Registrars  (Court), by an additional amount of Rs. 50/- per month.  We are unable to  accept the argument that because the Rules prescribed the identical pay scale  and special pay to these two concerned categories of employees, it was not  open to the High Court to recommend to the State Government or for the  State Government to accept payment of an additional fifty rupees special pay  only in respect of the employees known as Assistant Registrars (Court) on  the Appellate Side.   

In our view, it is entirely a matter of the assessment by the High Court  as to the equivalence of the work done in the two categories.  In a matter like  this, the assessment of the quality of work done by the two categories of  employees must necessarily be left to the judgment of the employer, which  in the present case is the High Court.  

The challenge to the Resolution of the Full Court of the High Court  and to the Government’s Order dated 19.9.1983 also has no merit.  The  Special Bench judgment under appeal has carefully considered the  contentions and pointed out that it is not within the province of the High  Court to fix the pay scales of various employees in exercise its powers of  judicial review under Article 226 of the Constitution of India.  Whatever  may have been the grievance, it was not open to the learned Single Judge to  direct fixation of pay scales or special pay.  The reliance by the Special  Bench on the judgment of this Court in State of U.P.  v. J.P. Chaurasia  is  apt.  This Court observed therein as under:

"The first question regarding entitlement to the pay scale

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admissible to Section Officers should not detain us  longer. The answer to the question depends upon several  factors. It  does not depend upon either the nature of  work or volume of work done by Bench Secretaries.  Primarily it requires among others, evaluation of duties  and responsibilities of the respective posts. More often  functions of two posts may appear to be the same or  similar, but there may be difference in degrees in the  performance.  The  quantity of work  may be the same,  but quality may be different that cannot be determined by  relying upon averments in affidavits of interested parties.  The question of posts or equation of pay must be left to  the Executive Government. It must be determined by  expert bodies like Pay Commission. They would be the  best judge to evaluate the nature of duties and  responsibilities of posts. If there is any such  determination by a Commission or Committee, the Court  should normally accept it.  The Court should not try to  tinker with such equivalent unless it is shown that it was  made with extraneous consideration."

       We agree with the conclusion of the Special Bench that the court  cannot, in the guise of judicial review, usurp the powers conferred by Article  229 of the Constitution and fix a pay scale different from one prescribed in  exercise of the said power.

       Interestingly, the learned counsel for the appellant submitted that the  effort of the appellants before the Court is not to reduce the higher special  pay paid to the Assistant Registrars (Court) on the Appellate Side, but to  bring about a parity by increase of the special pay admissible to the  respondents.  In our view, this contention is also unjustified.  While we do  not think that the higher special pay made admissible to the respondents- employees is unjustified, even if it were so, the appellants cannot succeed in  seeking something, which, even according to them, is unjustified.

Conclusion: Looked at from all points of view,  it appears to us that the judgment  of the Special Bench cannot be faulted.  We see no reason to interfere with  the judgment under appeal, nor any merit in this appeal.

Consequently, the appeal is dismissed.  However, in the circumstances  of the case, there shall be no order as to costs.