THE HIGH COURT OF JUDICATURE AT MADRAS Dated:08.07.2013 Coram THE HONOURABLE Mr.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Review Application No.47 of 2013 and M.P.No.1 of 2012 in W.P.No.1534 of 2007 *** T.P.Parameswaran ..1st Respondent in Rev.
Appln.No.47 of 2013 ..Petitioner in M.P.No.1 of 2012 V.
1.The High Court of Judicature at Madras, represented by its Registrar General, Chennai 600 104..Petitioner in Rev.
Appln.No.47 of 2013 .1st Respondent in M.P.No.1/2012 2.The State of Tamil Nadu, represented by its Secretary to Government, Home (Courts-IA) Department, Fort St.
George, Chennai 600 009..2nd Respondent in Rev.
Appln.No.47 of 2013 ..2nd Respondent in M.P.No.1 of 2012 Prayer in Rev.
Appln.No.47 of 2013: Review Application filed under Order 47 Rule 1 r/w.
Section 114 of Civil Procedure Code praying to review the order of this Court dated 15.06.2010 made in W.P.No.1534 of 2007.
Prayer in M.P.No.1 of 2012 : Petition filed under Article 226 of the Constitution of India praying to modify the order dated 15.06.2010 in W.P.No.1534 of 2007 by directing the respondents herein to grant to the petitioner the Scale of pay of District Judge (Entry Level) with effect from 07.11.1990 notionally with monetary benefit from 01.07.1996 and consequently grant the Scale of Pay of District Judge (Selection Grade) with effect from 09.07.1997 and the Scale of Pay of District Judge (Super Time Scale) from 27.09.2000 with all consequential financial benefits, the Pensionary benefits and Domestic Help Allowance and Medical Allowance as applicable to District Judges/ Retired Judicial Officers as prescribed in G.O.(Ms)No.289, Home (Courts IA) Department dated 31.03.2003 and G.O.(Ms).No.581, Home (Courts IA) Department, dated 30.06.2003.
M.P.No.1 of 2012: For Petitioner : Mr.Vijayanarayan Senior Counsel For M/s.R.Parthiban For 1st Respondent : Mr.V.Ayyathurai For 2nd Respondent : Mr.P.S.Shivashanmugasundaram Additional Government Pleader Rev.Appln.No.47 of 2013: For Petitioner : Mr.P.K.Rajagopal For 1st Respondent : Mr.Vijayanarayan Senior Counsel For M/s.R.Parthiban For 2nd Respondent : Mr.P.S.Shivashanmugasundaram Additional Government Pleader COMMON
JUDGMENTM.VENUGOPAL,J.
The Petitioner (Writ Petitioner) has filed the present Miscellaneous Petition No.1 of 2012 praying for issuance of an order by this Court to modify the order dated 15.06.2010 in W.P.No.1534 of 2007 by directing the respondents to grant him the Scale of Pay of District Judge (Entry Level) with effect from 07.11.1990 notionally with monetary benefit from 01.07.1996 and consequently, grant him the Scale of Pay of District Judge (Selection Grade) with effect from 09.07.1997 and the Scale of Pay of District Judge (Super Time Scale) from 27.09.2000 with all consequential financial benefits, the Pensionary benefits and Domestic Help Allowance and Medical Allowance as applicable to District Judges/Retired Judicial Officers as prescribed in G.O.(Ms)No.289, Home (Courts IA) Department dated 31.03.2003 and G.O.(Ms).No.581, Home (Courts IA) Department, dated 30.06.2003.
The Petitioner/Registrar General (1st Respondent in M.P.No1 of 2012) has focussed the instant Review Application as against the order dated 15.06.2010 passed by this Court in W.P.No.1534 of 2007.
2.Earlier, this Court has allowed the Writ Petition No.1534 of 2007 filed by the Petitioner (Petitioner in M.P./1st Respondent in Review Application).by setting aside the impugned order passed by the 1st Respondent (High Court of Madras) with a direction to the Respondents to grant him the benefits as prescribed in G.O.Ms.No.1351 dated 18.12.2003 within a period of four weeks from the date of receipt of a copy of the order.
3.The Epitome of Factual Matrix of M.P.No.1 of 2012 in W.P.No.1534 of 2007 [filed by the Petitioner/Writ Petitioner].: (i)The Petitioner joined service as Deputy Official Assignee in the High Court with effect from 22.05.1986.
He was appointed from the Bar, when he was practicing as an Advocate.
The scale of pay of Deputy Official Assignee was Rs.2150-3090 (pre-revised).Subsequently, he was promoted to the post of Official Assignee on 07.11.1990 in the scale of pay of Rs.15000-400-18600.
(ii)The Madras High Court Official Assignee Service was merged with the Madras High Court Service with effect from 03.6.1997 as per R.O.C.No.9404/92/C1 dated 14.06.1997.
When he functioned as Deputy Official Assignee through G.O.Ms.No.864, Home Department, dated 23.04.1990 the scale of pay for the post of Deputy Official Assignee was revised from Rs.1575-2575 to Rs.2150-3090 to be on par with that of Subordinate Judges with effect from 01.10.1984.
(iii)As far as the Petitioner is concerned, the revision took effect from 22.05.1986, which is the date of joining service in terms of the Jdugments of this Court in W.P.No.788 of 1988 dated 28.07.1988 and W.A.No.84 of 1990 dated 15.02.1990.
(iv)When the Petitioner was promoted to the post of Official Assignee on 07.11.1990, he was placed in the scale of pay of Rs.15000-400-18600, which was on par with the scale of pay of District Judge.
Further, in W.P.No.1022 of 1989 filed by the All India Judges' Association, the Hon'ble Supreme Court passed orders for the constitution of FiRs.National Judicial Pay Commission, which was headed by Hon'ble Justice Jagannatha Shetty (Retired Judge of Supreme Court) and this Commission submitted its report on Pay Scales, Designations, Conditions of Service etc.of Subordinate Judiciary in India.
Indeed, the recommendations of this Commission were accepted by the Hon'ble Supreme Court and an order was passed to the effect that the Judicial Officers shall be paid salary in the revised pay scale as proved by Supreme Court with effect from 01.07.2002 and the arrears of salary for the period from 01.07.1996 and 30.06.2002 would either be paid in cash to the Judicial Officers or the States may make the payment by crediting the same in the Provident Fund Account of the respective Judicial Officers by spreading the same over the entire period so as to minimize the income tax liability.
(v)Accordingly, the Government of Tamil Nadu issued G.O.Ms.No.289 and 581, Home (Courts-IA) Department, dated 31.03.2003 and 30.06.2003 respectively, granting the scale of pay to the Judicial Officers as recommended by the Commission with effect from 01.07.1996 and to credit the arrears of salary into the General Provident Fund Account of the Judicial Officers concerned.
The pay scale of the District Judge were divided into three categories as follows: ".i)District Judge (Entry Level) - Rs.16750-400-19150-450-20500 ii)District Judge (Selection Grade).Rs.18750-400-19150-450-21850-500-22850 iii)District Judge (Super Time Scale) Rs.22850-500-24850".
(vi)In the High Court, the post of Registrar had always been treated on par with the post of District Judge for the purpose of pay.
Apart from District Judges, who are on deputation to the High Court, as the Registrar General/Registrar (Judicial)/Registrar (Vigilance).there were two Registrars from the High Court Administration itself, viz., Thiru R.Venkatesan, Registrar (Administration) and Thiru G.Chinniah Naidu, Registrar (Management).who drew the pay of Rs.15000-400-18600 on par with District Judge.
When the scale of pay of District Judge (Entry Level) was revised to Rs.16750-20500, they made representations to the High Court for revision of their scale of pay to Rs.16750-20500 with effect from 16.10.1998 and 06.09.1999 respectively, on those dates from which they are holding the post of Registrar.
According to them, the post of Registrar General and the Registrar are borne on Category-I of Division-I of the Madras High Court Service Rules and therefore, they should also be entitled to higher scale of pay of Rs.16750-20500.
Their representation was considered and strong recommendation was made by the High Court that their request has been accepted by the Government.
By means of G.O.Ms.No.1351 dated 18.12.2003, the Government carefully considered the proposal of the High Court and accepted the same by granting the scales with effect from respective dates on condition that the above revised pay scales shall be applicable only to those who officers as Personal Pay and the same is not applicable to the successors of the above post, if they happen to be non-judicial officeRs.(vii)After coming to know of the aforesaid development, he made a representation on 24.01.2005 to the 1st Respondent/ Registrar General of Madras High Court mentioning that the post of Registrars and the post of Official Assignee has always been treated on par and that after the merger of service, the post of Official Assignee was also included in Category I of Division I of the High Court Service Rules similar to that of Registrar, Additional Registrar and Chief Editor of Tamil Law Journal.
(viii)The Petitioner submitted the post of Official Assignee had onerous responsibilities like, (i)Administering Oaths under Section 78 of the Presidency Towns Insolvency Act; (ii)Possession of judicial powers in enquiring into proof affidavit; (iii)Adjudicating on claims on Insolvency law; (iv)Administering the estate of Insolvents etc.Also that, the two then RegistraRs.as aforesaid, were appointed only on 16.10.1998 and 06.09.1999 and therefore, they were far junior in the same cadre in the Madras High Court Services.
(ix)Moreover, at the time of his appointment as Official Assignee, the two Registrars were holding much lower post and as such, the same principle for revision of scale of pay extended in the case of the Registrar in the High Court Services should be applicable to him.
His representation was rejected by the High Court by an order dated 19.07.2005.
A reconsideration Petition was also submitted, but it had not yielded any result.
4.The Relevant Counter Averments [filed by the 1st Respondent/Review Applicant].: (i)This Court passed a reasoned order dated 15.06.2010 in the Writ Petition by directing the Respondents therein to grant the Petitioner the benefits prescribed in G.O.Ms.No.1351 dated 18.12.2003 which was duly complied with in terms of G.O.Ms.No.393, Home (Cts-I) Department dated 15.07.2011 by granting the scale of pay of the Petitioner revised as per District Judge (Entry Level) at Rs.16750-400-19150-450-20500 with effect from 01.07.1996 (i.e.) the date from which the revised scales of pay were implemented to the Judicial OfficeRs.Also that, the Government had granted the Petitioner the revised scale of pay as District Judge (Selection Grade) at Rs.18750-400-19150-450-21850-500-22850 with effect from 01.07.2001 (i.e.) on completion of five years from 01.07.1996.
(ii)The District Judges were granted the pay scales as recommended by the FiRs.National Judicial Pay Commission from 01.07.1996, whereas the Petitioner has sought for the grant of the scales of pay implemented on the recommendation of the FiRs.National Judicial Pay Commission retrospectively from 07.11.1990.
(iii)Before 01.07.1996, the District Judges were classified under two grades viz., i)District Judges (ordinary grade) and (ii)District Judges (Grade-I).The movement of the District Judges from Ordinary Grade to Grade I was the result and granting of the same by the Hon'ble Judges on thorough scrutiny of their performance considering their merit and seniority as well.
(iv)Those Judicial OfficeRs.who were granted Grade-I scale of pay were given the benefit of Selection Grade of pay with effect from 01.07.1996 itself.
The super time scale was granted by the Hon'ble High Court after three years of service in the selection grade scale of pay.
Therefore, the District Judges in the cadre post were granted super time scale of pay with effect from 01.07.1999 only.
(v)In regard to the grant of selection grade scale and also the super time scale there are restrictions based on the percentage of the cadre strength fixed for the same as also the number of years of service, the District Judges should have completed in the respective cadre.
25% the cadre strength has been fixed for awarding Selection Grade Super Time Scale and 10% of the cadre strength has been fixed for awarding Super Time Scale.
For the grant of Selection Grade Scale and Super Time Scale, the District Judges ought to have completed 5 years in the Entry Level scale and 3 years in the Selection Grade Scale respectively.
(vi)The Petitioner's case does not have any such scrutiny/ restriction as the post of Official Assignee does not come under the cadre strength of the District Judges.
Moreover, granting the Selection Grade Scale and Super Time Scale to the District Judges in the cadre post is not a matter of routine or automatic on completion of 5/3 years service in the respective scale.
However, the plea of the Petitioner is for grant of said scales automatically on completion of 5/3 years service and that too with retrospective benefit from the year 1990 onwards.
But the implementation of the recommendation of the FiRs.National Judicial Pay Commission revising the scale of pay of District Judges takes effect from 01.07.1996.
(vii)The Petitioner in W.P.No.1534 of 2007 had not directly claimed any benefits on par with those available to the District Judges.
His stand was that the post of Registrar in the High Court has been treated always on par with the post of District Judge for the purpose of pay.
Also, the post of Registrar General and Registrar are borne on Category-I of Division -I of the Madras High Court Service Rules.
(viii)Added further, the post of Official Assignee has always been treated on par with that of Registrar after the merger of the service as the post of Official Assignee was also included in the same category and division of the High Court Service Rules.
As such, the benefits available to the post of Registrars should be made available to the post of Official Assignee also.
That apart, according to the Petitioner, the post of Official Assignee has onerous responsibilities as that of Registrars and on that score also, he has laid the claim.
(ix)The post of Official Assignee, to which the Petitioner was appointed on and from 07.11.1990, came to be merged in the Category-I and Division-I of the High Court Service by virtue of Notification in R.O.C.No.9404/92/C1 pursuant to the decision taken by the Committee of Hon'ble Judges and the integration/merger came into effect from 03.06.1997, by virtue of the amendments notified under the said reference and the said amendments come into effect from 03.06.1997.
Therefore, the benefits by virtue of the merging of the post of Official Assignee in Category-I and Division-I of the High Court Service Rules could be availed of only in a prospective manner and not otherwise.
Also, the very notification mentions that consequent on the amendments to the relevant service rules, the Madras High Court Official Assignee Service Rules stood rescinded.
Also that the Petitioner attained the superannuation on 31.07.2001.
As on date of his retirement, he had not even completed five years in the post of Official Assignee after the post came to be merged in the category on par with the Registrars as stated supra.
Inasmuch as the Petitioner could not even claim Selection Grade because of the reason he had not completed five years service in the post after the merger and therefore, the question of reckoning his service from 11.07.1990 does not arise based on the facts and circumstances of the case.
(x)The Petitioner never prayed for extension of Grade-I pay scale which was in existence prior to 01.07.1997 to the District Judges in the cadre post on awarding it by the Hon'ble Judges Committee, on completion of 5 years from his date of entry into the cadre of Official Assignee under the Madras High Court Service.
Also that the post of Official Assignee could not be equated to the post of District Judge by virtue of the nature of the work done by the Official Assignee.
(xi)The Government had granted the District Judges Entry Level scale to the Petitioner from 01.07.1996, the date of implementation of the FiRs.National Judicial Pay Commissions Recommendations and then the Selection Grade Scale from 01.07.2001 but the two Registrars viz., R.Venkatesan and G.Chinniya Naidu got the benefits of District Judges entry level scale from 16.10.1998 and 06.09.1999 respectively, the date from which they were awarded the Selection Grade Scale as well.
Similar benefits were also received by the Petitioner, granted by the State Government.
5.The necessary averments of Additional Counter Affidavit filed by the 1st Respondent in M.P.No.1 of 2012[High Court of Madras rep.
by its Registrar General ].: (i)The erstwhile Registrar (Administration) viz., G.Chinniya Naidu entered the service as Steno-Typist in the Sub Court, Vellore, on 08.09.1969.
He entered the High Court service as P.A.to the Hon'ble Judges on 28.09.1979.
He was promoted as Assistant Registrar on 21.04.1993.
initially, he was Assistant Registrar O.S.Later, he was posted as Assistant Registrar (Administration).On 01.07.1998, he was promoted as Deputy Registrar (Protocol).On 27.01.1999, he became the Private Secretary to the Hon'ble Chief Justice in which capacity he served till 30.04.1999.
He was appointed as Master on 01.05.1999 and served as such till 05.09.1999.
With effect from 06.09.1999, he served as Additional Registrar O.S (later the said post was re-designated as Registrar (Management) and served as such till 01.05.2005.
He was posted as Registrar (Administration) on 01.05.2009 and served as such till his retirement on 31.08.2009.
He retired on completion of period of extension of service by three yeaRs.He passed B.L., Degree from Bangalore University in November 1988 and later, passed M.L., examination.
(ii)The former Registrar (Administration) viz., R.Venkatesan entered into service as Shorthand Writer in the District Munsif Court, Ranipet, on 06.10.1969.
He entered into the High Court service on 27.09.1979 as P.A.to the Hon'ble Judges.
He was promoted on 04.03.1992 as Assistant Registrar.
Later, he was promoted as Deputy Registrar on 20.09.1993.
He was posted as Personal Secretary to the Hon'ble Chief Justice on 27.06.1997 and served in that capacity till 24.09.1997.
He became Additional Registrar (Administration) from 16.10.1998 which post was re-designated as Registrar (Administration) and served in that capacity till 30.04.2005 on which date he attained superannuation, at the age of 58 yeaRs.He passed his B.L., Examination in December 1989.
(iii)Based on the proposal sent by the High Court for revision of scale of pay for the aforesaid two Registrars from the respective dates from which they were posted the Registrars on the ground that the duties and responsibilities of the Registrar General and the RegistraRs.drafted from the District Judges cadre and that of the other Registrars are similar and equal and also since both the posts are within the Category-I, Division-I of the Madras High Court Service Rules, the Government of Tamil Nadu passed G.O.Ms.No.1351, dated 18.12.2003, wherein the Government directed that the scale of pay proposed by the High Court shall be given to them subject to the condition that the revision shall be applicable only to these two Officers as personal to them and is not applicable to the successors of the above posts if they happen to be Non-Judicial OfficeRs.(iv)As far as S.Balasubramanian (the then Registrar of Tamil Nadu Taxation Special Tribunal) is concerned, he entered into High Court Service as Clerk on 14.08.1967 and became Section Officer on 28.09.1983 and as Assistant Registrar on 17.03.1998.
Later, he was deputed to the State Consumer Disputes Redressel Commission as Registrar with effect from 07.10.1991 and served as such till 26.06.1997.
He was promoted as Special Officer Grouping (on paper) from 31.10.1995 and as Deputy Registrar (on paper) 19.03.1997.
He was promoted as Master from 17.04.2000.
He was promoted to the cadre of Registrar and posted as Official Assignee from 12.07.2000 and served as such till 03.09.2000.
He was deputed to the Tamil Nadu Taxation Special Tribunal, Chennai, as Registrar and served in that capacity from 04.09.2000 till 30.06.2003, on attaining superannuation at the age of 58 yeaRs.(v)The said S.Balalsubramanian made a representation on 09.06.2004, claiming the scale of pay which was given to the said G.Chinniya Naidu and R.Venkatesan (then Registrars of this Court) and the said representation was rejected by the High Court by means of an Official Memorandum, dated 29.11.2005.
(vi)In regard to Ms.Padmavathi (then Chief Editor of Tamil Nadu Law Journal).she entered into the High Court service as Clerk on 23.08.1968.
She became Section Officer with effect from 15.02.1987 and was promoted as Assistant Registrar on 13.12.1990.
She served in that capacity till 10.06.1996.
She was posted as Official Referee on 11.06.1996 and served as such till 01.02.1998.
She became Deputy Registrar on 02.02.1998 and served as such till 11.07.2000.
From 12.07.2000 to 17.08.2001, she served as Master.
Thereafter, she was promoted as Chief Editor of Tamil Law Journal from 17.08.2001 and served as such till 30.06.2004 on which date she retired on attaining superannuation.
She made representation on 05.02.2004 praying for scale of pay on par with what was given to the then Registrars viz., G.Chinniya Naidu and R.Venkatesan, claiming it with effect from 20.08.2001.
Her representation was rejected by the High Court through an Official Memorandum, dated 15.07.2005.
(vii)As regards S.Sitrarasu (then Deputy Official Assignee).he served in that capacity from 18.12.1991 to 07.08.2001 and subsequently, became Official Assignee and served in that capacity from 07.08.2001.
While in service, he made similar representation on 01.02.2004, based on the same ground and the same was rejected on 15.07.2005 by the High Court.
(viii)S.Balasubramanian, S.Sitrarasu, V.Padmavathi and the Petitioner (T.P.Parameswaran) served in different posts in the cadre of Registrar and they had made individual representations for extension of the benefits viz., the District Judges (Entry Level) Scale and then the District Judges (Selection Grade) Scale and their cases have been rejected, by separate proceedings of the High Court on the basis that the Government Order extending the benefits to the two Registrars of the High Court by name R.Venkatesan and G.Chinniya Naidu, are personal to them.
6.The Summation of Facts in Review Application No.47 of 2013: (i)During the couRs.of hearing of Modification Petition in M.P.No.1 of 2012, it was realised that this Court had granted the benefit of G.O.Ms.No.1351 dated 18.12.2003 to the 1st Respondent (Writ Petitioner) on the assumption that the posts of Registrar (Administration).Registrar (Management) and Official Assignee are equal to the post of District Judge (vide paragraph 5 of the orders passed in W.P.No.1534 of 2007).Such assumption is an erroneous one on account of the fact that the Official Assignee does not sit as a Judge and decide any issue in any lis by any adjudicatory process.
He only appears before Court and assisted the Courts in insolvency and other matteRs.Therefore, he cannot be equated to a District Judge.
(ii)Also, the post of Official Assignee was included in Category-I Division-I of High Court Service only with effect from 03.06.1997 and it is made clear that such inclusion by amendment to rules is only prospective.
Therefore, the benefits of inclusion of the post of Official Assignee in Category-I Division-I of High Court Service Rules will be available to the 1st Respondent only 03.06.1997.
(iii)In fact, the 1st Respondent (Writ Petitioner) retired from service on 31.07.2001.
By that time, he had rendered service as Official Assignee, after coming into force of the amendment to High Court Service Rules as mentioned supra, only for a period of 4 years and one month and therefore, he would not be entitled to any benefits thereunder.
As such, he could not claim any benefits on par with the District Judges or Registrars of the High Court.
Moreover, the benefits conferred under G.O.Ms.No.1351 dated 18.12.2003 were showered on the concerned Registrars individually as one time measure and in the G.O., it was made clear that such benefits could not be claimed by any person, who is a non-Judicial Officer.
7.The contents of Counter Affidavit in Review Application filed by the 1st Respondent (Petitioner/Writ Petitioner).(i)The order passed by the W.P.No.1534 of 2007 which is the subject matter of the present Review Petition was dated 15.06.2010.
The order was made ready on 02.07.2010.
As such, the Review Petition should have been filed on or before 01.08.2010.
There was a delay of over 1000 days in filing the present Review Petition.
Also, no petition for condonation was filed.
(ii)In fact, the Review Petitioner accepted the order of this Court passed in W.P.No.1534 of 2007 dated 15.06.2010.
The order of this Court passed in the Writ Petition was forwarded by the Registrar General through a letter dated 08.11.2010 to the Government for passing appropriate orders and the Government accepted the orders of this Court and passed G.O.Ms.No.393, Home Department, dated 15.07.2011 wherein it was specifically mentioned that the Government had decided to accept the proposal of the High Court to implement the orders of this Court.
(iii)In this background, since the 1st Respondent (Writ Petitioner) has not prayed for certain benefits in the Writ Petition, he filed M.P.No.1 of 2012 to clarify the order passed by this Court in the Writ Petition.
At that stage, the Review Petition came to be filed.
The Review Petitioner/1st Respondent, after having accepted the earlier order of this Court, is not entitled, in law, to file the present Review Petition.
(iv)Under the guise of Review Petition, it is not open to the Review Petitioner to reargue the matter and also that the Review Petition cannot be a substitute for an Appeal.
Furthermore, no new fact is sought to be urged and the Review Petitioner is really seeking to re-argue the case.
The only ground taken in the Review Petition before this Court is that this Court should not have held that the post of Official Assignee is equal to the post of District Judge.
(v)As a matter of fact, it was the case of the 1st Respondent/ Petitioner that from time immemorial the pay of the two posts were also the same.
In fact, prior to 1964, the pay of the post of Official Assignee was higher than the post of District Judge and the District Judges were also posted and acted as Official Assignee and that the Sub-Judges were posted as Deputy Official Assignee.
But successful Pay Commissions recommended that the pay of the two posts should be equal; so also the post of Deputy Official Assignee was also treated on par with the pay of the Subordinate Judge and in one instance when the pay of the Subordinate Judge became higher, the FiRs.Respondent (Writ Petitioner).who was then the Deputy Official Assignee filed W.P.No.788 of 1988 for revision of the scale of pay on par with that of Subordinate Judge.
The Writ Petition was allowed on 28.07.1988 with a direction to revise and refix the scale of pay and Writ Appeal No.84 of 1990 against the said order was also dismissed on 15.02.1990.
The said order was implemented in G.O.(Ms).No.864, Home Department, dated 23.04.1990; so also the post of Official Assignee was always at the same scale of pay as that of the District Judge.
(vi)The 1st Respondent/Writ Petitioner made a representation that he should also get the same scale of pay as that of two then Registrars viz., R.Venkatesan, Registrar (Administration) and G.Chinniah Naidu, Registrar (Management).From the year 1997, the Official Assignee service was merged with the High Court Services and the pay of the post of Official Assignee was equated with the pay of the post of Registrar General, which at that time was the same as that of District Judge.
Only when the representation of the 1st Respondent/ Petitioner was rejected by this Court on 19.07.2005, the Petitioner was constrained to file Writ Petition before this Court.
The order passed by this Court in W.P.No.1534 of 2007 dated 15.06.2010 is a valid and well considered order.
Hence, the Review Application is liable to be dismissed.
The Background Facts: 8.It is to be pointed out that R.Venkatesan, the then Registrar (Administration).High Court, Madras and G.Chinniya Naidu, the then Registrar (Original Side).High Court, Madras addressed a letter dated 23.05.2002 to the Hon'ble Chief Justice stating that the post of Registrar is borne on Category 1 of Division-I of Madras High Court Service Rules and that while the present Registrar General and Registrar (Judicial) belong to the Tamil Nadu State Judicial Service, the Registrar (Administration) and the Registrar (Original Side) belong to High Court service.
Further, they mentioned that a scale of pay of the Registrar General and other Registrars is that of Grade II District Judge, viz., Rs.15000-400-18600, irrespective of the fact that whether they belong to Judicial Service or High Court Service (Except when the Registrars belonging Judicial Service move to the super time scale, viz., Rs.16400-450-20000).Also that, the duties and responsibilities of the Registrar General and other Registrars are similar and equal as the work done by them is as per the directions of His Lordship The Hon'ble Chief Justice.
Besides, all the Registrars enjoy the other perks equally except in the matter of number of free telephone calls which are higher for the Registrar General.
9.Added further, they have stated in the representation that in view of the directions of the Hon'ble Supreme Court of India in All India Judges' Association and others V.
Union of India and others case, by Judgment dated 21.03.2002, while considering the recommendations of the National Judicial Pay Commission in the matter of pay scales and other perks to the Judicial OfficeRs.gave directions, with certain modifications, to the Union of India and the State Government to implement the new scales of pay with effect from 01.07.2002.
Therefore, they have prayed for the grant of benefit of Selection Grade scale of pay given to the District Judges on their completion of 5 years of service may be extended to them also on their completion of 5 years service as otherwise they may not move to Selection Grade at all even though they would have put in more than 5 years in the post of Registrar before their retirement.
Therefore, they have prayed for the grant of benefit of the revised scale of pay from the respective dates of their moving in the cadre of post-District Judges (RegistraRs.viz., from 16.10.1998 and 06.09.1999.
10.Based on their representation dated 23.05.2002, on 04.04.2003, the Office of the Registry was directed by the then Hon'ble Chief Justice put up a Note to him.
Accordingly, an Office Note in R.O.C.No.5580-A/2002-B2 was prepared and submitted before the then Hon'ble Chief Justice for perusal and praying for necessary orders in regard to the request made by the then RegistraRs.through their representation dated 23.05.2002.
In the Office Note, it was mentioned, inter alia, that by tradition, the post Registrar General (the erstwhile post of Registrar) is filed up on deputation by a District Judge from the Tamil Nadu State Judicial Service and the present scale of pay of the post of Registrars including the Registrar General, is Rs.15000-400-18600 and if the posts are presided over by the District Judges (Super Time Scale) or such other cadre, they shall draw their respective scale of pay in the respective posts.
Also that the Note referred to the copy of the G.O.Ms.No.289, Home (Courts-IA) Department dated 31.03.2000 wherein the orders were issued by the Government granting the scale of pay to the Judicial Officers of Tamil Nadu State Judicial Service as recommended by the FiRs.National Judicial Commission with effect from 01.07.1996.
Continuing further, the Note also mentioned that the Registrars of the High Court and the District Judges of the Tamil Nadu State Judicial Service were hitherto drawing the equal scale of pay and therefore, it appears that the request of the two Registrars of the Madras High Court Service requesting the Hon'ble High Court to pass appropriate orders permitting the same analogy to continue by providing equal scale of pay i.e.Rs.16750-400-19150-450-20500 from the date of assumption of their charge in the post of Registrar, High Court, Madras viz., 16.10.1998 and 06.09.1999 respectively and the Selection Grade scale of pay of Rs.18750-400-19150-450-21850-500-22850 on their completing of 5 years of service may be considered.
The then Hon'ble Chief Justice perused the Office Note put up by the Registrar General on 04.04.2003 and passed orders in extending the benefits that may accrue consequent to the implementation of the orders of the Hon'ble Supreme Court in the matter of revising the pay scales of the Judicial Officers as per the recommendations of the FiRs.National Judicial Pay Commission.
Clarification sought for by the Government and Replies sent by the Registry: 11.The Government sought clarification in the matter, through its letter dated 22.08.2003 and had requested the High Court to furnish the following particulars so as to enable the Government to examine the proposals sent by the High Court: 1.The scale of pay of the Registrars of High Court including the Registrar General before the sixth pay commission.
2.The scales of pay of other Registrars of High Court including the Registrar General, after the sixth pay commission.
3.The scales of pay of the Registrars of High Court including the Registrar General after implementation of the Shetty Commission Report.
12.Further, the Government also requested the High Court to state whether the scale of pay all the four Registrars of the High Court could be equated.
As such, the Registry of the High Court put up a Note before the then Hon'ble Chief Justice in regard to the furnishing of aforesaid particulars requested by the Government and obtained necessary orders thereto on 01.09.2003 to that effect.
13.The former Registrar General of this Court in R.O.C.No.5580-A/2002-B2 dated 01.09.2003 addressed a letter to the Secretary to Government, Home Department, Government of Tamil Nadu, Chennai, inter alia, mentioning that the posts of Registrar General and RegistraRs.mentioned in the said letter, could be equated since they are filled up by posting the District Judges Grade II by transfer and by promotion from the High Court Service and parity in the scale of pay has also been maintained till date.
Since the Government in Letter No.37275/Courts-IA/03-6 dated 29.09.2003 after examining the proposal of the High Court in regard to the revised scale of pay be made applicable to the post of Registrar (Administration) and Registrar (Management) had stated that the aforesaid proposal was examined by them and decided that the proposal was not acceptable.
14.As such, the Office Note so put up by the then Registrar General on 08.10.2003 before the then Hon'ble Chief Justice of this Court, among other things, mentioning that R.Venkatesan was promoted as Additional Registrar (now Registrar, Administration) on 16.10.1998 and that he functioned in the said post for the past five years and he was about to retire during the month of April 2005 and that G.Chinniya Naidu was permitted as Additional Registrar (now Registrar, Management) on 06.09.1999 and that he was functioned in the said post for the past four years and he was about to retire during the month of August 2006.
Further, it was stated that both the Registrars were having only lesser number of years of service, the benefit given in G.O.Ms.No.289, Home (Courts-IA) Department, dated 31.03.2003 might be extended to them alone and sought orders whether proposal may be reiterated to the Government on the aforesaid said lines mentioned supra.
Accordingly, an order was passed by the Hon'ble Chief Justice on 08.10.2003 to reiterate the proposal.
As such, the Registrar General of this Court in D.O.Lr.No.5580-A/2002-B2 dated 08.10.2003 has reiterated the proposal.
15.On 31.10.2003, the Government, in D.O.Lr.No.90396/CTS.IA /2003-1, addressed the Registrar General of this Court requesting him to state whether Non-Judicial Officers working in the High Court Service like Registrar (Management) and Registrar (Administration) have been allowed the revision of scale of pay recommended by Shetty Commission and ordered by the Supreme Court of India in other States like Kerala, Karnataka and Andra Pradesh and solicited an early reply.
The Registrar General of this Court, through in D.O.No.5580-A/2002-B-2 dated 14.11.2003, addressed to (i) The Secretary to Government, Home Department, Secretariat, Chennai-9 and (ii)The Secretary to Government, Finance Department, Secretariat, Chennai-9, sent a reply stating that the Registrar (Administration) and the Registrar (Management) in the High Court of Madras render the same duties as of other RegistraRs.who were drawn on deputation from the Tamil Nadu Judicial Service, and as such, enquiring the other States in the light of the recommendations by the Shetty Commission, might not be relevant and therefore, reiterated the recommendation which was already made on 08.10.2003 in the fiRs.Reference cited therein.
16.Also, in D.O.Lr.No.5580-A/2002-B2 dated 11.12.2003, the Registrar General of this Court requested the Secretary to Home Department and Finance Department to obtain orders of the Government in regard to the proposal sent relating to the revision of scale of pay pertaining to R.Venkatesan and G.Chinniya Naidu (then RegistraRs.on par with other Registrars on the lines of the order passed in G.O.Ms.No.289, Home (Cts.IA) Department, dated 31.03.2003 and communicated thereto.
Ultimately, the Government issued G.O.Ms.No.1351, Home (Courts.IA) Department, dated 18.12.2003 extending the revised scale of pay to Registrar (Administration) and Registrar (Management) from pay scale of Rs.15000-400-18600 to Rs.16750-400-19150-450-20500 with effect from 16.10.1998 and 06.09.1999 respectively subject to the condition specified therein.
Representation: 17.On 02.07.2008, G.Chinniya Naidu, the then Registrar (Administration) addressed a letter to the Registrar General (Review Applicant).has, inter alia, stated that the Government in G.O.Ms.No.717, Home (Courts.I) Department, dated 20.06.2008, have now ratified the action of the High Court in having granted Selection Grade scale of pay to himself and R.Venkatesan, then Registrar (Administration) now retired and allowed the benefits extended by G.Os.
aforesaid, in its entirety, as a person oriented benefit and requested for the grant of super time scale of pay of Rs.22,850-500-24850 to him, as on 06.09.2007, which scale of pay is next above the Selection Grade scale of pay, since he has completed a period of three years of service from the date of his movement to Selection Grade as on 06.09.2007.
Added further, he has stated that he has already been drawing basic pay of Rs.22,350/- in Selection Grade scale of pay on and from 01.07.2007.
The Registry placed the representation of the then Registrar (Administration) of the High Court dated 02.07.2008 before the Hon'ble Chief Justice by means of a Note and the Hon'ble Chief Justice on 18.07.2008 has directed the matter to be placed before the Administrative Committee of the High Court.
18.On 13.02.2009, the Administrative Committee, in its meeting, has resolved to refer the matter (relating to the consideration of then Registration (Administration) for awarding of super time scale of pay) to the Hon'ble Chief Justice for constitution of a Committee for its report.
On the basis of the Registrar General's Note on 06.03.2009, the Acting Chief Justice of this Court has directed the matter to be placed before the Committee consisting of two Hon'ble Judges of this Court.
Recommendation and Rejection: 19.The Hon'ble Committee Judges of this Court, through their Minutes Proceedings dated 05.05.2009, have, inter alia, observed that the subsequent G.O.Ms.No.717, dated 20.06.2008, was based on the D.O.Letter of the High Court dated 01.08.2007, where, in the ultimate paragraph it was specifically stated that Mr.G.Chinniya Naidu, [the then Registrar (Administration)].should be granted Selection Grade as well as Super time scale from September, 2007.
Further, the plea for the grant of Supertime scale was significantly not rejected by the State Government.
Continuing further, it is also stated that the fact that the individual is working beyond the original age of superannuation viz., 31.08.2006 till this date, based on the specific Government Orders extending his service in public interest, there is every justification in his claim for the grant of Super time scale also.
Though there is no supporting rule or regulation providing for such grant.
Ultimately, a recommendation has been made for the grant of Super time scale as a special case to G.Chinniya Naidu on a specific condition that such grant cannot be quoted as a precedent in any other case in future.
However, on 12.06.2009, the Hon'ble Chief Justice of this Court has not accepted the recommendation of the Hon'ble Committee of Hon'ble Judges dated 05.05.2009.
20.The grant of one time personal monetary benefits granted to the then Registrar (Administration) and Registrar (Management) has paved way for others like, S.Balasubramanian, S.Sitrarasu, V.Padmavathi and the present Petitioner (T.P.Parameswaran) to make similar claims before this Court through their representations and ultimately, they were rejected by this Court.
Representation of the Petitioner/Writ Petitioner: 21.The Petitioner/Writ Petitioner [1st Respondent in Review Application].submitted his representation dated 24.01.2005 addressed to the Registrar General wherein he prayed for the extension of revised scale of pay to him, among other things, mentioning that the duties and responsibilities of the Registrar General and other Registrars and that of the Official Assignee are similar and equal as they deal with the subjects as allotted by the Hon'ble Chief Justice and that the post of the Official Assignee and the Registrars including that of Registrar General are borne on Category 1 Division I of the Madras High Court Service Rules and further requested that as per G.O.Ms.No.1351, Home (Courts.IA) Department dated 18.12.2003, he may be considered for movement to the Selection Grade from 07.11.1995 and also to the Super Time Scale with effect from 07.11.1998 for having served as Official Assignee for 10 years and more in the same cadre of Category 1 Division I of the Madras High Court Service from 07.11.1990 and attained superannuation on 31.07.2001.
22.The Petitioner sent similar letter to the Secretary, Home Department, Government of Tamil Nadu, Chennai and the Government, by citing its Letter No.8934/CTS.IA/2005-1, dated 11.02.2005, sought specific remarks from the High Court being sent to the Government as per Letter No.8934/CTS.IA/2005-2, dated 08.04.2005.
The representation of the Petitioner was placed before the then Hon'ble Chief Justice of this Court and the same was rejected on 08.07.2005.
The Registrar General of this Court sent a communication in R.O.C.No.1809/2005-B2 dated 19.07.2005 to the Petitioner that the representation submitted by the Petitioner was considered and the same was rejected.
It cannot be gainsaid that an order passed without ascribing reasons is an unjust one from the point of view of an aggrieved person, viz., the Petitioner/Writ Petitioner, in the present case on hand.
Backdrop of Previous Litigations: 23.It may not be out of place for this Court to point out that the Petitioner/Writ Petitioner (1st Respondent in Review Application) has earlier filed W.P.No.788 of 1988 wherein he has prayed for issuance of an order by this Court to quash the impugned Letter No.30854/Cts.V/ 87-2 dated 04.09.1987 issued by the Deputy Secretary to Government, Home Department, Government of Tamil Nadu, Madras 9 and also to direct the Respondents 1 and 2 therein to revise and re-fix his scale of pay as the post of Deputy Official Assignee, High Court, Madras with effect from 01.10.1981 and in so far as he is concerned from 22.05.1986 on par with that of the posts of the Subordinate Judges, Official Referee and Special Officer (Grouping).High Court, Madras with all attendant benefits.
24.On 28.07.1988, this Court, while passing order in W.P.No.788 of 1988 filed by the Petitioner, has, inter alia, observed that 'The impugned letter is one by and under which there was a decline on the part of the State to accede to the request of the 3rd Respondent to revise the scale of pay of the post of Deputy Official Assignee on par with that of Subordinate Judges.
There is one indisputable element, which comes to the aid of the Petitioner, who is now in the category of Deputy Official Assignee, with reference to his plea for refixing the scale of pay on par with that of the Subordinate Judges effective from 22.05.1986 the date on which, he assumed the post and that is the principle equal pay for equal work.
The post of Deputy Official Assignee has been treated all along on par with the post of the Subordinate Judge.
This is not being disputed by Respondents 1 and 2.
Dealing with a similar plea by the Deputy Registrar and the Special Officer for Grouping of cases of this Court, a Bench of this Court in S.JAYARAMAN AND ANOTHER V.
THE STATE OF TAMIL NADU REPRESENTED BY ITS COMMISSIONER AND SECRETARY TO GOVERNMENT, HOME DEPARTMENT, MADRAS-9 AND OTHERS (W.P.No.4229 of 1984, Order dated 07.11.1984) applied the principle equal pay for equal work and countenanced the plea for equalisation of their scale of pay with that of the Subordinate Judge.
Nothing convincing is stated before me on behalf of Respondents 1 and 2 to make any departure in the case of the post of Deputy Official Assignee, which post the Petitioner is occupying' and resultantly, allowed the petition by directing the Respondents 1 and 2 to revise and re-fix the scale of pay of the Petitioner as prayed for by him within a period of eight weeks from the date of receipt of a copy of this order.
25.The Writ Appeal No.84 of 1990, preferred by the State of Tamil Nadu represented by Commissioner and Secretary to Government and two otheRs.as against the order passed by this Court in W.P.No.788 of 1988 dated 28.07.1988, came to be dismissed on 15.02.1990.
26.It is pertinent for this Court to point out that the Employees in the office of Official Assignee, High Court, Madras viz., R.Kumar and 24 others filed W.P.No.1 of 1993 on the file of this Court against the State of Tamil Nadu, represented by its Secretary, Home Department, the Registrar, High Court and the Official Assignee, Madras seeking for issuance of direction to the Respondents 1 and 2 to revise the nomenclature of various posts in the Madras High Court Official Assignee Service on par with the Madras High Court Service and pay the scales of pay with effect from 01.10.1984 and for other reliefs.
27.On 19.01.1996 in W.P.No.1 of 1993, this Court passed an order directing the Respondents 1 and 2 therein to change the nomenclature of the Staff of the Madras High Court Official Assignee Service with that of the equal categories in the Madras High Court Service and the Tamil Nadu Secretariat Service within three months from today.
Further, the Respondents 1 and 2 have been directed to revise and re-fix the scales of pay of various categories of the Madras High Court Official Assignee Service on par with that of the equal categories of Madras High Court Service and the Tamil Nadu Secretariat Service Rules within two months from the date of change of nomenclature.
Ultimately, this Court opined that the benefits given to the staff of the Madras High Court Service on and after 01.06.1988, the date of implementation of the Tamil Nadu Fifth Pay Commission be extended to the staff of the Madras High Court Official Assignee Service also in regard to pay allowances, etc.The Respective Pleas and Rival Submissions: 28.The stand taken by the Petitioner/Writ Petitioner is that two individuals viz., R.Venkatesan, Registrar (Administration) and G.Chinniya Naidu, Registrar (Management) were far juniors to the Petitioner and got appointed to the cadre of Registrars only 16.10.1998 and 06.09.1999 respectively, whereas the Petitioner was appointed as Official Assignee on 07.11.1990 and that the aforesaid individuals had the liberty to move only to the scale of pay of Rs.18750-22850, which is equivalent to the scale of pay of District Judge (Selection Grade).but they did not have the opportunity to move to the scale of pay of Rs.22850-24850, which is equivalent to the scale of pay of District Judge (Super Time Scale).As such, if the District Judge scale of pay is extended to the case of the Petitioner from the date of appointment as Official Assignee, then, he would have drawn the scale of pay of entry level from 07.11.1990 notionally with monetary benefit from 01.07.1996 and would have drawn the scale of pay as applicable to that of District Judge (Selection Grade) with effect from 09.07.1997, when the vacancy arose in the Selection Grade, though in the normal couRs.the Petitioner would have got it after expiry of five yeaRs.also that the Petitioner would have moved to the Super Time Scale on 27.09.2000 when the vacancy arose on completion of three yeaRs.29.Accoring to the Petitioner, a perusal of the Annexure to R.O.C.No.53/2003 Con.B1 dated 18.08.2003 awarding Selection Grade Scale and Super Time Scale to the District Judges would point out that the District Judges under Serial Nos.1 to 25 [vide typed set of papers at page Nos.10 to 12].were awarded with the Selection Grade Scale with effect from 01.07.1996 taking their earlier service notionally in the District Judge (Entry Level) and they were also granted Super Time Scale with effect from 01.07.1999, on completion of three years in Selection Grade Scale.
However, the District Judges under Serial No.27 to 47 [vide typed set of papers at page Nos.12 to 14].were granted Selection Grade Scale on various dates from 11.10.1996 to 09.07.1997 and Super Time Scale from 11.10.1999 to 09.07.2000.
Among them, Serial Nos.39 to 47 [vide typed set of papers at page Nos.13 and 14].entered into the cadre of District Judge from 01.11.1990 to 02.11.1992, whereas the Petitioner entered in the said cadre as early as on 07.11.1990 itself.
Also that the District Judges under Serial Nos.54 to 89 [vide typed set of papers at page Nos.15 to 17].entered into the District Judge (Entry Level) cadre only from 1994 and they were granted Selection Grade on various dates from 09.11.1999 to 03.04.2001.
30.The other plea taken by the Petitioner is that though he is senior to the aforesaid District Judges, he was granted Selection Grade only from 01.07.2001 ignoring his seniority and against the orders of the Hon'ble Supreme Court and this Court in respect of Petitioner, the notional effect should be given from 07.11.1990 which is his date of appointment, but the financial effect should be given only from 01.07.1996.
Therefore, the Petitioner prays for modification of the order dated 15.06.2010 passed in the W.P.No.1534 of 2007 with a direction to the Respondents to implement the scale of pay, as set out in G.O.Ms.No.289, Home (Courts-IA) Department dated 31.03.2003 and G.O.Ms.No.581, Home (Courts-IA) Department dated 30.06.2003 to benefit the Petitioner.
31.It is also averred in M.P.No.1 of 2012 by the Petitioner that the order of this Court in W.P.No.1534 of 2007 dated 15.06.2010 was implemented in G.O.Ms.No.393, Home (Courts-I) Department, dated 15.07.2011 and that he made a representation under the Right to Information Act seeking information as to why he had not received the revised scale from the respective dates.
Further, reply was sent to him stating that it was an establishment matter and could not be sought under the Right to Information Act and as such, the information sought for was rejected.
32.It is the further submission of the Petitioner/Writ Petitioner (1st Respondent in Review Application) that the Review Petition filed by the Petitioner [Registrar General].is not maintainable because of the fact that as per orders of this Court in W.P.No.1534 of 2007 dated 15.06.2010, the High Court and the Government accepted the same and certain benefits were granted to the Petitioner/Writ Petitioner.
33.Furthermore, the plea of the Petitioner/Writ Petitioner is that under the guise of Review Petition, the Review Applicant [Registrar General].is not entitled to re-argue the original case and as such, the Review Petition cannot be made as a substitute for an Appeal.
34.Per contra, it is contended on behalf of the Review Applicant/ Registrar General, High Court, Madras that the Review Application is perfectly maintainable in law for the reason that the orders passed by this Court dated 15.06.2010 in W.P.No.1534 of 2007 require re-examination or reconsideration, since certain factual aspects, which goes to the root of the matter, have not been brought to the notice of this Court at the time of passing of the order in the Writ Petition.
The Madras High Court Official Assignee Service Rules, 1955: 35.A perusal of the Rule 3 of the Madras High Court Official Assignee Service Rules, 1955 speaks of Class I Gazetted Posts.
Category -- 1.Official Assignee 2.Deputy Official Assignee 36.The Appointing Authority for all posts in Class I and Categories 1 to 4 of Class II is the Hon'ble Chief Justice.
Rule 5(a) speaks of 'Appointment to either category in Class I may be made either by direct recruitment or by recruitment by transfer or by promotion.
Rule 6 refers to the determination of the seniority of a person in a class, category or post of the service etc.37.By means of amendment to the Madras High Court Service Rules coming into effect from 03.06.1997.
The post of Official Assignee has been brought under Rule 3 Division I Category 1, B.
By virtue of amendment to the Madras High Court Service Rules as per R.O.C.No.13366/86CI under Rule 3 in Division I under Category I Chief Editor, Tamil Nadu Law Journal has been added.
The salient position of Official Assignee: 38.It is to be noted that an Official Assignee may, for the purpose of affidavits, verify proofs, petitions or other proceedings in insolvency, administer oaths.
Although the Official Assignee's function is basically administrative, he possesses judicial powers in enquiring into proof of debts.
For that purpose, he can be regarded as a Court under Cr.P.C., but not when he is presiding over a meeting of creditors for the consideration of a scheme of composition, and for that purpose accepting or rejecting debts as per the decision in Kedar Nath V.
Amulya Ratan [(1942) 1 Cal 278].39.An Official Assignee duty is to investigate the conduct of the insolvent and to report to the Court upon any application for discharge, stating whether there is reason to believe that the insolvent has committed any act which constitutes an offence under the Act or under Sections 421 to 424 of the Indian Penal Code, 1860 in connection with his insolvency or which would justify the Court in refusing, suspending or qualifying an order for his discharge; to make such other reports concerning the conduct of the insolvent as the court may direct or as may be prescribed; and to take such part and give such assistance in relation to the prosecution of any fraudulent insolvent as the court may direct or as may be prescribed.
40.As a matter of fact, the Official Assignee is entitled to hold enquiry and for that purpose receive evidence of oath to decide whether the debt is genuine and owing to the creditor.
If a false statement is made, by an insolvent in his examination by the Official Assignee conducted under Section 33(2) of Presidency Towns Insolvency Act, 1909, he does so in a judicial proceedings as defined in Section 4(1)(m) of Cr.P.C.41.As per Section 68 of the Presidency Towns Insolvency Act, the Official Assignee has a duty to realise the property of the insolvent, with all convenient speed and Section 68(1).(a)sell all or any part of the property of the insolvent; (b)give receipts for any money received by him; and may, by leave of the Court, do all or any of the following things; (c)carry on the business of the insolvent so far as may be necessary for the beneficial winding up of the same etc.Glimpse of Case Laws: 42.At this juncture, we deem it appropriate to point out that in the decision of the Honourable Supreme Court in S.Nagaraj and others V.
State of Karnataka and another, [1993 Suppl.
(4) Supreme Court Cases 595]., it is held that Review literally and even judicially means re-examination or reconsideration.
Basic philosophy inherent in, it is the universal acceptance of human fallibility. 43.We also aptly point out the decision of the Hon'ble Supreme Court in Grindlays Bank Ltd.V.Central Government Industrial Tribunal and otheRs.[1980 (Supp) Supreme Court Cases 420].at page 421, it is observe as follows: The expression 'review' is used in the two distinct senses, namely, (1).procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2).review on merits when the error sought to be corrected is one of law and is apparent on the face of the record.
When a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal.
The Tribunal's order setting aside its ex parte award amounts to a procedural review. 44.We make a pertinent and useful reference to the following decisions, on the subject of Review, to prevent an aberration of Justice: (a)In the decision of the Hon'ble Supreme Court in M.M.Thomas V.
State of Kerala and another, [(2000) 1 Supreme Court Cases 666].at special page 668, it is laid down as follows: The High Court as a Court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records.
A Court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony.
A Court of record is undoubtedly a superior Court which is itself competent to determine the scope of its jurisdiction.
The High Court, as a Court of record, has a duty to itself to keep all its records correctly and in accordance with law.
Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it.
The High Court's power in that regard is plenary. (b)In the decision of the Honourable Supreme Court in Commissioner of Customs and Central Excise V.
Hongo India Private Limited and another, [(2009) 5 Supreme Court Cases 791]., at Special Page 793, it is held that The High Court has not only the power, but a duty to correct any apparent error in respect of any order passed by it.
This is the plenary power of the High Court. (c)In the decision of the Honourable Supreme Court in In re: Mahamaya Banerjee, [AIR1989CALCUTTA106, it is held that The words sufficient reason in Order 47 Rule 1 of Code of Civil Procedure include misconception of fact and/or of law of Advocate and further, an inherent power may be invoked by a Court of Law to correct erroneous view of Advocate.
All such powers as may be necessary to do the right and to undo a wrong in the couRs.of its functioning.
Also that, an inherent power may be invoked and exercised to meet any judicial exigency. (d)In the decision of the Honourable Supreme Court in M.A.Murthy V.
State of Karnataka and otheRs.[(2003) 7 Supreme Court Cases 517]., at Special Page 518, it is held that 'The effect of review Judgment is that it erases the previous Judgment and hence, operates as the law from inception.' (e)In the decision of the Honourable Supreme Court in Sureshkumar Kanhaiyalal Jethlia V.
State of Maharashtra and otheRs.[AIR2001BOMBAY438, at page 445, it is held that 'The order in Review based on assumption, which in fact did not exist, is set aside in review. (f)In the decision of the Honourable Supreme Court in S.Bagirathi Ammal V.
Palani Roman Catholic Mission, [(2009) 10 Supreme Court Cases 464]., at Special Page 477, it is held that If the Judgment/order is vitiated by an apparent error or it is a palpable wrong and if the error is self-evident, review is permissible. (g)In the decision Pt.
Dev Dutt V.
State of J.&K.
and another, [AIR1999JAMMU AND KASHMIR58, it is held as follows: The power of review may be exercised where some mistake or error apparent on the fact of the record is found or on any analogous ground.
The power of review is not to be confused with the appellate power which may enable the higher forum to correct all errors committed by the subordinate Court.
An error apparent on the face of the record, must be such an error which strikes one on a mere looking on the record and would not required any long-drawn process of reasoning on points and should not admit or conceive of two opinions.
Analysis, Discussions and Conclusions: 45.Admittedly, the Petitioner [1st Respondent in Review Application].has filed W.P.No.788 of 1988 before this Court wherein he has sought a relief of quashing the letter of the 3rd Respondent dated 04.09.1987 wherein the Government, after carefully examining the proposal for revision of scale of pay of the post of Deputy Official Assignee, High Court, Madras with effect from 01.10.1981, on par with that of the posts of the Subordinate Judges, as informed the Registrar of this Court (3rd Respondent) that the said proposal is not acceptable to Government.
After contest, this Court on 28.07.1988 has allowed the Writ Petition, inter alia, mentioning that 'the post of Deputy Official Assignee has been treated all along on par with the post of the Subordinate Judge.
This is not being disputed by the Respondents 1 and 2' and further directed the Respondents 1 and 2 to revise and re-fix the scale of pay of the Petitioner as prayed for by him.
46.It is not in dispute that the Petitioner/Writ Petitioner [1st Respondent in Review Application].was appointed as Deputy Official Assignee as per Notification No.47/86 dated 16.05.1986 under the Madras High Court Official Assignee Service.
He served in that capacity at Chennai from 22.05.1986 till 06.11.1990.
He was promoted as Official Assignee on 07.11.1990 and continued in that capacity at Chennai till 31.07.2001.
Further, till his retirement, he has not made a claim that the post of Official Assignee was equated with that of the District Judge [notwithstanding the fact that the Official Assignee Service was merged with the High Court Services on 03.06.1997 and also his post of Official Assignee was included in Division I Category 1, B of Madras High Court Service Rules].47.The Petitioner/Writ Petitioner, in his representation dated 24.01.2005, addressed to the Government of Tamil Nadu and Registrar General of this Court, has, among other things, stated that since his juniors are getting more pay as per G.O.Ms.No.1351, Home (Courts-IA) Department, dated 18.12.2003, the same principles for revision of scale of pay extended in the case of Registrars of High Court Service may kindly be extended in his case and that consequently he may be considered for movement to the Selection Grade Scale from 07.11.1995 and also to the Super Time Scale with effect from 07.11.1998 for having served as Official Assignee for 10 years 8 months and 24 days in the same cadre of category 1 Division I of the Madras High Court Service from 07.11.1990 and having retired on 31.07.2001 with clean records.
According to him, at the time of his retirement, he was drawing the pay of Rs.15000-400-18600.
48.In fact, the Petitioner/Writ Petitioner [1st Respondent in Review Application]., in his representation dated 24.01.2005, has prayed that he may be granted the revised scale of pay from Rs.15000-400-18600 to Rs.16750-400-19150-450-20500 at the entry level and on completion of 5 years of service in that cadre he has requested for the award of Selection Grade Scale at Rs.18750-400-19150-450-21850-500-22850 from 07.11.1995 and on completion of 3 years of service in the Selection Grade Scale, he has prayed for the award of Super Time Scale of Rs.22850-500-24850 with effect from 07.11.1998.
49.From 07.11.1990 till the date of integration of the Madras High Court Official Assignee Service with the Madras High Court Service Rules and the same being coming into force from 03.06.1997, the Petitioner/Writ Petitioner [1st Respondent in Review Application].has not produced any express order from the High Court so as to enable this Court to appreciate that the post of Official Assignee has been treated all along on par with the post of District Judge.
In fact, the stand taken by the Petitioner/Writ Petitioner that his post of Official Assignee has been treated by the High Court on par with the post of District Judge has been repudiated/denied by the Review Applicant [Madras High Court, represented by its Registrar General].50.To put it succinctly, the Petitioner/Writ Petitioner has not filed any Writ Petition during his period of service claiming that the post of Official Assignee has been treated on par with that of District Judge.
That apart, even though after the merger of the Madras High Court Official Assignee Service with that of the Madras High Court Service, the Petitioner was drawing the pay of Rs.17,400/- in the pre-revised scale of pay of Rs.15000-400-18600/-.
51.When that being the factual position and also when there is nothing in the provisions of the Presidency Towns Insolvency Act, which necessitated the Official Assignee to pronounce an order, as is being done in the case of Judgment of Courts and also bearing in mind another fact that in strict sense of the term, he is not a Judicial Officer.
Further that when insolvent's property vests in his hand as 'Owner' though only for the benefit of others and in such a matter, he is only a litigant.
52.On going through the order passed by this Court in W.P.No.1534 of 2007 dated 15.06.2010, in paragraph 5, it is clear that the Writ Petitioner, on a misconception of fact, has been incorrectly mentioned as a Judicial Officer holding the post of Official Assignee equal to that of District Judge, from the year 1990 and therefore, he is entitled for extension of the same scale of pay on par with two individuals viz., R.Venkatesan, Registrar (Administration) and G.Chinniya Naidu (Management).which is self-evident and in this regard, obviously an error apparent on the face of record has crept in.
The Petitioner also in the Writ Petition claims the entry level District Judges pay of Rs.16750-400-19150-450-20500.
53.Further, the conferment of benefits by way of ACP (As per FiRs.National Judicial Pay Commission Report) is not automatic but on the appraisal of Judicial Officer's work and performance by a Committee of Senior Judges of the High Court constituted for the purpose.
Indeed, the award of Selection Grade Scale of Pay of Rs.18750-400-19150-450-21850-500-22850 is available only to 25% of the cadre posts and would be given to those having not less than 5 years of continuous service in the cadre and in regard to the Super Time Scale of Pay of Rs.22850-500-24850, this is available to the holders of 10% of the Selection Grade District Judges and would be given to those who have put in not less than three years of continuous service as Selection Grade District Judges and these scales ought to be given on the assessment of merit-cum-seniority as per FiRs.National Judicial Pay Commission Report Volume III, in Chapter 17 Assured Career Progression Scheme (ACP) and Functional Scale.
54.In fact, whether the post of Official Assignee is an equal post/ cadre as that of District Judge, we opine, is to be determined by the Hon'ble High Court on the Administration side.
Further, as per Article 229 of the Constitution of India, the Hon'ble Chief Justice of High Court or his Nominee is the Supreme Authority in the matter of appointments of officers and servants of the High Court.
This Article also confers rule making power on the Hon'ble Chief Justice for regulating the conditions of service of officers and servants of the High Court subject to certain restrictions.
The power available to the Hon'ble Chief Justice of High Court, under Article 229 of the Constitution, is similar to the power of the Hon'ble Chief Justice of India under Article 146 as per the decision of the Hon'ble Supreme Court in High Court of Judicature for Rajasthan V.
Ramesh Chand Paliwal and another, [AIR1998Supreme Court 1079].Also that, the Appointing Authority under the Madras High Court Official Assignee Service Rules is the Competent Authority to determine the seniority of a person in a Class, Category or post of of the service etc.Subject to the rules made under Article 229(2) of the Constitution of India, the Hon'ble Chief Justice is the sole authority for fixing the salaries, etc.and controlling the High Court Employees as per the decision in Pradyat Kumar Bose V.
The Hon'ble the Chief Justice of Calcutta High Court, [(1955) 2 S.C.R.1331].Further, in the decision S.Thangaraj V.
The Registrar of High Court, High Court, Madras and 3 others [(1991) 2 Law Weekly 529 at page 533]., in paragraph 6, it is held as follows: ".6.It is thus evident that the State Government does not have jurisdiction in the matter of the service conditions of the employees of the High Court.
The only person competent is the Chief Justice of the Court or such other Judge or Officers of the Court as directed by the Chief Justice.
No rules applicable to the employees of the State Government are applicable to the employees of the High Court, except the Rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice.".
Revision of Scales of Pay: 55.It cannot be gainsaid that as per R.O.C.No.907/08/G2 dated 07.08.2009, the Hon'ble Chief Justice of this Court has revised and refixed the Scales of Pay in respect of the Officers of Madras High Court Service [including Office of the Official Assignee, High Court, Madras and Madurai Bench of Madras High Court, Madurai].and the relevant portion is extracted hereunder: Name of the post Revised Scale of Pay (in Rs.) 1.Registrar (Administration) 37,400-67,000-PB4-8,800 Registrar (Management) (if promoted from the Madras High Court Service) 2.Chief Editor (T.L.J.37,400-67,000-PB4-8,800 3.Official Assignee 37,400-67,000-PB4-8,800".
Equal Treatment: 56.Generally, similarly placed Employees in an Organisation/ Institution/Establishment, while discharging the same duties and responsibilities like that of otheRs.are to be treated in equal manner.
If certain individuals are alone showered with personal monetary benefits, then, it will kindle Homo Sapiens to recall and recollect the quotation of George Orwellian, who aptly said, 'All are equal but some are more equal than others'.
The Principles of Article 14 of the Constitution: 57.Article 14 of the Constitution is a genus in the sense that the clauses on lawful or protective discrimination and public employment as laid down in Articles 15 and 16 respectively provided for exceptions to that equity clause of Article 14.
Hence, in appropriate cases, all the three Articles are to be read together as per the decision of the Hon'ble Supreme Court in Saurabh Chaudri and others V.
Union of India and others [(2003) 11 Supreme Court Cases 146].58.It is to be remembered that equal treatment to unequals is also violative of 'equal protection of law' as enshrined by Article 14 of the Constitution as per the decision of the Hon'ble Supreme Court in M.P.Gangadharan and anothers V.
State of Kerala and otheRs.[(2006) 6 Supreme Court 162].59.The guarantee of equality before law is a positive concept.
It cannot be enforced in a negative manner.
An illegality or irregularity committed in favour of one cannot be a ground in favour of another person to invoke jurisdiction of the Court to grant that sort of illegal or irregular benefit as per the decision of the Hon'ble Supreme Court in Gursharan Singh and others V.
New Delhi Municipal Committee and others [(1996) 2 Supreme Court Cases 459].60.The concept of equal treatment presupposes is existence of similar legal foothold.
A writ lies for enforcing payment of equal pay for equal work.
But the petition would not be entertained whether the sameness of duties is disputed and has to be decided on the basis of evidence as per the decision of the Hon'ble Supreme Court in Principal, Industrial Training Institute, Ghazipur and others V.
Abhay Kumar Srivastava [1995 Supp (4) Supreme Court Cases 617].61.In the decision of the Hon'ble Supreme Court in Chandigarh Administration and another V.
Jagjit Singh and another, [(1995) 1 Supreme Court Cases 745]., it is held that 'the writ petitioner has to establish his right or entitlement to a particular benefit.
Where he fails to do that and only relies on the fact that a similarly situated person has been illegally granted that benefit, he cannot make it a ground for also granting such benefit'.
62.In the decision of the Hon'ble Supreme Court in Bihar Public Service Commission and others V.
Kamini and otheRs.[(2007) 5 Supreme Court Cases 519]., it is, inter alia, held that 'even if some ineligible candidates were wrongly treated as eligible, it could not give rise to doctrine of equality'.
63.On a careful consideration of respective contentions and also taking note of the fact that the Petitioner/Writ Petitioner/1st Respondent appears before Courts and assists the Courts in insolvency and other matters and also bearing in mind another important fact that as on date, there is no express order from this Court equating the post of Official Assignee to that of District Judge, we hold that the observations of this Court mentioning the Petitioner as 'Judicial Officer' in its order dated 15.06.2010 in W.P.No.1534 of 2007 and conferring the benefits of extension of same scale of pay on par with two erstwhile Registrars of this Court and resultantly, granting benefits to him in terms of G.O.Ms.No.1351 dated 18.12.2003, are based on misconception of factual aspects/assumptions which, in fact, do not exist, relating to the subject matter in issue because of creeping in of apparent/patent factual errors on record, which needs to be corrected by this Court, exercising its plenary power and also being as a Court of record, to prevent an aberration of Justice.
In regard to creeping in of patent errors are concerned, they can be corrected by High Court suo motu and even after the expiry of limitation, if any, prescribed for application for Review as per the decision in State of Gujarat V.
Sardarbegum and others [AIR1976Supreme Court 1695].Viewed in that perspective, we hold that the Review Application No.47 of 2013 filed by the Review Applicant/High Court of Madras, represented by its Registrar General, is maintainable in law.
Accordingly, this Court, exercising its plenary poweRs.allows the Review Application filed by the 1st Respondent/High Court of Judicature at Madras, represented by its Registrar General, Chennai.
64.In this connection, we pertinently point out that the order of rejection passed in R.O.C.No.1809/2005-B2 dated 19.07.2005 by the 1st Respondent/Registrar General, representing the High Court, which is impugned in the Writ Petition, is shorn of necessary outline of process of reasoning meeting out the points raised in the representation of the Petitioner dated 24.01.2005.
As such, to prevent an aberration of justice and to promote substantial cause of justice, we set aside the said order of the 1st Respondent dated 19.07.2005 and direct the 1st Respondent/Madras High Court, represented by its Registrar General to consider the representation of the Petitioner/Writ Petitioner dated 24.01.2005 [by dealing with the aspect of (a)Whether the post of Official Assignee is equal to that of District Judge; (b)Whether the duties and responsibilities of Official Assignee are equal to that of the duties and responsibilities of Registrar General and that of other RegistraRs.or whether the duties and responsibilities of Official Assignee are completely different from that of Registrar General and other Registrars of this Court (in the light of relevant service rules that the posts are borne out in the same category and same division).(c)Whether the said posts of Registrar General, other Registrars and Official Assignee can be equated for the purpose of pay parity (in order to claim Entry Level, Selection Grade and Super Time Scale of Pay in the cadre of District Judge) in view of the differences in duties and responsibilities and nature of work assigned and performed by Registrar General, other Registrars and the Official Assignee; (d)Whether the benefits conferred to former Registrar (Administration) and Registrar (Management) are personal to them; (e)Whether the two then Registrars are his juniors and getting more pay as per G.O.Ms.No.1351, Home (Courts-IA) Department, dated 18.12.2003 and incidental/ancillary, allied matters].afresh, once and for all in a complete and comprehensive manner, [so as to bury the hatchet with a view to put an end to this sort of litigation in future].and to pass a reasoned order on merits, of course, after providing due opportunities to the Petitioner/Writ Petitioner, as expeditiously as possible.
65.Ordinarily, there cannot be any straight jacket formula for ordering recovery from an Employee, in case he has received excess payments.
If a recipient has received certain monetary benefits to which he is not entitled to, then, his case may come under Section 72 of the Indian Contract Act, 1872 which speaks of 'Liability of person to whom money is paid, or thing delivered, by mistake or under coercion'.
Obtaining of such monetary benefits may border on the principle of unjust enrichment.
In respect of an excess payment by over due payments received by an Employee, it may be pleaded by an authority that an Employee cannot be retained any amount paid to him by mistake or on erroneous considerations.
66.In regard to the Recovery of Excess Payments (over and above the emoluments one is entitled to) received by an individual at a particular point of time, we aptly point out the following decisions of the Hon'ble Supreme Court, to meet the ends of Justice: (a)In the decision Union of India and others V.
Sujatha Vedachalam (Smt) and another, [(2000) 9 Supreme Court Cases 187]., the Hon'ble Supreme Court has held that 'Recovery of excess payment on account of wrong fixation of pay has been directed to be recovered in easy instalments'.
(b)In the decision of the Hon'ble Supreme Court in Chandi Prasad Uniyal and others V.
State of Uttarakhand and otheRs.[(2012) 8 Supreme Court Cases 417].at page 418, it is observed as follows: It is a matter of concern that the excess payment of public money which is often described as taxpayeRs.money which belongs neither to the officers who have effected overpayment nor to the recipients.
It is not understood why the concept of fraud or misrepresentation is being brought in such situations.
The question to be asked is whether excess money has been paid or not may be due to a bona fide mistake.
Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism etc.because money in such situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual.
Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law.
Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. (c) In the decision of the Hon'ble Supreme Court in Mahabir Kishore and others V.
State of Madhya Pradesh, [AIR1990SUPREME COURT313, it is laid down as follows: The principle of unjust enrichment requires: first, that the defendant has been 'enriched' by the receipt of a benefit; secondly, that this enrichment is at the expense of the plaintiff; and thirdly; that the retention of the enrichment be unjust.
This justifies restitution.
Enrichment may take the form of direct advantage to the recipient's wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved. 67.In the instant case, the Petitioner/Writ Petitioner would have reaped the fruits of benefits, based on the earlier orders of this Court passed in W.P.No.1534 of 2007 dated 15.06.2010 and the passing of G.O.Ms.No.393, Home (Courts-I) Department dated 15.07.2011 by the State Government.
68.Inasmuch as while allowing the Review Application, we have set aside the order of the 1st Respondent/High Court, represented by its Registrar General dated 19.07.2005 and directed the representation of the Petitioner dated 24.01.2005, to be considered on merits in a threadbare fashion.
On the peculiar facts and circumstances of the present case, we further direct the 1st Respondent to take into consideration the payment of monetary benefits received by him earlier [consequent to the orders passed by this Court in W.P.No.1534 of 2007 dated 15.06.2010 and the passing of G.O.Ms.No.393, Home (Courts-I) Department dated 15.07.2011 by the State Government]., at the time of passing fresh orders [on the representation of the Petitioner dated 24.01.2005].If the 1st Respondent/High Court of Madras, represented by its Registrar General comes to a conclusion that the Petitioner/Writ Petitioner is entitled to the benefits, as prayed for by him in his representation, then, the earlier monetary benefits obtained by him [in terms of the order passed by this Court dated 15.06.2010 in W.P.No.1534 of 2007 and the passing of G.O.Ms.No.393, Home (Courts-I) Department dated 15.07.2011 by the State Government]., need not be disturbed.
However, if the 1st Respondent comes to the conclusion that the Petitioner/Writ Petitioner is not entitled to the earlier monetary benefits received by him, then, it is open to the 1st Respondent to pass recovery order in regard to the excess payment received by the Petitioner/Writ Petitioner, by spreading over the monthly recovery in easy instalments thereby avoiding inconvenience and hardship to the Petitioner/Writ Petitioner.
69.In the result, the Review Application, filed by the Petitioner/ 1st Respondent/High Court of Madras, represented by its Registrar General, is partly allowed.
Since the 1st Respondent [High Court of Madras, represented by its Registrar General].has been directed to consider the representation of the Petitioner dated 24.01.2005 afresh in all aspects, the Miscellaneous Petition filed by the Petitioner/Writ Petitioner [praying for Modification of the Order in W.P.No.1534 of 2007 dated 15.06.2010].is closed.
The parties are directed to bear their own costs both in the Review Application as well as in the Miscellaneous Petition.
(E.D.R.J.) (M.V.J.) 08.07.2013 Index :Yes Internet :Yes Sgl ELIPE DHARMA RAO,J.
AND M.VENUGOPAL,J.
Sgl To 1.The Registrar General, The High Court of Judicature at Madras, Chennai 600 104.
2.The Secretary to Government, The State of Tamil Nadu, Home (Courts-IA) Department, Fort St.
George, Chennai 600 009.
JUDGMENT
IN Review Application No.47 of 2013 and M.P.No.1 of 2012 in W.P.No.1534 of 2007 08.07.2013