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Judgment
The Petitioner No. 1, an Association of Personal
Assistants, Private Secretaries and Senior Private Secretaries
of the High Court of Bombay, and Petitioner No. 2, working as
Senior Private Secretary to the Hon''ble Judge and Chairman of
the Petitioner No.1-Association, have invoked the writ
jurisdiction of this court, seeking issuance of a writ of
certiorari for quashing and setting aside the impugned order
dated 26.11.2013 passed by the Respondent No. 1- Law and
Judiciary Department, Mantralaya, Mumbai-32 and praying
that the Respondents be directed to re-fix the pay of the
similarly situated Personal Secretaries working at the
Principal Seat of the Bombay High Court, including its benches
by merging the special pay of Rs.400/- into their pay from the
date of their up-gradation and to have re-fixed their pay
notionally from the date on which they were promoted as
"Private Secretaries" and the benefit be conferred on them.
On amendment, the Petitioners have also sought quashing
and setting aside the communication dated 25.03.2015 issued
by the Hon''ble High Court, thereby turning down the
representation preferred by the Petitioners, by the Hon''ble
Administrative Judges Committee held on 17.03.2015.
For effective adjudication of the matter in hand, it
would be appropriate to highlight certain undisputed facts.
The Hon''ble the Chief Justice of the High Court of Judicature
at Bombay, in exercise of powers conferred by Article 229 of
the Constitution of India, has framed the Bombay High Court
Appellate Side Service Rules of 2000, to regulate the conditions
of service of the members working on the establishment of the
Hon''ble High Court. The controversy in the present writ
petition revolves around the posts of Personal Assistants /
Personal Secretaries and Private Secretaries to the Hon''ble
Judges. The Bombay High Court Appellate Side Rules 2000
provides for hierarchy amongst the said posts and prescribes
the eligibility criteria to occupy the said posts. Rule 13
provides for appointment to the post of Private Secretary to the
Hon''ble Judge and it reads as under :
"13. Private Secretary to the Hon''ble Judge - Appointment shall be by selection from amongst Personal Secretaries to the Honourable Judges who have served as Personal Secretaries for not less than 2 years. Provided they hold a University Degree, Preference being given to holders of Degree in Law.
Rule 17 makes provision for appointment of Personal
Secretary to the Honourable Judge, which reads as follows :
"17. Personal Secretary to the Honourable Judge - Appointment shall be by promotion on merit cum seniority from the Personal Assistants who have served as Personal Assistant for not less than three years.
Provided they hold a University Degree.
Rules 18 and 19 make a provision for appointment to the post
of Personal Assistant to the Honourable Judge and Court
Stenographer and the said Rules are reproduced below :
"18. Personal Assistant to the Honourable Judge - Appointment shall be on the basis of seniority -cum - suitability from amongst the Court Stenographers.
"19. Court Stenographer . - (a) Eligibility - The post shall be filled in from amongst the candidates who, -
(i) are not less than 21 y ears and not more than 35 years of age and
(ii) Possess University degree. However, this condition may be relaxed if the candidate is already working as Lower Grade Stenographer for not less than 10 years or Higher Grade Stenographer for not less than 8 years in the High Court or in any other Court or Tribunal or in the office of Advocate General or Government Pleader, Preference being given in to candidates possessing degree in law.
(iii) Possess at least speed of 120 w.p.m. In Shorthand and 50 w.p.m. in typing.
(b) Candidate shall be selected on the basis of examination in shorthand, typing and viva-voce.
(c) The Chief Justice may nominate a Judge of the High Court for supervising the process of selection of the candidates for being included in the Select List.
The hierarchy on the establishment of the High
Court thus places the "Court Stenographer" at the lowest rank
with opportunity for appointment to the post of "Personal
Assistant", to be appointed on the basis of seniority-cum-
suitability amongst the court stenographers. The next post in
hierarchy is the post of "Personal Secretary" and appointment
to the said post is to be made from amongst the Personal
Assistants on the basis of their merit-cum-seniority and from
those, who have rendered service on the post of Personal
Assistant for not less than three years. On top of the ladder is
the post of "Private Secretary", who is to be appointed from
amongst the Personal Secretaries, who have rendered services
for not less than two years, provided they hold the University
Degree, preference being given to holders of Degree in Law.
The State of Maharashtra, through the Law and
Judiciary Department, issued a Government Resolution on
18.03.2005, thereby accepting the proposal forwarded by the
Hon''ble High Court in regard to the up-gradation of 46 posts
out of 111 posts of Private Secretaries in the existing pay-scale
of Rs. 7450-225-11500 in the upgraded pay-scale of Rs.
10,000-325-15200/- and also further resolved that the
remaining 66 posts of Court Stenographer/Personal Assistant
and Personal Secretary, who were in the existing pay-scale of
of Rs.7450-11500/- will be conferred with pay-scale of Rs.
8,000-275-13500. The said revised pay-scales were made
applicable to the said post w.e.f. 01.04.2005.
On issuance of the said Government Resolution, the
High Court of Judicature of Bombay had recognized the said
post, which were upgraded and Hon''ble the Chief Justice was
pleased to convert 44 posts of Personal Secretary to the
Hon''ble Judge in the pay -scale of Rs.7450-225-11500/- plus
special pay of Rs. 400/- per month and 2 posts of the Personal
Assistant to the Hon''ble Judge in the pay-scale of Rs. 7450-
225-11500/- to the post of Private Secretary to the Hon''ble
Judge in the pay scale of Rs. 10,000-325-15200 and remaining
posts of Personal Assistant to the Hon''ble Judge and Court
Stenographer in the post of Rs.7450-225-11500/- to the post of
Personal Assistant in the pay -scale of Rs. 8000-275-13500.
The Hon''ble the Chief Justice appointed the Personal Secretary
and Personal Assistants and the Court Stenographer working
on the establishment of the High Court of Judicature at
Bombay including its benches at Nagpur, Aurangabad and at
Panji (Goa), as "Private Secretary" to the Hon''ble Judge and as
the "Personal Assistant" to the Hon''ble Judges w.e.f.
01.04.2005.
The Petitioners Association includes Personal
Secretaries who were upgraded to the post of Private
Secretaries and placed in the pay-scale of Rs.10,000-325- 15,200. The Petitioners are aggrieved by the action of the
Respondent of fixing the pay of the employees who were
previously working as Personal Secretaries and who have
been upgraded as Private Secretaries by not taking into
account the special pay of Rs.400/- paid to the said employees
in the erstwhile post of Personal Secretaries, as part of the
basic pay fixation of their pay in the upgraded post of private
Secretaries. The Petitioners preferred a representation to the
Registrar of the High Court and prayed for treating special pay
of Rs. 400/- as part of their basic pay in the upgraded post.
The representation preferred by the petitioners was rejected
on 05.09.2006. Three writ petitions came to be filed before
the Aurangabad Bench of the Bombay High Court, assailing the
said action of the Respondents, in not granting the benefit to
merge of special pay of Rs.400/- on upgradation as private
secretaries. The lead petition which was taken up by the
Hon''ble High Court, Bench at Aurangabad was writ petition
No. 7596 of 2006 field by the petitioner Ajay K. Losarwar and
two other petitions were preferred i.e. writ petition No. 6231
of 2010 filed by Shir N. D. Kulkarni and writ petition No.
7404 of 2010 filed by P.N. Kulkarni. The Aurangabad Bench
of the High Court decided all the three writ petitions by a
common judgment delivered on 17.08.2012. By the said
judgment the Hon''ble High Court at Aurangabad Bench
allowed all the petitions and issued directions to the
administration to merge the amount of Rs. 400/- per month
received by the petitioner i.e. Personal Secretaries in the basic
wage of the petitioners in the respective cadre and to re-
determine their wages as Private Secretaries in the pay-scale
of Rs. 10000-15200. The said exercise was directed to be
completed within the period of four months. The Hon''ble High
Court, after referring to various provisions of the Maharashtra
Civil Services (Revised Pay) Rules, 1998, arrived at a
conclusion that the pay of Rs. 400/- per month to the
petitioners was/is neither special pay nor personal pay but it
was a grade pay of the Personal Secretaries. The High Court
concluded that the pay of respective petitioners was rightly
fixed by merging the amount of Rs. 400/- before undertaking
the promotional fitment and therefore, action of recovery of
the amount from one of the petitioners was not justified. In
case of the petitioner in writ petition no. 7596 of 2006, the
Court held that the petitioner is entitled to have his fixation
redetermined by adopting this equation.
On the judgment rendered by the Hon''ble High
court at Aurabgabad Bench, the State of Maharashtra
appealed to the Hon''ble Supreme Court, by filing a special
leave petition which was numbered as Special Leave to Appeal
(Civil) CC 4053/4055 of 2013. The Hon''ble Apex Court by
the order dated 22.02.2013 was pleased to dispose of the
special leave petition, by making following observations :
"Delay condoned.
Heard learned Counsel for the petitioners at length.
Although, strictly speaking, in law it would appear that the claimants, the writ petitioners, had been erroneously paid in excess of the salary due, yet in the peculiar facts and circumstance of this case, we are not inclined to interfere with the order passed by the High Court. We are not inclined to take this view in order to avoid any hardship to the petitioners from whom the excess amount paid, is sought to be recovered. We, however, make it clear that
the order passed by the High Court shall not be treated as a precedent in future.
With these observations, the special leave petitions are disposed of."
The members of the Petitioners Association again
preferred a representation to the Registrar General on
27.02.2013, seeking extension of the benefits of the
judgment of the Aurangabad Bench of the Hon''ble High Court
to the similarly situated persons and a reference was made to
the judgment of the Hon''ble Apex Court. In the meantime,
the State of Maharashtra addressed a communication to the
Hon''ble High Court on 7.03.2013, seeking details of the
persons who were eligible to avail the benefits in terms of
the judgment of the Aurangabad Bench and also inquired
about the financial implications involved in the matter. A
reply was forwarded by the Registry of this Court on
16.03.2013, thereby intimating to the Principal Secretary of
Law and Judiciary Department, Mantralaya, that if the benefits
in terms of the judgment delivered by the Aurangabad Bench
was to be extended, it would incur an additional financial
implication of Rs. 44,05,122/-. The Registry of the High
Court, however, invited the attention of the State Government
to the observations made by the Hon''ble Apex Court while
disposing of the special leave to appeal vide (civil) CC
4053/4055 of 2013, wherein it had been made clear that the
order passed by the High Court shall not be treated as
"precedent" in future. On receipt of the said communication,
the Law and Judiciary Department in the State of Maharashtra
issued an order on 26th November, 2013, which is impugned in
the present writ petition. By the said order the Law and
Judiciary Department, after making reference to the opinion
of the finance department, declined to consider the request of
extension of the benefit of the judgment of the Aurangabad
Bench to the similarly situated employees of the High Court
by observing that in the light of the opinion of the finance
department and the order of the Hon''ble Supreme Court
dated 22.02.2013, cannot be treated as "precedent" in other
cases and hence did not accept the request of the petitioners
and ruled that the ratio of the judgement dated 17.08.2012
delivered by the Hon''ble High Court at Aurangabad Bench
cannot be made applicable to the other private secretaries on
the establishment of the High Court.
The Petitioner Association again forwarded
representations dated 10.12.2013 and 06.01.2014 to the
Registrar General, reiterating its request. It was canvassed by
them that they cannot be refused the relief extended to other
employees who were similarly situated and the order of the
Hon''ble Apex Court would not come in their way of granting
the benefits. However, since the petitioners did not receive
any communication on consideration of the representations,
they approached this court by filing the present petition in the
month of February, 2014.
During the pendency of the said writ petition, this
Hon''ble Court on 30th January, 2015, after taking note of the
order passed by the Hon''ble Apex Court, issued a direction to
decide the representation, without going into the question of
interpretation of the terms, "shall not be treated as precedent" and observed that if the representations made by the
Petitioners is disposed of by the High Court, then it would not
be necessary to go into that question. The Hon''ble Division
Bench of this court, therefore, made a request to the Hon''ble
Chief Justice to look into the representations made by the
petitioners despite pendency of the writ petition and
requested the said representation to be considered under
Article 229 of the Constitution of India.
The Hon''ble High Court took a decision on the said
representation and the decision was communicated to the
counsel for the petitioners by the Registrar (Legal and
Research) High Court, Appellate Side, Mumbai on 25.03.2015.
The contents of the said letter are reproduced below :
"With reference to the subject noted above, I am to inform you that the aforesaid Representations were placed in the meeting of the Hon''ble Administrative Judges Committee, which was held on 17th March, 2015 wherein the following decision was taken:-
Discussed.
Having considered the order of the Hon''ble Supreme Court as referred to in the order dated 30th January, 2015 of the Division
Bench of this Court in Writ Petition No. 2134 of 2014 (at page 95 of the paper book), it was decided not to accept the representation. However, this decision will not prevent the Association from making appropriate representation to the State Government.
The Registry to take follow-up action."
The Petitioners also assailed this communication, by seeking
an amendment, which was allowed by this court.
We have heard Shri Ramesh Ramamurthy, learned
counsel appearing for the petitioners and Ms. Geeta Shastri,
Additional Government Pleader appearing on behalf of the
Respondent Nos. 1 and 2.
Shri Ramamurthy for the petitioners would argue
before us that the members of the petitioners'' association who
were working as Private Secretaries to the Hon''ble Judges
came to be upgraded and the pay-scale which was made
applicable to the Personal Secretaries and Personal Assistants
in the pay-scale of Rs.7450-11500/- was upgraded to
Rs.10,000 - 15200/-. It is contended by Shri Ramamurthy
that the post of Personal Secretary had initially carried a pay
of Rs. 680/-, which pay-scale is lower than the post of Court
Stenographer or Personal Assistant, started with pay of Rs.
750/. The Court Stenographer satisfying seniority cum-
suitability could become a Personal Assistant and a graduate
Personal Assistant with two years of experience was entitled to
be promoted as a Personal Secretary, as per merit cum-
seniority test. The end point or stage in the pay-scale / wage
structure of the Personal Secretary was, therefore, Rs. 1250/-
which was in excess of Rs. 100/- as compared to the other
two cadres. It is submitted by Shri Ramamurthy that on
01.01.1986 all the three cadres were conferred with the same
pay-scale but a special pay of Rs. 200/- was given to the
Personal Secretaries, which was enhanced in the year 1996 at
Rs.400/- so as to compensate them for removal of more basic
at the end of the wage structure. He would argue that this was
made with an intention/purpose to remove stagnation in
absence of any promotional avenues. It is the contention of
Shri Ramamurthy that an amount of Rs. 400/- which was paid
to the Personal Secretaries, in view of the peculiar
circumstances became a part of their basic pay and therefore,
their fixation in higher upgraded pay-scale needs to be done by
taking into consideration the amount of Rs. 400/- as a part of
their basic pay. According to Shri Ramamurthy, the
Aurangabad Bench had considered the issue in the right
perspective and has held that the amount of Rs. 400/- is not a
special pay but is a part of the basic pay conferred on the
Personal Secretaries to the Hon''ble Judges in the pay-scale,
who were conferred with the pay-scale of Rs.7450-11500. He,
therefore, placed heavy reliance on the judgment delivered
at Aurangabad Bench and he would argue that the non-
extension of the benefits flowing from the said judgment in
favour of the members of the Association of the Petitioners
and the Petitioner No.2 would result into discrimination since
the benefit has been conferred on Shri A.K. Losarwar and two
other employees namely S/Shri N. D. Kulkarni and
P.N.Kulkarni, who were similarly situated as that of the
members of the Petitioners Association. He would therefore
argue that denial of the benefit to the members of the
Petitioners Association, who are similarly placed as of the
Petitioners before the Aurangabad Bench in whose favour the
relief came to be granted, would violative of Article 14 of the
Constitution of India and would violate the principles of "equal
pay for equal work", since the nature of the duties discharged
by the members of the Petitioners Association are similar to
the one discharged by the Petitioners before the Aurangabad
Bench.
As against the arguments of the learned counsel for
the Petitioners, Additional Government Pleader Ms. Geeta
Shastri, on behalf of the State, justified the communication
issued by the Law and Judiciary Department and she relies
on the affidavit filed by the Joint Secretary of the Law and
Judiciary Department on 9th July, 2013 and also a compliance
affidavit filed by the Joint Secretary, Law and Judiciary
Department on 16th January, 2016. Ms. Shastri submits that
the Petitioners are the personal Secretaries working in the
Hon''ble High Court and they were given special pay of Rs.
400/- while they were working on the post of personal
Secretaries. According to her, the High Court of Judicature at
Bombay, in pursuance of the Government Resolution issued
on 18.03.2005, converted 44 posts of personal Secretaries to
the Hon''ble Judges in the pay-scale of Rs. 7450- 11500/- plus
special pay of Rs. 400/- to the posts of Private Secretary and
two posts of Personal Assistants in the pay-scale of Rs. 10,000
- 15,200/- to that of Private Secretary. She would submit that
the Hon''ble High Court, Bench at Aurangabad had granted
the relief in favour of the petitioners, who had approached
the court, seeking reliefs of inclusion of special pay of Rs.
400/- in the basic pay and thereafter, their fixation of pay in
the higher pay-scale. However, she would draw our attention
to the order passed by the Hon''ble Apex Court while disposing
of the special leave petition filed by the State Government,
challenging the judgment of the High Court at Bench of
Auranghabad and she would lay special emphasis on that
part of the order of the Apex Court, where the Apex court
made it clear that the order passed by the High Court shall not
be treated as "precedent" in future. She also invites our
attention to the communication from the Registrar General of
the Bombay High Court about the financial implications that
would be required to be borne by the State Government, if the
benefit of the Aurangabad Bench Judgment, was extended
to the petitioners. According to her, the finance department
had clearly opined that the benefit of the judgment of the
Hon''ble High Court at Aurangabad Bench cannot be extended
to any other employees except to Shri A.K. Losarwar, N. D.
Kulkarni and P.N.Kulkarni. On merits, she would submit that
the special pay conferred on an employee is never taken into
consideration while granting further pay on promotion and
according to her if this is permitted to be done, it would in
contrast to the provisions and to the manner in which the
fixation of the pay scale is to be done. She would also submit
that the prayer of the petitioners to grant special pay and its
merger into the basic pay is contrary to the provisions of the
re-fixation of the particular pay-scale and based on this basic
principal of fixation of pay-scale the State Government has
rejected their representations and it was so communicated to
the petitioner no.1 on 3rd December, 2015.
We have also heard Advocate Shri S. R. Nargolkar,
appearing for the Bombay High Court. He places reliance on
affidavit-in-reply filed on behalf of the Respondent Nos. 3 and
4 and he would argue that in view of the order passed by the
Hon''ble Apex Court in Special Leave Petition filed by the
Government of Maharashtra, the Petitioners cannot claim
relief on the basis of the judgment delivered by the
Aurangabad Bench of the Bombay High Court. According to
him except relying on the said judgment, the petitioners have
failed to make out any independent case for grant of any
relief in their favour for merger of "special pay of Rs. 400/-"
apart from the basic pay while fixing the pay of the Personal
Secretary. He would justify the decision taken by the
Administrative Committee of the Hon''ble High Court and
submits that the same do not suffer from any illegality or
impropriety and he prays for dismissal of the writ petition.
On perusal of the Maharashtra Civil Services Pay
Rules, 1981 which are framed in exercise of powers conferred
by the proviso to Article 309 of Constitution of India and are
applicable to the members of service of Government of
Maharashtra, we have noted some terms which have been
assigned meaning thereunder. The term "Pay" in Section 9(36)
reads as under : -
(36) "Pay" means the amount drawn monthly by a
Government servant as -
(i) the pay (including special dearness pay) which
has been sanctioned for a post held by him substantively or
in an officiating capacity, or to which he is entitled by
reason of his position in a cadre; and
(ii) Personal pay, and special pay; and
(iii) any other emoluments which may be specially classed
as pay by Government.
Further the term "Personal Pay" is defined in Rule 9 (41)
reads as follows :-
(41) Personal pay means additional pay granted to a
Government servant -
(a) to save him from a loss of substantive pay in
respect of a permanent post other than a tenure post due to
revision of pay or due to any reduction of such substantive
pay otherwise than as a disciplinary measure;or
(b) in exceptional circumstances, on other personal
considerations.
Further 9 (48) defines the term "Special Pay" as below :
(48) "Special pay" means an addition, of the nature of
pay, to the emoluments of a post or of a Government
servant granted in consideration of -
(a) the specially arduous nature of the duties.
(b) a specific addition to the work or responsibility.
Thus, from the aforesaid definition, "pay" is an amount drawn
by Government servant monthly as Pay which has been
sanctioned for the post held by him and also includes personal
pay and special pay and any other emoluments which are
classified as pay by Government. The Government servant,
when occupies a post is paid a consolidated sum as pay which
includes the pay applicable to the said post including the
dearness pay, his personal pay and special pay and if there are
any other emoluments which are classified as pay by the
Government. Thus, he is entitled for a consolidated sum under
all these heads and takes the said sum as his "pay" per month.
When such a Government servant holding a post
either in substantive, temporary or officiating capacity gets
either promoted or appointed in a substantive temporary or
officiating capacity to any other post, his pay is fixed in the
manner prescribed in Rule 11 of the Maharashtra Civil Services
Pay Rules. The said Rule prescribes the manner in which the
pay of a Government servant is to be fixed in a situation when
he is promoted or appointed in a substantive, temporary or
officiating capacity to a new post which either involves
assumption of duties or responsibility of greater importance
than those attached to the old post or in a contingency if the
new post does not involve such assumption. Rule 11 is the
guiding factor for resolving the present case in hand and would
be required to be invoked in order to consider whether the
petitioners are entitled for the relief which they have sought.
Rule 11 (1) (2) of the Maharashtra Civil Services (Pay) Rules,
1981 is relevant for effective adjudication of the matter and it
is reproduced as below :-
Fixation of pay on appointment to another post: Save as provided in rules 12, 13, 14, 17 and 20 where a Government servant holding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a substantive, temporary or officiating capacity, to another post including an ex-cadre post, his initial pay shall be regulated as follows :-
(1) When appointment to the new post involves assumption of duties or responsibilities of greater importance than those attaching to the old post and -
(a) if he is holding a post not higher than a Class II post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued and in the case of a Government servant drawing pay at the maximum of the pay-scale by an amount equivalent to the last increment; and
(b) if he is holding a post higher than a Class II post, he will draw as initial pay the stage of the time-scale next above his pay in respect of the old (lower)post.
(2) If the appointment to the new post does not involve such assumption:-
(a) if there is a stage in the time-scale of the new post which is equal to his pay in the old post, he shall draw pay at that stage;
(b) if there is no such stage, he will draw pay at the stage next below his pay in the old post plus personal pay equal to the difference;
(c) in either of these two cases he will continue to draw that pay until such time as he would have received an
increment in the time-scale of the old post, or till he would earn an increment in the time-scale of the new post, whichever is earlier;
(d) if the minimum of the time-scale of the new post is higher than his pay in the old post, he will draw that minimum as initial pay.
The claim of the petitioners is that when they were
working on the post of Personal Assistant and Personal
Secretary to the Hon''ble Judges of the High Court, they were
held entitled for a Special Pay of Rs.200/- from the year 1986
and for Rs.400/- from the year 1996. The pay scale of the
petitioners was fixed by taking into consideration the pay band
of Rs.7450-225-11500 plus the Special Pay of Rs.400/-. Thus,
the monthly pay of the petitioners is to be fixed by calculating
the stage where a particular petitioner in the capacity as
Personal Secretary to the Hon''ble Judge has reached and this
was inclusive of the special pay and their pay to be fixed in the
new pay band. The grievance which the petitioners are making
before the Court is on up-gradation of their post to the post of
Private Secretary in the pay scale of Rs.10,000-325-15200/-,
they should be placed in such a manner and at a stage that
they are not deprived of the pay which they were getting as
Personal Secretary. The grievance of the petitioners is that the
special pay of Rs.400/- which they were availing throughout
when they were working on the post of Personal
Assistant/Personal Secretary which was part of their pay
should be inclusive and when they step up at a stage of up-
gradation in the pay-scale of Rs.10,000-325-15200, their
advancement in the said scale should start from the pay which
they were earning in the erstwhile post of Personal Assistant /
Personal Secretary and this should include the special pay of
Rs.400/-.
It is not in dispute that the Personal Secretary were
enjoying the pay scale of Rs.7450-225-11500+Special Pay of
Rs.400/-. The Maharashtra Civil Services defines the term
"Special Pay" which we have reproduced above to mean a pay
which is a addition of the nature of pay to the emoluments of a
post or of a Government servant granted in consideration of
the specially arduous nature of duties and specific addition to
the work or responsibility. We need not deliberate as to how
the and why the State Government has conferred this Special
Pay to the said post in the year 1986 and made it applicable to
the post of Personal Secretary / Personal Assistant. The State
Government on 25/10/1982 created two cadres i.e. Personal
Secretary and Private Secretary and since then there existed
four cadres on the establishment of High Court (i) Court
Stenographer and (ii) Personal Assistant (both carrying pay
scale of Rs.750-1150) (iii) Personal Secretary 680-1250 and
(iv) Private Secretary in Pay Scale of Rs.1000-1500/-.
The cadre of Personal Secretary was created with a
view to remove the stagnation created by the first two feeder
cadres in the same pay scale i.e. Court Stenographer and
Personal Assistant. On 01/01/1986 these two cadres and the
promotional cadre of Personal Secretary were placed in the
same pay scale i.e. 2375-3500 with Special Pay Rs.200/- for
peculiar post of Personal Secretary. The Cadre of Private
Secretary was placed in the Pay Scale of Rs.3000-4500.
Further with effect from 01/01/1996 the first three cadres
were placed in the pay scale of Rs.7450-11500 and Special Pay
of Personal Secretary was raised to Rs.400/- per month. The
Personal Secretary therefore continued to avail the benefit of
the Special Pay of Rs.400/- till their upgradation to the post of
Private Secretary to the Hon''ble Judges in the pay scale of
Rs.10,000-325-15200 in pursuance of the Government
Resolution dated 18/3/2005. By the Government Resolution
dated 18/3/2005, the State Government had permitted
upgradation of 46 posts out of total 111 posts of Personal
Assistant and Personal Secretary work in the pay scale of
Rs.7450-11500 in the pay scale of Rs.10000-15200. By the
same Government Resolution the remaining Stenographers /
Personal Assistant / Personal Secretary remaining 65
Stenographers / Personal Secretary were upgraded from
Rs.7450-11500 to Rs.8000-13500/-. The said pay scales were
made applicable from 01/04/2005.
The High Court of Judicature, in pursuance of the
Government Resolution dated 18/03/2005 through the Hon''ble
Chief Justice was pleased to convert 44 posts of Personal
Secretary to the Hon''ble Judges in the existing pay scale of
Rs.7450-225-11500 plus Special Pay of Rs.400/- and two posts
of Personal Assistants to all Hon''ble Judges in the existing Pay
scale of Rs.11550 to the post of Private Secretary to the
Hon''ble Judges in the pay scale of Rs.10,000-325-15200. Thus,
there is conversion of the post of the petitioners who are
holding the post of Personal Secretary and Personal Assistant
to the post of Private Secretary and they are conferred with the
pay scale of Rs.10,000-325-15200. Members of the petitioners
Association holding the post of Personal Secretary, came to be
upgraded to the post of Private Secretary, carrying a Higher
Pay scale in the scale of Rs.10000-325-15200. It is not the case
of the petitioners as made out in the writ petition nor is it
argued by Mr Ramamurthy that the post of Personal Secretary
results into assumption of duties or responsibilities of Greater
Importance than those were attached to the post of Personal
Secretary/Personal Assistants. Perusal of the Bombay High
Court Appellate Side Service Rules 2000 reflects that the post
of Private Secretary is to be filled in by selection from amongst
Personal Assistants to the Hon''ble Judges who have served as
Personal Assistants for not less than two years. It cannot be
said that the post of Private Secretary is higher in
responsibilities as compared to the post of Personal Secretary
and in fact looking back at the existence and progression of this
post is concerned, the post of Private Secretary was in Higher
Pay Scale than that of Personal Assistant/Personal Secretary
and it is probably to compensate the holders of the post of
Personal Assistant and Personal Secretary who could not be
considered for selection to the post of Private Secretary, the
number of posts being limited, were compensated by
conferring with a special pay of Rs.200 from 01/01/1986 and
Rs.400 from 01/01/1996. From 01/01/1986 the post of Court
Stenographer / Personal Assistant and the post of Personal
Secretary were placed in the same pay scale of Rs. 7450-225-
11500 with special pay of Rs.200/- for Personal Secretary. On
this revision of pay, the Private Secretaries were placed in
Higher Scale i.e. Rs.3000-4500 from 01/01/1996. All the three
posts namely Court Stenographer/Personal Assistant / Personal
Secretary were placed in the pay scale of Rs. 7450-11500 to
Rs.8000-13500/- and special pay was conferred on personal
Secretary to the extent of Rs.400 per month. An order was
issued by the High Court of Judicature in pursuance of the GR
dated 18/03/2005 by which 44 posts of Personal Secretary
were converted to the post of Private Secretary and two posts
of Personal Assistants were converted to the post of Private
Secretary with commensurating pay of Rs.10000-325-15200.
Thus, the petitioners who were working as Personal Secretary
came to be appointed by conversion of their post as Private
Secretary and the post of Private Secretary being new posts
are entitled to be governed and their pay to be fixed in terms of
Rule 11 of the Maharashtra Civil Services Pay Rules, 1981.
Pertinently, no objection was raised by the State Government
at the stage of conferment or grant of the special pay despite
the financial implications being clear. The payment was
made to the knowledge of the State Government and for years
together. It is unfortunate that such an objection, as noted
above, is being raised only when the posts of Personal
Secretary were converted to Private Secretary. Despite
being fit for promotion these Secretaries could not be awarded
the same and, therefore, the above decision was taken. That
is an incentive and encouragement with an expectation that
they continue to work with same zeal and devotion and to
remove stagnation.
Since it is not the case of the petitioners that the
post of Private Secretary involves assumption of duties or
responsibilities of greater importance than that of Personal
Secretary, the fixation will have to be processed in terms of
sub-clause (2) of Rule 11. Since the appointment of the
petitioners to the post of Private Secretary does not involve
assumption of duties or responsibilities of greater importance
than those attached to the old posts, the pay fixation is done by
following sub-rule 2 of Rule 11. In case of the petitioners,
clause (a) is inapplicable since in the time scale in the new
post, the petitioners may not be able to find a stage equal to
their earlier stage. However, it can be calculated and their pay
has to be fixed by taking into consideration clause (b) and
clause (c). Pertinently, clause (b) of sub-rule 2 of Rule 11
employs the word "pay". By its very definition it is a inclusion
of both personal and special pay. The special pay which the
petitioners were getting would get converted into a personal
pay equal to the difference in the amount which particular
incumbent would draw at a stage next below his pay in the old
post and the personal pay would protect the loss of any
substantive pay caused to him on account of applying clause
(b) of sub-rule (2). In any case, the personal pay means an
additional pay granted to a Government servant to save him
from loss of substantive pay in respect of his post due to
revision of pay or due to any reduction of such substantive pay
and therefore the particular incumbent would stand protected
by treating the different amount as personal pay and by virtue
of clause (c) of sub-rule (2) of Rule 11, the incumbent would
continue to get that pay only till such time he would earn an
increment in the time scale of new post. The basic principle of
pay fixation being not to confer any undue benefit on any
Government servant on one hand and being not to deprive a
Government servant of pay which he would have otherwise
been entitled to by virtue of his reaching a particular stage in a
time scale. By this principle, members of the petitioner-
association are entitled to have their pay fixation done by
applying Rule 11 sub Rule 2 (b) and (c).
It is trite law and we are aware of the same that
the fixation of pay is an executive function and we are aware of
the limitations on our powers to interfere in the same. It is,
however, equally well settled that this court would not hesitate
to interfere when it is found that such an act/decision is
unreasonable, unjust and pre-judicial to a section of employees
and deprives them of the benefits due to them by ignoring
relevant and material factors. We are inclined to interfere and
consider the grievance raised by the present petitioner
association merely on the ground that by not counting amount
of Rs.400/- which was special pay conferred on the petitioners
who are working as a personal secretary to the Hon''ble Judges
and not including the same into their pay in the next upgraded
post of Private Secretary, resultantly the members of the
petitioner association would be entitled for a payment of an
amount which is less than the last pay drawn by them. From a
perusal of the Service Rules which we have reproduced above
it can be deduced that pay is essential consideration for the
services rendered by an employee and it includes various
components like pay, special spay, personal pay etc. As per the
concise Oxford Dictionary the definition of the word "pay" in
its ordinary significance in relation to service mens "to give
what is due for service done". Though in service jurisprudence,
the term pay is assigned a definite connotation and is inclusive
of various components and as noted by us in terms of Rule 9
(36) which we have quoted above it includes pay, personal pay
and special pay. The whole genesis of service jurisprudence
being not to deprive a Government servant of an amount which
he has entitled to on account of his devoted service rendered to
the State Government, under the guise of his re-fixation in a
different pay scale, though even in a higher pay scale. A
Government servant is entitled to draw an amount of monthly
salary not less than what he had last drawn and he should not
be put to a disadvantageous position under the guise that the
post on which he is working is upgraded.
The Hon''ble Apex Court dealing with a similar situation
in case of Union of India & Ors. -Vs- B. Anil Kumar & Ors.
reported in 2010 (6) Supreme Court Cases 419 was confronted
with a situation when an identical rule was found in Rule FR
22 AL which is similar to Rule 11 of the pay rules which we
have quoted above. The Hon''ble Apex Court observed in paras
18, 19 & 20 as below :
"18. The contention of the appellants, however, is that the respondents, who were Investigators as on 1-1- 1986 and were promoted to the post of Assistant Superintendent after 1-1-1986, would not be covered under Rule 7(1)(B) of the 1986 Rules and that on such promotion their pay would be fixed under FR 22(I)(a)(1), the relevant portion of which is quoted hereinbelow:
"22.(I) The initial pay of a government servant who is appointed to a post on a timescale of pay is regulated as follows-
(a)(1) Where a government servant holding a post, other than a tenure posts, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant recruitment rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty-five only (now Rs.100), whichever is more".
A plain reading of FR 22(I)(a)(1), quoted above, would show that where a government servant holding a post is promoted to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, "his initial pay in the timescale of the higher post" shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued. Thus, on promotion to a post carrying duties and responsibilities of greater importance, a government servant is entitled to his initial pay "in the timescale of the higher post". In the present case, the higher post to which the respondents were promoted after 1-1-1986 was the post of Assistant Superintendent. If, therefore, the special pay of Rs.75 as has been awarded by the Board of Arbitration is for the higher post of Assistant
Superintendent, the respondents would be entitled to the benefit of special pay, but if the special pay was only for the Assistant Superintendents then serving, and not for the post of Assistant Superintendent, the respondents would not be entitled to the benefit of special pay having been promoted after 1-1-1986.
"Special pay" has been defined in FR25 as "an addition, of the nature of pay, to the emoluments of a post or of a government servant, granted in consideration of
(a) the specially arduous nature of the duties; or
(b) a specific addition to the work or responsibility."
Hence, special pay can be attached to either "a post" or "a government servant".
The Hon''ble Apex Court further observed in paragraph 22 and
23 as follows
"22. In our considered opinion, the 1986 Rules and FRs 22 and 25 have to read consistently with the equality clauses in Articles 14 and 16 of the Constitution and so read, all the Assistant Superintendents who are performing the same nature of duties and responsibilities would be entitled to the special pay and to deny such benefit of special pay to the respondents, who have been promoted to the post of Assistant Superintendents after 1-1-1986, would violate Articles 14 and 16 of the Constitution. In support of this view, we may now cite the authorities.
In M.P. Singh V. Union of India this Court held : (SCC p.599, para 10)
"10. From the foregoing discussion it emerges that the special pay that was being paid to all the officers in the cadre of Sub-inspectors, Inspectors and Deputy Superintendents of Police in the Central Investigating Units of the Central Bureau of Investigation has nothing to do with any compensation for which the deputationists may be entitled either on the ground of their richer experience or on the ground of their displacement from their parent departments in the various States, but it relates only to the arduous nature of the duties that is being performed by all of them irrespective of the fact whether they belong to the category of the ''deputationists'' or to the category of the ''non-deputationists''. That being the position, the classification of the officers working in the said cadres into two groups, namely, deputationists and non- deputationists for paying different rates of special pay does not pass the test of classification permissible under Articles 14 and 16 of the Constitution of India since it does not bear any rational relation to the object of classification."
We have carefully perused the order passed by the
Hon''ble Apex Court on writ petition filed by the State
Government before it, challenging the judgment delivered by
by the Aurangabad Bench of this court. We are aware that
the Division Bench judgment of this Court delivered at
Aurangabad and cited before us by Shri Ramamurthy is
directed not be treated as a precedent by the Hon''ble Supreme
Court of India. We are mindful of the legal consequences of
such a direction. While it may not amount to a direction to
completely ignore or brush aside the judgment of a co-ordinate
Bench, yet, such a direction means that its operation was
confined and limited to those parties in whose legal
proceedings the judgment has been delivered. Therefore, we
have not rested our findings and conclusions only on the
reasoning of the Division Bench at Aurangabad. We have,
independent of that judgment, considered the rival contentions
and materials placed before us. By our independent
appreciation and appraisal of these materials, we are of the
opinion that the petitioners deserve to be granted the relief.
Our reasoning is based on the reading and analysis of the
rules, the communications placed on record and the facts as
culled out from the pleadings in the petition.
All these materials having been considered by us
independent of the conclusions reached by a co-ordinate
Bench of this Court, we are of the opinion that the Writ
Petition deserves to be allowed. We are thus not blindly
following the judgment of this Court. Our reasoning and
conclusions are independent thereof, but lead to the same
conclusion. We are not in agreement with Ms. Shastri that the
direction of the Hon''ble Supreme Court of India would mean
that even in deciding a similar issue and dealing with a similar
question, we cannot arrive at our independent conclusion and
while we do so, we are necessarily following and applying the
judgment of a co-ordinate Bench
Applying the aforesaid principle laid by the Hon''ble
Apex Court, we do not feel that the members of the Petitioner
Association and the Petitioner No.2 who was working as a
Personal Secretary to the Hon''ble Judges and who were
conferred with a special pay since 01/01/1986 in the earlier
pay revision, can be deprived the special pay which has become
part of their pay, on their upgradation to the post of Private
Secretary in a higher pay scale of Rs.10,000-325-15,200/-. By
applying the principle as provided in Rule 11 (1) (a) sub Rule 2
(b) and (c) the pay scale of the members of the petitioner
association who are working as Personal Secretary, who were
upgraded to the post of Private Secretary can be fixed by
making them eligible to earn a pay at the stage next below
their pay in the old post and the differential amount would be
carried by them as a personal pay. They would be entitled to
continue to draw that pay until such time as they receive
increment in the time scale of new post or that of the old post
which ever is earlier. Ultimately, actual calculations would
have to be drawn by the High Court being its employee and
accordingly the arrears due and payable to the petitioner be
calculated and paid to the petitioner forthwith.
In the light of the aforesaid discussion we are of the
high view that the Writ Petition deserves to be allowed and the
petitioners are entitled for fixation of pay scale in the post of
Private Secretary to be revised by merging the Special Pay of
Rs.400/- with effect from 01.04.2005 i.e. the date from which
the post were upgraded and the benefits accruing thereof be
paid to the petitioners as expeditiously as possible. We quash
and set aside the impugned order dated 26 th November, 2013
passed by the Respondent No.1 Department of Law and
Judiciary and also set aside communication dated 25 th March,
2015 issued by the Respondent No.3. The Writ Petition is
allowed in view of aforesaid terms. No order as to costs.