Chaman Lal Khanna And Ors. vs Govt. Of N.C.T. Of Delhi And Ors.
2007 Latest Caselaw 856 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioners are employees in the Court of District and Sessions Judge, Delhi. They are holding post of Naib Nazir and Civil Nazir. They are getting the pay scale of Rs. 3050-4590 and Rs. 4000-6000 respectively with effect from 1.1.1996. The basic submission in these petitions is that the pay scale of Naib Nazir is same as given to the Process Servers and Bailiffs though the post of Naib Nazir is a higher post. They want removal of this anomaly because of which the present petitions are filed. To appreciate this contention, we may note certain facts in brief.

2. The staff structure of the establishment of the Process Serving Agency/Administrative Civil Judge in the District and Sessions Court, Delhi, is Process Server, Bailiff, Naib Nazir and Civil Nazir. As far as posts of Process Server and the Bailff are concerned, they are class IV posts. These are the feeder posts for promotion to the grade of Naib Nazir and Naib Nazir is the feeder post for promotion to the grade of Civil Nazir.

3. The Bailiffs and Process Servers were getting basic pay scale of Rs. 196-3-232 which was revised to Rs. 750-940 w.e.f. 9.3.1992. They were not happy with this pay scale which was also applicable to the post of Peon, Frashes, Sweepers and Majdoor etc., all posts in unskilled category. They contended that the minimum qualifications required for holding the post of Process Servers were higher than the unskilled labourers to which class peons etc. belong to and their nature of duties were entirely different from that of the peons. They made representation for upgradation of their pay-scales and though recommendations were made by the High Court and District Judge for grant of higher scale. However, the Government did not accede thereto. In these circumstances, Bailiffs and Process Server Association (Registered) and Others filed Civil Writ No. 3060/1989 titled as Bailiffs and Process Servers Association (Regd.) and Ors. v. Delhi Administration, Delhi and Ors. in this Court claiming higher pay scale in accordance with the recommendations of District and Sessions Judge, Delhi. This writ petition was allowed by a Division Bench of this Court vide judgment dated 4.4.2002 of which one of us (A.K. Sikri, J.) was also a member. Operative portion of this judgment reads as under:

It has not been and could not have been disputed that the job of the petitioners are more onerous than the bailiffs of a family court. In that view of the matter, in our opinion, the doctrine of equal pay for equal work must be held to the applicable. From a perusal of the notification dated 9th April 1992 issued in the Delhi Gazette, it appears that therein the scale of pay of process server has been fixed as 950-1500. There is absolutely no reason as to why, having regard to the principles adumbrated in Article 39(d) read with Article 14 of the Constitution of India, the doctrine of equal pay for equal work would not apply in the case of the petitioners.

Mr. Shali, learned Counsel appearing on behalf of Delhi Administration, however, would submit that process servers in the family courts have not yet been appointed. This may be so but the very fact that in terms of Rule 15 of the Rules framed under the Family Courts Act, the scale of pay of the Process Servers had been fixed, we see no reason why the petitioners cannot be directed to be placed on the same scale of pay w.e.f. the date of the said notification i.e. 14th April 1992 and consequent revision in the scale of pay in terms of the recommendations of the Fifth Central Pay Commission. We direct accordingly.

4. The Government of NCT of Delhi implemented this decision by issuing orders dated 3.1.2003 though it was made subject to the outcome of the SLP No. 21453/2000 which was filed against the aforesaid judgment of the Division Bench. This SLP was, however, dismissed by the Supreme Court on 31.10.2003. On the implementation of this judgment the pay scale of Bailiffs and Process Servers was revised/upgraded from Rs. 750-950 to 950-1500 with effect from 9.3.1992 and to Rs. 3050-4590 with effect from 1.1.1996.

5. The Naib Nazirs were getting the pay scales, as revised with effect from 1.1.1996, in the same pay scale i.e. Rs. 3050-4590 though they are enjoying better status being in higher post. Naib Nazirs, therefore, contend that their pay scale cannot be the same as that of Process Servers and Bailiffs when they are holding higher post and in fact posts of Process Servers and Bailiffs are the feeder posts for promotion to the post of Naib Nazir. If their contention is accepted, consequential upward revision for Civil Nazirs will become necessary to maintain difference between Naib Nazirs and Civil Nazirs since Naib Nazir is feeder post to the promotion of Civil Nazir.

6. The petitioners, therefore, made representations from time to time requesting District and Sessions Judge and other authorities to upgrade their pay-scales. District and Sessions Judge wrote letter dated 27.3.2004 to the Registrar General of this Court recommending the restructuring of the cadre appropriately so that pay scales of Naib Nazirs and Civil Nazirs are suitably upgraded. However, when no decision was taken, five petitioners who belong to the cadres of Naib Nazirs and Civil Nazirs filed these writ petitions with the following prayer:

(a) A writ of certiorari calling for the records of the case for perusal.

(b) A Writ of Certiorari quashing the action of the respondent in not upgrading the pay scale of Naib Nazir to Rs. 1200-2040 w.e.f. 9.3.1992 and Rs. 4000-6000 w.e.f. 1.1.1996 and that of Civil Nazir to Rs. 1640-2930 w.e.f. 9.3.1992 and Rs. 5500-9000 w.e.f. 1.1.1996 as the pay scale of feeder post has become identical to that of Naib Nazir w.e.f. 9.3.1992, though the duties attached to the post of Naib Nazir and Civil Nazir are higher than that of Process SErver and Bailiff, in violation of the settled positions of law and the guidelines of the Central Government and in infringement of the legal and fundamental rights of the petitioner.

(c) A Writ of Mandamus commanding the respondent to revise the pay scales of Naib Nazir to Rs. 1200-2040 w.e.f. 9.3.1992 and Rs. 4000-6000 w.e.f. 1.1.1996 and that of Civil Nazir to Rs. 1640-2930 w.e.f. 9.3.1992 and Rs. 5500-9000 w.e.f. 1.1.1996.

(d) A Writ of mandamus commanding the respondents to pay the cost of this petition to the petitioner.

(e) Any other writ, order or direction which may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice.

7. In these writ petitions, Government of NCT of Delhi is imp leaded as respondent No. 1; High Court of Delhi is imp leaded as respondent No. 2; the District and Sessions Judge, Delhi as respondent No. 3. The respondent No. 2 has not filed any counter affidavit and statement was made during the course of hearing that the respondent No. 2 was not opposing the prayers made by the petitioners. The respondent No. 3 has filed the counter affidavit supporting the cause of the petitioners. In this counter affidavit the District and Sessions Judge, however, has pleaded that upgradation of pay-scales is always done on the basis of sanction received from the Government of NCT of Delhi and he has no power to upgrade these pay scales suo moto without any sanction. However, he admits that anomaly has resulted after the upgradation of pay-scales of Bailiffs and Process Servers.

8. The petition is primarily contested by the respondent No. 1. It has filed short affidavit. Interestingly, reading of this affidavit would indicate that the respondent No. 1 has impliedly admitted that anomaly has arisen but contended that pay scales are given to the Naib Nazirs and Civil Nazirs on the recommendations of the Fifth Central Pay Commission and the First National Judicial Pay Commission. It is also pleaded that the power of upgradation of pay scales is with the Government of India and not with the Government of National Capital Territory of Delhi.

9. A promotional post would necessarily carry higher pay scale and not the same pay scale as a feeder cadre post particularly where the promotional post involves higher duties and responsibilities. In so far as pay scales of Process Servers and Bailiffs are concerned, they are revised to Rs. 950-1500 with effect from 9.3.1992 and to Rs. 3050-4590 with effect from 1.1.1996. Not only the judgment of this Court directing the aforesaid revision has attained finality as the SLP against that judgment was dismissed by the Supreme Court, the respondent No. 1 even implemented the said judgment by granting the aforesaid pay scales. Once that is accepted, by necessary implication, the Naib Nazirs are to be put in higher pay scales than the pay scales granted to the Bailiffs and Process Servers as of today they are getting the same pay scales and this is an obvious anomaly.

10. Similar controversy had arisen qua LDCs and UDCs of this Court which was removed by a Division Bench of this Court in Dileep Singh and Ors. v. Union of India and Ors. Civil Writ Petition No. 1267/2003 decided on 17.3.2003. In that case, problem arose pursuant to the recommendations of the Fifth Pay Commission. On the basis of the recommendation of Fourth Pay Commission UDCs of this Court were placed in pay scales of Rs. 1400-2300 while LDCs were placed in the pay scale of Rs. 1350-2200. The Fifth Pay Commission recommended the merger of the existing pay scales of Rs. 1350-2200 and Rs. 1400-2300 and a common revised pay scale of Rs. 4500-7000 was recommended. As a consequence thereof, the feeder posts i.e. LDCs and the Restorers as well as promotional post namely UDCs were placed in the same pay scale of Rs. 4500-7000. The UDCs demanded removal of this anomaly by claiming higher pay scale. The writ petition was allowed and mandamus was issued directing that UDCs be given higher pay scale i.e. Rs. 5500-175-9000. The operative portion of the said judgment reads as under:

In the judgment reported as 1993 Suppl. (3) SCC 727 Supreme Court Employee's Association v. Union of India and Anr. the Supreme Court took notice of the fact that the pay scale of employees in the Hon'ble Supreme Court were at par with the pay scales of corresponding categories of posts in this Court. The Supreme Court directed that the pay scales applicable to the various posts in this Court be made applicable to the employees of the Supreme Court. In its judgment reported as Supreme Court Employee's Association v. Union of India and Anr. the Supreme Court made applicable to the employees in the Supreme Court pay scales as recommended by the Chief Justice of India in terms of Supreme Court Officers and Servants Revised Pay Rules 1997. It is not disputed that the employees corresponding to the petitioner herein working in the Supreme Court, as a consequences of the orders passed by the Supreme Court in its judgment reported as are placed in the pay scale of Rs. 5500-175-9000. This pay scale has been recommended by the Committee of this Court as noted above.

We allow the writ petition. A mandamus is issued to the respondents to forthwith grant pay scale of Rs. 5500-175-9000 to the petitioners w.e.f. 1.1.1996. The aforesaid directions be complied within six weeks from today. Arrears of pay be paid within the said period. We further direct that if arrears as aforesaid are not paid within six weeks, same shall carry interest @10% p.a. from the date of this order till date of payment.

11. Learned Counsel for the respondent No. 1 argued that pay fixation is an executive function and the expert bodies like Pay Commission are the best suited for giving recommendations in this behalf and the Court should not interfere with such an exercise. Her submission was that the pay scales in the Government are determined on the basis of a number of considerations like degree of skill, volume of work, experience, paying capacity of the Government etc. Considerations to these issues are bestowed by the expert bodies like Pay Commission which is an appropriate body to give recommendations on such issues. Though there is no doubt about this legal principle but the argument of learned Counsel is self-destroying. She admits that the pay scales are to be fixed on the basis of degree of skill, volume of work, experience etc. She could not deny that degree of skill and the nature of the duties of Naib Nazirs are higher than that of Process Servers/Bailiffs and that of Civil Nazirs, higher than Naib Nazirs.

12. As obvious anomaly has arisen on the revision of pay scales of Process Servers/Bailiffs and they have started getting the same pay scale as given to the Naib Nazirs which is a higher/promotional post, Naib Nazirs are entitled to a pay scale which is higher than one enjoyed by the Process Servers/Bailiffs. The same treatment will have to be meted out to Civil Nazirs once the pay scales of Naib Nazirs are upgraded.

13. Having regard to the dicta of the judgments of the Division Bench of this Court in Bailiffs and Process Servers Association (supra) and Dileep Singh and Ors. (supra), we allow these petitions and issue writ of mandamus in the following terms:

(a) The pay scales of Naib Nazirs be revised to Rs. 1200-2040 with effect from 9.3.1992 and to Rs. 4000-6000 with effect from 1.1.1996.

(b) The pay scales of Civil Nazirs be revised to Rs. 1640-2930 with effect from 9.3.1992 and to Rs. 5500-9000 with effect from 1.1.1996.

14. On revisions of the pay scales of the petitioners in the aforesaid manner, the arrears be worked out and paid to them within a period of eight weeks from today.

15. The petitioners shall also be entitled to cost from the respondent No. 1 which is assessed at Rs. 10,000/-.