WRIT PETITION NO. 7482 OF 2017

26th October 2021

Petitioner Counsel: Mr. G. S. Godbole Mr. Mustafa Shabbir Shamim Mr. Drupad Sopan Patil
Respondent Counsel: Mr. Rajesh Sudhakar Datar Mr. S. B. Kalel
Act Name: Presidency Small Causes Court Act, 1882 Legal Practitioners Act, 1879 Bombay City Civil Court Act, 1948 Code of Civil Procedure, 1908 Constitution of India, 1950

HeadLine : Registrars and Addl. Registrars of Small Causes Court, Mumbai are entitled for payment of salary and Grade Pay equal to Registrar and Addl. Registrars of City Civil Court and Sessions Court.

Section :
Section 6 Presidency Small Causes Court Act, 1882 Section 13 Presidency Small Causes Court Act, 1882 Section 14 Presidency Small Causes Court Act, 1882 Section 6 Legal Practitioners Act, 1879 Section 5 Bombay City Civil Court Act, 1948 Section 8 Bombay City Civil Court Act, 1948 First Schedule Code of Civil Procedure, 1908

JUDGEMENT

SMT. SADHANA S. JADHAV, J.

1. Heard the learned Counsel for the Petitioners as well Respondents.

2. Rule. Rule returnable forthwith with the consent of the parties.

3. The Petitioner Nos. 1, 3, 4, 6 and 7 are officiating as Registrars and Additional Registrars in the Court of Small Causes (Small Causes Court at Mumbai). By this petition, the Petitioners are seeking a writ of certiorari thereby seeking the relief of quashing and setting aside the communication dated 24th July, 2015 by Additional Secretary, State of Maharashtra to the Registrar (Inspection-I), High Court of Bombay, thereby holding that the post of Registrar and Additional Registrar of City Civil and Sessions Court Mumbai is not equivalent to the post of Registrar and Additional Registrar, Small Causes Court, Mumbai and therefore, the Registrars and Additional Registrars are not entitled to the pay scale of 15600-39100 with Grade Pay 6600. It is further stated in the said communication that Registrar and Additional Registrar of Small Causes Court, Mumbai fall in A-Category. The said fact is self-speaking and therefore, the Registrar (Inspection-I) was directed to send a proposal for continuation of their pay scale in the category of 9300-34800 with Grade Pay of Rs. 5000/-.

4. The substantive relief sought by the Petitioners is to modify and revise the pay scale and pay-band in conformity with the recommendation of the 6th Pay Commission and High Power Pay Anomaly Committee Report, in addition to the recommendation by the Hon’ble the Chief Justice, High Court, Mumbai through Registrar General and Guardian Judges of the Small Causes Court with retrospective effect from August, 1999.

5. The back drop of this issue is that a study group was constituted under the Chairmanship of Justice S.N. Khatri for the purpose of restructuring the organizational set up in subordinate Courts. One of the recommendations of the Committee was that the pay scale of the staff of the Court of Small Causes, Bombay shall be at par with the scale of the staff of City Civil and Sessions Court Bombay. The Registrars and Additional Registrars were classified as Class-I Gazetted Officer. By a letter dated 21st August, 1999, the Government of Maharashtra had communicated to the Registrar(Appellate Side), High Court that the said recommendations of the study group are accepted by the Government.

6. In addition, the Government had constituted a High Power Pay Anomaly Committee vide Notification dated 16/12/1998. The Committee had submitted its report on 29/12/1999 and clarified that the recommendations of study group and reports are accepted and the Government shall take necessary steps to implement the recommendations of the study group.

7. The Petitioners had made a representation to the Remembrancer of the Legal Affairs(RLA), Law and Judiciary Department, Government of Maharashtra seeking the relief of pay parity and to place them in the pay band of 15600-39100 with Grade Pay 6600 instead of 9300-34800 with Grade Pay 4600. The representation was supported by the Chief Judge of the Small Causes Court, Mumbai vide letter dated 16/7/2009. This was then followed by a reminder dated 20th October, 2010 by the Chief Judge, Court of Small Causes, Mumbai. It was a request to the Under secretary, Law and Judiciary Department to take appropriate steps in the said direction.

8. The Respondent-State had accepted the recommendations of the Shetty Commission vide Government Resolution dated 20/10/2011 and the pay scale of the Registrars of City Civil and Sessions Court as well as District Court were enhanced. It is the grievance of the Petitioners that although the post of Registrars, District Court is classified as Class-II post, they were drawing the salary in the pay band of 8000-275-13500 as per the recommendations of the Shetty Commission. The said pay is enhanced in the 6th pay Commission to 9300-34800 with Grade Pay of 5400.

9. It is seen from the records that on 31/5/2012 the Pay Anomaly Committee filed a report. Exh. C to the said report would show that the Pay Anomaly Committee had suggested a grade pay of Rs. 5000 for A-Class, which also includes the Registrars and Additional Registrars of the Court of Small Causes, Mumbai. The Petitioners had once again made a representation on 17/1/2014, which was forwarded to the Registrar General of the High Court through Chief Judge of Court of Small Causes, Mumbai, which was supported by the recommendation of the Chief Judge. Upon considering the justifiable claim of the Petitioners, the Registrar General vide letter dated 4/3/2014 had requested the Principal Secretary and RLA to take appropriate steps and pass necessary orders. After verification of the entitlement of the Petitioners to the pay scale at par with the pay scale of Registrar and Additional Registrar of the City Civil Court Mumbai, the High Court has sent recommendation dated 18/2/2015 and had submitted the need for pay parity and had requested the Government that the demand for higher pay scale by the Petitioners since 1992 deserves to be considered with a specific observations, which reads as follows :
“On going through the representation of the Petitioners, the Hon’ble Chief Justice of Bombay High Court has been pleased to observe that the demands made by the Registrar and Additional Registrars, Court of Small Causes, Mumbai are just, reasonable and acceptable.”

10. This was followed by the request through the Registrar (Inspection-I) vide letter dated 9/4/2015. Despite all recommendations by various Committees and the High Court, the Government has rejected the claim of the Petitioners seeking pay parity. The main thrust of the Petitioners is that the requisite eligibility criteria for the post of Registrars and Additional Registrars of City Civil and Sessions Court, Mumbai is Law Graduate, whereas the requisite eligibility criteria for the post of Registrars and Additional Registrars of Court of Small Causes, Mumbai is degree in law faculty with 10 years’ continuous service. The appointing authority for both the posts is the High Court, whereas the Registrar of District Court is appointed by the Principal District Judge. The Registrars of both the Courts are classified as Class-I. The nature of the work of the Registrars of City Civil and Sessions Mumbai is mainly of administrative in nature. Whereas, the Registrar and Additional Registrar of Court of Small Causes, Mumbai are vested with judicial powers as per the provisions of the Presidency Small Causes Courts Act, 1882 and accordingly, to preside over the Registrar’s Court in head office and Bandra branch and to discharge judicial work and duties as per Acts and Rules of the said Act. Unlike the Registrars of City Civil and Sessions Court, Mumbai, the Petitioners have to register all the matters, scrutinize and admit the same and to pass first order for issuance of summons as per the rules, to submit the monthly account of total court fee received to the Superintendent of stamp and deal with all the matters till filing of the written statement, to conduct and work as a presenting officer on behalf of the administration in the proceedings of departmental enquiry against the staff members and make necessary correspondence, to monitor the entire work of execution of decree in the order passed in the Court as well as the decrees of other courts, which are filed for execution.

11. It is further the contention of the Petitioners that at present the Registrar of District Courts falls in Class-II category, however, their pay scale is equivalent to the pay scale of the Petitioners who fall in Class-I. The nature of the duties and responsibilities of the Registrars of District Courts is also mainly administrative and supervision of the clerical establishment. According to the Petitioners, their qualification and duties are at par with the Registrars of City Civil and Sessions Court, Mumbai and therefore, they are entitled to parity in pay. It is emphasised that despite favourable recommendations by the study group as well as High Power Pay Anomaly Committee, the Respondents are of the opinion that their post is not equivalent to the post of their counterparts in the City Civil and Sessions Court, Mumbai. There are no plausible reasons assigned for the classification, although they discharge judicial functions unlike their counterparts in the City Civil and Sessions Court, Mumbai.

12. In answer to the queries made by the Government of Maharashtra, a comparative chart showing the eligibility, responsibilities and duties and the nature of the work was brought to the notice of the Government on more than two occasions and in principle, the Government had accepted the recommendations. However, it is the opinion of the Government that the said posts cannot be equated for the reason that they were never equated from inception. It was brought to the notice that the duties and responsibilities and educational qualifications of the post of the Petitioners is similar to the post of the Registrars and Additional Registrars of City Civil and Sessions Court, Mumbai. In fact, the Petitioners are vested with all judicial powers unlike their counterpart in City Civil and Sessions Court, Mumbai. Both the posts are within purview of the High Court. Despite being classified as Class-I, their pay scale is equated with the Registrar of District Court, which is classified as Class II.

13. Upon examining the merits of the matter, it prima facie, appears to us that disparity in pay is in violation of the principle of equal pay for equal work. In fact, the Government had principally accepted the proposal of the study group as well as the Pay Anomaly Committee. At this stage, it would be trite to place reliance upon the Judgment of the Apex Court in the case of Steel Authority of India Ltd. & ors. v/s. Dibyendu Bhattacharya, (2011) 11 SCC 122 wherein the Supreme Court has held as follows :
“In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the post concerned.”
In the present case, we have no doubt that both the posts are identical, the responsibilities of the Petitioners are higher in cadre and degree. The quality of work is also on higher footing, since they are discharging judicial functions unlike their counterparts. Since both the posts fall within the purview of the High Court, it cannot be said that they are working under two different establishments.

14. In the present case, in fact, the question that arises for consideration is as to (i) Whether the post of the Petitioners is equivalent to the post of Registrar of the District Court or the registrars of City Civil and Sessions Court, Mumbai. (ii) Whether pay parity between the post of Registrar of District Courts and Registrar of Court of Small Causes, Mumbai is justifiable, although they are classified as Class II and Class I respectively.

15. The answer to question No. 1 would be that the post of the Petitioners is equivalent to the post of the City Civil and Sessions Court, since the appointing authority to both the posts is the High Court. Both the posts fall within the purview of the High Court. Both the Courts are established under the Statute.

16. In the present case, the pay scale of the Petitioners is at par with the Registrars of District Courts. After the 6th Pay Commission, the Petitioners’ pay scale is at par with the pay scale of the Registrar of the District Court, although the Registrar of District Courts fall in class II. Their eligibility criteria is S.S.C. passed. Their appointing authority is the District Judge. Whereas the appointing authority of the Registrars and Additional Registrars of the Small Causes Court is High Court.

17. The letter dated 24th July, 2015 does not carve out any specific justifiable reason for denying the claim of the Petitioners. It is the contention of the Respondents that since both the posts were never equivalent, they cannot be granted same pay scale. It is the contention of the Respondents that equation of post and equation of pay structure is the prerogative of the executive.

18. It would be apt to place reliance upon the judgment of the Supreme Court in the case of Union of India v/s. Dineshan K.K. (2008) 1 SCC 586, wherein it is held that –
“It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the executive or the legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene.”

19. The City Civil and Sessions Court, Mumbai and Court of Small Causes, Mumbai are two establishments under the purview of the High Court. Court of Small Causes, Mumbai has been established under the provisions of the Presidency Small Causes Court Act, 1882. The procedure of this Court is governed by the provisions of the Presidency Small Causes Court Act, 1882, Civil Manuel 1986 and the Code of Civil Procedure, 1908, as it is applicable to this Court by the Rules framed by the High Court under the said Act. The rules of procedures are framed by the High Court.

20. Section 6 of the Presidency Small Causes Courts Act contemplates as follows :
“Section 6- Court to be deemed under superintendence, etc., of High Court - The Small Cause Court shall be deemed to be a Court subject to the superintendence of the High Court of Judicature at Fort. William, Madras or Bombay, as the case may be, within the meaning of the Letters Patent, respectively, dated the 28th day of December, 1865, for such High Courts, and within the meaning of the Code of Civil Procedure (14 of 1882) [and to be a court subordinate to the High Court within the meaning of section 6 of the Legal Practitioners Act, 1879 (18 of 1879)], and the High Court shall have, in respect of the Small Cause Court, the same powers as it has under the twenty-fourth and twenty-fifth of Victoria, Chapter 104, section 15, in respect of Courts subject to its appellate jurisdiction.”
Section 5 of the Bombay City Civil Court Act, 1948 contemplates as follows :
5. Subordination to and superintendence by High Court. -
The City Court shall be deemed to be a court subordinate to and subject to the superintendence of the High Court within the meaning of the Letters Patent of the High court and of the Code of Civil Procedure, 1908.
Section 8 of the Bombay City Civil Court Act, 1948 contemplates as follows:
8. [Registrars.] - (1) The [State] Government may appoint an officer to be called the Registrar of the City Court. He shall be the chief ministerial officer of the Court; and shall exercise such powers and discharge such duties of a ministerial nature as the Judge of the City Court, or when the court consists of more than one Judge, the principal Judge may, from time to time, by rules, direct. [The State Government may also appoint [two officers to be called the additional Registrars] of the City Court. [Any additional Registrar] shall exercise all or any of the powers and discharge all or any of the duties of the Registrar as the principal Judge may, from time to time, by rules, direct.]
(2) The [State] Government may, with the previous approval of the High Court, invest the Registrar and [any additional Registrar] [with all or any of the following powers of the Judge of the City Court, namely:-
(a) the power to hear and dispose of all applications for permission to sue or defend as paupers or for dispaupering plaintiffs or defendants permitted to sue or defend as paupers;
(b) the power to hear and dispose of all interlocutory applications or matters necessary for the progress of any suit or other proceedings;
(c) the power to hear and dispose of all applications for execution of decrees (but in the case of any application referred to in rule 22 of Order XXI in the First Schedule to the Code of Civil Procedure, 1908, only when the person to whom the notice thereunder is served does not appear or offer any objection to the execution);
(d) the other powers of the said Judge, not being powers of trying suits and proceedings.]

21. The Registrar of the Presidency Small Causes Court is appointed by the High Court under section 13 of the Presidency Small Causes Court Act., 1882 reads as under :
Section 13. Appointment of Registrar and other officers. —There shall be appointed an officer to be called the Registrar of the Court who shall be the chief ministerial officer of the Court; there shall also be appointed a Deputy Registrar and as many clerks, bailiffs and other ministerial officers as may be necessary for the administration of justice by the Court and for the exercise and performance of the powers and duties conferred and imposed on it by this Act or any other law for the time being in force.
The Registrar and other officers so appointed shall exercise such powers and discharge such duties, of a ministerial nature, as the Chief Judge may, from time to time, by rule direct.]
Section 14 of the Small Causes Court Act, 1882 contemplates as under :
Section 14. Registrar may be invested with powers of a Judge in suits not exceeding one hundred rupees. The State Government may invest the Registrar with the powers of a Judge under this Act for the trial of suits in which the amount or value of the subject-matter does not exceed twenty rupees. And, subject to the orders of the Chief Judge, any Judge of the Small Cause Court may, whenever he thinks fit, transfer from his own file to the file of the Registrar any suit which the latter is competent to try.
[Explanation.—For the purposes of this section an application for possession under section 41 shall be deemed to be a suit.]
The duties and responsibilities of the Registrars of the Small Causes Court, Mumbai are contemplated in Presidency Small Causes Court Act as follows :
Section 34. Registrar to hear and determine suits like a Judge. -
The suits cognizable by the Registrar under section 14 shall be heard and determined by him in like manner in all respects as a Judge of the Court might hear and determine the same:
Proviso.—Provided that, subject to the control of the Chief Judge, any Judge of the Court may, whenever he thinks fit, transfer to his own file any suit on the file of the Registrar.
Section 35.- Registrar may execute all decrees with the same powers as a Judge. The Registrar may receive applications for the execution of decrees of any value passed by the Court, and may commit and discharge judgment-debtors, and make any order in respect thereof which a Judge of the Court might make under this Act.
Section 36.- Decrees and orders of Registrar to be subject to new trial as if made by a Judge. Every decree and order made by the Registrar in any suit or proceeding shall be subject to the same provisions in regard to new trial as if made by a Judge of the Court.

22. Initially, sessions trials were held in the High Court. Last Criminal Session of the High Court commenced on 30/6/1948 and was dissolved on 2/7/1948. In the fact, trial by Jury which was in vogue since long in the High Court and continued till 1948 was thereafter continued in the Court of Sessions for Greater Bombay. The rules for the Court of Sessions are also framed by the High Court. At present, the Sessions Court is not merely concerned with the trial of criminal cases. With effect from 1st April, 1974 (the date on which Criminal Procedure Code of 1973 came into force), appeals from orders of the Metropolitan Magistrates, which lay with the High Court, now lie with the Sessions Court for Greater Bombay, except appeals against conviction and sentence of imprisonment for a period of 7 years and above. The earlier pecuniary jurisdiction of City Civil Court was Rs. 50,000/- but in September, 2012, it was enhanced to Rs. One Crore. The territorial jurisdiction of Small Causes Court is from Colaba to Mulund on Central Suburban Railway side and upto Mankhurd on Harbour Railway Side and upto Mahim on Western Suburban Railway Side. The territorial jurisdiction of Bandra Branch of Small Causes Court is from Mahim to Dahisar on the Western Suburban Railway Side. Hence, it is clear that the rules for the City Civil Court and Small Causes Court are framed by the High Court. In the past, hierarchy of the Courts was (1) City Civil and Sessions Court, (2) Small Causes Court (3) District Court. The duties and responsibilities of the Registrars of the 1st two courts is almost at par. In fact, the Registrar of the Small Causes Court is a judicial officer. He executes decrees in the territorial jurisdiction. The City of Bombay being a Metro City, there are several decrees which need to be executed by the Registrar even beyond the jurisdiction of Mumbai.

23. The grievance of the Petitioners is that after 6th Pay Commission, their pay-band has been brought at par with the Registrar of the District Court being oblivious of the qualification, duties and responsibilities. The table showing different pay scales sanctioned to the posts of Registrar and Additional Registrar in District Court, City Civil Court and Small Cause Courts in Third, Fourth, Fifth, Sixth and Seventh Pay Commission is as under :-

PAY COMMISSIONS CITY CIVIL COURT SMALL CAUSE COURT DISTRICT COURT PERIOD
3rd Pay Commission Rs. 1100-50-1550-75-1700 Rs.750-40-1150 Rs. 500-20-700-25-900 1976-1985
4th Pay Commission Rs. 3200-4625 Rs.2375-3500 Rs.2000-3500 1986-1995
5th Pay Commission Rs. 10650-15850 Rs.7450-11500 Rs.6500-10500 1996-2005
6th Pay Commission Rs.15600-39100+ GP6600 Rs.9300-34800 + GP4600 Rs. 9300-34800 + GP4400* *The pay scale was revised to Rs. 9300-34800 + grade Pay Rs.5400 as per the recommendation of Shetty Commission 2006-2015
7th Pay Commission S-23 67700-208700 S-16 44900-142400 S-20 56100-177500 2016-2025

24. It is the contention of the Respondents that the anomaly between pay scale is to be adjudged only by expert bodies like paycommission in order to determine pay structure and therefore, jurisdiction of the court is excluded. At this stage, it would be relevant to place reliance upon the Judgment of the Supreme Court in the case of State of Kerala v/s. B. Renjith Kumar & ors. (2008) 12 SCC 219. It is observed as follows:
“The principle of "equal pay for equal work" has been considered, explained and applied in a catena of decisions of this Court. The doctrine of "equal pay for equal work" was originally propounded as part of the Directive Principles of State Policy in Article 39(d) of the Constitution. Thus, having regard to the Constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of "equal pay for equal work" has assumed the status of fundamental right.”

25. We are satisfied that the Petitioners have established that there is no reasonable basis for treating them differently in matters of payment of salary and Grade Pay with the Registrar of City Civil Court. In such a circumstance, it would be a discrimination within the meaning of Article 14 of the Constitution of India. It is also contended on behalf of the Respondents that there is classification between Registrars of City Civil Court and Small Cause Court, Mumbai, however, they have not been able to demonstrate a plausible explanation for differentiation between both the posts. In the case of Mewa Ram Kanojia vs. All India Institute of Medical Sciences. (1989) 2 SCC 235, the Apex court has observed thus :
“While considering the question of application of principle of 'Equal pay for equal work' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scales but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Article 14 and 16 of the Constitution. Equality must be among the equals. Unequals cannot claim equality.”

26. Hence, we are satisfied that the classification in respect of salary and Grade Pay given to the Registrar of Small Causes Court is unreal and does not stand the test of equality before law despite the fact that qualifications prescribed for both the posts is the same. Their appointments are made by the High Court. They perform same ministerial acts. However, the Petitioners discharge judicial functions as well and hence, the petition deserves to allowed. Hence, following order is passed :
ORDER
(i) The Writ Petition is made absolute in terms of prayer clauses (a), (b) and (c), which read as under :
(a) That this Hon’ble Court may be pleased to issue a Writ of Certiorari and/or any other order in the nature of writ of Certiorari and be pleased to quash and set aside the Communication dated 24.7.2015 to the extent of rejecting claim of Petitioners for equal pay at par with Registrars of City Civil and Sessions Court, Mumbai.
(b) The Hon’ble Court be pleased to declare that the Petitioners are entitled for equal pay as that of Registrar and Additional Registrars of City Civil and Sessions Court, Mumbai.
(c) That this Hon’ble Court may be further pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus in the nature of order/s and/or direction, directing Respondent Nos. 1 to 3 to suitably modify and/or revise the Pay Band/Pay Scale of the Petitioners in conformity with the recommendations of Sixth Pay Commissions and applicable Service Rules for their posts as per concurrent recommendations of High Power Pay Anomaly Committee reports, Study Group findings and recommendations made by the Hon’ble the Chief Justice of Bombay High Court, Guardian Judges of Court of Small Causes, Mumbai and High Court through the Office of Registrar General as well as various Hon’ble Chief Judges of Court of Small Causes, Mumbai from time to time and further be directed to give pay as per the Pay Band recommended at par with other similarly placed posts with retrospective effect from the dated 21st August, 1999 to the Petitioners and to put in the revised sale as per the Service Rules applicable for the posts strictly in accordance with the said notified Pay Band.
(ii) The Writ Petition is disposed of accordingly.