H.L Anand, J.:— These petitions by the Private Secretaries and Readers to Hon'able the Chief Justice and Hon'able Judges of this Court raise certain questions arising out of their classification by the Delhi Administration for the purpose of giving to them the benefit of the recommendation of the Third Pay Commission.

2. The facts and circumstances leading to these petitions, which are not in dispute, may be brifely stated. The conditions of service of the staff of this Court are regulated by Rules made by Hon'ble the Chief Justice of this Court under Art. 229 of the Constitution of India, including the Delhi High Court Officers (Leave, Allowances & pension) rules 1970 for short the rules of 1970. In view of the fact that Delhi is a Union Territory, the staff of this Court, including the petitioners, are treated as employees of the Union of India and their salaries are paid out of the Consolidated Fund of India. It appears from the various Rules that there is no equation of posts for the staff of this Court with the staff of the Delhi Administration except and in so far as equation has been made with respect of specified matters, such as for the purpose of leave allowances and pension by virtue of the Rules of 1970. Rule 2 of these Rules deals with “Salaries of the staff of the Court” and inter alia, provides that ‘the rates of scales of pay’ to which the holders of the various posts in the High Court would be entitled “shall be those which are specified in the Schedule to these rules.” The first Schedule to the Rules lays down the scales Rule 3 of these rules, which is entitled as “Leave, allowance and pension” provides that “The rules and orders for the time being in force and applicable to the officer and servants holding corresponding posts in the Union Territory of Delhi shall regulate the conditions of service in respect of leave, allowances and pension of the Court's officers and servants.” Explanation to this Rule runs this:—

“Explanation.—

For the purpose of this rule the posts specified in column 1 of the Second schedule shall correspond to the posts in the Union Terriorty of Delhi as shown against column 2 of that Schedule”

(Emphasis supplied).

3. In the second Schedule, the post listed as corresponding to the posts of Private Secretaries and Readers is the post of “Superintendent in Delhi Administration”. It would thus appear that the equation of posts by virtue of the Explanation of Rule 3 is specifically confined to matters dealt with in that Rale and does not extend to other matter like salary.

4. The Third Pay Commission, which was set up by the Central Government to make recommendations, inter alia, with regard to the pay and allowances of the Central Government employees, submitted its report in March 1973 containing recommendations with regard to the various categories of the Central Government employees. The Commission made separate recommendations in respect of Union Terriories including Delhi. By virtue, however, of Art. 229 of the Constitution of India, the staff of this Court was considered outside the scope of the recommendations and but for the provisions contained in that Article the recommendations of the Commission would have applied to them. In view, however, of the recommendations of the Commission and the eventual acceptance of it by the Central Government, the then Chief Justice of this Court recommended to the Central Government that the benefits of the recommendations of the Commission, which had been accepted by the Central Government, be extended to the staff of this Court. The benefit of the recommendation of the Commission has since, by and large, been conferred on the different categories of the staff of this Court. There has, however, been some controversy as to the precise classification of the Private Secretaries and Readers for the purpose of the benefits of the recommendations of the Commission because the Commission did not deal with this category and had no occasion to consider the question of its equation with the existing categories with which it had to deal. It appears that while the Delhi Administration had taken the view, consistent with the position that obtains under Rule 3 of the Rules of 1970 for the purpose of leave, pension and allowances, that the Private Secretaries and Readers could be equated with Superintendents in the Delhi Administration, the Central Government had expressed the view that such an equation for the purpose of salary would not be proper, but could be justified only with reference to leave, allowances and pension, apparently because of the obvious distinction between the nature of the two. A plea was, therefore, made to the Delhi Administration that the question of equating the posts of private Secretaries and Readers be reconsidered. The Delhi Administration, however, reiterated its position and it was finally decided with the approval of the Central Government, that the Private Secretaries and Readers be equated with the Superintendents of Delhi Administration and in terms of the recommendations of the Pay Commission their scales have been revised from the existing scale of Rs. 350-575 to Rs. 550-900 vide Annexure 1 to the petition. Feeling themselves aggrieved by the decision the Private Secretaries and Readers assail the classification and the consequent revision and seek a direction for their reclassification as being equivalent to the Reporters in the Delhi Administration and the consequential enhancement of their scale to Rs. 650-960, inter alia, on the grounds that the aforesaid equation is erroneous and militates against the fundamental right of equality of opportunity in the matter of employment.

5. It further appears that some what similar, situation had arisen in the Punjab and Haryana High Court pursuant to the decision of the Chief Justice of that Court that the recommendations of the Pay Commission constituted by the Governor of Punjab be extended to the staff of the said Court for common categories of posts, and that, for the uncommon categories, the staff of the said High Court be given the scales of “comparable posts existing in the Secretariat” subject to the approval of the President of India, as required under Article 229(2) read with the proviso to Art. 231(2) of the Constitution. So far as the Private Secretaries and Readers were concerned, the recommendation of the Chief Justice was that their posts be equated to the posts of Private Secretaries in the Punjab Secretariat. The recommendation was accepted by the President of India in pursuance of which a letter of April 23, 1970, was issued by the Government of India conveying “the sanction of the President to the equation of posts of Private Secretaries/Readers to Chief Justice and Judges of the High Court of Punjab and Haryana in Chandigarh with the posts of Private Secretaries in the Panjab Civil Secretariat”. Reference may be made in this connection to the decision of the Full Bench of the Punjab & Haryana High Court reported as (1974) 2 Serv LR 1 where the letter is quoted in extenso. Pursuant to the Presidential section, the Private Secretaries and Readers in the Punjab & Haryana High Court were being considered as being equivalent to the Private Secretaries in the Punjab Secretariat and given the benefit of pay scales accordingly. According to the petitioners. The impugned classification equating the petitioners with Superintendents in the Delhi Administration has no rational basis and ignores the relevant criteria for such equation such as comparative qualifications, duties, the peculiar nature of the work and responsibilities and other material factors. It was urged that while the Superintendents were primarily concerned with the supervision of routine clerical work, which neither involved initiative nor was of a confidential nature, the work of the Private Secretaries and Readers in the High Court was of a highly onerous nature requiring proficiency in the practice and procedure of the courts, high degree of confidence and integrity and much higher standard of efficiency and accuracy. The equation for the purposes of leave, allowances and pension for the purposes of R. 3 of the Rules of 1970, it was urged was wholly irrelevant for the determination of equation for the purpose of scales of pay. It was contended that if the Delhi Administration had applied the relevant criteria in determining the proper equation and had given due weight to the Presidential decision in the matter of classification of Private Secretaries and Readers in the Punjab & Haryana High Court the petitioners would have been classified as being at least equivalent to the Reporters in the Delhi Metropolitan Council, even though the categories which the petitioners represent would stand at a much higher pedestal than the Reporters. It was further urged, that as a result of improper classification, the petitioners have been denied equality before the law and equal opportunity in the matter of employment contrary to the mandate of Arts. 14 and 16 of the Constitution of India inasmuch as the petitioner and their counterparts in the Punjab & Haryana High Court constituting the same class, would be differently treated in the matter of classification for scales of pay and the rest of the staff of the High Court on the one hand, and the petitioners on the other, would be differently treated in the matter of pay scales, even too ugh forming part of the same establishment:

On behalf of the Delhi Administration the classification was sought to be justified on the ground that it was based on the classification under the Rules of 1970, even though admittedly for the limited purposes of leave, allowances, etc. it was not disputed that by the Presidential order, the Private Secretaries and Readers in the High Court of Punjab and Haryana have been classified to be equivalent to Private Secretaries to the Ministers in the States of Punjab and Haryana, but it was urged that there is no post equivalent to the post of Private Secretaries to the State Ministers in the Delhi Administration. The impugned classification it was urged was neither justiciable nor would, on any reckoning attract Art. 14 or 16 of the Constitution of India because the Private Secretaries and Readers in the two courts, referred to above could not be considered to be similarly situated and that in any event the concept of “equal pay for equal work” does not have any unqualified acceptance in India and has not been recognised as an enforceable right even though forming part of the directive principles of State policy.

6. The rival contentions pose two questions for our consideration, viz. (A). Whether the impugned classification is proper having regard to the relevant criteria; and (B). If not whether it could be said to militate against the fundamental right of equality before the law and equality of opportunity in the matter of employment.

A. Properiety of the classification.

7. It was not disputed before us that a number of factors, such as the comparative duties, qualifications, nature of the posts and the onerous responsibilities that may be attached to them and other relevant considerations have to be taken into account in determining if a post could be considered as being equivalent to another. It was also not disputed before us that the Posts of Private Secretaries and Readers in the High Court are very responsible posts requiring a high degree of integrity and confidence proficiency in the practice and Procedure of the Court apart from a high degree of efficiency and accuracy. There can be no doubt that the qualifications, duties and the peculiar responsibilities that attach to these posts could not be said to the common to the posts of Superintendents in Delhi Administration which involve supervision over routine clerical work. The only factor common between the two before the present recommendations has been the salary scale. It is true that for the purpose of R. 3, of the Rules of 1970 which deals with leave, allowances and pension the Private Secretaries and Headers have been treated as being equivalent to the Superintendents in the Delhi Administration. Bui that classification could not be extended to other matters and be said to be determinative of to question if these posts could be considered to be equivalent for all or, in any case, other purposes particularly for the purpose of scales of pay. Scales of pay and the other conditions of service do not stand at par. A proper determination of equation in matter of posts must take into account all relevant factors such as the comparative duties, qualifications, peculiar nature of the work and the responsibilities. If a similar post outside the service or even outside a State has been classified for the purpose of scales of pay, that would also be a relevant consideration. It has already been pointed out above that the nature of duties and responsibilities and the standard of confidence and integrity expected of a Private Secretary and the Reader in the High Court are of a higher and different order and could not be equated with the duties to supervise clerical work of a routine nature. It was not disputed that by a Presidential order in exercise of power conferred by Art. 229 of the Constitution of India, the Private Secretaries and Readers of the Punjab and Haryana High Court, posts which are identical to the post of Private Secretary and Reader in Court, had been classified as being equivalent to the posts of Private Secretaries to the Ministers in the States of Punjab and Haryana, it is, therefore, difficult to accept that in determining the question of equation of posts, the Delhi Administration, which according to the Constitution, is administered by the President of India, through the Administrator, could have possibly excluded from consideration the authoritative determination by the Presidential order. In the result, the impugned classification by the Delhi Administration which is not based on a consideration of the relevant factors and being directly contrary to the Presidential order referred to above, must be held to be improper.

B. Violation of the Fundamental Right.

8. The difficulty of the petitioners, however, does not end with the conclusion that the classification was improper because such a conclusion per se does not entitle the petitioners to relief unless the petitioners are able to show that the improper’ classification was an infraction of a statutory provision so as to bring their case within Cl. (b) of Art. 226 of the Constitution of India, as it stands today, and failing that, that such classification militates against any of the fundamental rights of the petitioners so as to attract Cl. (a) thereof. Petitioners are admittedly unable to invoke Cl. (b) because the classification has not been made pursuant to any statutory provision and it cannot be said that the classification constitutes a contravention of any law. No such claim was made by the petitioners either. clause (a) of art. 226 does not appear to be available to the petitioners either. It is no doubt true and, to out mind, unfair that as a result of the impugned classification two equivalent categories of staff of the two High Courts with identical duties and other conditions of service would be differently classified for the purpose of scale of pay which would have the effect of two sets of persons being paid differently for the same work contrary to the principle of equal pay for equal work, which has the sanction of the directive principles of State policy enshrined in Art. 39(d) of the Constitution of India. Unfortunately for the petitioners, however, Art. 14, as indeed Art. 16, of the Constitution of India constitute a charter of equality for the equals and prohibits unequal treatment of persons who are similarly situated. A category of employees in one State or a Union Territory could not be said to be similarly situated or be equal to a category of employees in another State or Union Territory even though otherwise identical in their various features of employment. The principle of equal pay for equal work, though enshrined in the Directive Principles of State Policy, which have, since the amendment of Art. 31 of the Constitution of India, been raised to a higher pedestal and given even an ascendancy over the fundamental rights in certain respects are nevertheless not enforceable until given statutory recognition in pursuance to the constitutional provision, however, desirable it may be for the State to follow these principles in practice, as far as possible. It is equally true that as a result of the erroneous classification, there has been some discrimination between the staff of this High Court inter se in that while the various categories of staff of this Court, which conform to the known categories in the recommendation of the Pay Commission, got the full benefit of the recommendations, the Private Secretaries and Readers are denied full benefit as a result of an erroneous classification and if they had been classified correctly, they would certainly have been entitled to a slightly higher scale of pay. Unfortunately, even so Articles 14 and 16 would not be attracted because for the purpose of conferring the benefit, it is necessary to classify the categories which need classification and, therefore, the power of the Administration to classify the petitioners is undoubted and the power to classify unless exercised in a mala fide manner, includes the power to make an erroneous classification. Such a classification may be improper, and we have held it to be so, but it could not be honest for that reason so as to attract Art. 16 of the Constitution of India. The benefit of the recommendation of the Pay Commission could not be said to have been denied to the petitioners because for the purpose of computing the benefit, the petitioners have to be classified and the authority competent to classify the petitioners has classified them even though erroneously. It is an erroneous classification in exercise of an undoubted power and would not attract either of the two Articles. The unfortunate result, therefore, is that even though the classification is improper and it has caused prejudice, by virtue of the constitutional limitations this Court is not in a position to give any relief to the petitioners.

9. In the result, we have no option but to dismiss the petition, but not without giving expression to a feeling that by improper classification injustice has been done to the petitioners and a hope that the Administration would consider the matter of classification of the petitioners afresh keeping in view the various relevant factors and considerations.

10. In the peculiar circumstances, parties would bear their respective costs.

11. Petitions dismissed.