State Of J&K And Another v. Triloki Nath Bhat And Others

V.K. Jhanji, Actg. CJ.:-

This Letters Patent Appeal is directed against judgment and order dated 17.4.1996 passed by the learned Single Judge in SWP No. 529/92, whereby the writ petition filed by the respondents herein has been allowed and the appellants have been directed to treat the respondents, namely, the District and Sessions Judge (Selection Grade) and District and Sessions Judge to have been placed in the grades of 5100-150-6800 and 4500-150-5700 respectively in the revised pay scales ordered vide SRO 75 dated 30th March, 1992.

2. We have heard learned counsel for the parties and have carefully gone through the record of the case.

3. The genesis of the controversy involved in this mater is rooted in the revisions of pay scales sanctioned by the Government from time to time. Statement of back-ground facts is necessitated. The writ petitioners, namely, the respondents herein are, or have been, District and Sessions Judge (Selection Grade) or District and Sessions Judges/Additional District and Sessions Judges. Prior to the year 1972, the Selection Grade District and Sessions Judges, including Registrar, High Court of Jammu amd Kashmir and Vigilance Commissioner (Judicial), were placed in the grade of Rs. 1200-1600 and the District and Sessions Judges/Additional District and Sessions Judges were placed in the pay scale of Rs. 850-1350. In the Civil Secretariat, there was no Officer in the pay scale of Rs. 1200-1600. One post of Officer on Special Duty, Home Department, was in the pay scale of Rs. 850-1350 equivalent to that of District and Sessions Judges/Additional District and Sessions Judges. The post of Joint Secretary, Planning, was in the pay scale of Rs. 700-1250. The Selection Grade District and Sessions Judges thus carried a scale of pay higher than any of the officers in the Civil Secretariat. The District and Sessions Judges/Additional District and Sessions Judges also carried a higher scale of pay than the Secretaries and Additional Secretaries to Government in the Civil Secretariat. In fact, the Secretaries and Additional Secretaries to Government were in the pay scale of Rs. 500-1100 which was equivalent to the grade of Sub-Judges. In the year 1965, the State Government constituted the Kashmir Administrative Service (KAS). However, till the year 1972 there was no KAS Pay Scale prescribed by the Government. In terms of SRO 149 of 7th April, 1973, the Government revised the pay scales of the State employees, including those of the Judicial Officers. The Selection Grade District and Sessions Judges were placed in the pay scale of Rs. 1400- 1900 and District and Sessions Judges/Additional District and Sessions Judges were placed in the pay scale of Rs. 1100-1600. The Kashmir Administrative Service was classified in three categories with three distinct pay scales, i.e., (i) Junior Scale; (ii) Senior Scale; and (iii) Selection Grade. The Selection category KAS posts were placed in the pay scale of Rs. 1100-1600 and Senior Scale KAS posts were placed in the grade of Rs. 750-1350. The Selection Grade District and Sessions Judges were thus enjoying the highest pay scale of Rs. 1400-1900. There was no other scale of pay between the Selection Grade District and Sessions Judges and District and Sessions Judges/Additional District and Sessions Judges. By virtue of SRO 149 of 1973, the Secretaries and Additional Secretaries to Government were thus brought at par with District and Sessions Judges/Additional District and Sessions Judges. Around the year 1979 the Government appointed the 3rd Pay Commission to formulate new pay scales. Its report was made available to the Government somewhere in the year 1981-82. In respect of the District and Sessions Judges, the Commission recommended a scale of pay of Rs. 1730-2550 which was higher than the Kashmir Administrative Service (KAS). The Selection Grade District and Sessions Judges were recommended to be placed in the grade of 2400-2700 (Chapter 47 of 3rd Pay Commission 1979-80). In respect of the members borne on the Kashmir Administrative Services, the Pay Commission recommended three different pay scales, that is, Rs. 1000-1560 for Junior Scale; Rs. 1300-2030 for Senior Scale and Rs. 1850-2300 for Selection Grade KAS (Chapter 12 Kashmir Administrative Service - 3rd Pay Commission Report). Obviously, both the Selection Grade District and Sessions Judges and District and Sessions Judges/Additional District and Sessions Judges were recommended to be placed in pay scales which were higher than the grades recommended for the members borne on the Kashmir Administrative Services. The Pay Commission gave its reasons for such a superior treatment to the District and Sessions Judges. We deem it appropriate to quote hereunder the relevant portion of the report and recommendations of the 3rd Pay Commission 1979-81 Vol. I contained in Chapter 47, Judicial Officer :

"3. After making a detailed study about the District and Sessions Judge, we have come to the conclusion that our District and Sessions Judges are not favourably placed as far as their relative status is concerned. Their emoluments are also much lower than their counterparts elsewhere. We have noticed that in most of the States, the District Judges are higher in status than the selection grade of State Civil Service. In many States before independence ICS Officers used to be posted as District and Sessions Judges. We are, therefore, of the view that the District Judges have to be given a scale higher than the K.A.S. and, therefore, for them we recommend the pay scale of 1730-2550. It may be noticed that we have given the District and Sessions Judges a scale which is longer than that of the Heads of Departments and the selection grade KAS officers. We think that this is necessary because when a Judicial Officer becomes a District and Sessions Judge usually he still has more than 10 years of service left and so a longer scale would be suitable. A selection grade KAS Officer or Major Head of Department is usually at the fag end of his service and so for them we proposed a shorter pay scale. For the selection grade District and Sessions Judges we recommend the pay scale of Rs. 2400-2700."

It appears that earlier, somewhere before the 3rd Pay Commission Report, the Government created the posts of non-IAS Commissioner in the Civil Secretariat in the grade of Rs. 2000-2500. After the 3rd Pay Commission Report, the Government, vide SRO No. 91 of 22nd March, 1982, promulgated the Jammu and Kashmir Civil Services (Revised Pay) Rules, 1982. In terms of these Rules the District and Sessions Judges (Selection Grade) were placed in the grade of Rs. 2050-2550 equivalent to the pay scale prescribed for Secretary PWD (Tech) and Secretary to Government Law Department and District and Sessions Judge were placed in the grade of Rs. 1850-2300 equivalent to the scale alloted to Additional Secretaries (non-IAS) and Major Heads of Department. The non-IAS Commissioner was placed in the grade of Rs. 2600-3100 i.e. higher than the Selection Grade District and Sessions Judges. It is thus seen that the Government did not accept and implement the recommendations made by the 3rd Pay Commission vis-a-vis the District and Sessions Judges. Not only that, the Selection Grade District and Sessions Judges who, pursuant to 1972 Pay Commission Report, were enjoying a higher grade than the Selection Category KAS Officers/Secretaries in the Civil Secretariat, by introduction of non-IAS Commissioner post, were vertically reduced in status. However, beyond the non-IAS Commissioner's grade there existed no other grade in the Civil Secretariat except for IAS Commissioners. Vide SRO 370 dated 17th July, 1987, the Government again revised the pay scales of Government Servants. The pay scale of Selection Grade District and Sessions Judge was revised from Rs. 2050-2550 to 3300-5050 which was equivalent to that of Secretary PWD (Tech) and Secretary to Government, Law Department in the Civil Secretariat. As regards the District and Sessions Judges/Additional District and Sessions Judges, the pay scale was revised from 1850-2300 to 3150-4500 which was equivalent to that of the Selection Category posts borne on the Kashmir Administrative Service. Perusal of Appendix No. 11 to the Jammu and Kashmir Civil Services (Revised Pay) Rules, 1987, issued vide SRO No. 370 of 17th July, 1987, reveals that beyond the non-IAS Commissioner's grade of Rs 4300- 5700, there was no other grade provided therein for any category of posts in the Civil Secretariat excluding IAS Officers. Further, there was no other grade between the Selection Grade District and Sessions Judges and the District and Sessions Judges/Additional District and Sessions Judges. However, according to the appellants, there was one of the pay scales, namely, 1730-60-2030-80-2350-100-2550, but it carried a lower minimum and first stage increment than that of the District and Sessions Judges/Additional District and Sessions Judges. Thereafter, in terms of SRO 75 of 30th March, 1992, the Government issued the Jammu and Kashmir Civil Services (Revised Pay) Rules, 1992. These Rules were made operative with effect from 1st day of April, 1990. Rule 5 of the aforesaid Rules provided that

"as from the date of commencement of these rules viz., 1.4.1990, the scale of pay of each post specified in column 3 of the Schedule shall be as specified against it in column 4 thereof"

(though there are only three columns in the Schedule appended to the Rules). For purposes of the controversy involved herein, the scales of pay mentioned against S. Nos. 23, 24, 25 and 26 of the Schedule are relevant. Therefore, to that extent, we extract hereunder the Schedule appended to the Rules :

S.No. Existing pay Scale Revised pay Scale

23. 3150-4500 3700-125-4700-150-5000

24. 3000-5050 4100-125-4850-150-5300

25. 3300-5050 4500-150-5700

26. 4300-5700 5100-150-6800.

The grade shown at S. No. 23 is the one prescribed for the District and Sessions Judges/Additional District and Sessions Judges and the grade shown at S. No. 25 is the one alloted to the Selection Grade District and Sessions Judges. It is thus seen that the scale of pay existing at S. No. 24 has been introduced between the Selection Grade District and Sessions Judges and the District and Sessions Judges/Additional District and Sessions Judges. Not only that, the scale of pay shown at S. No. 24, though earlier carried a lower start, has been revised to a higher grade. In this manner, the District and Sessions Judges/Additional District and Sessions Judge have been further lowered in the scales of pay. The petitioners challenged this action of the Government through the medium of writ petition on the ground of discrimination and arbitrary exercise of power by the State Government. The learned Single Judge, as observed, allowed their writ petition. Hence the present appeal by the State.

4. Learned counsel for the appellants submitted that the judgment of the learned Single Judge is not sustainable on the grounds that the Court does not have jurisdiction to fix pay scales of public servants and that the judgment of the Apex Court in Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC 334, though cited, was not considered by the learned Single Judge; second, that the pay structures of the District and Sessions Judges, both Selection Grade or otherwise, vis-a-vis the Additional Secretaries and Major Heads of Department have been maintained by 1992 pay revisions, therefore, there was no discrimination; third, that the pay scale shown at S.No. 24 was always superior even prior to its revision in 1992 to the one carried by the District and Sessions Judges.

5. There can be no dispute with the proposition that fixation of pay structures is primarily the function of the Pay Commission. Learned counsel for the appellants has strenuously relied upon the judgment of the Apex Court in Supreme Court Employees Welfare Association v. Union of India (supra). Before we advert to the facts which were attendant to that case in relation to which the enunciation was made by the Apex Court, it needs to be mentioned that a law, principle or a ratio laid down in a decided case is not attracted unless there is some semblance in res gestae. The facts in Supreme Court Employees Welfare Association v. Union of India (supra) are narrated in paragraphs 1, 2, 3, 4 and 5 of the judgment. We therefore, quote hereunder these paragraphs of the judgment :

"These writ petitions and Civil Miscellaneous petitions have been filed by the employees of the Supreme Court praying for their pay hike. Two events, which will be stated presently, seem to have inspired the employees of the Supreme Court to approach the Court by filing writ petitions. Committee of Five Judges of this Court consisting of Mr. Justice P.N. Bhagwati (as he then was) as the Chairman, Mr. Justice V.D. Tulzapurkar, Mr. Justice D.A. Desai, Mr. Justice R.S. Pathak (as he then was) and Mr. Justice S. Murtaza Fazal Ali. The second event, which is the most important one, is the judgments of the High Court passed in writ proceedings instituted by its employees.

2. The Five Judges Committee in its report stated, inter alia, that no attempt had been made to provide a separate and distinct identity to the ministerial staff belonging to the Registry of the Supreme Court. According to the Committee, the borrowed designations without any attempt at giving a distinct and independent identity to the ministerial staff in the Registry of the Supreme Court led to invidious comparison. The Committee observed that the salary scale applicable to various categories of staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for Central Government servants the pay scales devised by the Pay Commission were practically bodily adopted by the Chief Justice of India for comparable categories in the Supreme Court. This was repeated after the recommendations of the Third Pay Commission were published and accepted by the Central Government. Further, it is observed that apparently with a view to avoiding the arduous task of devising a fair pay-structure of various categories of staff in the Registry, this easy course, both facile and superficial, was adopted which led to the inevitable result of linking the pay-structure for the various categories of staff in the Registry with the pay-structure in the Central Services for comparable posts and the comparison was not functional but according to the designations. No attempt was made to really ascertain the nature of work of an employee in each category of staff and determine the pay-structure and then after framing proper rules invited the President of India to approve the rules under Article 146 of the Constitution. The Committee pointed out that the slightest attempt had not been made to compare the workload, skill, educational qualifications, responsibilities and duties of various categories of posts in the Registry and that since the days of Rajadhyaksha Commission the work had become so complex and the work of even a clerk in the Supreme Court had such a distinct identity that it would be necessary not only to fix the minimum remuneration keeping in view the principles for determination of minimum remuneration but also to add to it the functional evaluation of the post. This, according to the Committee, required a very comprehensive investigation and the Committee was ill-equipped to do it. The Committee, inter alia, recommended that the Chief Justice of India might appoint a Committee of experts to devise a fair pay- structure for the staff of the Supreme Court keeping in view the principles of pay determination and on the recommendations of the Committee, the Chief Justice of India might frame rules under Article 146 of the Constitution and submit them for the approval of the President of India. The Committee also took notice of the fact that the Fourth Central Pay Commission appointed by the Central Government and presided over by a former Judge of the Supreme Court, Mr. Justice P.N. Singhal, was then examining the question of pay-scales and other matters referred to it in respect of the staff of the Central Government. According to the Committee, it was an ideal situation that a former judge of this Court was heading the Panel and he was ideally situated for examining the question of independent pay-structure for the staff in the Registry of the Supreme Court. The Committee recommended that the Chief Justice of India with the concurrence of the Central Government might refer the case of the Supreme Court staff to the Fourth Pay Panel presided over by Mr. Justice P.N. Singhal.

3. Several writ petitions were filed before the Delhi High Court by various categories of its employees namely, the Private Secretaries and Readers to the Judges, Superintendents, Senior Stenographers, Assistants, Junior Readers, Junior Stenographers, Deputy Registrars and certain categories of Class IV employees. In all these writ petitions, the Delhi High Court revised their respective pay-scales. With regard to certain categories of Class III and Class IV employees, the Delhi High Court revised their pay-scale also and granted them Punjab Pay-scales and Central Dearness Allowance, the details of which are given below ...

4. Several Special Leave Petitions were filed on behalf of the Government to this Court, but all these Special Leave Petitions were summarily rejected by this Court.

5. The Supreme Court employees have approached this Court by filing the instant writ petitions and the Civil Miscellaneous petitions for upward revision of their pay-scales as were allowed in the case of the employees working in the Delhi High Court. According to the petitioners, the duties and the job assignments in respect of the staff of the Supreme Court being more onerous and arduous compared to the work done by the staff of the Delhi High Court, the petitioners claimed that they are entitled to equal pay for equal work and, therefore, they are approaching this Court for redressal of their grievances by means of the present writ petitions."

6. In the writ petition filed by the Supreme Court Employees Welfare Association seeking higher pay scales/parity in the pay-scale with Delhi High Court employees in the corresponding categories, the Apex Court on July 25, 1986 pased an interim order whereby the officers and staff of the Supreme Court Registry were ordered to be paid the same pay scales and allowances as were, at that time, being enjoyed by the officers and the members of the staff of the High Court of Delhi belonging to the same category with effect from the date from which such scales of pay had been allowed to the Officers and the members of the staff of the High Court of Delhi, insofar as they were higher or better than what the Officers and the members of the Registry of the Supreme Court were getting. By the same interim order, the Apex Court also directed the concerned respondents therein to refer the question of revision of pay-scales to the Fourth Pay Commission as had been earlier suggested by the Five Judges Committee referred to in the paragraph 2 of the judgment quoted hereinabove.

7. The contention of the learned Attorney General before the Apex Court was that the judgments of the Delhi High Court were erroneous and that, by application of the doctrine of prospective overruling, the Court should not apply the result of an erroneous decision in regard to the pay-scales to the employees of the Supreme Court. Since, in pursuance of the interim order of the Court, the employees of the Supreme Court had been granted the benefit of the pay-scales equivalent to the corresponding ranks in the Delhi High Court, it was suggested that the benefit which had been conferred on the employees of the Supreme Court should not be taken away all at a time but, as a Court of equity, the Court might by way of reconciliation direct freezing of the pay- scales of the Supreme Court employees, which they were getting by virtue of the interim orders of the Court to be adjusted or neutralised against increments, and if that be done, they would not suffer any appreciable hardship. While dealing with these submissions, the Apex Court observed as under :

"36. We are unable to accept the suggestion of the learned Attorney General that reconciliation can be made by freezing the pay-scales of Supreme Court employees, which they are getting by virtue of the interim orders of this Court, to be adjusted or neutralised against the increments. It is not the business of this Court to fix the pay-scales of the employees of any institution in exercise of its jurisdiction under Article 32 of the Constitution. If there be violation of any fundamental right by virtue of any order or judgment, this Court can strike down the same but, surely, it is not within the province of this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution. So far as the judgments of the Delhi High Court are concerned, they do not infringe the fundamental rights of the employees of the Supreme Court or any of the petitioners, who are the petitioners before us in the writ petitions, and, so the question of considering whether the judgments of the Delhi High Court are right or wrong does not arise. If the judgments of the Delhi High Court had in any manner interfered with the fundamental rights of the petitioners before us, in that case, the question as to the correctness of those judgments would have been germane. The petitioners far from making any complaint against the judgments of the Delhi High Court, have strongly relied upon them in support of their respective cases for pay hike and, accordingly, we do not think that we are called upon to examine the propriety or validity of the judgments of the Delhi High Court."

(Underlining supplied)

The learned counsel has relied upon the underlined portion of the above judgment of the Apex Court to canvass that this Court lacks jurisdiction to fix pay-scales of employees of any institution and that, while passing the impugned judgment, the learned Single Judge failed to consider the said judgment of the Apex Court. We have given the factual background in which the above-quoted underlined observations were made by the Apex Court. Further, the Apex Court did not agree with the submission of the learned Attorney General that the pay-scales granted to the Supreme Court employees in pursuance of the interim direction should be freezed. In fact, while disposing of the writ petitions, the parties were directed to maintain status-quo vis-a-vis the scales of pay, allowances and interim relief, as on the day of the judgment, till the framing of the rules by the Chief justice of India and consideration by the President of India as to the grant of approval to such rules relating to salaries, allowances, leave or pensions, and it was ordered that the interim orders passed by the Court will continue till such consideration by the President of India. In any case, the pay-scales ordered to be revised by the Delhi High Court, did not have any backing of the Pay Commission and the employees of the Registry of Supreme Court had sought parity with their corresponding ranks in the Delhi High Court. The claim of the employees of the Supreme Court was also based on the report of the Five- Judge Committee, not any Pay Commission Report.

8. In the present case, as indicated above, the 3rd Pay Commission, after giving due consideration to the relevant factors and norms, recommended higher scales of pay in respect of Selection Grade District and Sessions Judges and District and Sessions Judges/Additional District and Sessions Judges. After making a detailed study, the Commission found that the District and Sessions Judges were not favourably placed as far as their relative status was concerned. Notwithstanding the fact the recommendations of the 3rd Pay Commission were not implemented, the pre-revised pay-scale mentioned at S. No. 24 of the Schedule to 1992 Revised Pay Rules carried a lower minimum and first stage increment than the District and Sessions Judges. In that view of the matter, a balance was maintained between the District and Sessions Judges and other services in the Government. That balance was tilted without any just cause or reasoning by the High Court in terms of 1992 Revision of pay scales by revising the pay scales of District and Sessions Judges to a grade which is lower than the scale of pay which earlier carried a lower start and lower rate of first stage increment. Strictly speaking, therefore, it is not a case where the District and Sessions Judges have sought fixation of a scale of pay. They are simply aggrieved of the imbalance introduced by the 1992 Revised Pay Rules. They have the backing of the recommendations made by the 3rd Pay Commission. Therefore, the observations of the Supreme Court in Supreme Court Employees Welfare Association v. Union of India (supra) are not attracted in the present case. In fact, the judgment is distinguishable on facts. Therefore, we are of the view that non-consideration of the aforesaid judgment by the learned Single Judge would not render the impugned judgment wrong or illegal.

9. Further, the observations made by the Apex Court in Supreme Court Employees Welfare Association v. Union of India (supra) are consistent with the law settled by the Apex Court that question of posts and determination of pay scales is primarily the function of the Pay Commission or the executive and not the judiciary and, therefore, ordinarily, Courts will not enter upon the task of job evaluation. In the instant case, however, the learned Single Judge had not to enter upon the task of job evaluation. It was, in fact, the 3rd Pay Commission, an expert body, which, after considering all the relevant factors, recommended higher pay sales for these Judicial Officers. The spirit underlying the claim of the respondents is the report of the Pay Commission and their status vis-a-vis other services of the Government. They, in fact, do not seek parity with any other class of employees. Their simple grievance is that they have been vertically diminished in status whereas in the Civil Secretariat the service has grown over the years thereby the Judicial Officers have been lowered in status, which is per se discriminatory.

10. It is contended by the learned counsel for the appellants that the scale of pay mentioned at S. No. 24 of the Schedule appended to 1992 Revised Pay Rules has always been superior to that of the District and Sessions Judges/Additional District and Sessions Judges. We have quoted above in this judgment the relevant portion of the recommendations of the Pay Commission. Though the recommendations were not implemented vis-a-vis the District and Sessions Judges, yet, while promulgating the Jammu and Kashmir Civil Services (Revised Pay) Rules., 1982, the District and Sessions Judges were allotted the pay scale of 1850-75-2300. In the year 1987, this scale of pay was revised to 3150-125-4500 and in 1992 to Rs. 3700-125-4700-150-5000. The case of the respondents is that the revisions in the pay scales made in the years 1987 and 1992 were not fixed or ordered in pursuance of any Pay Commission Report. These revisions were made by the Government in exercise of its executive power. This is not disputed by the appellants. While revising their pay scales in the year 1992, the Government ignored the relevant considerations, which had validly weighed with the 3rd Pay Commission; as a result they were reduced in relative status and grades inasmuch as a scale of pay with lower start etc., shown at S. No. 24 of the Schedule, was revised to a higher scale of pay and introduced between Selection Grade District and Sessions Judge and District and Sessions Judges/Additional District and Sessions Judge. It may be relevant to mention here that the appellants in the memo of appeal in retrospect have given a comparative table of the pay scale existing at S. No. 24 of the Schedule to 1992 Revised Pay Rules. According to the table, in the year 1982, this particular scale was as Rs. 1730-60-2030-80-2350-100-2550. It admittedly carried a lower minimum and lower first stage increment than the one carried by the District and Sessions Judges. In the year 1987, it was revised to Rs. 3000-125-3500-150-4700-175-5050. The District and Sessions Judges, pursuant to the revisions made in 1987, were placed in the pay-scales of Rs. 3150-125-3900-150-4500. Again the initial start of District and Sessions Judges was higher than the one in the aforesaid pay-scale. In the year 1992, the Pay scales of District and Sessions Judges, was revised to Rs. 3700-125-4700-150-5000 whereas the pay scale with lower start and longer span, as mentioned at S. No. 24 of the Schedule, was revised to Rs. 4100-125-4850- 150-5300. It is here that the respondents have been discriminated inasmuch as the pay scale with initial start at Rs. 3150 with a shorter span has been revised to a scale of pay with Rs. 3700 as the minimum; whereas the pay scale with initial start at Rs. 3000 with a longer span has been revised to a pay scale with minimum of Rs. 4100. Learned counsel for the appellants argued that the notwithstanding the difference in the minimum of two given pay scales, if the maximum and the rate of increment at any stage is comparatively higher in a scale of pay, that scale of pay becomes superior to the other scale of pay. In this regard reference is made to Note 2 below Article 66 of the Jammu and Kashmir Civil Service Regulations. We have gone through the relevant provision of the Civil Service Regulations. It does not deal with the definition or fixation of pay scales. It rather deals with fixation of pay of an employee under the Rules for Calculation of Officiating Allowance. The Note 2 referred to by learned counsel for the appellants is of no help to him. It is not disclosed as to what parameters were employed by the Government in revising the initial start of District and Sessions Judges from Rs. 3150/- to Rs. 3700/- whereas a lower initial start of Rs. 3000/- was revised to Rs. 4100/-. Whether a scale of pay with a lesser minimum and a lesser first stage increment is superior to a scale of pay carrying a higher minimum with higher first stage increment is not the question. The question is whether the District and Sessions Judges/Additional District and Sessions Judges could be lowered in relative status. As is axiomatic pay of the District and Sessions Judge and Additional District and Sessions Judges has been always higher to the one shown at S. No. 24 of the Schedule, the action of the Government altering this

position certainly has resulted in a grave discrimination against the District and Sessions Judges. Since, pursuant to the recommendations of the 3rd Pay Commission, by virtue of the revisions in pay scales made in the years 1982 and 1987, the District and Sessions Judges were enjoying a better pay than the one mentioned at S. No. 24, that position had to be maintained in subsequent revisions. Therefore, we are of the view that no exception can be taken to the direction given by the learned Single Judge. 11. It was next contended by learned counsel for the appellants that the respondents in their writ petition had sought quashing of items 23 and 25 of the Schedule appended to SRO 75 of 1992 dated 30.3.1992 but the learned Single Judge instead of quashing the two items, has granted a grade mentioned at items 25 and 26 of the Schedule to the petitioners. In this regard, it would be suffice to say that the Court is always within its powers to mould the relief prayed for. Quashing any item in the Schedule would not advance the cause of justice but would cause ripples in the services carrying the same pay scales particularly so because none of the members of those services is a party before the Court in this matter. In any case, that by itself is no ground to render the impugned judgment illegal.

12. The next contention of the learned counsel for the appellants is that by the 1992 Revised Pay Rules the parity between the District and Sessions Judges and Additional Secretaries to Government and other Heads of Department in the Government etc., was maintained. Therefore, no fault could be found with the pay revisions. The real controversy involved is not concerning the partity of pay scales between the respondents and the Additional Secretaries. It rather relates to diminishing the relative status of these Judges. At one stage, there was no post in the Civil Secretariat above the level of Secretary to Government, except, of course, the IAS Officers. The District and Sessions Judges were enjoying higher status than that of such Secretaries to Government. The Government created the post of non-IAS Commissioner in the Civil Secretariat and accorded a grade higher than that of the District and Sessions Judges to such non-IAS Commissioner. This change occurred at the top and at the base line the Kashmir Administrative Services have been opened to induction of many other subordinate services with far less inferior qualifications who by passage of time rise to the rank of Additional Secretaries and can even be posted as Heads of Department. Court cannot lose sight of this change. Therefore, in this fact scenario, the District and Sessions Judges cannot be equated with Additional Secretaries or such Heads of Department. Maintenance of parity between the two, therefore, has been rendered only facile and superficial. Item No. 24 of Schedule appended to 1992 Revised Pay Rules further lowers them in status by creating another pay scale above that of the District and Sessions Judges. That by itself is an arbitrary exercise of State power hit by the mandate of Article 14 of the Constitution of India.

13. The learned Single Judge has aptly quoted a passage from the judgment of the Supreme Court in All India Judges' Association v. Union of India, 1993(3) SCT 248 (SC) : AIR 1993 SC 2493 , that judicial service is not service in the sense of "employment" and Judges are not employees. They represent the State and its authority unlike the administrative executive or the members of other services. The members of other services cannot, therefore, even be placed on par with the members of the judiciary. Independence of judiciary cannot be secured by lowering their status in any way. The learned Single Judge has rightly come to the conclusion that the District and Sessions Judges/Additional District and Sessions Judges are entitled to the scale of pay shown at S. No. 25 of the Schedule appended to 1992 Revised Pay Rules and consequently the Selection Grade District and Sessions Judges, being one step ahead, are consequently entitled to the scale of pay shown at S. No. 26 shown in the Schedule aforesaid.

The judgment impugned is, accordingly, upheld and, consequently, this Letters Patent Appeal is dismissed. There shall, however, be no order as to costs.

Appeal dismissed.