Full Judgment Text
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CASE NO.:
Appeal (civil) 1980 of 2000
PETITIONER:
State of Uttar Pradesh
RESPONDENT:
Section Officer Brotherhood & Anr.
DATE OF JUDGMENT: 27/09/2004
BENCH:
N. Santosh Hegde & S.B. Sinha
JUDGMENT:
J U D G M E N T
W I T H
CIVIL APPEAL NO.1260 OF 2001, CIVIL APPEAL NOS.
1528-29 OF 2004 & CIVIL APPEAL NO.2732 OF 1999
S.B. SINHA, J :
These appeals arising out of the judgments and orders dated
22.11.1999, 16.11.2000 (as corrected on 11.12.2000), 20.5.2003 and
29.7.1998 passed by the Allahabad High Court in Civil Misc. Writ Petition
Nos. 18979 of 1998, 970 of 2000, 30234 of 2001 and 17885 of 1996
respectively involving similar questions of law and fact were taken up for
hearing together and are being disposed of by this common judgment.
FACTS :
The Respondents herein are Section Officers, Private Secretaries,
Bench Secretaries and Assistant Registrars working in the High Court of
Judicature at Allahabad. They filed several writ petitions praying inter alia
for issuance of a writ of or in the nature of mandamus inter alia directing the
State of Uttar Pradesh to fix higher scale of pay. Such scales of pay were
claimed purported to be on the basis of scales of pay paid to their
counterparts i.e. Section Officers, Private Secretaries, Bench Secretaries or
Assistant Registrars of Delhi High Court. The Private Secretaries/PAs,
Bench Secretaries filed writ petitions bearing No. WP No. 1408/93 and WP
No. 26550/95 respectively before the Allahabad High Court which were
allowed by judgments and orders dated 21.12.1993 and 1.11.1996. The
Special Leave Petitions filed against the said judgments and orders were said
to have been dismissed by orders dated 26.3.1996 and 7.7.1997. Both the
aforementioned categories of employees therafter had been getting the pay-
scale of Rs. 3000-4500 with effect from 1.1.1986.
It is not in dispute that the Chief Justice of the High Court of
Allahabad in exercise of his power conferred upon him by Article 229 of the
Constitution of India made rules known as Allahabad High Court Officers
and Staff (Conditions of Service & Conduct) Rules, 1976. The Section
Officers, Bench Secretaries Grade I and Private Secretaries are holders of
Class II posts referable to Rule 16 of the said Rules. The posts of Deputy
Registrar is a Class I post and allegedly Class II officers are entitled to be
considered for promotion to Class I post.
It is not in dispute that Rule 36 of the Rules provides that the scales of
pay admissible to various categories of posts in the establishment of the
High Court are to be determined by the Chief Justice from time to time with
the approval of the Government of Uttar Pradesh. Rule 40 while conferring
power of superintendence and control on the Chief Justice provides that in
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financial matters, the orders containing modifications or variations relating
to the salary etc. shall be made by the Chief Justice with the approval of the
Governor. However, sub-rule (3) of Rule 40 postulates that in case of any
doubt as regards equivalence of a post of an officer in the High Court vis-‘-
vis posts in the State Government, the matter should be decided by the Chief
Justice.
WRIT PROCEEDINGS:
Contention of the Writ Petitioners/Respondents:
The contention of the Respondents in the said writ petition appears to
be that the State of Uttar Pradesh as a matter of policy adopted in the year
1988 decided to grant central pay scales to the employees of the High Court
and, therefore, the Chief Justice has the final say as regard equivalence of
the employees of the High Court vis-‘-vis the employees of the Central
Government and/or Delhi High Court for the purpose of determination of
consequent scale of pay applicable thereto.
The claim for higher scales of pay for Class II and Class I officers
indisputably was made in view of the decisions of Delhi High Court in A.K.
Gulati and Anr. Vs. Union of India and Ors. [1991 (44) DLT 590] and Shri
Madan Lal Vs. Registrar, Delhi High Court and Others [1992 (46) DLT
133].
It was further contended that although the posts of Private Secretaries,
Court Masters and the Superintendents of Delhi High Court were found to
be of same status and the employees were inter-transferable, such slight
difference in the recruitment process of Allahabad High Court would be of
no relevance as all the three relevant posts in the High Court of Allahabad
form a common feeder cadre for promotion to the post of Class I.
Section Officers of the High Court in their writ petition prayed for
issuance of a writ of or in the nature of mandamus directing the Appellant
herein to fix their salary in the scale of pay of Rs. 3000-4500 with effect
from 1.1.1986; whereas Bench Secretaries and Private Secretaries in their
writ petitions prayed for fixation of their salary in the scale of pay of Rs.
3000-4500 with effect from 1.1.1996. The Assistant Registrars in their writ
petition prayed for issuance of a writ of or in the nature of mandamus
directing the Appellant herein to fix their salary in the pay scale of Rs.
10650-15850/- being the next higher pay scale payable for Class I Post.
Contention of the Respondents in the Writ Petitions/Appellant herein:
The contention of the Appellant herein was that in view of the
resolution adopted in the Chief Justices’ Conference held at Bombay in 1962
the staff of the High Court be equated with the corresponding staff of the
State Secretariat. The employees of the Allahabad High Court have been
granted scales of pay in parity with the corresponding employees/ officers of
the U.P. Secretaries in the matter of pay scales and allowances etc. on the
recommendations of the Chief Justice of the High Court made in exercise of
the powers conferred under Article 22(2) of the Constitution by a
government order dated 20th March, 1968.
In view of the resolution adopted in the Chief Justices’ Conference in
the year 1962, the staff and officers of the Allahabad High Court were being
paid the same salaries which were being paid to their counterparts working
in the U.P. Secretariat. However, as a higher pay scale was directed to be
paid by the High Court on its judicial side in writ petition No. 643 of 1983
(J.P. Upadhyay and Others Vs. State of U.P. and Others), the Private
Secretaries attached to the Judges of the High Court had been granted the
same scale of pay which was being paid to their counterparts of the U.P.
Secretariat. Any claim for a higher scale of pay, according to the
Appellants, thus, would be contrary to the government order dated 20th
March, 1968 which was made in terms of the recommendations of the Chief
Justice of the Allahabad High Court in exercise of his power under Article
229 of the Constitution. The Chief Justice of the High Court having not
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made any recommendation that there is no further need of continuance of the
government order dated 20th March, 1968 nor any recommendation had been
made for withdrawal thereof, no relief can be granted to the writ petitioners.
No decision has been taken by the State Government to grant parity in the
matter of pay scales and other conditions of service to the employees of the
High Court with the employees of the Delhi High Court nor any such
proposal had ever been received by it from the Chief Justice of the
Allahabad High Court. Furthermore, no Pay Commission or Pay Committee
or any other expert body was ever constituted for the said purpose. Even the
High Court itself had not examined various relevant aspects of the demand
of the Respondents. In absence of any recommendation of any Pay
Commission or Pay Committee or any other expert body, the High Court in
exercise of its jurisdiction under Article 226 of the Constitution of India
cannot issue a writ of mandamus.
The writ petitioners- Respondents cannot claim any parity as regard
conditions of service with the employees of Delhi High Court who are
enjoying the benefits of common seniority (Court Master, Superintendent
and Private Secretaries) under the rules framed by Delhi High Court under
Article 229 of the Constitution of India in terms whereof the said posts have
been held to be equated or interchangeable which aspects are absent in the
case of the Respondents in terms of 1976 Service Rules. Even the source of
recruitment of the posts of Superintendent in Delhi High Court was different
inasmuch as the eligibility criteria laid down therefor are as under:
"(a) 26% of the vacant post by promotion on the
basis of seniority-cum-merit for joint seniority list
of Assistant, Senior Translators, & Proof Reader
and Caretaker.
(b) 75% of the vacant post by selection on merit on
the basis of written test & interview from the
categories of Senior Assistant, Assistant, Senior
Translator, Proof Reader, Junior Reader, Personal
Assistant to Registrar, Senior Stenographer and
Caretaker"; whereas in Allahabad High Court only permanent
U.D.As can be promoted as Section Officers and there is no provision for
direct recruitment.
HIGH COURT JUDGMENT :
The High Court by its impugned judgment, however, issued a writ of
or in the nature of mandamus commanding the Appellant to fix the salary of
Section Officers of the Allahabad High Court in the same scale of pay as
payable to the Superintendent of Delhi High Court with effect from 3rd June,
1994 when the recommendations of the Chief Justice of the Allahabad High
Court were allegedly communicated to the State Government. It, however,
directed:
"However, it is provided that the scale of pay of
the Section Officers along with one half of the
arrears (being the difference in the scale of Section
Officers of Allahabad High Court and
Superintendent of Delhi High Court, shall be paid
on 1st January, 2000 but the remaining half of such
arrears shall be deposited in the provident fund
account of the Section Officers on 1st July, 2000."
It was observed:
"The State Government failed to delve into the
matter by examining itself, the nature of work,
work load and area of functioning of the Section
Officers of this Court, which is more onerous,
difficult and responsible in comparison to the
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duties of the superintendent of the Delhi High
Court inasmuch as the High Court at Allahabad is
much larger in comparison to Delhi High Court."
SUBMISSIONS :
Mr. P.P. Rao and Mr. Ravi Prakash Mehrotra, learned counsel
appearing on behalf of the State of Uttar Pradesh would submit that the High
Court had no jurisdiction to issue a writ of or in the nature of mandamus
directing the State to pay such scales of pay to the Superintendents, Private
Secretaries and Assistant and Deputy Registrars which are payable to the
counterparts of Delhi High Court.
The learned counsel would contend that the High Court at best could
have directed the State to constitute a Pay Commission or Pay Committee or
refer the matter to an expert body.
The learned counsel appearing on behalf of the Respondents
supported the judgment of the High Court.
ANALYSIS :
There cannot be any doubt or dispute whatsoever that determination
of different scales of pay for different categories of employees would
ordinarily fall within the realm of an expert body like the Pay Commission
or Pay Committee. The Chief Justice of a High Court exercises
constitutional power in terms of Article 229 of the Constitution of India
which reads as under:
"229. Officers and servants and the expenses of
High Courts.- (1) Appointments of officers and
servants of a High Court shall be made by the
Chief Justice of the Court or such other Judge or
officer of the Court as he may direct:
Provided that the Governor of the State may by
rule require that in such cases as may be specified
in the rule no person not already attached to the
Court shall be appointed to any office connected
with the Court save after consultation with the
State Public Service Commission.
(2) Subject to the provisions of any law made by
the Legislature of the State, the conditions of
service of officers and servants of a High Court
shall be such as may be prescribed by rules made
by the Chief Justice of the Court or by some other
Judge or officer of the Court authorised by the
Chief Justice to make rules for the purpose:
Provided that the rules made under this clause
shall, so far as they relate to salaries, allowances,
leave or pensions, require the approval of the
Governor of the State.
(3) The administrative expenses of a High Court,
including all salaries, allowances and pensions
payable to or in respect of the officers and servants
of the Court, shall be charged upon the
Consolidated Fund of the State, and any fees or
other moneys taken by the Court shall form part of
that Fund."
Such a provision has evidently been made to uphold the independence
of the judiciary.
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A bare perusal of the aforementioned provision would clearly go to
show that laying down the conditions of service applicable in the case of
staff and officers of a High Court is within the exclusive domain of the Chief
Justice but in case of any financial implication involving therein the
approval of the State Governor is imperative.
In State of H.P. Vs. P.D. Attri and Others [(1999) 3 SCC 217], it is
stated:
"5.The case of the respondents is not based on any
constitutional or any other legal provisions when
they claim parity with the posts similarly
designated in the Punjab and Haryana High Court
and their pay scales from the same date. They do
not allege any violation of any constitutional
provision or any other provision of law. They say
it is so because of "accepted policy and common
practice" which, according to them, are
undisputed. We do not think we can import such
vague principles while interpreting the provisions
of law. India is a union of States. Each State has
its own individualistic way of governance under
the Constitution. One State is not bound to follow
the rules and regulations applicable to the
employees of the other State or if it had adopted
the same rules and regulations, it is not bound to
follow every change brought in the rules and
regulations in the other State\005"
In State of Maharashtra Vs. Association of Court Stenos, P.A., P.S.
and Another [(2002) 2 SCC 141], Pattanaik, J. (as the learned Chief Justice
then was) noticed this Court’s earlier decision in Supreme Court Employees’
Welfare Asson. V. Union of India [(1989) 4 SCC 187] and stated the law in
the following terms:
"On a plain reading of Article 229(2), it is apparent
that the Chief Justice is the sole authority for
fixing the salaries etc. of the employees of the
High Court, subject to the Rules made under the
said article. Needless to mention rules made by the
Chief Justice will be subject to the provisions of
any law made by the legislature of the State. In
view of proviso to sub-article (2) of Article 229,
any rule relating to the salaries, allowances, leave
or pension of the employees of the High Court
would require the approval of the governor, before
the same can be enforced. The approval of the
governor, therefore, is a condition precedent to the
validity of the rules made by the Chief Justice and
the so-called approval of the Governor is not on
his discretion, but being advised by the
Government. It would, therefore, be logical to
hold that apart from any power conferred by the
rules framed under Article 229, the Government
cannot fix the salary or authorise any particular
pay scale of an employee of the High Court. It is
not the case of the employees that the Chief Justice
made any rules, providing a particular pay scale
for the employees of the Court, in accordance with
the constitutional provisions and that has not been
accepted by the governor. In the aforesaid
premises, it requires consideration as to whether
the High Court in its discretionary jurisdiction
under Article 226 of the Constitution, can itself
examine the nature of work discharged by its
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employees and issue a mandamus, directing a
particular pay scale to be given to such employees.
In the judgment under challenge, the Court appears
to have applied the principle of "equal pay for
equal work" and on an evaluation of the nature of
duties discharged by the Court Stenographers,
Personal Assistants and Personal Secretaries, has
issued the impugned directions. In Supreme Court
Employees’ Welfare Asson. V. Union of India this
Court has considered the powers of the Chief
Justice of India in relation to the employees of the
Supreme Court in the matter of laying down the
service conditions of the employees of the Court,
including the grant of pay scale and observed that
the Chief Justice of India should frame rules after
taking into consideration all relevant factors
including the recommendations of the Pay
Commission and submit the same to the President
of India for his approval. What has been stated in
the aforesaid judgment in relation to the Chief
Justice of India vis-‘-vis the employees of the
Supreme Court, should equally apply to the Chief
Justice of the High Court vis-‘-vis the employees
of the High Court. Needless to mention,
notwithstanding the constitutional provision that
the rules framed by the Chief Justice of a High
Court, so far as they relate to salaries and other
emoluments are concerned, require the prior
approval of the Governor. It is always expected
that when the Chief Justice of a High Court makes
a rule, providing a particular pay scale for its
employees, the same should be ordinarily
approved by the Governor, unless there is any
justifiable reason, not to approve the same. The
aforesaid assumption is on the basis that a high
functionary like the Chief Justice, before framing
any rules in relation to the service conditions of the
employees of the Court and granting any pay scale
for them is expected to consider all relevant factors
and fixation is made, not on any arbitrary basis."
It was furthermore stated:
"The Court also expressed the view in the
aforesaid case that the Chief Justice of India is the
appropriate authority to consider the question as to
the distinctive nature and personality of the
employees of the Supreme Court and before laying
down the pay scales of the employees, it may be
necessary to ascertain the job contents of various
categories of employees and nature of duties which
are performed by them. Further, at the time of
preparing the rules for prescribing the conditions
of service, including the fixation of the pay scales,
the Chief Justice of India will consider the
representations and suggestions of the different
categories of employees of the Supreme Court,
also keeping in view the financial liability of the
Government. In view of the aforesaid decision of
this Court, it is difficult for us to sustain the
impugned judgment, whereunder the High Court in
exercise of its jurisdiction under Article 226, has
issued the mandamus, directing a particular pay
scale to be given to the Court Stenographers,
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Personal Assistants and Personal Secretaries
attached to the Hon’ble Judges of the Court."
In the instant case, the Chief Justice did not frame any rules except in
the case of Private Secretaries. Such rules have only been framed on or
about 15th November, 2001. Thus, at the relevant time i.e. when the writ
petition was filed and the impugned judgment was passed, there existed no
such rule.
The jurisdiction of the High Court to exercise its power of judicial
review is required to be examined in the aforementioned situation.
For our purpose, it is not necessary to refer to a large number of
decisions on this question as the matter has been considered by a 3-Judge
Bench of this Court in Union of India and Another Vs. S.B. Vohra and
Others [(2004) 2 SCC 150] wherein, one of us (S.B. Sinha, J.), speaking for
the Bench opined that judicial review lies inter alia when public law element
is involved and the question as to whether public law remedy enforceable
under Article 226 of the Constitution of India is available or not is required
to be determined in each case. It was held:
"30. Judicial review is a highly complex and
developing subject. It has its roots long back and
its scope and extent varies from case to case. It is
considered to be the basic feature of the
Constitution. The Court in exercise of its power of
judicial review would jealously guard the human
rights, fundamental rights and the citizens’ right of
life and liberty as also many non-statutory powers
of governmental bodies as regards their control
over property and assets of various kinds which
could be expended on building hospitals, roads and
the like, or overseas aid, or compensating victims
of crime.
32.It is not possible to lay down the standard
exhaustively as to in what situation a writ of
mandamus will issue and in what situation it will
not. In other words, exercise of its discretion by
the Court will also depend upon the law which
governs the field, namely, whether it is a
fundamental law or an ordinary law.
33.It is, however, trite that ordinarily the Court
will not exercise the power of the statutory
authorities. It will at the first instance allow the
statutory authorities to perform their own functions
and would not usher the said jurisdiction itself."
The Court noticed that fixation of scale of pay in favour of one class
of employees have a spiralling effect and in that view of the matter it is
important that the matter as regard fixation of scale of pay of officers
working in different High Courts must either by examined by an expert body
like the Pay Commission or any other body and in absence thereof the High
Court itself should undertake the task, keeping in view the special
constitutional provisions contained in Article 229 of the Constitution of
India.
Having regard to the high position and status enjoyed by the Chief
Justice, it was observed, his recommendations should ordinarily be approved
by the State and refusal thereof must be for strong and adequate reasons.
It was opined:
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"52.The High Court, however, should not
ordinarily issue a writ of or in the nature of
mandamus and ought to refer the matter back to
the Central/ State Government with suitable
directions pointing out the irrelevant factors which
are required to be excluded in taking the decision
and the relevant factors which are required to be
considered therefor. The statutory duties should be
allowed to be performed by the statutory
authorities at the first instance. In the event,
however, the Chief Justice of the High Court and
the State are not ad idem, the matter should be
discussed and an effort should be made to arrive at
a consensus.
53.We are further of the opinion that only in
exceptional cases the High Court may interfere on
the judicial side, but ordinarily it would not do so.
Even if an occasion arises for the High Court to
interfere on its judicial side, the jurisdiction of the
High Court should be exercised with care and
circumspection."
The scope of judicial review has also been considered recently by this
Court State of U.P. and another Vs. Johri Mal [AIR 2004 SC 3800] wherein
it was opined:
"28. The Scope and extent of power of the judicial
review of the High Court contained in Article 226
of the Constitution of India would vary from case
to case, the nature of the order, the relevant statute
as also the other relevant factors including the
nature of power exercised by the public authorities,
namely, whether the power is statutory, quasi
judicial or administrative. The power of judicial
review is not intended to assume a supervisory role
or done the robes of omnipresent. The power is
not intended either to review governance under the
rule of law nor do the courts step into the areas
exclusively reserved by the suprema lex to the
other organs of the State. Decisions and actions
which do not have adjudicative disposition may
not strictly fall for consideration before a judicial
review court. The limited scope of judicial review
succinctly put are :
(i) Courts, while exercising the power of
judicial review, do not sit in appeal over the
decisions of administrative bodies;
(ii) A petition for a judicial review would lie
only on certain well-defined grounds.
(iii) An order passed by an administrative
authority exercising discretion vested in it, cannot
be interfered in judicial review unless it is shown
that exercise of discretion itself is perverse or
illegal.
(iv) A mere wrong decision without anything
more is not enough to attract the power of judicial
review; the supervisory jurisdiction conferred on a
Court is limited to seeing that Tribunal functions
within the limits of its authority and that its
decisions do not occasion miscarriage of justice.
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(v) The Courts cannot be called upon to
undertake the Government duties and functions.
The Court shall not ordinarily interfere with a
policy decision of the State. Social and economic
belief of a Judge should not be invoked as a
substitute for the judgment of the legislative
bodies. (See Ira Munn Vs. State of Ellinois, 1876
(94) US (Supreme Reports) 113)"
The High Court in its impugned judgment, however, did not
adequately address itself to the said issue.
In this case, the Chief Justice merely forwarded the representation of
the Respondents dated 15th March, 1994 for grant of a higher scale of pay
with effect from 1.1.1986 directing the Registry to forward the same to the
State Government with recommendations to consider the same on the
ground of parity. Such forwarding of recommendations to the State
Government did not involve any application of mind on the part of the Chief
Justice as was required under Article 229 of the Constitution of India. The
Chief Justice on his own did not arrive at any decision that the jobs
performed by the concerned officers were comparable to their counterparts
in the Central Secretariat or Delhi High Court. No rule was framed fixing
the terms and conditions of service or the scale of pay for different
categories of the employees of the High Court. Only because in the
forwarding letter, the State Government was asked to consider the demand
of the concerned officers favourably, the same by itself would not mean that
the requirements of Article 229 of the Constitution stood complied with.
Unless the Chief Justice of the High Court exercises his constitutional power
or acts on the basis of the recommendations of a committee constituted by
him for the purpose of fixation of scale of pay and laying down other
conditions of service; only forwarding of a representation to the State
Government to consider the same favourably without anything more would
not amount to exercise of the constitutional jurisdiction under Article 229 of
the Constitution.
In this case, our attention has been drawn to a decision of this Court in
Union of India Vs. Kishan K. Sharma and Others [(2004) 2 SCC 173]
wherein this Court despite holding that the High Court was not correct in
issuing a writ of or in the nature of mandamus directing the Central
Government to pay a scale of Rs. 1640-2900 with effect from 1.1.1986 in
favour of the Respondents, did not interfere in the matter considering the
same to be old one and having regard to the fact that the direction of the
High Court had already acted upon. Such is not the position here.
This Court granted stay of the operation of the judgment regarding
enhancement in Civil Appeal No. 1260 of 2001 and granted an ad interim
stay of the payment of first instalment of arrears which was going to fall on
1.1.2000 in Civil Appeal No. 1980 of 2000.
CONCLUSION :
We, therefore, are of the opinion that the impugned judgments cannot
be sustained which are set aside accordingly. However, this order shall be
subject to the rules framed by the Chief Justice in the case of the Private
Secretaries of the High Court. It will, however be open to the Chief Justice
of the Allahabad High Court to frame appropriate rules as has been done in
the case of the Private Secretaries or constitute an appropriate committee for
the said purpose. We have no doubt in our mind that if such committee is
constituted and any recommendation is made for enhancement of the scale
of pay for the concerned officers by the Chief Justice, the same would be
considered by the State Government in its proper perspective and in the light
of the observations made hereinbefore expeditiously.
For the reasons aforementioned, these appeals are allowed with the
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aforementioned observations. No Costs.