J.R.CHOPRA, J. - (1.) THIS special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment dated December 2, 1991 passed by a learned Single Judge of this Court, which was modified on 16.12.1991 in S.B. Civil Review Petition No. 77 of 1991, whereby the learned Single Judge has accepted by writ petition filed by the petitioner respondent No. 1 Shri Khem 'Chand Sharma and following directions were issued to non -petitioner -appellant: (i) to grant an ordinary time scale of Rs. 5100 -150 -5700 -200 -6300 to all RHJS Officers w.e.f. 13.8.1987. (ii) to grant a Selection Scale of Rs. 5900 -2 -6700 to RHJS Officers w.e.f. 01/9.1988. (iii) to grant Supertime Scale of Rs. 7300 -7600 to seven officers of the RHJS from amongst those who are already in Selection Scale w.e.f. 1.1.1992 and post them as District Judges at five Divisional Headquarters other than Jaipur and two at Jaipur: one for Jaipur City and another for Jaipur District. According to the non -petitioner -appellant, the judgment of the learned single Judge is without jurisdiction. The learned single Judge has transgressed the powers conferred upon the High Court under Article 226 of the Constitution and has thereby erred in giving directions to the Executive. It has been contended that the grant of pay scales to the members of any Service is governed by the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 and the earlier Rules made by His Excellency the Governor of Rajasthan under proviso to Article 309 of the Constitution and, therefore, all directions given by the learned single Judge are legislative in character and as such, no such directions, could have been given by the learned Single Judge. It has been further contended that the Courts are not conferred any powers to legislate any legislation and, therefore, as per the appellant, the learned Single Judge has wrongly assumed the role of the legislature, which has not been conferred upon the High Court under Article 226 of the Constitution.
(2.) IT was submitted that the learned Single Judge has failed to properly appreciate the decision rendered by their lordships of the Supreme Court in Mallikarjuna Rao and Ors. v. State of Andhara Pradesh AIR 1990 SC 1251. It was further submitted that the impugned judgment of the learned Single Judge runs counter to the judgment of their lordships of the Supreme Court in State of Jammu and Kashmir v. A.R. Zakki and Ors. 1991 (IV) SVLR (L) 135, wherein the apex court of the Country has defined jurisdiction of the High Court to issue writs in the nature of mandamus to the Executive and it has been observed that a writ of mandamus cannot be issued to the Legislature to enact a particular legislation and that the same is true as regards the Executive when it exercises the powers to make rules which are in the nature of subordinate legislation. As per the appellant, the learned single Judge has failed to appreciate the powers conferred under Article 233 and 235 of the Constitution. The matter relating to grant of pay -scales being a condition of Service is to be regulated by the Rules made by the Government and, therefore, no such directions should have been issued as has been given by the learned Single Judge. According to the appellant, the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 do not lay down the pay -scale of Rs. 7300 -7600 and, therefore, simply because certain other States have granted the pay scale of Rs. 7300 -7600 to District Judges, no directions can be issued to the non -petitioner -appellant to create such a pay -scale for its District Judges. The conditions of service of the Rajasthan Higher Judicial Service cannot be equated with such conditions in the other States viz., State of Madhya Pradesh. It is well -established principle of law that the pay scales available in one State cannot form the basis to issue directions in the nature of legislation in other States because in such matters, Articles 14 and 16 of the Constitution are not attracted. Even as per r. 55 of the High Court Rules, the learned single Judge could not issue such directions sitting singly. The directions given by the learned single Judge to grant these pay scales to the RHJS Officers are arbitrary, unreasonable and unfair.
(3.) IT was submitted that the pay -scales to RHJS Officers have been granted after considering their equalisations by the Pay -Commissions appointed by the State Govt. The Pay -Commission are expert -bodies on the subject. The Court cannot arrogate to themselves these functions. It was further submitted that the Indian Administrative Service is a Service carrying higher responsibilities than the Rajasthan Higher Judicial Service. According to the appellant, when the holder of supertime scale of Rajasthan Administrative Service is promoted to Indian Administrative Service, he gets lesser pay. It was contended that the observations of the learned single Judge as to how Judges should be appointed in the High Court were also uncalled for and they be declared per incuriam because no such point was raised in the writ petition and no submissions were made before the learned single Judge about it and, therefore, a fervent plea has been made that this appeal be accepted and the impugned judgment of the learned single Judge dated 2.12.1991 as modified vide order dated 16.12.1991 be set aside and the impugned directions given in the judgment be quashed with costs of the appeal on respondent No. 1.;