State of Andhra Pradesh & ANR Vs.
T. Gopalakrishna Murthi & Ors [1975] INSC 227 (25 September 1975)
UNTWALIA, N.L.
UNTWALIA, N.L.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION: 1976 AIR 123 1976 SCR (1)1008 1976
SCC (2) 883
CITATOR INFO:
APL 1990 SC 334 (52,53,58,112) R 1992 SC1546
(11)
ACT:
Constition of India, 1950, proviso to Article
229 (2)- Fixation of pay scales of High Court staff-Chief Justice of High Court
recommending scales of pay of equivalent posts in Secretariat of
Government-Requirement of approval of Governor, if only formal.
Andhra Pradesh High Court servise Rules, 1959
Rule 19.
HEADNOTE:
The Chief Justice of the High Court of Andhra
Pradesh wanted the High Court staff, to be paid at the scales of pay of
equivalent posts in the Secretariat staff of the Government of Andhra Pradesh.
The Government did not agree to do so. The respondents who are members of the
High Court service belong in, to the categories of Bench Clerks, Lower Division
Clerks, Typists and certain other categories filed a writ petition in the High
Court for a writ of mandamus against the appellants directing them to implement
the recommendations of the Chief Justice of the High Court made to the
Government from time to time to fix the pay scales of the various categories to
which the respondents belong in accordance with the scales of pay as revised by
the State Government in case of corresponding categories detailed in Annexure
III of the Andhra Pradesh Secretariat service. The High Court allowed the writ
petition and directed the Government to give effect to the recommendations of
the Chief Justice embodied in the letters of the Registrar of the High Court
dated 31-3-1969 and 1-7-1969 with such allowances and such benefits as are
admissible to the members of the Secretariat service in the Secretariat. The
High Court took the view that for the purposes of appointments of officers and
servants of the High Court and laying down the conditions of their service the
Chief Justice is the highest authority. The requirement of the approval of the
Governor of the State under the proviso to clause (2) of Article 229 is a
requirement of a mere formal approval. The Government could not refuse to
accord their approval when the recommendation of the Chief Justice was merely
for equation of pay scales of the High Court staff with those of the
Secretariat's. The High Court did not rest its judgment on Rule 19 of the
Andhra Pradesh High Court Service Rules, 1959. This appeal has been preferred
on the basis of the certificate granted by the High Court.
Allowing the appeal,
HELD : (1) It is not correct to say that the
approval of the Governor under the proviso to clause (2) of Article 229 is a
mere formality and in no case it is open to the Government to refuse to accord
their approval. Merely because the Government is not right in accepting the
Chief Justice's view and refusing to accord approval is no ground for holding
that by a writ of mandamus the Government may be directed to accord the
approval. [1010-D, 1011-E] M. Gurumoorthy v. Accountant General Assam and
Nagaland
Bhubhan Chandra Dutta and Anr. [1975] 4
S.C.C. 1 relied on.
(ii) It is not correct to say that Rule 19(1)
authorised the Chief Justice to regulate the pay of the High Court staff in the
manner he thought it fit and proper to do without any further reference to the
Governor. There are no such words to this effect in Rule 19(1). The reference
to "the Rules regulating the pay or the Services included in the Pay
Schedule and other rules for the time being in force applicable to officers
under the rule-making control of the Government of Andhra Pradesh" was
merely a reference to the rules and not to the pay schedules. This was further
made clear by the first proviso of Rule 19(1). [1013-B-C] 1009 Observation:- On
the facts and in the circumstances of this case and in the background of the
conditions which are prevalent in other States Government could have been well-
advised to accord to approval the suggestion of the Chief Justice, as the
suggestion was nothing more than to equate the pay scale of the High Court
staff with those of the equivalent posts in the Secretariat. [1001-D] &
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2136 of 1972.
From the Judgment and Decree dated the 18th
April, 1972 of the Andhra Pradesh High Court in Writ Petition No. 85 of 1970.
P. Rama Reddy, P. P. Rao and T. V. S. N.
Chari for the Appellant.
S. V. Gupte and A. Subbarao for the
Respondents.
The Judgment of the Court was delivered by
UNTWALIA, J.-This appeal is by certificate of fitness granted by the Andhra
Pradesh High Court. The point concerns the scope and the power of the Chief
Justice under Article 229(2) of the Constitution of India. The Chief Justice of
the High Court wanted the High Court staff to be paid at the scales of pay of
equivalent posts in the Secretariat staff of the Government of Andhra Pradesh.
The Government did not agree to do so. The respondents who are members of the
High Court service belonging to the categories of Bench Clerks, Lower Division
Clerks, Typists and certain other categories filed a writ petition in the High
Court for a writ of mandamus against the appellants directing them to implement
the recommendations of the Chief Justice of the High Court made to the
Government from time to time to fix the pay scales of the various categories to
which the respondents belong in accordance with the scales of pay as revised by
the State Government in case of corresponding categories detailed in Annexure
III of the Andhra Pradesh Secretariat service. The High Court has allowed the
writ petition and directed the Government to give effect to the recommendations
of the Chief Justice embodied in the letters of the Registrar of the High Court
dated 31-3-1969 and 1-7- 1969 with such allowances and such benefits as are
admissible to the members of the Secretariat service in the Secretariat.
A few facts may be stated for determination
of the point at issue. In April, 1965 a Pay Commission was appointed by the
Government to make recommendations in regard to the revision of pay scales of
Government employees in the various services. The Pay Commission submitted its
report in 1967. In respect of certain categories of the High Court staff, but
not all, the Commission recommended to give them the pay scales of their
counter-parts in the Secretariat.
The Assistant Secretary to the Government
wrote a letter dated 12-2-1969 to the Registrar requesting that a comprehensive
note together with the latest scales of pay obtaining in the other High Courts
may kindly be sent to the Government for placing the same before the Officers
Committee for consideration. A detailed letter dated 31-3- 1969 was written by
the Registrar to the Government with reference to some earlier letters of the
High Court and in reply to the Government's letter dated 12.2.1969. Facts and
figures from other States were given to show that in most of the States the
scales of pay allowed to the members of the High Court service were identical
with those of the Secretariat staff and the Government was asked to agree to the
proposal of the Chief Justice to bring the pay scales of the High Court staff
at par with those of the Secretariat.
The matter was pursued by the High Court in
the Regisrar's letter dated 1-7-1969 addressed to the Secretary to the Govt.
Finance (Pay Commission) Department and in the D.O.
letter dated 23-7-1969 written by the Chief
Justice to the Chief Minister. The Government did not agree to the equation of
the scales of pay of the staff of the High Court to those of the Secretariat's.
The High Court was accordingly informed. Thereupon respondents filed the writ
petition in January, 1970.
In support of the writ petition reliance was
placed before the High Court on the power of the Chief Justice under Article
229 and Rule 19 of the Andhra Pradesh High Court Service Rules, 1959 (for
brevity, the 1959 Rules). The High Court has taken the view that for the
purposes of appointments of officers and servants of the High Court and laying
down the conditions of their service the Chief Justice is the highest authority.
The requirement of the approval of the Governor of the State under the proviso
or clause (2) of Article 229 is a requirement of a mere formal approval. The
Government could not retuse to accord their approval when the recommendation of
the Chief Justice was merely for equation of the pay scales of the High Court
staff with those of the Secretariat's. The High Court has not rested its
judgment on Rule 19 of the 1959 Rules.
Mr. Ram Reddy, learned counsel for the
appellants has assailed the decision of the High Court as being contrary to the
two decisions of this Court in M. Gurumoorthy v. Accountant General Assam &
Nagaland & Ors. (1) and The State of Assam v. Bhubhan Chandra Dutta and
another(2). The High Court has noticed the first decision, but counsel
submitted, it has applied it wrongly. Mr. S. V. Gupte appearing for the
respondents endeavoured to support the judgment of the High Court with
reference to Rule 19.
Leaving aside the proviso to clause (1) of
Article 229 in the matter of appointments of officers and servants of a High
Court the power is of the Chief Justice or of such other Judge or officer of
the Court as he may direct. Under clause (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 are a charge upon the
Consolidated Fund of the State. Any fees or monies taken by the Court formed
part of that Fund. There is no separate fund or power to raise it at the
disposal of the High Court for the purposes of meeting the salaries etc.
of the High Court staff. In this context
clause (2) of Article 229 may now be read with the proviso appended thereto.
1011 "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." If there is a law made
by the Legislature of the State then subject to that law, otherwise without it,
the Chief Justice or some other Judge or officer of the Court authorised by the
Chief Justice is empowered to make rules laying down the conditions of service
of the High Court staff. But if the Rules made under clause (2) relate to salaries,
allowances, or pensions then since in them is involved the question of finance,
the framing of the rules under clause (2) requires the approval of the
Governor-that means the State Government. One should expect in the fitness of
things and in view of the spirit of Article 229 that ordinarily and generally
the approval should be accorded. But surely it is wrong to say that the
approval is a mere formality and in no case it is open to the Government to
refuse to accord their approval. On the facts and in the circumstances of this
case and in the background of the conditions which are prevalent in other
States Government could have been well-advised to accord approval to the
suggestion of the Chief Justice, as the suggestion was nothing more than to
equate the pay scales of the High Court staff with those of the equivalent
posts in the Secretariat. That merely because the Government is not right in
accepting the Chief Justice's view and refusing to accord the approval is no
ground for holding that by a writ of mandamus the Government may be directed to
accord the approval. The High Court staff has not always been treated at par
with the Secretariat staff in the matters of scales of pay. The matter has been
taken up in the Chief Justices' Conference and with several State Governments.
Most of them have acceded to the request of the High Court to bring its staff
at par with the Secretariat staff in the matter of pay etc. It is, however, not
possible to take the view that merely because the State Government does not see
its way to give the required approval it will justify the issuance of a writ of
mandamus under Article 226 of the Constitution as if the refusal of the State
Government was ultra vires or made mala fide and arbitarily.
In Gurumoorthy's case (supra) Grover, J.
delivering the judgment on behalf of the Constitution Bench of this Court has
stated at page 429.
"Thus Article 229 has a distinct and
different scheme and contemplates full freedom to the Chief Justice in the
matter of appointments of officers and servants of the High Court and their
conditions of service. These can be prescribed by rules made by him.
Apart from the special situation contemplated
by the proviso to clause (1) the only exception 1012 is that the Governor's
approval must be sought to the extent the rules relate to salaries, leave or
pension.
This exception; it is abundantly clear, has
to be made because the finances have to be provided by the Government and to
the extent there is any involvement of expense the Government has to approve of
it".
The more apposite and direct case on the
point is the decision of this Court in Bhubhan Chandra Dutta's case (supra)
where following the decision in Gurumoothy's case, Ray, C. J. has said while
delivering the judgment on behalf of the Court at page 5:
"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 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 appoinment of Bhubhan
Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1,500
per month with special allowance of Rs. 250 per month was made without 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. A. G. Assam & Nagaland)." We share the sentiment expressed by the
High Court in its judgment and yet find it difficult to allow our sentiment to
cross the boundary of law engrafted in the proviso to clause (2) of Article
229.
Rule 19(1) of the 1959 Rules on which
reliance was placed on behalf of the respondents to sustain the judgment of the
High Court has been quoted therein. After quoting the rules, the High Court has
said :
"We may observe in passing that this
rule has not been happily worded. There is reference to the Rules of 1932, the
Rules of 1947, the Rules of 1950 relating to gratuities, provident fund etc.,
and the rules of 1947 relating to scales of pay. Whatever might have been the
power of the Government in the matter of fixing pay or making rules in the
pre-constitution days, that position has changed after the constitution in view
of Article 229 of the Constitution." 1013 Mr. Gupte pointed out that the
1959 Rules framed by the Chief Justice under Article 229(1) and (2) of the Constitution
were with the approval of the Governor of Andhra Pradesh in so far as the Rules
related to salaries, allowances, leave or pensions. Rule 19(1) authorised the
Chief Justice to regulate the pay of the High Court staff in the manner he
thought it fit and proper to do without any further reference to the Governor.
We do not find any such words in Rule 19(1) to lead to the above conclusion.
The reference to "the Rules regulating the pay of the Services included in
the Pay Schedule and other rules for the time being in force applicable to
officers under the rule-making control of the Government of Andhra
Pradesh" was merely a reference to the rules and not to the pay schedules.
This was further made clear by the first proviso of Rule 19(1) which reads as
follows:
"Provided that except with regard to
salaries, allowances, leave and pensions, the Chief Justice shall exercise the
powers vested in the Governor under any of the aforesaid rules;" For the
reasons stated above we do not find it possible to sustain the judgment of the
High Court in law. We, however, trust and hope that the Government will give
their second thought to the matter and see whether it is possible in the State
of Andhra Pradesh to obliterate the distinction in the matter of pay scales
etc. between the High Court and the Secretariat Staff. There does not seem to
be any good and justifiable reason for maintaining the distinction.
In the result the appeal is allowed but there
will be no order as to costs.
V.M.K. Appeal allowed.
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