J. N. Misra v. State of Uttar Pradesh — 1987 DIGILAW 1116 (ALL)

JUDGMENT A. N. Dikshita, J.:- The petitioners J. N. Misra and S.K. Srivastava in their capacity as Secretary and Joint Secretary of the Private Secretaries and Personal Assistants Brotherhood have on behalf of the Private Secretaries and Personal Assistants filed this petition under Article 226 of the Constitution of India for issuing a writ of mandamus in the nature of a direction commanding the State Govt. to pass formal orders for the payment of dress allowance to the Private Secretaries and Personal Assistants. 2. In a narrow compass the controversy relates to the denial of payment of dress allowance to the petitioners by the State Govt. though a rule was framed as early as 1933 by the High Court prescribing wearing of a particular dress by them. 3. The case of the petitioners as is revealing from the records is that the Judges of this Court in their meeting held on 1(-4- 1933 framed certain rules (hereinafter referred to as the 1933 Rules) regulating the dress to he worn by the Advocates, their clerks, their Chapras is, Bench Readers and Judgment Writers. High Court peons etc. Part I of the 1933 Rules provides for the wearing of the dress by the Advocates, their clerks and Chapras is. Part 11 of the 1933 Rules which is relevant and which relates to the wearing of certain dress by Bench Readers and Judgment Writers is reproduced below : "II. (1) Bench Readers and Judgment Writers should have black coats and any kind of trousers." Part 111 of the 1933 Rules lays down certain norms to maintain the decorum in the Court Rooms. 4. It is necessary to mention here that the Bench Readers are now known as Bench Secretaries and the persons who used to be the Judgment Writers are now known as Private Secretaries and Personal Assistants. 5. The object and scheme of the 1933 Rules manifestly reveal the preservance of the decorum and dignity in Courts and also to maintain high standards of discipline. 6. In the past Courts of Kings and Monarchs used to be adorned by uniformed and liverided personal and courtiers. It enriched the spelndour and gaiety though such uniforms and liveries reflected discipline. With the passage of time the law courts attained their own importance and splendour and gaiety was substituted by solemnity and dignity. 6. In the past Courts of Kings and Monarchs used to be adorned by uniformed and liverided personal and courtiers. It enriched the spelndour and gaiety though such uniforms and liveries reflected discipline. With the passage of time the law courts attained their own importance and splendour and gaiety was substituted by solemnity and dignity. The dress which used to be an index of ones character now characterises the symbolised institutions like judiciary. 7. Our scriptures have spirited the importance of dress which is inherent in discipline. With such glorious traditions of our past and considering the discipline as inherent in judicial system the Courts have regulated their functioning by prescribing various norms and dress etc. The intention apparently is to preserve the dignity and the decorum of the Courts. Solemnity and dignity are inherent in the functioning of the Courts. Considering the importance of the dress indicative of discipline in the Court, the 1933 Rules were framed. 8. Conscious of maintaining the independence of the High Courts, S. 106 of the Government of India Act, 1915, provided the jurisdiction of the High Courts. Section 106, sub sec. (1) of the Government of India Act, 1915, recites as under : "106. Jurisdiction of High Courts. (1) The several High Courts are Courts of record and have such jurisdiction, original and appellate. including admiratty jurisdiction, in respect of of fences committed on the high seas and all such powers and authority over or in relation to the amdinistration of justice, including power to appoint clerks and other ministerial officers of the Court, and power to make rules for regulating the practice of the Court, as are vested in them by Letters Patent, and, subject to the provisions of any such Letters Patent, all such jurisdiction, powers and authority as are vested in those courts respectively at the commencement of this Act." 9. The 1933 Rules thus flow from the power and jurisdiction of the High Court in view of the foregoing provision. It is provided therein that the Bench Readers and the Judgment Writers should wear a black coat and any kind of trouser. The 1933 Rules have continued in force till this date except for a relaxation which was made by an order of the Chief Justice dated 21-8-1951, which was to the effect that : "A Reader, if he puts on an open coat should wear a black tie. The 1933 Rules have continued in force till this date except for a relaxation which was made by an order of the Chief Justice dated 21-8-1951, which was to the effect that : "A Reader, if he puts on an open coat should wear a black tie. The coat should be black. If he dresses himself in Achkan, he should have a black Achkan. Our Readers used to wear gowns before but in view of the scarcity of black materials and high prices, I do not think we should require to do so now." This position had continued in law when the Government of India Act, 1935, was enforced as will be seen from the perusal of S. 213 of the Government of India Act, 1935. The Government of India Act, 1935, by S. 292, provided for the continuance in force of the existing laws in India. The words 'existing law' will obviously include the 1933 Rules made by this Court. 10. The United Provinces High Courts (Amalgamation) Order. 1948. which, in its turn, by Article 9 provided that the law in force immediately before the appointed day with respect to practice in the High Court in Allahabad shall apply with relation to the new High Court. 11. The Constitution of India by Article 225 provides that subject to the provisions of the Constitution and to the modifications of any law of the appropriate legislature made by virtue of power conferred on the legislature by the Constitution of India, the jurisdiction of, and the law administered in, in any existing High Court and the respective powers of the Judges thereof in relation to the Administration of Justice including the power to make rules shall be the same as it was immediately before the Constitution. 12. When the 1933 Rules were framed in the year 1933 the economic depression and financial strain had not enveloped the populace. The Readers and the Judgment Writers of this Court fully complied with the spirit and intent of the 1933 Rules. But in the years to come economic strains besieged the above employees and inflation which was around hit them adversely. It became difficult for them to meet the two ends and the prosperity of the year 1933 withered and was substituted in gruesome financial misery to such employees. Demands and agitations became the rule of the day for financial emancipation. But in the years to come economic strains besieged the above employees and inflation which was around hit them adversely. It became difficult for them to meet the two ends and the prosperity of the year 1933 withered and was substituted in gruesome financial misery to such employees. Demands and agitations became the rule of the day for financial emancipation. The Government itself alive to the task resorted to take measures in order to redress the grievance of its employees. The State Government appointed a Pay Rationalisation Committee (1964-65) which submitted its report in the year 1965. Before the Pay Rationalization Committee a demand was made by the employees for the grant of a dress allowance. Paragraph 15 of the report of the pay Rationalization Committee runs as follows: 13. The Government of Uttar Pradesh by its Resolution No. G-1-1474/10-137-1965. Lucknow Dated 29-7-1965, carefully considered the report of the Pay Rationalization Committee and generally accepted its recommendations subject to the modifications mentioned in the Regulation (with which we are not concerned). The opening part of the resolution runs as follows : 14. A perusal of para 15 of the report of the Pay Rationalization Committee will show that the Pay Rationalization Committee recommended that the following four categories of the employees should he either provided a uniform or protective clothing : (i) Such employees who are in continuous contact with the public and should be identified as such; (ii) such employees who are compulsorily required to wear the uniform: (iii) such employees whose dress are spoiled on account of nature of their work or who require protective clothing to meet the hazards of service: (iv) such employees who should necessarily appear smart and clean. 15. As the denial of dress allowance was still in vogue and in view of the various anomalies and also the demand of the employees for better scales of pay the State Government appointed a second Pay Commission (1979-80). The relevant paragraphs in the report of the Second Pay Commission are paragraphs 8.76, 8.77.8.86, 8.90 and 8.91, which are reproduced below : 16. We have translated the opening part of paragraph 8.91. It goes as follows We have carefully considered various proposals and have discussed them in detail with Senior Officers and Employees Unions. We have also examined various proposals as mentioned in Clause 8.76 and the generally accepted guiding principles. We have translated the opening part of paragraph 8.91. It goes as follows We have carefully considered various proposals and have discussed them in detail with Senior Officers and Employees Unions. We have also examined various proposals as mentioned in Clause 8.76 and the generally accepted guiding principles. We feel that the list of those categories of employees who are entitled to free uniform or uniform allowance, is very exhaustive and is generally in consonance with the accepted guiding principles. Even then, we feel that free uniform/uniform allowance be also given to the following categories of employees." 17. The Government of Uttar Pradesh, by its Resolution No. Ve.Aa. 1590/X-42(M)- 1980, Lucknow, dated 29-9-1981, after a detailed consideration of the report of the Second Pay Commission, accepted its recommendations subject to the modifications mentioned in the Resolution (with which again we are not concerned). The relevant opening part of the Resolution runs as follows : 18. When the demand for the payment of dress allowance remained continuously denied representations were made on behalf of the petitioners for the redress of their grievance to the State Government. The High Court agreeing with the genuineness of the demand in view of the compulsion of the 1933 Rules wrote to the State Government for making suitable orders for payment of dress allowance. However, this request of the High Court for payment of dress allowance to the petitioners was turned down on the ground that such grant would result in other repercussions, namely, grant of such allowance to the other employees like Readers and Stenographers or other staff of the subordinate Courts. It may be conveniently mentioned here that the reason accorded by the State Government appears to be fallacious for the singular reason that the Readers and Stenographers of the subordinate courts are not required to wear a particular dress prescribed by the High Court. 19. Compellingly the petitioners have filed the instant petition under Article 226 of the Constitution for a direction to the State Government commanding it to pass formal orders for the payment of dress allowance to them. 20. Counter-affidavit and rejoinder- affidavit have been exchanged and the petition is being disposed of by us at the admission stage as provided under the second proviso to R. 2 of Chapter 22 of the Rules of the Court. 21. Learned counsel for the parties have been heard at length. 22. 20. Counter-affidavit and rejoinder- affidavit have been exchanged and the petition is being disposed of by us at the admission stage as provided under the second proviso to R. 2 of Chapter 22 of the Rules of the Court. 21. Learned counsel for the parties have been heard at length. 22. It has been submitted on behalf of the petitioners that they are bound and are required to wear the dress prescribed by the 1933 Rules and any non-compliance of the said Rules by not wearing the prescribed dress would constitute misconduct and invite disciplinary action against then). I t has further been urged that in view of the acceptance of the report of the Pay Rationalisation Committee as well as the report of the Second Pay Commission by the State Government the petitioners are entitled to receive the required dress allowance. 23. The stand of the respondents is apparently reflected in the submissions made on their behalf by the learned Standing Counsel. The learned Standing Counsel has submitted that the 1933 Rules have no statutory force as they are merely administrative directions. The submission being wholly fallacious deserves to be discarded. The 1933 Rules were obviously framed by the High Court by virtue of the powers vested in the High Court under sub- section (I) of S. 106 of the Government of India Act, 1915. 24. The power to frame rules to regulate its own practice and procedure was inherent in the chartered High Courts by virtue of their nature, origin, function, history and tradition having been recognised and granted to the Supreme Court at Madras by Charter of 1800 and having been recognised. preserved, maintained and referred to in various subsequent enactments and charters namely Charter Act of 1961, Letters Patent, Government of India Act 1915, Government of India Act 1935 and Article 225 of the Constitution. The power of the High Court to frame rules for regulating its own procedure has been exercised for a long time and been acquiesced in by all parties concerned including the Government and the Legislature. As it is well settled hence it is not necessary to recite the powers under which the Rules are made and the order/rules can be justified if . can be correlated with the power vested in the authority framing such rules. 25. As it is well settled hence it is not necessary to recite the powers under which the Rules are made and the order/rules can be justified if . can be correlated with the power vested in the authority framing such rules. 25. The learned Standing Counsel then sought to submit that in view of the order of the Chief Justice dated 21-8-1951 quoted above the 1933 Rules can no longer be deemed to be subsisting any more. Perhaps unmindful of the fallacy in this submission it has been ignored that no power vested with the Chief Justice to alter the 1933 Rules framed by the High Court. In fact the Chief Justice had only exercised his administrative power in permitting wearing of Achkan etc. looking to the national outlook and this was done while exercising the administrative power. The intent and spirit of the 1933 Rules was preserved by the Chief Justice. 26. In our opinion the rules recited above prescribing dress clearly embody the true spirit and explain succinctly the reasons for it. These rules were made and authenticated in the Judges' Meeting of the Court. The order of the Chief Justice dated 21-8-51 does not differ from the essence of the matter but in the way bear the stamp of authentication. While perusing this order it is evident that there is no formal declaration of the denial of the Court's mind which framed 1933 Rules. 27. The attack to the 1933 Rules did not cease here as it was consciously felt- that unless the 1933 Rules are eliminated it would he difficult to survive the submissions. It has been submitted by the learned Standing Counsel that by virtue of the provisions of clause (b) of the proviso to sub-section (4) of S. 242 of the Government of India Act, 1935, the 1933 Rules made by the High Court would be deemed to be invalid or in any way non- existent. Recourse has been sought to similar provisions as contained in Article 229(2) of the Constitution of India. Recourse has been sought to similar provisions as contained in Article 229(2) of the Constitution of India. The thrust of this submission is that clause (b) of the proviso to sub-section (4) of section 242 of the Government of India Act, 1935, as well as Article 229(2) of the Constitution required the approval of the Governor in so far as they related to the salaries, allowances, leave or pension and since the approval of the Governor had not been obtained and is wanting the 1933 Rules would not survive. We are unable to agree with such an incomprehensible submission in view of the fact that when the 1933 Rules were framed the Government of India Act, 1915, was in force. At that time there was no provision in the Government of India Act, 1915, corresponding to or similar to the provisions of clause (b) of the proviso to sub-section (4) of S. 242 of the Government of India Act, 1935. Moreover, the 1933 Rules did not provide for the grant or sanction of any salary, allowance, leave or pension. Only a prescribed dress was provided by the rules to be worn in Courts by the persons mentioned in the 1933 Rules. The 1933 Rules did not provide for the grant of a Dress Allowance and moreover at that time there was no requirement for obtaining the approval of the Governor. It would have been wholly permissible while framing such rules to provide for the grant of a Dress Allowance as then there was no such requirement to obtain the approval of the Governor on account of financial implications. Suffice it to say that in view of the above the 1933 Rules have statutory force and are not merely administrative directions. 28. In the instant case, the demand of the employee has got a legal footing and it is because of the action of the Government in accepting the reports of the Pay Rationalization Committee and the Second Pay Commission. The demand is that because a dress is prescribed, the employees, by virtue of the action of the Government in accepting the reports of the Pay Rationalisation Committee and the Second Pay Commission, are entitled to the grant of a Dress Allowance. 29. The demand is that because a dress is prescribed, the employees, by virtue of the action of the Government in accepting the reports of the Pay Rationalisation Committee and the Second Pay Commission, are entitled to the grant of a Dress Allowance. 29. The learned Standing Counsel then submitted that the State Government while accepting the recommendations of the Second Pay Commission did not, in its Resolution dated 29-9-81, say that the High Court employees who were claiming the benefit of the Dress Allowance, were entitled to receive the Dress Allowance. 30. It is further urged that the State Government has not prescribed any Dress Allowance and as such the petitioners could not get the Dress Allowance. The submission deserves to be spurned. 31. The paragraphs from the reports of the Pay Rationalization Committee and the Second Pay Commission extracted in this judgment show that the reports were accepted by the State Government subject to the modifications mentioned in the Government Resolutions. There was no modifications in respect of the employees, like the petitioners before us. 32. We are satisfied that the petitioners fall within the categories of the employees mentioned in sub-paragraphs (1) and (2) of paragraph 8.76 of the report of the Second Pay Commission as the Court staff are in continuous contact of the public and they should be identified as employees of the Court and secondly because under the 1933 Rules it is mandatory on their part to wear the prescribed dress. 33. It is true that after the acceptance of the recommendations the Government was required to pass orders in respect of different categories of employees prescribing the Dress Allowance but that is a duty which the State Government has failed to perform. It cannot be successfully urged on behalf of the State Government that though certain employees are entitled to receive a Dress Allowance by virtue of the acceptance of the reports of the Second Pay Commission, they , become dis entitled because the Government has failed to pass orders prescribing the rate of Dress Allowance for them. If the Government fails to pass orders granting the Dress Allowance, the employees can certainly approach this Court to direct the Government to fix the appropriate Dress Allowance as their right to receive the Dress Allowance has crystalized by virtue of the acceptance of the report of the Second Pay Commission. 34. If the Government fails to pass orders granting the Dress Allowance, the employees can certainly approach this Court to direct the Government to fix the appropriate Dress Allowance as their right to receive the Dress Allowance has crystalized by virtue of the acceptance of the report of the Second Pay Commission. 34. In the case of Purshottam Lai v. Union of India, AIR 1973 SC 1088 the question was as to whether certain employees were entitled to get the benefit of the Pay Commission's report which had been accepted by the Central Government. The Supreme Court in paragraph 15 of the judgment observed as follows "15. Mr. Dhabar contends that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine which categories of employees should be taken to have been included in the terms of reference. We are unable to appreciate this point. Either the Government has made reference in respect of all Government employees or it has not. But if it has made a reference in respect of all Government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all Government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned." 35. This case is an authority for the proposition that the action of the Government in denying the benefit of the recommendations of the Pay Commission's report which had been accepted, while granting it to other employees violates the rights granted to the employees denying the benefit by Articles 14 and 16 of the Constitution of India. 36. We are of the view that by acceptance of the Second Pay Commission's report. in so far as the recommendations of the Second Pay Commission are regarding the payment of Dress Allowance, the provisions of Dress Allowance become incorporated into the conditions of service of the petitioners and they are entitled to ask for a direction from; the Court that they should be paid an' allowance to be determined by the State Government. 37. We. therefore. reject the argument of the learned Standing Counsel that because the State Government has not specified the Dress Allowance, the petitioners are not entitled to get a Dress Allowance. 37. We. therefore. reject the argument of the learned Standing Counsel that because the State Government has not specified the Dress Allowance, the petitioners are not entitled to get a Dress Allowance. We further' reject the argument of the learned Standing Counsel that the State Government while accepting the report of the Second Pay Commission did not. in so many words, specify the amount of the Dress Allowance and as such the petitioners are not entitled to receive the Dress Allowance. The failure on the part of the State Government in performing its duty to prescribe the amount of the Dress Allowance cannot defeat the rights of the Private Secretaries and the Personal Assistants to get a Dress Allowance. No person can take advantage of his own default. 38. Learned Standing Counsel then submitted that this Court would have no powers to issue such a writ of mandamus to direct the State Government to exercise its discretion in a particular manner. The submission suffers from a basic fallacy. High Court under Article 226 of the Constitution of India has the power to issue to any person or authority in appropriate cases any Government to which it exercises jurisdiction, directions, orders or writs including writs in the nature of habeas corpus, mandamus, quowarranto or certiorari or any of them. Article 226 of the Constitution of India is designedly couched in wide language in order not to confine the powers conferred by Article 226 of the Constitution. In the case of Comptroller and Auditor General v. K. S. Jagannathan AIR 1987 SC 537 the Supreme Court has held in para 20 the powers of the High Court to issue necessary writs while exercising jurisdiction under Article 226 of the Constitution. It is thus clear and there is no doubt that this Court has power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and to give necessary directions to the State Government where it failed to exercise its obligation or discretion on irrelevant considerations by ignoring the relevant considerations and material that the Pay Rationalization Committee as well as the Pay Commission have approved of such a Dress Allowance. Apparently the State Government is frustrating the object of 1933 Rules and is ignoring the reports of the Pay Rationalization Committee as well as the Pay Commission. Apparently the State Government is frustrating the object of 1933 Rules and is ignoring the reports of the Pay Rationalization Committee as well as the Pay Commission. It is imperative that in such cases it would be fit and proper for this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India to issue a writ of man damusora writ in the nature of mandamus or to pass any order and give directions to the State Government to grant dress allowance to the petitioners. It would be wholly appropriate to prevent injustice resulting to the petitioners and where there is a denial of such justice, this Court is competent to pass an order or to give directions which the Government should have passed or given had it properly and lawfully exercised its discretion. 39. Learned Standing Counsel the submitted that the grant of dress allowance to the petitioners would involve heavy financial strain to the exchequer and may even permit other employees of the subordinate judiciary to raise such a demand. We do not think that we should absolve ourselves from our constitutional obligations which have also been recognised by the highest Court of the land to deny the dress allowance on such ground of financial strain which may be felt by the State Government. Moreover, dress allowance is given to other employees of the State Government who are required to wear uni form or dress. The 1933 Rules provide for the wearing of the dress by the petitioners. G ranting Dress Allowance to one category of employees who are required to wear a uniform of dress prescribed and to deny the same to other categories of employees though the Rules prescribe for such wearing of dress would be discriminatory. 39A. We are thus clearly of the view that the petitioners have made out a very formidable case for the grant of Dress Allowance to them. However, we are now faced with the situation, in view of the findings recorded above that the petitioners are entitled to receive the Dress Allowance, as regard the quantum of such Dress Allowance for which a writ of mandamus has to be issued. More so in view of the fact that the Dress Allowance has not been prescribed by the State Government nor have they accepted the position that the petitioners are entitled to receive such Dress Allowance. More so in view of the fact that the Dress Allowance has not been prescribed by the State Government nor have they accepted the position that the petitioners are entitled to receive such Dress Allowance. Anyhow it is obvious that a writ of mandamus has to be issued to the State Government to determine the Dress Allowance but meanwhile an immediate relief as regards the quantum of Dress Allowance has to be given to the petitioners. 40. We cannot lose sight of the fact that the State Government vide order dated 5-l-- 1984 prescribed dress allowance for the Judicial Officers working in subordinate courts at Rs. 75/- per month which has now been raised to Rs. 150/- per month by an order dated 25-9-1985 passed by the State Government. It can be conveniently added here that the Judicial Officers working in subordinate courts are also wearing a dress as prescribed by this Court and are receiving the allowance for the dress prescribed by this Court. The petitioners are required to wear similar dress except gown and band. A buttoned up coat/Achkan or coat with tie is the prescribed dress for them. We are as such of the view that the petitioners are thus entitled to a lesser amount towards the dress allowance as is being provided to the judicial officers of the subordinate courts. 41. We are thus clearly of the view that pending the formal orders passed by the State Government determining the dress allowance on amount of Rs. 100/- shall be paid to the petitioners as an interim measure with effect from 1-1-1987 and in case higher fixation of the dress allowance by the State Government that amount would also be paid to the petitioners and the Bench Secretaries with effect from 1-1-1987. 42. We are quite aware and wholly conscious of the fact that the Bench Secretaries of this Court have not joined themselves in this petition but their case is exactly identical and wholly similar to the case of the petitioners in so far as the grant of Dress Allowance to them is concerned and we see no reason as to why the Bench Secretaries should he deprived of such a Dress Allowance once they are also to wear the dress prescribed for them. They are, thus, equally entitled to get the Dress Allowance akin to the petitioners. 43. They are, thus, equally entitled to get the Dress Allowance akin to the petitioners. 43. We, therefore, allow the writ petition with costs and issue a writ of mandamus that : (a) within three months of today's date the State Government shall determine the exact amount of Dress Allowance payable to the Private Secretaries, the Personal Assistants and the Bench Secretaries of this Court. (b) as an interim measure and till the issue of the Government Orders regarding the payment of Dress Allowance, the Private Secretaries, the Personal Assistants and the Bench Secretaries shall be paid a Dress Allowance of Rs. 100.00 per month along with their current salary for the month of November 1987 payable in December 1987. This amount of Rs. 100/- per month shall be payable with effect from 1-1-1987. In case of a higher fixation by the State Government regarding dress allowance, the balance amount would also be paid to the petitioners and the Bench Secretaries with effect from 1-1-1987.