(1.) THE petitioner in this case, who was in the service of the former Madhya Bharat state as District and Sessions Judge on 1st November 1956 when the new State of Madhya Pradesh comprising of the Madhya Bharat State came into existence, continued to serve in the State of Madhya Pradesh as District and Sessions-Judges till he retifed on 30th December 1960. His case is that when he was integrated and absorbed in the new State as District and Sessions Judge, he became entitled under the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on absorption Rules, 1959 (hereinafter referred to as the Rules) to have his pay fixed according to the Indian Administrative Service Senior Scale and the pay rules governing the service according to the Government's Notification No. 356. 31029/ i-Integ. , published in the Gazette dated 7th October 1960; that the Unified scale of pay, namely, the L A. S. Senior Scale, was made applicable to all the district and Sessions Judges in the new State from 1st April 1958, and, therefore, from that date he was entitled to get his pay fixed in accordance with the principles laid down in Section 2 of Schedule 2 of the Indian Administrative Service (Pay) Rules, 1954; and that if this had been done, he would have got an increment of Rs. 320 in his basic salary and would have thus received a monthly salary of Rs. 1120 from 1st April 1958. The grievance of the applicant is that the Government denied him this increment and that when he and some other District and Sessions Judges similarly placed as he was made a representation, a memorandum was issued by the Law department of the Government (No. 25065-3048/xxi-B dated 13-7-1964) saying that "judicial officers drawn from units other than the old Madhya Pradesh, who were promoted as District and Sessions Judges on or after 1st April 1958 and are hereinafter promoted as District and Sessions Judges, be allowed the benefit of pay fixation in the I. A. S. Senior Scale in accordance with illustration II below schedule II to the I. A. S. (Pay) Rules, 1954, which benefit is permissible to officers of the old Madhya Pradesh by virtue of rule 7 (1) of the Madhya Pradesh judicial Service (Classification, Recruitment and Conditions of Service) Rule. 1955. "
(2.) THE petitioner says that by refusing to fix the initial pay of a permanent allocated District and Sessions Judge drawn from units other than the old Madhya pradesh area in accordance with the principles laid down in Section 2 of Schedule 2 of the I. A. S. (Pay) Rules, 1954, and by giving the benefit of that fixation of pay only to those judicial officers from units other than the old Madhya Pradesh who were promoted as District and Sessions Judges on or after 1st April, 1958 according to the Memorandum dated 13th July 1964, persons who were serving as permanent District and Sessions Judges in units other than the old Madhya pradesh and who were integrated and absorbed as permanent District and sessions Judges in the new State of Madhya Pradesh were discriminated against in the matter of pay fixation and that persons from the old Madhya Pradesh area who were promoted before and even on or after 1st April 1958 as District and Sessions judges were given a higher salary. The petitioner has described this discrimination as "without any reasonable basic, disclosing vividly partiality and mala fides on the part of the Government and purposeful". He seeks a declaration that the Memorandum dated 13th July 1964 in so far as it withholds the benefit of initial pay fixation from District and Sessions Judges promoted prior to 1st April 1958 be declared to be void and unconstitutional as repugnant to articles 14 and 16 of the Constitution. His further prayer is that a direction be issued to the opponents to fix his pay from 1st April 1958 according to the principles laid down in Section 2 of Schedule 2 of the I. A. S. (Pav) Rules, 1954.
(3.) BEFORE dealing with the petitioner's contention it is necessary to state that the new State of Madhya Pradesh formed by the States Reorganisation Act, 1956 comprised of certain Districts of the old State of Madhya Pradesh, the State of former Madhya Bharat, the territories of the former Vindhya Pradesh and the territories of the former State of Bhopal. In these four regions, different scales of pay for the District and Sessions Judges serving in those states prevailed before 1st November, 1956. In the Mahakoshal region, all posts in the cadre of District and Sessions Judge carried the senior time-scale of pay of the Indian administrative Service, namely, Rs 800-1800 and the rules regulating the pay of state Civil Service Officers (executive) promoted to the Indian Administrative service applied mutatis mutandis in regard to the fixation of pay of officers promoted to the cadre of District and Sessions Judges. This was provided by Rule 7 (1) of the Madhya Pradesh Judicial Service (Classification, Recruitment and condition of Service) Rules, 1955. In the State of Madhya Bharat the time-scale of pay of District and Sessions Judges was Rs 800-1200 (ordinary) and Rs. 12501500 (Select Grade ). In the State of Vindhya Pradesh and Bhopal the scale of pay of District and sessions Judges was Rs. 800-1800 and Rs. 500-850 respectively With a view to bring about uniformity in the pay scales of civil servants drawn from different regions who were integrated and absorbed in the new State of Madhya Pradesh, the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption rules, 1959, were made by the Governor in exercise of the powers conferred on him by the proviso to article 309 of the Constitution read with the proviso to section 115 (7) of the State Reorganisation Act, 1956 These rules came into force from 1st April 1958. Rule 2 (k) of these rules de-fined "unified scale" as meaning "a scale of pay fixed by Government, and so described, by a general or special order in this behalf whether passed before or after the coming into force of these rules". An "allocated Government servant" has been defined by Rule 2 (a) as "a person in the service of a former State allotted or deemed to have been allotted to serve the State of Madhya Pradesh, under the provisions of Section 115 of the state Reorganisation Act, 1956, and continued in the service of the new State". Rule 4 of the rules lays down:--''subject to the provisions contained in Rule 7, the pay scale applicable to an allocated Government servant on 1st April 1958 or on such earlier date as may have been fixed in this behalf by a general or special order, shall be unified scale applicable to his post of absorption. Provided that such allocated Government servant may elect to retain the existing scale applicable to the post held by him in a substantive, officiating or temporary capacity on the 31st October, 1956 so long as he holds the post or a post corresponding to the one which he was holding. " Rule 7 provides that a Government servant may, instead of coming on the unified scale, as specified in Rule 4 or Rule 6 elect to come on the said scale at his option on a date indicated in the table given in the rule. Rule 9 deals with the fixation of initial pay of a government servant in the unified scale. It is as follows:--"the initial pay of a Government servant in the unified scale shall, except where Government by a special order otherwise direct, be fixed as follows: -He shall draw as initial pay, the pay of the stage in the unified scale which is equal to his basic pay in the present scale or if there is no such stage the stage next below that pay plus personal pay equal to the difference to be absorbed in subsequent increments and in either case he shall continue to draw that pay until such time as he would have received an increment in the present scale or for the period after which an increment is earned in the unified scale, whichever is less, but if the minimum pay of the unified scale is higher than his basic pay in the present scale, he will draw that minimum as initial pay". by the Notification No. 3563-1029/i-Integ. dated the 5th October, 1960. published in the Gazette dated 7th October, 1960, the Government fixed the I. A S. Senior scale as the Unified Scale of pay for District and Sessions Judges in the new State the Notification said that the application of the unified scale would be regulated by the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption rules, 1959. It is important to note that the afore-said Notification while saying that the unified scale of pay for District and Sessions Judges would be I. A. S. Senior Scale did not say that in the fixation of the initial pay of persons promoted as District and Sessions Judges before or after 1st April, 1958, the I. A. S. (Pay)Rules, 1954, would apply mutatis mutandis. Now, there is no dispute that on 1st November, 1956 the petitioner was serving as a permanent District and Sessions Judge in the old State of Madhya Bharat and on the formation of the new State he became an allocated Government servant within the meaning of Rule 2 (a ). The unified scale of pay, namely, the I. A. S. Senior scale, became applicable to him from 1st April 1958 as provided by Rule 4 of the rules. The applicability of the unified scale being regulated by the Madhya Pradesh unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959, the fixation of the initial pay of the applicant in the unified scale could only be in accordance with Rule 9.;