State of Assam Vs. Bhubhan Chandra
Datta & ANR [1975] INSC 62 (5 March 1975)
RAY, A.N. (CJ) RAY, A.N. (CJ) MATHEW, KUTTYIL
KURIEN KRISHNAIYER, V.R.
CITATION: 1975 AIR 889 1975 SCR (3) 854 1975
SCC (4) 1
CITATOR INFO :
R 1976 SC 123 (5,7)
ACT:
Assam and Nagaland High Court Services
(Appointment, Conditions of Service and Conduct) Rules, 1956. rr. 3 and
11--Scope of--Power of Chief Justice to fix special pay and allowance of
Registrar.
HEADNOTE:
Under the Assam and Nagaland High Court
Services (Appointment, Conditions of Service and Conduct) Rules, 1956, the
initial pay of the Registrar of the High Court was Rs. 850/- per month. Under
r. 3(1), when the post was filled up from the judicial service, it will carry a
special pay. The Chief Justice had also power under the rule to fix, without
the previous approval of the Governor, the initial pay up to Rs. 1200/- per
month according to experience etc. Subsequently, the rule was altered
authorising the Chief Justice to fix the initial pay, without the approval of
the Governor, up to Rs. 1180/-.The State, Government revised the pay scale of
the Registrar with effect from 1st April, 1964 and fixed the initial pay at Rs.
1200/-, A special pay was also sanctioned if fie was home on the judicial
service. but no change in Y. 3(1), authorising the Chief Justice to fix the
initial salary up to Rs. 1180/per month was made, On April 28, 1967, the
respondent, who had retired from the judicial service and was holding the post
of Presiding Officer. Industrial Tribunal, was appointed Registrar of the High
Court and the Chief Justice fixed a special initial salary of Rs. 15001-. that
is. at the maximum of the scale, and a special allowance of Rs. 250/-.
On the question whether the fixation of the
salary and special allowance was valid the High Court held in favour of the
respondent on the grounds that, (a) because in the past the Chief Justice could
appoint the Registrar with the special pay of Rs. 1200/- or Rs. 1180/- when the
initial pay was Rs. 850/-, that is, he could give six increments of Rs.
50. the Chief Justice could now appoint the
Registrar with the special pay of Rs. 1500/- when the initial pay was Rs.
1200/- by giving five increments of Rs. 60;
and (b) when the initial pay itself was Rs. 1200/- the power of the Chief
Justice to fix a special pay of Rs. 1180/- became meaningless and _must be read
is Rs. 1500/-.
Allowing the appeal to this Court,
HELD : (1) The reasoning of the High Court
was wrong and no such power could be implied in the Chief Justice. If the Chief
Justice wanted to appoint the Registrar with the special salary of Rs. 1500/-
and special allowance, approval of the Governor should have been taken under
Art. 229(2), because the rules do not permit such a salary and the higher
salary involves greater financial burden on the Government.
[857G-858B] M. Gurumoorthy v. Accountant
General Assam & Nagaland & Ors. [1971] Supp. S.C.R. 420 followed.
(2) Further, r. 3(1) conferred power on the
Chief Justice to fix the special allowance only when the post is filled from
the members of the judicial service. The post of Presiding Officer, Industrial
Tribunal was included in the Assam Judicial Service only on August 17, 1967,
and not when the respondent was appointed as a Registrar of the High Court.
That apart, it is indisputable that the respondent had retired from the State
Judicial Service and it could not be said that such a retired person was member
of the Judicial Service or was borne on the service. [858D-F] (3) Rule II is a
general rule and is not applicable to the appointment and fixation of pay and
special allowances of the Registrar because there is specific 855 provision,
namely, r. 3(1) for the post of Registrar which prevails over the general rule.
Moreover. r. 11 must also be read subject to the proviso to Art. 229(2) which
requires the approval of the Governor for fixing pay etc. Also, Fundamental
Rule 19 does not permit any such fixation in the teeth of r. 3(1) on the
strength of r. 11. [859C-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1547 of 1969.
Appeal by Special Leave from the Judgment and
order dated the 19th May, 1969 of the Assam & Nagaland High Court in Civil
Rule No. 126 of 1969.
Moinul Haque Choudhary and Naunit Lal, for
the appellant.
Sarjoo Prasad, and S. N. Prasad, for respondent
no.1 P. P.Rao and S. P. Nayar, for respondent no. 2.
RAY, C.J.-This appeal by Special leave raises
the question as to whether the appointment of the Registrar of the High Court
of Assam at a special salary of Rs. 1500/- with special allowance of Rs. 250/is
valid.
On 28 April, 1967 Bhubhan Chandra Dutta was
appointed Regis- trar of the High Court of Assam. "Me appointment was made
by the Chief Justice of the Assam High Court in exercise of powers conferred by
Article 229 of the Constitution of India and Rules 7 and 13 of the Assam &
Nagaland High Court Services (Appointment, Conditions of Service and Conduct)
Rules, 1967.
The order of appointment of the Registrar was
as follows :
"He shall be entitled to draw an initial
pay of Rs. 15001 per month less the pension, if any, he has been drawing from
the Government. Ho shall, in addition to the pay, be entitled to draw a special
pay 'of Rs. 250/- per month admissible under the Rules to the Registrar of the
High Court. He shall hold the appointment for a minimum period of two years in
the first instance. This period may, however, be extended as considered
suitable and necessary by the Chief Justice." It may be stated here that
Bhubhan Chandra Dutta had previously been Additional District Judge and also
the Registrar of the High Court. On 1 July, 1958 Bhubhan Chandra Dutta attained
the age of 55 years. He was then the Registrar of the High Court. He was given
an extension of one year. On 1 July, 1959 he retired as Registrar of the High
Court.
On 25 July, 1968 the Deputy Registrar of the
High Court under the direction of the Chief Justice wrote to the Secretary to
the Government of Assam in the Law Department to instruct the Accountant
General to issue provisional pay slip to Bhubhan Chandra Dutta for Rs. 1500/-
as pay plus special pay of Rs. 250/-. On 2 August, 1968 the Accountant General
issued a provisional pay slip for the period 1 May, 1967 to 31 October, 1967
authorising Bhubhan Chandra Dutta to draw a sum of Rs. 870.75 as provisional
pay. The special pay of Rs. 250/- was not included in the pay slip.
Bhubhan Chandra Dutta thereafter filed a writ
petition in 1969 in the High Court at Assam for a mandamus to give effect to
the notification dated 28 April 1967 appointing him to the post of Registrar
856 fixing the pay and special pay allowable to him and a further mandamus on
the Accountant General, Assam and Nagaland, Shillong to issue pay slip to
Bhubhan Chandra Dutta for the full amount payable to him in terms of the said
notification.
The High Court issued a mandamus directing
the appellant to issue pay slip to Bhubhan Chandra Dutta at the rate of Rs.
1500/per month minus his pension and a
special pay of Rs. 250/- per month. Bhubhan Chandra Dutta, according to the
mandamus issued by the High Court, became entitled to the said salary as
Registrar for two years with effect from 1 May, 1967.
There is no dispute that under Article 229 of
the Constitution the appointment of the Registrar is to be made by the Chief
Justice of the High Court. It may be stated here that under Rule 7 of the Assam
and Nagaland High Court Services (Appointment, Conditions of Service and
Conduct) Rules, 1967, a person who had retired from the State Judicial Service
Grade I could be appointed Registrar. The only question is whether the Chief
Justice had authority to appoint the Registrar at a salary of Rs. 1500/- p.m.
and special pay of Rs. 250/- p.m. In view of the fact that Bhubhan Chandra
Dutta had already retired from the Judicial Service and was drawing pension, it
is common ground that the pension that he was drawing was to be deducted from
the salary of Rs. 1500/-.
Under the Assam and Nagaland High Court
Services (Appoint- ment, Conditions of Service and Conduct) Rules, 1956, the
pay scale of the Registrar was at Rs. 850-50/1-1500 per month. The relevant
Rule 3(1) of the 1956 Rules provided as follows : "The post of the
Registrar, when filled up from the Service will carry a special pay of Rs.
150/- per mensem in addition to the Grade pay as admissible to the members of the
Assam Judicial Service (Senior) Grade I. In any other case the Chief Justice
will have power to fix, without the previous approval of the Governor, the
initial pay up to Rs.
1200/- a month according to the experience,
ability and age of the person concerned." Subsequently the. pay scale was
fixed at Rs. 850-50-1000.-- 60-1300--EB-50--1500. With the said change in the
pay scale there was a consequential alteration in Rule 3(1) authorising the
Chief Justice to fix the initial pay, without the approval of the Governor up
to Rs. 1180/-.
Therefore, under the 1956 Rules the Chief
Justice could appoint a Registrar at the initial pay up to Rs. 1200/- a month
without the previous approval of the Governor. When the pay scale was
subsequently changed the Chief Justice could similarly fix the initial. pay of
the Registrar without the approval of the Governor at Rs. 1180/-.
The Government revised the pay scale of the
Registrar on 4 September, 1967. The revised pay scale was Rs. 1200-60-1380-EB-601500.
This revision was however made with effect from 1 April, 1964. With effect from
that date a special pay was also sanctioned if the Registrar was home on the
Judicial Service. It should be stated here that when the pay scale was revised
in 1967 there was no 857 change in Rule 3(1) which as it stood then said that
the Chief Justice could fix the initial salary at Rs. 1180/- per month.
The High Court held that when the initial pay
of the Registrar became Rs. 1200/- the authority to fix the initial pay at Rs.
1180/- became meaningless, and, therefore, by implication the figure of Rs.
1180/should be read as Rs.
1500/-. The reason given by the High Court
was that when the Chief Justice could fix the initial pay at Rs. 1180/- under
the Rules the Chief Justice could allow six increments at the time of initial
appointment. There Core, according to the High Court, when the initial pay
became Rs. 1200/- the authority to fix the initial pay would be Rs. 1500/-
because the Chief Justice could grant six increments at the time of initial appointment.
The High Court also said that though six increments at the rate of Rs. 60/would
make it Rs. 1560/-, the sum of Rs. 1500/- should be adopted because that was
the highest pay.
When in 1967 the pay scale of the Registrar
was revised there was no corresponding alteration in the Rules that the Chief
Justice would have power to fix, without the authority of the Governor, the
initial pay at Rs. 1500/-.
At no stage could the Chief Justice fix the
initial pay up to the maximum of the scale of pay which remained constant at
Rs. 1500/all throughout, notwithstanding the two revisions in the scale of pay.
On the other hand, it appears that at no time the Chief Justice was empowered
to fix the initial pay higher than Rs. 1200/-. When the scale of pay was revised
in 1964 it is significant to know that the power of the Chief Justice to fix
the initial pay was reduced from Rs. 1200/'- to Rs. 1180/-.
Just because the initial pay of the Registrar
in 1967 became Rs. 1200/- and with five increments the salary would be Rs. 1500/no
implication can arise on the power of the Chief Justice to appoint the
Registrar at the initial pay of Rs. 15001-. The reasoning of the High Court
that because in the past under the Rules the Chief Justice could appoint the
Registrar at the initial pay of Rs. 1200/- or at Rs. 1180/'- which showed that
the initial pay of Rs. 1200/- or Rs. 1180/- gave six increments at the time of
initial appointment, there is no warrant for implying the power to appoint the
Registrar at the highest salary of Rs. 1500/- at the time of initial
appointment on the ground that it would carry increments.
Article 229 of the Constitution confers power
on the Chief Justice of the High Court to appoint officers and servants of the
High Court. ,Article 229(2) states that subject to the provisions of any law
made ,by the Legislature of the State, the conditions of the 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. It
is also provided that the rules made under Article 229(2) shall, so far as they
relate to salaries, allowances, leave or pensions, require the approval of the
Governor of the State. It is not disputed that the appointment of Bhubhan
Chandra Dutta by the Chief Justice of the High Court at a salary of Rs.
1500/- per month with special allowance of
Rs. 250/- per month was made without 858 the approval of the Governor. If the
Chief Justice of the High Court wanted to appoint the Registrar at the initial
salary of Rs. 1500/with a special salary of Rs. 250/- per month, special
approval of the Governor should have been taken in view of the fact that the
rules did not permit such salary and the higher salary involved greater
financial burden on the Government. (See M. Gurumoorthy v. Accountant General
Assam & Nagaland & Ors. (1971) Supp. S.C.R. 420).
The special pay of Rs. 250/- per month which
was granted by the Chief Justice to the Registrar by his order dated 28th
April, 1967 was impeached by the State on the ground that Rule 3(1) conferred
power on the Chief Justice to fix the special pay only when the post is filled
from the members of the Assam Judicial Service (Senior) Grade I. It was
contended by the State that Bhubhan Chandra Dutta at the time of his
appointment on 28 April, 1967 had retired from service and he was no longer a
member of the Service and therefore he was not entitled to any special pay.
On behalf of Bhubhan Chandra Dutta it was
said that he was, at the time of appointment of the Registrar, the Presiding
Officer, Industrial Tribunal, and, therefore, he was a member of the Judicial
Service. The High Court interpreted Rule 3(1) to mean that whoever will be appointed
as the Registrar will be a member of the State Judicial Service, and,
therefore, Bhubhan Chandra Dutta on being appointed as the Registrar was
entitled to the special pay of Rs. 250/per month. On 28 April, 1967 when
Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post
of the Presiding Officer, Industrial Tribunal was not included in the Assam
Judicial Service (Senior) Grade I. Ibis post was included in the Assam Judicial
Service on 17. August, 1967.
That apart it is indisputable that Bhubhan
Chandra Dutta had retired from the State Judicial Service ,on 28 April, 1967.
It could not, therefore, be said that a
retired man can be a member of the Judicial Service or shall be borne on the
service.
Counsel on behalf of Bhubhan Chandra Dutta in
the alternative submitted that under Rule II of the Assam and Nagaland High
Court Service Rules the Chief Justice had power to fix the pay of Rs. 1500/and
the special pay of Rs.
250/- per month. Reliance was also placed on
Fundamental Rule 19. Rule 1 1 and Fundamental Rule 19 are set out hereunder :-
Rule 11 (i) In regard to pay, allowances leave, leave salary or pension, the
Rules and Regulations applicable to the members of the services under the rule
making power of the Government of Assam shall apply, mutatis mutandis to
persons serving in this High Court and subject also to such amendments and
variations as may be made by the Chief Justice from time to time with the
approval of the Governor, where necessary.
Provided that the powers exercisable under.
the said rules and orders by the Governor or
by any authority sub- 859 ordinate to the Governor shall be exercisable by the
Chief Justice or by such person as he may, by special or general order direct.
(ii) Any question arising as to which rules
or orders are applicable to the case of any person serving on the staff
attached to the High Court shall be decided by the Chief Justice".
F.R. 19 "The fixation of pay is within
the competence of the Provincial Government; provided that, except in the case
of personal pay granted in the circumstances defined in Rule 9(23)(a), the pay
of a Government servant shall not be so increased as to except the pay
sanctioned for his post without the sanction of an authority competent to
create a post in the same cadre on a rate of pay equal to his pay when
increased".
The High Court held that the Chief Justice
under Rule 11 (i) read with Fundamental Rule 19 could fix the pay of the
Registrar at Rs. 1500/-. Rule 1 1 is not applicable to the appointment and
fixation of pay and special pay of the Registrar because there is a specific
provision made exclusively for the post of the Registrar. Rule 3(1) Prevails
over Rule 11 which is a general rule. The revision of pay scale from time to
time since 1956 cannot alter the content and meaning of Rule 3(1). The revision
of pay scales cannot have the effect of transferring the power from Rule 3(1)
to Rule 11. Further Rule 11 must be read subject to the proviso to Article
229(2) of the Constitution. Any fixation of pay by the Chief Justice apart from
Rule 3(1) requires the approval of the Governor. Fundamental Rule 19 does not
permit the fixation of pay in the teeth of Rule 3(t) on the strength of Rule
11.
The High Court was wrong in granting a
mandamus. The Respondent Bhubhan Chandra Dutta was entitled only to the initial
pay of Rs. 1200/- less pension and gratuity. The amount was calculated by the
Accountant General at Rs. 870.75. Bhubhan Chandra Dutta was not entitled to any
special pay.
For these reasons the judgment of the High
Court is set aside. The appeal is accepted. The rule granted by the High Court
is discharged. In view of the fact that the appeal is by special leave we need
not express any opinion on the contention advanced on behalf of the State that the
High Court should not have entertained a writ for the enforcement of a
contractual claim or a monetary claim.
This Court at the time of granting the
special leave made an order that the Respondent Bhubhan Chandra Dutta would be
at liberty to withdraw Rs. 1000/- out of the security amount.
Save aforesaid, the parties will pay and bear
their own costs.
V. P. S. Appeal allowed..
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