STATE OF ANDHRA PRADESH & ANR. versus T. GOPALAKRISHNA MURTHI & ORS.

STATE OF ANDHRA PRADESH & ANR.

T. GOPALAKRISHNA MURTffi & ORS.

September 25, 1975

[A. ALAGIRJSWAMI, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.]

Constitution of India, 1950, provio!O td Article 229· (2)-Fixadon ·Of pay scales of Hi'glz Court staff- Chief Justice of High Court riecd1nmending scales of pay of equivulent posts in Secnetariat of Government_;_Requirement of approval of Governor, if 011/y formal.

Andhra Pradesh High Co.urt Servio,e Rules, 1959·. Rule 19.

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 on Andhra Pradesh. The Government did not agree to do so. The respondents who are members of the High Court service belongw in, to the categories of Bench Clerks, Lower Division Clerks, Typists and certain other categories filed writ petition in the High Court for 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 respondei;its belong in accordance with the scales of pay aSi revised by the State Govemment in case of corresponding categories detailed in Annexure III of the Andhra Pradesh Secretariat servire. The High Court allowed the writ petition and directed th.e Government to give effect to the recommendations of the Chief Justice embodied in the letters of the Registrar of the High Court dated 31-301969 and .l-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 requirement of mere formal approval. The Government could not. refuse to accord their approval when 1he recommendation of the Chief_ Justice was merely for equation of pay scales of the High Court staff with those of the S<ecretariat's. The High Court did not rest its judgment on Rule 19 of the Andhra Pradesh High Court Servioe Rules, 1959. This appeal has been preferred on the basis of the certificate granted by the High Court.

Allowing the appeal,

IIBLD: (1) It is not correct to say that the approval of the Governor under thei proviso to clause (2) of Article 229 is mere formality and in no case it is Open to the Governm,nt 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 writ of mandamus the Government may be directed to accord the approval. [1010-D, -1011-E] M. Gurumoorthy v. Aceountant General Assam and Nagaland & Ors.,

M. Gurumoorthy v. Aceountant General Assam and Nagaland & Ors., (1971] Suppl. .S.C.R. 420 and The State of Assam v. Bhubhan Chandra Dutta and Anr. [1975] 4 S.C.C. I reHed on.

(ii) Jt is not correct to say that Rule 19(1) authorised the Chief Justire to regulate the pay or the High Court·staff in the manner he thdught it fit and pro-per to do without any further reference to the Governor. There are no suchl words to thi• 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 forre applicabfe to -officers under the rule-making control of the Government of Andhra Pradesh'' was merely 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-CJ

Obseryation :- On the facts and in th~ circumgtances Of this case and in the background of the conditions which are prevalent in othez; States. Government could have been well~dVised to accord to approval the suggootion of the Chief J~t.ice .• as the s.Qggestion 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. 1'. Rama Reddy, P. Pi. Rao and T. V. S. N. Chari for the Appel-lant.

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 th.e Constitu-tion 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 Govern-ment 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 writ petition in the High Court for writ of mandamus against the appel-lantS 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 respon-dents belong in accordance. with the scales .of pay as revised by the State Government in case of corresponding categories detailed in An-nexure 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 II with such allowances and such benefits as are admissible to the mem-bers of the Secretariat service in the Secretariat.

few facts may be stated for determination of the point at issue. In April, 1965 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 recomm~nded to give them the pay scales of their counter-parts in the Secretariat.

The Assistant Secretary to the Government wrote letter dated 12-2~1969. to the Registrar requestingi that comprehensive note to• gether 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. detailed Jetter dated 31-3-1969 was written by the Registrar to the Government with refer-

ence 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 Secri:tariat staff and the Govermnent was asked to agree to the proposal of _the Chief Justice to bring th.; 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 lett"r dated 1-7-1969 addressed to the Secretary to the Govt. Finance (IPay Commission) Department and in the D.O. Jetter dated 23-7-1969 written by the Chief Justice to the Chief Minister. The Govermnent did not agree to the equation of the scales of pay of the! staff of the High Court to those of the Secre-tariat's. The High Court was· accordingly informed. Thereupon res-pondents 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 Hig!-i Court and laying down the conditions of their service the Chief Justice is the highest authority. The requirement of the approval of the Gover-nor of the State under the proviso or clause (2) of Article 229 is requirement of mere formal approval. The Government could n6t refuse to accord their approval when the recommendation of the Chief Ju.5tice 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 Ruic 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. Gurwnoorthy v. Ac~ountant General Assam & Na· galand & ·ors. (') and The State of Assam v. Bhubhan Chandra Dutta and another([2]). The High Court has noticed the first decision, but counsel submitted, jt has applied it wrongly. Mr. S. V. Gupte ap-pearing 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 appojntments of officers and servants of 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 expen-ses of High Court including all salaries, allowances and pensions payable to or jn respect of the officers and servants of the Court are 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 mav now be read with the proviso appended thereto.

(2) [1975] 4 s.c.c. I.

(I) [1971] Supp. S.C.R. 420.

A.P. STATE v. GOPALKTISHNA (Untwalia, J.)

''Subject to the provisions of any law made by the Legisla-ture of the State, the conditions of service of officers and servants· of High Court shall be such as may be prescribed by rules IJ:!ade 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 l'iw 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 conditfons of service of the High Court staff. But if the Rules made under clause (2) relate to salaries, allow-ances, or pensipns 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 ex-pect 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 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 back-ground or the conditiOns which are prevalent in other States Govern-ment could have been well-advised to accord approval to the suggestion of the Chief Justice, as the suggestion was nothinii mor~ than to equate the pay scales of the High Court staff with those of the equivalent posts in the Secretariat. That merely be.cause 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 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 brinii 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 writ of mandamus under Article 226 of the Constitution as if the refusal of the State Government was ultra vires or mado ma/a 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 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 con-templated by the proviso to -clause ( 1) the only exception

is that the Governor's approval must be sought to the extent the rules relate w salaries, leave or pension. This exception; it is abundantly clear, bas 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".

1~hc more apposite and direct case on the point is the decision of this Court in Bfzubhan Chandra Dutta's case (supra) where following the decision in Gurwnoothy'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 ser-vants of the High Court. Article 229 (12) 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 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 salary of Rs. 1,500 per month with special allow-ance of Rs. 250 per month was made without the approval of the Governor. If -the Chief Justice of the High Court wantelj to appoint the Registrar at the initia[ salary 0f Rs. 1500 with special salary of Rs. 250 per month, special approval of the Governor should have been taken in view of the fact that the rules dia not permit such salary and the higher salary involved. greater financial burden on the Gov-ernment (See M. G11rumoorthy v. A. G., Assam & Naga. land) . "

We share the sentiment expressed by the High Court in its judg-ment and yet find it difficult to allow our sentiment to· cross the boun-dary 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 mies, 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 rel_ating to scales of pay. Whatever might have been the power of the Gov-ernment in the matter of fixing pay or making rules in the pre-constitntion days, that position has changed after the constitution in view of Article 229 of the Constitution."

Mr., Gupte pojnt~d 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 rul~ for _the time being in force applicable to officers under the rule-making contr.ol of the Govermnent of Andhra Pradesh" was merely refer~nce 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 Jus_tice shall exercise tile powers vested in the Governor under any of the aforesaid rules;"

For the reasons stated above we do not fincl it possible to sustain the judgment of the High Court in law. We, however, trust and hope that the Governmel!t will give their second thought to the mat-ter 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. ·

. Appeal allowed.