JUDGMENT IN WP 2491 OF 2016

HON’BLE T HE ACT ING CHIEF JUST ICE DILIP
B.BHOSALE
AND
HON’BLE SRI JUST ICE P.NAVEEN RAO
WRIT PET IT ION No.2491 of 2016
Date:20.4.2016
Between:
S.L.Meharbaba, s/o.Lakshmana Rao,
Aged 56 years, Superintendent (Translation),
District Court, Rajahmundry, East Godavari
District and others.
…..Petitioners
and
State of Andhra Pradesh, rep.by its Principal,
Secretary, Hyderabad and others.
…..Respondents
The Court made the following:
HON’BLE T HE ACT ING CHIEF JUST ICE DILIP B.
BHOSALE
AND
HON’BLE SRI JUST ICE P. NAVEEN RAO
WRIT PET IT ION No.2491 of 2016

PC: (Per the Hon’ble Sri Justice P.Naveen Rao)
Petitioners 1 to 17 are working in Judicial
Ministerial Service. Petitioners 18 and 19 retired from
judicial Ministerial service. Grievance of the petitioners
necessitating invoking extra-ordinary jurisdiction of this
court is against inordinate delay in fixation of pay and
allowances on their appointment/promotion to three
categories of Stenographers in judicial ministerial
service.
2. Petitioners are either appointed directly as Steno-
Typist (Stenographer) or promoted from the lower cadre
to the cadre of Stenographer. By the time this writ
petition is instituted petitioner No.1 to 6 and 17 are
working as Office Superintendents, petitioners 6, 8 and
16 are working as Senior Assistants, petitioners 9 to 12,
14 and 15 are working as Stenographer Gr.I, petitioners
10, 13, 20 and 21 are working as Stenographer Gr.II and
petitioners 18 and 19 retired while working as Stenotypists.
When petitioners joined the cadre of
Stenographer, they were governed by the “A.P.Judicial
Ministerial Service Rules, 2003 (Rules, 2003)”. On a
review of the cadre structure in the Subordinate
Judiciary, Justice Jagannath Shetty Commission has
made several recommendations including restructuring
of Stenographer cadre. The Justice Jagannath Shetty
Commission recommended creation of three categories of
Stenographers, namely, Stenographer Grade-I,
Stenographer Grade-II and Stenographer Grade-III in
three different pay scales. As a consequence to the
recommendation of the Justice Jagannath Shetty
Commission, the composite State of Andhra Pradesh
amended the existing Rules of 2003. The significant
changes that are brought out insofar this case is
concerned are:
3. In the place of existing post of Steno-typist (redesignated
as Stenographer/Personal Assistant)
Stenographer Grade-I, Stenographer-II and Stenographer
Grade-III are created. Stenographer Grade-III is intended
to be filled up by direct recruitment and promotion in
the ratio of 60:40. Grade-III is in the scale of Rs.4190-
8750/-, Grade-II is in the scale of Rs.4430-9300/-, 75% of
posts are filled up by promotion from Grade-III and 25%
by direct recruitment. Stenographer Grade-I is to be
filled up only by promotion from the cadre of
Stenographers Grade-II and is positioned in the scale of
Rs.5000-10600/- (Rule 5, constitution, method of
recruitment and scales of pay).
4. As a consequence to the implementation of the
Justice Jagannath Shetty Commission recommendations
and amendments made to rules, 2003, except petitioners
18 and 19, who stood retired, all other petitioners were
fitted into the respective categories as per their
eligibility. For example, 1st petitioner initially joined
service as Examiner and later promoted as Steno-typist
on 16.08.1985. He was promoted as Senior Assistant on
5.3.2007 and as Office Superintendent on 14.05.2009.
Thus, by the time amended Rules were notified, he was
working as Office Superintendent. As a consequent to
the restructuring of the cadres and creation of three
separate categories of Stenographers instead of one, as
per his eligibility petitioner was granted promotion as
Stenographer Grade-II w.e.f. 01.04.2003 and as
Stenographer Grade-I w.e.f. 25.01.2005. He was treated
as Stenographer Grade-I till his date of promotion as
Senior Assistant. In this writ petition, 1st petitioner
claims pay fixation in the categories of Stenographer
Grade II and Grade-I respectively and payment of arrears
for the period from 01.04.2003 to 04.03.2007. As a
consequent to such re-fixation of pay, he may be entitled
to revision of pay in the cadre of Senior Assistant and
Office Superintendent. Similar is the claim of all other
petitioners.
5. Though the dates of appointment into the various
grades of stenographer and the nature of promotion
granted to them varies from petitioner to petitioner, the
sum and substance of the grievance of the petitioners is
against not fixing the pay by applying FR-22(a)(i) in three
categories of Stenographers as applicable. Since
petitioners 18 and 19 were also working as
Stenographers, in view of retrospective operation of
amendment to the Rules, 2003, they are also entitled to
revision of pay and allowance in accordance with the
revised structure of stenographers in three categories.
To complete the narration of facts, the 18th petitioner
retired from service as Steno-typist on 31.10.2010 and
19th petitioner on 31.01.2006. They also claim pay
fixation in revised Stenographers cadre.
6. Respondents do not dispute the basic facts as
noted above. The only area of controversy between
petitioners on one hand and respondent authorities of
the Government is with reference to pay fixation by
applying FR-22(a)(i). According to the learned Special
Government Pleader, since petitioners are not
discharging higher duties and responsibilities on their
elevation to Grade-II or Grade-I respectively, FR 22(a)(i)
and 22(B) is not attracted and, therefore, they are not
entitled to claim pay fixation as sought by them.
Though, learned Government Pleader was trying to
justify the objection raised by the Treasury and Accounts
Department, he fairly submitted that matter was
referred to Government for clarification and so far no
decision is taken by the Government. Pay fixation claims
are not finalized since the clarification sought from the
Government by the Treasury and Accounts Department
was yet to be furnished. However, learned Government
Pleader is unable to state what clarification is required.
The stand of respondent Government as emphasized by
the learned Special Government Pleader is that
Stenographers, wherever they work and in whatever
capacity they work, discharge the same duties and
responsibilities and therefore on promotion they have
not assumed higher duties and responsibilities and thus
are not entitled to fixation of pay under FR 22(a)(i) and
22(B).
7. The issue for consideration in this writ petition is
whether petitioners are entitled to pay fixation by
applying FR 22(a)(i) and 22(B) on their promotion as
stenographer Grade II and / or Stenographer Grade I.
8. To appreciate the stand of the respondents, it is
necessary to consider the scope of the above provisions.
They read as under:
F.R.22. T he initial substantive pay of a Government servant
who is appointed substantively to a post on time-scale of pay is
regulated as follows:
(a) If he holds a lien on a permanent post, other than a tenure
post, or would hold a lien on such a post had his lien not been
suspended:
(i) When appointment to the new post involves the
assumption of duties or responsibilities of greater
importance (as interpreted for the purpose of Rule 30), than
those attaching to such permanent post, he will draw as initial
pay the stage of the time-scale next above his substantive pay in
respect of the old post;
(ii) When appointment to the new post does not involve such
assumption he will draw as initial pay the stage of the time scale
which is equal to his substantive pay in respect of the old post,
or if there is no such stage, the stage next below that pay, plus
personal pay equal to the difference, and in either case will
continue to draw that pay until such time as he would have
received an increment in the time-scale of the old post, or for
the period after which an increment is earned in the time-scale
of the new post, whichever is less. But if the minimum pay of the
time-scale of the new post is higher than his substantive pay in
respect of the old post, he will draw that minimum as initial pay.
….
F.R. 22-B: Notwithstanding anything contained in these Rules,
where a Government servant holding a post in a substantive,
officiating or temporary capacity is promoted or appointed
in a substantive, officiating or temporary capacity to
another post carrying duties and responsibilities of
greater importance than those attaching to the post
held by him, his initial pay in the time-scale of the higher post
shall be fixed at the stage next above the pay notionally arrived
at, by increasing his pay in respect of the lower post by one
increment at the stage at which such pay has accrued.
[Inserted by G.O.Ms.No.239, Fin. & Plg. (FW: FR II) Dept,
dt.23.8.1983]
(Emphasis supplied)
9. The two important components to invoke the above
provisions are: 1) the employee should earn promotion
from the post he was holding to higher post; and 2) on
such promotion, he must carry out duties and
responsibilities of greater importance than those
attached to the post held by him previously.
10. To appreciate the impact of said two conditions
and to examine the validity of claim of the petitioners for
such pay fixation, it is also necessary to look into the
background leading to amendment of rules introducing
three categories of Stenographers.
11. Justice Jagannath Shetty Commission has gone into
all aspects of Judiciary, including the cadre structure
and pay scales of ministerial establishments in the High
Court and Subordinate Courts. The Commission has
made several recommendations. Chapter-X of the report
dedicated to Stenographers. In depth study was
undertaken on origin and growth of Stenographer and its
importance. Different types of grades and scales in
various states were analyzed. After through analysis of
the cadre requirements, the Commission observes as
under:
“Chapter-X:
It is difficult to get proficient and good Stenographers
for Court work. T hey prefer Multinational Company where they
get fat salary. T he Court Stenographer should have a
command of English and local language. He must be familiar
with the substantive and procedural laws. He has to adjust to
the speed and accent of the Judges who are on rotation. He
has to take down the dictation continuously without interrupting
the Judge. If he interrupts the Judge by seeking clarification, he
would be disturbing the Judge’s thought and impeding his
speed. He needs a speed of 120 words per minute to take down
the dictation without omission and in some cases, the judgments
runs into 50 to 100 pages, if not more. He has to be familiar with
the citations or the passage to be extracted therefrom. He has
to observe very stringent requirement of secrecy. He may,
therefore, be given an attractive pay scale, depending upon the
facts and circumstances in each State/U.T .
In the T rial Courts, after preliminary hearing, the
Presiding Officers are invariably engaged in recording
evidence. In many States, the Stenographers alone are used
for recording evidence in the Open Court and also for taking
dictation of judgment in home office or chambers.
It may be noted that, the Judges of Subordinate Courts
are not expected to dictate judgment in the Open Court. Order
XX Rule 3 of the code of Civil Procedure provides that there
cannot be Open Court dictation of judgment by Presiding
Officers unless they are specially empowered by the High
Court. T hat means the Stenographers have to take down the
judgment after the Court hours. Thus the Stenographer is
over burdened with heavy load of work. There is need
to reward this cadre with better pay scale and more
promotional avenues. ” (Emphasis supplied)
12. Chapter-XVIII of the report deals with the
composite State of Andhra Pradesh. In this chapter,
para-IV deals with Stenographers. After noting the
method of recruitment, qualifications and pay scales
prescribed and taking note of the views of the High Court
and Staff Associations, the Commission made
recommendations. Para-IV (C) of the Commission Report
deals with recommendations insofar as the
Stenographers cadre is concerned. To the extent
relevant the recommendation reads as under:
C. Our Recommendations:
(a) In Andhra Pradesh, Steno-typists and T ypists carry the
same pay scale, i.e., Rs.3290-6550, which is as admissible to
Jr.Assistants. But, in many other States, the Stenographers
carry the pay scale admissible to UDCs/FDAs/FDCs/Assts. with
some amount of Special Pay. Further, in Andhra Pradesh,
Steno-typists have no promotional opportunity.
In Chapter-X, we have considered the importance of
the efficient Stenographers for judicial work and we have also
emphasized that they should be given an attractive pay scale
and better promotional opportunity, in view of the fact that the
quality and quantity of their work vastly differ from those of
their counterparts in Government Departments.
For these and other reasons stated in Chapter-X, we
recommend the following three grades of Stenographers for
the three levels of Courts with the pay scales as indicated
against each:
(i) Stenographer
Grade-III Court of
Civil Judge
(Jr.Div.) (Existing
Steno-T ypist)
:
:
Rs.4190-8700
(Pay scale
applicable to
UDCs Sl.No.XI in
the General Pay
Scales)
(ii) Stenographer
Grade-II Court of
Civil Judge
(Sr.Div.)
: Rs.4430-9300
(Pay scale
applicable to
Head Clerk of
Munsiff Court
Sl.No.XII in the
General Pay
Scales)
(iii) Stenographer
Grade-I Court of
District &
Sessions Judge
: Rs.5000-10600
(Pay scale
applicable to
Senior
Stenographer in
G o v t . i.e.,
Sl.No.XV in the
General Pay
Scales)
[Note: T he High Court may decide about the mode of
recruitment and promotion to these three cadres]
13. After the report of the Commission, Hon’ble
Supreme Court passed series of orders directing the
respective State Governments to implement the
recommendations of the Justice Jagannath Shetty
Commission and to give effect to the recommendations
w.e.f. 01.04.2003. As a consequence, Government issued
orders in G.O.Ms.No.50 Law Department dated
23.04.2009 complying with the recommendations in
para-IV(C) of Chapter –XVIII. Thus, three categories of
Stenographer posts have come into existence, organized
in three different scales.
14. Note-3 appended to para-5 of the G.O.Ms.No.50
dated 23.4.2009, holds that the employees whose pay
scales have been upgraded should be allowed pay
fixation as per the FR-22 (a)(i). As a consequence to the
executive decision to comply with the orders of the
Supreme Court, the composite State of Andhra Pradesh,
in consultation with the High Court, have effected
amendments to the Rules, 2003. The said amendments
were notified vide G.O.Ms.No.100 Law Department dated
08.08.2013. They have come into force with effect from
01.04.2003.
15. As noted from the report of the Shetty Commission,
the object and purpose of recommendation is very clear
and specific and unless the said recommendation is
implemented in true letter and spirit the very purpose of
such recommendation gets defeated. We note that the
objections raised by the Treasuries and Accounts
Department is expressly intended to nullify the very
object of the recommendations made by the Commission
to remove the hardship and activating suffering of
stenographers and intend to deprive them the benefit of
creation of three grades with promotional avenues.
16. The amendments brought about significant change
in cadre structure, method of recruitment and scales of
pay. Rule 5 of the Rules 2003 deals with constitution of
the service. Rule 6 deals with method of appointment
and appointing authority. Rule 8 read with annexure
appended to Rules deal with qualifications. Three
grades of Stenographers are organized into three
categories, Category-4, Category-5 and Category-6 of the
service. Each of the three categories organized
independently with different scales of pay and different
method of recruitment and different job assignment and
arranged in a pyramid structure. Category-6 provides
channel for other ministerial posts organized in
Categories 8 and 9, subject to their eligibility, in
addition to recruitment from open market. Recruitment
to Grade-III is by direct recruitment from open market (to
the extent of 60%) and by promotion of Junior
Assistants/Typists subject to their possessing requisite
basic qualifications (to the extent of 40%). Category-6 is
a feeder channel for promotion to category 5 in addition
to direct recruitment from open market. In Grade-II, the
percentage of direct recruitment is reduced to 25% and
channel of promotion is increased to 75%. Category-4 is
to be filled up only by promotion from category 5. These
three levels of Stenographers are organized into water
tight compartments. They are not interchangeable.
Each of them are attached to three levels of judicial
officers in the subordinate Courts.
17. Though the basic job in all three categories is
same that is taking dictation and subscribing to what is
dictated, but the level of skill and work load is not same.
A Senior Civil Judge Court is vested with higher
responsibilities as compared to a Junior Civil Judge Court
and the Officer also expects better skill from the
Stenographer. Similarly the responsibilities of a District
Judge are more onerous. A Stenographer working under
him is expected to have better skill, knowledge of
English and legal terminology, higher speed and
understanding. The experience gained by them working
in lower grades and with junior officers puts them in
better position to take up the higher responsibilities on
their posting under senior judicial officers. A highly
skilled and efficient Stenographer would save lot of
judicial time of a Senior Civil Judge and District Judge.
Thus, respondent authorities are not justified in merely
looking at the nomenclature of the post and basic job
assignment to hold that they do not fulfill the second
condition of FR-22(a)(i) and FR 22 (B), i.e., “discharge of
higher duties or responsibilities”.
18. As analyzed by the Shetty Commission, the work of
Stenographer in judiciary per se is more onerous as
compared to Stenographers working in Government or
private service. Thus, by merely looking at the basic job
profile as Stenographer the claim of pay fixation cannot
be rejected. Basic service law doctrine envisages that
‘promotion’ means elevation of status of an employee and
he moves from a lower post to higher post. In the instant
case, rule making authority created three categories of
Stenographers and assigned them to three levels of
judicial officers in the subordinate judiciary. Each of the
categories are positioned in different scales, one is
higher than the other. Promotion to Category-
5/Category-4 is not automatic but is subject to suitability
and availability of vacancies. It is not automatic
elevation to higher category on completion of fixed
period of service. It is not a financial up-gradation. It
has all the trappings of elevation of status with liability
to discharge more onerous responsibilities.
19. The malady crept in when existing employees were
sought to be fitted into the three categories. At this
stage it is to be noticed that the recommendations of
Shetty Commission achieved concrete shape only in the
year 2013, that too after judicial fiat. The rules are
made effective from retrospective date i.e., 01.04.2003.
By the time recommendations of Shetty Commission are
implemented Stenographers working in subordinate
judiciary have moved into other ministerial posts such as
Senior Assistant, Office Superintendent. As a
consequence to retrospective amendment of Rules, it
was necessary to grant promotion to eligible
stenographers into respective categories as per their
eligibility and suitability, obviously from retrospective
date while protecting the promotions granted to them in
the meanwhile.
20. It is noted that while granting such elevation of
status they were treated as placed in ‘restructured’
cadre, a coin invented by administrative authority
without understanding its consequences/relevance. This
is not a case of ‘restructuring’. Two new categories of
posts are created in Stenography branch which are
higher cadre posts to existing post of Stenographer. As
a consequence, existing personnel working in lower
categories have to be granted promotion to fill the
promotional posts, i.e., category 5 and category 4.
Though the said categories are filled by assessing the
suitability of existing personnel, that exercise was
treated as ‘restructuring’. Merely because ‘restructured’
word is used, it cannot take away the impact of elevation
granted to petitioners and other similarly situated.
What was granted to them was promotion. It is not a
case of upward revision of scales and fitment thereof.
The Government erred in analyzing the issue from the
stand point of ‘restructuring’ as evident from Memo
No.122751272/A1/PCV2006, dated 23.06.2006. In the
process Government also ignored its G.O.Ms.No.50,
dated 23.04.2009, where categorical assurance of
extension of FR-22(a)(i) was made (Note-III appended to
paragraph 5). It is also appropriate to note that before
G.O. was issued financial concurrence was also obtained.
21. The Director of Treasuries and Accounts erred in
referring the matter to Government when provisions of
Rules, 2003 as amended in 2013 are clear and
unambiguous and financial concurrence was already
obtained in the year 2009 when commitment to apply FR-
22 (a)(i) was made and unnecessarily delayed in granting
fixation of pay to petitioners. The Treasuries and
Accounts authorities have raised frivolous objections
only to deprive the petitioners their legitimate benefits.
22. The writ petition is allowed. The respondents 1,2
to 4 are directed to fix the pay of petitioners in the pay
scales attached to Stenographers Grade II and
Stenographers Grade I, respectively, by applying
provision in FR 22 (a)(i) and FR 22 (B) as expeditiously as
possible, at any rate within four months from the date of
receipt of copy of this order. It is also made clear that
they are also entitled to all consequential benefits. To
avoid further litigation on such claims, respondents 1, 2
to 4 are directed to extend the same benefit to all
similarly situated persons. No costs.
Miscellaneous petitions if any pending stand
closed.
___________________________
DILIP B. BHOSALE, ACJ
___________________________
P.NAVEEN RAO, J
Date:20-04-2016
Kkm/tvk
HON’BLE T HE ACT ING CHIEF JUST ICE DILIP
B.BHOSALE
AND
HON’BLE SRI JUST ICE P.NAVEEN RAO
WRIT PET IT ION No.2491 of 2016
Date: 20.4.2016