STATE OF ASSAM versus BHUBHAN CHANDRA DATTA & ANR.

STATE OF ASSAM

BHUBHAN CHANDRA DATIA & ANR. March 5, 1975

[A. N. RAY, C. J., K. K. MATHEW AND V. R. KRJSHNA IYER, JJ.]

Assam a11d Nagaland High Court Services (A ppointmcnt, Conditions of Sm•ice and Conduct) R.ules, 1956. rr. 3 and 11-Scope of-Power of Chief /11stice 10 fi.t special pay and allowance of Registrar.

Under the Assam and Nagaland High Court Services (Appointment, Condi· tions of Service and Conduct) Ruks, 1956, the initial pay of ihe Registrar of the High Court was .Rs. 850/ • per month.. Under r. 3 U >,. when th~ post '"'.3S filled up from the iudicial service, It will carry special !JUY. rhe Cluef Justice had also power under the rule to l\x, wl tgout the prev10~ approval of the Llovernor, the initial pay up'to· Rs. 1200/- per month accordmg.to exp~n­ence etc. Subsequently, the rule wa5 altered authons,ng the Chief Justice ·10 fix the in:tial pay, without the approval of the Governor, up to Rs. 1180/-. The State Government revised the pay scale of the Registrar with effect fr.om ht April 1964 anc! fixed the initial pay at Rs. 1200/-, special pay was also sanctioned if he was borne on the judicial serv.ce, but no change in r .. 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 Pres:ding Officer. Industrial Tribunal, was appointed R~gistrar of the High Court and the Chief Justice fix~d sp~cial initial sahiry of Rs. 1500/-, that is, at the maximum of the !~ale, and special allowar1ce of Rs. 250/-.

On the question whether the fixation of the salary and special allowance was l'a!id the High Court held in favour of the respondent on the grounds that, (a) bec~use in the past the Chief frstice could appoint the Registrar with the ;pccial pay of Rs, 1200/· or Rs. 1180/- when the initial pay was Rs. 850/., that is, he could gJve six increments of RB. 50, the Chief Just'ce could now appoint the Registrar witb 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 Chii:f Justice to fix special pay of Rs. 1180/- became meaningless and i:nust be read as Rs. 1500/·.

Allowing the appeal to this Court,

HELD : ( 1) The reasoning: of the High Cou1t was ·wrong and no su,:h power could be implied in the Chief Justice, If the Chief Justice wanted 1:0 uppoint the Registrar with the special salarv of Rs. 1500/. and special an ow. 11.nc:e, approval of the Governor should have bee.n taken under Art. 229(2), because the rules do not permit such sllilary and the higher salary involvc:s greater financial burden on the Government. (857G-858BJ

M. Gurumoorthy v. Accountant General Assam & Nagaia11d & Ors. (1971] Supp. S.C.R. 420 followed.

(2) Further, r. 3(1) conferred power on the Chief Justice to fix the speci<il •tllowancc onlv w~e~ the oost is filled from the members of the judicial servic(:. The. post of. Pres1d111g Officer, Industrial Tribunal was im;Iu<led in the Assam fodlClal Service only on Atlgust 17, 1967, and not when the respondent was appointed as 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 ~aid that such retired person was member of lhe Judicial Service or wa:; borne on the service. [8580-F] ·

(3) Rule 11 is general rule and is not applicable to we appointment andl fixat10u of pay and special altowan:es of the Registrar because there is specific

provision; namely,! r. 3 ( 1) for the post of Registrar vvhich prevails over the general rule. Moreover. r. 11. must al-:o be read subject to th·e proviso 10 Art. 229'(2) which. requires the approval of the Governor for fixing pay ClL'. Also, Fundamental Rule 19 does not permit any su:h fixation in the teeth of r. 3(1) on the strength of r. 11. f859C-FJ

CML APPELLATE JuRISDICTlON : Civil Appeal No. 1547 of 1969.

Appeal by Special Leave from the Judgment and order dated the 19th May, 1969 of the Assam & Nagaiand 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. l'. 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 ~f Assam at 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. The appoinra1ent was made by the Chief Justice of the Assam High Court in exercise of powers conferr-ed by Article 229 of the Constitution of India and Rules 7 and 13 of the Assam & Nagaland High Court Services (Appointment, Condi-tions 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. 1500/ per month les5 the pension, if any, he has been drawing from the Government. He shall, in addition to the pay, be entitled to draw special pay of Rs. 250/- per month admissible under the Rules to the Registrar of the High Court. He shall hold the appointment for minimum period of two years in the first instance. This period may, h·0wever, be extended as considered suitable and necessary by .the Chief Justice."

It may be stated here that Bhubhan Chandra Dutt11 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 aa extension of one year. On 1 July, 1959 he retired as Registrar of the High C\>urt.

On 25 July, 1968 the Deputy Registrar of the High Court under the direction of the Chief Justice wrote to the Secretary to the Govern-G p1ent 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 provisional pay slip for the period 1 May, 1967 to 31 October, 1967 authorising Bhubhan Chandra Dutta ta draw 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 writ petition in 1969 in the High Court at Assam for mandamus to give effect to the noti-fication dated 28 April, 1967 appointing him to the post of Registrar

:fixing the pay and special pay allowable to him and further manda-mus on the Accountant General, Assam and Nagaland, Shillong to issue pay slip to Bhubhan Chandra Dutta for the full amount pay-able to him in terms of the said notification.

· · The High Court issued mandamus directing the appellant to issue pay slip to Bhubhan Chandra Dutta at the rate of Rs. 1500/-per month minus his pension and special pay of Rs. 250/- per month. Bhubhan Chandra Dutta, according to the mandamus issued by the High Court, be:came 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. lt mav be stated here that under Rule 7 of the Assam and Nagaland High- Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967, person who had retired from the State Judicial Service Grade I could be appJinted Registrar. The only question is whether the Chief Justice had authority to appoint tr.e Registrar at 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 (Appoiint-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 special pay of Rs. 150/- per mensem in additi'Un 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 pre-vious approval of the Governor, the initial pay up to Rs. 1200/-· month according to the experience, ability and age of the person con-cerned."

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 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 Registrar at the initial pay up to Rs. 1200/"' month without the previous approval of the Governor. When the pay scale was subse-quently 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 Sept-ember, 1967. The revised pay scale was Rs. 1200-60-1380-EB-60-1500. ~is revision was however made _with effect from 1 April, 1964. With effect from that date special pay was also sanctioru~d if the Registrar was borne on the Judicial Service. It should be stated here that when the pay scale was revised in 1967 there was r10

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 l}1at 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 r .... ad as Rs. 1500/-. The reason given,by the High Court was that 'vhen 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. Therefore, 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 o~ 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 oo fix, without the authority of the Governor, the initial p~y 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/-ail throughout, notwithstanding .the two revisions in the scale of pay. On the other hand, it appears that at no time the Chief Justice wa~ emirowered 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/-.

Registrar in 1967 becMne

Just because the initial pay of the Registrar in 1967 becMne Rs. 1200/- and with five increme.1ts the salary would be Rs. 1500/-no implication can arise on the power of the Chief Justice oo appoint the Registrar at the initial pay of Rs. 1500/-. The reasoning of the High Court that because in the past under the Rules the Chief Justice could app0int the Registrar at the initial pay of Rs. 1200/- or at Rs. !180/- 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 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 229f2) shall, so far a~ they relate to salaries, allowanc•s, leave or p ,jons, require the approval of the Governor of the State. It is Lvt disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at salary of Rs. 1500/- per month with special allowance of Rs. 250/- per month was made without

lhc 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 special salary of Rs, 2'JO/- per month, special approval of the Governor shouRd have been taken in view of the fact that the· rules did not permit such salary and the higher salary involved gre.ater financial burde:n on the Government. (See M. Gurunworthy v. Accoumam 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) confe:rred power on the Chief Justice to fix the special pay only when the J?OSt 1s filled from the m.embcrs 'Of the Assam Judicial Service (Senior) (irade I. It was contended by the State that Bhubhan Chandra Dutta at th-: time of his appointment on 28 April, 1967 had retired from service and he was no longer member of the Service and therefore he was not cotiitlcd 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 Ofiker, Industrial Tribunal, and, therefore, he was member of the Judicial Service. The High Court interpreted Rule 3(1) to mean that who-ever will be appointed as the Registrar will be 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/-pier 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 Judidal Service (Seni6:r) Grade I. This post was included in the Assam Judicial Service on 17 August,_1967. That apart it is iadisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service on 28 April, 1967. It could not, therefore, be said that retired man can be 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 11 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 11 and Fundamental Rule 19 are set out hereunder :~

"Rule 11

(i) In regard to pay, allowances leave, leave salary or. pension, th1: Rules and Regulations applicable to the members of' the services under the rule making power of the Government of Assam shall appliy, mut.atis mutandis to persons serving in this High Court and subject also to such amendments and variation8 as may be made .by the Chief Justice frnm time to time with the approval of the Governor, where neces.'llll'}'. -

Provided that the powers . exercisable under the said rules llnd orders by the Governor or by any authority sub-

said

ordinate to the Govern:or shall be exercisabli! by the Chief Justice or by such person as he may, by special or general order direct.

(ii) Any question arising as Jo which rules or orders are applicable to the case of any person serving 01i the staff attar.hcd to the High Court shall be decided by the Chief Justice".

F.R. 19

"111e fixation <if 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 Government servant shall not be so increased as to except the pay sanctioned for his post without th:: sanction of an authority competent to create n post in the same cadre on rate of pay equal to his pay when increased".

The High Court held that the Chief Justice under Rule ll(i) read' with Fundamental Rule 19 could fix the pay of the Registrar at Rs. 1500/-. Rule 11 is not applicable to the appointment and fixation of pay and special pay of the Registrar because there is specific provision made exclusively for the post of the Registrar. Rule 3(1) prevails over Rule 11 which is 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 Con-. stitution. Any fixati<:m 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(1) on the strength of Rule 11.

The High Court wa~ wrong in granting mandamus. The Respondent Bhubhan Chandra D.!:!tta was entitled only to the initial pay of Rs. 1200/- less pension and gratuity. The amount was cal-culated by the Accountant General at Rs. 870.75. Bhubhan Chandra Dutta was not entitled to any special pay.

For these reasnos the judgment of the High Court is set aside. The appeal is accepted. The rule granted by the High Court is dis~ charged. ·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 writ for the enforcement of a· contractual claim or 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 as aforesaid, the parties will pay and bear their own costs.