V. K. KULKARNI v. ACCOUNTANT GENERAL — 1977 DIGILAW 195 (KAR)

( 1 ) THIS Writ Petition has come before us on a reference made by justice Venkataramiah. ( 2 ) THE petitioner was holding the post of a clerk in the service of the high Court of Judicature at Bombay in the scale of Rs. 75-220. Consequent upon the reorganisation of states, the petitioner stood allotted to the new State of Mysore with effect from1-11-56. When the petitioner was serving as a Clerk in the High Court of the new State of Mysore, he was promoted, by selection, to the post of Bench Clerk by the Chief Justice of the High Court of Mysore by Order, dated 17th March, 1958 and given the scale of pay of Rs. 150-10-250 that was attached to the post of Bench clerk. The petitioner made a representation to the Chief Justice for according to him the pay scale of Rs. 250-450 on the ground that he will be eligible for that scale of pay, the same being the scale of pay attached to the post one stage above the one held by the petitioner when he was in the service of the High Court of Judicature at Bombay. For this purpose he relied upon the direction of the Government of India issued, under S. 117 of the States Reorganisation Act, 1956, which reads as follows:"the Government of India have given very careful thought to this question in the light of the views expressed by the representatives at the two conferences mentioned earlier. They have come to the conclusion that it. would be equitable to allow every person affected by reorganisation, the limited protection of drawing pay on promotion to a post one stage above the one held by him in a substantive capacity or on which he had officiated continuously for a minimum period of three years immediately before the date of reorganisation, on the scale of pay that would have been admissible to him on such promotion in his parent State before reorganisation, if such scale is more favourable than the scale attached to the post in the new or reorganised State to which he is allotted. " ( 3 ) ACCORDING to the petitioner, he could have been promoted if he had remained in the service of the High Court of Judicature at Bombay from the post of clerk to the post of Superintendent carrying the scale of pay of Rs. 250-450. " ( 3 ) ACCORDING to the petitioner, he could have been promoted if he had remained in the service of the High Court of Judicature at Bombay from the post of clerk to the post of Superintendent carrying the scale of pay of Rs. 250-450. As the said scale of pay is advantageous to the petitioner than the scale of pay of Rs. 150-250 attached to the post of bench Clerk to which the petitioner was promoted, on the basis of the aforesaid direction of the Government of India, the petitioner pressed for his pay being refixed in the scale of Rs. 250-450. It is not disputed that the Chief Justice of the High Court of Mysore agreed with the case put- forward by the petitioner and decided on the 27th of September, 1967 to refix the pay of the petitioner in the scale of Rs. 250-450. The approval of the Governer, as required by Article 229 (2) of the Constitution, was sought. It is also not disputed that approval was accorded to the proposal of the Chief Justice to refix the pay of the petitioner in the scale of Rs. 250-450, on the 27th of November 1968. It is also necessary to point out that as refixation of the pay of the petitioner was made with retrospective effect, the State Government also accorded sanction for condonation of delay to enable the petitioner to claim arrears of the difference in the emoluments. After the said approval was communicated to the Chief Justice, he made an order on the 10th of February, 1969 refixing the pay of the petitioner in the scale of Rs. 250-450 with effect from the date on which the petitioner was promotel to the post of Bench clerk in place of the earlier scale of pay fixed i. e. , 150-10-250. On the basis of such refixation of the pay of the petitioner he was also paid the difference in emoluments for the period between 1958 to 1962. It is only when for the period subsequent to 1962 claim for emoluments on the basis of refixation of the petitioner's pay was made by presenting the bills, the Accountant General took the objection that the petitioner is not entitled to the scale of pay of Rs. 250-450 and returned the bills of the petitioner. It is only when for the period subsequent to 1962 claim for emoluments on the basis of refixation of the petitioner's pay was made by presenting the bills, the Accountant General took the objection that the petitioner is not entitled to the scale of pay of Rs. 250-450 and returned the bills of the petitioner. The Joint Registrar of the High Court issued a memo, dated 4th of March, 1972 (Exhibit 'a') informing the stand taken by the accountant General observing that the office of the High Court, in the circumstances, cannot pursue the matter any further. It is in this background that the petitioner has approached this Court for appropriate relief under Article 226 of the Constitution. ( 4 ) THE petitioner has prayed for the issue of a writ in the nature of mandamus directing the first respondent to admit the fixation of pay of the petitioner in the scale of Rs. 250-450 and draw and disburse the petitioner the salary to which he is entitled. ( 5 ) SRI Rama Jois, learned Counsel for the petitioner, formulated two contentions for our consideration. The first is that the petitioner is in law entitled to the scale of pay of Rs. 250-450 having regard to the direction issued by the Govt of India under S. 117 of the States reorganisation Act, and having regard to the fact that the post of Superintendent in the High Court of Judicature at Bombay, to which post the petitioner could have been promoted if he was in the service of that High court, carried the scale of pay of Rs. 250-450. He, therefore, maintained that the order made by the Chief Justice of the High Court of Mysore refixing the pay of the petitioner in the scale of 250-450 is in accordance with law. The second contention urged by Sri Ram Jois is to the effect that the Accountant General, the first" respondent, has no right not to honour the bills of the petitioner claiming emoluments on the basis of refixation of pay as per the order of the Chief Justice of the High Court, which order was passed after obtaining the prior approval of the governor under Article 229 of the Constitution. ( 6 ) AS, in our opinion, this Writ Petition is entitled to succeed on the second ground, it is unnecessary to examine the first contention urged by Sri Rama Jois. We, therefore, examine only the second contention urged by him. ( 7 ) THE undisputed facts of the case are that the Chief Justice of the high Court made the order promoting the petitioner to the post of bench Clerk on 17th March, 1958 and accorded to him the scale of pay of Rs. 150-10-250. The Chief Justice, with the prior approval of the governor, refixed the pay of the petitioner with effect from the date on which the petitioner was promoted to the post of Bench Clerk in the scale of pay of Rs. 250-450. It is also undisputed that the order made by the Chief Justice on the 10th of February, 1969, refixing th pay of the petitioner in the scale of Rs. 250-450, after obtaining the previous approval of the Governor, has not been modified or varied by the Chief justice. It is also not disputed that the State Government, which had accorded approval for such refixation, has also not modified or withdrawn the order according such approval. No steps have been taken by any one, including the State, to challenge the order of the Chief Justice re- fixing the pay of the petitioner in the scale of Rs. 250-450. In other words, the Chief Justice and the Governor have both taken the view that the petitioner is entitled to the scale of Rs. 250-450, which resulted in refixation of the pay of the petitioner by the Chief Justice by his order dated 10th of February, 1969. It is in this background that we have to examine as to whether the first respondent, the Accountant General, could go behind the order of the Chief Justice and refuse to honour the bills of the petitioner claiming emoluments on the basis of the refixation of pay by the Chief Justice. ( 8 ) IN support of his contention, Sri Rama Jois relied upon the Supreme court in M. Grrumoorthy v. The Accountant General, Assam and Nagaland, AIR. 1971 SC. 1850. The relevant portions of paragraphs 8, 9 and 10, to which it is necessary to focus our attention, may be extracted as follows :"8. ( 8 ) IN support of his contention, Sri Rama Jois relied upon the Supreme court in M. Grrumoorthy v. The Accountant General, Assam and Nagaland, AIR. 1971 SC. 1850. The relevant portions of paragraphs 8, 9 and 10, to which it is necessary to focus our attention, may be extracted as follows :"8. The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of the 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 is 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. Cl (1) read with Cl (2) of Art. 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under cl (1 ). The approval of the Governor, as noticed in the matter of rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. . . . (9) Thus Art. 229 has a 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 htm. . . . (9) Thus Art. 229 has a 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 htm. Apart from the special situation contemplated by the proviso to clause (1) the only exception is that the Governor's approval must be sought to the extent the rules relate to salaries, leave or pension. This exception; it is abundantly clear, had 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. (10) When a post was created with the approval of the government in the High Court and the pay scale was sanctioned for it, its inclusion in the rules was a mere formality. . . . . . . " ( 9 ) THE aforesaid observations were made by their Lordships of the Supreme Court in the context of the action taken by the Accountant General not to issue pay slip even though the appointment was made by the chief Justice with the prior approval of the Governor to the post of private Secretary to the Chief Justice. It is in that context that their lordships of the Supreme Court observed that the order made by the chief Justice, with the prior approval of the Governor, even though the same was not reduced into formal rules, was binding on the Accountant general and that the same was required to be given effect to unless the order of the Chief Justice was successfully challenged in appropriate proceedings in accordance with law. The principle laid down by the supreme Court clearly governs the facts of this case as the appointment and refixation of pay of the petitioner in the scale of Rs. 250-450 was made by the Chief Justice after obtaining the prior approval of the governor in this behalf. The order of the Chief Justice not having been successfully challenged by any one in any appropriate proceedings, the accountant General had no option but to honour the bills presented in accordance with the fixation of pay of the petitioner in the scale of rs. 250-450. The order of the Chief Justice not having been successfully challenged by any one in any appropriate proceedings, the accountant General had no option but to honour the bills presented in accordance with the fixation of pay of the petitioner in the scale of rs. 250-450. Having regard to the pronooncement of the Supreme Court, it is clear that the Accountant General has no competence to question the correctness of the order of the Chief Justice while dealing with the bills presented by the petitioner in accordance with the order made by the Chief Justice promoting the petitioner and according to him the pay scale of Rs. 250-450. As the order of the Chief Justice was made under art. 229 of the Constitution, and with the prior approval of the Governor, the Accountant General was not competent to go behind the said order and take the view that the petitioner is not entitled to the scale of rs. 250-450, and that he is only entitled to the lower scale of Rs. 150-250. As the Accountant General has acted illegally in refusing to honour the bills of the petitioner, this Writ Petition is entitled to succeed. For the reasons stated above, we allow this Writ Petition and issue a writ in the nature of mandamus directing the fist respondent, the accountant General in Mysore, Bangalore, to draw and disburse the difference in salary to which the petitioner is entitled to when bills in that behalf are presented on the basis of the fixation of the pay of the petitioner in the scale of Rs. 250-450, subject to the fulfilment of other conditions. No costs. --- *** --- .