Satnam
Singh & Orss.K.Singal & Ors Vs. The High Court of Punjab and Haryana, Chandigarh [1997] INSC 142 (7 February 1997)
J.S.
VERMA, S.P. KURDUKAR J.S. Verma,
J.
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NO.3704 OF 1990
High
Court Establishment (Appointment and Conditions of Service) Rules, 1973 (for
short the "Rules") were made by the Chief Justice of the High Court
of Punjab and Haryana in exercise of powers conferred by Clause (2) of Article
229 read with Article 231 of the Constitution of India. By order dated March 18, 1974, the Chief Justice of the High
Court made these rules applicable with effect from March 1, 1974;
and
the rules involving financial implications were referred to the Central
Government through Chandigarh Administration for obtaining approval as required
by the Proviso to Clause (2) of Article 229 of the Constitution. It was
expressly mentioned in the order that "all new appointments made after March 1, 1974 have been regulated by the new
rules". The Chief Justice also directed the office by the order dated April 19, 1974 to circulate the new rules to the
entire staff and all concerned. Publication of rules in this manner was made
and the rules, except those involving financial implications, came into force
in actual working with effect from March 1,1974. The circulation note dated April 24, 1974 of the Deputy Registrar,
Administration clearly records this fact.
Rule
16 of the above Rules prescribed the quota for filling the posts of Assistants
by specifying that 50% of the posts shall be filled by direct recruitment and
the remaining 50% posts were to be filled by promotion from the clerks on the
establishment of the Court. Rule 30 prescribed the method of determining
seniority. These rules did not involve any financial implications and according
to the aforesaid order of the Chief Justice of the High Court they were treated
as effective from March
1, 1974.
A
controversy has arisen about the date on which rules 16 and 30 came into force
because the rules involving financial implications are held to have come into
force from a later date.
This
date has significance because the quota provided by these rules was abolished
from January 20, 1978 and the availability of number of
vacancies for the direct recruits would be more if the period of quota rule is
longer. Writ petitions filed in the High Court have led to the impugned
judgment. Neither side is fully satisfied with the decision.
Civil
Appeal No. 3704 is by promotes and Civil Appeal No.3705 is by direct recruits
against the same judgment dated February 21, 1989.
As
earlier stated, the High Court sent a proposal for approval of the Government
to the rules involving financial implications at the time of applying these
rules with effect from March
1, 1974 by order of
the Chief Justice. The proposal for approval was made only in respect of rules
26, 27 and 34 and Schedules I, IA, II and III of the said Rules.
These
rules related to pay, special pay and pension etc. so that they undoubtedly
related to financial matters and required the approval envisaged by the Proviso
to Clause (2) of Article 229 of the Constitution. The correspondence between
the High Court and the Government is clear to indicate that the proposal for
approval of the Government and the approval accorded to the same related only
to rules 26, 27 and 34 and Schedules I, IA, II and III only. The Government of
India, Ministry of Law and Justice (Department of Justice) letter
No.30/8/83-Jus., dated September 25, 1985 to the Home Secretary, Union
Territory Administration, Chandigarh with a copy to the Registrar, High Court,
clearly says that the approval of the President was only to these rules
involving financial implications. There can be no doubt whatsoever that the
entire exercise, from the proposal by the High Court to approval of the President
related only to rules 26, 27 and 34 and Schedules I, IA, II and III of the said
Rules relating to certain conditions of service involving financial
implications and not to the remaining rules contained in the High Court
Establishment (Appointment and Conditions of Service) Rules, 1973. Our concern
in these matters is confined only to the date of enforcement of rules 16 and 30
prescribing the quota for the direct recruits and promotes and the mode of
determination of seniority between them.
The
contention of the direct recruits is that rules 16 and 30 along with remaining
rules which did not involve financial implications and, therefore, did not
require approval of the Government came into force with effect from March 1,
1974 by order of the Chief Justice of the High Court. On the other hand, the
promotes contend that the entire set of rules came into force only on January
23, 1975, the date of the notification which was published in the Gazette dated
February 1, 1975. The contention of the promotes is based on the decision in an
earlier litigation which related to applicability of the rules involving
financial implications. That decision is Sunder Sham Kapoor High Court, Chandigarh and others, 1987(4), SLR 460.
As
earlier stated, the significance of the date on which rules 16 and 30 long with
the remaining rules, other than those sent for approval of the Government is
for the reason that the number of posts available for recruitment from the two
sources - direct recruits and promotes - has to be calculated from that date
only. There was no prescription of quota prior to that date and subsequent to January 20, 1978 when by amendment made in the Rules
the provision for quota was abolished. It is only between the date of
enforcement of the quota rule and its abolition on January 20, 1978 that this question arises and it assumes significance
because the longer period of quota rule is beneficial to the direct recruits.
In the
present case the High Court has taken the view that the commencement of the
entire set of Rules including Rules 16 and 30 was from January 23, 1975 and not March 1, 1974. The view taken in the earlier decision in Sunder Sham Kapoor
has been followed. In our opinion, the significant distinction between the
present case and Sunder Sham Kapoor the subject matter related to salaries and
allowances with other consequential benefits and, therefore, they involved
financial implications governed by the Rules which required approval of the
Government in accordance with the proviso to Clause 2 of Article 229. That
being so, the rules on which the claim was based in Sunder Sham Kapoor came
into force only when the approval of the President was accorded with the
direction that the same would be effective from the date of their issue. The
publication of the notification dated January 23, 1975 made in the Gazette was, therefore,
treated as the date of enforcement of the Rules which required approval of the
President under the proviso to Clause 2 of Article 229. No such approval was
required for the remaining rules including Rules 16 and 30 and, therefore, the order
of the Chief Justice enforcing the Rules with effect from March 1, 1974 brought into force these remaining
rules on that day. The distinction has been overlooked by the High Court in
applying the decision of Sunder Sham Kapoor in the present case also.
The
relevant part of Article 229 is as under:
"229.
Officers and servants and the expenses of High Courts.- (1) xxx xxx xxx (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) xxx
xxx xxx" Clause (2) of Article 229 enacts that conditions of service of
officers and servants of High Court shall be such as may be prescribed by Rules
made by the Chief Justice of the Court, Subject to the provisions of any law
made by the Legislature of the State. The proviso carves out the exception,
requiring the approval of the Governor of the State only in respect of the
rules "so far as they relate to salaries, allowances, leave or
pensions". Thus the approval according to the proviso is required only in
respect of those rules which relate to salaries, allowances, leave or pensions
and not to other rules relating to the conditions of service of the officers
and servants of the High Court.
To
read the proviso to require approval thereunder to the entire set of rules
including those which do not relate to "salaries, allowances, leave or
pensions" would be to enlarge the scope of the proviso by reading into it
more than what is enacted therein. A proviso has to be strictly construed
inasmuch as it carves out an exception to the general rule. The general rule
enacted in the main part is not to be unduly restricted by expanding the
content of the proviso which is intended to carve out the exception from the
general rule. The plain words of the proviso to Clause (2) of Article 229 leave
no doubt that the requirement of approval thereunder is confined to the rules
only so far as they relate to salaries etc., and no more. It is settled that a
proviso cannot expand or limit the clear meaning of the main provision.
Viewed
at from a different angle the conclusion reached is the same. It is open to the
Chief Justice to frame two different sets of rules whereby the rules relating
to salaries, allowances, leave or pensions are made separately in one set while
the other set relates to other conditions of service. If the exercise is performed
in this manner only that set of rules which relates to salaries etc. involving
financial implications requires the approval according to the proviso to
Article 229 (2) while the other set does not require any such approval and can
be enforced by the Chief Justice straight away by his order. The result cannot
be any different if only one set of rules is made by the Chief Justice
incorporating both kinds of rules.
We
have no doubt that all the rules framed by the Chief Justice except for Rules
26, 27 and 34 and Schedules I, IA, 2 and 3 which alone were sent for approval
according to the proviso to clause (2) of Article 229, came into force with
effect from March 1, 1974 by virtue of the order of Chief Justice of the High
Court. This is how the High Court understood it till some doubt was created
because of the significant distinction in the decision in Sunder Sham Kapoor
being overlooked. It is, therefore, clear that Rules 16 providing for the quota
and Rule 30 prescribing the mode of determining seniority came into force with
effect from March 1,
1974. The quota for
the direct recruits and promotees has to be worked out accordingly and the
vacancies have to be filled on that basis. The High Court is required to
calculate the vacancies and adjust the appointments to the vacancies on this
basis.
For
the aforesaid reason the impugned judgment of the High Court is set aside. The
High Court would now proceed to calculate the number of vacancies available to
direct recruits and promotees on this basis and to make consequential
adjustment in the cadre of assistants, accordingly.
Back
Pages: 1 2