Full Judgment Text
2024:BHC-GOA:1207-DB
WP-186-409-2023(1).doc
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 186 OF 2023
AND
WRIT PETITION NO. 409 OF 2023
---------------------------------------
WRIT PETITION NO. 186 OF 2023
1. Mr. Santosh S. Mhamal, son of Shridhar
Mhamal, Senior Private Secretary to the
Hon'ble Judge, aged 58 years.
2. Ms. Andreza Rodrigues e Pereira, wife of
Mr. John Stephen Pereira, Private Secretary to
the Hon'ble Judge, aged 55 years.
3. Ms. Niti Haldankar, wife of late Kishor
Harmalkar, Private Secretary to the Hon'ble
Judge, aged 45 years.
4. Ms. Meena V. Bhoir, wife of Vishal T. Bhoir,
Private Secretary to the Hon'ble Judge, aged
44 years.
5. Shri Amrut Tari, son of Shri Nagesh P. Tari,
Personal Assistant to the Hon'ble Judge, aged
55 years.
6. Ms. Vinita V. Naik, wife of Vikas D. Naik,
Personal Assistant to the Hon'ble Judge, aged
49 years.
7. Ms. Esha Vaigankar, wife of Sainath S.
Vaigankar, Personal Assistant to the Hon'ble
Judge, aged 45 years.
8. Ms. Maria Suzana Rebello, wife of Joaquim
Rodrigues, Personal Assistant to the Hon'ble
Judge, aged 52 years.
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All Group A Employees of the Hon'ble High
Court of Bombay at Goa, Having office at
Porvorim, Goa.
... Petitioners
V e r s u s
1. State of Goa, through its Chief Secretary,
Secretariat, Porvorim, Goa.
2. The Law Secretary, Law Department,
Government of Goa, Porvorim, Goa.
3. The Hon'ble Registrar General, High Court
of Bombay, Fort, Mumbai, 403002.
4. The Hon'ble Registrar (Admin), High Court
of Bombay at Goa, Porvorim, Goa.
(Above are the registered addresses of the ... Respondents
Parties)
AND
WRIT PETITION NO. 409 OF 2023
1. Mr. Hipolito Azavedo, Aged 48 years,
Section Officer, High Court of Bombay at Goa.
2. Mr. Ashok Dhargalkar, Aged 60 years,
Section Officer, High Court of Bombay at Goa.
3. Mrs. Utkarsha Gauns, Aged 55 years,
Section Officer, High Court of Bombay at Goa.
4. Mr. Prashant Parab, Aged 45 years, Section
Officer, High Court of Bombay at Goa.
5. Mr. Avinash Parab, Aged 44 years, Section
Officer, High Court of Bombay at Goa.
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6. Ms. Vianna Dias, Aged 44 years, Section
Officer, High Court of Bombay at Goa.
7. Ms. Telma Estebeiro, Aged 48 years,
Section Officer, High Court of Bombay at Goa.
8. Mr. Pandurang Parab, Aged 41 years,
Section Officer, High Court of Bombay at Goa.
9. Ms. Anissa Monteiro, Aged 45 years,
Section Officer, High Court of Bombay at Goa.
10. Ms. Surekha Kumbarjuvekar, Aged 57
years, Section Officer, High Court of Bombay
at Goa.
11. Ms. Vilasini Nagvekar, Aged 57 years,
Section Officer, High Court of Bombay at Goa.
12. Mr. Xavier D'Souza, Aged 58 years, Section
Officer, High Court of Bombay at Goa.
13. Ms. Roshan Shirodkar, Aged 48 years,
... Petitioners
Section Officer, High Court of Bombay at Goa.
V e r s u s
1. State of Goa, through its Chief Secretary,
having office at Secretariat, Porvorim, Goa.
403521.
2. Secretary (Law), Department of Law and
Judiciary, Law (Establishment) Division,
Government of Goa, having Office at
Secretariat, Porvorim, Goa. 403521.
3. The Registrar (Admn.), High Court of
Bombay at Goa. Porvorim-Goa. 403521.
4. The Registrar (Personnel), High Court of
Bombay, Appellate Side, Bombay, Personnel
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Department, Mumbai. 400032.
5. Registrar General, High Court of Bombay,
Appellate Side, Bombay, Personnel
Department, Mumbai. 400032.
... Respondents
(Registered address)
-----------------------------------------
Mr. Dattaprasad Lawande, Advocate with Mr. P. Dangui, Mr.
Jay Mathew, Mr.Chirag Angle and Mr. S. Sawaikar, Advocates for
the Petitioners in Writ Petition No. 186 of 2023.
Mr. D. D. Zaveri, Advocate with Mr Nehal Govekar, Advocate for
the Petitioners in Writ Petition No. 409 of 2023.
Ms. Neha Shirodkar, Advocate for the Respondent Nos. 3 and 4 in
Writ Petition No. 186 of 2023 and Respondent Nos. 3, 4 and 5 in Writ
Petition No. 409 of 2023.
Mr. Devidas Pangam, Advocate General with Mr. Deep
Shirodkar, Additional Government Advocate for Respondent nos. 1
and 2 in Writ Petition No. 186 of 2023.
Mr. Devidas Pangam, Advocate General with Ms. Maria Simone
Correia, Additional Government Advocate for Respondent nos. 1 and
2 in Writ Petition No. 409 of 2023.
----------------------------
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
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26 JULY 2024
RESERVED ON :
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30 JULY 2024
PROUNOUNCED ON :
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JUDGMENT ( Per M. S. Karnik, J.)
1.
Heard Mr. Lawande, learned Counsel appearing for the
petitioners in Writ Petition no. 186 of 2023, Mr. Zaveri, learned
Counsel appearing for the petitioners in Writ Petition No. 409 of 2023,
Mr. Pangam, learned Advocate General appearing for the Respondent
nos. 1 and 2 and Ms. Shirodkar, learned Counsel appearing for the
High Court of Bombay.
2.
The issue involved in both the Writ Petitions is common and
hence heard and disposed by a common order.
3.
The petitioners in Writ Petition No. 409 of 2023 are the Section
Officers. The petitioners in Writ Petition no. 186 of 2023 are Group 'A'
employees attached to the High Court of Bombay at Goa.
4.
We refer to the facts in Writ Petition no. 186 of 2023.
The petitioner no.1 is presently working as Senior Private
Secretary to the Hon'ble Judge of the High Court; the petitioner nos.
2, 3 and 4 are working as Private Secretary/ies to the Hon'ble Judge/s.
Likewise, petitioner nos. 5, 6, 7 and 8 are presently working as
Personal Assistant/s to the Hon'ble Judge/s, of High Court of Bombay
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at Goa. Respondent no.1 is the State of Goa. Respondent no.3 is the
High Court of Bombay.
5.
The petition is filed with a grievance as regards denial of the
benefits/extension of the upgraded pay scales notified vide Notification
th
bearing Ref. No. Rule/B-1509/2022 dated 14 June, 2022, issued by
the respondent no.3 to the Secretarial Staff of the High Court of
Bombay, which includes these petitioners. The petitioners are
aggrieved by the non-consideration/delay on the part of the State of
Goa to consider the proposal dated 25.08.2022 of the respondent no.
4- Registrar (Admin) in the matter of upgradation of the pay scales of
the Secretarial Staff of the High Court of Bombay at Goa. The
petitioners as well as their counterparts i.e. Secretarial Staff, Group 'A'
employees of the High Court of Bombay at its Principal seat and its
Benches at Nagpur and Aurangabad are appointed under the Appellate
Side Service Rules, ( Rules of 2000 , for short), having the same identity
who also perform equal identical works/duties/job/responsibilities,
etc.
6.
The respondent no.3 by Notification dated 14.06.2022, amended
the Rules of 2000 thereby upgrading the pay scales of the Secretarial
Cadre i.e. Secretary to the Hon'ble Chief Justice, Private Secretary to
the Hon'ble Chief Justice and other Hon'ble Judges, Senior Private
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Secretary and the Personal Assistants of the Hon'ble Judges in terms of
the Schedule-I appended to the said Notification dated 14.06.2022. A
perusal of the Notification dated 14.06.2022 would indicate that the
proposed amendment intended to insert Rule 3(b)(ii) and Rule 3(b)
(iii) after the existing Rule 3(b)(i) of the Rules of 2000. After the
amendment of the said Rules of 2000, the petitioners had been
legitimately/bonafidely expecting revision of their pay scales in terms
of the said amendment. According to the petitioners, it was
incumbent upon the State of Goa to implement/execute the said
amendment in terms of the law and to consequently make the
petitioners and other employees belonging to the Group 'A' eligible to
the revised/upgraded pay scales.
7.
Prior to the liberation of Goa, Daman and Diu, the highest Court
of the then Union Territory was ' The Tribunal de Relecao ' functioning
at Panaji. This Tribunal de Relacao was abolished when a Court of
Judicial Commissioner was established w.e.f. 16.12.1963 under the Goa
Daman and Diu (Judicial Commissioner Court) Regulation 1963. On
16.05.1964, by repealing Section 7 of the Goa, Daman & Diu
(Administration) Act, 1962, the Goa Daman and Diu, Judicial
Commissioner's Court (Declaration as High Court) Act, 1964, was
passed by the Parliament which conferred upon the declared Court of
“ ”
Judicial Commissioner as High Court , vesting in it some powers of
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the High Court for the purposes of Article 132/134 of the Constitution
of India. In terms of Articles 230 and 231 of the Constitution of India,
the Parliament enacted the High Court at Bombay (Extension of
Jurisdiction of Goa, to Goa, Daman and Diu) Act, 1981 and extended
the jurisdiction of High Court of Bombay to the Union Territory of
Goa, Daman and Diu and established a permanent Bench i.e. High
Court at Panaji on 30.10.1982. The High Court of Bombay was
established as a common High Court for the State of Maharashtra and
the Union Territory of Goa, Daman and Diu. Goa attained Statehood
on 30.05.1987. The Parliament enacted the Goa Daman and Diu
Reorganisation Act, 1987. Under part II of the Reorganisation Act,
Section 3 thereof enacted in formation to the State of Goa while
Section 4 enacted in formation of Union Territory of Daman and Diu
under Section 20 of the Reorganization Act, the High Court of Bombay
became a common High Court for the State of Maharashtra and the
newly formed State of Goa and for the Union Territories of Dadra and
Nagar Haveli and the newly formed Union Territory of Daman and
Diu.
8.
The Hon'ble Chief Justice in exercise of its powers under Article
229 of the Constitution of India and in super-session of all the existing
rules relating to recruitment, promotion, etc, framed the Bombay High
Court Rules of 2000, for the regulation of the matters of recruitment
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and other conditions of service of the members of the High Court of
Judicature at Bombay on its Appellate Side, including officers at
Nagpur, Aurangabad and Panaji-Goa. The said Rules were to come
into effect from 01.01.2001 and it applies to all persons appointed to
service on or before the said date.
9.
The Government of Goa vide Order dated 22.03.2007, had
opened a separate budget head to disburse salaries and other
allowances to the staff of the High Court of Bombay at Goa, which was
to take effect/operation from 01.04.2007. By an order dated
10.12.2013 passed by the Hon'ble Chief Justice of Bombay High Court,
the Goa Civil Services Rules pertaining to the pay, allowances, pension,
etc., were proposed to be formulated, which were to govern the service
conditions of the employees attached to the High Court of Bombay at
Goa w.e.f. 01.01.2014. As on the date of filing of this petition on
15.03.2023, no Rules had been notified/formulated. The petitioners
addressed a representation to the respondent no.3, inter alia
contending that the Notification dated 14.06.2022 be conveyed to the
respondent no.1 so as to enable them to take appropriate steps as
regards the applicability of the said notification to the Secretarial
Cadre of the High Court of Bombay at Goa. In response to the
representation dated 05.05.2022, the petitioners were in receipt of a
letter dated 26.08.2022 issued by the respondent no.4 inter alia
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intimating the petitioners that the representation was considered and
the Hon'ble the Chief Justice was pleased to direct the Registry of this
Court to move the Government of Goa for upgradation of pay scales
and allied subjects pertaining to the Secretarial posts.
10.
Suffice it to mention, it is the case of the petitioners that the
recommendation made by the Chief Justice for upgradation of pay was
not accepted by the State Government and the Rules were notified by
the State of Goa which were at variance with those recommended by
the Hon'ble Chief Justice. Pursuant to the directions of the Hon'ble
Supreme Court, the Rules were notified. Except for the upgradation of
pay scale with which the State Government had an issue considering
the financial implication, the High Court of Bombay at Goa Officers
and the Members of the Staff on the Establishment (Recruitment and
Conditions of Service) Rules, 2023, notified was in conformity with the
Rules recommended by the Hon'ble Chief Justice. The petitioners pray
’
that having regard to the scope and sweep of the Hon ble Chief
’
Justice s powers under Article 229 of the Constitution of India, the
petitioners are entitled to the upgraded pay scales as recommended by
the Hon'ble Chief Justice with retrospective effect and arrears on par
with their counterparts working at the Principal seat at Bombay.
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11.
The petitioners contended that the directions contained in the
letter dated 25.08.2022 was that of the Hon'ble Chief Justice of the
High Court of Bombay under Article 229 of the Constitution and had to
be approved by the respondent nos. 1 and 2. The petitioners
contended that the recommendation of respondent no.4 was inline
with the Maharashtra Government Resolution dated 19.04.2022 and
the respondent nos. 1 and 2 ought to have approved the same and
extended the benefit of Maharashtra Government Resolution to the
said staff. According to the petitioners, there was no difference in the
service conditions of the employees in Mumbai and the employees in
Goa. The appointment and the service conditions of the petitioners'
counterparts at the Principal Seat and the Benches at Nagpur and
Aurangabad are governed by the Bombay High Court Appellate Side
Rules, 2000 and have the same identity and also perform equal and
identical works/duties and responsibilities, etc., and hence the 2022
amendment has to be applied to the petitioners to provide parity with
their counterparts in Maharashtra.
12.
Learned Counsel for the petitioners relied on the decisions in
1
Union of India & anr. vs. S. B. Vohra & Ors. , Adeline
2
Rodrigues & Ors. vs. State of Maharashtra & Ors. , State of
1 (2004) 2 SCC 150
2 2013 (6) Mh.L.J. 14
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3
Rajasthan & Ors. vs. Ramesh Chandra Mundra & Ors. , M.
Gurumoorthy vs. Accountant-General, Assam & Nagaland &
4
Ors. , High Court Employees Welfare Assn. Calcutta & Ors.
5
vs. State of W.B. & Ors. , Y. K. Mehta & Ors. vs. Union of
6
India & anr. , State of Andhra Pradesh & anr. vs. T.
7
Gopalakrishnan Murthi & Ors. , Re:PensionBenefits for
8
Employees Retd. From High Court of Bombay at Goa and Mr.
9
Sanjay Bhat & ors. vs. State of Goa & Ors. , in support of their
submissions.
13.
On the other hand, the learned Advocate General invited our
attention to the affidavit in reply dated 21.07.2023 filed by the
respondent nos. 1 and 2 and also the additional affidavit in reply dated
04.10.2023. It is submitted that pursuant to the order dated
01.05.2023 of the Hon'ble Supreme Court in Writ Petition (Civil) No.
464/2023, wherein it was noted that the Rules were yet to be finalised
and had sought the status of the finalization of the Rules, a meeting
was convened on 12.05.2023, under the Chairmanship of the Hon'ble
Chief Minister regarding finalization of the High Court of Bombay at
3 (2020) 20 SCC 163
4 1971(2) SCC 137
5 (2004) 1 SCC 334
6 1988 (Supp) SCC 750
7 (1976) 2 SCC 883
8 WP(C) no. 464/2023 orders dt. 01.05.2023 & 15.05.2023
9 MCA No.645/2018 in STA No. 3852/2016 order dt.21.12.2018
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Goa Officers and the Members of the staff of the Establishment
(Recruitment and Conditions of Service) Rules, 2023. The aspect
relating to finalization of the Rules was discussed in the meeting and it
was resolved that it is not necessary for the respondent-State to
implement the same scales which are being implemented for the
employees of the High Court of Bombay in the State of Maharashtra,
for the following reasons :
“
(a) The retirement age of employees in Mumbai is 58
years, unlike Goa,where the same is 60 years.
(b) Conditions/cost of living in Mumbai and Goa are
not comparable.
(c) The employees of the High Court in Goa are
availing various schemes such as House Building
Allowance, allotment of Communidade plots for
construction of house, medical reimbursement, etc.,
which the State of Goa provides for its employees,
which are not available in the State of Maharashtra.
(d) Employees of the High Court in Goa get dearness
allowance and pay commission benefits much earlier
than the same are provided to the High Court
”
employees in Maharashtra.
14.
According to the learned Advocate General, the State also noted
that the upgradation suggested is with retrospective effect from the
year 2007 (more than 15 years) and from 2011 for some posts. It was
also considered that if such scales are implemented in Goa, then the
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same will be at par with Senior Scale Officers in the State of Goa and
will have huge financial implications. It was further noted that if the
upgradation is agreed to, then it will lead to representations from
Junior Scale Officers and Senior Scale Officers at entry level for
implementation of higher pay scales, which will have major impact on
the State Exchequer. On 15.05.2023, a statement was made on behalf
of the State before the Hon'ble Supreme Court in Writ Petition (Civil)
no. 464/2023, that a meeting was held on the said issue and that the
Rules would be notified within a period of three weeks. The Minutes of
the meeting held on 12.05.2023 were put up for Government approval
and for notifying the Rules. After the Government approval was
obtained, the respondent-State issued Notification dated 01.06.2023
notifying the High Court of Bombay at Goa Officers and the Members
of the Staff on the Establishment (Recruitment and Conditions of
Service) Rules, 2023, which was published in the Official Gazette
dated 03.06.2023.
15.
Pursuant to the filing of the affidavit, the petitioners amended
the petition praying for quashing and setting aside the decision of the
State Government in the letter dated 28.07.2023 and for consequential
direction to the State to grant approval to the request made by the
respondent no.4 in its letter dated 25.08.2022 and further to grant
upgradation of the pay scale of the Secretarial Cadre and Group 'A' and
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'B' employees on the establishment of High Court of Bombay at Goa in
terms of the Maharashtra Government Resolution dated 19.04.2022.
16.
Learned Advocate General submitted that the power vested in
the Hon'ble Chief Justice has been made conditional upon approval of
such Rules by the Governor. Relying on Article 229 of the Constitution
and the proviso thereto, it is submitted that so far as the Rules relating
to salaries, allowances, leave or pensions of the officers/servants, the
same requires the approval of the Governor of the State. According to
learned Advocate General, the State Legislature is empowered to make
a law on the subject and the Rules made under Article 229(2) are
subject to the provisions of the law made by the Legislature. The
Article provides that the administrative expenses of the High Court,
including all salaries, allowances and pensions payable shall be
charged upon the Consolidated Fund of the State. The learned
Advocate General submitted that the purpose behind the requirement
of approval of the Governor of the State is because the salaries,
allowances, etc., would have financial liabilities and may also have
repercussions on the salaries of others. It is submitted that in such
matters where the State has examined the aspects relating to the pay
scales and has taken a decision, the Courts will ordinarily not pass
orders directing the State to grant a particular pay scale to the staff. It
is further submitted that the service conditions of the petitioners
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including the pay scales of the said staff are governed by the High
Court of Bombay at Goa Officers and the Members of the Staff on the
Establishment (Recruitment and Conditions of Service) Rules, 2023,
which were published in the Official Gazette dated 03.06.2023.
Learned Advocate General emphasized that the pay scales are covered
by the said Rules, which have been notified, after approval by the State
Government. It is submitted that as regards the representation and
the demand of the staff for higher pay scales, the matter was examined
at the highest level and the Government for valid reasons had taken a
decision that upgradation of the pay scales is not possible. It is
submitted that the directions in the letter dated 25.08.2022, cannot be
said to be directions given by the Hon'ble Chief Justice. According to
the learned Advocate General, letter dated 25.08.2022 was only a
proposal sent by the Registry and not a direction of the Hon'ble The
Chief Justice. Learned Advocate General laid emphasis on the fact that
Goa is an independent State. According to him, the petitioners' case is
misconceived because the Resolutions of State of Maharashtra cannot
be forced upon the State of Goa. It is submitted that no opinion can be
formed that there is no difference in the service conditions of Mumbai
and in Goa as the position in each State is different. According to the
learned Advocate General, the conditions, costs of living, service
conditions, facilities and benefits, are different in Goa from the State of
Maharashtra. Moreover, the financial position, budget and resources
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available in both the States are incomparable. According to the
learned Advocate General, the approval of the Governor of the State is
not an empty formality as various facts have to be taken into
consideration while approving the recommendations of the Hon'ble
Chief Justice which has been duly considered by the State Government
i.e. only after examining the proposal and taking a conscious decision
that the Rules of 2023 are notified by the State of Goa.
17.
Learned Advocate General further submitted that the Order
dated 10.12.2013 of the Registrar General of the High Court expressly
states that the Hon'ble The Chief Justice has decided to make Goa Civil
Service Rules and other Rules pertaining to pay, allowances,
permission, etc., applicable to the employees working on the
Establishment of the High Court of Bombay at Goa w.e.f. 01.01.2014,
which recognizes the fact that the position in the State of Goa is
different and that the employees in Goa will be governed by a separate
set of Rules. It is thus the submission of learned Advocate General that
the determination of parity and identicality of duties and
responsibilities is a complex issue which will not ordinarily be gone
into by the Court. Learned Advocate General submitted that it is a
settled law that the Court will not direct fixation of particular pay
scales in exercise of writ jurisdiction. It is his submission that the
petitioners have not brought any material to show wholesale and
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wholesome identity in the duties, functions, responsibilities, etc. of the
staff in Maharashtra and the staff in Goa. It is urged that to establish
wholesale, wholesome and complete identity, is a sine qua non when it
comes to disparity of pay scales. It is further urged that the petitioners
have not provided any data as regards to the ratio of the staff to the
number of Judges, the workload in Goa as compared to the State of
Maharashtra. It is further submitted that there are some better
benefits which are being received by the staff of Goa as compared to
those in Maharashtra like that of higher retirement age, which are not
available in the State of Maharashtra.
18.
The thrust of learned Advocate General's submission is that the
conditions of the employees working at the Principal seat is not
comparable with those in the State of Goa. The Principle of equal pay
for equal work will not apply in the present facts. Hence, the
petitioners cannot seek parity with their counterparts in Mumbai. The
approval by the Governor is not an empty formality and the same has
to be granted after taking into consideration various circumstances
peculiar to the State where the petitioners are working. The pay scales
of the counterparts of the petitioners at the Principal seat was
enhanced and brought at par with the Secretarial Staff working in the
State of Maharashtra which cannot be the basis to claim upgradation.
The State of Goa is a separate State. The Bombay High Court is
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common to the two States and, therefore, any decision of the State of
Maharashtra cannot be foisted upon the State of Goa.
19.
Learned Advocate General relied upon the decisions in Steel
Authority of India Limited & Ors. vs. Dibyendu
10
Bhattacharya , Hukum Chand Gupta vs. Director General,
11
Indian Council of Agricultural Research & Ors. , Harbans
12
Lal & Ors. vs. State of Himachal Pradesh & Ors. , State of
Andhra Pradesh & anr. vs. T. Gopalakrishnan Murthi & Ors.
13
(supra) and State of H.P. vs. P.D. Attri & Ors. , in support of his
submissions.
20.
We have heard learned Counsel at length. At the outset, it would
be pertinent to refer to the order passed by the Hon'ble Supreme Court
on 24.07.2024. Their Lordships observed thus :
“
IA No 234830 of 2023 In Writ Petition (Civil)
No 464 of 2023
1. In exercise of the constitutional authority vested
in the Chief Justice under Article 229 of the
Constitution, the Chief Justice of the High Court of
Judicature at Bombay, following the rules framed by
the Rules Committee, forwarded the High Court of
10 (2011) 11 SCC 122
11 (2012) 12 SCC 666
12 (1989) 4 SCC 459
13 (1999) 3 SCC 217
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Bombay at Goa Officers and the Members of the Staff
on the Establishment (Recruitment and Conditions of
Service) Rules 2023 to the State government.
2. The Government of Goa issued a notification
dated 3 June 2023, notifying certain rules. The rules
which have been notified contain a prefatory
statement that they have been made by the Chief
Justice of the High Court of Judicature at Bombay in
exercise of the power conferred under Article 229 of
the Constitution. However, the rules are significantly
at variance with what was submitted to the
Government of Goa under the authority of the Chief
Justice.
3. An affidavit has been filed by the Registrar (Legal
and Research) before the High Court of Bombay at
Goa in pending matters (Writ Petition No 186 of 2023
and Writ Petition No 409 of 2023). The affidavit states
that in the guise of complying with the order of this
Court, the Government of Goa has framed rules
governing the service conditions which were not
approved either by the Rules Committee of the High
Court or by the Chief Justice.
4. A chart has been tendered on behalf of the High
Court indicating the divergence between the rules as
approved by the Rules Committee of the High Court
and the rules as notified by the Government of Goa.
5. We are apprised of the fact that the above writ
petitions (Writ Petition No 186 of 2023 and Writ
Petition No 409 of 2023) are due to come up for
hearing before the High Court tomorrow (25 July
2024). We are not restraining the High Court from
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hearing the petitions and from passing appropriate
orders.
6. This Court has taken suo moto cognizance of the
grievances of former employees of the High Court of
Bombay at Goa to whom their terminal dues,
including pensionary benefits were not being paid.
The rules which have been framed by the Government
of Goa would undoubtedly affect the retiral dues of the
employees who have served the High Court.
7. The course of action which has been followed by
the State Government, prima facie , is contrary to the
settled position of law and the remit of Article 229 of
the Constitution. In this context, the attention of the
Government of Goa has to be drawn to the judgment
of this Court in Union of India and Another vs S
B Vohra and Others , (2004) 2 SCC 150 , rendered by
a three-Judge Bench of this Court in which it was held:
“ Having regard to the aforementioned
authoritative pronouncements of this
Court, there cannot be any doubt
whatsoever that the recommendations of
the Chief Justice should ordinarily be
approved by the State and refusal thereof
must be for strong and adequate reasons.
In this case the appellants even addressed
themselves on the recommendations made
by the High Court. They could not have
treated the matter lightly. It is unfortunate
that the recommendations made by a high
functionary like the Chief Justice were not
promptly attended to and the private
respondents had to file a writ petition. The
question as regards fixation of a revision of
the scale of pay of the High Court being
within the exclusive domain of the Chief
Justice of the High Court, subject to the
approval, the State is expected to accept the
same recommendations save and except for
good and cogent reasons.
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The High Court, however, should not
ordinarily 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.”
8. It is extraordinary that the Government of Goa has
purported to notify rules under Article 229 of the
Constitution in the name of the Chief Justice though
the rules in the form in which they were notified were
not recommended by the Chief Justice nor was any
consultative exercise conducted pursuant to the
recommendation by the Chief Justice.
9. In order to furnish the State Government with an
opportunity to rectify what prima facie seems to be a
clear breach of law laid down by this Court, we direct
that the proceedings be listed on 2 August 2024.
10. Mr Abhay Anil Anturkar, counsel appearing on
behalf of the Government of Goa shall communicate a
copy of this order to the Chief Secretary to the
Government of Goa. The Chief Secretary shall file a
personal affidavit in these proceedings on the next
date of hearing.
11. List the Petition on 2 August 2024. ”
(Emphasis supplied)
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21.
A reading of paragraph 5 of the aforesaid Order indicates that
this Court is not restrained from hearing the petitions and from
passing appropriate orders.
22. ’
Let us consider the scope and the power of the Hon ble Chief
Justice under Article 229 of the Constitution. In paragraph 7 of the
’
Hon'ble Supreme Court s order, a reference is made to Union of
India & anr. vs. S B Vohra & Ors. (supra). A reference to the
decision in State of Andhra Pradesh & anr. vs. T.
Gopalakrishnan Murthi & Ors. (supra) is significant. The issue
was disparity in the pay scale of High Court employees and the
Secretarial Staff of State of Andhra Pradesh. The boundary of law
engulfed in proviso 2 of Article 229, is dealt with by Their Lordships.
Though Their Lordships did not find it possible to sustain the
judgment of the High Court in the facts, however, it was observed that
Government will give their second thought to the matter and see
whether it is possible in the State of Andhra Pradesh to obliterate the
distinction in the matter of pay scales between the High Court and the
Secretariat Staff. Their Lordships also observed that there does not
seem to be any good and justifiable reason for maintaining the
distinction. It is important to note that State of Andhra Pradesh &
anr. vs. T. Gopalakrishnan Murthi & Ors. (supra) was a case
where the Chief Justice of the High Court wanted the High Court staff
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to be paid at the scales of pay of equivalent posts in the Secretarial staff
of the Government of Andhra Pradesh. The Government did not agree
to do so. The concerned employees filed a Writ Petition in the High
Court for a writ of mandamus against the Government of Andhra
Pradesh directing them to implement the recommendations of the
Chief Justice of the High Court made from time to time to fix the pay
scales of various categories where the respondents belong in
accordance with the pay scales as revised by the State Government in
Annexure III of the Andhra Pradesh Secretarial Service.
23.
It is pertinent to note that the petitioners in the present case are
seeking pay parity with their counterparts at the Principal seat. The
petitioners as well as their counterparts at the Principal seat, the
Benches at Nagpur and Aurangabad, were appointed in terms of the
Rules of 2000. The present is a case where the parity in the working
conditions was accepted by the Rule Committee and, thereafter, the
recommendation was made by the Hon'ble The Chief Justice to pay to
the respondents the same pay scales as their counterparts are receiving
at the Principal seat.
24.
We are not in agreement with the learned Advocate General that
this is a case where the decision of the State of Maharashtra is thrust
on the State of Goa. It is just that the counterparts of the petitioners at
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the Principal seat were held entitled to pay parity with the Secretarial
staff at Mantralaya, consequentially, the recommendation was made by
the Hon'ble The Chief Justice under Article 229 of the Constitution for
the upgradation of the pay scales of the petitioners, who are
discharging the same functions and duties as their counterparts at the
Principal seat and its Benches. Thus, the principles of equal pay for
equal work was recognised by the Rule Committee whereupon the pay
scales of the petitioners were sought to be brought at par with their
counterparts on the basis of the recommendations made by the
Hon'ble Chief Justice under Article 229 of the Constitution of India.
25.
The law is well settled that the recommendations of the Hon'ble
Chief Justice should ordinarily be approved by the State and refusal
thereof must be for strong and adequate reasons. The question as
regards fixation of a revision of the scale of pay of the High Court being
within the exclusive domain of the Chief Justice of the High Court,
subject to the approval, the State is expected to accept the said
recommendations save and except for good and cogent reasons. We
are conscious that the High Court should not ordinarily issue a writ of
or in the nature of mandamus and ought to refer the matter back to
the 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
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therefor. We also give due consideration to the submissions of the
learned Advocate General that the statutory duties should be allowed
to be performed by the statutory authorities at the first instance.
26.
In the present case, we find that the Rules ultimately published
by the State of Goa, did not include upgradation of pay as per the
’
recommendations of the Hon ble Chief Justice, which according to the
learned Advocate General, was a conscious decision considering all
relevant factors. Thus, except for the upgraded pay scale, all other
recommendations of the Hon'ble Chief Justice were incorporated in
the Rules which were later published by the Government of Goa on
20.05.2024.
27.
We must place on record that after hearing the learned Advocate
General at length and upon considering the affidavit in reply that was
filed on behalf of the High Court, we did express that the matter should
be resolved by arriving at a consensus. However, in our opinion, in the
facts of the present case, the refusal to accept the recommendations for
upgradation of pay is not for strong and adequate reasons. The
’
recommendations made by the Hon ble Chief Justice should not be
treated lightly for ultimately the question as regards fixation of the
revised scale of pay of the High Court being within the exclusive
domain of the Chief Justice of the High Court, subject to the approval,
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the State is expected to accept the said recommendations save and
except for good and cogent reasons.
28.
The decisions relied upon by the learned Advocate General are
distinguishable on facts. This is a case where upon due consideration
of all relevant materials, as the petitioners were found to be entitled to
the same pay scales as the counterparts at the Principal seat, that the
pay parity is applied and accordingly, the recommendations made by
the Hon'ble The Chief Justice. This after the Rule Committee had
considered the matter. Amongst the staff who are discharging
identical duties in all respects, the disparity in the pay scale was sought
to be removed. We find that the Hon'ble Chief Justice has made the
recommendations to do away with the disparity in the pay scales in
’
respect of the staff working under him. According to us, the Hon ble
Chief Justice is best suited to do so as he knows the factual working
conditions of the staff members. In this context, it would be profitable
to refer to the decision in the case of Union of India & anr. vs. S B
Vohra & Ors. (supra), where Their Lordships observed at paragraphs
43, 46, 48 and 51, thus :
“
43. I n High Court Employees Welfare
Association, Calcutta and others vs. State of
West Bengal & Ors. [2003 AIR SCW 6338] , a
Bench of this Court observed:
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"11. The Government will have to bear in mind
the special nature of the work done in the High
Court which the Chief Justice and his
colleagues alone could really appreciate. If the
Government does not desire to meet the needs
of the High Court, the administration of the
High Court will face severe crisis."
(emphasis supplied)
...
46. Decisions of this Court, as discussed
hereinbefore, in no unmistakable terms suggest that it
is the primary duty of the Union of India or the State
concerned normally to accept the suggestion made by
a holder of a high office like a Chief Justice of a High
Court and differ with his recommendations only in
exceptional cases. The reason for differing with the
opinion of the holder of such high office must be
cogent and sufficient. Even in case of such difference
of opinion, the authorities must discuss amongst
themselves and try to iron out the differences. The
appellant unfortunately did not perform its own
duties.
...
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
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case of the judicial officers in All India Judges'
Association vs. Union of India & Ors. [(1992) 1 SCC
119] and [(2002) 4 SCC 247] .
(emphasis supplied)
...
51. Having regard to the aforementioned
authoritative pronouncements of this Court, there
cannot be any doubt whatsoever that the
recommendations of the Chief Justice should
ordinarily be approved by the State and refusal
thereof must be for strong and adequate reasons. In
this case the appellants even addressed themselves on
the recommendations made by the High Court. They
could not have treated the matter lightly. It is
unfortunate that the recommendations made by a
high functionary like the Chief Justice were not
promptly attended to and the private respondents had
to file a writ petition. The question as regard fixation
of a revision of the scale of pay of the High Court
being within exclusive domain of the Chief Justice of
the High Court, subject to the approval, the State is
expected to accept the same recommendations save
and except for good and cogent reasons.
29.
We again remind ourselves of the settled law that in such
matter the High Court should not ordinarily issue a writ of or in the
nature of mandamus and ought to refer the matter back to the 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.
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30.
Though much emphasis is placed by the Advocate General that
the principles of equal pay for equal work would not be applicable as
the working conditions in the State of Maharashtra are bound to differ
with that of the State of Goa, even then, independent of the principles
of equal pay for equal work, the scope and ambit of Article 229 cannot
be overlooked which clearly reveals that the Hon'ble Chief Justice has
prerogative powers and it is not open to the State Government to brush
’
aside the recommendations of the Hon ble Chief Justice under Article
229 of the Constitution of India in a light manner save and except for
good and cogent reasons.
31.
At this stage, we may refer to the affidavit in reply filed on behalf
of the High Court-respondent nos. 3 and 4, affirmed by the Registrar
High Court of Bombay. In paragraph 16 of the affidavit in reply, it is
stated that the pay scale and other service conditions are approved and
incorporated by the Hon'ble Rule Committee and the Hon'ble the then
Acting Chief Justice. In paragraph 17 of the affidavit in reply, it is
stated that the Hon'ble Chief Justice had, after considering the working
conditions and principles of parity, approved the same pay scale to the
Secretarial Cadre Staff and Group 'A' and Group 'B' employees working
on the establishment of High Court of Bombay at Goa as like the staff
working in the High Court of Maharashtra. The same upgraded pay
scales were incorporated in the draft Rules as approved by the Hon'ble
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Rule Committee and the Hon'ble the then Acting Chief Justice. The
respondents say that the contention of the State that the Hon'ble the
Chief Justice had not directed to pay upgraded pay scales to the
petitioners, was incorrect.
32.
In the context of the present petition, we need to make a
profitable reference to the decision in State of Rajasthan & Ors. vs.
Ramesh Chandra Mundra & Ors. (supra). Their Lordships made
very significant observations in the context of the proviso to Article
229(2) of the Constitution. In paragraph 21, it is observed thus :
“
21. It seems to us that the proviso to Article 229(2)
(as also Article 146), does not reflect an architecture of
hierarchy. We think that the correct constitutional
approach is one of comity between different
institutions working under the Constitution. The
emphasis is not on the supremacy of one institution or
demarcating the boundaries of the other. It is about
ensuring institutional integrity of one while respecting
the functional domain of the other. These provisions
are meant to facilitate a dialogue of governance
between high constitutional functionaries. A healthy
dialogue, perhaps, even a debate is necessary for an
efficient constitutional polity. The constitutional
vision is not to draw “ lakshman rekhas ” between
constitutional functionaries; its command is for the
constitutional functionaries to efficiently coordinate to
best achieve constitutional goals. It is this
constitutional essence that was ignored when the
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request of the learned Chief Justice was not even
placed before the Governor.”
33.
The Supreme Court then in paragraph 22, made important
observations about independence of Judiciary being a part of the basic
structure of the Constitution. Paragraphs 22 and 27, which are
relevant, read thus :
“22. That independence of judiciary is part of the
basic structure of the Constitution is now well
entrenched. The Constitution has insulated the
judiciary from outside influences both by the
executive and legislature. Articles 223 to 234 in
Chapter VI in Part VI of the Constitution dealing with
the courts below the High Courts also show that the
Constitution-makers were equally keen to insulate
even subordinate judiciary. Independence of judiciary
takes within its sweep independence of the individual
Judges in relation to their appointments, tenure,
payment of salaries and also non-removal except by
way of impeachment. An integral part of
“Independence of judiciary”, as a constitutional value
is the “Institutional Independence” i.e. the aspect
concerning the financial freedom or autonomy which
the judiciary must possess and enjoy . This effective
involvement of the judicial branch in budgeting, staff
and infrastructure has also been recognized by the
international community.
...
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27. Adequate budgeting so as to meet the judiciary’s
work demands, so as to ensure proper infrastructure
and facilities is integral to judicial functioning. In that
sense, it is an aspect of judicial independence. That
independence of judiciary is part of the basic structure
of the Constitution is by now well entrenched. An
integral part of “independence of judiciary”, as a
constitutional value is the “institutional
independence” i.e. the aspect concerning the financial
freedom or autonomy which the judiciary must
possess and enjoy.
(Emphasis supplied)
34.
No doubt, in State of Rajasthan & Ors. vs. Ramesh
Chandra Mundra & Ors. (supra), Their Lordships considered it
appropriate to set aside the decision of not accepting the proposal of
The Chief Justice and remand the matter back to the State Government
for appropriate consideration. However, it is relevant to note that
Their Lordships observed that undoubtedly, the State Government if
considers necessary, it may hold a meeting with the officers concerned
of the Rajasthan High Court as may be appropriate for resolving the
issue.
35.
Coming to the present case, after hearing the learned Advocate
General at length and upon considering the well settled principles of
law laid down in the context of Article 229 of the Constitution, we are
of the opinion that though we should ordinarily be very slow in issuing
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a writ of mandamus, the facts in the present case persuade us to issue a
writ of mandamus. This was expressed by us at the conclusion of the
hearing. In all fairness to the learned Advocate General, we must
record that, on instructions, learned Advocate General submitted that
the Government of Goa would accept the decision of this Court
including issuance of a writ of mandamus and shall not challenge this
decision of the Court. We appreciate the positive approach of the
Advocate General, on instructions of the State of Goa. Learned
Advocate General, however, submitted that considering the financial
position of the State, it will not be possible to agree to the payment of
arrears from 2007-2011 as per the recommendations. It was however
submitted that the Government of Goa shall accept the
’
recommendations of the Hon ble Chief Justice as regards the
upgradation of the pay scales of the Petitioners.
36.
On consideration of all relevant circumstances, as the
’
upgradation suggested by the recommendations of the Hon ble Chief
Justice is with retrospective year from the year 2007 and from 2011 for
some posts, at the first blush we were inclined to grant arrears. But we
cannot lose sight of the observations made in M. Gurumoorthy vs.
Accountant General, Assam & Nagaland & Ors. (supra) at page
429 :
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“
Thus Article 299 has a distinct and different scheme
and contemplates fall freedom to the Chief Justice in
the matter of appointments of officers and servants of
the High Court and their conditions of service. These
can be prescribed by rules made by him. Apart from
the special situation contemplated by the proviso to
clause (1) the only exception is that the Governor's
approval must be sought to the extent the rules relate
to salaries, leave or pension. This exception; it is
abundantly clear, has to be made because the finances
have to be provided by the Government and to the
extent there is any involvement of expense the
Government has to approve of it.”
37.
On the aspect of arrears, learned Advocate General submitted
that considering the quantum, the burden on the public exchequer will
be huge. We did express that there is no reason to deny the arrears to
the petitioners considering that their counterparts at the Principal seat
of this Court and its Benches were given the benefit thereof from 2007
and in some posts from 2011. It was the submission of learned
Advocate General that the pay be notionally fixed in terms of the
’
recommendations of the Hon ble Chief Justice and the issue as regards
arrears could be remanded to the State Government for appropriate
consideration. Learned Advocate General assured that the State
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Government would then hold a meeting with the Officers of the
Bombay High Court and make every possible endeavour in resolving
the issue regarding arrears.
38.
We requested the learned Advocate General to look into the
matter and seek instructions from the State Government in view of the
settled legal position that the correct constitutional approach is one of
comity between different institutions working under the Constitution.
As held by the Supreme Court the emphasis is not on the supremacy of
one institution or demarcating the boundaries of the other. It is also
about ensuring institutional integrity of one while respecting the
functional domain of the other. These provisions are meant to
facilitate a dialogue of governance between high constitutional
functionaries.
39.
Considering that some of the employees have already retired
and the question pertains to total of 30 employees including the
’
Petitioners to whom the recommendations of the Hon ble Chief Justice
apply, we requested the Advocate General to seek instructions from the
State Government if the issue could be resolved here itself instead of
remanding the matter to the State Government for its consideration.
We thus had called upon the Advocate General to use his good offices in
ensuring that the matter is resolved. Learned Advocate General responded
positively and in deference to our request, on instructions, submitted that
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though he will leave the decision as regards the payment of arrears to this
Court, which the State would accept, but requested for sufficient time to pay
it considering the quantum. According to him, even the pay will have to be
re-fixed, which exercise may take some time.
40.
We find that if arrears are to be paid to the petitioners, the same
benefits also will have to be extended to nine other similarly situated
’
employees who are covered by the recommendations of the Hon ble
Chief Justice. The Registry was called upon to give an approximate
indication as regards the quantum of arrears. Learned Counsel for the
High Court submitted that on a rough estimation, the arrears will work
out to Rs.6,58,60,787/- (Rupees Six Crores Fifty Eight Lakhs Sixty
Thousand Seven Hundred and Eighty Seven). Learned Counsel
submitted that there may be increase in this amount as the calculations
are based on a rough estimation. Learned Counsel for the High Court
submitted that the aforesaid approximate financial implication w.e.f.
01.10.2007 to 31.07.2024, is done as per the Rule Committee decision.
’
41.
We find the request of the Advocate General for one year s time
to pay the arrears, reasonable. We, accordingly, direct the State
Government to re-fix the pay and pay the arrears within a period of
’
one year in terms of the recommendations of the Hon ble Chief
Justice.
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42.
Now that the State Government has agreed to accept the order
passed by this Court, the State will do the needful in complying with
the recommendations of the Hon’ble Chief Justice.
43.
We dispose of the Writ Petitions in the above terms with no
order as to costs.
Digitally
signed by
URMILA
PRAMOD
INGALE
Date:
2024.07.30
19:50:47
+0530
URMILA
PRAMOD
INGALE
VALMIKI MENEZES, J. M. S. KARNIK, J.
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IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 186 OF 2023
AND
WRIT PETITION NO. 409 OF 2023
---------------------------------------
WRIT PETITION NO. 186 OF 2023
1. Mr. Santosh S. Mhamal, son of Shridhar
Mhamal, Senior Private Secretary to the
Hon'ble Judge, aged 58 years.
2. Ms. Andreza Rodrigues e Pereira, wife of
Mr. John Stephen Pereira, Private Secretary to
the Hon'ble Judge, aged 55 years.
3. Ms. Niti Haldankar, wife of late Kishor
Harmalkar, Private Secretary to the Hon'ble
Judge, aged 45 years.
4. Ms. Meena V. Bhoir, wife of Vishal T. Bhoir,
Private Secretary to the Hon'ble Judge, aged
44 years.
5. Shri Amrut Tari, son of Shri Nagesh P. Tari,
Personal Assistant to the Hon'ble Judge, aged
55 years.
6. Ms. Vinita V. Naik, wife of Vikas D. Naik,
Personal Assistant to the Hon'ble Judge, aged
49 years.
7. Ms. Esha Vaigankar, wife of Sainath S.
Vaigankar, Personal Assistant to the Hon'ble
Judge, aged 45 years.
8. Ms. Maria Suzana Rebello, wife of Joaquim
Rodrigues, Personal Assistant to the Hon'ble
Judge, aged 52 years.
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All Group A Employees of the Hon'ble High
Court of Bombay at Goa, Having office at
Porvorim, Goa.
... Petitioners
V e r s u s
1. State of Goa, through its Chief Secretary,
Secretariat, Porvorim, Goa.
2. The Law Secretary, Law Department,
Government of Goa, Porvorim, Goa.
3. The Hon'ble Registrar General, High Court
of Bombay, Fort, Mumbai, 403002.
4. The Hon'ble Registrar (Admin), High Court
of Bombay at Goa, Porvorim, Goa.
(Above are the registered addresses of the ... Respondents
Parties)
AND
WRIT PETITION NO. 409 OF 2023
1. Mr. Hipolito Azavedo, Aged 48 years,
Section Officer, High Court of Bombay at Goa.
2. Mr. Ashok Dhargalkar, Aged 60 years,
Section Officer, High Court of Bombay at Goa.
3. Mrs. Utkarsha Gauns, Aged 55 years,
Section Officer, High Court of Bombay at Goa.
4. Mr. Prashant Parab, Aged 45 years, Section
Officer, High Court of Bombay at Goa.
5. Mr. Avinash Parab, Aged 44 years, Section
Officer, High Court of Bombay at Goa.
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6. Ms. Vianna Dias, Aged 44 years, Section
Officer, High Court of Bombay at Goa.
7. Ms. Telma Estebeiro, Aged 48 years,
Section Officer, High Court of Bombay at Goa.
8. Mr. Pandurang Parab, Aged 41 years,
Section Officer, High Court of Bombay at Goa.
9. Ms. Anissa Monteiro, Aged 45 years,
Section Officer, High Court of Bombay at Goa.
10. Ms. Surekha Kumbarjuvekar, Aged 57
years, Section Officer, High Court of Bombay
at Goa.
11. Ms. Vilasini Nagvekar, Aged 57 years,
Section Officer, High Court of Bombay at Goa.
12. Mr. Xavier D'Souza, Aged 58 years, Section
Officer, High Court of Bombay at Goa.
13. Ms. Roshan Shirodkar, Aged 48 years,
... Petitioners
Section Officer, High Court of Bombay at Goa.
V e r s u s
1. State of Goa, through its Chief Secretary,
having office at Secretariat, Porvorim, Goa.
403521.
2. Secretary (Law), Department of Law and
Judiciary, Law (Establishment) Division,
Government of Goa, having Office at
Secretariat, Porvorim, Goa. 403521.
3. The Registrar (Admn.), High Court of
Bombay at Goa. Porvorim-Goa. 403521.
4. The Registrar (Personnel), High Court of
Bombay, Appellate Side, Bombay, Personnel
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Department, Mumbai. 400032.
5. Registrar General, High Court of Bombay,
Appellate Side, Bombay, Personnel
Department, Mumbai. 400032.
... Respondents
(Registered address)
-----------------------------------------
Mr. Dattaprasad Lawande, Advocate with Mr. P. Dangui, Mr.
Jay Mathew, Mr.Chirag Angle and Mr. S. Sawaikar, Advocates for
the Petitioners in Writ Petition No. 186 of 2023.
Mr. D. D. Zaveri, Advocate with Mr Nehal Govekar, Advocate for
the Petitioners in Writ Petition No. 409 of 2023.
Ms. Neha Shirodkar, Advocate for the Respondent Nos. 3 and 4 in
Writ Petition No. 186 of 2023 and Respondent Nos. 3, 4 and 5 in Writ
Petition No. 409 of 2023.
Mr. Devidas Pangam, Advocate General with Mr. Deep
Shirodkar, Additional Government Advocate for Respondent nos. 1
and 2 in Writ Petition No. 186 of 2023.
Mr. Devidas Pangam, Advocate General with Ms. Maria Simone
Correia, Additional Government Advocate for Respondent nos. 1 and
2 in Writ Petition No. 409 of 2023.
----------------------------
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
th
26 JULY 2024
RESERVED ON :
th
30 JULY 2024
PROUNOUNCED ON :
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JUDGMENT ( Per M. S. Karnik, J.)
1.
Heard Mr. Lawande, learned Counsel appearing for the
petitioners in Writ Petition no. 186 of 2023, Mr. Zaveri, learned
Counsel appearing for the petitioners in Writ Petition No. 409 of 2023,
Mr. Pangam, learned Advocate General appearing for the Respondent
nos. 1 and 2 and Ms. Shirodkar, learned Counsel appearing for the
High Court of Bombay.
2.
The issue involved in both the Writ Petitions is common and
hence heard and disposed by a common order.
3.
The petitioners in Writ Petition No. 409 of 2023 are the Section
Officers. The petitioners in Writ Petition no. 186 of 2023 are Group 'A'
employees attached to the High Court of Bombay at Goa.
4.
We refer to the facts in Writ Petition no. 186 of 2023.
The petitioner no.1 is presently working as Senior Private
Secretary to the Hon'ble Judge of the High Court; the petitioner nos.
2, 3 and 4 are working as Private Secretary/ies to the Hon'ble Judge/s.
Likewise, petitioner nos. 5, 6, 7 and 8 are presently working as
Personal Assistant/s to the Hon'ble Judge/s, of High Court of Bombay
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at Goa. Respondent no.1 is the State of Goa. Respondent no.3 is the
High Court of Bombay.
5.
The petition is filed with a grievance as regards denial of the
benefits/extension of the upgraded pay scales notified vide Notification
th
bearing Ref. No. Rule/B-1509/2022 dated 14 June, 2022, issued by
the respondent no.3 to the Secretarial Staff of the High Court of
Bombay, which includes these petitioners. The petitioners are
aggrieved by the non-consideration/delay on the part of the State of
Goa to consider the proposal dated 25.08.2022 of the respondent no.
4- Registrar (Admin) in the matter of upgradation of the pay scales of
the Secretarial Staff of the High Court of Bombay at Goa. The
petitioners as well as their counterparts i.e. Secretarial Staff, Group 'A'
employees of the High Court of Bombay at its Principal seat and its
Benches at Nagpur and Aurangabad are appointed under the Appellate
Side Service Rules, ( Rules of 2000 , for short), having the same identity
who also perform equal identical works/duties/job/responsibilities,
etc.
6.
The respondent no.3 by Notification dated 14.06.2022, amended
the Rules of 2000 thereby upgrading the pay scales of the Secretarial
Cadre i.e. Secretary to the Hon'ble Chief Justice, Private Secretary to
the Hon'ble Chief Justice and other Hon'ble Judges, Senior Private
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Secretary and the Personal Assistants of the Hon'ble Judges in terms of
the Schedule-I appended to the said Notification dated 14.06.2022. A
perusal of the Notification dated 14.06.2022 would indicate that the
proposed amendment intended to insert Rule 3(b)(ii) and Rule 3(b)
(iii) after the existing Rule 3(b)(i) of the Rules of 2000. After the
amendment of the said Rules of 2000, the petitioners had been
legitimately/bonafidely expecting revision of their pay scales in terms
of the said amendment. According to the petitioners, it was
incumbent upon the State of Goa to implement/execute the said
amendment in terms of the law and to consequently make the
petitioners and other employees belonging to the Group 'A' eligible to
the revised/upgraded pay scales.
7.
Prior to the liberation of Goa, Daman and Diu, the highest Court
of the then Union Territory was ' The Tribunal de Relecao ' functioning
at Panaji. This Tribunal de Relacao was abolished when a Court of
Judicial Commissioner was established w.e.f. 16.12.1963 under the Goa
Daman and Diu (Judicial Commissioner Court) Regulation 1963. On
16.05.1964, by repealing Section 7 of the Goa, Daman & Diu
(Administration) Act, 1962, the Goa Daman and Diu, Judicial
Commissioner's Court (Declaration as High Court) Act, 1964, was
passed by the Parliament which conferred upon the declared Court of
“ ”
Judicial Commissioner as High Court , vesting in it some powers of
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the High Court for the purposes of Article 132/134 of the Constitution
of India. In terms of Articles 230 and 231 of the Constitution of India,
the Parliament enacted the High Court at Bombay (Extension of
Jurisdiction of Goa, to Goa, Daman and Diu) Act, 1981 and extended
the jurisdiction of High Court of Bombay to the Union Territory of
Goa, Daman and Diu and established a permanent Bench i.e. High
Court at Panaji on 30.10.1982. The High Court of Bombay was
established as a common High Court for the State of Maharashtra and
the Union Territory of Goa, Daman and Diu. Goa attained Statehood
on 30.05.1987. The Parliament enacted the Goa Daman and Diu
Reorganisation Act, 1987. Under part II of the Reorganisation Act,
Section 3 thereof enacted in formation to the State of Goa while
Section 4 enacted in formation of Union Territory of Daman and Diu
under Section 20 of the Reorganization Act, the High Court of Bombay
became a common High Court for the State of Maharashtra and the
newly formed State of Goa and for the Union Territories of Dadra and
Nagar Haveli and the newly formed Union Territory of Daman and
Diu.
8.
The Hon'ble Chief Justice in exercise of its powers under Article
229 of the Constitution of India and in super-session of all the existing
rules relating to recruitment, promotion, etc, framed the Bombay High
Court Rules of 2000, for the regulation of the matters of recruitment
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and other conditions of service of the members of the High Court of
Judicature at Bombay on its Appellate Side, including officers at
Nagpur, Aurangabad and Panaji-Goa. The said Rules were to come
into effect from 01.01.2001 and it applies to all persons appointed to
service on or before the said date.
9.
The Government of Goa vide Order dated 22.03.2007, had
opened a separate budget head to disburse salaries and other
allowances to the staff of the High Court of Bombay at Goa, which was
to take effect/operation from 01.04.2007. By an order dated
10.12.2013 passed by the Hon'ble Chief Justice of Bombay High Court,
the Goa Civil Services Rules pertaining to the pay, allowances, pension,
etc., were proposed to be formulated, which were to govern the service
conditions of the employees attached to the High Court of Bombay at
Goa w.e.f. 01.01.2014. As on the date of filing of this petition on
15.03.2023, no Rules had been notified/formulated. The petitioners
addressed a representation to the respondent no.3, inter alia
contending that the Notification dated 14.06.2022 be conveyed to the
respondent no.1 so as to enable them to take appropriate steps as
regards the applicability of the said notification to the Secretarial
Cadre of the High Court of Bombay at Goa. In response to the
representation dated 05.05.2022, the petitioners were in receipt of a
letter dated 26.08.2022 issued by the respondent no.4 inter alia
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intimating the petitioners that the representation was considered and
the Hon'ble the Chief Justice was pleased to direct the Registry of this
Court to move the Government of Goa for upgradation of pay scales
and allied subjects pertaining to the Secretarial posts.
10.
Suffice it to mention, it is the case of the petitioners that the
recommendation made by the Chief Justice for upgradation of pay was
not accepted by the State Government and the Rules were notified by
the State of Goa which were at variance with those recommended by
the Hon'ble Chief Justice. Pursuant to the directions of the Hon'ble
Supreme Court, the Rules were notified. Except for the upgradation of
pay scale with which the State Government had an issue considering
the financial implication, the High Court of Bombay at Goa Officers
and the Members of the Staff on the Establishment (Recruitment and
Conditions of Service) Rules, 2023, notified was in conformity with the
Rules recommended by the Hon'ble Chief Justice. The petitioners pray
’
that having regard to the scope and sweep of the Hon ble Chief
’
Justice s powers under Article 229 of the Constitution of India, the
petitioners are entitled to the upgraded pay scales as recommended by
the Hon'ble Chief Justice with retrospective effect and arrears on par
with their counterparts working at the Principal seat at Bombay.
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11.
The petitioners contended that the directions contained in the
letter dated 25.08.2022 was that of the Hon'ble Chief Justice of the
High Court of Bombay under Article 229 of the Constitution and had to
be approved by the respondent nos. 1 and 2. The petitioners
contended that the recommendation of respondent no.4 was inline
with the Maharashtra Government Resolution dated 19.04.2022 and
the respondent nos. 1 and 2 ought to have approved the same and
extended the benefit of Maharashtra Government Resolution to the
said staff. According to the petitioners, there was no difference in the
service conditions of the employees in Mumbai and the employees in
Goa. The appointment and the service conditions of the petitioners'
counterparts at the Principal Seat and the Benches at Nagpur and
Aurangabad are governed by the Bombay High Court Appellate Side
Rules, 2000 and have the same identity and also perform equal and
identical works/duties and responsibilities, etc., and hence the 2022
amendment has to be applied to the petitioners to provide parity with
their counterparts in Maharashtra.
12.
Learned Counsel for the petitioners relied on the decisions in
1
Union of India & anr. vs. S. B. Vohra & Ors. , Adeline
2
Rodrigues & Ors. vs. State of Maharashtra & Ors. , State of
1 (2004) 2 SCC 150
2 2013 (6) Mh.L.J. 14
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3
Rajasthan & Ors. vs. Ramesh Chandra Mundra & Ors. , M.
Gurumoorthy vs. Accountant-General, Assam & Nagaland &
4
Ors. , High Court Employees Welfare Assn. Calcutta & Ors.
5
vs. State of W.B. & Ors. , Y. K. Mehta & Ors. vs. Union of
6
India & anr. , State of Andhra Pradesh & anr. vs. T.
7
Gopalakrishnan Murthi & Ors. , Re:PensionBenefits for
8
Employees Retd. From High Court of Bombay at Goa and Mr.
9
Sanjay Bhat & ors. vs. State of Goa & Ors. , in support of their
submissions.
13.
On the other hand, the learned Advocate General invited our
attention to the affidavit in reply dated 21.07.2023 filed by the
respondent nos. 1 and 2 and also the additional affidavit in reply dated
04.10.2023. It is submitted that pursuant to the order dated
01.05.2023 of the Hon'ble Supreme Court in Writ Petition (Civil) No.
464/2023, wherein it was noted that the Rules were yet to be finalised
and had sought the status of the finalization of the Rules, a meeting
was convened on 12.05.2023, under the Chairmanship of the Hon'ble
Chief Minister regarding finalization of the High Court of Bombay at
3 (2020) 20 SCC 163
4 1971(2) SCC 137
5 (2004) 1 SCC 334
6 1988 (Supp) SCC 750
7 (1976) 2 SCC 883
8 WP(C) no. 464/2023 orders dt. 01.05.2023 & 15.05.2023
9 MCA No.645/2018 in STA No. 3852/2016 order dt.21.12.2018
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Goa Officers and the Members of the staff of the Establishment
(Recruitment and Conditions of Service) Rules, 2023. The aspect
relating to finalization of the Rules was discussed in the meeting and it
was resolved that it is not necessary for the respondent-State to
implement the same scales which are being implemented for the
employees of the High Court of Bombay in the State of Maharashtra,
for the following reasons :
“
(a) The retirement age of employees in Mumbai is 58
years, unlike Goa,where the same is 60 years.
(b) Conditions/cost of living in Mumbai and Goa are
not comparable.
(c) The employees of the High Court in Goa are
availing various schemes such as House Building
Allowance, allotment of Communidade plots for
construction of house, medical reimbursement, etc.,
which the State of Goa provides for its employees,
which are not available in the State of Maharashtra.
(d) Employees of the High Court in Goa get dearness
allowance and pay commission benefits much earlier
than the same are provided to the High Court
”
employees in Maharashtra.
14.
According to the learned Advocate General, the State also noted
that the upgradation suggested is with retrospective effect from the
year 2007 (more than 15 years) and from 2011 for some posts. It was
also considered that if such scales are implemented in Goa, then the
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same will be at par with Senior Scale Officers in the State of Goa and
will have huge financial implications. It was further noted that if the
upgradation is agreed to, then it will lead to representations from
Junior Scale Officers and Senior Scale Officers at entry level for
implementation of higher pay scales, which will have major impact on
the State Exchequer. On 15.05.2023, a statement was made on behalf
of the State before the Hon'ble Supreme Court in Writ Petition (Civil)
no. 464/2023, that a meeting was held on the said issue and that the
Rules would be notified within a period of three weeks. The Minutes of
the meeting held on 12.05.2023 were put up for Government approval
and for notifying the Rules. After the Government approval was
obtained, the respondent-State issued Notification dated 01.06.2023
notifying the High Court of Bombay at Goa Officers and the Members
of the Staff on the Establishment (Recruitment and Conditions of
Service) Rules, 2023, which was published in the Official Gazette
dated 03.06.2023.
15.
Pursuant to the filing of the affidavit, the petitioners amended
the petition praying for quashing and setting aside the decision of the
State Government in the letter dated 28.07.2023 and for consequential
direction to the State to grant approval to the request made by the
respondent no.4 in its letter dated 25.08.2022 and further to grant
upgradation of the pay scale of the Secretarial Cadre and Group 'A' and
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'B' employees on the establishment of High Court of Bombay at Goa in
terms of the Maharashtra Government Resolution dated 19.04.2022.
16.
Learned Advocate General submitted that the power vested in
the Hon'ble Chief Justice has been made conditional upon approval of
such Rules by the Governor. Relying on Article 229 of the Constitution
and the proviso thereto, it is submitted that so far as the Rules relating
to salaries, allowances, leave or pensions of the officers/servants, the
same requires the approval of the Governor of the State. According to
learned Advocate General, the State Legislature is empowered to make
a law on the subject and the Rules made under Article 229(2) are
subject to the provisions of the law made by the Legislature. The
Article provides that the administrative expenses of the High Court,
including all salaries, allowances and pensions payable shall be
charged upon the Consolidated Fund of the State. The learned
Advocate General submitted that the purpose behind the requirement
of approval of the Governor of the State is because the salaries,
allowances, etc., would have financial liabilities and may also have
repercussions on the salaries of others. It is submitted that in such
matters where the State has examined the aspects relating to the pay
scales and has taken a decision, the Courts will ordinarily not pass
orders directing the State to grant a particular pay scale to the staff. It
is further submitted that the service conditions of the petitioners
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including the pay scales of the said staff are governed by the High
Court of Bombay at Goa Officers and the Members of the Staff on the
Establishment (Recruitment and Conditions of Service) Rules, 2023,
which were published in the Official Gazette dated 03.06.2023.
Learned Advocate General emphasized that the pay scales are covered
by the said Rules, which have been notified, after approval by the State
Government. It is submitted that as regards the representation and
the demand of the staff for higher pay scales, the matter was examined
at the highest level and the Government for valid reasons had taken a
decision that upgradation of the pay scales is not possible. It is
submitted that the directions in the letter dated 25.08.2022, cannot be
said to be directions given by the Hon'ble Chief Justice. According to
the learned Advocate General, letter dated 25.08.2022 was only a
proposal sent by the Registry and not a direction of the Hon'ble The
Chief Justice. Learned Advocate General laid emphasis on the fact that
Goa is an independent State. According to him, the petitioners' case is
misconceived because the Resolutions of State of Maharashtra cannot
be forced upon the State of Goa. It is submitted that no opinion can be
formed that there is no difference in the service conditions of Mumbai
and in Goa as the position in each State is different. According to the
learned Advocate General, the conditions, costs of living, service
conditions, facilities and benefits, are different in Goa from the State of
Maharashtra. Moreover, the financial position, budget and resources
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available in both the States are incomparable. According to the
learned Advocate General, the approval of the Governor of the State is
not an empty formality as various facts have to be taken into
consideration while approving the recommendations of the Hon'ble
Chief Justice which has been duly considered by the State Government
i.e. only after examining the proposal and taking a conscious decision
that the Rules of 2023 are notified by the State of Goa.
17.
Learned Advocate General further submitted that the Order
dated 10.12.2013 of the Registrar General of the High Court expressly
states that the Hon'ble The Chief Justice has decided to make Goa Civil
Service Rules and other Rules pertaining to pay, allowances,
permission, etc., applicable to the employees working on the
Establishment of the High Court of Bombay at Goa w.e.f. 01.01.2014,
which recognizes the fact that the position in the State of Goa is
different and that the employees in Goa will be governed by a separate
set of Rules. It is thus the submission of learned Advocate General that
the determination of parity and identicality of duties and
responsibilities is a complex issue which will not ordinarily be gone
into by the Court. Learned Advocate General submitted that it is a
settled law that the Court will not direct fixation of particular pay
scales in exercise of writ jurisdiction. It is his submission that the
petitioners have not brought any material to show wholesale and
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wholesome identity in the duties, functions, responsibilities, etc. of the
staff in Maharashtra and the staff in Goa. It is urged that to establish
wholesale, wholesome and complete identity, is a sine qua non when it
comes to disparity of pay scales. It is further urged that the petitioners
have not provided any data as regards to the ratio of the staff to the
number of Judges, the workload in Goa as compared to the State of
Maharashtra. It is further submitted that there are some better
benefits which are being received by the staff of Goa as compared to
those in Maharashtra like that of higher retirement age, which are not
available in the State of Maharashtra.
18.
The thrust of learned Advocate General's submission is that the
conditions of the employees working at the Principal seat is not
comparable with those in the State of Goa. The Principle of equal pay
for equal work will not apply in the present facts. Hence, the
petitioners cannot seek parity with their counterparts in Mumbai. The
approval by the Governor is not an empty formality and the same has
to be granted after taking into consideration various circumstances
peculiar to the State where the petitioners are working. The pay scales
of the counterparts of the petitioners at the Principal seat was
enhanced and brought at par with the Secretarial Staff working in the
State of Maharashtra which cannot be the basis to claim upgradation.
The State of Goa is a separate State. The Bombay High Court is
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common to the two States and, therefore, any decision of the State of
Maharashtra cannot be foisted upon the State of Goa.
19.
Learned Advocate General relied upon the decisions in Steel
Authority of India Limited & Ors. vs. Dibyendu
10
Bhattacharya , Hukum Chand Gupta vs. Director General,
11
Indian Council of Agricultural Research & Ors. , Harbans
12
Lal & Ors. vs. State of Himachal Pradesh & Ors. , State of
Andhra Pradesh & anr. vs. T. Gopalakrishnan Murthi & Ors.
13
(supra) and State of H.P. vs. P.D. Attri & Ors. , in support of his
submissions.
20.
We have heard learned Counsel at length. At the outset, it would
be pertinent to refer to the order passed by the Hon'ble Supreme Court
on 24.07.2024. Their Lordships observed thus :
“
IA No 234830 of 2023 In Writ Petition (Civil)
No 464 of 2023
1. In exercise of the constitutional authority vested
in the Chief Justice under Article 229 of the
Constitution, the Chief Justice of the High Court of
Judicature at Bombay, following the rules framed by
the Rules Committee, forwarded the High Court of
10 (2011) 11 SCC 122
11 (2012) 12 SCC 666
12 (1989) 4 SCC 459
13 (1999) 3 SCC 217
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Bombay at Goa Officers and the Members of the Staff
on the Establishment (Recruitment and Conditions of
Service) Rules 2023 to the State government.
2. The Government of Goa issued a notification
dated 3 June 2023, notifying certain rules. The rules
which have been notified contain a prefatory
statement that they have been made by the Chief
Justice of the High Court of Judicature at Bombay in
exercise of the power conferred under Article 229 of
the Constitution. However, the rules are significantly
at variance with what was submitted to the
Government of Goa under the authority of the Chief
Justice.
3. An affidavit has been filed by the Registrar (Legal
and Research) before the High Court of Bombay at
Goa in pending matters (Writ Petition No 186 of 2023
and Writ Petition No 409 of 2023). The affidavit states
that in the guise of complying with the order of this
Court, the Government of Goa has framed rules
governing the service conditions which were not
approved either by the Rules Committee of the High
Court or by the Chief Justice.
4. A chart has been tendered on behalf of the High
Court indicating the divergence between the rules as
approved by the Rules Committee of the High Court
and the rules as notified by the Government of Goa.
5. We are apprised of the fact that the above writ
petitions (Writ Petition No 186 of 2023 and Writ
Petition No 409 of 2023) are due to come up for
hearing before the High Court tomorrow (25 July
2024). We are not restraining the High Court from
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hearing the petitions and from passing appropriate
orders.
6. This Court has taken suo moto cognizance of the
grievances of former employees of the High Court of
Bombay at Goa to whom their terminal dues,
including pensionary benefits were not being paid.
The rules which have been framed by the Government
of Goa would undoubtedly affect the retiral dues of the
employees who have served the High Court.
7. The course of action which has been followed by
the State Government, prima facie , is contrary to the
settled position of law and the remit of Article 229 of
the Constitution. In this context, the attention of the
Government of Goa has to be drawn to the judgment
of this Court in Union of India and Another vs S
B Vohra and Others , (2004) 2 SCC 150 , rendered by
a three-Judge Bench of this Court in which it was held:
“ Having regard to the aforementioned
authoritative pronouncements of this
Court, there cannot be any doubt
whatsoever that the recommendations of
the Chief Justice should ordinarily be
approved by the State and refusal thereof
must be for strong and adequate reasons.
In this case the appellants even addressed
themselves on the recommendations made
by the High Court. They could not have
treated the matter lightly. It is unfortunate
that the recommendations made by a high
functionary like the Chief Justice were not
promptly attended to and the private
respondents had to file a writ petition. The
question as regards fixation of a revision of
the scale of pay of the High Court being
within the exclusive domain of the Chief
Justice of the High Court, subject to the
approval, the State is expected to accept the
same recommendations save and except for
good and cogent reasons.
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The High Court, however, should not
ordinarily 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.”
8. It is extraordinary that the Government of Goa has
purported to notify rules under Article 229 of the
Constitution in the name of the Chief Justice though
the rules in the form in which they were notified were
not recommended by the Chief Justice nor was any
consultative exercise conducted pursuant to the
recommendation by the Chief Justice.
9. In order to furnish the State Government with an
opportunity to rectify what prima facie seems to be a
clear breach of law laid down by this Court, we direct
that the proceedings be listed on 2 August 2024.
10. Mr Abhay Anil Anturkar, counsel appearing on
behalf of the Government of Goa shall communicate a
copy of this order to the Chief Secretary to the
Government of Goa. The Chief Secretary shall file a
personal affidavit in these proceedings on the next
date of hearing.
11. List the Petition on 2 August 2024. ”
(Emphasis supplied)
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21.
A reading of paragraph 5 of the aforesaid Order indicates that
this Court is not restrained from hearing the petitions and from
passing appropriate orders.
22. ’
Let us consider the scope and the power of the Hon ble Chief
Justice under Article 229 of the Constitution. In paragraph 7 of the
’
Hon'ble Supreme Court s order, a reference is made to Union of
India & anr. vs. S B Vohra & Ors. (supra). A reference to the
decision in State of Andhra Pradesh & anr. vs. T.
Gopalakrishnan Murthi & Ors. (supra) is significant. The issue
was disparity in the pay scale of High Court employees and the
Secretarial Staff of State of Andhra Pradesh. The boundary of law
engulfed in proviso 2 of Article 229, is dealt with by Their Lordships.
Though Their Lordships did not find it possible to sustain the
judgment of the High Court in the facts, however, it was observed that
Government will give their second thought to the matter and see
whether it is possible in the State of Andhra Pradesh to obliterate the
distinction in the matter of pay scales between the High Court and the
Secretariat Staff. Their Lordships also observed that there does not
seem to be any good and justifiable reason for maintaining the
distinction. It is important to note that State of Andhra Pradesh &
anr. vs. T. Gopalakrishnan Murthi & Ors. (supra) was a case
where the Chief Justice of the High Court wanted the High Court staff
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to be paid at the scales of pay of equivalent posts in the Secretarial staff
of the Government of Andhra Pradesh. The Government did not agree
to do so. The concerned employees filed a Writ Petition in the High
Court for a writ of mandamus against the Government of Andhra
Pradesh directing them to implement the recommendations of the
Chief Justice of the High Court made from time to time to fix the pay
scales of various categories where the respondents belong in
accordance with the pay scales as revised by the State Government in
Annexure III of the Andhra Pradesh Secretarial Service.
23.
It is pertinent to note that the petitioners in the present case are
seeking pay parity with their counterparts at the Principal seat. The
petitioners as well as their counterparts at the Principal seat, the
Benches at Nagpur and Aurangabad, were appointed in terms of the
Rules of 2000. The present is a case where the parity in the working
conditions was accepted by the Rule Committee and, thereafter, the
recommendation was made by the Hon'ble The Chief Justice to pay to
the respondents the same pay scales as their counterparts are receiving
at the Principal seat.
24.
We are not in agreement with the learned Advocate General that
this is a case where the decision of the State of Maharashtra is thrust
on the State of Goa. It is just that the counterparts of the petitioners at
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the Principal seat were held entitled to pay parity with the Secretarial
staff at Mantralaya, consequentially, the recommendation was made by
the Hon'ble The Chief Justice under Article 229 of the Constitution for
the upgradation of the pay scales of the petitioners, who are
discharging the same functions and duties as their counterparts at the
Principal seat and its Benches. Thus, the principles of equal pay for
equal work was recognised by the Rule Committee whereupon the pay
scales of the petitioners were sought to be brought at par with their
counterparts on the basis of the recommendations made by the
Hon'ble Chief Justice under Article 229 of the Constitution of India.
25.
The law is well settled that the recommendations of the Hon'ble
Chief Justice should ordinarily be approved by the State and refusal
thereof must be for strong and adequate reasons. The question as
regards fixation of a revision of the scale of pay of the High Court being
within the exclusive domain of the Chief Justice of the High Court,
subject to the approval, the State is expected to accept the said
recommendations save and except for good and cogent reasons. We
are conscious that the High Court should not ordinarily issue a writ of
or in the nature of mandamus and ought to refer the matter back to
the 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
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therefor. We also give due consideration to the submissions of the
learned Advocate General that the statutory duties should be allowed
to be performed by the statutory authorities at the first instance.
26.
In the present case, we find that the Rules ultimately published
by the State of Goa, did not include upgradation of pay as per the
’
recommendations of the Hon ble Chief Justice, which according to the
learned Advocate General, was a conscious decision considering all
relevant factors. Thus, except for the upgraded pay scale, all other
recommendations of the Hon'ble Chief Justice were incorporated in
the Rules which were later published by the Government of Goa on
20.05.2024.
27.
We must place on record that after hearing the learned Advocate
General at length and upon considering the affidavit in reply that was
filed on behalf of the High Court, we did express that the matter should
be resolved by arriving at a consensus. However, in our opinion, in the
facts of the present case, the refusal to accept the recommendations for
upgradation of pay is not for strong and adequate reasons. The
’
recommendations made by the Hon ble Chief Justice should not be
treated lightly for ultimately the question as regards fixation of the
revised scale of pay of the High Court being within the exclusive
domain of the Chief Justice of the High Court, subject to the approval,
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the State is expected to accept the said recommendations save and
except for good and cogent reasons.
28.
The decisions relied upon by the learned Advocate General are
distinguishable on facts. This is a case where upon due consideration
of all relevant materials, as the petitioners were found to be entitled to
the same pay scales as the counterparts at the Principal seat, that the
pay parity is applied and accordingly, the recommendations made by
the Hon'ble The Chief Justice. This after the Rule Committee had
considered the matter. Amongst the staff who are discharging
identical duties in all respects, the disparity in the pay scale was sought
to be removed. We find that the Hon'ble Chief Justice has made the
recommendations to do away with the disparity in the pay scales in
’
respect of the staff working under him. According to us, the Hon ble
Chief Justice is best suited to do so as he knows the factual working
conditions of the staff members. In this context, it would be profitable
to refer to the decision in the case of Union of India & anr. vs. S B
Vohra & Ors. (supra), where Their Lordships observed at paragraphs
43, 46, 48 and 51, thus :
“
43. I n High Court Employees Welfare
Association, Calcutta and others vs. State of
West Bengal & Ors. [2003 AIR SCW 6338] , a
Bench of this Court observed:
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"11. The Government will have to bear in mind
the special nature of the work done in the High
Court which the Chief Justice and his
colleagues alone could really appreciate. If the
Government does not desire to meet the needs
of the High Court, the administration of the
High Court will face severe crisis."
(emphasis supplied)
...
46. Decisions of this Court, as discussed
hereinbefore, in no unmistakable terms suggest that it
is the primary duty of the Union of India or the State
concerned normally to accept the suggestion made by
a holder of a high office like a Chief Justice of a High
Court and differ with his recommendations only in
exceptional cases. The reason for differing with the
opinion of the holder of such high office must be
cogent and sufficient. Even in case of such difference
of opinion, the authorities must discuss amongst
themselves and try to iron out the differences. The
appellant unfortunately did not perform its own
duties.
...
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
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case of the judicial officers in All India Judges'
Association vs. Union of India & Ors. [(1992) 1 SCC
119] and [(2002) 4 SCC 247] .
(emphasis supplied)
...
51. Having regard to the aforementioned
authoritative pronouncements of this Court, there
cannot be any doubt whatsoever that the
recommendations of the Chief Justice should
ordinarily be approved by the State and refusal
thereof must be for strong and adequate reasons. In
this case the appellants even addressed themselves on
the recommendations made by the High Court. They
could not have treated the matter lightly. It is
unfortunate that the recommendations made by a
high functionary like the Chief Justice were not
promptly attended to and the private respondents had
to file a writ petition. The question as regard fixation
of a revision of the scale of pay of the High Court
being within exclusive domain of the Chief Justice of
the High Court, subject to the approval, the State is
expected to accept the same recommendations save
and except for good and cogent reasons.
29.
We again remind ourselves of the settled law that in such
matter the High Court should not ordinarily issue a writ of or in the
nature of mandamus and ought to refer the matter back to the 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.
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30.
Though much emphasis is placed by the Advocate General that
the principles of equal pay for equal work would not be applicable as
the working conditions in the State of Maharashtra are bound to differ
with that of the State of Goa, even then, independent of the principles
of equal pay for equal work, the scope and ambit of Article 229 cannot
be overlooked which clearly reveals that the Hon'ble Chief Justice has
prerogative powers and it is not open to the State Government to brush
’
aside the recommendations of the Hon ble Chief Justice under Article
229 of the Constitution of India in a light manner save and except for
good and cogent reasons.
31.
At this stage, we may refer to the affidavit in reply filed on behalf
of the High Court-respondent nos. 3 and 4, affirmed by the Registrar
High Court of Bombay. In paragraph 16 of the affidavit in reply, it is
stated that the pay scale and other service conditions are approved and
incorporated by the Hon'ble Rule Committee and the Hon'ble the then
Acting Chief Justice. In paragraph 17 of the affidavit in reply, it is
stated that the Hon'ble Chief Justice had, after considering the working
conditions and principles of parity, approved the same pay scale to the
Secretarial Cadre Staff and Group 'A' and Group 'B' employees working
on the establishment of High Court of Bombay at Goa as like the staff
working in the High Court of Maharashtra. The same upgraded pay
scales were incorporated in the draft Rules as approved by the Hon'ble
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Rule Committee and the Hon'ble the then Acting Chief Justice. The
respondents say that the contention of the State that the Hon'ble the
Chief Justice had not directed to pay upgraded pay scales to the
petitioners, was incorrect.
32.
In the context of the present petition, we need to make a
profitable reference to the decision in State of Rajasthan & Ors. vs.
Ramesh Chandra Mundra & Ors. (supra). Their Lordships made
very significant observations in the context of the proviso to Article
229(2) of the Constitution. In paragraph 21, it is observed thus :
“
21. It seems to us that the proviso to Article 229(2)
(as also Article 146), does not reflect an architecture of
hierarchy. We think that the correct constitutional
approach is one of comity between different
institutions working under the Constitution. The
emphasis is not on the supremacy of one institution or
demarcating the boundaries of the other. It is about
ensuring institutional integrity of one while respecting
the functional domain of the other. These provisions
are meant to facilitate a dialogue of governance
between high constitutional functionaries. A healthy
dialogue, perhaps, even a debate is necessary for an
efficient constitutional polity. The constitutional
vision is not to draw “ lakshman rekhas ” between
constitutional functionaries; its command is for the
constitutional functionaries to efficiently coordinate to
best achieve constitutional goals. It is this
constitutional essence that was ignored when the
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request of the learned Chief Justice was not even
placed before the Governor.”
33.
The Supreme Court then in paragraph 22, made important
observations about independence of Judiciary being a part of the basic
structure of the Constitution. Paragraphs 22 and 27, which are
relevant, read thus :
“22. That independence of judiciary is part of the
basic structure of the Constitution is now well
entrenched. The Constitution has insulated the
judiciary from outside influences both by the
executive and legislature. Articles 223 to 234 in
Chapter VI in Part VI of the Constitution dealing with
the courts below the High Courts also show that the
Constitution-makers were equally keen to insulate
even subordinate judiciary. Independence of judiciary
takes within its sweep independence of the individual
Judges in relation to their appointments, tenure,
payment of salaries and also non-removal except by
way of impeachment. An integral part of
“Independence of judiciary”, as a constitutional value
is the “Institutional Independence” i.e. the aspect
concerning the financial freedom or autonomy which
the judiciary must possess and enjoy . This effective
involvement of the judicial branch in budgeting, staff
and infrastructure has also been recognized by the
international community.
...
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27. Adequate budgeting so as to meet the judiciary’s
work demands, so as to ensure proper infrastructure
and facilities is integral to judicial functioning. In that
sense, it is an aspect of judicial independence. That
independence of judiciary is part of the basic structure
of the Constitution is by now well entrenched. An
integral part of “independence of judiciary”, as a
constitutional value is the “institutional
independence” i.e. the aspect concerning the financial
freedom or autonomy which the judiciary must
possess and enjoy.
(Emphasis supplied)
34.
No doubt, in State of Rajasthan & Ors. vs. Ramesh
Chandra Mundra & Ors. (supra), Their Lordships considered it
appropriate to set aside the decision of not accepting the proposal of
The Chief Justice and remand the matter back to the State Government
for appropriate consideration. However, it is relevant to note that
Their Lordships observed that undoubtedly, the State Government if
considers necessary, it may hold a meeting with the officers concerned
of the Rajasthan High Court as may be appropriate for resolving the
issue.
35.
Coming to the present case, after hearing the learned Advocate
General at length and upon considering the well settled principles of
law laid down in the context of Article 229 of the Constitution, we are
of the opinion that though we should ordinarily be very slow in issuing
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a writ of mandamus, the facts in the present case persuade us to issue a
writ of mandamus. This was expressed by us at the conclusion of the
hearing. In all fairness to the learned Advocate General, we must
record that, on instructions, learned Advocate General submitted that
the Government of Goa would accept the decision of this Court
including issuance of a writ of mandamus and shall not challenge this
decision of the Court. We appreciate the positive approach of the
Advocate General, on instructions of the State of Goa. Learned
Advocate General, however, submitted that considering the financial
position of the State, it will not be possible to agree to the payment of
arrears from 2007-2011 as per the recommendations. It was however
submitted that the Government of Goa shall accept the
’
recommendations of the Hon ble Chief Justice as regards the
upgradation of the pay scales of the Petitioners.
36.
On consideration of all relevant circumstances, as the
’
upgradation suggested by the recommendations of the Hon ble Chief
Justice is with retrospective year from the year 2007 and from 2011 for
some posts, at the first blush we were inclined to grant arrears. But we
cannot lose sight of the observations made in M. Gurumoorthy vs.
Accountant General, Assam & Nagaland & Ors. (supra) at page
429 :
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“
Thus Article 299 has a distinct and different scheme
and contemplates fall freedom to the Chief Justice in
the matter of appointments of officers and servants of
the High Court and their conditions of service. These
can be prescribed by rules made by him. Apart from
the special situation contemplated by the proviso to
clause (1) the only exception is that the Governor's
approval must be sought to the extent the rules relate
to salaries, leave or pension. This exception; it is
abundantly clear, has to be made because the finances
have to be provided by the Government and to the
extent there is any involvement of expense the
Government has to approve of it.”
37.
On the aspect of arrears, learned Advocate General submitted
that considering the quantum, the burden on the public exchequer will
be huge. We did express that there is no reason to deny the arrears to
the petitioners considering that their counterparts at the Principal seat
of this Court and its Benches were given the benefit thereof from 2007
and in some posts from 2011. It was the submission of learned
Advocate General that the pay be notionally fixed in terms of the
’
recommendations of the Hon ble Chief Justice and the issue as regards
arrears could be remanded to the State Government for appropriate
consideration. Learned Advocate General assured that the State
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Government would then hold a meeting with the Officers of the
Bombay High Court and make every possible endeavour in resolving
the issue regarding arrears.
38.
We requested the learned Advocate General to look into the
matter and seek instructions from the State Government in view of the
settled legal position that the correct constitutional approach is one of
comity between different institutions working under the Constitution.
As held by the Supreme Court the emphasis is not on the supremacy of
one institution or demarcating the boundaries of the other. It is also
about ensuring institutional integrity of one while respecting the
functional domain of the other. These provisions are meant to
facilitate a dialogue of governance between high constitutional
functionaries.
39.
Considering that some of the employees have already retired
and the question pertains to total of 30 employees including the
’
Petitioners to whom the recommendations of the Hon ble Chief Justice
apply, we requested the Advocate General to seek instructions from the
State Government if the issue could be resolved here itself instead of
remanding the matter to the State Government for its consideration.
We thus had called upon the Advocate General to use his good offices in
ensuring that the matter is resolved. Learned Advocate General responded
positively and in deference to our request, on instructions, submitted that
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though he will leave the decision as regards the payment of arrears to this
Court, which the State would accept, but requested for sufficient time to pay
it considering the quantum. According to him, even the pay will have to be
re-fixed, which exercise may take some time.
40.
We find that if arrears are to be paid to the petitioners, the same
benefits also will have to be extended to nine other similarly situated
’
employees who are covered by the recommendations of the Hon ble
Chief Justice. The Registry was called upon to give an approximate
indication as regards the quantum of arrears. Learned Counsel for the
High Court submitted that on a rough estimation, the arrears will work
out to Rs.6,58,60,787/- (Rupees Six Crores Fifty Eight Lakhs Sixty
Thousand Seven Hundred and Eighty Seven). Learned Counsel
submitted that there may be increase in this amount as the calculations
are based on a rough estimation. Learned Counsel for the High Court
submitted that the aforesaid approximate financial implication w.e.f.
01.10.2007 to 31.07.2024, is done as per the Rule Committee decision.
’
41.
We find the request of the Advocate General for one year s time
to pay the arrears, reasonable. We, accordingly, direct the State
Government to re-fix the pay and pay the arrears within a period of
’
one year in terms of the recommendations of the Hon ble Chief
Justice.
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42.
Now that the State Government has agreed to accept the order
passed by this Court, the State will do the needful in complying with
the recommendations of the Hon’ble Chief Justice.
43.
We dispose of the Writ Petitions in the above terms with no
order as to costs.
Digitally
signed by
URMILA
PRAMOD
INGALE
Date:
2024.07.30
19:50:47
+0530
URMILA
PRAMOD
INGALE
VALMIKI MENEZES, J. M. S. KARNIK, J.
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