Syed Vilayat Hussain Quadri And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 14962 Bom

                                     1                           WP.808-18.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                         WRIT PETITION No.808 OF 2018

     1.      Syed Vilayat Hussain Quadari,
             Age : 39 years, Occu. Service as
             Assistant Charity Commissioner,
             Aurangabad.
             R/o Dargah Road, Galib Nagar,
             Parbhani.

     2.      Paikrao Sanjay Pundlikrao,
             Age : 44 years, Occu. Service as
             Assistant Charity Commissioner,
             Beed.
             R/o At post Koli, Tal. Hadgaon,
             District Nanded.

     3.      Panchal Rajpal Dyanoba,
             Age : 42 years, Occu. Service as
             Assistant Charity Commissioner,
             Jalna.
             R/o Mahatma Phule Road, Purna,
             Tal. Purana, District Parbhani.        ... Petitioners

                      Versus

     1.      The State of Maharashtra,
             Through its Chief Secretary,
             Mantralaya, Mumbai - 32.

     2.      The State of Maharashtra
             Through its Principal Secretary,
             Finance Department, Mantralaya,
             Mumbai - 32.

     3.      The State of Maharashtra,
             Through its Principal Secretary,
             Law and Judiciary Department,
             Mantralaya, Mumbai - 32.               ... Respondents




::: Uploaded on - 13/10/2021                    ::: Downloaded on - 15/10/2021 04:53:56 :::
                                          2                           WP.808-18.odt

                                      ...
                 Advocate for Petitioners : Mr. A. P. Bhandari.
                AGP for Respondents-State : Mr. S. B. Yawalkar.
                                      ...

                               CORAM :       RAVINDRA V. GHUGE AND
                                             S. G. MEHARE, JJ.

                               RESERVED ON          :   16.09.2021
                               PRONOUNCED ON        :   13.10.2021


     JUDGMENT : (Per S. G. Mehare, J.) :-

1. Rule. Rule made returnable forthwith and heard finally

by the consent of the parties.

2. The petitioners are the Assistant Charity Commissioners

appointed by the Government of Maharashtra in the Charity

Organization of the State of Maharashtra. They approached

this Court under Article 226 of the Constitution of India,

claiming 'equal pay for equal work' at par with the Judicial

Officers appointed in the State of Maharashtra, as applied in

the State of Gujarat for the reason that the Gujarat State has

the same Law. They compare themselves equal in discharge of

functions and duties, the nature of their powers like judicial

officers in the State of Maharashtra. They also have the

comparison with the judicial officers deputed in charity

3 WP.808-18.odt

organization by the High Court of Bombay. They have set out

the case that they also discharge the same function akin to the

Judicial Officer. They are also doing the adjudications of the

rights of the concerned, but the State is paying them less pay

than the Judicial Officers, which violates Article 14 of the

Constitution of India. Therefore, they should be treated equally

on par with Judicial Officers, and the discrimination made by

the Government of Maharashtra may be eliminated.

3. The claim of the petitioners can be summarized as

follows :-

(a) The petitioners were appointed as Assistant Charity

Commissioners by the State Government on 07.10.2014

by Notification of the State of Maharashtra as Group-A

Officers on the pay scale of Rs.9300-34800 plus grade pay

Rs.4600/- under Rule 9(42) of the Maharashtra Civil

Services (General Conditions of Service) Rules, 1981.

(b) They were appointed temporarily for two years on

probation.

                                           4                            WP.808-18.odt

     (c) The        qualification    to   appoint     as    Assistant      Charity

Commissioner under Section 5(2) of the Maharashtra

Public Trusts Act 1950 ("M.P.T. Act" for short), is, holding

or has held a Judicial Officer in rank not lower than Civil

Judge (Junior Division) for not less than one year. Giving

the list of their duties under the M.P.T Act, they further

stated that as per Section 73 of the M.P.T. Act, the powers

of Civil Court are equally vested with them. The Judicial

Officers can be appointed as Assistant Charity

Commissioner by granting re-appointment / on

deputation and paid the salary recommended by the

Padmanabhan Committee. They have given the pay scale

of Rs.27700-770-33090-920-40450-1080-44770.

(d) The petitioners have contended that considering the

nature of duties performed by various Judicial Officers,

the Badkas Committee had recommended that the salary

of the Assistant Charity Commissioner shall be more than

the Salary of Civil Judge Junior Division. Therefore, if the

pay scales of other Officers appointed on the basis of

recommendations of Maharashtra Public Service

5 WP.808-18.odt

Commission are considered, it would be clear that the

post of Assistant Charity Commissioner is not extended

the requisite financial benefits.

(e) The Department of Law and Judiciary had recommended

a specific proposal dated 04.01.2013 on implementing the

fifth pay scale, to the High Power Committee, for the

Assistant Charity Commissioners. The said proposal was

forwarded to the Finance Department vide noting dated

17.12.2014. However, the Finance Department refused

the proposal of Law and Judiciary Department vide order

dated 02.02.2015, giving reasons that these cadres are not

comparable, hence their pay scales are not equated.

Hence, the proposal is rejected. Financial burden on the

exchequer is also the ground to refuse the

recommendations made by the Department of Law and

Judiciary.

(f) The Association of the Officers working with Charity

Organization kept making representations to the

Government for considering the deficiencies in pay

fixation of Assistant Charity Commissioners.

6 WP.808-18.odt

(g) Vide Representation dated 06.04.2016, it was pointed that

the State of Gujarat granted the pay in the scale of

Rs.15600-39100 plus grade pay Rs.5400/-, whereas, the

State of Maharashtra has the pay scale of Rs.9300-34800

plus grade pay of Rs.5000/-.

(h) The entire expenses of the Charity Organization, including

the salaries of the Assistant Charity Commissioner is

expended from the Public Charity Administrative Fund.

Hence, there is no financial burden on the exchequer. The

Finance Department lost sight of this fact and wrongly

gave the reason of financial burden on the exchequer.

(i) Vide representation dated 02.03.2017, various issues

regarding fixation of pay, has been elaborately analyzed,

and it was expected from the State Government that, they

will take corrective steps. However, no further steps were

taken except for increasing grade pay from 4600 to 5000

from 31.10.2017.

(j) The Finance Department, time and again, refused to

accept the recommendations of respondent No.3 and

7 WP.808-18.odt

refused to respect the Constitutional mandate of paying

equal salary for equal work. No reasons are assigned to

reject the representations of the petitioners.

(k) Hence appropriate Writ, order, or directions be issued to

make the salary of petitioners equivalent to the salary of

Civil Judge Junior Division within the State of

Maharashtra, or equivalent to the salary granted by the

State of Gujrat and respondent Nos.1 and 2 be directed to

approve and implement the recommendations of

respondent No.3 dated 13.05.2016.

4. The respondents have submitted their joint submissions.

The facts of the appointment of petitioners and deputations of

the Judicial Officers in the Charity Organization are not in

dispute. The representations made by petitioners are also not

disputed. They have come with the case that in view of the

Hon'ble Supreme Court pronouncements, the Court should

avoid giving declaration granting particular pay scale and

compel the Government to implement the same. The

Government of India has extended the 7 th pay commission to

the Central Government employees. The State of Maharashtra

8 WP.808-18.odt

has extended "State Pay Revision Committee-2017".

Therefore, the petitioners may take recourse to remedial

measure by approaching that Commission. By Notification

dated 31.10.2017, the grade pay of the Assistant Charity

Commissioners has been revised from Rs.4600 to 5000. The

demand of the petitioners for scale parity with the judicial

Officer is not legal and proper. The National Judicial Pay

Commission governs the Judicial Officers. In view of Justice

Jagannath Shetty Commission constituted on the orders of

Hon'ble Supreme Court in the case of All India Judges

Association, the pay scales of the Judges were revised by the

Government on 4th July, 2003. Then, the Government also

accepted the recommendation of the Padmanbhan Committee

and implemented it from 22nd October, 2010.

5. The basic premise of the petitioners that their services

are comparable with the services rendered by the Judicial

Officers, is not legally and factually correct. Merely because the

petitioners discharge some quasi judicial functions which are

also discharged by the Judicial Officers when posted on ex-

cadre post of Assistant Charity Commissioner, they cannot

9 WP.808-18.odt

claim equivalence with the Judicial Officers in status and pay

emoluments as well. Under the scheme of the Constitution,

the Judicial Officers stand on a different footing, and the

members of the other service cannot be placed on par with the

members of the Judiciary merely because they happen to

discharge some quasi judicial functions.

6. The general duties and responsibilities of the judicial

Officers deputed as Assistant Charity commissioners in their

capacity are substantially different. The Assistant Charity

Commissioners have limited jurisdiction under the M.P.T. Act.

Against this, the Judicial Officers have to deal with various

Acts and are required to adjudicate under multiple laws.

7. The nature of work, the challenges in adjudication, the

pressure of the situation, and overall volume and complexity

thereof are markedly higher than that of an Assistant Charity

Commissioner, who discharges some quasi judicial functions.

On appointing the Judicial Officer on deputation as Assistant

Charity Commissioner, does not justify the demand for equal

pay at par with them. The petitioners are appointed on feeder

posts and entitled to promotions.

10 WP.808-18.odt

8. The Finance Department has clarified that at the time of

the 4th Pay Commission, Justice Naik Committee did not

consider the cadre of Assistant Charity Commissioner,

equivalent to any other cadre. The pay scale recommended by

the said Committee has been applied to the post of petitioners.

Therefore, there is no anomaly in the pay scale of the cadre of

the petitioners. The Finance Department has clarified that

while revising the pay scale of Government Servant, the pay

structure of other States is not to be considered. Therefore, the

pay scale determined by the State of Gujrat is not comparable,

and it is inappropriate.

9. Fixation of pay and determination of parity in duties and

responsibilities is a complex matter for the executive to

discharge. The recommendations of Pay Commissions are

subject to the acceptance of the State Government. No Court

shall compel the State to accept the recommendations of the

Pay Commission though it is an expert body. It is the discretion

of the Government and therefore, it must be left with the Pay

Commission. The petitioners have no case on merit and hence,

the petition is liable to be dismissed, are the submissions.

11 WP.808-18.odt

10. The petitioners have a twofold case. Firstly, they claim

equivalence with the Judicial Officers regarding the nature,

power, and functions of their duties. They have claimed that

the duties they discharge and the nature of their work are as

good as adjudication. They have the powers of Civil Courts.

Hence, they, be treated at par with the Judicial Officers. When

they are at par with the Judicial Officers by the nature of the

duties and powers, no discrimination shall be made by giving

them less pay than the Judicial Officers. Secondly, they have

claimed parity with the pay scale. They have claimed that the

Gujarat State pays the scale at par with the Civil Judges. The

Gujarat State followed the same M.P.T. Act. Therefore, the

nature of the work, functions, duties, and powers are the same

in both the States. Therefore, there shall be no discrimination

in pay.

11. The Constitution of India recognizes the doctrine of

"Equal pay for equal work" for both men and women and

"Right to Work" through Articles 39 (d) and 41. These Articles

cover the Directive Principles of State Policy. Article 14 of the

Constitution guarantees the right to equality before Law or

12 WP.808-18.odt

equal protection of Law. No inequality is allowed in the same

circumstances. So, to establish the right to equal pay for equal

work, equivalence is the primary test. However, article 14 is

not an absolute right to equality, and the State has the right to

reasonable classification.

12. The petitioners' services are governed under M.P.T Act.

The State Government appoints the Assistant Charity

Commissioners ("A.C.C." for short) who qualify the conditions

laid in Section 5(2-A) of the 1950 Act. The Judicial Officer

holding or has held the post not lower than the Civil Judge

Junior Division may apply the Advertisement for the post of

Assistant Charity Commissioner. A Civil Judge Junior Division

in judicial service or was in such service for one year may apply

for the post of Assistant Charity Commissioner. It gives an

option to the Sitting Judge of the Junior Division to change the

cadre. A person practicing Law, registered under the Indian Bar

Councils Act, or The Advocates Act, for four years, the person

holding the law degree from recognized University and has

worked with the Charity Organization not below the rank of

Senior Clerk or Steno-typist for five years and passes the

13 WP.808-18.odt

departmental competitive examination is also qualified to be

appointed as Assistant Charity Commissioner. The posts are

filled by nomination.

13. On reading Section 5(2-A), it is clear that the State may

appoint the Assistant Charity Commissioners, who are sitting

Judges as Civil Judge Junior Division or holding such post for

one year, a person practicing Law for four years and the person

working in Charity Organization not below the rank of Senior

Clerk or Steno-cum-typist holding law degree, for five years.

14. Article 309 of the Constitution empowers the State to

regulate the recruitment and condition of the service of

persons to be appointed in public service. The Governor of the

State of Maharashtra, in the exercise of powers under Article

309 of the Constitution, framed the rules regulating

recruitment to the posts of Charity Commissioner, Joint Charity

Commissioner, Class I, Deputy Charity Commissioner, Class I

and, Assistant Charity Commissioner Class I. ("Recruitment

rules, 1986" for short). Rule 6 is relevant, which reads thus :-

"6. Subject to provisions of section 5 of the Act, appointment to the post of Assistant Charity Commissioner shall be made either-

14 WP.808-18.odt

(a) by promotion, on the basis of seniority subject to fitness, from amongst the person holding the post of Superintendent in the Charity Organization of Government for a period not less than five years: or

(b) by transfer on deputation of a suitable Judicial Officer possessing the qualifications laid down in subsection (2A) of section 5 of the Act; or

(c) by nomination from amongst candidates who are not less than 25 years of age and, unless already in the service of Government are not more than 40 years of age;

Provide that, Government may, on the recommendation of the Commission, relax the maximum age limit up to 42 years in the case of candidates possessing exceptional qualifications or experience or both."

15. Clause (c) of the above Rules provides that suitable

Judicial Officers may be appointed as A.C.C. by transfer on

deputation. The Judicial Officers appointed on deputation are

from the cadre of Judicial Services. The Civil Judge Junior

Divisions are recruited under the Bombay Judicial Services

Recruitment Rules, 2008. Rule 3 of the Rules 2008 states that a

State Service shall be constituted known as Maharashtra

Judicial Services. Sub-rule (2) of rule 3 of Rules, 2008 states

that the services shall consist of the cadres specified in the

Schedule appended thereto. As per the said Schedule, the

cadres have been designated. A Judge of Civil Judge Junior

Division is designated as "Civil Judge Junior Division." Chapter

III deals with recruitment. As per Rule 4, the appointing

15 WP.808-18.odt

authority of the Judges, including Civil Judge Junior Division,

is the Governor and for promotions to the cadre of Senior

Division is the High Court. Rule 5 deals with the method of

recruitment, qualification, and age limit. For the recruitment

on the post of Civil Judge Junior Division, the method is by

nomination on the basis of marks obtained in a competitive

examination conducted by Maharashtra Public Service

Commission in terms of the Examination Scheme at may be

framed by the High Court.

16. The educational qualification as prescribed is, the person

must hold a law degree, must have practiced as an advocate in

the High Court or court subordinate thereto for not less than

three years on the date of the publication of the Advertisement

or must be a fresh Law graduate, who has secured the degree

in Law by passing all the examination leading to the degree in

first attempt, has secured in the final year examination of the

degree in Law or in the case of candidates holding Master's

degree in Law in final year examination not less than fifty five

percent marks or must be working or must have worked as

Public Prosecutor or Government Advocate for not less than

16 WP.808-18.odt

three years, the period during which the candidate has worked

as an Advocate shall also be included; or must be a member of

Ministerial Staff, of High Court or subordinate thereto; or of

Offices of Government Pleaders attached to those Courts; or

working as Legal Assistant and above in the Legal Section of

Law and Judiciary Department In Mantralaya provided such

employee has put in minimum three years of service after

obtaining Degree in Law.

17. The learned Counsel Mr. Bhandari submits that the

A.C.C. are discharging the duties and responsibilities at par

with the Judicial Officers. They also do the adjudication. The

nature of duties, functions and powers are the same, and hence

there is apparent equivalence between the two.

18. Let us now examine the powers, duties, and functions of

the A.C.C. under M.PT. Act. The A.C.C. has to make inquiries of

Registration of the Trusts under Section 19. He has to hold the

inquiry under Section 22 of the Act on any change in the

Trustees, the appointment of Trustees on election, retirement,

resignation, death, or incapability to be a trustee of the Trust.

It's a contested inquiry too. He has to invite objections to

17 WP.808-18.odt

accept the change report. He has to record the findings on the

issues raised in such change reports and pass a reasoned order

based on the facts and Law. On giving such orders, he has to

take the entries in the Register of Trust. He has to amend the

Trust Register by adding new changes in the trustees and

properties of Trust and delete the entries in the effect of any

such changes. It is also his power and duty to de-register the

defaulting Trust and take over the management of such de-

registered Trusts, and if deemed fit, may dispose of the Trust

property. Under section 37, he has the power to enter on and

inspect or cause to be entered on and inspect any property

belonging to public Trust, to call for and inspect the

proceedings of the trustees, any book of accounts or document

in the possession or under the control of the trustees, to call for

any return, statement, account or report from the trustees, to

get the explanation of the trustee and reduce or cause to be

reduced to writing any statement made by a trustee or any

person concerned with the Trust. If he finds any loss caused to

the public Trust on account of gross negligence, breach of

Trust, misapplication, or misconduct of trustee, he may submit

the report to the Charity Commissioner. On his report, Charity

18 WP.808-18.odt

Commissioner may take appropriate action against the errant

trustee/trustees.

19. Under section 41B, he has the powers to institute

inquiries suo motu or on a complaint in writing from any

person having interest in the Trust, with regard to charities, or

a particular charity either generally or for a particular purpose.

For the purpose of such inquiry, he has, by notice, require any

person to attend at a specified time and place and give

evidence or produce documents in his custody or control which

relate to any matter in question at the inquiry. He may take

evidence on Oath, and for that purpose, he may administer

Oath under The Indian Oath Act, 1873 or solemn affirmation.

Completing such inquiry, he has to report to the Charity

Commissioner.

20. Under section 41C, A.C.C. has to make an inquiry for

permission to collect money, subscription or donation, etc., and

decide it. If he finds a possibility of fraud, misappropriation, or

other abuse, in that case, he may stop such person from such

collection and direct such person to render the account and

19 WP.808-18.odt

deposit the amount so collected in Public Trusts Administration

Fund.

21. Section 41E imposes a duty on him to report to the

Charity Commissioner that trust property is in danger of being

wasted, damaged, or improperly alienated by any trustee or

that trustee threatens or intends to dispose of that property.

Section 41F imposes a duty on him to report to the Charity

Commissioner the disobedience of any orders passed under any

of the sections in chapter VI. He has powers under section 50A

to frame, amalgamate, or modify the schemes. Under section

79, he has to determine whether or not a trust exists, and such

Trust is a public trust, or particular property is property of such

Trust. All these duties, functions, and powers of A.C.C. have

been summarized in Section 68 of the Act.

22. The orders of A.C.C. passed under Sections 22, 22A, 28,

41C, 50A, 79, 79AA are appealable.

23. Under Section 73, he has the powers of Civil Courts in

respect of proof of facts by affidavit, summoning and enforcing

the attendance of any person examining him on Oath, ordering

20 WP.808-18.odt

discovery and inspection, and compelling the production of the

document, and issuing of commissions. He shall record the

evidence on affidavit only in inquiry under Section 22 of the

Act.

24. In the case of K. Shamrao and others s. Assistant Charity

Commissioner (2003) 3 SCC 563, the question before the

Hon'ble Apex Court was whether Assistant Charity

Commissioner under Section 5 of the Bombay Public Trusts

Act, 1950 as applicable to Karnataka is a "Court" for the

purpose of Contempt of Courts Act.

25. The Hon'ble Apex Court considering the provisions of the

Act 1950 regarding powers, duties, and functions of the A.C.C.

observed in the last but one para as follows :-

"The aforesaid provisions make it clear that that Assistant Charity Commissioner has only the trapping of a judicial tribunal but also has powers to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement. The Assistant Charity Commissioner, therefore, possesses all the attributes of a court. The fact that the Assistant Charity Commissioner also has to perform some administrative functions is not of any relevance for coming to the conclusion that he is not a court, having regard to the provisions of the Act which substantially confer on him the power to give definite judgment subject to finality in appeal, after hearing all concerned. Functions of the Assistant

21 WP.808-18.odt

Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers of which an ordinary Civil Court has including powers of summoning witnesses, compelling production of documents, examining witnesses on Oath and coming to a definite conclusion on the evidence induced and arguments submitted".

"For the foregoing reasons, we hold that the Assistant Charity Commissioner is a Court for the purpose of Contempt of Courts Act..."

26. The learned counsel Mr. Bhandari for the petitioners

argued that the nature of duties and functions performed so

also exercised under M.P.T. Act by the A.C.C. and the Judicial

Officers deputed as A.C.Cs are the same. The M.P.T. Act does

not provide any difference in their powers and functions based

on their mode of appointment. Respondent No.3 had made

well-reasoned recommendations. Hence, they should have

been accepted by respondent No.1.

27. The first question that the Government could have

accepted the recommendations made by respondent No.3 is

strongly opposed by the respondents, contending that any such

recommendations made by the Committee are not binding on

the Government. Even the Court of Law may not force the

Government to accept and implement the recommendations.

22 WP.808-18.odt

To bolster their arguments, they relied on the case of Union of

India Vs. Arun Jyoti Kundu and others 2007(7) SCC 472.

28. The facts in Arun Kundu (supra) were that the

respondents had claimed before the Central Administrative

Tribunal that their pay should be at par with Lower Division

Clerks. The Fifth Pay Commission had recommended that

typists should be treated at par with Clerks, Head Clerks, and

Overseers Grade II in respect of the post of Senior Typists,

Head typists, and daily Typists, respectively. Instead of applying

the recommendations of the Fifth Pay Commission, the

appellants have fixed the pay of the respondents at a lower

scale.

29. The Hon'ble Apex Court, on the facts of the above case,

held in paragraph No.9 that "it is well settled principle of Law

that recommendations of the Pay Commission are subject to

the acceptance/rejection with modifications of the appropriate

Government". So, "unless the Government has accepted the

recommendation to merge the cadres, the Court cannot

proceed on the basis of the recommendation alone or to direct

the Government to accept the recommendation".

23 WP.808-18.odt

30. Respondent No.3 submitted its proposal to revise the pay

of A.C.Cs by comparing the salaries of the Civil Judge Junior

Divisions. He also explained the nature of duties, powers, and

functions of the A.C.Cs. To support his recommendations, he

quoted the various sections of the M.P.T. Act. He also opined

that the low pay compared to their duties and functions makes

the A.C.Cs prone to seeking another higher pay job. Due to the

low pay scale, the Charity Organization does not get good

quality Officers. Their nature of work is judicial. Hence, the

pay scale of Joint Charity Commissioner should be equated

with the pay scale of Joint Secretary and Pay Scale of A.C.Cs

should be equated with Additional Secretary in the Mantralaya.

He also suggested that the expenses borne by Government of

the Charity Organization are expended from Public Trust

Administration Fund.

31. The petitioners have based their claim on the equality in

the nature of duties, powers, and functions with the Civil

Judge Junior Division. The cadre of the Civil Judge Junior

Division has been designated as per rule 3 of the Maharashtra

Judicial Recruitment Rules 2008. The appointments of Judicial

24 WP.808-18.odt

Officers other than the District Judges are made by the

Governor under Article 234 of the Constitution of India, in

accordance with rules framed by him after consultation with

the Public Service Commission and the High Court of that

State. In Article 236(b) of the Constitution, the expression

"Judicial Service" means a service consisting exclusively of

persons intended to fill the post of District Judge and other

civil judicial posts inferior to the post of District Judge. The

Judicial Officers exclusively discharge the judicial functions.

The A.C.Cs are appointed as prescribed in M.P.T. Act and the

regulations made by the Governor. We have discussed the

nature of duties, functions, and powers of A.C.Cs, and the

Hon'ble Apex Court, in the case of K. Shamrao ( supra) has held

that the functions of A.C.Cs are predominantly adjudicatory.

They also perform some administrative functions. Having

regard to the nature of duties, functions, and powers of the

A.C.Cs, it is no doubt that they are performing judicial and

administrative functions.

32. What is the role of Charity Commissioner and other

designated Officer can be understood better by going through

25 WP.808-18.odt

the object of the M.P.T. Act from its preamble. As per the

preamble, the object of the M.P.T. Act, is to regulate and make

better provisions for the administration of public religious and

charitable trusts in the State. The various provisions of the

M.P.T. Act are supervisory and administrative. The powers are

conferred on the Charity Commissioner and other Officers to

take necessary measures to protect the trust property, issue

injunctions restraining the trustees whose acts are detrimental

to the property and object of the trusts, and supervise, regulate

and control the administration and management of the trusts.

To administer the Trust is the primary duty of the Charity

Commissioner, and for that purpose, vast powers are given to

them. They also have adjudicatory powers based on the

evidence taken on Oath. They also possess quasi judicial

powers. Quasi judicial is an action by an administrative agency

that, ascertains certain facts, holds hearings, weighs evidence,

makes conclusions from the facts as a basis for their official

actions and exercise discretion of judicial nature.

33. The question that may arise is whether on the basis of

some similarities in the duties, functions, and powers at par

26 WP.808-18.odt

with the Civil Judge Junior Division, should the A.C.Cs be

treated at par with the Civil Judge Junior Division.

34. The learned counsel Mr. Bhandari also relied on the case

of State of Kerala Vs. B. Renjith Kumar and others (2008) 12

SCC 219. In the said case, the petitioners were selected and

appointed as Presiding Officers of the Industrial Tribunals. The

High Court of Kerala on the facts that before 1998 the State

Government was paying to the petitioners, the pay at par with

District Judges, however, when the Judicial Officers were

granted the benefit of revision pay scales in December 2001,

similar benefits were denied to them, held the petitioners at

par with District Judges and directed the State Government to

treat the petitioners at par with District Judges in the matter of

time scale, as well as selection grade. The Hon'ble Apex Court

confirmed the view of the Kerala High Court. The Kerala High

Court, in its judgment, has observed in paragraph No.6 as

follows :-

"6. When the Government admits that the duties, functions, and scales of pay of the Industrial Tribunals are equal to that of District Judges, I do not find any justification for not granting the interim relief of 15% granted to the Judicial Officers as per Exh.4 to the petitioners. Anyway, the Government has promised that they will implement the report of the First National Judicial

27 WP.808-18.odt

Pay Commission. In Exhibit P4 also it has been stated that the interim relief of 35% granted will be fully adjusted against and included in the package on the final recommendation of the First National Judicial Pay Commission."

35. In the above case, prior to the revision of pay of District

Judges as per the First National Judicial Pay Commission, the

pay scale of District Judges and Industrial Tribunal Judges in

the State of Kerala was the same. Besides, the State of Kerala

had admitted that the duties and functions are equal to that of

District Judges. It had also promised to implement the report

of the First National Judicial Pay Commission. Against this

backdrop, the petition was allowed. However, in the case at

hand, the State has specifically come with a stand that the

cadres are incomparable.

36. Mr. Bhandari, the learned counsel, further relied on the

case of Randhir Singh Vs. Union of India and others AIR 1982

SC 879. The petitioner, in that case, was a Driver-Constable in

the Delhi Police Force under Delhi Administration. He had

demanded that his pay scale should atleast be the same as the

pay scale of other drivers in the service of the Delhi

Administration. In the above case, it is observed that the

driver-constables of the Delhi Police Force perform no less

28 WP.808-18.odt

arduous duties than drivers in other departments. The

respondents admitted in their counter that the duties of the

Driver-Constables of Delhi Police Force were onerous.

Therefore, the petition was allowed.

37. The next case on which Mr. Bhandari relied is Alvaro

Norohna Ferriera and others Vs. Union of India and others

(1999) 4 SCC 408. It was the case of District Judges from the

State of Goa. They had claimed equal pay at par with the pay

of the District Judges in Union Territory of Delhi. The Hon'ble

Apex Court held that the nature and functions of the District

Judges in both Union Territories were the same and before the

revised pay in the Union Territory of Delhi, in both Union

Territories, the District Judges were drawing the same pay.

38. The learned counsel Mr. Bhandari relying on the case of

All India Judges' Association and others Vs. Union of India and

others AIR 1993 SC 2493 (Review Petition) argued that the

recommendations made by respondent No.3 were well

reasoned, however, the State Government, turned it down

without application of mind. The Government should have

considered that the duties, functions, and nature of both cadres

29 WP.808-18.odt

is the same, so the petitioners ought to have been equated with

Judicial officers as prayed.

39. In the above review petition, the petitioners had raised

the objection that the power to prescribe service conditions is

vested in the executive and legislature. The service conditions

are a matter of policy and have to be prescribed by taking into

consideration the comparative utility of the service, the nature,

and quality of the work, the overall availability of resources,

the priorities for allocation of funds, etc. The review petitioners

also expressed an apprehension that if the directions given by

the Hon'ble Apex Court are followed, the other services may

demand similar service conditions. It was also contended that

the financial resources of all the States are not equal, and some

of the States would be unable to bear the financial burden that

is bound to result from the implementation of the directions.

The conditions of work and employment of the judicial officers

differ from State to State. The Hon'ble Apex Court, discussing

in detail the functions, duties, responsibilities, and duties of

judicial officers and executives, and the members of other

services, discarded the objections.

30 WP.808-18.odt

40. The learned AGP Mr. Yawalkar for the State, relied on

the case of S.D. Joshi and others Vs. High Court of Judicature

at Bombay and others 2011 (1) SCC 252 . He argued that the

Hon'ble Apex Court in the above case distinguished the nature

and functions of District Judges directly recruited and the

Judges of Family Courts. Discarding the prayers of the Family

Court Judges, it is finally observed that both are in different

cadres, though they are adjudicating the dispute but cannot be

equated with District Judge.

41. In the above case, the petitioners had claimed that they

hold judicial office as contemplated under Article 217 of the

Constitution and are at parity with functional jurisdiction,

while satisfying all the trappings of a Civil Court and, as such,

they should be deemed to be qualified for elevation to the High

Court.

42. In paragraph No. 24, the Hon'ble Apex Court observed

thus;

"24. A bare reading of the above Article clearly shows that the expression District Judge includes different kinds of Judges but not Family Court Judges. Similarly, judicial servicees means a service consisting exclusively of the persons intended to fill the post of District Judge and other civil judicial posts inferior to the

31 WP.808-18.odt

post of District Judge. The expression judicial service, therefore, would not include a Family Court Judge as they are neither persons eligible to fill up the post of District Judge nor are they holding civil judicial posts inferior to the post of District Judge."

43. The Hon'ble Apex Court discussed the recruitment and

appointments of those two cadres and declined the prayers of

the petitioners in the above case on its peculiar facts.

44. We have discussed above the recruitment and

appointments of the Civil Judge Junior Division and

petitioners. They are governed by distinct recruitment rules.

The service conditions of the Civil Judge and the petitioners

are also not the same or similar. So far as the functions of Civil

Judge Junior Division is concerned, besides adjudicating civil

rights, they also deal with the rights of liberty of individuals in

the criminal trials. They also possess the power to detain

individuals. They punish a wrongdoer, impose a fine, or

sentence imprisonment. They have powers to decide the nature

and extent of such imprisonment having regard to the facts

and circumstances. They also discharge administrative

functions. Being the presiding Officers of the Civil Court, they

deal with private controversies, particularly disputes that arise

between individuals or between private businesses or

32 WP.808-18.odt

institutions. The Civil Court also deals with the dispute

involving some injury to personal rights.

45. As against this, the A.C.Cs have a limited jurisdiction to

deal with the protection of trust property, management,

registration of the Trusts. The appointment of Trustees, who

have limited right to have the trust property vested. They have

to supervise and control the activities of such Trustees, whether

they are performing the duties to protect the assets, property of

public Trusts. They are required to implement the provisions of

M.P.T. Act. In Letters Patent Appeal No.226 of 2011 in Writ

Petition No.949 of 2011 Smt. Vanmala Manoharrao Kamdi and

others Vs. The Deputy Charity Commissioner Nagpur, decided

on 4th May 2012, the Hon'ble Division Bench of this Court at

Nagpur has observed in paragraph No.19 as follows :-

"19. That the function of the Charity Commissioner while acting under the provisions of the Act is administrative, judicial as well as quasi judicial and even that he acts as a watchdog and a delegate of the Government for superintendence and control over the Public Trusts."

46. Proviso to section 6 of the M.P.T. act empowers the

A.C.Cs the powers if delegated by the Government by general

33 WP.808-18.odt

or special order, to appoint subordinate officers and servants.

No such powers lie with the Civil Judge Junior Division.

47. The Civil Judge Junior Division is a part of the District

Judiciary. Under Article 235 of the Constitution, the control,

posting, promotion of, and the grant of leave to the

subordinate Courts is vested in the High Court. In other words,

the Civil Judge Junior Divisions are under the direct control of

the High Court. Article 234 of the Constitution is about the

recruitment of persons other than District Judges to the

Judicial Service. The appointment of such persons is made by

the Governor of the State in accordance with rules made by

him in that behalf after consultation with the State Public

Service Commission and with the High Court. The expression

'judicial service' has been interpreted in Article 236(b) of the

Constitutions, which means a service consisting exclusively of

persons intended to fill the post of District Judge and other

civil judicial posts inferior to the post of District Judge.

48. As against this, section 5 of the M.P.T. Act governs the

appointment of A.C.Cs. The Civil Judge Junior Divisions are

governed under Maharashtra Judicial Services Recruitment

34 WP.808-18.odt

Rules, 2008. Rule 3(2) of the said Rules states that the services

shall consist of the cadres specified in column 2 of the

Schedule appended to the Rules of 2008. The appointments are

to be made to the State Judicial Services strictly in accordance

with these Rules. The cadre of the Civil Judge Junior Division

is specifically recognized in the Schedule appended to the

Rules of 2008.

49. So far as the recruitment and appointment of the A.C.Cs

are concerned, they are governed under the Charity

Commissioner, Joint Charity Commissioner, Deputy Charity

Commissioner and Assistant Charity Commissioner

(Recruitment) Rules, 1986. These rules are made by the

Governor of Maharashtra in exercise of his powers under

Article 309 of the Constitution. The said Rules provide for

appointment, posting, promotion, transfer of A.C.Cs anywhere

in the State of Maharashtra. These rules are explicit that the

A.C.Cs are under the direct control of the State Government.

The Governor of Maharashtra has made the above rules as

discussed above, in the exercise of the powers under Article

309 of the Constitution, wherein the word 'public service' is

35 WP.808-18.odt

used. Reading the above recruitment Rules, Article 236(b) and

Article 309(1) of the Constitution together, it is apparent that

the Judicial service and public service are different.

50. The Hon'ble Apex Court in the case of Government of

West Bengal Vs. Tarun K. Roy and others , laid down the Law

that, Article 14 read with Article 39(d) of the Constitution of

India envisages the doctrine of equal pay for equal work. The

said doctrine, however, does not contemplate that only because

the nature of work is the same, irrespective of educational

qualification or irrespective of their source of recruitment or

other relevant considerations the said doctrine would be

automatically applied. The holders of higher educational

qualification can be treated as a separate class. Such

classification, it is trite, is reasonable. Employees performing

the similar job but having different educational qualification

can, thus be treated differently.

51. The petitioners also canvass that the M.P.T. Act, is

followed by the State of Gujarat. The A.C.Cs in Gujarat and

Maharashtra are discharging the same duties and functions

and have the same powers. The State of Gujarat pays the same

36 WP.808-18.odt

Civil Judge Junior Division scale to the A.C.Cs in that State. On

the doctrine of equality before the Law, they should be at par

with the same scale of Civil Judge Junior Division.

52. The Government constitutes the Pay Commissions to

examine and recommend the changes to salary structures of

the Government employees. The Central Government to date

has constituted Seventh Pay Commissions. For the purpose of

recommending the required changes, the Pay Commission

analysis various aspects of the economy. Some of the

important factors the Commission considers are the economic

condition of the country, financial resources under the purview

of the Government, corresponding impact on the revenue

position of all the State Governments, etc. As a result of

inflation in the economy, the price of goods and services

increases over the year due to the increase in the cost of

production. As a result of the increase in the rate of inflation,

the purchasing power of the money decreases. This makes it

necessary to adjust the salary of Central and State Government

employees. This is because the salary becomes insufficient to

sustain the same level of lifestyle and fulfill the basic

37 WP.808-18.odt

necessities. For all these reasons, the Pay Commission is

constituted to revise the pay structure. However, the

recommendations of the Pay Commission are not binding on

the Government. It may accept or reject the recommendations

of the Pay Commission. Apart from the various factors like

recruitment method, a level at which recruitment is made,

hierarchy of service, etc., a pay structure also evolves, keeping

in mind the employers' capacity to pay.

53. The Hon'ble Apex Court in M.P. Rural Agriculture

Extension Officers Association Vs. State of M.P. (2004) 4 SCC

in paragraph No.13 has observed as follows :-

"13. Pay Commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-vis the educational qualifications required therefor. Although the Pay Commission is considered to be an expert body, the State in exercise of its wisdom and in furtherance of a valid policy may or may not accept its recommendations. The State in exercise of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. The State in terms of the said provision is also entitled to give retrospective effect thereto." (Emphasis added)

54. It is clear from the above pronouncement of the Hon'ble

Apex Court that framing the appropriate rules of service

condition of its employee, revising the pay, is in the domain of

every State Government. Ultimately in the matter of pay and

38 WP.808-18.odt

service conditions, the appropriate Government derives it's

power only in terms of the Rules framed under Article 309 of

the Constitution. It is for the State, either to accept the Pay

Commission's recommendations constituted by it in

furtherance of a valid policy or decline.

55. The learned AGP Mr. Yawalkar has vehemently argued

that the equation of post and salaries is a matter to be dealt

with by the expert body. The pay revision is the matter of

policy decision of the Government, and Court should not direct

the Government to implement a particular pay scale to a

particular cadre. We find force in his argument. The Hon'ble

Apex Court in West Bengal Vs. Subhas Kumar Chatterjee

(2010) 11 SCC 694 observed in paragraph 14 as follows :-

"14. This court time and again cautioned that the Court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is matter which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. Even the recommendations of the Pay Commissions are subject to the acceptance or rejection, the courts cannot compel the State to accept the recommendations of the Pay Commissions though it is expert body. The State, in its wisdom and in furtherance of its valid policy, may or may not accept the recommendations of the Pay Commission. (See Union of India v Arun Jyoti Khandu and State of Haryana V Haryana Civil Secretariate Personal Staff Assn) It is no doubt true, the constitutional courts clothed with the power of judicial review have jurisdiction, and aggrieved employees have remedy only if

39 WP.808-18.odt

they are unjustly treated by arbitrary State action while fixing the pay scale for a given post".

56. Evaluating the facts and relevant provisions of Law as

discussed above, we believe that the nature of duties,

functions, powers, responsibilities, recruitment, appointment,

control, cadre recognition, service conditions of the Civil Judge

Junior Division, and the A.C.Cs, are dissimilar. Moreover, the

cadre of the petitioner is different and not comparable with the

cadre of the Civil Judge Junior Division in the State of

Maharashtra. Hence, we do not find substance in the petition.

Needless to state that, the dismissal of this petition does not

take away the petitioners' right to make representation before

the Pay Commission, if any, constituted by the State

Government to revise their pay scale and service condition.

57. In view of the above, this petition stands dismissed. No

costs. Rule is discharged.

       (S. G. MEHARE, J.)                       (RAVINDRA V. GHUGE, J.)

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