Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2853 OF 2022
1. Arvind Gopalrao Basutkar, adult, Former Principal Secretary and
2. Jayant V Gangakhedkar, adult, Former Deputy Registrar, residing at A-2/202 Omkar CHS Ltd., Chikuwadi, Padma Nagar, Borivli West, Mumbai 400 092
3. Iqbal Adam Gadkari, residing at Room No. 37, 4th Floor, Madina Manzil (Mazgaon Konkan Co- op Housing Soc Ltd), Husain Patel
Marg, Mazgaon, Mumbai 400 010
Prabhadevi Road, Mumbai 400 025
5. Uma Narayan, adult, working as Deputy Registrar, residing at C-305, Palm Court
Complex, Link Road, Malad (W), Mumbai 400 064
6. Kiran Tulsidas Bobade, residing at Building No. 11, Flat No. B-
10, 2nd Floor, Government Colony, Haji Ali, Mahalaxmi, Mumbai 400 034
7. Prakash V Gurav, residing at 401/B, A-Wing, Jaihari
CHS, Krantiveer Vasantrao N Naik
Marg, Grant Road (West), Mumbai 400 026
8. Shilpa S Naik, residing at 402, Bhavi Darshan, JP
Nagar, Road NO. 2, Near Swati Studio, Goregaon (East), Mumbai 400 063 …Petitioners
~
1. Registrar General, High Court at Bombay, Mumbai
3. Principal Secretary, Finance Department, Mantralaya, Mumbai 400 032
4. Principal Secretary, Law and Judiciary Department, Mantralaya, Mumbai 400 032 …Respondents
APPEARANCES for the petitioners Mr Ravi Gadagkar, with Arya
Gadagkar, i/b Aniket Ransubhe. for respondents nos. 1 and 2
Mr Rahul Nerlekar. for respondent- state
Mr Milind More, Addl. GP.
DATED : 10th March 2023
ORAL JUDGMENT
1. The Petition is specially assigned to this Bench. Rule. There is an Affidavit in Reply. The State Government is represented. Rule returnable forthwith. Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors
2. The eight Petitioners are aggrieved by what they describe as a failure of this Court on its administrative side to apply a set of rule and guidelines equally and uniformly to eligible officers on the Original and Appellate Sides of this Court. We reproduce prayer clauses (a), (a)(i) and (a)(ii): “(a) This Honourable Court in its jurisdiction under Article 226 of the Construction of India may be pleased to issue a writ of Certiorari or any other writ, order or direction in the nature of Certiorari calling for the representations made by the Petitioners (Exhibits F, G, H and I); the guidelines to be followed for grant Selection Grade (Exhibit D hereto); and implemented by granting the Selection Grade to the Officers on the Original Side; as also the entire records and proceedings in respect of one Officer on the Appellate Side and after perusal of the same:
(i) issue a writ of Mandamus or any other writ, order or direction in the nature of Mandamus directing Respondent No.1 to extend the benefit of Selection Grade to Petitioners No.1, as per the guidelines approved and made applicable to the officers on the Original Side as per Exhibit“D”;
(ii) issue a writ of Mandamus or any other writ, order or direction in the nature of Mandamus directing Respondent No.1 to frame guidelines to be followed to grant and extend the benefit of Assured Career Progression-II (ACP-II) to Petitioner Nos. 2 to 8 and extend the said benefits to them.”
3. Mr Gadagkar for the Petitioners has filed detailed written submissions. These are taken on record.
4. Mr Gadagkar first submits that the prayers in the Petition are perhaps not as felicitously worded as they ought to have been. He Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors points out from his written submissions that the case is squarely one of invidious discrimination, arbitrariness in classification without a rational, or even discernible, nexus to the object of the applicable rules and guidelines — in other words, a case that falls under Article 14 of the Constitution of India. The complaint is about continuing a disparity or imbalance in pay scales that are, by law, made applicable to officers, both judicial and non-judicial, on both the Original and Appellate sides of this Court. There is no claim to a particular post or to any particular posts; the only contention is about implementing a statutorily mandated equivalence in pay.
5. What prayer clause (a) really seeks is that the guidelines that have been framed at Exhibit “D” as applicable to officers on the Original Side of this Court be made applicable to officers on the Appellate Side of this Court; and that the guidelines be applied forthwith to officers on both sides of the High Court establishment. Prayer clause (a)(i) is specific to the 1st Petitioner because he had a distinct position equivalent to that of an entry-level District Judge. Prayer clause (a)(ii) is again less than felicitously worded. It really seeks the extension of an Assured Career Progression-II (“ACP- II”) to officers on both the Appellate Side and Original Side of the High Court.
6. As presented, the Petition is a straightforward Article 14 challenge. It says that certain named officers were conferred benefits but for others similarly situated or placed, identical benefits were not conferred. That conferment has been kept pending for many years. The conferment of benefit on a few officers could not have Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors been done by exercising some unknown ‘discretion’ in favour of select persons without making the same conferment applicable to others in the class. Across the Bar, it is also pointed that some who have succeeded, or been later appointed to, the posts occupied by those who received this ‘special’ benefit have been given the benefit too. In other words, certain individuals were given the benefit, and this continued to their successors-in-office. Yet, others in the class have been denied these pay-scale benefits.
7. The Petitioners are all Class-I Gazetted officers who held or hold posts as Registrars and Deputy Registrars. Some of them have been promoted to their present posts.
8. The Bombay High Court does have a distinction between its Appellate Side and Original Side. This is a jurisdictional distinction because the Bombay High Court is conferred with an original jurisdiction under the Letters Patent. This means that some specified types of lawsuits or legal actions can be directly filed in this Court, on its Original Side, as a court of first instance. This requires, for logistical and administrative reasons, a separate, dedicated Registry to manage the affairs on the Original Side. Such Original Side work includes matters in the testamentary jurisdiction, suits (both commercial and non-commercial), and a variety of other subjects. The appellate jurisdiction, like the one exercised by the Benches at Aurangabad and Nagpur, is not — with some exceptions — not a court of original jurisdiction. It primarily exercises appellate jurisdiction over the district judiciary. Again, this is geographically divided for convenience because the Aurangabad and Nagpur Benches have their own territorially defined appellate jurisdictions. It is only the principal seat at Mumbai that has an original jurisdiction.
9. The 1st Respondent is the Registrar General of the High Court. The other Respondents are functionaries of the State.
10. On 21st March 1996, the Government of India, pursuant to a decision in a group of review petitions filed by the Union of India and several State Governments (seeking a review of directions issued by the Supreme Court in All India Judges’ Association v Union of India and Ors[1] and later directions in All India Judges’ Association and Ors v Union of India and Ors[2] ) set up the first National Judicial Pay Commission under the Chairmanship of Hon’ble Mr Justice K Jagannatha Shetty (“The Shetty Commission”). That commission made several recommendations in its Report dated 11th November
1999. In a follow up decision in All India Judges’ Association and Ors v Union of India and Ors,[3] the Supreme Court found the recommendations of the Shetty Commission fair and reasonable and said these should be accepted.
11. In April 2009, the Supreme Court appointed the one-man Justice E Padmanabhan Commission, which made recommendations in regard to pay scales of judicial officers (in service and retired), on the basis of the Shetty Commission report and recommendations.
12. The State of Maharashtra implemented the Shetty Commission recommendations. These recommendations inter alia related to pay scales, allowances, perquisites and so forth.
13. On 7th August 2013, a Division Bench of this Court delivered judgment in Adeline Rodrigues & Ors v State of Maharashtra & Ors.[4] Ms Rodrigues was for a long time an Associate on the Original Side of this Court and later rose to be for many years the Prothonotary and Senior Master of this Court. The Division Bench directed a revision of pay scales, allowances and perquisites as recommended by the Shetty Commission and said that these had to be made applicable to the judicial officers on the Original Side of the High Court. The Hon’ble Chief Justice of Bombay High Court, exercising powers vested in him under Article 229(2) of the Constitution of India, effected an amendment to Rule 3(b)(i) of the Bombay High Court Original Side Service Rules 2002. Pursuant to this, the pay scales, allowances and perquisites including retirement benefits and service conditions in respect of Original Side officers were revised. These were brought on parity or on par with judicial officers in the State. Arrears of pay were also to be paid with retrospective effect from 4th July 2003. Guidelines for the grant of what is called Selection Grade and Super Time Scale to Original Side officers also came to be framed.
14. By an order of 13th April 2018, another Division Bench of this Court in Arvind Gopalrao Basutkar & Ors v State of Maharashtra & Ors[5] noted a statement made on behalf of the State Government that 4 (2013) 6 Mah LJ 14.
5 Writ Petition No. 1712 of 2016. Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors as regards the revision of pay scales, allowances and perquisites recommended by the Shetty Commission to judicial officers in the State and implemented by the State Government, these would be made applicable to the officers on the Appellate Side of the Bombay High Court as well.
15. The 1st Petitioner was appointed as a Principal Secretary to the Hon’ble the Chief Justice on 7th June 1996. He retired on 30th April 2011. Another person was appointed as the Registrar/Principal Secretary to the Hon’ble the Chief Justice on 27th March 2008. This person was granted the Selection Grade with effect from 2013 although he was junior to the 1st Petitioner. Following the adoption of the guidelines and the conferment of Super Time Scale and Selection Grade on the Original Side, the then Prothonotary and Senior Master, an officer on the Original Side was also granted the benefit of the Super Time Scale. Similarly, an Additional Prothonotary and Senior Master on the Original Side was given the benefit of Selection Grade with effect from 18th February 2015. These are noted in paragraphs 3(h) and (i) of the Petition.
16. Petitioners Nos. 2 to 8 have received the benefit of Assured Career Progression-I (“ACP-I”) at the time of fixation of their respective pay after the Service Rules were amended. But there is no application of ACP-II.
17. On 19th April 2019, the Petitioners made their first representation to the 1st Respondent seeking that guidelines be framed to decide the grant of Super Time Scale, Selection Grade Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors and ACP-II to the officers on the Appellate Side. These, they said, should follow the lines of the Original Side guidelines. There was no response, the Petitioners say, for about a year and a half. A copy of this representation is at Exhibit “F”.
18. A second representation followed on 6th October 2020 (Exhibit “G” to the Petition). Here the Petitioners pointed out that at some point in April 2019 the then Registrar/Principal Secretary to the Chief Justice had been granted the benefit of the Selection Grade and had been paid arrears too. Yet, the Petitioners’ representations were without response. Even the second representation met with no response.
19. This led to the Petitioners filing a third representation on 8th March 2021 (Exhibit “H”) referring to the previous two representations and seeking redress. There is even now no answer. Hence this Petition.
20. Individual representations have also been separately made. The 5th Petitioner has made a separate representation on 5th November 2020 saying that she had completed five years of continuous service as a Deputy Registrar in the pay scale of the Civil Judge, Senior Division in the first stage of ACP-I on 18th March 2020 and was therefore entitled to the pay scale of the Civil Judge, Senior Division in the second stage of ACP-II. There seems to be no response to that either.
21. The Bombay High Court Appellate Side Service Rules 2000 were amended in April 2018 by the insertion of Rule 3(b)(i). This revision related to pay scales, allowances and perquisites including retiral benefits and service conditions as periodically revised and made applicable. A copy of the amendments in the Bombay High Court Appellate Side Service Rules 2000 Appellate Side Rules are at Exhibit “A” with a translation provided at page 35A. The notification in that regard is at Exhibit “B” from pages 36 to 37.
22. Following the amendment, revised pay scales with all admissible allowances and perquisites were payable to officers on the Appellate Side of the Bombay High Court with retrospective effect from 4th July 2003. However, there were no guidelines in regard to the conferment of a Selection Grade / Super Time Scale or relating to ACP-II for Appellate Side officers although these had been framed and made applicable to officers on the Original Side. For completeness, in regard to Selection Grade and Super Time Scale the tabulation provided below sub-paragraph (f) at pages 11 and 12 of the Petition may be referred. This shows that Selection Grade and Super Time Scale is not applicable to every single officer but to a defined percentage. There are other requirements as well including a review of performance standards before these can be granted. The question is not of the grant or not grant but of making these provisions applicable at all or in the first place.
23. A brief analysis of the relevant provisions is necessary at this stage. The Maharashtra Judicial Service Rules, 2008[6] were slightly
6 Notification dated 25th August 2008, published on 27th August 2008. Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors amended in 2010 (to include Government Pleaders, Additional and Assistant Public Prosecutors but not a full-time and salaried Public Prosecutor). Rule 3 in Chapter II deals with the ‘Constitution of the Service’. It is said to be constituted with effect from 1st July 1996. Rule 3 contains two tables. Rules 3, 4 and 5 read:
3. Constitution of the Service— (1) There shall be constituted a State Service known as the Maharashtra State Judicial Service and such service shall be deemed to have been constituted with effect from the 1st day of July 1996. (2) The service shall consist of the cadres specified in column (2) of the Schedule appended herewith and the character and number of posts in each of those cadres shall be as specified in the corresponding entries in column (3) thereof. (3) With effect from the date of commencement of these Rules, the existing cadres specified in column (2) of the TABLE ‘A’ below, shall stand designated as the cadres specified in the corresponding entries in column (1) thereof and initially they shall constitute the service, namely— TABLE ‘A’ (1) (2) (a) District Judges (i) District Judges;
(ii) Additional District
(iii) Principal Judge,
Additional Principal Judge and Judges of City Civil and Sessions Court, Mumbai (b) Senior Civil Judges (i) Chief Metropolitan Magistrate; (1) (2)
(ii) Additional Chief
(iii) Judges of Court of Small
(iv) Civil Judges, Senior
(c) Civil Judge, Junior Division (i) Civil Judge, Junior
Division. (4) Selection Grade District Judges and Super Time Scale District Judges.— The High Court shall confer Selection Grade and Super Time Scale on merit-cumseniority basis to the officers in the cadre of District Judges as indicated in the TABLE ‘B’ below, namely:— TABLE ‘B’ Total Number of Officers eligible (3) Selection Grade Five years of service as District Judges. 25% of the cadre strength of Super Time Scale Three years of service as Selection Grade District Judges. 10% of the cadre strength of Upon conferment of such Selection Grade or Super Time Scale, such District Judges shall be called “Selection Grade District Judges” or “Super Time Scale District Judges”, as the case may be. (5) Assured Career Progression Scales: Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors i) A Civil Judge, Junior Division or a Senior Civil Judge shall be entitled to be considered for conferment of the First Assured Career Progression Scale on completion of five years of service as Civil Judge, Junior Division or a Senior Civil Judge, as the case may be, if,— (a) he has not been promoted; (b) the High Court finds him fit to be conferred with Assured Career Progression Scale and his performance as reflected in annual confidential reports is not less than average;
(ii) A Civil Judge, Junior Division or Senior Civil Judge shall be entitled to be considered for Second Assured Career Progression Scale on completion of ten years of service as Civil Judge, Junior Division or Senior Civil Judge, as the case may be, if,— (a) he has not been promoted; (b) the High Court finds him fit to be conferred with Second Assured Career Progression Scale and his performance as reflected in annual confidential reports is not less than “Good” for a continuous period of five years commencing from any year after he gets the First Assured Career Progression Scale: Provided that no Judicial Officer shall be entitled to get the benefit of Assured Career Progression Scale–I or Assured Career Progression Scale–II, if— i) his integrity is doubtful; ii) more than once warning or caution is issued against him; Note: Mere “advice” would not amount to “warning” or “caution”; iii) any of the minor penalties as mentioned in Rule 5(1)(i) to (iv) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 is inflicted against him even on one occasion; iv) his average disposal for more than one year within the span of five years is found to be “inadequate”; v) he is retired compulsorily or gets retirement voluntarily, even after the relevant span of five years and if his case is pending for consideration for such benefit; vi) for any other reason the High Court finds him unfit to be conferred with Assured Career Progression Scale–I or Assured Career Progression Scale–II: Provided further that if the probation period of the Judicial Officer is extended, the grant of Assured Career Progression Scale–I or Assured Career Progression Scale–II shall be deferred proportionately to commensurate with the extended probation period.
24. Read together, these Rules tell us, in sequence: (i) the cadres of service; (ii) the eligibility for Selection Grade and Super Time Scale; and (iii) Assured Career Progression Scales–I and II and the conditions for application of each.
25. Amendments to the Appellate Side Service Rules 2000 were effected on 31st March 2018 by a Government Resolution in the following terms: Amendment in Bombay High Court, Appellate Side Service Rule, 2000 Government of Maharashtra Law and Judiciary Department, Government Resolution No: Miscellaneous-2014/Case No. 201/Ka-6 Mantralaya, Mumbai — 400 032, Dated 31st March, Reference:— 1) Letter dated 6th September, 2014 of the Appellate Side, Bombay.
2) Government Resolution No. HCT- 2009/Case No. 141/ Ka- Three, dated 22nd October, 2010.
3) Order dated 7th August, 2013 passed by the Hon’ble High Court in Writ Petition No. 868 of 2008.
4) Order dated 18th November, 2013 passed by Hon’ble Supreme Court in Special Leave Petition No. 33079 of 2013. Government Resolution:— In accordance to the Order dated 18th November, 2013 passed by Hon’ble Supreme Court in Special Leave Petition No. 33079 of 2013, a detailed discussion was held in cabinet meeting dated 15th March, 2018 in respect of granting the revised pay scales to the Registrar/Principal Secretary to the Hon’ble the Chief Justice and Deputy Registrars (In Service and Retired) of the Hon’ble Bombay High Court (Appellate Side) and its Benches. The Government has decided that the pay scales mentioned in the below statement be made applicable to the Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors said Officers w.e.f. 4th July, 2003 as recommended by Hon. Shetty Commission. Designation Unrevised Pay scale (Before 6th Pay Commission Revised pay scale (From 4.7.2003 to 31.12.2005) Revised Pay scale (From 1.1.2006)
1. Registrar 14300-400- 16750-400- 19150-450- 51550-1230- 58930-1380-
2. Registrar/ Principal Secretary to the Hon’ble the 16750-400- 19150-450- 51550-1230-
3. Deputy Registrar12000-375- 14200-350- 15950-400- 43690-1080- 49090-1230-
2. Therefore, the Government is granting approval for insertion of Rule 3-(b)(i) in Bombay High Court, Appellate Side Service Rule, 2000 after Rule 3(b) as mentioned hereinafter. Rule 3(b)(i):- “The posts mentioned at Sr. Nos. 2 and 3 (designated as Registrars and Honourable the Chief Justice respectively vide Notification No. B 1509/2000, dated 22nd August 2005) shall carry pay scales of District Judge Entry Level and post mentioned at Sr. No. 4 shall carry pay scale of Senior Civil Judge ACP–I with admissible allowances and perquisites including retirement benefits and service conditions as Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors may be revised and made applicable from time to time.”
3. The Registrar (Law and Research) High Court, Appellate Side shall take further action to issue the notification as per the draft provided in the annexure annexed herewith, for the necessary implementation of Bombay High Court (Appellate Side) Amended Service Rules, 2018.
4. The said Government Resolution is being issued in according to the consent of the Finance Department received vide an Informal Reference No. 22/2018/ Service- 9 dated 15th January, 2018. Sd/- (Suhas Chavan) Upper Secretary, Government of Maharashtra”
26. The amendment was notified on 3rd April 2018.
27. On 16th July 2018, the Registrar-General issued a circular referencing the GR of 31st March 2018 saying that Registrars, Registrars/Principal Secretaries to the Chief Justice and Deputy Registrars (working at and retired from) the High Court, Appellate Side were entitled to all allowances and perquisites admissible under Shetty Commission/ Padmanabhan Commissions, as periodically revised. A list of the allowances and perquisites was set out.
28. Following the 7th August 2013 judgment in the Adeline Rodrigues case referred to above, the Bombay High Court Original Side Rules 2002 were amended. Rule 3(bi) was added, and it Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors corresponds exactly with the Appellate Side Service Rule 3(b)(i). The amended Original Side Service Rule reads: “Rule (bi) The post mentioned at Sr. No. 1 shall receive the pay scale of District Judge, Selection Grade and posts at
┌───────────────────────────────────────────────────────────────────────────┐ │ Serial Nos. 2 to 5 shall receive the pay scale of District │ │ Judge, Entry Level and post at Serial Nos. 6, 7 and 9 to 14 │ │ and one post at Serial No. 15 shall receive the pay scale of │ │ Senior Civil Judge, ACP–I with admissible allowances and │ │ perquisites including retirement benefits and service │ │ conditions as may be revised and made applicable from time │ │ to time.” │ │ The statement showing posts at Sr. No. 1, 2 to 5 and │ │ applicable pay scale and equivalent cadre is as under: │ │ TABLE – A │ │ Sr. Post on the Original Equivalent Cadre Pay Scale (in │ │ No. Side Rupees)2 │ ├───────────────────────────────────────────────────────────────────────────┤ │ 1 Prothonotary and District Judge, 57700-1230- │ │ Senior Master Selection Grade 58930-1380- │ │ 67210-1540- │ │ 70290/- │ │ 2 Addl. Registrar, District Judge, 51,550-1230- │ │ Original Side / Entry Level 58930-1380- │ │ Additional 63070/- │ │ Prothonotary and │ │ Senior Master │ │ 3 Official Assignee District Judge, 51,550-1230- │ │ Entry Level 58930-1380- │ │ 63070/- │ │ 4 Commissioner for District Judge, 51,550-1230- │ │ Taking Accounts Entry Level 58930-1380- │ │ 63070/- │ │ 5 Court Receiver District Judge 51,550-1230- │ │ Entry Level 58930-1380- │ │ 63070/- │ │ In view thereof, the benefits of pay scale of Shetty │ │ Commission and Padmanabhan Commission are extended │ │ to the aforesaid Officers on the Original Side. So also, │ │ benefits of Super Time Scale and Selection Grade is also │ │ Page 19 of 34 │ │ 10th March 2023 │ │ Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors │ │ 1-OSWP-2853-2022-F.doc │ └───────────────────────────────────────────────────────────────────────────┘
shall receive the pay scale of District Judge, Entry Level and post at Serial Nos. 6, 7 and 9 to 14 and one post at Serial No. 15 shall receive the pay scale of Senior Civil Judge, ACP–I with admissible allowances and perquisites including retirement benefits and service conditions as may be revised and made applicable from time to time.” The statement showing posts at Sr. No. 1, 2 to 5 and applicable pay scale and equivalent cadre is as under: TABLE – A Sr. No. Post on the Original Side Equivalent Cadre Pay Scale (in Rupees)2
1 Prothonotary and Senior Master District Judge, 67210-1540- 70290/- 2 Addl. Registrar, Original Side / Additional Prothonotary and
5 Court Receiver District Judge 63070/- In view thereof, the benefits of pay scale of Shetty Commission and Padmanabhan Commission are extended to the aforesaid Officers on the Original Side. So also, benefits of Super Time Scale and Selection Grade is also Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors required to be extended to the aforesaid officers at par with the District Judge Selection Grade and Entry Level as per the provisions of the Maharashtra Judicial Services Rules,
2008. Rule 4 of the Maharashtra Judicial Services Rules, 2008 (as amended up to 13.02.2014) reads as under: TABLE – B Cadre Eligibility Total Number of Officers eligible Selection Grade Five years of service as District Judges 25% of the cadre strength of District Judges Selection Grade Three years of service as Selection Grade District Judges 10% of the cadre strength of District Judges Taking into account post of Prothonotary and Senior Master which is at par with District Judge Selection Grade and the post of (i) Addl. Registrar (O.S.) / Addl. Prothonotary and Senior Master, (ii) Official Assignee, (iii) Commissioner for Taking Accounts and (iv) Court Receiver, which are at par with District Judge Entry Level, guidelines for conferment of Super Time Scale and Selection Grade Scale are as under: Cadre Eligibility Total number of officers eligible Super Time Scale Three years of service to the equivalent post having pay scale of District Judge Selection Grade or Prothonotary and Senior master having completed 3 years of service. 10% of cadre strength of equivalent post having pay scale of District Judge At least one service rating not less than “very good” and not less than “good” for the remaining years. The Annual Confidential Reports, Cadre Eligibility Total number of officers eligible Leave and Late Attendance Records for three years for grant of Super Time Scale, so also, SID report, may be taken into consideration for ascertaining eligibility for conferment of Super Time Scale. Scale Five years of continuous service as Addl. Prothonotary and Senior Master / Official Assignee/ Commissioner for Taking Accounts / Court Receiver having pay scale of District Judge Entry Level, as the case may be. 25% of cadre strength of equivalent post having pay scale of District Judge Entry Level Three “good” service ratings out of five years and other two, not less than “average” for the remaining years; Annual Confidential Reports, Leave and Late Attendance Records for five years for grant of Selection Grade Scale, so also, SID report, may be taken into consideration for ascertaining eligibility for conferment of Selection Grade Scale.
29. As to ACP–I and ACP–II, the Maharashtra Judicial Services Rules extracted above show that a Civil Judge Junior Division or a Senior Civil Judge is entitled to be considered for ACP–I on completing five years of service as Civil Judge Junior Division or a Senior Civil Judge. ACP–II is applicable once they complete 10 Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors years in service. Thus, a Senior Civil Judge is initially placed at the ‘entry-level’ pay scale; then, after five years, he is assured ACP–I; and after a further five years, to ACP–II. Of course, the ACPs are not unconditional; the qualifying criteria must be met. Mere longevity in service is no assurance of ACP–I or ACP–II. In the High Court, once the amended service rules are applied, a person who is granted (by the service rules) the pay scale of a Civil Judge Senior Division at the inception must be entitled to ACP–II pay scales consistent with the Maharashtra Judicial Services Rules, i.e., after five years, and not any longer or shorter time. ACP–II eligibility is to be reckoned as five years from the date the person gets ACP–I. For the High Court, it is important to note that an employee serves for no less than 25 years to reach the level of a Deputy Registrar. This is why Deputy Registrars were placed in ACP–I and not in the entrylevel pay scale. Once they are at the ACP–I level, they cannot be made to languish there for a period longer than the law permits, i.e., more than five years. That would be contrary to the Maharashtra Judicial Services Rules. Indeed, it would render nugatory the very purpose of placing Deputy Registrars at the ACP–I level in the first place.
30. Once uniform pay scales are made applicable, extending beyond five years the time required to be spent by Deputy Registrars at the ACP–I would be a form of hostile discrimination violating Article 14 of the Constitution of India.
31. Further, once there is a demonstrable parity between the Appellate Side and Original Side Service Rules, there is no room for refusing to officers on one side the benefits of pay scale revisions Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors and guidelines applicable to officers on the other side. We also do not understand how the framing of ‘guidelines’ can be used as a device to make service benefits inapplicable either by excluding some persons or by extending the time for qualification of the next stage.
32. Appellate Side officers are almost invariably judicial officers drawn from the State Judicial Services. They hold ex-cadre posts. Many officers on the Original Side are, or can be, and have in the past known to be, non-judicial officers, i.e., not from the State judiciary but drawn from their respective feeder cadres. This is true of the offices of the Prothonotary and Senior Master, Additional Prothonotary and Senior Master, Official Assignee, Commissioner for Taking Accounts, the Court Receiver, Assistant Prothonotary and Senior Master and so forth. From the beginning, there was— and certainly should be—a practice of being able to move officers from one side to the other depending on the needs. The implementation of the Shetty Commission recommendations for “judicial officers” created a peculiar anomaly. As we noted at the beginning, the position of the Original Side of the High Court is somewhat unique and is shared by only a few other Chartered High Courts in the country. The fact that the staffing on the Original Side is and can be drawn from non-judicial officers is what led to the anomaly. The Shetty Commission made its recommendations applicable to judicial officers. Non-judicial officers, such as those on the Original Side of the High Court were not provided for. But it is precisely this discrepancy or imbalance that was rectified by the judgment of this Court in the Adeline Rodrigues case That decision brought both sides to parity when it said that there was no meaningful distinction or classification to be made between officers Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors on the Original and Appellate Side. Paragraphs 14 to 16 of the Adeline Rodrigues decision read:
14. In our view, Respondent No. 1 and 3 have committed an error of law which is apparent on the face of record and which is contrary to the law laid down by the Apex Court. It is surprising that Respondent No. 3, Principal Secretary, Law and Judiciary and Respondent Nos. 1 and 2 have taken a very callous and casual attitude while rejecting the directions given by the Hon’ble Chief Justice. Perusal of Article 229 clearly reveals that Hon’ble Chief Justice has the sole prerogative of fixing the pay-scales and salaries of the employees of the High Court and it is not open for the State Government to brush aside the directions given by the Hon’ble Chief Justice under Article 229 of the Constitution of India. We are pained at the language used by the Respondents in their affidavit-in-reply, which, in our view, is not only contemptuous but falls nothing short of committing contempt of this Court, particularly after directions were given by the Hon’ble Chief Justice under Article 229 of the Constitution of India. The Article envisages that not only the appointments of Officers and Servants of the High Court shall be made by the Chief Justice but even the conditions of service of Officers and Servants of the High Court shall be such as may be determined by the Rules framed by the Chief Justice. In the present case, it is an admitted position that Maharashtra Civil Services Rules have been adopted by the Hon’ble Chief Justice and this fact was brought to the notice of Respondent No. 1. The Hon’ble Chief Justice of this Court had directed the Prothonotary to inform the decision taken by the Chief Justice to the Respondents. However, Respondent Nos. 1 to 3 have not complied with the directions which were given by the Hon’ble Chief Justice. The attitude of Respondent Nos. 1 and 3 is reflected from Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors the language used in the affidavit in reply. In para 6 of the Affidavit in reply, Joint Secretary Pradeep Bavkar has stated as under:— “6 … It is not known as to what exercise or homework was done before the decision regarding revision of pay scales was taken…” It is true that subsequently when the learned Advocate General appeared, the said observations were sought to be withdrawn by filing another affidavit-in-reply. Be that as it may, the said language clearly indicates the attitude of Respondent No. 3 to the directions which were given by the Hon’ble Chief Justice.
15. In our view, even if the Rules have not been framed by the Hon’ble Chief Justice, directions were given to give parity in pay-scales to the Officers working on the Original Side of the High Court with Judicial Officers working on the Appellate Side of the High Court. It has to be noted here that the said directions were not followed with the remark “Rules are not framed” but, in our view, that cannot be the reason for not complying with the directions. It is obvious that in spite of the fact that judgment of the Apex Court in S.B. Vohra’s case, JT 2004 (1) SC 38 (supra) was brought to the notice of Respondent Nos. 1 and 3, the State Government has chosen to take the same adamant attitude.……
16. It has to be noted here that if the directions given by the Hon’ble Chief Justice are implemented, there won’t be any financial burden on the State of Maharashtra, since, as of today, salary drawn by the Class-I Officers on the Original Side and Appellate Side is almost equivalent and there is negligible difference in the said salaries drawn by two sets of Officers on both sides. Be that, as it may, even if the question of financial implication is concerned, that could not be a ground to Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors reject the recommendations made by the Chief Justice. Under these circumstances, we are of the view that the impugned decision communicated by Respondent No. 1 to 3 will have to be quashed and set aside and the Petition will have to be allowed.” (Emphasis added)
33. Rule 3(b)(i) of the Bombay High Court Appellate Side Service Rules 2000 and Rule 3(b)(i) of the Bombay High Court Original Side Service Rules 2002 are verbatim identical. Both Rules provide that non-judicial officers of this High Court are entitled to pay scales, allowances and perquisites including retirement benefits and service conditions as may be periodically revised and made applicable. We have already set out Rule 4 of the Maharashtra Judicial Service Rules 2008 above.
34. Obviously, guidelines had to be framed to decide the grant of Selection Grade and Super Time Scale to officers on the Original Side. This was done by the Bombay High Court Welfare Committee, a Committee that is not restricted to either the Original Side or the Appellate Side but covers the entire High Court. These guidelines were then applied to the then Prothonotary and Senior Master (perhaps also holding the designation of Registrar (Original Side)), and he received the benefit of pay scale of Selection Grade as also, on completion of five years in that Selection Grade, the Super Time Scale benefit. By similar application of these guidelines, the then Additional Registrar (Original Side) / Additional Prothonotary and Senior Master was also granted the benefit of a Selection Grade pay scale.
35. The case of the Registrar/Principal Secretary to the Hon’ble the Chief Justice is perhaps different. He was clearly an officer on the Appellate Side establishment; the amended Rules include the post specifically. He was granted the benefit of a pay scale of the Selection Grade. He received all arrears of monetary benefit in 2019 (when the Petitioners’ first representation was still pending). He appears to have been the only person on the Appellate Side establishment to have received the benefit. It is not shown to us how other officers on the Appellate Side, also included in the 31st March 2018 GR should be treated differently. To put it in another way, we are unable to discern any intelligible differentia between these three cases cited in the Petition and other eligible officers of this Court. Indeed, there appears to us to be no classification at all but simply an acceptance of three individual cases. At an institutional level, one would expect that an administration would deal not with individuals but with classes. In a given case, an individual might be a class by herself or himself, i.e., there could be validly a classification of one. But every classification needs intelligible and rational differentia to distinguish it clearly and there must be a demonstrable rational nexus between the object of what is being applied and that classification. If one officer was being conferred benefit of any kind, then he had to be shown to be separately distinctly classifiable. This is not demonstrated before us. Otherwise, the benefits afforded to him would have to be applied to all others in that class. If not, the selection of an individual for special benefit would be ex-facie arbitrary and would be susceptible to judicial review. Thus, any administrative decision that conferred such a benefit on an individual, absent a rational classification and a nexus, would be vulnerable. The decision itself could not be sustained and the Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors consequences would perhaps have to be visited on that individual. But in this Petition, the case of the Petitioners is not that an officer was wrongly conferred benefit but simply that the benefit conferred on him had necessarily to be conferred and made available to all other officers similarly situated. Likes must be treated alike. That is, simply put, the mandate of Article 14. The Petition does not seek to dislodge any existing beneficiary either on the Original or the Appellate Side.
36. Indeed, to our mind, what the Petition seeks is an order consistent with what the Maharashtra Government did, what the Shetty Commission intended and what the amendments to the Rules contemplated, namely that officers on both sides of the High Court, Original and Appellate, judicial and non-judicial, would be treated as one class. As Mr Gadagkar puts it, the Original Side and Appellate Side distinction is one that is special to our High Court but it is a jurisdictional division. It does not mean that those who work for the High Court can be differently treated because some of them do Original Side work and others do Appellate Side work. As he puts it, except for jurisdiction, there is only one High Court.
37. If there is a distinction sought to be drawn between ‘judicial officers’ and ‘non-judicial officers’, then that is also, to our mind, meaningless in the context of service in the High Court. Today, judicial officers occupy positions on the Original Side. But previously these positions were occupied by non-judicial officers — and the cases of the then Prothonotary & Senior Master and the then Additional Prothonotary & Senior Master show this. Even non- Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors judicial officers do substantially similar work in the High Court as judicial officers. In the matter of delegation of duties, we do not expect our judicial officers to discharge any higher or greater burden or perform any greater duty. Non-judicial officers, too, have daily lists; they hold hearings; they pass orders, even in contentious cases. If the belief is that judicial officers, being judges by training, recruitment and appointment, should receive special benefits that should not be made available to non-judicial officers working on the High Court, then that view has to be jettisoned. For one thing, it is too late now to try and subvert the legal and lawful mandate of equalization of pay scales and benefits by resorting to guidelines or some such administrative procedure. Secondly, the parity arises because of work and service in the High Court. Nobody suggests that a non-judicial officer can be deputed to hold a post as a judge. Thirdly, it cannot be forgotten that a non-judicial officer serves for decades before achieving the post equivalent to District Judge Selection Grade, District Judge Entry Level or Civil Judge Senior Division — ACP–I.
38. The question of framing guidelines is thus not an issue that needs to detain us. If guidelines were indeed to be framed, these could have been done a long time ago and there is nothing shown to us to indicate why these guidelines have not been framed. To the contrary, there have been three representations and these go back now almost four years. All these seek precisely the same thing that officers on the Original Side and Appellate Side be brought on parity. All of them say that if this is not done there is a form of an Article 14 violation, that is to say an invidious discrimination. The law does not countenance this is the submission on behalf of the Petitioners placing reliance on the decision of the Supreme Court in State of Mizoram and Anr v Mizoram Engineering Service Association and Anr.[7] The legendary decisions of the Supreme Court in DS Nakara & Ors v Union of India[8] is also invoked in support of the plea of non-discrimination. If there are a set of Rules they have to be uniformly applied to persons similarly situated: Dr G Sadasivan Nair v Cochin University of Science And Technology represented by its
39. The State Government for its part has no quarrel with what the Petitioners seek. It does not oppose this Petition.
40. But the Affidavit in Reply on behalf of the 1st Respondent in paragraph 3 makes a curious submission that if granted these reliefs, it would place an additional financial burden on the State Government. We confess we are entirely unable to understand what this is supposed to mean, if anything. If that was so, the State Government ought not to have accepted the Shetty Commission recommendations. The High Court ought not to have amended the Service Rules. This submission is hardly an answer to the selective conferment of benefits on identified individuals and the denial of those very benefits to other officers identically placed. The submission is singularly ill-advised. We would have expected a far more circumspect affidavit in response, especially from a Judicial Officer. We are dealing with officers of our own Court here. Above all we are dealing with human beings. It is no answer to tell us that a
Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors particular financial benefit that is supposed to be made applicable cannot be given because it places an additional financial burden on the State Government, especially when the State Government does not say this. The argument was repelled in the Adeline Rodrigues case, and we do not see how the 1st Respondent’s Affidavit in Reply can even attempt to raise it now. This is not a Petition that seeks the exercise of a discretion or the conferment of a discretionary benefit. It is a Petition that seeks the enforcement of a legally enforceable right.
41. The other disturbing factor is that these representations have been pending for four years. That in itself is a reason not to delay the matter and not to adjourn it for the preparation of any additional guidelines. The submission on behalf of the 1st Respondent, correctly put by Mr Nerlekar, is that the guidelines applicable to the Original Side (Exhibit “D”) can be made applicable to Appellate Side officers. His only instructions are to state that this can perhaps be done on the administrative side by adopting suitable guidelines. But that means a further adjournment of the Petition and it does not explain why if this is all that was required and if matters were so trivial, this was not done since 2019. Delay in dealing with a representation fairly made and placed is itself a sufficient ground for the exercise of the extraordinary jurisdiction of this Court under Article 226 of the Construction of India. Administrative delay for whatever reason can and does result often in severe prejudice to individuals seeking enforcement of their legal rights. No Writ Court will blind itself to the sheer injustice caused by the passage of time without redress. There is no material in the 1st Respondent’s Affidavit in Reply to show that the matter was taken up on the Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors administrative side and was deferred. This is why we do not accept the request for an adjournment. The Petition itself is not new. It was filed on 6th May 2022 and that, as we noted, was after a four-year gap when the Petitioners, perhaps having regard to the institution they once served or do serve, made one representation after the other.
42. We see no impediment to the grant of relief. We make Rule absolute but in the following terms.
43. The guidelines at Exhibit “D” at page 40 of the Petition, viz., the guidelines to be followed to grant Selection Grade and Super Time Scale to officers on the Original Side of the High Court are to be made applicable to all eligible officers on the Appellate Side of the High Court. As regards the eligible officers on the two sides, there will be parity in these matters. This will cover prayer clause (a).
44. As regards prayer clause (a)(i), which is the case of the 1st Petitioner, the benefit of the Selection Grade must be granted to him. This is an inevitable and inescapable consequence of the first relief. If the guidelines at Exhibit “D” are made applicable to Appellate Side officers, then the Selection Grade benefit must be made applicable to the 1st Petitioner.
45. As regards the benefits of ACP–II and its applicability to Petitioners Nos. 2 to 8, the prayer is that ACP–II must necessarily extend to eligible Appellate and Original Side officers of this Court. That is again a logical consequence of the first relief that we have Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors granted, to bring parity between the pay scales and benefits of officers on the two sides of the High Court.
46. We are further fortified in this view by the Government Resolution dated 31st March 2018, extracted above. Where ACP-I has been granted to some officers of this Court, we see no reason why ACP–I or ACP–II should be denied to any officers on either the Original or the Appellate Side of this Court. Obviously for all three, i.e., Selection Grade, Super Time Scale, ACP–I and ACP-II the necessary eligibility conditions have to be met. Our judgment today should not be understood as waiving the applicability of any of those conditions. For ACP-II, where the requirement is of completion of a certain period of service, that must necessarily continue — but it must be consistent with the Judicial Services Rules, as noted above. The necessary correlation is already established, as we have seen, and determines whether an officer is conferred equivalence of an entry-level District Judge, or, for example, is designated a Deputy side cannot alter what is set by law. It is true that there are certain physical infrastructure perquisites available to district judges after a certain level — the allotment of a vehicle, for instance. We do not suggest that High Court employees should stand entitled to such perquisites. But that allotment comes with an allowance expressed in monetary terms, and that parity is therefore to be maintained.
47. Lastly, we clarify that we have not by this order accepted any plea for a retrospective filling of posts. No person can demand a post with retrospective effect; that would unseat those who have, in the Arvind Gopalrao Basutkar & Ors vs Registrar General & Ors meantime, come to occupy the posts. The salary and pay revisions made pay scales applicable. If there is, therefore, a mention of a post it is only a descriptor and for showing the corresponding connection for the purposes of pay scales, benefits, ACP, etc. The judgment relates only to the applicability of pay scales and benefits to officers working in the High Court.
48. The Writ Petition is disposed of in these terms with no order as to costs. (Neela Gokhale, J) (G. S. Patel, J)