State of West Bengal
& Ors. Vs. Debasish Mukherjee & Ors.
J U D G M E N T
R.V.RAVEENDRAN, J.
1.
All
these appeals question the common order dated 20.1.2005 of the Calcutta High Court
allowing a batch of appeals by the employees of the High Court. The facts are
similar and for convenience, we will refer to the facts from C.A. No.3480/2005.
2.
One
Gopniath Dey (for short `Dey') was appointed as a Section Writer/Typist in the
Original Side of the Calcutta High Court on 19.3.1964. He was brought under the
regular establishment on 1.9.1979 and was allowed the pay-scale of ` 230-425
under the West Bengal Services Revision of Pay and Allowances Rules, 1970 (for
short `WB (ROPA) Rules, 1970). The said pay-scale was subsequently revised as `
300-685/- with effect from 1.4.1981 and under the WB (ROPA) Rules, 1981. He was
granted a promotion as Typist, Grade I in the scale of ` 380-910/- with effect from
2.4.1981. He appeared in the selection examination for the post of Lower Division
Assistant and was selected and appointed on 9.9.1985. On such appointment his
pay was fixed as ` 550 in the scale of ` 300-685/-, taking into account his last
pay drawn in the former Grade-I Post. On exercising option under the W.B. ROPA
Rules, 1990, his pay scale was revised and re-fixed with effect from 1.8.1986.
On 1.4.1989, he was awarded the second higher scale under the 20 years Career
Advancement Benefit Scheme.
3.
Sixty
three employees who were senior to Gopinath Dey in the cadre of Lower Division Assistants,
working in the Original Side of the High Court, submitted a representation to the
Chief Justice on 27.6.1997 requesting that by relaxing Rule 55(4) of West
Bengal Service Rules - Part I (for short `WBSR') their pay be stepped up and
re-fixed on par with the pay of their junior Gopinath Dey. The Chief Justice
referred the representation to a Special Committee of three Judges and the said
Committee submitted a report dated 2.12.1998 recommending rejection of the representation
with the following observations : "In our opinion Gopinath Dey has been
given certain benefits to which he was not entitled to in law. We are of the
view, the Rule 55(4) of WBSR Part-I cannot be said to have any application
whatsoever in this case.
It appears to us that
Sri Gopinath Dey was granted undue benefits. The whole fact was not placed
before us as to how he could be granted such benefits to which he was not
entitled. If an illegality has been committed in the case of one employee, it
is well settled in law, that on the basis of such illegality another person
cannot claim the same benefit. Illegality is incurable as has been held in AIR
1974 SC 2177 and AIR 1995 SC 705. Furthermore, Article 14 of the Constitution of
India contains a positive concept. Reference may be made in this connection the
decision reported in 1996 (2) SCC 459. See also 1998 Lab & I.C 180 and 1998
Lab & I.C 1976. In view of the decisions, illegality cannot be directed to be
perpetuated. This illegal benefits granted to Sri Gopinath Dey, if any, cannot
be extended to memorialists." (Emphasis supplied)
4.
Some
time thereafter, the Dy. Secretary, Government of West Bengal, Judicial
Department, by memo dated 5.12.2000 returned the Service Books of 18 employees (including
that of Gopinath Dey) stating that the Career Advancement benefits granted to all
of them were in order. Taking a cue therefrom, immediately thereafter, fifty
employees (senior to Dey) including respondents 1 to 5, made another
representation dated 10.1.2001 to the Chief Justice, stating that though seniors
to Gopinath Dey, they were getting a lesser pay than Gopinath Dey, that by memo
dated 5.12.2000, the state government had found the pay fixation of Gopinath
Dey to be in order and therefore, their pay may be re-fixed to be at par with
the pay of their junior - Gopinath Dey, by relaxing Rule 55(4) of WBSR.
5.
In
the meanwhile, Gopinath Dey retired from service in the year 2001. When his service
book was forwarded to the Accountant General, West Bengal, for processing his pensionary
claim, the office of the Accountant General returned the pension file to the High
Court twice under cover of memo dated 21.12.2001 and again on 9.5.2002 to
review the pay fixation of Gopinath Dey on the ground that awarding of second
higher grade directly on 1.4.1989 was not in order and that career advancement
benefit could be awarded to him only by reckoning the service from 9.9.1985.
6.
The
representation dated 10.1.2001 given by respondents 1 to 5 and 45 other senior employees,
was also referred to a Three-Judge Special Committee and the said Committee submitted
a report dated 27.11.2002 recommending that the said senior employees may be given
the pay protection by stepping up their pay, so that their pay is not less than
that of 5Gopinath Dey. The Special Committee held that the report dated
2.12.1998 of the earlier Special Committee was no longer effective, on the
following reasoning : "We find that the Special Committee of the three Judges
in their report dated 2.12.1998 proceeded on the opinion that Sri Gopinath Dey was
given the benefit to which he was not entitled in law and Rule 55(4) of the WBSR
Part-I cannot be said to have any application whatsoever in this case.
But now it has been
held that allowing the Career Advancement Benefit to Sri Gopinath Dey is in order
and this has neither challenged in any proceeding nor set aside by any
appropriate forum. In such circumstances, we are of the opinion that
observations of the earlier Special Committee of three Judges has lost its force
as it preceded on an opinion about the irregularity in granting such benefit to
Sri Gopinath Dey but presently, the same having been found to be in order, we fell
that the present fifty memorialists are also entitled to pay protection so that
they are not to get a pay lesser than Sri Gopinath Dey who is admittedly much
junior to all the present memorialists."
7.
The
Special Committee was thus clearly of the view that if the fixation of pay of
Gopinath Dey was erroneous or illegal, the memorialists would not be entitled
to stepping up of pay to be on par with Gopinath Dey, but if the grant of
Career Advancement benefit to Gopinath Dey was legal and valid, his seniors in
the cadre would be entitled to stepping up of their pay so that their pay will
not be less than that of Gopinath Dey. However, when the memos dated 21.12.2001
and 9.5.2002 from Accountant General's Office (stating that the grant of career
advancement benefit to Dey was not in order) was brought to their notice, the Three-Judge
Special Committee 6gave a further report dated 20.1.2003, modifying its earlier
report dated 27.11.2002 by recommending that the memorialists be given the same
benefit as was accorded to Dey, in keeping with the principle of pay protection
so that their pay is equivalent to that of Dey in relation to his appointment
as Lower Division Assistant on 9.9.1985. We extract below the reason assigned
for such recommendation :
"Admittedly, all
the memorialists are senior to Dey but were receiving lesser pay that Dey and
even if Dey's service as Lower Division Assistant from 9.9.1985, it is to be
taken into consideration for the purpose of grant of benefit of Career
Advancement Scheme the memorialists would also be entitled to the same benefit
taking the date of consideration in their case also from 9.9.1985. Whatever be
the method of calculation as far as the fixation of Dey's pay is concerned, the
memorialist, who are all senior to him in the same cadre, cannot get a lesser
pay than Dey in keeping with the principle of Rule 55(4) of the West Bengal
Service Rules-Part-I."
8.
The
Registrar (Original Side), High Court, placed the said report dated 20.1.2003 before
the learned Chief Justice, with the following submission note : "I further
submit before your Lordship for the reasons aforesaid, if your Lordship approved
the recommendations of the Hon'ble Judges Committee for the said 50 memorialists
be allowed and pay protection be given effect as per recommendations with intimation
to the Government." On the said note, the Chief Justice made an order
"Please do the needful" on 13.2.2003, thereby directing that the 50 memorialists
be given pay protection as per the recommendation of the Special Committee in
its report dated 20.1.2003.
9.
The
Registrar (Original Side) of the High Court issued the following note of
acceptance dated 4.3.2003 extending the benefit of pay protection to the 50
senior employees (including respondents 1 to 5) : "In approving the
recommendation of the Hon'ble Judges' Committee on the memorial of fifty
employees, the Hon'ble The Chief Justice in exercise of powers conferred under
Clause 2 of Article 229 of the Constitution of India has been pleased to allow
under order dated 13.2.2003 the following fifty employees who are seniors to
Sri Gopi Nath Dey, the same benefit as given to Sri Gopi Nath Dey in keeping
with the principle of pay protection under Rule 55(4) of the WBSR, Part-I so that
their pay is equivalent to that of Sri Gopinath Dey in relation to his
appointment as Lower Division Assistant on and from 9.9.1985."
The State Government by
its letter dated 7.3.2003 addressed to the High Court, traced the career and emoluments
of Gopinath Dey from 1964 and pointed out that Dey was not entitled to Grade I
promotion of Section Writer (Typist) in the scale of ` 380-910 under the ROPA
Rules, 1981 with effect from 2.4.1981 as he had not been confirmed in that post
at that time. The state government further pointed out as Dey was appointed as Lower
Division Assistant as a direct recruit in the scale of ` 300-685/-, with effect
from 9.9.1985, he was not entitled to the second higher scale under the career advancement
scheme with effect from 1.4.1989. In view of it, the High Court corrected the
service book of Gopinath Dey by giving him the 8benefit of Grade I promotion of
Section Writer (Typist) with effect from 1.8.1982 instead of 2.4.1981.
The High Court also sent
a letter dated 9.4.2003 to the office of the Accountant General admitting the
said mistake and confirming the correction in regard to grant of Grade I promotion
to Gopinath Dey. In the said letter, the Registrar (Original Side) High Court also
admitted that extension of twenty years Career Advancement Scheme Benefit to Dey
with effect from 1.4.1989 was a mistake and the order granting such benefit was
cancelled and the service book of Dey had been correct.
10.
When
the pay bills of the 50 senior employees who were given the pay protection by
increasing their pay at par with that of Gopinath Dey, were sent to the Calcutta
Pay & Accounts Office-II, they were returned with a Return Memo dated 21.4.2003
stating that before allowing any benefit relating to salary, allowances, leave and
pension to the employees of the High Court, the prior approval of the Governor of
the State was required. The High Court immediately sent a reply dated 24.4.2003
stating that the Chief Justice is empowered to dispense with or relax the
requirement of all or any of the rules to such extent and subject to such
conditions as he may consider necessary, for dealing with the employees of the
High Court in a just and equitable manner. The Calcutta Pay & Accounts Office-II
again 9returned the pay bills with a Return Memo dated 29.4.2003 stating that it
had no authority to pay the bill amounts without the directions from the State Government.
By another Return Memo dated 6.5.2003, the Calcutta Pay & Accounts Office
requested the High Court to resubmit the bills which provided for a higher pay to
the 50 employees after obtaining the clarification of the state government,
regarding applicability of Rule 55(4) and the consent of the Governor. On
7.5.2003, the Government requested the High Court to review the entire matter
in view of the fact that fixation of pay of Gopinath Dey at various stages was
erroneous and required rectification.
11.
At
this juncture, respondents 1 to 5 approached the High Court and sought a
declaration that they were entitled to pay protection as per orders of Chief Justice
dated 13.2.2003 in the post of Lower Division Assistant, on and from 9.9.1985
in order to bring their pay at par with that of Gopinath Dey, who was their
junior. They also sought cancellation of the return memo dated 21.4.2003, 29.4.2003
and 6.5.2003 of the Calcutta Pay & Accounts Office. Similar writ petitions were
filed by other employees senior to Gopinath Dey. The West Bengal Government also
filed writ petitions challenging the report of the Judges Committee dated
20.1.2003, order of the Chief Justice dated 13.2.2003 and the consequential orders
dated 4.3.2003 issued by the High Court, extending the stepping up benefit to the
senior employees.
12.
The
six writ petitions filed by the employees and three petitions filed by the state
government were heard and disposed of by a learned Single Judge by a common
order dated 17.11.2003. The learned Single Judge inter alia held Rule 55(4) was
inapplicable as the two conditions for applicability of the said Rule were
admittedly absent. As it was also admitted that Dey was wrongly given the
benefits and Dey has not challenged the correction of his pay and direction for
recovery of the amount paid in excess, it followed that Dey was not entitled to
the benefits wrongly given and consequently, respondents 1 to 5 and other
senior employees were not entitled to stepping up of their pay with reference to
the pay of Dey. He dismissed the writ petitions by the employees and allowed the
writ petitions by the state government and directed that any excess amount paid
to the senior employees by stepping up their pay, should be recovered from
them.
13.
Feeling
aggrieved, the employees filed appeals and those appeals were allowed by a
Division Bench of the High Court by a common order dated 20.2.2005. The
Division Bench held :
"(a) The Chief
Justice had made the Calcutta High Court Rules, 1960 with the approval of the
Governor of the State in so far as the rules relate to salaries, allowances, leave
or pension. Once rules had been framed by the Chief Justice and were approved
by the Governor in relation to financial matters, so long as there is no legislation
by the State Legislature, action taken under the powers conferred by the rules
cannot be questioned, when such powers exercised by the Chief Justice stood on equal
footing to that of Governor.
(b) The state
government could not raise any objection to the recommendation for fixation of salary,
sanction of creation of posts or grant of increase in case of disparity in exceptional
circumstances, particularly when it is aimed at the ameliorating the service
conditions of the employees of the High Court. Such action of the Chief
Justice, when exercised bona fide and when within the scope of the powers
conferred on him, cannot be questioned by the executive or even by the court.
(c) The post of LDA
is neither a higher nor a promotional post. Rule 55(4) would therefore not be
applicable. Gopinath Dey was holding an ex cadre post which was not one of the
sources of recruitment to the post of Lower Division Assistant. The post held
by Gopinath Dey was not a feeder post for the post LDA. The post of LDA was not
a promotional post. The post of LDA was the bottom post in the cadre in which the
recruitment was made. Therefore, none of the factors, in which higher pay could
be justified with reference to the pay of a junior, were satisfied.
(d) The moment Gopinath
Dey entered the post of LDA through direct recruitment, he acquired the lien of
that post. He could not hold the lien of another cadre when he came through
direct recruitment to the cadre of LDA. On his substantive appointment to the
permanent post of LDA, his lien in the substantive ex cadre post held
permanently stood terminated. Thus Gopinath Dey could not claim any benefit on
account of his length of service by reason of any lien. Unless lien was available
to him, he could not claim fixation of pay at a higher stage than those of his seniors.
(e) Once the state
government claim that the pay of Gopinath Dey was correctly fixed, it cannot contend
that the senior employees cannot claim parity on the basis of a wrong fixation
of pay of Gopinath. When the pay was wrongly fixed and Gopinath Dey was given a
higher pay, the respondents being senior to him cannot be paid less and are entitled
at least to the same pay Gopinath Dey was given.
(f) The Special
Committee submitted its report recommending pay protection which itself is an
indication of an exceptional circumstance when it was found that the Gopinath
was not entitled to fixation of pay and 12 the senior employees were not entitled
to the benefit of Rule 55(4) of WBSR Part-I.
(g) Once in his
wisdom the Chief Justice takes action to grant increase in the pay of senior
employees to bring their pay at par with that of Gopinath Dey, such action cannot
be questioned if the action of the Chief Justice is based on a source of power.
Rule 49 is the source of power. The exercise of such power is immune from being
questioned, as it is not justiciable.
(h) Once the Chief
Justice takes an action pursuant to the rules which have been approved by the
Governor, such action does not require any further approval.
If no approval of the
Governor is necessary, the state government has no right to question the same,
as that will run contrary to the autonomy of the Chief Justice as contemplated
under Article 229(2) of the Constitution of India. The action of Chief Justice is
non-justiciable. Under the usual circumstances, Gopinath Dey would not have been
entitled to the increment, but the government had approved the same.
Thus it had acquired
a new dimension to justify the grant of higher pay to the respondents. The
circumstances in which it was granted, were found to be exceptional due to which
the Chief Justice has exercised his discretion. The wisdom of Chief Justice
being non-justiciable, the state government cannot object to the same."
14.
The
said order is challenged in these appeals by special leave by the State of West
Bengal on the following grounds :
(i) The senior employees
through their repeated representations sought relief under rule 55(4) of the WBSR.
The Special Committee consciously considered the merits of their claim with reference
to the Rule 55(4) and made its recommendations expressly under the said Rule. The
learned Chief Justice by his order dated 13.2.2003 merely accepted the said recommendation
based on Rule 55(4). The learned Single Judge and the division bench found that
Rule 55(4) was not attracted. Having reached such conclusion, the division
bench could not justify the order dated 13.2.2003 of 13the Chief Justice by
inferring that the Chief Justice must have granted relief in exercise of
discretion under Rule 49 of WBSR.
(ii) Even assuming
that Rule 49 of the WBSR could be regarded in itself as a source of power, in the
absence of any consideration either by the Special Committee or by the Chief
Justice, as to whether the fixation of pay in the post of LDA for Gopinath Dey
at par with the last pay drawn by him in the old post of grade-I Typist/Section
Writer could not be regarded as an `exceptional circumstance' for granting all
Senior Lower Division Assistants pay protection. In the absence of exceptional circumstances,
which is the condition precedent for the exercise of the power under Rule 49, the
said rule cannot be invoked to justify the order of the Chief Justice.
(iii) In view of Rule
42 (1)(ii) of the WBSR, the fixation of pay of Gopinath Dey at higher initial
start in the pay scale of LDA at par with the last pay drawn by him in the old
post of Grade-I Typist/Section Writer was erroneous. Such wrong and illegal pay
fixation will not entitle the other LDAs senior to him, to the same higher
initial start, when all of them were being paid pay admittedly according to the
pay scale for LDAs and at the stages to which they were otherwise entitled.
(iv) Having held that
the fixation of pay at higher initial start for Gopinath Dey as a LDA was incorrect
in terms of Rule 42(i)(ii) of the WBSR and Rule 55(4) of the WBSR was not
applicable, the Division Bench could not justify the order of the Chief Justice
extending pay protection to his seniors with reference to Rule 49 of WBSR. The
Division Bench also fell into an error in holding that the order of the Chief
Justice was non-justiciable in writ jurisdiction.
15.
On
the contentions urged, the following questions arise for our consideration :(i)
Whether the respondents (employees senior to Dey) were entitled to re-fixation
of their pay at par with the pay of their junior namely Dey, under Rule 55(4)
of the WBSR (Part I) or under any other service law principle? (ii) If the relief
granted to the respondents (employees senior to Dey) could not be supported with
reference to Rule 55(4), whether it could be inferred that the order of the Chief
Justice permitting the pay of the said senior employees to be brought at par
with the pay of Dey, was passed in exceptional circumstances under Rule 49 of
WBSR (Part I)?(iii) Whether the order of Chief Justice dated 13.2.2003 is not
justiciable ?Re : Question (i) :
16.
Rule
55(4) of WBSR, on which the senior employees placed reliance, to claim parity
with the pay of Gopinath Dey, reads thus : "55(4). If a government
employee while officiating in a higher post draws pay at a rate higher than his
senior officer either due to fixation of his pay in the higher post under the
normal rules, or due to revision of pay scales, the pay of the government
employees senior to him shall be re-fixed at the same stage and from the same
date his junior draws the higher rate of pay irrespective of whether the lien
in the lower post held by the senior officer is terminated at the time of
re-fixation of pay, subject to the conditions that both the senior and junior
officers should belong to the same cadre and the pay scale of the posts in
which they have been promoted are also identical.
The benefit of this rule
shall not be admissible in case where a senior government employee exercises his
option to retain un-revised scale of pay, or where the pay drawn by the senior
officer in the lower post before promotion to the higher post was also less
than that of his junior." On a careful reading of Rule 55(4), it is
evident that two conditions will have to be fulfilled for attracting the
benefit under the said rule. The first is that the junior employee as also the senior
employees must be promotees. Secondly, they must come from the same cadre
having the same scale of pay in their feeder post. Neither of the said
conditions is fulfilled in this case. In fact, this finding was rendered by the
learned Single Judge and was affirmed by the Division Bench.
The Division Bench
held : "Admittedly, Rule 55(4) is not applicable on two reasons. First,
that Rule 55(4) was inserted in WBSR subsequent to its adoption by the High
Court. Admittedly, the High court did not adopt the same. On account of
thereof, benefit of Rule 55(4) would not applicable to the employees of the
High Court. Second, Rule 55(4) applies in case of promotion or officiation in a
higher port, as rightly contended by Mr. Ray. The post of LDA is neither a higher
nor a promotional post. Rule 55(4) would, therefore, not be applicable in this
case." On a careful consideration, we find no reason to interfere with the
said concurrent finding that Rule 55(4) is inapplicable.
17.
We
may now consider whether the private respondents are entitled to stepping up of
their pay to bring it at par with that of Dey under the general principle of
service jurisprudence. The principles relating to stepping up of 16pay of the
seniors with reference to the higher pay of a junior are now well settled. We
may refer to a few of the decisions of this Court in that behalf. In State of
Andhra Pradesh vs. G. Sreenivasa Rao - (1989) 2 SCC 290, this Court observed : "Equal
pay for equal work" does not mean that all the members of a cadre must
receive the same pay-packet irrespective of their seniority, source of recruitment,
educational qualifications and various other incidents of service.
When a single running
pay-scale is provided in a cadre the constitutional mandate of equal pay for
equal work is satisfied. Ordinarily grant of higher pay to a junior would
ex-facie be arbitrary but if there are justifiable grounds in doing so the seniors
cannot invoke the equality doctrine. To illustrate, when pay-fixation is done under
valid statutory Rules/executive instructions, when persons recruited from different
sources are given pay protection, when promotee from lower cadre or a transferee
from another cadre is given pay protection, when a senior is stopped at Efficiency
Bar when advance increments are given for experience/passing a test/acquiring
higher qualifications or as incentive for efficiency ; are some of the
eventualities when a junior may be drawing higher pay than his seniors without
violating the mandate of equal pay for equal work.
The differentia on these
grounds would be based on intelligible criteria which has rational nexus with
the object sought to be achieved." (emphasis supplied)This Court held that
High Courts and Tribunals should not, in an omnibus manner come to the
conclusion that whenever and for whatever reasons, a junior is given higher pay,
the doctrine of `equal pay for equal work' is violated and the seniors are entitled
to the same pay, irrespective of the scope of the relevant Rules and the reasons
which necessitated fixing of higher pay for juniors.
18.
In
Chandigarh Administration vs. Naurang Singh - (1997) 4 SCC 177, this Court held
that principle of `equal pay for equal work' and stepping up of pay would not
apply where higher scale was granted to some persons by an evident mistake.
This Court held : "We are, however, of the opinion that a mistake committed
by the Administration cannot furnish a valid or legitimate ground for the Court
or the Tribunal to direct the Administration to go on repeating that mistake. The
proceedings placed before us clearly show that the pay revision of September
19, 1975 was an unscheduled one, effected merely on the basis of a letter
written by the Principal of the College. The Administration no doubt could have
rectified that mistake.
That would have been
the most appropriate course but their failure to do so cannot entitle the
respondents to say that mistake should form a basis for giving the higher pay
scale to them also. The proceedings of the Administration dated 19.8.1982
clearly shows that the said higher pay scale was treated as personal to the
then existing incumbents. As stated above that was really the pay scale admissible
to the post of Assistants which was a promotion post to storekeepers. Both
these posts cannot be given the same pay scale....An evident mistake cannot constitute
a valid basis for compelling the administration to keep on repeating that
mistake." (emphasis supplied)
19.
In
Union of India vs. R. Swaminathan - (1997) 7 SCC 690, this Court considered the
government order dated 4.2.1966 issued for removal of anomaly by stepping up of
pay of a senior on promotion drawing less pay than his junior. This Court held
: "11. As the Order itself States, the stepping up is subject to three conditions:
(1) Both the junior and the senior officers should belong to the same cadre and
the posts in which they have promoted should be identical and in the same
cadre; (2) the scales of pay of the lower and higher posts should be identical
and: (3) anomaly should be directly as a result of the application of Fundamental
Rule 22-C which is now Fundamental Rule 22(I)(a)(1). We are concerned with the last
condition. The difference in the pay of a junior and a senior in the cases
before us is not a result of the 18application of Fundamental Rule 22(I)(a)(1).
The higher pay
received by a junior is on account of his earlier officiation in the higher
post because of local officiating promotions which he got in the past. Because of
the proviso to Rule 22 he may have earned increments in the higher pay scale of
the post to which he is promoted on account of his past service and also his
previous pay in the promotional post has been taken into account in fixing his
pay on promotion. It is these two factors which have increased the pay of the
juniors. This cannot be considered as an anomaly requiring the stepping of the
pay of the seniors.
The Office Memorandum
dated 4.11.1993. Government of India, Department of Personnel & Training, has
set out the various instances where stepping of pay cannot be done. It gives,
inter alia, the following instances which have come to the notice of the
department with a request for stepping up of pay. These are: (a) Where a senior
proceeds on Extra Ordinary Leave which results in postponement of date of Next Increment
in the lower post, consequently he starts drawing less pay than his junior in
the lower grade itself.
He, therefore, cannot
claim pay parity on promotion even though he may be promoted earlier to the
higher grade (b) If a senior foregoes/refuses promotion leading to his junior
being promoted/appointed to the higher post earlier, junior draws higher pay
than the senior. The senior may be on deputation while junior avails of the ad
hoc promotion in the cadre. The increased pay drawn by a junior either due to
ad hoc officiating/ regular service rendered in the higher posts for periods earlier
than the senior, cannot, therefore, be an anomaly in strict sense of the term. (c)
If a senior joins the higher post later than the junior for whatsoever reasons,
whereby he draws less pay than the junior, in such cases senior cannot claim stepping
up of pay at par with the junior. x x x x
There are also other instances
cited in the Memorandum. The Memorandum makes it clear that in such instances a
junior drawing more pay than his senior will not constitute an anomaly and,
therefore, stepping up of pay will not be admissible. The increased pay drawn by
a junior because of ad hoc officiating or regular service rendered by him in the
higher post for periods earlier than the senior is not an anomaly because pay
does not depend on seniority alone nor is seniority alone a criterion for
stepping up of pay."
20.
The
facts narrated above, without anything more, would clearly show that Dey was given
a higher pay for wholly erroneous reasons. Firstly he was given Grade I promotion
of Section Writer (Typist) in the scale of ` 380-910 under the ROPA Rules, 1981
with effect from 2.4.1981 even though he was not confirmed in the lower post at
that time. Secondly, even though Dey was appointed as Lower Division Assistant
as a direct recruit in the scale of ` 300-685 with effect from 9.9.1985, he was
given the benefit of second higher scale under the Career Advancement Scheme, with
effect from 1.4.1989, by taking note of his previous service.
Dey voluntarily chose
to appear for selection as a Lower Division Assistant which carried a lesser pay
scale when compared to the pay scale to which he was entitled as a Grade-I Typist,
obviously because of better future prospects available to Lower Division Assistants.
Having been appointed as a Lower Division Assistant on 9.9.1985, he was not entitled
to the benefit of second higher scale with effect from 1.4.1989, as that
benefit was available only at the end of 20 years service under the career advancement
scheme. If these two benefits erroneously given were deleted, there would be no
ground for the seniors to claim any benefit on the basis of parity of pay.
Even otherwise, as Dey
was getting a higher pay in view of the earlier promotion as Section Writer/Typist,
when he was selected and appointed as Lower Division Assistant, he was given
pay protection and thus became entitled to a higher pay than what he would have
normally received. His case was completely different from the case of his seniors
and his seniors could not therefore claim parity in pay and stepping up of pay to
match the pay of Dey. Therefore, the learned Single Judge and the Division Bench
rightly held even that Rule 55(4) was inapplicable.
The fact that a mistake
was committed in the case of Dey by extending the benefit of second higher
scale under Career Advancement Scheme cannot be a ground for the Chief Justice to
direct perpetuation of the mistake by directing similar benefit to other senior
employees. Further, in view of his previous service between 1964 and 1985 and
in view of the fact he was getting a higher pay (in a higher pay scale) when he
was appointed thereby entitling him to benefit of pay protection, his seniors who
were not in a comparable position were not entitled to seek higher pay with
reference to the pay of Dey.
21.
It
is now well settled that guarantee of equality before law is a positive concept
and cannot be enforced in a negative manner. If an illegality or an
irregularity has been committed in favour of any individual or group of individuals,
others cannot invoke the jurisdiction of Courts and Tribunals to require the
state to commit the same irregularity or illegality in their favour on the
reasoning that they have been denied the benefits which have been illegally or
arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration
- 1996 (2) SCC 459, Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC
433, Union of India vs. International Trading Co. - 2003 (5) SCC 437, and State
of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94.
This question was exhaustively
considered in Chandigarh Administration vs. Jagjit Singh - 1995 (1) SCC 745,
wherein this Court explained the legal position thus : "8. The basis or
the principle, if it can be called one, on which the writ petition has been
allowed by the High Court is unsustainable in law and indefensible in principle.
Generally speaking, the mere fact that the authority has passed a particular order
in the case of another person similarly situated can never be the ground for
issuing a writ in favour of the petitioner on the plea of discrimination.
The order in favour of
the other person might be legal and valid or it might not be. That has to be investigated
first before it can be directed to be followed in the case of the petitioner.
If the order in favour of the other person is found to be contrary to law or not
warranted in the facts and circumstances of his case, it is obvious that such
illegal or unwarranted order cannot be made the basis of issuing a writ
compelling the respondent-authority to repeat the illegality or to pass another
unwarranted order. The extra-ordinary and discretionary power of the High Court
cannot be exercised for such a purpose.
By refusing to direct
the respondent-authority to repeat the illegality, the court is not condoning the
earlier illegal act/order nor can such illegal order constitute the basis for a
legitimate complaint of discrimination. Giving effect to such pleas would be
prejudicial to the interests of law and will do incalculable mischief to public
interest. It will be a negation of law and the rule of law." We are therefore
of the view that neither under Rule 55(4) of WBSR nor under the general principles
of service jurisprudence, the seniors were are 22entitled to claim benefit of
re-fixation of their pay at par with the pay of their junior Dey.Re : Question
(ii) :
22.
The
representation given by the senior employees was for re-fixing their pay at par
with the pay of Dey by relaxing Rule 55(4) of WBSR. The basis of their claim was
Rule 55(4) and they sought relief by relaxing the said rule. The first report of
the Special Committee dated 2.12.1998 considered the claim of senior employees
under Rule 55(4) and categorically held that the said rule was inapplicable to their
claim. The subsequent reports of the Committee dated 27.11.2002 and 20.1.2003 held
that the employees who were senior to Dey, could not get a lesser pay than Dey,
in keeping with the principle of Rule 55(4) and recommended grant of relief accordingly.
The Registrar
(Original Side), High Court put up a note placing the report of the Special
Committee dated 20.1.2003 and sought approval of the said recommendation of the
Special Committee for the senior employees being granted relief by way of pay
protection by stepping up their pay at par with that of Dey. The Chief Justice concurred
with the said proposal, without noting any other reason and thus, the Chief
Justice merely accepted the reasons assigned by the Special Committee in their recommendation
dated 20.1.2003.
Even in their writ
petitions, the senior employees made the claim only based on Rule 55(4).
Neither the claim of the senior employees, nor the report of the Special Committee
nor the order of the Chief Justice at any point of time, in any document, refer
to any exceptional circumstances warranting the grant of increments prematurely
to the employees senior to Dey by stepping up their pay at par with the pay of
Dey. Rule 49 of WBSR was neither relied upon nor referred to by the senior employees
in their representation, or by the Special Committee in their recommendations
or by the Chief Justice in his order.
Nor did the senior
employees who were the writ petitioners, rely upon or refer to Rule 49 in the writ
petition, as the source of power for the order dated 13.2.2003. In these
circumstances, it is understandable how the division bench of the High Court,
having held in the impugned order that Rule 55(4) was inapplicable, could
justify the order of the Chief Justice with reference to Rule 49.
23.
Rule
49 of WBSR (Part I) relates to premature increments and reads thus : "Save
in exceptional circumstances and under specific orders of government, no
government employee on a time scale of pay may be granted a premature increment
in that time scale". The proviso to Rule 23 of the Calcutta High Court
Service Rules, 1960, no doubt, provides that "the power exercisable under the
West Bengal Service Rules by the Governor of the 24State shall be exercised by
the Chief Justice" in regard to the members of High Court service.
If Rule 49 had to be
invoked, exceptional circumstances should have existed and should have been
referred to in the recommendation by the Special Committee or in the order of the
Chief Justice. The assumption made by the division bench that when an order of the
Chief Justice granting relief cannot be justified with reference to any Rule or
legal principle, it should be inferred that the order was made in exceptional circumstances,
is erroneous and cannot be accepted.
A provision for
granting higher pay by way of premature increment in exceptional circumstances,
cannot be used to give relief to a large number of employees, without the existence
of any exceptional circumstances. The fact that a single employee (Dey) was wrongly
given some benefit is certainly not an exceptional circumstance to perpetuate
the mistake in the case of all his seniors.
24.
The
division bench does not refer to any other exceptional circumstances. The logic
of the division bench that the very fact that the Special Committee has made a
recommendation and the very fact that the Chief Justice had accepted the
recommendation and made an order granting relief, are indications of exceptional
circumstances, is preposterous, irrational and arbitrary. The finding of the division
bench that exceptional 25circumstances existed for stepping up the pay of large
number of employees and therefore, the source of power for the order dated
13.2.2003 of the Chief Justice, is Rule 49 of WBSR is erroneous and improper and
cannot be sustained. Re : Question (iii)
25.
We
may next consider the correctness of the finding of the division bench that the
order dated 13.2.2003 of the Chief Justice is not justiciable and the state
government cannot challenge it in a court of law. At the outset, we may note that
in a democracy, governed by rule of law, where arbitrariness in any form is eschewed,
no government or authority has the right to do whatever it pleases. Where rule
of law prevails, there is nothing like unfettered discretion or unaccountable
action. Even prerogative power is subject to judicial review, but to a very
limited extent. The extent, depth and intensity of judicial review may depend
upon the subject matter of judicial review (vide observation of Constitution
Bench in B.P. Singhal vs. Union of India - 2010 (6) SCC 331). The fact that in
regard to certain types of action or orders of Chief Justice, the scope of
judicial review may be very narrow and limited is different from saying that an
order of the Chief Justice granting certain relief to High Court employees
whose service conditions are governed by Rules, is not justiciable. Such orders
are justiciable.
26.
We
may refer to the principles relating to the power and discretion of a Chief
Justice of a High Court under Article 229(2) which reads thus : "229(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 authorized 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..."
In exercise of the powers
conferred by Article 229 of the Constitution of India, the Chief Justice of the
High Court of Calcutta, with the approval of the Governor of the State of West Bengal,
so far as the rules relate to salaries, allowances, leave and pensions, made the
Calcutta High Court Service Rules, 1960, with respect to the appointment of
persons to, and the conditions of service of persons serving on, the staff attached
to the High Court. While the Chief Justice has the power to amend the Rules, he
does not have the power to ignore the Rules. Rule 23 of the Calcutta High Court
Service Rules, 1960 provided thus :
"Subject to the
following exceptions, the provisions of the West Bengal Service Rules in so far
as they relate to salaries, leave and allowances, shall apply to the members of
the High Court Service, Class - I, II, III and IV, as they apply to government
servants of the corresponding classes in the service of the Government of West
Bengal. Provided that the powers exercisable under the West Bengal Service
Rules by the Governor of the State shall be exercised by the Chief Justice and the
power exercisable by any authority sub-ordinate to the Governor shall be
exercised by the Chief Justice or by such person or persons as he may, by
general or special order, direct."
27.
In
M. Gurumoorthy vs. Accountant-General, Assam and Nagaland - 1971 (2) SCC 137, this
Court held that Article 229 contemplates full freedom to the Chief Justice of the
High Court in the matter of appointment of officers and servants of the High
Court and their conditions of service. The unequivocal and obvious intention of
the framers of the Constitution in enacting Article 229 is that in the matter of
such appointments, it is the Chief Justice or his nominee who is to be the
supreme authority and there can be no interference by the executive except to
the limited extent that is provided in the article. Even the Legislature cannot
abridge or modify the powers conferred on the Chief Justice.
28.
In
State of UP vs. C. L. Agrawal - (1997) 5 SCC 1, a Constitution Bench of this
Court considered a dispute relating to the competence of the Chief Justice of
the High Court to grant advance/premature increments to an employee working in
the High Court : "The state government was of the view that the Chief Justice
could not grant advance/premature increments without prior approval of the Governor.
Instead of directly challenging the Chief Justice's competence, the State
Government refused to take into account premature increments sanctioned to the
respondent by the Chief Justice of the Allahabad High Court, while determining respondent's
pensionary benefits.
The matter was
examined with reference to, (i) Article 229(2) and proviso thereunder, which
lay down that the conditions of service of officers and servants of a High
court shall be regulated by the rules made by the Chief Justice, etc. and the rules,
if they relate to salaries, allowances, etc., shall require Governor's
approval; (ii) Rule 3, two provisos to Rule 40(2) and proviso to Rule 41 of the
Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules,
1976, which provide for creation of temporary posts with the approval of the
Governor; applicability of state government rules to the High Court staff with
such modifications, etc., as the Chief Justice may specify; obtaining of the
Governor's approval where such modification, etc., relates allowances, leave or
pensions; exercise of Governor's power by the Chief Justice in relation to High
Court staff; (iii) Rule 27 of the Financial Handbook, Vol.II, Parts II to IV,
which says that `an authority may grant a premature increment to a government
servant on a time scale of pay if it has power to create a post in the same
cadre on the same scale of pay.
"Reading
together the two provisos to Rule 40(2) of the Allahabad High court Officers and
Staff (Conditions of Service and Conduct) Rules, 1976, this Court held that it
was apparent that the rules and orders referred to therein were the rules and orders
of a general nature and not orders made in individual cases; that insofar as
officers and servants of the High Court were concerned, it was enough that the Chief
Justice exercised the powers conferred upon the Governor under such rules and
orders of the government and no further approval by the Governor is required.
This Court also held that even in Rule 41, the reference was to the making of
general orders and 29not the orders in individual cases.
The order of the Chief
Justice granting premature increments did not therefore require the approval of
the Governor. It was held that as the Chief Justice had the power to create
posts in the High Court, it was the Chief Justice who could grant premature
increments under Rule 27 of the Financial Handbook, to the officers and
servants of the High Court, and even if it was to be assumed that advance
increments under Rule 27 could be granted by the Governor, the Chief Justice would
exercise Governor's power by virtue of second proviso to Rule 40(2) of the 1976
Rules.
29.
In
High Court of Judicature for Rajasthan vs. Ramesh Chand Paliwal - (1998) 3 SCC
72, this Court was considering the correctness of a direction given under Article
226, by a division bench of the High Court to the Registrar to prepare a report
regarding the practicability of certain posts being manned by the officers from
the establishment of the High Court instead of by Higher Judicial Officers and place
it before the Full Court through the Chief Justice for taking a decision whether
Judicial Officers could be relieved of such administrative posts in the High
Court.
This Court found that
Rules 2, 2-A of, and Schedule I to the Rajasthan High Court (Conditions of
Service of Staff) Rules, 1953, made by the Chief Justice in 30exercise of power
conferred by Article 229, specified the posts on which officers of the Rajasthan
Higher Judicial Service or Rajasthan Judicial Service were to be appointed. The
method of recruitment had also been indicated. All appointments on these posts were
to be made by the Chief Justice.
The rules could be
altered, amended or rescinded only by the Chief Justice who alone has the rule
making power. This Court held that the real purport of the directions issued by
the division bench on the judicial side was to override not only the constitutional
provisions contained in Article 229 but also the rules made in exercise of powers
available to the Chief Justice under that article. Even if the Registrar, in compliance
of the impugned directions, is to report that the posts on which officers of the
Rajasthan Higher Judicial Service or Rajasthan Judicial Service are appointed
on deputation, could well be manned by the High Court staff itself and even if
such report is placed before the Full Court, the Full Court cannot give a direction
to the Chief Justice not to fill up those posts by bringing officers on
deputation but to fill up those posts by promotion from amongst the High Court staff.
A Judge of the High Court
individually or all the Judges sitting collectively, as in the Full Court, cannot
either alter the constitutional provisions or the rules made by the Chief
Justice. The Chief Justice has been vested with wide powers to run the High Court
administration independently so as not to brook any interference from any quarter,
not even from his brother Judges who, however, can scrutinize his administrative
action or order, on the judicial side, like the action of any other authority.
30.
It
is therefore clear that the Chief Justice has the power and authority to grant premature
increments in exceptional circumstances. But the Chief Justice cannot grant such
relief in an irrational or arbitrary manner. If the Rules provide that premature
increments could be granted in exceptional circumstances, there should be a reference
to the existence of exceptional circumstances and application of mind to those
exceptional circumstances. When neither the recommendation considered by the
Chief Justice nor the order of the Chief Justice referred to any exceptional
circumstances and did not even refer to the Rule relating to grant of relief in
exceptional circumstances, the question of assuming exceptional circumstances
does not arise. The order dated 13.2.2003 is justiciable. Conclusion
31.
In
view of the above, none of the seniors was entitled to any relief with
reference to the pay of their junior Gopinath Dey. We therefore, allow these
appeals, set aside the order of the division bench and restore the order of the
learned Single Judge dismissing the writ petitions.
............................J
[R. V. Raveendran]
............................J
[Markandey Katju]
New
Delhi;
September
14, 2011.
Back
Pages: 1 2