1. This special appeal is at the instance of the State Government taking exception to the judgment dated 8t September, 1992 passed by the Single Judge in Writ Petition filed by the present respondents. For the sake of convenience we shall refer to the present appellants, 'the Government' and the present respondents 'the petitioners.'
2. The petitioners prayed in the writ petition that the Government be directed to give pay scale of 860-1750 to the Legal Assistants and pay scale of 1000-1860 to the Head Legal Assistants with effect from 1st September, 1981.
3. The petitioners founded their claim on better pay scale on the recommendations made by the Law Reforms and Legal Services Committee headed by the then Advocate General Dr. L.M. Singhvi (for short, 'Law Reforms Committee') and the recommendations of the B.P. Beri Pay Commission (for short 'Beri Pay Commission'). The petitioners also claimed that the Legal Assistants belonged to the Rajasthan Legal Service and, therefore, they must be accorded pay scales of the Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Accounts Service, Rajasthan Judicial Service etc., the said pay scale being 1000-1860.
4. The Government contested the claim of the petitioners and denied that the Legal Assistants and the Head Legal Assistants were entitled to the pay scales of Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Accounts Service and Rajasthan Judicial Service. The Government also denied their claim that the Legal Assistants were entitled to the pay scale of 760-1420 and the Head Legal Assistants the pay scale of 900-1600. The Government also took the stand that no relief could be granted to the petitioners in exercise of writ jurisdiction under Article 226 of the Constitution of India since no such mandamus could be issued.
5. The Single Judge rejected the claim of the petitioners of parity of the post of Legal Assistant with the Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Accounts Service and the Rajasthan Judicial Service. In the words of the Single Judge it is too tall a claim of the petitioners to compare the post of Legal Assistants with that of the Rajasthan Judicial Service. He found the comparison wholly misconceived.
6. The Single Judge also did not go into the question as to whether the post of Legal Assistant is state service post or a subordinate service post because this controversy was a subject matter of dispute in Writ Petition No. 1565/1985. (We may immediately notice here that writ petition No. 1565/1985 was not pressed by the petitioners before us and we dismissed that writ petition today by a separate order.)
7. Treating the post of Legal Assistant to be a post in a subordinate service, the Single Judge was of the view that it should be considered as the highest post in the subordinate service and should be treated at par with the post in the subordinate service carrying the highest pay scale. According to the Single Judge the post of Legal Assistant should have been in the pay scale No. 14 (2000-3200) as was for the other posts like Police Inspector, Assistant Accounts Officer, Assistant Research Officer, Program Computer who have been carrying the pay scale No. 14. In the opinion of the Single Judge since the post of Head Legal Assistant was a post two pay scales higher than that of Legal Assistant, the post of Higher Legal Assistant should be in the pay scale No. 16 (2200-4000).
8. Relying upon the judgment of this Court in the case of S.K. Ghosh v. State of Rajasthan 1984 RLR 966 and Padam Kumar Jain v. State of Rajasthan 1987 (2) RLR 807, the Single Judge held that there was no difficulty in directing the Government to act in accordance with the recommendations of the Law Reforms Committee as there was no justification why the said recommendations have been put in oblivion. The Single Judge, accordingly, directed the Government to give due regard to the recommendations made by the Law Reforms Committee and make appropriate provisions so as to give pay scale No. 14 (2000-4000) to the holders of the post of Legal Assistants and pay scale No. 16 (2200-3200) to the holders of the post Head Legal Assistants from 1st September, 1988 i.e. the date from which the Rajasthan Civil Services (Revised Pay Scale) Rules, 1989 came into force.
9. The correctness of the directions given by the Single Judge in his order dated 8th September, 1992 is the core issue before us.
10. It is true that the Law Reforms committee in its report of 19th June, 1975 opined that the infrastructure of the departmental legal personnel should be strengthened and the opportunities of promotion and advancement for the departmental legal personnel should be upgraded. The same Reforms Committee also suggested the constitution of Rajasthan Legal Service so as to allow the induction of law graduates with a minimum of two years experience at the bar and to provide for appropriate avenues for their advancement and promotion and for their regular training facilities and refresher courses. The Law Reforms Committee was also of the view that appropriate rules under Article 309 of the Constitution of India be framed to constitute the Rajasthan Legal Service. In its report the Law Reforms Committee suggested that the grade for the Rajasthan Legal Service should be roughly analogous to and at par with that of Assistant Commercial Taxes Officers or Assistant Registrars of Cooperative Societies or Employment Exchange Officers. The scale of pay suggested by the said Committee for a Legal Assistant was Rs. 300-25-600-EB-25-800.
11. It may be noticed here that the Rajasthan Legal Subordinate Service Rules, 1976 included the post of Legal Assistant and Head Legal Assistant. The pay scale of Legal Assistant under these Rules was 200-450 while the pay scale of the Head Legal Assistant was 275-650.
12. That consequent upon the recommendations of the Law Reforms Committee, the Rajasthan Legal Service Rules, 1981 were framed. These Rules were and notified on 20th July, 1981. The said Rules, inter-alia, provide for cadre, recruitment, procedure for direct recruitment and appointment by promotion and pay. On 27.7.1985, the title of these Rules was amended. These Rules since then are called the Rajasthan Legal (State and Subordinate) Service Rules, 1981. The post of Legal Assistant is 100% by direct recruitment in subordinate service while the posts of Head Legal Assistant, Assistant Draftsman/Assistant Legal Remembrancer, Deputy Legal Remembrancer and the Joint Legal Remembrancer are the posts in state service.
13. It is common ground of the parties that in the year 1979- 80, Beri Pay Commission was appointed by the State Government. The Beri Pay Commission recommended the pay scale of 760-1420 for the legal assistant and 900-1600 for the post of Head Legal Assistant. The Government did not accept the pay scale recommended by the Beri Pay Commission in its entirety and granted pay scale of 660-1240 to the Legal Assistant and 800-1550 to the Head Legal Assistant. As a matter of fact it is this pay that led to the filing of the writ petition and the claim for higher pay scale.
14. During the pendency of the writ petition, a very important event happened. The Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 (for short, 'the Rules of 1989') came into existence, effective from 1st September, 1988. The pay scale provided to the post of Legal Assistant under the legal subordinate service and to the post of Head Legal Assistant to Joint Legal Remembrancer in the State Legal Service in the Rules of 1989 is thus:
1. Legal Assistant 1200-2420-1400-2600 (12)2. Head Legal Assistant 1490-3050 2000-3200 (14)3. Asstt. Legal Draftsman/Asstt 2100-3550 2500-4250 (17) Legal Remembrancer4. Deputy Legal Remembrancer 2750-4700 3450-5000 (22)5. Joint Legal Remembrancer 2750-5000 4100-5300 (24)
15. The Government says that the aforesaid pay scale to Legal Assistants and Head Legal Assistant under the Rules of 1989 with effect from 1.9.1988 is based on the recommendations of the Equivalence Committee constituted by the Government on demand of the employee for grant of equivalent pay scale as that Central Government employees.
16. That the Government acted pursuant to the report of the Law Reforms Committee and framed statutory Rules under Article 309 of the Constitution of India and entitled the Rajasthan Legal Service Rules, 1981 is not in doubt. Surely the Government was not bound to accept the recommendations of the said committee in its entirety. Insofar as the recommendation of the Law Reforms Committee about the pay scale of Legal Assistant and Head Legal Assistant being analogous to and at par with that of Assistant Commercial Taxes Officers or Assistant Registrars of Cooperative Societies or Employment Exchange Officers is concerned, we find the said recommendation tentative as is clearly seen from the use of the word, 'roughtly'. Such recommendation surely could not bind the Government nor was it mandatory for the Government to accept the rough comparison suggested by the Committee of the post of Legal Assistant with the Assistant Commercial Taxes Officer or the Assistant Registrar of the Cooperative Societies.
17. Be that as it may, in the year 1980, the Beri Pay Commission was constituted by the Government and it partly accepted the recommendations of that Commission and increased the then existing pay scale of Legal Assistant and Head Legal Assistant from 500-890 to 660-1240 and 620-1100 to 800-1550 respectively; though the Government did not accept the pay scale recommended by the Beri Commission in its entirely. This shows without doubt that the Government has been consciously making decision in respect of the pay scale of Legal Assistant and Head Legal Assistant.
18. Mr. R.A. Katta, the counsel for the petitioners placed before us the statement in the form of compilation-D highlighting that Inspector Grade-I, Commercial Tax Department, Cooperative Inspector Grade-I, Research Assistant, Group Instructor have been fixed in the pay scale higher than that was recommended by the Beri Pay Commission while for the posts of Legal Assistant and Head Legal Assistant, the lower pay scale than that was recommended by Beri Pay Commission has been granted. He would submit that looking to the qualification, mode of recruitment and the duties that are required to be discharged, the Legal Assistant ad the Head Legal Assistant ought to have been given at least the pay scale recommended by the Beri Pay Commission.
19. Comparisons are odious and comparing the two unequals is dangerous. By no stretch of imagination, the posts of Legal Assistant and Head Legal Assistant can be compared with the Inspectors or the Officers of Commercial Taxes Department or Cooperative Department or other Departments. In our considered view, the comparison of the pay scale of Legal Assistants in the year 1983 and that of the Inspectors Grade-I, Commercial Taxes Department and the Inspectors Grade-I, Cooperative Department to find out that in the year 1983 the pay scale of Legal Assistants was higher and then that in the year 1987, the pay scale of Legal Assistant and Inspector Grade-I, Commercial Taxes Department and Inspector Grade-I, Cooperative Department was brought at par but in the year 1989, the pay scale of the Legal Assistant was fixed lower to that of Inspector Grade-I of Commercial Taxes Department or that of Cooperative Department, and, therefore, the pay scale of Legal Assistant has to be pushed to the highest in the subordinate service, would not be correct legal approach. Different pay scale to different categories of service/s in the Government are fixed in the Rules framed under Article 309 of the Constitution of India. This is a complex exercise and diverse factors are taken into consideration before the Rules are framed. Once the Rules are framed, they have statutory force. It is trite principle of law that it is not for the Court to direct the State to make particular law. The only basis for examination before the Court could be the plea of discrimination and violation of Article 14 of the Constitution of India. But for a plea of discrimination or infraction of Article 14 of the Constitution of India, the plea has to be founded on the equals being treated differently; the comparison cannot be made of unequals.
20. We fail to appreciate how a direction could be issued to the Government to upgrade the pay scale of legal subordinate service to the highest pay scale in the subordinate service of the State. We find no legal basis nor any jurisdiction for issuing such mandamus to the Government and thereby indirectly making law that the Legal Assistant in legal subordinate service must be given the highest pay scale of the other subordinate services. For the same reason, the direction of the Single Judge that the post of Head Legal Assistant should be considered a post in two pay scales higher than a post of Legal Assistant and consequently the Head Legal Assistant must be given pay scale No. 16 cannot be legally sustained.
21. In M.P. Rural Agriculture Extension Officers Association v. State of M.P. and Anr. : (2004)IILLJ1114SC , the Supreme Court held that the recommendation of the pay commission is not binding on the State and cannot be enforced by issuing writ of or in the nature of mandamus. It was held that the State can make the Rules in exercise of the powers under proviso to Article 309 in consistent with or contrary to the recommendations of the Pay Commission by evolving policy decision.
22. The two Judge Bench of the Supreme Court in the case of State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association : [2002]SUPP1SCR118 made important observations that fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors are required to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of revised scale of pay. The Supreme Court went on to observe that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. It was held that in the context of the complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the State Government, the Court should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. The Court should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the Court holds that the order passed by the Government is unsustainable, ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter. The Court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same.
23. In the case of Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors. 1993 (Supplementary) (1) SCC 153, the Supreme Court observed that though the recommendation of the Pay Commission concerning pay fixation is entitled to great weight but the same is not binding on the Government.
24. Mr. R.A. Katta, the counsel for the petitioners, however, heavily relied upon two judgments of this Court viz., (one) S.K. Ghosh v. State of Rajasthan and Ors. 1984 RLR 966 and (two) Padam Kumar Jain v. State of Rajasthan 1987 (2) RLR 806.
25. In the case of S.K. Ghosh, the Single Judge of this Court in paragraph 31 of the report held thus:
In fact, the entire approach of the authorities concerned in respect of the question of cadre-constitution and pay scales of the Private Secretaries to Chief Justice and Judges of the High Court is vitiated not only by reason of the fact that they ignored the age-old parity between them on one side and the Private Secretaries to Commissioners and Secretaries to Government on the other, but also they divided the cadre of Private Secretaries to Chief Justice/Judges of the High Court into three artificial units having three different time scale pays, i.e. (i) 740-1420, (ii) Rs. 820-1550 and (iii) Rs. 1210- 2040. The Private Secretaries in the time-scale pays of Rs. 740- 1420 and Rs. 820-1550 fall in the category of ministerial service which is a class (iii) service in Rajasthan. The Private Secretaries in the time scale pay of Rs. 1210-2040 are members of a class I State Service enjoying a gazetted status. It seems these artificial units were created to correspond to three separate units in the Secretariat, viz. The Personal Assistants in the pay scale of Rs. 740-1420, the Senior Personal Assistants in the pay-scale of Rs. 820-1550 and the Private Secretaries to Commissioners and Secretaries to Government in the pay scale of Rs. 1210-2040. So far as the Secretariat is concerned, one can quite understand the creation of three different cadres of stenographers with three different designations and pay-scales. As already stated, Personal Assistants are attached to administrative officers like Deputy Secretaries, and Senior Personal Assistants to Special Secretaries and Secretaries not enjoying the rank of Commissioners. Private Secretaries are attached to Commissioners and Secretaries to Government. They form a class apart and have therefore been given the status of a Rajasthan State Service of Class I. Such a classification would have no basis in respect of Private Secretaries to Chief Justices/Judges of the High Court for their duties and responsibilities are of identical nature. One would have therefore thought that all the posts of Private Secretaries to Chief Justice/Judges of the High Court, calculated on the basis of one such post per one judge, would naturally be included in one and the same cadre, just as posts in the State Secretariat have been constituted to form a single cadre in the pay-scale of 1210-2040. Having constituted the cadre in that manner, a percentage of posts out of the cadre could be ear-marked as selection grade posts, if selection grade posts are also available to the Private Secretaries to Commissioners and Secretaries to Government in the State Secretariat. What the authorities concerned have instead done is to constitute a single cadre of Private Secretaries to Chief Justice/Judges of the High Court in the lowest pay scale of Rs. 740-1420 which is equivalent to the pay scale of Personal Assistants to Officers of the level of Deputy Secretaries in the State Secretariat. This is not only patently violative of the principle of age old parity between the Private Secretaries to Chief Justice/Judges of the High Court on one side and the Private Secretaries to senior officers belonging to the Indian Administrative Service like Commissioners and Secretaries to Government in the State Secretariat on the other, but also grossly arbitrary and discriminatory. No effort has been made to explain why it was felt necessary to make a radical departure from the principle of parity mentioned above. As already stated, the State Government has not cared to file any return in answer to the rule nisi issued to it. The allegations of discrimination and arbitrariness made by the petitioners in their writ petitions therefore stand uncontroverted.
26. The counsel for the petitioners would submit that from the said decision, an appeal was carried to the Division Bench which was dismissed and then special leave petition was filed and that too was dismissed by the Supreme Court.
27. The case of S.K. Ghosh related to the classification and cadre constitution and disparity of pay scale between the Private Secretaries to the Chief Justice and Judges of this Court with the private secretaries to Commissioners and Secretaries to the Government. In the light of the facts that had come on record concerning the same post of Private Secretaries though working at different places namely in the High Court and in the Secretariat, the Single Judge held that the allegations of discrimination and arbitrariness made in the writ petition stood uncontroverted and the conclusion of arbitrariness was inescapable from the facts. We are afraid the facts of the present case do not lead to any inescapable conclusion of arbitrariness and discrimination. As a matter of fact, the State responded to the recommendations of the Law Reforms Committee by constituting Rajasthan Legal Service and providing the avenues for promotion from the post of Legal Assistant to the higher post of Head Legal Assistant and then Assistant Legal Draftsman/Assistant Legal Remembrancer, Deputy Legal Remembrancer and Joint Legal Remembrancer. Even their pay scale has been revised from time to time. The petitioners have miserably failed to establish any malice or ulterior motive on the part of the State Government in fact or in law in fixing the pay scale of Legal Assistant and Head Legal Assistant in the Rules of 1989.
28. We are of the view that the decision in the case of Padam Kumar Jain also cannot be applied to the facts of the present case. We have already referred to the later decisions of the Supreme Court in this regard.
29. The counsel for the petitioners also placed reliance on the judgment of the Supreme Court in the case of Purshottam Lal and Ors. v. Union of India and Anr. : (1973)ILLJ407SC . In that matter before the Supreme Court, the grievance was raised about non implementation of the report of the Second Pay Commission. Dealing with this aspect the Supreme Court observed in para 15 of the report thus:
Either the Government has made reference in respect of all Government employees or it has not. But if it has made a reference in respect of all Government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all Government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution has done as far as these petitioners are concerned.
30. In the case of Purshottam Lal it was found that the Government acted in violation of Articles 14 and 16 in implementation of the revised Pay Scales in a particular category of servants from a date later than that recommended by the Pay Commission. That is not the case here. Purshottam Lal cannot be applied to the present fact situation.
31. In what we have discussed above, we are of the view that the direction given by the Single Judge, if upheld, shall result in framing the Rules by the Court, which under proviso to Article 309 of the Constitution of India is the sole domain of the Governor. Much water has flown under the bridge after the writ petition came to be filed in the year 1984. As noticed above, the Rajasthan Service (Revised pay Scale) Rules, 1989 effective from 1st September, 1988 came into force. As a matter fact, there was no direct challenge to the pay scale of Legal Assistant and Head Legal Assistant prescribed in the said Rules by the petitioners in the writ petition. With due regard to the Single Judge, we find ourselves unable to concur with his view.
32. Consequently, the special appeal is allowed. The judgment and order dated 8th September, 1992 passed by the Single Judge is set-aside. As a result of this, the writ petition filed by the petitioners is dismissed with no order as to costs.
33. Though the writ petition has been dismissed, we observe that the petitioners may make an appropriate and adequate representation to the State Government for redressal of their grievance concerning the pay scale. If such a representation is made within one month from today, we observe that the State Government or the other authority competent to take decision in the matter shall consider all the aspects raised in the representation objectively and in the right perspective and take a decision in the matter which is just, fair and reasonable to the State Legal Service insofar as the post of Head Legal Assistant is concerned and the State Legal Subordinate service insofar as the post of Legal Assistant is concerned. We expect the State Government to take decision expeditiously as may be possible and preferably within six months from the date of receipt of such representation.