This Special Appeal has been filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 to assail the judgment dated 2 February 2016 of a learned Judge of this ...
No Acts & Articles mentioned in this case
1
A.F.R.
RESERVED
Court No.39
Case :- SPECIAL APPEAL DEFECTIVE No. - 378 of 2016
Appellant :- State Of U.P. And Another
Respondent :- Class IV Employees Association, High Court And 2
Others
Counsel for Appellant :- Sri Yogendra Kumar Srivastava,
Sri Vijay Bahadur Singh, A.G.
Counsel for Respondent :- Sri Manish Goyal, Sri Ashish Mishra,
Sri Namit Srivastava
Hon'ble Dilip Gupta, J.
Hon'ble Abhai Kumar, J.
(Delivered by Hon. Dilip Gupta, J.)
This Special Appeal has been filed under Chapter VIII, Rule 5 of
the Allahabad High Court Rules, 1952 to assail the judgment dated 2
February 2016 of a learned Judge of this Court by which Writ-A
No.61041 of 2012 filed by Class IV Employees' Association of the
Allahabad High Court
1
for quashing the order dated 26 July 2012 passed
by the State Government, has been allowed. The State Government
has, by this order, declined to grant approval to The Allahabad High
Court Officers and Staff (Conditions of Service and Conduct)
(Amendment) Rules, 2005
2
framed by the Chief Justice of the High Court
under Article 229(2) of the Constitution for enhancing the pay-scales of
Class IV employees of the High Court to that of their counterparts in the
Delhi High Court. The learned Judge has set aside the order dated 26 July
2012 and issued a direction to the State Government to take appropriate
1Class IV Employees' Association
2the Amendment Rules
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2
steps to approve the amendments within six weeks. The learned Judge
also directed that Class IV employees of the High Court would be entitled
to higher pay-scales from the date the amendments were incorporated in
the Rules and the arrears of difference of salary would be paid to them
within six months from the date the Rules are approved.
The Class IV Employees' Association had earlier filed Writ-A
No.15211 of 1997 for a direction upon the State to grant pay-scales of
Rs.975-1660 and Rs.1000-1750 in place of Rs.750-940 and Rs.775-1025
respectively to Class IV employees of the High Court with effect from 1
January 1986. This petition was allowed by a learned Judge of this Court
on 6 February 1998 and a direction was issued that Class IV employees
would be entitled to the pay-scales claimed by them with effect from 1
July 1994. The State preferred Special Appeal No.200 of 1998. It was
allowed by judgment dated 5 November 2003. The order passed by the
learned Judge was set aside but it was left open to the Chief Justice of the
High Court to take a decision regarding grant of higher pay-scales. It was
further observed that in case a decision is taken by the Chief Justice,
approval should be granted unless a good reason existed for not granting
the approval. However, if approval was not to be granted, then in that
case there should be exchange of thoughts between the Governor of the
State and the Chief Justice of the High Court. The order passed by the
Division Bench in the Special Appeal was challenged by Class IV
Employees' Association before the Supreme Court in Civil Appeal
No.6878 of 2004. This Civil Appeal was disposed of on 15 October 2004
3
in terms of the judgment rendered by the Supreme Court in State of U.P.
Vs. Section Officer Brotherhood & Anr.
3
. By the said judgment, the
Supreme Court set aside the judgment rendered by the High Court
granting higher pay-scales to Section Officers, Private Secretaries, Bench
Secretaries and Assistant Registrars working in the High Court. The
Supreme Court held that the High Court was not justified in issuing a
direction to the State Government for granting higher pay-scales since the
Chief Justice had not framed any rule for granting higher pay-scales. The
Supreme Court, however, made it clear that it would be open to the Chief
Justice to constitute a Committee consisting of Judges of the Court for the
said purpose and in case the Committee makes a recommendation for
enhancement of the scales of pay, the same would be considered by the
State Government in its proper perspective and in the light of the
observations made in the judgment.
The Chief Justice of the High Court, by order dated 28 November
2004, constituted a Committee of four Judges of the Court. The
recommendations made by the said Committee on 23 December 2004 for
granting higher pay-scales were approved by the Chief Justice on 24
December 2004. The Registrar General of the High Court sent a letter
dated 26 December 2004 to the State Government to take necessary steps.
The Rules were also amended in accordance with the recommendations.
The Schedule to the Amendment Rules provides that Class IV employees
holding promotional and technical posts will be placed in the pay-scale of
Rs.3200-4900 and other Class IV employees holding non-technical posts
3(2004) 8 SCC 286
4
will be placed in the pay-scale of Rs.3050-4590. The Registrar General of
the High Court then sent the draft Amendment Rules to the Principal
Secretary (Judicial) & Legal Remembrancer, Government of U.P.,
Lucknow
4
on 10 November 2005 to obtain the necessary approval from
the Governor of the State as contemplated under Article 229(2) of the
Constitution.
The State Government, by order dated 28 February 2007, declined
to grant approval to the amendments made by the Chief Justice in the
Rules. This order of the State was assailed by Class IV Employees'
Association in Writ-A No.19454 of 2007. The said petition was allowed
by a learned Judge by judgment dated 27 May 2009 and a direction was
issued to the State to place the draft Amendment Rules framed by the
Chief Justice of the High Court under Article 229(2) of the Constitution
before the Governor of the State for granting approval. The State felt
dissatisfied with the order passed by the learned Judge and filed Special
Appeal No.1487 of 2009. The State took a stand in the Special Appeal
that a decision had already been taken for not granting the approval and
though it had been brought on the record, but it had not been considered
by the learned Judge. The Special Appeal was dismissed on 18 May 2010
with liberty to the State to file a review application to agitate this issue.
However, the State filed Special Leave Petition No.11965 of 2010
against the said judgment dated 18 May 2010 passed in the Special
Appeal. This Special Leave Petition was dismissed on 16 August 2010,
but it was left open to the State to file a review application, for which
4the Principal Secretary
5
liberty had already been granted by the Division Bench of the High
Court.
Thereafter, a review application was filed by the State for review of
the judgment dated 27 May 2009. This review application was rejected by
order dated 9 March 2011 and a direction was issued to the State to take
appropriate action in the light of the judgment rendered on 27 May 2009.
The State filed Special Appeal No.1474 which was dismissed on 19
March 2013 in view of the statement made by the learned Additional
Chief Standing Counsel that it had been rendered infructuous. It needs to
be stated that during the pendency of the aforesaid Special Appeal
No.1474 of 2011, the order dated 26 July 2012 was passed declining to
grant approval to the amendments made in the Rules. It is this order dated
26 July 2012 that was assailed in the writ petition out of which the
Special Appeal arises.
This, in short, is the history of the litigation between Class IV
Employees' Association and the State Government. The litigation started
in 1997 when the first writ petition was filed by Class IV Employees'
Association claiming a higher pay-scale and even though the Rules had
been amended by the Chief Justice of the High Court exercising powers
under Article 229(2) of the Constitution in 2005, they have not received
the approval.
As noticed above, Writ Petition No.61041 of 2012 had been
allowed by the learned Judge on 2 February 2016 and a direction was
issued to the State Government to take appropriate steps for approving
6
the amendments made in the Rules in 2005 within six weeks. The writ
petitioners were also held entitled to the higher pay-scales in terms of the
Rules from 2005 and arrears, if any, was directed to be paid within six
months after the Rules were approved. The learned Judge noticed that the
State had declined to grant approval to the draft Rules for two reasons.
The first was that parity that is being maintained by the State between the
employees of the High Court and the Secretariat of the State in
accordance with what was resolved in All India Chief Justices'
Conference held in 1962 would be disturbed if a higher pay-scale was
granted to the Class IV employees of the High Court. The second was
that grant of higher pay-scale would result in financial burden on the
State Exchequer because other employees of the State will start claiming
parity. These two reasons did not find favour of the learned Judge. The
observations and the directions of the learned Judge in this regard are as
follows:
“What emerges from the above mentioned case
is that it is a well-established principle in law that
once the rules are framed by the Chief Justice, a high
constitutional dignitary, it will only be in exceptional
cases that the Governor can reject it.
In the present case, the State has taken only
two grounds to reject the rule framed by the Chief
Justice: (i) financial implication, and (ii) adverse
effect on other employees. Both these grounds have
been turned down by the Supreme Court in the
case of S.B. Vohra (supra) as not sufficient. From a
perusal of the impugned order of the State
Government it is evident that no cogent reason has
been assigned. Only a conclusion that it is not
possible, has been mentioned. It has been laid down
by the Supreme Court while considering the scope of
Article 146 and Article 229 of the Constitution that it
is a legislative power conferred upon the Chief Justice.
7
Thus, the recommendations of the Chief Justice
should not be rejected except on the cogent reasons.
The chronological events and the facts of this case
also indicate that the State has not taken the
recommendations of Hon'ble the Chief Justice with
due deference.
Hearing of the present writ petition was
adjourned several times by this Court with a hope and
trust that the State would arrange a meeting of Hon'ble
the Chief Justice and Hon'ble the Chief Minister, so
that there should be effective consultation and
exchange of views between holder of two high offices.
The order-sheet reveals that this Court on 03rd
December, 2013 had directed the learned counsel for
the State to arrange a meeting between Hon'ble the
Chief Justice and Hon'ble the Chief Minister,
whenever Hon'ble the Chief Justice sits at Lucknow
Bench. For the said purpose, the matter was
adjourned.
It is surprising that no steps were taken by
the State for a meeting of Hon'ble the Chief Justice
and Hon'ble the Chief Minister in spite of the time
granted by this Court. The concerned State
functionaries are fully aware that Hon'ble the Chief
Justice sits at Lucknow Bench in the third week of
every month. This schedule is being followed for the
last several years by all the Hon'ble Chief Justices but
no effort was made by the State Government for the
exchange of thoughts between the aforementioned
dignitaries. The aforesaid conduct of the State
functionaries indicate that they did not pay proper
and due attention to the matter and the issue was
taken in routine and mechanical manner by
rejecting the proposal of Hon'ble the Chief Justice.
….................
….................
Insofar as the stand taken by the State
Government that it has accepted the recommendations
of the All India Chief Justices' Conference held in
1962 is concerned, it may be stated that much water
has flown under the bridges since 1962. There is vast
difference in the financial position of the State
Government in the year 2015 when compared with the
position of 1962.
….................
….................
8
For the reasons stated above, I am of the
considered view that the principal stand taken by the
State in its counter affidavit about the limited
resources of the State Government is wholly
unacceptable.
….................
The next question is as to what relief the
petitioners are entitled for. The petitioners
instituted their first writ petition about eighteen
years ago in the year 1997. Their writ petition was
allowed. In the special appeal, the order of the learned
Single Judge was set aside on the ground that it was
Hon'ble the Chief Justice who had the authority to
take the decision. It was observed by the Division
Bench that in case Hon'ble the Chief Justice takes a
decision, the same shall be approved by the State
Government. It is a well-established law that this
Court under Article 226 of the Constitution has very
wide discretion to mould the ancillary relief and the
petition cannot be thrown out simply on the ground
that the proper writ or direction has not been prayed
for. Reference may be made to the judgments of the
Supreme Court in Charanjit Lal Chowdhury v. The
Union of India and others AIR 1951 SC 41, K.S.
Rashid and Son v. Income Tax Investigation
Commission and others AIR 1954 SC 207, Hindalco
Industries Ltd. v. Union of India and others (1994) 2
SCC 594 and M. Sudakar v. V. Manoharan and others
(2011) 1 SCC 484.
On a careful consideration of the submissions of
the learned counsel on either side and the material on
the record, I am of the opinion that the impugned
order dated 26th July, 2012 passed by the State
Government is unsustainable and it needs to be set
aside. It is accordingly set aside. I further find that
the end of justice requires that a direction be issued
to the State Government to take appropriate steps
to approve the Allahabad High Court Officers and
Staff (Conditions of Service and Conduct)
(Amendment) Rules, 2005 framed by Hon'ble the
Chief Justice within six weeks from today. The
petitioners shall be entitled to higher pay scales in
terms of the Rules of 2005 and consequential
benefits from the year 2005. The arrears of their
difference of salary, if any, shall be paid to them
within six months after the rules are approved.”
(emphasis supplied)
9
Sri V.B. Singh, learned Advocate General appearing on behalf of
the State made the following the submissions:
i)the learned Judge was not justified in issuing a mandamus that the
Amendment Rules should be approved within six weeks from the date of
judgment even if the order refusing to grant approval to the Rules had
been set aside for the reason that in such circumstances the only direction
that could have been issued was for re-consideration of the matter;
ii)the State Government had granted the same pay-scale to Class IV
employees of the High Court as was granted to Class IV employees of the
Secretariat in accordance with the decision taken in the All India Chief
Justices' Conference held in 1962 and, therefore, granting a higher pay-
scale to the Class IV employees of the High Court would disturb the
parity;
iii)in case the draft Amendment Rules are approved, large number of
employees of other establishments of the State may also press for grant of
parity, which would result in heavy financial burden on the State;
iv) the Class IV employees of the High Court are not justified in
claiming parity with Class IV employees of the Delhi High Court as each
State Government is entitled to have its own pay structure depending on
its resources;
v)a Committee had been constituted by the State to examine the draft
Rules and it is after effective consultation with the High Court that a
decision had been taken not to approve the draft Rules; and
10
vi)the learned Judge was not justified in holding that only conclusion
had been recorded by the State Government in the order dated 26 July
2012 without providing reasons as a perusal of the order would reveal
that reasons had been indicated.
Sri Shashi Nandan, learned Senior Counsel appearing for Class IV
Employees' Association made the following submissions :
i)in terms of the directions issued by the Supreme Court in Section
Officer Brotherhood, the Chief Justice had constituted a Committee of
four Judges. The report submitted by this Committee was accepted by the
Chief Justice and the Rules were, accordingly, amended. The order
impugned in the writ petition by which the amendments have not been
approved is arbitrary and in the teeth of observations made by the
Supreme Court;
ii)the order dated 26 July 2012 passed by the State Government
clearly fails to take into consideration the observations made in the
judgment dated 27 May 2009 rendered in the writ petition that had been
filed to assail the earlier order passed by the State Government. In the
said judgment the learned Judge, after referring to the report of the
Committee constituted by the Chief Justice, held that the nature of work
and duties performed by Class IV employees of the High Court are
distinct and different from Class IV employees of the State Government;
iii)the order dated 26 July 2012 also does not take into consideration
the observations made in the order 9 March 2011 by which the review
11
application filed by the State against the judgment dated 27 May 2009
was rejected;
iv)consideration of the relevant factors by the Committee of four
Judges for recommending that Class IV employees working in the High
Court are entitled to higher pay-scales, namely large number of working
hours, different nature of duties, performance of no less onerous and
arduous duties as their counterparts in the Delhi High Court as also
performance of important public duties, as noticed by the learned Judge,
could not have been ignored by the State while concluding that not only
would the grant of higher pay-scales create anomaly between Class IV
employees of the State and Class IV employees of the High Court but
also cause financial implications; and
v) to support the contention that the Rules made by the Chief Justice
of the High Court under Article 229(2) of the Constitution, insofar as they
relate to salary, allowances, leave and pensions etc., should normally be
approved by the Governor of the State, reliance was placed upon certain
decisions to which reference shall made made.
Sri Ashish Mishra appearing for the High Court has supported the
amendments made in the Rules and also placed before the Court the
recommendations made by the four Judges Committee and other relevant
documents. Learned counsel has also adopted the submissions made by
learned Senior Counsel for Class IV Employees' Association.
We have considered the submissions advanced by learned Senior
Counsel for the parties.
12
The Allahabad High Court Officers and Staff (Conditions of
Service and Conduct) Rules, 1976
5
have been framed by the Chief Justice
of the High Court with respect to the conditions of service of persons
serving on the staff attached to the High Court in exercise of powers
conferred under Article 229(2) of the Constitution. Rule 4 deals with
source of recruitment to Class IV posts. Rule 5 deals with academic
qualification, while Rule 7 deals with recruitment by promotion. Rule 36
deals with pay. It provides the scales of pay admissible to persons
appointed to the various categories of posts in the establishment, whether
in a substantive or officiating capacity or as a temporary measure shall be
such, as may be determined by the Chief Justice from time to time with
the approval of the Governor of the State. Rule 40(3) provides that if any
doubt arises in regard to a particular post in the establishment
corresponding to a post in the State Government, the matter will be
decided by the Chief Justice.
It is in exercise of powers under Article 229(2) of the Constitution
that the Chief Justice, on the recommendations made by the four Judges
Committee, amended the 1976 Rules in 2005. The amendments relate to
Rules 4, 5, 7, 16 and 36. The amendment proposed in Rule 36 provides
that the scales of pay admissible to persons appointed to the various
categories of posts in the establishment, whether in a substantive or
officiating capacity or as a temporary measure would be as provided in
Schedule-I. The pay-scales of Class IV employees holding promotional
5the 1976 Rules
13
and technical posts was increased to Rs.3200-4900 and that of Class IV
employees holding non-technical posts to Rs.3050-4590.
In order to appreciate the contentions, it would be necessary for the
Court, at this stage, to examine the claim that had been made by Class IV
Employees' Association of the High Court for granting a higher pay-scale
equivalent to that of Class IV employees of the Delhi High Court.
The pay-scales of Class IV employees of the High Court were
initially less than the pay-scales of Class IV employees of the State
Secretariat. However, a decision was taken in All India Chief Justices'
Conference held in 1962 that there should be parity in the pay-scales of
the employees of the High Court and the State Secretariat. It is to give
effect to the said resolution that the State issued an order dated 20 March
1968 bringing at par the pay-scale of Class IV employees of the High
Court with that of the employees of the Secretariat of the State. The State
Government employees, however, raised a demand that they should be
placed at par with their counterparts in the Central Government and
ultimately the State took a policy decision in 1988 that with effect from 1
January 1986, the State Government employees shall be paid the pay-
scale granted by the Central Government on corresponding posts.
However, certain difficulties arose to equate the posts and consequently
the State constituted an Equivalence Committee. The report of the
Equivalence Committee was accepted by the State Government and the
pay-scales admissible to the Central Government employees were made
admissible to the employees of the State Government holding
14
corresponding posts with effect from 1 January 1986. Class IV employees
were placed in two different categories of pay-scales. The existing pay-
scale of Rs.305-390 was revised to Rs.750-940 and that of Rs.315-440
was revised to Rs.775-1025. The employees holding promotional and
technical posts were placed in the pay-scale of Rs.775-1025 and those
holding non-technical posts were placed in the pay-scale of Rs.750-940.
Class IV Employees' Association of the High Court raised a
grievance in 1994 that their counterparts in the Delhi High Court had
been placed in a higher pay-scale though both were performing similar
nature of work and a representation dated 27 July 1994 was filed before
the Chief Justice of the High Court demanding that the pay-scale of
Rs.775-1025 should be revised to Rs.1000-1750 and the pay-scale of
Rs.750-940 should be revised to Rs.975-1660. The Chief Justice accepted
the demand and made a recommendation to the State. The State, however,
did not take a decision. Class IV Employees' Association filed Writ-A
No.15211 of 1997 which was allowed by judgment dated 6 February
1998. The respondents were directed to pay salary in the revised pay
scale with effect from 1 July 1994. Special Appeal No.200 of 1998 filed
by the State was allowed by judgment dated 5 November 2003. It was,
however, left open to the Chief Justice to take a decision with regard to
grant of higher pay-scales sought for. It was also observed that the
decision to be taken by the Chief Justice would be respected unless the
State had a very good reason not to grant approval. It was further
observed that if the State was of the view that it would not be possible to
15
grant approval, then there should be exchange of thoughts between the
Governor of the State and the Chief Justice of the High Court. The State,
however, was not satisfied with the decision rendered in the aforesaid
Special Appeal. It, accordingly, filed Special Leave Petition before the
Supreme Court which was converted into Civil Appeal No.6878 of 2004.
This Civil Appeal was disposed of by the Supreme Court on 15
October 2004 in terms of the judgment of the Supreme Court in Section
Officer Brotherhood. This judgment was rendered by the Supreme
Court in the Appeal filed by the State against the judgment of the High
Court allowing higher pay-scales to Section Officers, Private Secretaries,
Bench Secretaries and Assistant Registrars working in the High Court
who had claimed higher scale of pay in view of the decisions of the Delhi
High Court in A.K. Gulati Vs. Union of India
6
and Madan Lal Vs.
Registrar, Delhi High Court
7
.
It would, therefore, be appropriate to refer to the observations made
by the Supreme Court in Section Officer Brotherhood since Civil
Appeal No.6878 of 2004 filed by the State had been disposed of on 15
October 2004 in terms of this judgment :
“2.The respondents herein are Section Officers,
Private Secretaries, Bench Secretaries and
Assistant Registrars working in the High Court of
Judicature at Allahabad. They filed several writ
petitions praying inter alia for issuance of a writ of
or in the nature of mandamus inter alia directing
the State of Uttar Pradesh to fix higher scale of
pay. Such scales of pay as claimed were purported
to be on the basis of scales of pay paid to their
counterparts i.e. Section Officers, Private Secretaries,
6(1991) 44 DLT 590
7(1992) 46 DLT 133
16
Bench Secretaries or Assistant Registrars of Delhi
High Court. ….............
3.It is not in dispute that the Chief Justice of the
High Court of Allahabad in exercise of his power
conferred upon him by Article 229 of the Constitution
of India made rules known as Allahabad High Court
Officers and Staff (Conditions of Service and
Conduct) Rules, 1976. The Section Officers, Bench
Secretaries Grade I and Private Secretaries are holders
of Class II posts referable to Rule 16 of the said Rules.
The posts of Deputy Registrar is a Class I post and
allegedly Class II officers are entitled to be considered
for promotion to Class I post.
4.It is not in dispute that Rule 36 of the Rules
provides that the scales of pay admissible to various
categories of posts in the establishment of the High
Court are to be determined by the Chief Justice from
time to time with the approval of the Government of
Uttar Pradesh. Rule 40 while conferring power of
superintendence and control on the Chief Justice
provides that in financial matters, the orders
containing modifications or variations relating to the
salary etc. shall be made by the Chief Justice with the
approval of the Governor. However, sub-rule (3) of
Rule 40 postulates that in case of any doubt as regards
equivalence of a post of an officer in the High Court
vis-a- vis posts in the State Government, the matter
should be decided by the Chief Justice.
…...........
17.There cannot be any doubt or dispute
whatsoever that determination of different scales of
pay for different categories of employees would
ordinarily fall within the realm of an expert body like
the Pay Commission or Pay Committee. The Chief
Justice of a High Court exercises constitutional
power in terms of Article 229 of the Constitution of
India. …......
18.Such a provision has evidently been made to
uphold the independence of the judiciary.
….........
26.The Court noticed that fixation of scale of
pay in favour of one class of employees has a
spiralling effect and in that view of the matter it is
important that the matter as regards fixation of
scale of pay of officers working in different High
Courts must either be examined by an expert body
17
like the Pay Commission or any other body and in
absence thereof the High Court itself should
undertake the task, keeping in view the special
constitutional provisions contained in Article 229
of the Constitution of India.
27.Having regard to the high position and status
enjoyed by the Chief Justice, it was observed, his
recommendations should ordinarily be approved
by the State and refusal thereof must be for strong
and adequate reasons.
…...........
31.In this case, the Chief Justice merely forwarded
the representation of the respondents dated 15-3-1994
for grant of a higher scale of pay with effect from
1.1.1986 directing the Registry to forward the same to
the State Government with recommendations to
consider the same on the ground of parity. Such
forwarding of recommendations to the State
Government did not involve any application of mind
on the part of the Chief Justice as was required under
Article 229 of the Constitution of India. The Chief
Justice on his own did not arrive at any decision
that the jobs performed by the officers concerned
were comparable to their counterparts in the
Central Secretariat or Delhi High Court. No rule
was framed fixing the terms and conditions of
service or the scale of pay for different categories
of the employees of the High Court. Only because in
the forwarding letter, the State Government was asked
to consider the demand of the officers concerned
favourably, the same by itself would not mean that the
requirements of Article 229 of the Constitution stood
complied with. Unless the Chief Justice of the High
Court exercises his constitutional power or acts on
the basis of the recommendations of a committee
constituted by him for the purpose of fixation of
scale of pay and laying down other conditions of
service; only forwarding of a representation to the
State Government to consider the same favourably
without anything more would not amount to
exercise of the constitutional jurisdiction under
Article 229 of the Constitution.
…..........
34.We, therefore, are of the opinion that the
impugned judgments cannot be sustained which are
set aside accordingly. However, this order shall be
subject to the rules framed by the Chief Justice in the
18
case of the Private Secretaries of the High Court. It
will, however be open to the Chief Justice of the
Allahabad High Court to frame appropriate rules as
has been done in the case of the Private Secretaries or
constitute an appropriate committee for the said
purpose. We have no doubt in our mind that if such
committee is constituted and any recommendation
is made for enhancement of the scale of pay for the
concerned officers by the Chief Justice, the same
would be considered by the State Government in
its proper perspective and in the light of the
observations made hereinbefore expeditiously.”
(emphasis supplied)
Pursuant to the aforesaid directions of the Supreme Court, the
Chief Justice, by order dated 28 November 2004, constituted a
Committee of four Judges of the High Court to frame appropriate
amendments in the Rules with regard to the pay-scales of the employees
of the establishment of the High Court. The said Committee submitted its
report on 23 December 2004, both in regard to the Section Officers,
Private Secretaries, Bench Secretaries and Assistant Registrars working
in the High Court as also Class IV employees. It would be appropriate to
reproduce the relevant portions of the report submitted by the four Judges
Committee to the Chief Justice in regard to Class IV employees and they
are :
“The source and method of recruitment to Class
IV Posts in the establishment of the High Court is
given in Rule-4 of the Rules of 1976. The Peon,
Farrash, Cooli, Sewak, Bhisti, Sweeper, Mali, Fire
Man, Chaukidar and Lift Man are recruited through
recruitment for which the qualifications have been laid
down in Rule 5. The first and second proviso to Rule4
(a) provides that the service of Sewak shall be
terminable without any notice on the recommendation
of the Hon'ble Judges concerned. The Sewak is also
required vide the second proviso to do domestic work
and attend the household chores at the assigned
19
residence. The post of Jamadar, Daftari, Bundle Lifter
and Head Mali are promotional posts for which the
sources of promotion are provided in Rule 4(a) to (e)
of the Rules of 1976.
The State Government has also sanctioned some
other categories of posts namely Electrician, Helper,
Dasti Chaukidar, Blind Chair Weaver, Cycle
Chaukidar, Cook, Sweeper. They are all in the
category of Class IV employees of the category of
employees in Rule 4(a) and were serving in the Pay
Scale of Rs.75-990. The other categories including
promotional posts namely Jamadar, Daftari, Bundle
Lifter, Head Mali (Promotional posts), Photocopier-
cum-Machine Operator, Telephone Mechanic were
serving in the pay scale of Rs.775-1050. The Lift
Operator in the pay scale of Rs.800-1150, the
Electrician in the pay scale of Rs.825-1200 and Driver
in the pay scale of Rs.950-1500. These pay scales
were revised in pursuance to the judgement of this
Court in Class IV Employees Association High Court
of Judicature at Allahabad through its Secretary
decided on 6.2.1998 after which all these categories
except Driver, Electrician, Lift Operator and
Telephone Mechanic were placed in the pay scale of
Rs.3200-4900. The Driver, Electrician, Lift Operator
and Telephone Mechanic were not parties to the writ
petition and thus they continued to get lesser pay
scales, whereas the Driver (treated as Class III
employees in the State Government) was placed in the
pay scale of Rs.3050-4590 which is also applicable to
Routine Grade Clerk (initially enrolled as Class III
employee R.G.C.). The electrician was given the pay
scale of Rs.2750-4400, the Lift Operator Rs.2650-
4000 and Telephone Mechanic Rs.2610-3540.
According to the representation made by these
employees they are appointed after an interview, by
the Registrar General. Their duty hours in the
establishment are fixed according to their work. They
are, however, required to perform more tedious and
onerous duties. Most of the categories of the
employees are required to perform duties much
beyond the duty hours in accordance with the need of
the work. The staff attached to the Hon'ble Judges are
required to work for about 12 to 14 hours for which
they are not paid any special or additional allowances.
All the employees perform their duties diligently
without any complaint.
20
The representation of Class IV employees has
also brought to the attention of this Committee to the
difference between the work and duty hours of the
employees of the Secretariat with which the parity is
sought to be drawn. They have laid great stress upon
the additional duty hours for which they are not paid
any special allowances.
….............
The Class IV employees in various categories in
the establishment of the High Court are performing
different nature of duties and responsibility. We find
that they are required to work for longer hours and
attached to Hon'ble Judges. They are also required to
serve at their residences for still longer hours.
The Samata Samiti in 1989 found it difficult to
equate the post for which no equivalent post was
available in Central Government. We find that Class
IV employees of this Court, who are most humble
lot and are performing their onerous duties
without any complaint, keeping longer hours
without any special allowances as paid in the State
Secretariat are entitled to the comparability of
their posts as found in Delhi High Court. In Madan
Lal Vs. Registrar, Delhi High Court (Writ Petition
No.3464/1990) Class IV employees of Delhi High
Court were allowed separate pay scales namely
Rs.975-1660 and Rs.1000-1750 which are being
claimed as matter of parity of the employees of this
Court. Their representations were considered by
Hon'ble the Chief Justice, which had agreed with them
and a report was submitted by the Registrar for
seeking approval of the State Government. The
Registrar had sent to the State Government in
September, 1994 a letter rightly justifying the
representation and stating that the employees of this
Court are performing no less onerous and arduous
duties as their counterparts in Delhi High Court.
The Class IV employees of this Court are
performing important duties and jobs which are
entrusted to them for maintaining the dignity and
standard of the High Court. They are contributing
to the smooth functioning of the Court and
performing important public duties of dispensation
of justice and thus we do not find any justification
to deny to them better pay scales comparable to
Delhi High Court.
21
There, however, appears some anomaly with
regard to pay scales. The Routine Grade Clerks are
recruited in the pay scales of Rs.3050-4590 which is
lower than the pay scale of Rs.3200-4900 which was
provided to Class IV employees. In order to maintain
a distinction between Class III and Class IV posts in
the establishment we find that all the Class IV po0sts
except those which are to be filled up by promotion
under Rule-4(b) to (e) of the Rules of 1976 and those
who are holding which require technical
qualifications, posts should be given the pay scales of
Rs.3050-4590 and that all promotional posts and the
technical posts for which rules provide technical
knowledge to be necessary qualification to be placed
in the pay scale of Rs.3200-4900. These pay scales,
will be most rational, remove the anomalies and
improve the efficiency of the Class IV employees in
the establishment.
RECOMMENDATION
We, therefore, having considered all the
representations and having perused the records and the
judgments of this Court, and Hon'ble Supreme Court,
for the reasons stated above, recommend as follows:
…..........
…...........
C.For Class IV employees, we recommend that all
Class IV employees irrespective of their categories,
except those for whom the recruitment is provided by
promotion namely Jamadar, Daftari, Bundle Lifter and
Head Mali in Rule 4(b) to (e) of the Rules of 1976,
and those who are required to possess technical
qualifications for recruitment, should be placed in the
pay scale of Rs.3050-4590. The others namely the
promotional posts and technical posts be given the pay
scale of Rs.3200-4900 with all admissible allowances
which they are getting at present in respect of
difference categories of post with regard to the nature
of duties performed by them.”
(emphasis supplied)
The recommendations made by the Committee were approved by
the Chief Justice on 24 December 2004. Thereafter, two draft Rules
known as 'Allahabad High Court Officers and Staff (Conditions of
Service and Conduct) (Amendment) Rules, 2005' and 'Allahabad High
22
Court Bench Secretaries (Conditions of Services) Rules, 2004' were
framed. These Rules were forwarded by the Registrar General of the
Court to the State Government on 26 December 2004. The State approved
the amendments made in the 2004 Rules framed for Bench Secretaries on
8 October 2005 but no decision was taken in regard to the amendments
made in the 1976 Rules. It was only when directions were issued by the
High Court in a subsequent petition bearing Writ-A No.27201 of 2006
that the State Government took a decision on 28 February 2007 not to
grant approval to the Amendment Rules. This order was assailed by the
writ petitioners in Writ-A No.19454 of 2007. This petition was allowed
by judgment and order dated 27 May 2009. The learned Judge, after
referring to various decisions of the Supreme Court, observed as follows:
“................. The Supreme Court while
interpreting the proviso to Article 229(2) of the
Constitution has held that the approval was required
from the Governor in matters relating to salaries,
allowances, leave of pensions etc. The Supreme
Court has further held that the Governor cannot
be compelled to grant approval, but, further held
that whenever the Chief Justice, who is a very high
dignitary of the State, frames such Rules, it should
be looked upon with respect and ordinarily, the
Rules should be approved unless there are strong
and cogent reasons for not approving. The
Supreme Court further went on to say that, if
approval cannot be granted, the Governor could
not straightway refuse to grant such approval, but
before doing so, there must be an exchange of
thoughts between the State Government and the
Chief Justice of the High Court.
….........................
The Supreme Court has categorically held
that the State Government is only required to
grant approval with regard to the salaries,
allowances, leave or pension. The State
Government, however, cannot refuse to accord
23
approval solely on the ground that, if the pay scale
is approved, it will cause financial implications. If
this ground is allowed to be taken, it will give a
handle to the State Government to deny approval
on each and every occasion whenever the matter
comes up before it with regard to the approval
relating to the pay scales, salaries allowances,
leave, pension etc. and the High Court would be
saddled with a begging bowl in its hands, which
was never the intention of the framers of the
Constitution. It is apparent that in order to maintain
the independence of the judiciary, the framers of the
Constitution thought it wise and expedient to make a
provision as contained in Clause (3) of Article 229 of
the Constitution. It is not sufficient for the State
Government to refuse to grant an approval on the
strength of financial constraint. In Union of India
and another vs. S.B.Vohra and others (supra), the
Supreme Court has held that financial implications
cannot be made a ground to disapprove the Rules. The
Supreme Court held:
"It has to be further borne in mind that it is not
always helpful to raise the question of financial
implications vis-a-vis the effect of grant of a
particular scale of pay to the officers of the
High Court on the ground that the same would
have adverse effect on the other employees of
the State. Scale of pay is fixed on certain norms;
one of them being the quantum of work
undertaken by the officers concerned as well as
the extent of efficiency, integrity etc. required
to be maintained by the holder of such office.
This aspect of the matter has been highlighted
by this Court in the case of the judicial officers
in All India Judges' Assn. v. Union of India as
well as the report of the Shetty Commission."
In High Court Employees Welfare Association,
Calcutta and others vs. State of W.B. and others,
2004(1)SCC 334, the Supreme Court held-
"The Government will have to bear in mind the
special nature of the work done in the High
Court which the Chief Justice and his
colleagues alone could really appreciate. If the
Government does not desire to meet the needs
of the High Court., the administration of the
High Court will face severe crisis."
24
The Supreme Court, in the light of the
aforesaid decisions also held, that before refusing
to grant approval there should be an exchange of
thoughts between the Chief Justice and the State
Government. In the present case, the Court finds that
a Committee was constituted comprising of officers of
the High Court and that of the State Government. A
perusal of the minutes of this High Power Committee
indicates the narrow mindset of the State Government.
The only hurdle before the State Government
appears that the parity granted pursuant to the
resolution of the Chief Justices and the Chief
Ministers in the year 1962 would be disturbed, in
the event a higher pay scale is granted, and that, it
would also create financial problems. It is also
apparent that the State Government is insisting
that the pay scale of the Class-IV employees should
be similar to the pay scale of the Class-IV
employees of the State Government.
In my opinion, the contention of the State
Government that the pay scale of the Class-IV
employees should be at par with the Class-IV
employees of the State Government, cannot be
accepted. There is nothing in the record of the
State Government, which has been produced
before the Court, to indicate that the State
Government considered the relevant factors which
are required for fixation of the pay-scale. There is
nothing to indicate that the pay scale fixed by the
Chief Justice was arbitrary and that the relevant
factors was not considered. The Court has perused
the recommendations of the Four Judges
Committee and finds that the Committee of Four
Judges took into consideration the nature of work
discharged by the Class-IV employees of the High
Court with that of the Class-IV employees in other
departments of the State Government. The
Committee found that the Class-IV employees are
performing important duties and jobs which are
entrusted to them for maintaining the dignity and
standard of the High Court. The Committee
further found that Class-IV employees are
contributing to the smooth functioning of the Court
and performing important public duties of
dispensation of justice and are performing onerous
duties without any complaint and keeping longer
hours without any special allowances as paid to the
25
employees of the State Secretariat. The Committee
further found that Class-IV employees are
performing different nature of duties and are
required to work for longer hours not only in the
High Court but at the residence of the Hon'ble
Judges. The Committee came to the conclusion that
it was difficult to equate the Class-IV posts of the
High Court with that of the State Government and
found that the employees of the High Court are
performing no less onerous and arduous duties as
their counter parts in the Delhi High Court.
Consequently, the Court finds that relevant
considerations were considered in detail by the Four
Judges Committee while recommending a higher pay
scale to the Class-IV employees. The nature of work
and duties performed by the Class-IV employees were
found to be distinct and different from the Class-IV
employees of the State Government. Consequently,
the State Government fell in error in insisting that
the pay scales of the Class-IV employees should be
similar to the pay scale of Class-IV employees of
the State Government. The State Government
further fell in error in insisting that parity should
be maintained. It is settled law that the principle of
equal pay for equal work postulates scientific
determination of principle of fair comparison.
Comparison is made from the work performed by
an employee and not by designation. In the opinion
of the Court, comparison by designation is misleading
in the present case. The Court finds from a perusal
of the record of the State Government that no
attempt was made to ascertain the nature of work
performed by a Class-IV employees of the High
Court whereas the Four Judges Committee has
dwelt the matter in detail and ascertained the
nature of work of an employee in each category of
staff of the High Court and only thereafter
determined the pay structure and recommended
the same to the Chief Justice.
…................
In the light of the aforesaid decision, the Court
finds that the State Government was unnecessarily
raising frivolous queries which were beyond their
jurisdiction. In so far as the Rules relating to salaries,
etc. was concerned, the Court finds that no steps
whatsoever was taken by the State Government to
arrive at a consensus. The State Government was
adamant that parity should not be disturbed and that a
26
higher pay scale should not be given to the Class-IV
employees of the High Court. In the light of the
aforesaid, the Court finds that a direction to the State
Government to again constitute a Committee and
resolve the issue amicably would not lead to any
fruitful result. The matter is hanging fire for the last
five years and no result can be seen in the near
distance. Consequently, remitting the matter again to
the State Government for reconsideration does not
appear to be a feasible option. A mandamus is a
discretionary remedy under Article 226 of the
Constitution and can be issued to compel the
performance of public duty. The State Government
was required to perform a public duty and place the
Rules before the Governor for its approval. By placing
fetters in raising frivolous objections, the State
Government failed to perform its duty. When the
authority, which in the present case, is the State
Government, does not perform its constitutional duty,
the Court could be compelled to intervene in the
matter not only to quash an order but also issue a
mandamus to that authority.
In the light of the aforesaid, the impugned
order dated 28.2.2007 cannot be sustained and is
quashed. The writ petition is allowed and a
mandamus is issued to the State Government to
place the draft Rules framed by the Chief Justice
under Article 229 of the Constitution of India for
approval before the Governor. This exercise is
required to be carried out by the State Government as
early as possible. In the circumstances of the case, the
parties shall bear their own cost.”
(emphasis supplied)
It needs to be stated that Special Appeal No.1487 of 2009 filed by
the State against the aforesaid judgment dated 27 May 2009 was
dismissed with liberty to the State to file a review application since it was
sought to be contended by learned Additional Advocate General that the
decision that had been taken by the State had not been considered. The
State even filed Special Leave Petition No.11965 of 2010 which was
disposed of on 16 August 2010 with the following observations:
27
“Having heard the learned counsel appearing
for the petitioner, we do not intend to entertain this
Special Leave Petition at this stage, as according to us,
the issues which are raised herein could also be
effectively taken up in a review application before the
learned Single Judge for which the liberty is also
granted by the Division Bench of the High Court.
On going through the records, we find that one
of the grounds for interference by the learned Single
Judge was that the matter was never placed before the
Council of Ministers/Hon'ble Chief Minister and also
not before the Governor. It is also held by the Single
Judge that the State Government rejected the
recommendation only on its own accord. It is the
submission of the counsel that the aforesaid position is
belied and contrary to the original records and
affidavits filed. Let all these pleas be taken up by
the petitioner herein by filing an appropriate review
application for which liberty was also granted by the
Division Bench of the Allahabad High Court. Such a
review application, if any, could be filed within a
period of two weeks and as and when such an
application is filed, the application shall be considered
on its own merits and shall be disposed of as
expeditiously as possible. Proceedings on the
contempt petition shall be kept at abeyance, if
and when a review is filed.
The Special Leave Petition is disposed of in
terms of the aforesaid order.”
The State then filed Review Application No.258275 of 2010 for
review of the judgment dated 27 May 2009. One of the main grounds
taken in the review application was that recommendation made by the
four Judges Committee was not supplied to learned counsel for the
respondents but still a finding had been recorded based on the
recommendations made by the Committee. The review application was
rejected by order dated 9 March 2011. It needs to be stated that only two
grounds were pressed by the learned Additional Advocate General in
support of the review application and they are as follows:
28
“(a) decision infact had been taken by the Chief
Minister and there has been misreading of the
affidavits and the original records of the State
Government, which were produced before the Single
Judge. It has wrongly been recorded that the decision
has been taken by the Principal Secretary to the Chief
Minister. The decision infact has been taken by the
Chief Minister.
(b) grant of higher pay-scale to the Class-IV
employees working in the establishment of the High
Court would create a situation where similar demands
could be raised by the Class-IV employees of the State
Secretariat and another departments of the State
causing undue financial burden upon the State
Government. He explains that earlier employees of the
High Court had all along been claiming parity with the
employees of the State Secretariat. The State
Government is maintaining such parity. Class-IV
employees working in the establishment of the High
Court cannot be provided pay-scale at par with the
employees working in the Delhi High Court. The
employees working in the Delhi High Court work in
different conditions as applicable to the State of Delhi.
The living conditions etc. are different in the State of
Uttar Pradesh specifically at Allahabad and Lucknow
vis-a-vis at New Delhi, therefore, no parity exists. In
support of the aforesaid plea, he has placed reliance
upon the judgement of the Hon'ble Supreme Court of
India in the case of State of U.P. vs. Section Officer
Brotherhood & Another reported in (2004) 8 SCC
286.”
It will also be appropriate to reproduce the observations made by
the learned Judge while rejecting the review application and the same are:
“Only ground mentioned in the affidavit and
contended before this Court by the State
Government for denying the pay-scale as
recommended by the Hon'ble The Chief Justice is
that it will cause undue financial burden upon the
State Government and may unsettle the parity,
which is existing between the employees working
under the State Government and those who are
working in the establishment of the High Court.
…...........
It is with reference to the said direction of the
Hon'ble Supreme Court of India that the Four Judges
29
Committee was constituted by the Chief Justice of
Allahabad High Court. The Four Judges Committee
recommended for grant of higher pay-scale to
Class-IV employees working in the establishment
of the High Court. In its recommendation, the
Committee has taken into consideration relevant
factors for arriving at the conclusion that the
Class-IV employees working in the establishment
of the High Court were entitled to higher pay-scale
having regard to larger number of working hours,
different nature of duties, performance of no less
onerous and arduous duties, as permitted by their
counter parts working in the Delhi High Court, as
also performance of important public duties of
dispensation of justice, contribution to the smooth
functioning of the Court, dignity and discipline and
confidentiality being maintained. Such
consideration by the Four Judges Committee,
proposing grant of higher pay-scale to the Class-IV
employees working in the establishment of the
High Court cannot be brushed aside by the State
Government only on a plea that the grant of higher
pay-scale would create an anomaly between its
Class-IV employee and the Class-IV employees of
the High Court and may cause uncalled for
financial implications.
I am of the considered opinion that the reason
so disclosed in the decision of the State Government
impugned in the writ petition, on the face of it, is
unsustainable. Therefore, irrespective of the fact as to
whether the decision had been taken by the Chief
Minister or by the Principal Secretary only, said
decision cannot be legally sustained. Accordingly the
decision as communicated under the order of the State
Government dated 28th February, 2007 is hereby
quashed.”
(emphasis supplied)
Special Appeal No.1474 of 2011 was filed by the State against the
aforesaid order dated 9 March 2011 rejecting the review application. This
Special Appeal was dismissed on 19 March 2013 and the order is
reproduced below:
“Sri Chandra Shekhar Singh, Additional Chief
Standing Counsel, State of U.P. has stated that this
30
appeal has become infructuous and it should be
dismissed as not pressed.
Accordingly, the appeal is dismissed as not
pressed.”
It transpires that the aforesaid statement was made as the Principal
Secretary had issued the office order dated 26 July 2012 conveying the
decision not to grant approval to the amendments made in the Rules.
After referring to the earlier orders that had been passed, including
the judgment dated 27 May 2009 against which the review application
had been rejected on 9 March 2011, the following observations have been
made in paragraphs 10, 11 and 12 of the order dated 26 July 2012:
a)Parity was granted by the State Government to the employees of
the High Court with that of the Secretariat in accordance with what had
been resolved in All India Chief Justices' Conference held in 1962. If the
amendments in the 1976 Rules are approved, the parity maintained
between the employees of the High Court and the Secretariat would be
disturbed and Class IV employees of the other Departments of the State
may also make a demand which would have serious financial
implications;
b)The State Government has been giving due respect to the
recommendations made by the Chief Justice and, as far as possible, has
granted approval to the recommendations, taking into consideration the
financial position of the State; and
c)The aforesaid considerations were contained in the note placed
before the Cabinet. The Cabinet, in its meeting held on 25 July 2012,
considered it appropriate not to grant approval to the amendments made
31
in the 1976 Rules under the proviso to Article 229(2) of the Constitution
and on the basis of the recommendations made by the Cabinet, the
Governor declined to grant approval to the amendments made in the
Rules.
The learned Judge, while setting aside the aforesaid order dated 26
July 2012, noticed that the two grounds for not granting approval to the
amendments in the Rules namely, financial implications and adverse
effect on the employees of the other Departments, had not been accepted
by the Supreme Court in Union of India & Anr. Vs. S.B. Vohra &
Ors.
8
. The learned Judge also found that no cogent reasons had been
assigned and only a conclusion had been drawn. The learned Judge also
observed that the State had not taken the recommendations of the Chief
Justice with due deference because even though the hearing of the writ
petition had been adjourned on several occasions so that the State could
arrange a meeting between the Chief Justice and the Chief Minister but
no steps were taken by the State for holding such a meeting.
What was strenuously contended by the learned Advocate General
for the State is that grant of higher pay-scales to Class IV employees of
the High Court would have financial implications because Class IV
employees of other Departments of the State will make a similar demand
and the parity maintained between Class IV employees of the State and
the High Court would be disturbed. These facts had also weighed with the
State in not granting approval to the amendments made in the 1976 Rules.
8(2004) 2 SCC 150
32
The order impugned in the writ petition and the submissions made
by the learned Advocate General have to be examined in the light of the
judgments earlier rendered since, according to the learned Senior Counsel
for the respondents, these two grounds had been specifically considered
and rejected by the High Court in the judgment rendered on 27 May 2009
and the order dated 9 March 2011 passed in the review application.
The observations made by the learned Judge in the judgment dated
27 May 2009 have been reproduced. The contention of the State that
parity has to be maintained in the pay-scales of Class IV employees of the
High Court and the Class IV employees of the Secretariat of the State was
not accepted. The learned Judge observed that the Committee of four
Judges constituted by the Chief Justice had, after examining the nature of
work discharged by Class IV employees of the High Court and Class IV
employees of the other Departments of the State, found as a fact that
Class IV employees of the High Court were performing important duties
and jobs entrusted to them for maintaining the dignity and the standard of
the High Court; that they were contributing to the smooth functioning of
the Court and performing onerous duties without any complaint for
longer hours without any special allowance as was paid to the employees
of the State Secretariat and that the Class IV employees of the High Court
were required to work for longer hours not only in the High Court but
also at the residences of the Judges. The learned Judge concluded that
relevant considerations had been considered in detail by the four Judges
Committee for recommending a higher pay-scale and after recording a
33
finding that the nature of work and duties performed by Class IV
employees of the High Court was distinct and different from that of the
employees of the Sate Government, observed that the State fell in error in
insisting that the pay-scales of Class IV employees of the High Court
should be similar to the pay-scales of Class IV employees of the State
Secretariat.
What is also important to note is that in the review application,
only two grounds were raised. It was sought to be contended by the
learned Additional Advocate General that grant of higher pay-scales to
Class IV employees working in the establishment of the High Court
would create a situation where a similar demand could be raised by Class
IV employees of the State Secretariat and other Departments of the State
which would result in financial burden on the State Government and that
the parity between the employees of the High Court and the State
Secretariat would be disturbed, if a higher pay-scale at par with the
employees working in the Delhi High Court was granted. These two
contentions were not accepted by the Court while rejecting the review
application. After making reference to the recommendations made by the
four Judges Committee, the Court observed that approval to the grant of
higher pay-scales to Class IV employees of the High Court could not
have been refused by the State only on the ground that grant of higher
pay-scales would create anomaly between the Class IV employees of the
High Court and the State Secretariat and it would result in financial
34
implications. It would be appropriate to again reproduce what was
observed by the learned Judge while rejecting the review application :
“The Four Judges Committee recommended for
grant of higher pay-scale to Class-IV employees
working in the establishment of the High Court. In its
recommendation, the Committee has taken into
consideration relevant factors for arriving at the
conclusion that the Class-IV employees working in the
establishment of the High Court were entitled to
higher pay-scale having regard to larger number of
working hours, different nature of duties, performance
of no less onerous and arduous duties, as permitted by
their counter parts working in the Delhi High Court, as
also performance of important public duties of
dispensation of justice, contribution to the smooth
functioning of the Court, dignity and discipline and
confidentiality being maintained. Such consideration
by the Four Judges Committee, proposing grant of
higher pay-scale to the Class-IV employees working
in the establishment of the High Court cannot be
brushed aside by the State Government only on a plea
that the grant of higher pay-scale would create an
anomaly between its Class-IV employee and the
Class-IV employees of the High Court and may cause
uncalled for financial implications.”
The four Judges Committee constituted by the Chief Justice to
examine the claim made by Class IV Employees' Association of the High
Court for granting a higher pay-scale at par with their counterparts in the
Delhi High Court, had very minutely examined every aspect not only vis-
a-vis the work performed by Class IV employees of the High Court with
that of the State Secretariat but also with that of the Delhi High Court and
the Committee found as a fact that the nature of the work performed by
the Class IV employees of the High Court to maintain the dignity and
standard of the High Court and to contribute to the smooth functioning in
the Court was different and distinct. The Committee, therefore, concluded
35
that Class IV employees of the High Court were entitled to the same pay-
scale as was provided by the Delhi High Court to its Class IV employees.
The Supreme Court in Union of India & Anr. Vs. S.B. Vohra & Ors.
9
emphasised that it is not always helpful to raise issues about financial
implications vis-a-vis the effect of grant of a particular scale of pay on the
ground that the same would have an adverse effect on other employees of
the State and that scale of pay is fixed on certain norms, one of which is
the quantum of work undertaken by the officers concerned as well as the
extent of efficiency and integrity required to be maintained. In Supreme
Court Employees' Welfare Association Vs. Union of India & Anr.
10
the Supreme Court observed that the Government must bear in mind that
the Chief Justice alone can really appreciate the nature of work done by
the employees of the High Court and if the Government does not desire to
meet the needs of the High Court, the administration of the High Court
will face severe crisis.
At this stage, we also consider it appropriate to refer to the
decisions of the Supreme Court that have highlighted the rule making
power of the Chief Justice of a High Court under Article 229(2) of the
Constitution and the role of the Governor of a State while considering the
grant of approval to the Rules made under Article 229(2) relating to
salary, allowances, leave or pensions.
In S.B. Vohra & Ors. the Supreme Court observed:
“11.Independence of the High Court is an essential
feature for working of the democratic form of the
Government in the country. An absolute control,
9(1999) 3 SCC 217
10(1989) 4 SCC 187
36
therefore, has been vested in the High Court over its
staff which would be free from interference from the
Government subject of course to the limitations
imposed by the said provision. There cannot be,
however, any doubt whatsoever that while exercising
such a power the Chief Justice of the High Court
would only be bound by the limitation contained in
Clause 2 of the Article 229 of the Constitution of India
and the proviso appended thereto. Approval of the
President/Governor of the State is, thus, required to be
obtained in relation to the Rules containing provisions
as regard, salary, allowances, leave or promotion. It is
trite that such approval should ordinarily be granted as
a matter of course.
…...........
46.Decisions of this Court, as discussed
hereinbefore, in no unmistakable terms suggest
that it is the primary duty of the Union of India or
the concerned State normally to accept the
suggestion made by a holder of a high office like a
Chief Justice of a High Court and differ with his
recommendations only in exceptional cases. The
reason for differing with the opinion of the holder
of such high office must be cogent and sufficient.
Even in case of such difference of opinion, the
authorities must discuss amongst themselves and
try to iron out the differences. The appellant
unfortunately did not perform its own duties.
…...........
48. It has to be further borne in mind that it is
not always helpful to raise the question of financial
implications vis-a-vis the effect of grant of a
particular scale of pay to the officers of the High
Court on the ground that the same would have
adverse effect on the other employees of the State.
Scale of pay is fixed on certain norms; one of them
being the quantum of work undertaken by the
officers concerned as well as the extent of
efficiency, integrity, etc. required to be maintained
by the holder of such office. This aspect of the matter
has been highlighted by this Court in the case of the
judicial officers in All India Judges' Association v.
Union of India and Ors. (1992) 1 SCC 119 as well as
the report of the Shetty Commission.
…..........
51.Having regard to the aforementioned
authoritative pronouncements of this Court, there
cannot be any doubt whatsoever that the
37
recommendations of the Chief Justice should
ordinarily be approved by the State and refusal
thereof must be for strong and adequate reasons. In
this case the appellants even addressed themselves on
the recommendations made by the High Court. They
could not have treated the matter lightly. It is
unfortunate that the recommendations made by a
high functionary like the Chief Justice were not
promptly attended to and the private respondents had
to file a writ petition. The question as regard fixation
of a revision of the scale of pay of the High Court
being within exclusive domain of the Chief Justice of
the High Court, subject to the approval, the State is
expected to accept the same recommendations save
and except for good and cogent reasons.”
(emphasis supplied)
In Supreme Court Employees' Welfare Association, the
Supreme Court observed:
“57.So far as the Supreme Court and the High
Courts are concerned, the Chief Justice of India and
the Chief Justice of the concerned High Court, are
empowered to frame rules subject to this that when the
rules are framed by the Chief Justice of India or by the
Chief Justice of the High Court relating to salaries,
allowances, leave or pensions, the approval of the
President of India or the Governor, as the case may, is
required. It is apparent that the Chief Justice of
India and the Chief Justice of the High Court have
been placed at a higher level in regard to the
framing of rules containing the conditions of
service. It is true that the President of India cannot be
compelled to grant approval to the rules framed by the
Chief Justice of India relating to salaries, allowances,
leave or pensions, but it is equally true that when
such rules have been framed by a very high
dignitary of the State, it should be looked upon
with respect and unless there is very good reason
not to grant approval, the approval should always
be granted. If the President of India is of the view
that the approval cannot be granted, he cannot
straightway refuse to grant such approval, but
before doing so, there must be exchange of
thoughts between the President of India and the
Chief Justice of India.
38
…...........
62.…............ So, not only that the Chief Justice
of India has to apply his mind to the framing of
rules, but also the Government has to apply its
mind to the question of approval of the rules
framed by the Chief Justice of India relating to
salaries, allowances, leave or pensions. This
condition should be fulfilled and should appear to
have been so fulfilled from the records of both the
Government and the Chief Justice of India. The
application of mind will include exchange of
thoughts and views between the Government and
the Chief Justice of India and it is highly desirable
that there should be a consensus between the two.
The rules framed by the Chief Justice of India
should normally be accepted by the Government
and the question of exchange of thoughts and views
will arise only when the Government is not in a
position to accept the rules relating to salaries,
allowances, leave or pensions.”
(emphasis supplied)
In M. Gurumoorthy Vs. Accountant General, Assam and
Nagaland & Ors.
11
, the Supreme Court observed :
“11. The unequivocal purpose and obvious intention
of the framers of the Constitution in enacting Article
229 is that in the matter of appointment of officers and
servants of a High Court 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. This was
essentially to secure and maintain the independence of
the High Courts. The anxiety of the Constitution
makers to achieve that object is fully shown by putting
the administrative expenses of a High Court including
all salaries, allowances and pension payable to or in
respect of officers and servants of the Court at the
same level as the salaries and allowances of the judges
of the High Court nor can the amount of any
expenditure so charged be varied even by the
Legislature. …...............”
11(1971) 3 SCC 137
39
The aforesaid judgments of the Supreme Court emphasise that an
absolute control has been vested in the High Court over its staff free from
interference of the Government subject to the limitations imposed by
Article 229(2) of the Constitution and that it is the primary duty of the
State to accept the suggestions made by the Chief Justice of the High
Court and to differ with the recommendations only in exceptional cases.
It has also been emphasised that even in such cases the reason for
differing with the opinion of the holder of such high office must be
cogent and sufficient and in case of difference of opinion, there should be
discussion to iron out the differences. The Chief Justice of the High Court
has been placed at a very high pedestal in regard to the framing of the
Rules containing the conditions of service.
The Special Appeal filed against the judgment dated 27 May 2009
was dismissed with liberty to file a review application. The review
application was also rejected by order dated 9 March 2011. The Special
Appeal filed against the order dated 9 March 2011 was also dismissed as
not pressed. Thus, the judgments rendered on 27 May 2009 and 9 March
2011 have attained finality. The State Government was, therefore, obliged
to take a decision in the light of the observations that had been made in
the aforesaid two judgments. However, despite the two reasons given by
the State Government for not giving approval to the amendments made in
the 1976 Rules by the Chief Justice having been specifically rejected by
the High Court in the judgment rendered on 27 May 2009 in Writ-A
No.19454 of 2007 as also in the order dated 9 March 2011 rejecting the
40
review application, the State Government again took the same two pleas
in the order dated 26 July 2012. The Committee of four Judges of the
Court constituted by the Chief Justice had considered all the relevant
aspects and the Chief Justice had accepted the recommendations made by
the Committee to amend the Rules. Thus, the State Government not only
failed to give due weight required to be given to the recommendations
made by the Chief Justice of the High Court, but also ignored the
observations and findings recorded on the judicial side by the High Court
in the aforesaid two orders which, as noticed above, had attained finality.
The learned Judge was, therefore, justified in setting aside the order
dated 26 July 2012.
The issue that would now arise for consideration and which was
also raised by the learned Advocate General is as to whether, in such
circumstances, a mandamus could have been issued by the learned Judge
directing the State to take appropriate steps for approving the Rules
framed by the Chief Justice or a direction should have been issued for re-
consideration of the matter.
This issue has to be examined in the light of what was observed by
the Court in the judgment dated 27 May 2009 while setting aside the
order dated 28 February 2007 passed by the State conveying the decision
not to grant approval to the amendments made in the 1976 Rules framed
by the Chief Justice under Article 229(2) of the Constitution. It was
observed that since the State Government was adamant that parity should
not be disturbed and that a higher pay-scale should not be given to Class
41
IV employees of the High Court, a direction to the State Government to
again constitute a Committee and resolve the issue amicably may not lead
to any fruitful result. It was for this reason that the Court, after setting
aside the order dated 28 February 2007, issued a mandamus to the State
Government to place the draft Rules framed by the Chief Justice under
Article 229(2) of the Constitution for approval before the Governor. The
order passed on the review application also categorically rejected these
two issues that had been raised by the State. However, as it transpires, the
State Government again raised these two objections regarding parity
being disturbed and financial implications in its Cabinet meeting and
placed its recommendations before the Governor of the State.
The learned Judge in the judgment dated 2 February 2016, out of
which the present Special Appeal arises, also noticed that the two grounds
taken by the State in the impugned order dated 26 July 2012 were
contrary to the decision of the Supreme Court in S.B. Vohra and that
despite time having been repeatedly granted, no efforts were made by the
State Government for holding a meeting between the Chief Justice of the
High Court and the Chief Minister of the State. The learned Judge,
therefore, concluded that since the Class IV Employees' Association had
instituted a writ petition for the first time in 1997 and 18 years had
lapsed, the ends of justice would require a direction to be issued to the
State Government to take appropriate steps for approving the
amendments made in the 1976 Rules framed by the Chief Justice.
42
The submission of the learned Advocate General is that even if the
order declining to grant approval to the amendments made in the 1976
Rules was set aside, the learned Judge should not have issued a direction
for granting approval to the amendments made in the 1976 Rules but
should have remitted the matter for a fresh consideration. To Support this
contention, learned Advocate General has placed reliance on a decision of
the Supreme Court in Comptroller and Auditor-General of India, Gian
Prakash, New Delhi & Anr. Vs. K.S. Jagannathan & Anr.
12
in which
the following observations were made by the Supreme Court in paragraph
20 of the judgment:
“20.There is thus no doubt that the High Courts in
India exercising their jurisdiction under Article 226
have the power to issue a writ of mandamus or a writ
in the nature of mandamus or to pass orders and give
necessary directions where the Government or a
public authority has failed to exercise or has wrongly
exercised the discretion conferred upon it by a statute
or a rule or a policy decision of the Government or has
exercised such discretion mala fide or on irrelevant
considerations or by ignoring the relevant
considerations and materials or in such a manner as to
frustrate the object of conferring such discretion or the
policy for implementing which such discretion has
been conferred. In all such cases and in any other fit
and proper case a High Court can, in the exercise of its
jurisdiction under Article 226, issue a writ of
mandamus or a writ in the nature of mandamus or pass
orders and give directions to compel the performance
in a proper and lawful manner of the discretion
conferred upon the Government or a public authority,
and in a proper case, in order to prevent injustice
resulting to the concerned parties, the Court may itself
pass an order or give directions which the Government
or the public authority should have passed or given
had it properly and lawfully exercised its discretion.”
12(1986) 2 SCC 679
43
Learned Advocate General has also relied on paragraph 52 of the
decision in S.B. Vohra wherein the Supreme Court observed :
“52.The High Court, however, should not ordinarily
issue a writ of or in the nature of mandamus and ought
to refer the matter back to the Central/State
Government with suitable directions pointing out the
irrelevant factors which are required to be excluded in
taking the decision and the relevant factors which are
required to be considered therefor. The statutory
duties should be allowed to be performed by the
statutory authorities at the first instance. In the event,
however, the Chief Justice of the High Court and the
State are not ad idem, the matter should be discussed
and an effort should be made to arrive at a consensus.”
It is a fact that it was in 1997 that Class IV Employees' Association
had raised a claim for granting higher pay-scales and though the Rules
were amended by the Chief Justice under Article 229(2) of the
Constitution in 2005 in the light of the recommendations made by the
four Judges Committee but they have not been approved as yet. The two
grounds mentioned in the impugned order were pressed before the
learned Judge and have also been impressed upon in this Special Appeal.
The judgment dated 27 May 2009 rendered in the writ petition and the
order dated 9 March 2011 passed in the review application have attained
finality. A decision could have been taken by the State in the light of the
observations and directions contained therein, particularly when the
recommendations made by the four Judges Committee had also been
referred to in detail in the judgment dated 27 May 2009. The learned
Advocate General may, in such circumstances, not be justified in
contending that the matter regarding grant of approval to the Amendment
44
Rules should still have been remitted, but keeping in mind the provisions
of Article 229(2) of the Constitution that amendments in the Rules
require the prior approval of the Governor of the State as also the
observations made by the Supreme Court in the judgments referred to
above, we consider it appropriate to modify the judgment dated 2
February 2016 only to the extent that a decision will now be taken for
granting approval to the amendments made in the 1976 Rules in
accordance with the observations and directions contained in the
judgment dated 27 May 2009 and the order 9 March 2011 as also the
observations made in this judgment. We hope and trust that the
Government would bear in mind that matters relating to nature of work
performed by the employees of the High Court can best be appreciated by
the Chief Justice of the High Court and when the recommendations made
by the four Judge Committee dealing extensively with regard to the
nature of work performed by Class IV employees of the High Court have
been accepted by the Chief Justice and the Rules have been amended, the
Government will, as is expected, respect the views. However, if there is
still any doubt, the Government will arrange a meeting between the Chief
Justice of the High Court and the Chief Minister of the State for exchange
of thoughts and views. Since the Rules were amended in 2005, we expect
the Government to take a decision expeditiously and preferably within a
period of two months from the date a certified copy of this order is filed
before the Chief Secretary of the State. It is also expected that on
approval being granted to the Amendment Rules, a decision will also be
45
taken regarding the date from which the benefits would accrue to the
Class IV employees of the High Court.
The Special Appeal stands disposed of with the aforesaid
modifications in the judgment dated 2 February 2016.
Date: 27.04.2017
SK
(Dilip Gupta, J.)
(Abhai Kumar, J.)
46
Court No.39
Civil Misc. Delay Condonation Application No.168637 of 2016
In
Case :- SPECIAL APPEAL DEFECTIVE No. - 378 of 2016
Appellant :- State Of U.P. And Another
Respondent :- Class IV Employees Association, High Court And 2
Others
Counsel for Appellant :- Yogendra Kumar Srivastava,Vijay Bahadur
Singh
Counsel for Respondent :- Manish Goyal,Ashish Mishra,C.S.C.,Namit
Srivastava
Hon'ble Dilip Gupta, J.
Hon'ble Abhai Kumar, J.
Heard learned counsel for the parties.
In view of the averments made in the affidavit filed in support of
the application under Section 5 of the Limitation Act, we are satisfied
that the applicants were prevented by sufficient cause from preferring the
Special Appeal within the period of limitation.
The application is, accordingly, allowed and the delay in filing the
Special Appeal is condoned.
Date: 27.04.2017
SK
(Dilip Gupta, J.)
(Abhai Kumar, J.)
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