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Judgment
R.S. Mongia, J.—This judgment of ours will dispose of C.W.P. No. 18877 of 1991, as also C.W.P. No. 13655 of 1991, as common
questions of law and fact are involved in both these petitions. For facility of reference, facts of the former writ petition are being adverted to.
Petitioners. Sarvshri S.K. Sardana and M.S. Sullar, were directly recruited to the Haryana Superior Judicial Service (hereinafter called the
''Service'') and appointed as Additional District Judges on 23rd August, 1989 and 24th August, 1989 respectively, in the pay scale of Rs. 3,200--
4,700. The Petitioners claim the grant of pay scale of Rs. 4,100--5,300, which according to them, was being given to the officers who were
promoted to the Service from the Subordinate Judicial Service (Selection Grade), on the principle of ''equal pay for equal work''.
It may be noticed here that when the Petitioners had joined the Service, all the members of the Service, whether appointed by direct recruitment or
by promotion from the Subrodinate Judicial Service, were given the same pay scale of Rs. 3,200--4,700. Prior to that the time scale of the
members of the Service was Rs. 1,200--2,000, but on the basis of the recommendations in the Fourth Pay Commission''s report, the same was
revised to Rs. 3,200--4,700 with effect from 1st January, 1986. The pay scale of the members of the Haryana Subordinate Judicial Service was
also revised on the basis of the Fourth Pay Commission''s report and they were given the time scale of Rs. 2,200--4,000 and after completion of
five years'' service, the members of the Haryana Subordinate Judicial Service were entitled to be placed in the pay scale of Rs. 3,000--4,500.
Further, a selection grade of Rs. 4,100--5,300 after completion of 12 years of service was provided for 20 per cent of the posts in the
Subordinate Judicial Service.
One Shri P.L. Goyal, a member of the Haryana Subordinate Judicial Service was in the Selection grade of Rs. 4,100--5,300. On 4th May,
1988, he became a member of the Haryana Superior Judicial Service, on being promoted as Additional District and Sessions Judge. A day prior
to his date of promotion, i.e. 3rd May, 1988, said Shri Goyal, as a member of the Subordinate Judicial Service (Selection Grade), was drawing
basic pay of Rs. 4,475 in the pay scale o. Rs. 4,100--5,300, which, as observed above, was the Selection grade of the Subordinate Judicial
Service. On promotion to the Superior Judicial Service on 4th May, 1988, he was placed in the then existing pay scale (time scale) of Rs. 3,200--
4,700, and his pay was fixed at Rs. 3,825. However, the difference in the basic pay and the pay he was actually drawing was protected as his
''personal pay'' to be adjusted against annual increments or till he was confirmed in the Superior Judicial Service whichever was earlier. The
decrease in the pay scale and the loss of annual increments was made the subject-matter of challenge in this Court by said P.L. Goyal by filing
C.W.P. No. 16385 of 1989. The said writ petition was allowed by a Division Bench of this Court, on 30th May. 1990, and the judgment is now
reported as P.L. Goyal v. The State of Haryana and Ors. 1990 (5) S.L.R. 108. It may be observed that the challenge was also made regarding
the vires of Rule 13(1) of the Punjab Superior Judicial Service Rules, 1963 (as applicable to the State of Haryana). While allowing the writ
petition, the Divisional Bench observed as under:
For the reasons recorded above, we allow the writ petition and declare Rule 13(1) of the Rules to be ultra vires Articles 14 and 16 of the
Constitution of India and direct that the Petitioner and other similarly situated members of the Haryana Superior Judicial Service shall continue to
get the pay scale of Rs. 4,100--5,300 which they were getting immediately before being promoted to the Superior Judicial Service. This Court can
only remove the discrimination and this is the only way open to us to do so. Accordingly, we issue a writ of mandamus that the Petitioner would
continue to get the pay scale of Rs. 4,100--5,300 even on promotion made on 4th May, 1988 and his arrears in accordance with this judgment
and order be paid within a reasonable time, not later than four months from the receipt of this order. Similarly situated other members of the
Haryana Superior Judicial Service would also get the benefit of this judgment and similar order and directions are issued in their behalf as well. The
Petitioner will have his costs which are quantified at Rs. 1,000.
As regards providing proper pay scale and to frame the necessary rules in that behalf, we direct the State Government to do as early as possible
and it will be reasonable for the State Government to create the grade of Rs. 4,500--5,700 for the members of the Haryana Superior Judicial
Service as suggested by this Court on the administrative side and since a direction is now being issued on the judicial side, we have no doubt that
this time the Government would consider the matter favourably without delay.
In pursuance of the above judgment of this Courts all officers who had been promoted to the superior judicial service from the subordinate Judicial
Service (Selection Grade), were placed in the nay scale of Rs. 4,100--5,300 and their pay was fixed accordingly. As observed earlier, the
Petitioners who are direct recruits in the Superior Judicial Service, claim parity with the promotee Officers from the Subordinate Judicial Service
(Selection Grade), so far as their pay scales are concerned.
The learned Single Judge, who heard the petition, by his order dated 4th May, 1993, referred the case for decision by a larger Bench, as
according to him the point involved in the case was an important point of law and not only Superior Judicial Service but other services also were
likely to be affected by the decision of this Court. That is how the matter has been placed before us.
Much of the sting in the arguments of the learned Counsel for the Petitioners has been taken away by the two notification issued during the
pendency of the writ petition, to which reference at this stage would be necessary. First notification is dated 6th July, 1993, [published in the
Haryana Government Gazette (Extra.), dated July 6, 1993], by which Rule 13 of the Punjab Superior Judicial Service Rules, 1963 (as applicable
to the State of Haryana), was amended. The same is reproduced below:
These rules may be called the Punjab Superior Judicial Service (Haryana Second Amendment) Rules, 1993.
In the Punjab Superior Judicial Service Rules, 1963, in Rule 13,--
(a) for Sub-rule (1) the following sub-rule shall be substituted and shall be deemed to have been substituted with effect from the 1st day of January,
1986, namely:
(1) The scale of pay of the members of the Service, other than those placed in the selection grade, shall be Rs. 3,200--100--3,700--1,25--4,700-
-150--5,600 or as revised from time to time by the Haryana Government. The pay in the aforesaid a scale shall (sic) fixed in accordance with the
Punjab Civil Services Rules, Volume I, Part I, as applicable to the State of Haryana and instructions that have been issued or may hereinafter be
issued by the Government with regard to fixation of pay.
(b) for Sub-rule (2), the following sub-rule shall be substituted, namely:
(2) Notwithstanding anything contained in Sub-rule (1), the initial pay of a direct recruit, shall be fixed in the permissible time scale after allowing
one increment for every two completed years of practice at the Bar beyond the practice of ten years provided in Clause (ii) of Sub-rule (1) of Rule
9, subject to a maximum of five increments:
Provided that while making calculation of length of practice at the Bar, the fraction of 0.5 or above shall be taken as a whole number.
After reconsidering the matter, a uniform pay scale of Rs. 3,200--5,600 created by the above notification for the promoted Officers as well as for
the direct recruits of the Haryana Superior Judicial Service was made effective retrospectively, with effect from 1st January, 1986, by a subsequent
notification.
The learned Counsel for the Petitioners submitted that according to the judgment of this Court in P.L. Goyal''s case (supra), the time scale of the
Superior Judicial Service has to be higher than the Selection grade of the-Subordinate Judicial Service. According to the learned Counsel, the time
scale of Rs. 3,200--5,600 of the Superior Judicial Service is lower than the Selection grade of Rs. 4,100--5,300 available to the members of the
Subordinate Judicial Service. It was argued that the vice and the discrimination pointed out in Rule 13 of the Superior Judicial Service Rules, in
P.L. Goyal''s case still subsisted; There was still discrimination between a promotee Officer from the Subordinate Judicial Service (Selection
Grade) arid-a direct recruit to the Superior Judicial Service in spite of the notification dated 6th July, 1993, by which the pay scale of Rs. 3,200--
5,600 was granted both to the promotees as well as direct recruit Officers to the Superior Judicial Service. It was also argued by the learned
Counsel for the Petitioners that for seeing as to which pay scale is higher between the two scales, the initial pay in the particular scale i.e. the
minimum of the pay scale has to be seen and not the maximum.
The learned Counsel on behalf of the Respondents, on the other hand submitted, that,--vide notification dated 6th July, 1993, the pay scale of
both promotee Officers from the Selection Grade as well as direct recruits to the Superior Judicial Service, had been made equal with effect from
1st January, 1988 and both had been placed in the pay scale of Rs. 3,200--5,600. In other words, there was no pay scale of Rs. 4,100--5,300 in
existence for the promoted Selection Grade Officers to the Superior Judicial Service with effect from 1st January, 1986. All officers who were in
the Selection grade of Rs. 4,100--5,300 in the Subordinate Judicial Service and were promoted to the Superior Judicial Service, have been placed
in the pay scale of Rs. 3,200--5,600 and their pay has been accordingly fixed depending on the basic pay they were drawing in the Selection
grade of Rs. 4,100--5,300 in the Subordinate Judicial Service. The learned Counsel for the Respondents further argued that for seeing as to which
pay scale is higher out of the two pay scales, the maximum of the pay scale is to be taken into consideration and not the minimum of the pay scale,
and, accordingly, the pay scale of Rs. 3,200--5,600 was higher than the pay scale of Rs. 4,100--5,300 in support pf his submissions, the learned
Counsel referred to the criteria laid down by Government of India, Ministry of Finance, which is to the following effect:
Determination of higher posts for pay fixation. The criteria for determination of relative degree of duties and responsibilities of two posts for the
purpose of fixation of pay, was laid down by Government of India, Ministry of Finance (Department of Expenditure) in their letter No. 434.
EIII(A)/64, dated 4th April, 1964.
(a)---
(b)---
(c) As between two posts, say A and B, post B shall be deemed to carry higher duties and responsibilities than, those attached to post A-(i) If the
maximum of the time-scale of pay of post B is higher than the maximum of the time scale of pay of post A and the rate of increment in, the time-
scale of pay of post B is also higher/equal to the rate of increment in the time-scale of post A, and (ii) if the maximum of the time-scale of pay of
post B is the same as that of post A, provided that the rate of increment in the time-scale of pay of post B is higher than the rate of increment in the
scale of pay of post A.
The learned Counsel also pointed out that in various Services, the Selection grade of the feeder post is higher than the time of the of the
promoted post. He referred to pay scales of the members of the Punjab Civil Service (Judicial Branch)(Selection Grade) and the Selection grade
of the feeder post is higher than the time-scale of Punjab.
Pay Scales of members of the P.C.S. (Judicial Branch) with effect from 1st January, 1986:--(Feeder Post for Superior Judicial Service)
Time scale Rs. 2,200-4,000.
Senior Scale (After completion of 8Rs. 3,000--4,500.
years'' service).
Selection Grade (After completion Rs. 4,125--5,6001
of 18 years'' service).
Pay Scale of Punjab Superior Judicial
Service:
Time Scale -- Selection Grade (After Rs. 3,000--
completion of 8 years'' service). 5,600. Rs.
5,000--700.
Pay Scale of H.C.S. Executive Branch
(Feeder Post for I.A.S.)
Selection Grade -- Rs. 4,100--
5,300.
Pay Scale of I.A.S. Officers
Time Scale -- Rs. 3,200--
4,700.
Pay Scale of D.S.P. in Haryana (Feeder
Poet for I.P.S.)
Selection Grade of D.S.P. Rs. 4,100--
5,300.
Pay Scale of I.P.S.
Time Scale -- Rs. 3,000--
4,500.
From the above illustrations, the learned Counsel for the Respondents wanted to emphasise that it is not necessary that the time-scale of the
promoted post must be higher than the selection grade of the feeder post.
After hearing the learned Counsel for the parties, we are of the view that in view of the amendment of Rule 13 of the Punjab Superior Judicial
Service Rules, 1963 (as applicable to Haryana), made effective from 1st January, 1986, the Petitioners cannot make any grievance that the pay
scale of promoted Officers to Superior Judicial Service and that of a direct recruit is in any way more. Both categories have been placed in the
identical pay scale of Rs. 3,200--5,600 with effect from 1st January, 1986. The effect of the notification is that with effect from 1st January, 1986,
as if there was no pay scale of Rs. 4.100--5,300 in the Superior Judicial Service for the promotee officers from the Subordinate Judicial Service
(Selection Grade). Hence there is no discrimination between the promotees and the direct recruits, so far as their pay scales are concerned. We
are further of the view that the pay scale of Rs. 3,200--5,600 is higher than the pay scale of Rs. 4,100--5,300, as it is the maximum of the pay
scale which should determine as to which scale is higher between the two. Even according to the criteria laid down by the Central Government, it is
the maximum of the pay scale which determines as to which post is higher and carries higher duties and responsibilities. A person who is promoted
from the Selection grade of the Subordinate Judicial Service to Superior Judicial Service, who may be getting even the maximum of Rs. 5,300
would get further annual increments up to Rs. 5,600 in the time scale of Rs. 3,200--5,600.
From the illustrations of the pay scales of various Services, including the Judicial service in the State of Punjab, it would be seen that the time
scale in the higher post is sometimes less than the Selection grade of the lower post. We are not opining as to whether the same is justifiable in law
or not, but the fact remains that there are certain posts whose time scale is less than the Selection grade of the lower post.
For the foregoing reasons, we find no merit in these petitions and the same are hereby dismissed. However, there will be no order as to costs.