Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS. ETC.
Vs.
RESPONDENT:
DELHI JUDICIAL SERVICE ASSN. & ANR
DATE OF JUDGMENT23/02/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
VENKATACHALA N. (J)
CITATION:
1995 SCC Supl. (2) 343 JT 1995 (2) 578
1995 SCALE (2)130
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. These two appeals arc disposed of by a common judgment
since the appeals arise from the judgment of the Division
Bench of Delhi High Court in C.W.P. No.4196/83 dated October
13, 1993. The respondent-Delhi Judicial Service Association
had filed the writ petition seeking for a writ or order or
direction to the appellants to place the Delhi Higher
Judicial Service Personnel in the pay scale of Rs.5900-7300
or to place the District and Sessions Judges in the pay
scale of Rs.7300-7600 and/or to grant the relief w.e.f 1. 1.
1986. They also sought for special pay of Rs.550/- p.m. to
all officers of Delhi Higher Judicial Service. The High
Court in the impugned order directed to refix the salary of
the members of the Delhi Higher Judicial Service in the pay
scale of Rs.5900-6700w.e.f 1.1.1986within a period of four
months from the date of the judgment and direction to pay
the arrears of salary and allowances thereon within a
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period of two months thereafter. Feeling aggrieved, the
Union of India and the Delhi Administration have filed the
appeals respectively. The crucial question that arises for
decision is whether all the officers of the Delhi Higher
Judicial Service are entitled to the pay scale of Rs.5900-
7600 as ordered by the High Court? Admittedly, the Delhi
Higher Judicial Service was constituted by Rules made by the
Administrator in consultation with the High Court of Delhi
exercising the power under proviso to Art.309 of the
Constitution.
Rule 18 of the Rules prescribes scale of pay in Part-IV Pay
& Allowances which reads as under:
" 18. The pay scale of the service shall be as follows:
1) Time Scale - Rs. 1200-2000/-
2) Selection Grade - Rs.2000-2250/-
3) Super-time Scale - Rs.2500-2750/-"
Rules 20 provides that "the pay of a promoted officer shall
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be fixed in the aforesaid time scale in accordance with the
financial rules, regulations, orders or directions,
applicable from time to time to the members of the I.A.S".
Rule 21 provides the number of selection grade and super-
time scale posts shall be as shown in the Schedule. The
Schedule adumbrates the one post of District and Sessions
Judge, 43 posts of Addl. District & Sessions Judges, 5
posts of Chief Metropolitan Magistrates, 5 posts of Addl.
Chief Metropolitan Magistrates and 10 deputation & leave
reserve @ IO% each, total 60 posts.
Time Scale posts: 47
Selection Grade posts : 12
Super-time Scale posts : 1
2. The High Court adopted the principle to consider the
claims of the Additional District & Sessions Judges working
in the time scale for the posts of selection grade that five
candidates in the order of seniority would be considered for
each post " on the basis of merit." Accordingly the
Additional District & Sessions Judges working in time scale
are being considered and given selection grade scale of pay
on the principle of "seniority cum merit". From the
correspondence placed before us, it would appear that the
High Court has been requesting the Union of India to grant
revised selection grade pay scales to the officers working
in the time scale also. After the 4th Pay Commission, it
would appear that Super-time Scale and Selection Grade posts
have been fused and the District and Sessions Judge and the
Additional District & Sessions Judges placed in the
Selection Grade are being paid their salary in the pay scale
of Rs.5900-6700, Since the correspondence between the
Ministry of Law and Justice and the High Court did not yield
to the result of the selection grade scale pay to all the
Additional District & Sessions Judges and the Chief and
Addl. Metropolitan Magistrates, as mentioned in the
Schedule, the above writ petition came to be filed and the
High Court found that since all the posts of Additional
District & Sessions Judges, Chief and Addl. Metropolitan
Magistrates are inter-transferable posts and being
discharging the same duties, they are entitled to "equal pay
for equal work". The difference of pay to Chief Justice of
the Supreme Court and Judges of the Supreme Court, Chief
Justice and Judges of High Courts is only Rs. 1,000/-, the
same parity be maintained for Selection Grade and Time Scale
Addi-
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tional, District & Sessions Judges. Therefore, all the
Additional/ District & Sessions Judges, Chief and Additional
Metropolitan Magistrates are entitled to the scale of
Rs.5900-6700. As the above scale was given effect from
January 1, 1986, all the officers are equally entitled from
the same date.
3. Shri N.M. Goswami, the learned Senior counsel for the
Union of India contended that the Selection Grade posts are
distinct and separate from the Time Scale posts. In view of
the admission made in the affidavit filed by the Registrar
of the High Court that the Addl. Dist. & Sessions Judges
working in time scale are eligible for consideration to the
Selection Grade on "seniority-cum-merit", all officers
working as Additional District & Sessions Judges or Chief Or
Additional Metropolitan Magistrates cannot be treated to be
Selection Grade officials. The very distinction between
Time Scale and Selection Grade scale of pay itself indicates
that merit, ability, integrity etc. are criteria to grant
selection grade scale of pay and officers found more
meritorious etc. alone are entitled for the grant of
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Selection Grade scale of pay. By the order of the High
Court, on the principle of equal pay for equal work, the
dichotomy has been wiped out which would be insidious to
inculcate efficiency, intrigity and honesty in the per-
formance of judicial duty. Therefore, the High Court has
committed manifest error in directing to pay the same
Selection grade scale of pay to all the officers in the
Delhi Higher Judicial Service. We find considerable force
in the contention.
4. Mr. Harish Salve, learned Senior counsel for the
Association fairly agreed that the dichotomy between the
Time Scale of pay and Selection Grade cannot be wiped out
and the distinction is required to be maintained in the
interest of the service itself He contends that the Union of
India having given the Scale of pay of Rs.5900-6700 to Group
’A’ officers in the Union Territory, the officers in the
Delhi Higher Judicial Service are also entitled to the same
scale of pay, since the scale of pay being drawn earlier by
the officers are almost same and, therefore, the Government
was not right in denying the benefit of scale of pay to
them. He also contends that the Delhi Higher Judicial
Service cannot be equated with IAS or ’A’ grade officers on
the executive branch of the Government. This court in All
India Judges’ Association v. Union of India & Ors., J.T.
1991 (4) SC 285 treated the Judicial Officers distinctively
from the officers on the executive branch of the Government
and directed to consider higher uniform scale of pay to all
the services throughout India. Therefore, they are to be
treated separately and given higher scale of pay even over
and above the scale of pay of the officers on the executive
branch of the Government.
5. Having given our anxious consideration to the
respective contentions, the question, arises whether all the
officers in the Higher Judicial Service are entitled to the
same scale of pay of Rs.5900-6700 as directed by the High
Court. We think that the High Court was not right in giving
selection grade scale of pay to all the officers on the
principle of equal pay for equal work. If that be so the
Dist. Munsif (Junior Civil Judge, Junior Subordinate Judge)
etc., lowest officer in judicial hierarchy is entitled to
the pay of the Senior most super-time scale District Judge
as all of them are discharging judicial duty. The marginal
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difference principle also is equally inappropriate.
Similarity of posts or scale of pay in different services
are not relevant. The nature of the duty, nature of the re-
sponsibility and degree of accountability etc. are relevant
and germane considerations. Grant of Selection grade,
supertime scale etc. would be akin to a promotion. The
result of the impugned direction would wipe out the
distinction between the Time Scale and Selection grade offi-
cers. The learned counsel for the Union of India, pursuant
to our order, has placed before us the service conditions
prevailing in the Higher Judicial Services in other States
in the country. Except Gujarat which had wiped out the
distinction after the judgment in all India Judges
Association’s case, all other States maintain the
distinction between the Grade I and Grade II Higher Judicial
officers or Time Scale and Selection Grade or Supertime
scales etc. In fact this distinction is absolutely
necessary to inculcate hard work, to maintain character, to
improve efficiency, to encourage honesty and integrity among
the officers and accountability. Such distinctions would
not only be necessary in the Higher Judicial Service but
also, indeed in all services under the State, and at every
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stage. Grade I, Selection or Super-time scale officers in
Higher Judicial service is feeder source for elevation as
Judges to the High Courts based on excellent qualities of
their service. The faith of the people in the acceptability
of judicial verdict arises from impartiality, honesty,
character integrity and exemplary conduct of the Judges.
Therefore, honesty, character, integrity and exemplary
conduct are necessary imperatives for maintaining the
independence of judiciary, the distinction between time
scale and selection grade etc. are to be maintained. It is,
therefore, imperative to maintain the distinction between
Time Scale officers or Selection or Super Time grade etc.
officers or Grade I and Grade II officers etc. as enjoined
in the service conditions of Higher Judicial Services in the
respective States. Application of the doctrine for equal
pay for equal work which has the effect destabilising these
vitalities is clearly illegal, illogical and inappropriate
to award enmass selection grade scale pay to all the offic-
ers.
6. But the question is whether the officers working in the
Delhi Higher Judicial Service are not entitled to the higher
pay than was being drawn by them. It is seen that the Delhi
Higher Judicial Service is linked to their counter part in
the executive branch of the Govt. This is peculiar to the
Delhi Higher Judicial Service. So long as the rules arc not
amended, they get parity. The Central Fourth Pay Commission
had recommended for increasing the pay scale to all the of-
ficers drawing scale of 1800-2250. Though the Pay
Commission recommended for them at Rs.4100 to 5300, it was
revised at Rs.4500-5700. For the officers drawing the pay
scale of Rs.2000-2500, the pay Commission recommended
Rs.4500-5700, but the Govt. revised to Rs.5100-6300. The pay
scale of the Selection Grade officers drawing the scale of
pay at Rs.2250-2750, the Pay Commission recommended Rs.5100-
5700 but it was revised to Rs.5900-6700. Thus it could be
seen that the Central Government had revised the scale of
pay appropriately. The Time Scale officers had been drawing
the scale of pay prior to revision at Rs. 1200-2000. It
would appear that the appellant had lumped the officers of
Delhi Higher Judicial Service drawing time scale with
officers in the first
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category and directed fixation of their scale of pay
accordingly. It would appear to be so from the letter of
the Central Law Minister addressed to the Chief Justice of
Delhi High Court. In our considered view officers drawing
time scale should be considered equally with Group ’A’
officers with pre-revised scale of pay at Rs.2000-2500 which
was revised by the Union Government at Rs.5100-6300. The
reason being that the minimum scale of pay having been taken
into account, it would be appropriate that the officers
drawing the Time Scale should be equally fixed in the
revised scales at Rs.5100-6300. Admittedly, 12 officers and
the District and Sessions Judge are drawing Rs.2250-2750
prior to the revision, they are entitled to the revised
scale of pay at Rs.5900-6700 as ordered by the Government of
India. Thus Delhi Higher Judicial officers who have been
given Selection Grade and the District and Sessions Judge
are entitled to the fixation at revised scale of pay at
Rs.5900-6700 while the officers working in the Time Scale
arc entitled to scale of pay of Rs.5100-6300. Since the
benefit has been given w.e.f 1. 1. 1986, the officers
working in the Higher Judicial Service arc equally entitled
to the arrears from 1. 1. 1986.
7.It is true, as rightly pointed out by Shri Harish
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Salve, that the functioning in the Judicial Service cannot
be equated with the officers on the executive branch of the
Government in the light of the judgment of this Court,
reference of which is made hereinbefore. The Delhi Higher
Judicial Service Rules require to be amended And they arc to
be dealt with separately. The Governor in consultation with
the High Court should do the needful. We arc informed that
even in the reference to the Fifth Pay Commission, the
Judicial Officers are tagged together with the officers of
the executive branch of the Government. The High Court,
therefore, is directed to take appropriate steps to have the
rules amended suitably. It may be open to the respondent-
Association to make a representation to the Fifth Pay
Commission for fixation of their Scale of pay appropriately
independent of scale of pay to be revised for all the
officers working in the executive branch of the Government
in the Union Territory. The appeals arc accordingly
allowed, but in the circumstances without costs.
8. It is needless to mention that as and when the arrears
arc paid to judicial officers according to this judgment, it
has to be proportionately distributed yearwise for the
purpose of assessment of the income-tax. The arrears should
be paid within a period of three months from the date of the
receipt of this order.
In S-L-P. 12413194: The SLP is permitted to be withdrawn and
is as withdrawn-
CA Nos.1546 &1548/94:List on 9.3.1995.
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