Bombay High Court
Shri. Pandurang B. Surve And Ors vs State Of Maharashtra And Ors on 26 October, 2021
Bench: S.S. Jadhav, Surendra Pandharinath Tavade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7482 OF 2017
1. Shri Pandurang B. Surve.
Age: 57 years, Occ. : Service,
R/o. A/103, Suyog Samuth Co.Op.
Hsg. Soc. Ltd., Plot No. 41-44,
Sector: 8, Sanpada(East),
Navi Mumbai 400 705.
2. Shri Bhagwan M. Dhanji
Age : 60 years, Occ.: Retired,
R/o. B/17, Parasmani CHS Ltd.,
Chiku Wadi, New Link Rd.,
Borivali(West), Mumbai 400 092.
3. Shri Namdeo W. Sawant.
Age: 52 years, Occ. : Service,
R/o. A/202, Pushkar Sagar Co.Op.
Hsg. Soc. Nandivli Cross Road,
Dombivali(East), Dist. Thane 421 201.
4. Smt. Shubhada K. Kaware,
Age : 51 years, Occ. : Service,
R/o. 214, Icchapurti Co. Op. Hsg.
Soc. Ltd., Sector 16A, Vashi,
Navi Mumbai - 400 703.
5. Smt. Sai S. Salgaonkar.
Age: 45 years, Occ.: Retired,
R/o. B-2/10, Schindia Society,
Sir M.V. Road, Andheri(East), Mumbai.
6. Shri Naresh V. Shah.
Age : 53 years, Occ: Service,
R/o. B-9, Devdatta CHS Ltd., 2nd floor,
Subhash Road, Dombivali-West,
Dist. Thane- 421 202.
7. Smt. Neelam Y. Shahir.
Age : 45 years, Occ. : Service,
R/o. 33/284, Unnat Nagar No. 2,
S.V. Road, Near Patkar Collage,
Goregaon (West), Mumbai 400 062. ... Petitioners.
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v/s.
1. The State of Maharashtra
through Chief Secretary,
Mantralya Annex, Mumbai-32.
2. Principal Secretary
Department of Law and Justice,
State of Maharashtra.
Mantralaya Annexe, Mumbai 400032.
3. Principal Secretary (Financial
Restructure)
Finance Department, Ministry of
Finance, Government of Maharashtra,
Having office at Mantralaya,
Mumbai 400023.
4. Registrar General,
High Court, Mumbai. ... Respondents.
-------------------
Mr. G.S. Godbole a/w. Mr. Mustafa Shabbir Shamim i/b. Mr. Drupad
Sopan Patil, advocate for Petitioners.
Mr. Rajesh Sudhakar Datar, advocate for Respondent No. 4.
Mr. S.B. Kalel, AGP for Respondent Nos. 1 to 3.
---------------------
Digitally CORAM : SMT. SADHANA S. JADHAV &
signed by
ARUNA S SURENDRA P. TAVADE, JJ.
ARUNA S TALWALKAR
TALWALKAR Date: RESERVED ON : AUGUST 3, 2021.
2021.10.26
16:23:13
+0530
PRONOUNCED ON : OCTOBER 26, 2021.
JUDGMENT (PER SMT. SADHANA S. JADHAV, J)
1 Heard the learned Counsel for the Petitioners as well
Respondents.
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2 Rule. Rule returnable forthwith with the consent of the
parties.
3 The Petitioner Nos. 1, 3, 4, 6 and 7 are officiating as
Registrars and Additional Registrars in the Court of Small Causes
(Small Causes Court at Mumbai). By this petition, the Petitioners are
seeking a writ of certiorari thereby seeking the relief of quashing and
setting aside the communication dated 24 th July, 2015 by Additional
Secretary, State of Maharashtra to the Registrar (Inspection-I), High
Court of Bombay, thereby holding that the post of Registrar and
Additional Registrar of City Civil and Sessions Court Mumbai is not
equivalent to the post of Registrar and Additional Registrar, Small
Causes Court, Mumbai and therefore, the Registrars and Additional
Registrars are not entitled to the pay scale of 15600-39100 with Grade
Pay 6600. It is further stated in the said communication that Registrar
and Additional Registrar of Small Causes Court, Mumbai fall in A-
Category. The said fact is self-speaking and therefore, the Registrar
(Inspection-I) was directed to send a proposal for continuation of their
pay scale in the category of 9300-34800 with Grade Pay of Rs. 5000/-.
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4 The substantive relief sought by the Petitioners is to modify
and revise the pay scale and pay-band in conformity with the
recommendation of the 6th Pay Commission and High Power Pay
Anomaly Committee Report, in addition to the recommendation by the
Hon'ble the Chief Justice, High Court, Mumbai through Registrar
General and Guardian Judges of the Small Causes Court with
retrospective effect from August, 1999.
5 The back drop of this issue is that a study group was
constituted under the Chairmanship of Justice S.N. Khatri for the
purpose of restructuring the organizational set up in subordinate
Courts. One of the recommendations of the Committee was that the
pay scale of the staff of the Court of Small Causes, Bombay shall be at
par with the scale of the staff of City Civil and Sessions Court Bombay.
The Registrars and Additional Registrars were classified as Class-I
Gazetted Officer. By a letter dated 21 st August, 1999, the Government
of Maharashtra had communicated to the Registrar(Appellate Side),
High Court that the said recommendations of the study group are
accepted by the Government.
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6 In addition, the Government had constituted a High Power
Pay Anomaly Committee vide Notification dated 16/12/1998. The
Committee had submitted its report on 29/12/1999 and clarified that
the recommendations of study group and reports are accepted and the
Government shall take necessary steps to implement the
recommendations of the study group.
7 The Petitioners had made a representation to the
Remembrancer of the Legal Affairs(RLA), Law and Judiciary
Department, Government of Maharashtra seeking the relief of pay
parity and to place them in the pay band of 15600-39100 with Grade
Pay 6600 instead of 9300-34800 with Grade Pay 4600. The
representation was supported by the Chief Judge of the Small Causes
Court, Mumbai vide letter dated 16/7/2009. This was then followed
by a reminder dated 20th October, 2010 by the Chief Judge, Court of
Small Causes, Mumbai. It was a request to the Under secretary, Law
and Judiciary Department to take appropriate steps in the said
direction.
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8 The Respondent-State had accepted the recommendations
of the Shetty Commission vide Government Resolution dated
20/10/2011 and the pay scale of the Registrars of City Civil and
Sessions Court as well as District Court were enhanced. It is the
grievance of the Petitioners that although the post of Registrars,
District Court is classified as Class-II post, they were drawing the salary
in the pay band of 8000-275-13500 as per the recommendations of the
Shetty Commission. The said pay is enhanced in the 6 th pay
Commission to 9300-34800 with Grade Pay of 5400.
9 It is seen from the records that on 31/5/2012 the Pay
Anomaly Committee filed a report. Exh. C to the said report would
show that the Pay Anomaly Committee had suggested a grade pay of
Rs. 5000 for A-Class, which also includes the Registrars and Additional
Registrars of the Court of Small Causes, Mumbai. The Petitioners had
once again made a representation on 17/1/2014, which was
forwarded to the Registrar General of the High Court through Chief
Judge of Court of Small Causes, Mumbai, which was supported by the
recommendation of the Chief Judge. Upon considering the justifiable
claim of the Petitioners, the Registrar General vide letter dated
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4/3/2014 had requested the Principal Secretary and RLA to take
appropriate steps and pass necessary orders. After verification of the
entitlement of the Petitioners to the pay scale at par with the pay scale
of Registrar and Additional Registrar of the City Civil Court Mumbai,
the High Court has sent recommendation dated 18/2/2015 and had
submitted the need for pay parity and had requested the Government
that the demand for higher pay scale by the Petitioners since 1992
deserves to be considered with a specific observations, which reads as
follows :
"On going through the representation of the Petitioners, the
Hon'ble Chief Justice of Bombay High Court has been pleased to
observe that the demands made by the Registrar and Additional
Registrars, Court of Small Causes, Mumbai are just, reasonable
and acceptable."
10 This was followed by the request through the Registrar
(Inspection-I) vide letter dated 9/4/2015. Despite all
recommendations by various Committees and the High Court, the
Government has rejected the claim of the Petitioners seeking pay
parity. The main thrust of the Petitioners is that the requisite
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eligibility criteria for the post of Registrars and Additional Registrars of
City Civil and Sessions Court, Mumbai is Law Graduate, whereas the
requisite eligibility criteria for the post of Registrars and Additional
Registrars of Court of Small Causes, Mumbai is degree in law faculty
with 10 years' continuous service. The appointing authority for both
the posts is the High Court, whereas the Registrar of District Court is
appointed by the Principal District Judge. The Registrars of both the
Courts are classified as Class-I. The nature of the work of the
Registrars of City Civil and Sessions Mumbai is mainly of
administrative in nature. Whereas, the Registrar and Additional
Registrar of Court of Small Causes, Mumbai are vested with judicial
powers as per the provisions of the Presidency Small Causes Courts
Act, 1882 and accordingly, to preside over the Registrar's Court in head
office and Bandra branch and to discharge judicial work and duties as
per Acts and Rules of the said Act. Unlike the Registrars of City Civil
and Sessions Court, Mumbai, the Petitioners have to register all the
matters, scrutinize and admit the same and to pass first order for
issuance of summons as per the rules, to submit the monthly account
of total court fee received to the Superintendent of stamp and deal
with all the matters till filing of the written statement, to conduct and
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work as a presenting officer on behalf of the administration in the
proceedings of departmental enquiry against the staff members and
make necessary correspondence, to monitor the entire work of
execution of decree in the order passed in the Court as well as the
decrees of other courts, which are filed for execution.
11 It is further the contention of the Petitioners that at present
the Registrar of District Courts falls in Class-II category, however, their
pay scale is equivalent to the pay scale of the Petitioners who fall in
Class-I. The nature of the duties and responsibilities of the Registrars of
District Courts is also mainly administrative and supervision of the
clerical establishment. According to the Petitioners, their qualification
and duties are at par with the Registrars of City Civil and Sessions
Court, Mumbai and therefore, they are entitled to parity in pay. It is
emphasised that despite favourable recommendations by the study
group as well as High Power Pay Anomaly Committee, the Respondents
are of the opinion that their post is not equivalent to the post of their
counterparts in the City Civil and Sessions Court, Mumbai. There are
no plausible reasons assigned for the classification, although they
discharge judicial functions unlike their counterparts in the City Civil
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and Sessions Court, Mumbai.
12 In answer to the queries made by the Government of
Maharashtra, a comparative chart showing the eligibility,
responsibilities and duties and the nature of the work was brought to
the notice of the Government on more than two occasions and in
principle, the Government had accepted the recommendations.
However, it is the opinion of the Government that the said posts cannot
be equated for the reason that they were never equated from
inception. It was brought to the notice that the duties and
responsibilities and educational qualifications of the post of the
Petitioners is similar to the post of the Registrars and Additional
Registrars of City Civil and Sessions Court, Mumbai. In fact, the
Petitioners are vested with all judicial powers unlike their counterpart
in City Civil and Sessions Court, Mumbai. Both the posts are within
purview of the High Court. Despite being classified as Class-I, their
pay scale is equated with the Registrar of District Court, which is
classified as Class II.
13 Upon examining the merits of the matter, it prima facie,
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appears to us that disparity in pay is in violation of the principle of
equal pay for equal work. In fact, the Government had principally
accepted the proposal of the study group as well as the Pay Anomaly
Committee. At this stage, it would be trite to place reliance upon the
Judgment of the Apex Court in the case of Steel Authority of India Ltd.
& ors. v/s. Dibyendu Bhattacharya1, wherein the Supreme Court has
held as follows :
"In view of the above, the law on the issue can be summarised to
the effect that parity of pay can be claimed by invoking the
provisions of Articles 14 and 39(d) of the Constitution of India by
establishing that the eligibility, mode of selection/recruitment,
nature and quality of work and duties and effort, reliability,
confidentiality, dexterity, functional need and responsibilities and
status of both the posts are identical. The functions may be the
same but the skills and responsibilities may be really and
substantially different. The other post may not require any higher
qualification, seniority or other like factors. Granting parity in
pay scales depends upon the comparative evaluation of job and
equation of posts. The person claiming parity, must plead
necessary averments and prove that all things are equal between
the post concerned."
In the present case, we have no doubt that both the posts are identical,
1 (2011) 11 SCC 122
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the responsibilities of the Petitioners are higher in cadre and degree.
The quality of work is also on higher footing, since they are
discharging judicial functions unlike their counterparts. Since both the
posts fall within the purview of the High Court, it cannot be said that
they are working under two different establishments.
14 In the present case, in fact, the question that arises for
consideration is as to (i) Whether the post of the Petitioners is
equivalent to the post of Registrar of the District Court or the registrars
of City Civil and Sessions Court, Mumbai. (ii) Whether pay parity
between the post of Registrar of District Courts and Registrar of Court
of Small Causes, Mumbai is justifiable, although they are classified as
Class II and Class I respectively.
15 The answer to question No. 1 would be that the post of the
Petitioners is equivalent to the post of the City Civil and Sessions
Court, since the appointing authority to both the posts is the High
Court. Both the posts fall within the purview of the High Court. Both
the Courts are established under the Statute .
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16 In the present case, the pay scale of the Petitioners is at par
with the Registrars of District Courts. After the 6 th Pay Commission,
the Petitioners' pay scale is at par with the pay scale of the Registrar of
the District Court, although the Registrar of District Courts fall in class
II. Their eligibility criteria is S.S.C. passed. Their appointing authority
is the District Judge. Whereas the appointing authority of the
Registrars and Additional Registrars of the Small Causes Court is High
Court.
17 The letter dated 24th July, 2015 does not carve out any
specific justifiable reason for denying the claim of the Petitioners. It is
the contention of the Respondents that since both the posts were never
equivalent, they cannot be granted same pay scale. It is the contention
of the Respondents that equation of post and equation of pay structure
is the prerogative of the executive.
18 It would be apt to place reliance upon the judgment of the
Supreme Court in the case of Union of India v/s. Dineshan K.K.2,
wherein it is held that -
2 (2008) 1 SCC 586
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"It has been observed that equation of posts and equation of pay
structure being complex matters are generally left to the
Executive and expert bodies like the Pay Commission etc. It has
been emphasized that a carefully evolved pay structure ought not
to be ordinarily disturbed by the Court as it may upset the
balance and cause avoidable ripples in other cadres as well.
Nevertheless, it will not be correct to lay down as an absolute
rule that merely because determination and granting of pay
scales is the prerogative of the executive, the Court has no
jurisdiction to examine any pay structure and an aggrieved
employee has no remedy if he is unjustly treated by arbitrary
State action or inaction, except to go on knocking at the doors of
the executive or the legislature, as is sought to be canvassed on
behalf of the appellants. Undoubtedly, when there is no dispute
with regard to the qualifications, duties and responsibilities of
the persons holding identical posts or ranks but they are treated
differently merely because they belong to different departments
or the basis for classification of posts is ex-facie irrational,
arbitrary or unjust, it is open to the Court to intervene."
19 The City Civil and Sessions Court, Mumbai and Court of
Small Causes, Mumbai are two establishments under the purview of the
High Court. Court of Small Causes, Mumbai has been established under
the provisions of the Presidency Small Causes Court Act, 1882. The
procedure of this Court is governed by the provisions of the Presidency
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Small Causes Court Act, 1882, Civil Manuel 1986 and the Code of Civil
Procedure, 1908, as it is applicable to this Court by the Rules framed by
the High Court under the said Act. The rules of procedures are framed by
the High Court.
20 Section 6 of the Presidency Small Causes Courts Act
contemplates as follows :
"Section 6- Court to be deemed under superintendence, etc., of
High Court - The Small Cause Court shall be deemed to be a
Court subject to the superintendence of the High Court of
Judicature at Fort. William, Madras or Bombay, as the case may
be, within the meaning of the Letters Patent, respectively, dated
the 28th day of December, 1865, for such High Courts, and
within the meaning of the Code of Civil Procedure (14 of 1882)
[and to be a court subordinate to the High Court within the
meaning of section 6 of the Legal Practitioners Act, 1879 (18 of
1879)], and the High Court shall have, in respect of the Small
Cause Court, the same powers as it has under the twenty-fourth
and twenty-fifth of Victoria, Chapter 104, section 15, in respect
of Courts subject to its appellate jurisdiction."
Section 5 of the Bombay City Civil Court Act, 1948 contemplates as
follows :
5. Subordination to and superintendence by High Court. -
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The City Court shall be deemed to be a court subordinate to and
subject to the superintendence of the High Court within the
meaning of the Letters Patent of the High court and of the Code
of Civil Procedure, 1908.
Section 8 of the Bombay City Civil Court Act, 1948 contemplates as
follows:
8. [Registrars.] - (1) The [State] Government may appoint an
officer to be called the Registrar of the City Court. He shall be the
chief ministerial officer of the Court; and shall exercise such
powers and discharge such duties of a ministerial nature as the
Judge of the City Court, or when the court consists of more than
one Judge, the principal Judge may, from time to time, by rules,
direct. [The State Government may also appoint [two officers to
be called the additional Registrars] of the City Court. [Any
additional Registrar] shall exercise all or any of the powers and
discharge all or any of the duties of the Registrar as the principal
Judge may, from time to time, by rules, direct.]
(2) The [State] Government may, with the previous approval of
the High Court, invest the Registrar and [any additional
Registrar] [with all or any of the following powers of the Judge
of the City Court, namely:-
(a) the power to hear and dispose of all applications for
permission to sue or defend as paupers or for dispaupering
plaintiffs or defendants permitted to sue or defend as
paupers;
(b) the power to hear and dispose of all interlocutory
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applications or matters necessary for the progress of any
suit or other proceedings;
(c) the power to hear and dispose of all applications for
execution of decrees (but in the case of any application
referred to in rule 22 of Order XXI in the First Schedule to
the Code of Civil Procedure, 1908, only when the person to
whom the notice thereunder is served does not appear or
offer any objection to the execution);
(d) the other powers of the said Judge, not being powers of
trying suits and proceedings.]
21 The Registrar of the Presidency Small Causes Court is
appointed by the High Court under section 13 of the Presidency Small
Causes Court Act., 1882 reads as under :
Section 13. Appointment of Registrar and other officers. --There
shall be appointed an officer to be called the Registrar of the
Court who shall be the chief ministerial officer of the Court;
there shall also be appointed a Deputy Registrar and as many
clerks, bailiffs and other ministerial officers as may be necessary
for the administration of justice by the Court and for the exercise
and performance of the powers and duties conferred and
imposed on it by this Act or any other law for the time being in
force.
The Registrar and other officers so appointed shall exercise such
powers and discharge such duties, of a ministerial nature, as the
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Chief Judge may, from time to time, by rule direct.]
Section 14 of the Small Causes Court Act, 1882 contemplates as under :
Section 14. Registrar may be invested with powers of a Judge in
suits not exceeding one hundred rupees. The State Government
may invest the Registrar with the powers of a Judge under this
Act for the trial of suits in which the amount or value of the
subject-matter does not exceed twenty rupees. And, subject to
the orders of the Chief Judge, any Judge of the Small Cause
Court may, whenever he thinks fit, transfer from his own file to
the file of the Registrar any suit which the latter is competent to
try.
[Explanation.--For the purposes of this section an application for
possession under section 41 shall be deemed to be a suit.]
The duties and responsibilities of the Registrars of the Small Causes
Court, Mumbai are contemplated in Presidency Small Causes Court Act as
follows :
Section 34. Registrar to hear and determine suits like a Judge. -
The suits cognizable by the Registrar under section 14 shall be
heard and determined by him in like manner in all respects as a
Judge of the Court might hear and determine the same:
Proviso.--Provided that, subject to the control of the Chief
Judge, any Judge of the Court may, whenever he thinks fit,
transfer to his own file any suit on the file of the Registrar.
Section 35.- Registrar may execute all decrees with the same
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powers as a Judge. The Registrar may receive applications for
the execution of decrees of any value passed by the Court, and
may commit and discharge judgment-debtors, and make any
order in respect thereof which a Judge of the Court might make
under this Act.
Section 36.- Decrees and orders of Registrar to be subject to new
trial as if made by a Judge. Every decree and order made by the
Registrar in any suit or proceeding shall be subject to the same
provisions in regard to new trial as if made by a Judge of the
Court.
22 Initially, sessions trials were held in the High Court. Last
Criminal Session of the High Court commenced on 30/6/1948 and was
dissolved on 2/7/1948. In the fact, trial by Jury which was in vogue
since long in the High Court and continued till 1948 was thereafter
continued in the Court of Sessions for Greater Bombay. The rules for the
Court of Sessions are also framed by the High Court. At present, the
Sessions Court is not merely concerned with the trial of criminal cases.
With effect from 1st April, 1974 (the date on which Criminal Procedure
Code of 1973 came into force), appeals from orders of the Metropolitan
Magistrates, which lay with the High Court, now lie with the Sessions
Court for Greater Bombay, except appeals against conviction and sentence
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of imprisonment for a period of 7 years and above. The earlier pecuniary
jurisdiction of City Civil Court was Rs. 50,000/- but in September, 2012, it
was enhanced to Rs. One Crore. The territorial jurisdiction of Small
Causes Court is from Colaba to Mulund on Central Suburban Railway side
and upto Mankhurd on Harbour Railway Side and upto Mahim on
Western Suburban Railway Side. The territorial jurisdiction of Bandra
Branch of Small Causes Court is from Mahim to Dahisar on the Western
Suburban Railway Side. Hence, it is clear that the rules for the City Civil
Court and Small Causes Court are framed by the High Court. In the past,
hierarchy of the Courts was (1) City Civil and Sessions Court, (2) Small
Causes Court (3) District Court. The duties and responsibilities of the
Registrars of the 1st two courts is almost at par. In fact, the Registrar of
the Small Causes Court is a judicial officer. He executes decrees in the
territorial jurisdiction. The City of Bombay being a Metro City, there are
several decrees which need to be executed by the Registrar even beyond
the jurisdiction of Mumbai.
23 The grievance of the Petitioners is that after 6 th Pay
Commission, their pay-band has been brought at par with the Registrar of
the District Court being oblivious of the qualification, duties and
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responsibilities. The table showing different pay scales sanctioned to the
posts of Registrar and Additional Registrar in District Court, City Civil
Court and Small Cause Courts in Third, Fourth, Fifth, Sixth and Seventh
Pay Commission is as under :-
PAY CITY CIVIL SMALL DISTRICT PERIOD
COMMISSION COURT CAUSE COURT
S COURT
3rd Pay Rs. 1100-50- Rs.750-40- Rs. 500-20- 1976-1985
Commission 1550-75-1700 1150 700-25-900
4th Pay Rs. 3200-4625 Rs.2375- Rs.2000- 1986-1995
Commission 3500 3500
5th Pay Rs. 10650- Rs.7450- Rs.6500- 1996-2005
Commission 15850 11500 10500
6th Pay Rs.15600- Rs.9300- Rs. 9300- 2006-2015
Commission 39100+ GP 34800 + GP 34800 + GP
6600 4600 4400*
*The pay
scale was
revised to
Rs. 9300-
34800 +
grade Pay Rs.
5400 as per
the
recommenda
tion of
Shetty
Commission
7th Pay S-23 67700- S-16 44900- S-20 56100- 2016-2025
Commission 208700 142400 177500
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24 It is the contention of the Respondents that the anomaly
between pay scale is to be adjudged only by expert bodies like pay-
commission in order to determine pay structure and therefore,
jurisdiction of the court is excluded. At this stage, it would be relevant
to place reliance upon the Judgment of the Supreme Court in the case
of State of Kerala v/s. B. Renjith Kumar & ors. 3. It is observed as
follows:
"The principle of "equal pay for equal work" has been considered,
explained and applied in a catena of decisions of this Court. The
doctrine of "equal pay for equal work" was originally propounded
as part of the Directive Principles of State Policy in Article 39(d)
of the Constitution. Thus, having regard to the Constitutional
mandate of equality and inhibition against discrimination in
Articles 14 and 16, in service jurisprudence, the doctrine of
"equal pay for equal work" has assumed the status of
fundamental right."
25 We are satisfied that the Petitioners have established that
there is no reasonable basis for treating them differently in matters of
payment of salary and Grade Pay with the Registrar of City Civil Court.
In such a circumstance, it would be a discrimination within the
meaning of Article 14 of the Constitution of India. It is also contended
3 (2008) 12 SCC 219
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on behalf of the Respondents that there is classification between
Registrars of City Civil Court and Small Cause Court, Mumbai,
however, they have not been able to demonstrate a plausible
explanation for differentiation between both the posts. In the case of
Mewa Ram Kanojia vs. All India Institute of Medical Sciences 4, the
Apex court has observed thus :
"While considering the question of application of principle of
'Equal pay for equal work' it has to be borne in mind that it is
open to the State to classify employees on the basis of
qualifications, duties and responsibilities of the posts concerned.
If the classification has reasonable nexus with the objective
sought to be achieved, efficiency in the administration, the State
would be justified in prescribing different pay scales but if the
classification does not stand the test of reasonable nexus and the
classification is founded on unreal, and unreasonable basis it
would be violative of Article 14 and 16 of the Constitution.
Equality must be among the equals. Unequals cannot claim
equality."
26 Hence, we are satisfied that the classification in respect of
salary and Grade Pay given to the Registrar of Small Causes Court is
unreal and does not stand the test of equality before law despite the
4 (1989) 2 SCC 235
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fact that qualifications prescribed for both the posts is the same. Their
appointments are made by the High Court. They perform same
ministerial acts. However, the Petitioners discharge judicial functions
as well and hence, the petition deserves to allowed. Hence, following
order is passed :
ORDER
(i) The Writ Petition is made absolute in terms of prayer
clauses (a), (b) and (c), which read as under :
(a) That this Hon'ble Court may be pleased to issue a Writ of
Certiorari and/or any other order in the nature of writ of Certiorari
and be pleased to quash and set aside the Communication dated
24.7.2015 to the extent of rejecting claim of Petitioners for equal pay
at par with Registrars of City Civil and Sessions Court, Mumbai.
(b) The Hon'ble Court be pleased to declare that the Petitioners
are entitled for equal pay as that of Registrar and Additional Registrars
of City Civil and Sessions Court, Mumbai.
(c) That this Hon'ble Court may be further pleased to issue a
Writ of Mandamus and/or a Writ in the nature of Mandamus in the
nature of order/s and/or direction, directing Respondent Nos. 1 to 3 to
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suitably modify and/or revise the Pay Band/Pay Scale of the Petitioners
in conformity with the recommendations of Sixth Pay Commissions
and applicable Service Rules for their posts as per concurrent
recommendations of High Power Pay Anomaly Committee reports,
Study Group findings and recommendations made by the Hon'ble the
Chief Justice of Bombay High Court, Guardian Judges of Court of
Small Causes, Mumbai and High Court through the Office of Registrar
General as well as various Hon'ble Chief Judges of Court of Small
Causes, Mumbai from time to time and further be directed to give pay
as per the Pay Band recommended at par with other similarly placed
posts with retrospective effect from the dated 21st August, 1999 to the
Petitioners and to put in the revised sale as per the Service Rules
applicable for the posts strictly in accordance with the said notified Pay
Band.
(ii) The Writ Petition is disposed of accordingly.
(SURENDRA P. TAVADE, J) (SMT. SADHANA S. JADHAV, J)
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