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1988 DIGILAW 560 (ALL)

Chandrika Prasad Srivastava v. State of U. P

1988-05-20

ANSHUMAN SINGH, B.N.SAPRU

body1988
JUDGMENT Anshuman Singh, J. - The material facts which have given rise to this petition under Article 226 of the Constitution of India are slated hereinafter. 2. The petitioner was a Bench Secretary Grade - in this Court who has now retired. He was initially appointed to Lower Division Assistant. He appeared in the test for the selection of Bench Secretaries in the year 1963 and was selected as Bench Secretary in the said lest. Prior to 1965 the pay scale of translators and Upper Division Assistants was Rs. 120 - 300 whereas that of the Bench Secretary was Rs. 160 - 320. The Government appointed a Committee known as Pay Rationalisation Committee headed by Sri B. Mukherjee, an Ex - Judge of this Court to rationalise the pay scales of various departments in the State of Uttar Pradesh. The said Committee put the aforesaid categories of the employees of the Court, namely, Translators, Upper Division Assistants, Reference Grade Assistants and Bench Secretaries in one category and granted the same pay scale of Rs. 150 - 350, to all. In the year 1968 the employees of the High Court were granted parity with the pay scales of the employees serving in the U.P. Secretariat. Since the pay scale of the Translators of Secretariat was the same which was admissible to the Reference Grade Assistants and as such the pay scale of the Tanslators and Reference Grade Assistants fixed at Rs. 200 - 400 whereas the pay scale of Upper Division Assistants and Bench Secretaries at Rs. 200-450. As a result of the aforesaid new scales of pay the salary of one Shiva Nand Srivastava, Translator, was fixed at Rs. 400/ - in the year 1971, being maximum of the pay scale available to the Translators. Shiva Nand Srivastava was, however, later on promoted as Upper Division Assistant on 15.4.1971 and his pay scale in the Upper Division category was fixed at Rs. 410/ - . The pay scale of Shiva Nand Srivastava was fixed in accordance with the provisions of Rule 22 - B of the Financial Handbook in the Upper Division category. At the relevant period the petitioner was getting Rs.290/ - as pay. 410/ - . The pay scale of Shiva Nand Srivastava was fixed in accordance with the provisions of Rule 22 - B of the Financial Handbook in the Upper Division category. At the relevant period the petitioner was getting Rs.290/ - as pay. As a result of fixing the salary of Shiva Nand Srivastava in the Upper Division category he started getting higher salary than the petitioner in spite of the fact that the petitioner was senior to him in the Upper Division/Bench Secretary category. Rule 22 - B requires that while fixing the pay scale a cadre should be taken that the senior does not get less salary than his junior. 3. The grievance of the petitioner is that he was entitled to get the salary at least equal to Shiva Nand Srivastava inasmuch as he was senior to him in the Upper Division/Bench Secretary category. Not only the petitioner but there were many other Upper Division Assistants and Bench Secretaries, who were senior to Shiva Nand Srivastava. Therefore, they made a representation to the Hon'ble Chief Justice which was allowed and the salary of the petitioner as well as of others was stepped up and equated with Shiva Nand Srivastava on November 26, 1975/August 21, 1976. After accepting the claim of the petitioner and others, their salary was stepped up with effect from 15.4.1971 and the petitioner started getting enhanced (stepped up salary) from August 1976. Since the salary of the petitioner was stepped up with effect from 15.4.1971 he claimed arrears for the period 15.4.1971 to 17.8.1976 inasmuch as the salary of Shiva Nand Srivastava was fixed in the Upper Division category from 15.4.1971. The petitioner and others employees submitted a representation (annexure 'I' to the writ petition) claiming their arrears. The claim raised by the petitioner was accepted by Hon'ble Chief Justice and the Hon'ble Chief Justice was pleased to order that the arrears bills of the petitioner and other incumbents may be prepared and the Government be moved for fund through budget. Thereupon the office of the High Court in compliance with the order of the Hon'ble Chief Justice prepared the arrear bills and the Government was moved for fund vide D. 0. Letter No. 2078/Accts (A) 19.9.1981. Thereupon the office of the High Court in compliance with the order of the Hon'ble Chief Justice prepared the arrear bills and the Government was moved for fund vide D. 0. Letter No. 2078/Accts (A) 19.9.1981. After receipt of the bill the Government of Uttar Pradesh made certain quarries with regard to the claim raised by the petitioner and other employees which were replied by the High Court by letter No. 2749/Acctts (A) dated 23-12-1981. The State Government made further quarries with regard to the said bill and the quarries sought for were also replied by the High Court in September 1982. Though all the queries made by the State Government regarding the payment of arrears of bill of the petitioner were suitably replied and no further objection was raised yet the State Government has been sleeping over since September 1982 and no sanction has been accorded for the payment of the arrears of the petitioner. In view of inaction on the part of the State Government in withholding the sanction the petitioner was left with no option but to approach this Court in the instant writ petition in which a prayer has been made that this Court may be pleased to issue a writ, order or direction in the nature of mandamus directing the respondents to sanction the fund for the payment of arrears of the salary to the petitioner. 4. When the case was listed on 25-10-1983 the standing. Counsel made a statement before the Bench that no counter affidavit was proposed to be filed on behalf of respondent No. 2, the Registrar of the High Court and since Counter and Rejoinder affidavits have been exchanged between the petitioner and respondent No. 1 after admitting the writ petition the Bench directed the case to be listed for final hearing after three months. When the case was listed for hearing on 7.2.1984 a telex message received by the Standing Counsel sent by the Joint Secretary, Judicial Department, U.P. Government was placed before the Court on die basis of which a statement was made that the matter was engaging attention of the Government and the Government has requested the High Court for furnishing certain information and as such the hearing was again adjourned. The matter was again listed on 11-10-1984 for final hearing and on that date a Division Bench of this Court issued an interim mandamus commanding the State of U.P. to take a decision in regard to the sanction of Rs. 7,09,981.75 towards the arrears of salary of the Bench secretaries within two months or to show cause. Inspite of the interim mandamus issued by this court the respondents have not issued sanction for the payment of the aforesaid amount. 5. We have heard Sri S.N. Verm, learned Senior counsel for the petitioner, and Sri S.V. Goswami learned standing counsel for die State. Mr. Goswami, learned standing counsel appearing for the respondents, has urged that since Supreme Court Appeal No. 116 of 1976, The State of U.P. v. P.C. Lal and others in which the controversy was identical is pending in the Supreme Court of India, the hearing of the writ petition be deferred till the disposal of the aforesaid Supreme Court Appeal. We have perused the facts which gave rise to the Supreme Court Appeal and we find that the facts of the instant case and that of Supreme Court Appeal are different. In the case of P.C. Lal and others for stepping up their pay under Rule 22 - B of the Financial Handbook Volume II was rejected by the Hon'ble Chief Justice and they were aggrieved by the order of the Hon'ble Chief Justice and they filed a writ petition which was dismissed by a learned Single Judge. The special appeal filed by them against the order of the single Judge was allowed and the Suite of U.P. being aggrieved against the aforesaid judgment passed in special Appeal No. 17 of 1974 has preferred the aforesaid Supreme Court Appeal which is still pending. The most distinguishing feature of the present case is that the representation filed by the petitioner has been allowed by the Hon'ble Chief Justice and the said order has neither been challenged by any of the employees of the High Court nor by the State Government and as such we are of opinion that the writ petition can be disposed of without waiting for the decision of the Supreme Court Appeal No. 116 of 1976. 6. Mr. 6. Mr. S.V. Goswami, learned counsel appearing for the Government, has vehemently urged that the order passed by the Hon'ble Chief Justice dated November 26, 1975/August 21, 1976 is subject to proviso to clause (2) of Article 229 of the Constitution of India and contended that the order passed by the Hon'ble Chief Justice is not in consonance with the requirement laid down by the Parliament in the aforesaid proviso and as such the order passed by the Hon'ble Chief Justice allowing the representation is not valid. We have carefully perused the counter affidavit filed on behalf of the State by Bhagwan Swarup Srivastava,Upper Division Assistant, Judicial (High Court) section, U.P. Secretariat Lucknow, in which no such plea has been raised. However, since the said plea is a pure question of law, we have permitted the same to be raised and would also like to examine the case from that angle as well. For appreciating the said argument raised on behalf of Government by the learned standing counsel it it pertinent to quote the language of Article 229 of the Constitution of India in extenso: "229. Officers and servants and the expenses of High Courts - (1) Appointments of Officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the court shall be appointed to any office connected with the court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the court or by some other judge or officer of the court authorised by the Chief Justice to make rules for the purpose : Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. (3) The administrative expenses of a High Court , including all salaries, allowances and pension payable to or in respect of the officers and servants of the court, shall be charged upon the consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund." The proviso to clause (2) of Article 229 of the Constitution of India provides that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. The appointment of officers and servants of a High Court exclusively lies within the domain of the Hon'ble Chief Justice of the High Court or such other Judge or officer of the Court as directed by him. Clause (2) provides that the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officers of the court authorised by the Chief Justice to make rules for the purpose subject to the provisions of any law made by the Legislature of the State. A reading of the aforesaid provision as a whole indicates that after the Chief Justice fixes the salary, all allowances, leave or pension the same has to be approved by the Governor i.e.,the State. In the instant ease the marked difference is that the Hon'ble Chief Justice has passed orders to . enforce Fundamental Rule 22 - B (2) (i) (a) and he has not refixed the salary as contended by the standing counsel. In our opinion since the order passed by the Hon'ble Chief Justice under Fundamental Rule 22 - B (2) (i) (a) is an order of stepping up of the salary and of enforcing the salary, the order passed by the Hon'ble Chief Justice does not amount to refixation of the salary and as such no prior approval as contemplated under Article 229 (2) was warranted in the facts of the case. It is relevant to refer to Fundamental Rule 22 - B (2) (i) (a) for deciding the controversy, which is as under: "22 - B (1) ....................................... (2) ............................................ It is relevant to refer to Fundamental Rule 22 - B (2) (i) (a) for deciding the controversy, which is as under: "22 - B (1) ....................................... (2) ............................................ (2) (i) If as a result of fixation of initial pay under sub - rule (1) there arises an anomaly, namely that the rate of pay admissible to a Government servant on the higher post would exceed that of another Government servant senior to him in the lower grade or scale and promoted earlier to another identical post the pay of the latter shall with effect from the date of promotion or appointment of the former be stepped up by the Government to amount admissible to the former as pay fixed under Sub - rule (1) subject, however, to the following conditions - (a) the junior and the senior Government servants belong to the same cadre and the posts to which they have been promoted or appointed are identical and in the same cadre." A perusal of the aforesaid rule leaves no room for doubt that if a junior officer of the same rank is promoted to a higher rank earlier than the person promoted latter though senior to another identical post the pay of the senior employee though promoted latter shall be the same and would be stepped up from the date to which the junior employee was promoted. The only rider placed is that the junior and the senior Government servants should belong to the same cadre and posts to which they have been promoted or appointed are identical and in the same cadre. 7. The learned standing counsel contended that even under Fundamental Rule 22 - B (i) (a) the petitioner was not entitled to arrears as Shiva Nand Srivastava and the petitioner do not belong to the same cadre. In order to refute the said contention Mr. S.N. Verma, learned Senior Advocate appearing for the petitioner, placed reliance on a decision of this court in Madan Mohan Saran and another v. Hon'ble the Chief Justice and others, (1975) SLR 889 in which it has been held that the establishment is one comprising a single cadre. In order to refute the said contention Mr. S.N. Verma, learned Senior Advocate appearing for the petitioner, placed reliance on a decision of this court in Madan Mohan Saran and another v. Hon'ble the Chief Justice and others, (1975) SLR 889 in which it has been held that the establishment is one comprising a single cadre. We would like to quote paragraph 5 of the said judgment which will clinch the issue and reads: "One matter which may be dealt with at the outset is as to the nature and patter of the office establishment of our High Court. The petitioner's contention in paragraphs 13 to 16 of the petition is that the establishment has a multiplicity of cadres., each with a different method of recruitment; different sanctioned strengths of posts whether permanent or temporary; different scales of pay; different nature of work, and even different avenues of promotion. Thus according to him, there are separate cadres of Superintendents, U.P. As. Reference clerks (herein after referred to as R.C.) Lower Division Assistants (hereinafter referred as L.D. As), Translators and Revisers. He has further contended that the facts that the establishment consists of separate cadres is one which was recognised by Sir Shah Muhammad Sulaiman, the then Chief Justice, on October 18, 1933 and by a Judges Committee on September 2, 1937, on Administrative File No. VC - 35 and by respondent No. 2 on December 5, 1962 and by the Judges Committee on December 16, 1965, on Administrative File No. VC - 119. This contention of the petitioner has been controverted in paragraphs 8 to 13 of the joint counter affidavit of respondents Nos. 1 and 2. According to them, there is a single establishment with a single cadre, though for administrative convenience, the work of the establishment is divided into four separate departments called (1) General office (Comprising Administrative, Judicial, Accounts, Criminal, Copying, Stamp Reporters and Zibrary Sections), (2) Translation Department, (3) Bench Readers Department and (4) Personal Assistants and Stenographers Department, each department having different nomenclature of posts, in different scales of pay, with different nature of work, but still constituting only one establishment. The word "cadre" has at times been used in official correspondence and notings but their contention is that the mere wrong or loose use can have no effect upon the true factual and legal position that the establishment is one comprising a single service and a single cadre. There appears to be substance in this contention. It appears that the then Provincial Government framed Draft Rules under Section 241 (2) (b) read with Section 242 (4) of the Government of India Act, 1935, to regulate the conditions of service of the Staff attached to the existing High Court in Allahabad and sent the same for comments to that High Court on March 15, 1940, (see page 315 of the paper book), Draft Rule 2 had two provisos. The first proviso was as follows : "Provided that the Chief Justice may from time to time leave unfilled or hold in abeyance any vacant post without entitling a person to any compensation, or may, after obtaining the sanction of the Governor, increase the strength of the staff attached to the High Court or transfer a post from one cadre to another". (Emphasis added). The High Court changed the proviso by deleting the words" or transfer a post from one cadre to another" and the reason given w;as that" the different sections in the office arc not to be regarded as separate cadres". Likewise, Draft Rule 5 relating to rates of pay, Draft Rules 7, 8 and 9 (corresponding to existing Rules 8, 9 and 10) relating to promotion also contained the word "cadre" but the word was deleted from these rules also. The Governor accepted the Rules, as modified by the High Court by G.O.No. 680/VH - 140 - 936, dated April 13, 1946, and as a result of that the Allahabad High Court (Conditions of Service of Staff) Rules, 1946 (hereinafter referred to as the Rules) came into force with effect from April 29, 1946. The opening clause, and rules 4, 5, 7 (1), 7 (2), 11, 12, 13, 14 (a) and 16, and the provisos to Rules 2, 10 and 12 (7) of the Rules refer to all the posts as one entity by comprehensive term" staff attached to High Court", Rules 8, 9 and 10 refer to the staff as officials of one or other department. Rule 2 says that the "staff attached to the High Court shall consist of the posts specified in the first column of the schedule hereto." The scheme behind the Rules thus also points to the fact that the establishment is one, comprising a single cadre. The question whether there is only one or there are separate and distinct cadres, came up for decision in Abdul Khair v. Hon'ble the Chief Justice (Special Appeal No. 312 of 1970) decided on August 26, 1970) (Alld.), and S.N. Dwivedi, J. (as he then was) speaking for the court, observed thus : - "It is true that in correspondence the word "cadre" has often been used. The word "grade" has also been used. The word class has perhaps never been used. It seems to us that the word "cadre" has been used loosely in correspondence. There are no cadres in the High Court staff. The Rules do not use the word "cadre". Indeed, the word "cadre' was used in the draft rules but it was deleted at the instance of the court from the finalised rules. The staff of the High Court constitute one establishment. Services are classified according to posts, and grades or classes. There is also classification of posts and grades or classes into departments." The Special Leave Petition (Civil) No. 1414 of 1972 against this decision was dismissed by the Supreme Court on August 14, 1972, we are in agreement with the above observations, and see no reason to take a different view. The learned counsel placed reliance upon the definition of the word "cadre" in F.R. 9 (4). The U.P. Fundamental Rules were made by the Governor in exercise of his powers under Section 241 (2) (b) of the Government of India Act, 1935. Under F.R. 9 (4) the word "cadre" 2 means the strength of a service or a part of a service sanctioned as a separate unit. The argument is that there can be a separate cadre for a part of a service also and since various posts under various nomenclatures have been sanctioned by the Governor, therefore, posts under a particular nomenclature must be regarded as posts borne on a separate cadre. We are not inclined to agree with the contention. The argument is that there can be a separate cadre for a part of a service also and since various posts under various nomenclatures have been sanctioned by the Governor, therefore, posts under a particular nomenclature must be regarded as posts borne on a separate cadre. We are not inclined to agree with the contention. In the first instance, the proposition statement of the establishment of the Chief Court in Oudh, as sanctioned by C.O. No.508/VII - 800 (59)/1947 Judicial (Civil) Department, dated February 18, 1948, and the Rules. Both speak of one establishment and though the grades of pay are different, they are all shown as the strength of a Single Service in the establishments of the then two existing High Courts. Secondly, even though they may be regarded as a part of service, there is nothing to show that they have been sanctioned as separate units. Thirdly, the Fundamental Rules came into force with effect from April 1, 1942, whereas the Rules came into force four years later. The rule - making authority, namely, the Governor must have been aware of the definition of the word "cadre" in the Fundamental Rules when he approved the Rules and accepted the proposal of the High Court that the service constituted one service and the word "cadre" should be deleted from all rules wherein it occurred. In the circumstances therefore, we are of the view that the office establishment, of our court is one establishment having a single cadre and it is wrong to say that there are several cadres in that service." On the strength of tire aforesaid observations of a Division Bench of this Court we reject the contention raised on behalf of the Government that the petitioner belonged to a different cadre than that of Shiva Nand Srivastava and as such his claim was liable to be rejected on the said ground. We tire, therefore, of the definite view that the order passed by the Hon'ble Chief Justice was a valid order under fundamental Rule 22 - B (2) (i) (a). We tire, therefore, of the definite view that the order passed by the Hon'ble Chief Justice was a valid order under fundamental Rule 22 - B (2) (i) (a). As regards the approval under the proviso to clause (2) of Article 229 we would like to refer to a decision of the Punjab and Haryana High Court in Satpal Singh and others v. The Union of India and others, 1977 Lab IC 438 in which it has been held that the Chief Justice has not to seek the approval of the Governor again and again in the matters regarding salaries, allowances, leave or pensions of the High Court staff after prior reference to the Governor of the Rules framed under Article 229 of the Constitution. The facts of the said case also appeared to be identical to the facts of the instant case. In view of the said fact the stand taken by the State Government appears to be ridiculous that the Hon'ble Chief Justice should have obtained prior approval of the State Government before allowing the representation. It appears that in the case of Satpal Singh (supra) the High Court Establishment (Appointment and conditions of Service) Rules 1952, which were framed by the Chief Justice after prior reference to the Governor, have all along been acted upon and made applicable to the High Court staff, and further that Rule 29 thereof clearly provides that the rules and orders for the time being in force and applicable to Government servants of corresponding classes in the service of the Government of Punjab shall regulate the conditions of service of persons serving on the staff attached to the High Court. It was in this context that the High Court said that the Chief Justice was not required to seek approval of the Governor again and again and at this stage we would like to refer to a portion of the judgment of the said case, which is as under: "In the light of the above discussion I have no hesitation to hold that once the 1952 rules framed under Article 229 of the Constitution, taking care of salaries, allowances, leave or pensions of salaries, allowances, leave or pensions of the High Court Staff, have all along been acted upon, the Chief Justice has not to seek the approval of the Governor again and again in such matters, and that whenever there is a revision of pay-scales etc., of the Punjab Government employees, the same would be made automatically applicable to the corresponding or equated categories of staff of the High Court, and that the reference to the Governor or the President as contemplated by the proviso to clause (2) of Article 229 read with Article 231 (2) of the Constitution will come in only when the Chief Justice wants to create some special post which does not exist on the cadre of the High Court, or if the Chief Justice wants to give any special grade or pay to any High Court employee, which special grade or pay does not exist for any corresponding, comparable or equated post in the Punjab Civil Secretariat." 8. We are, therefore, of definite view that the Hon'ble Chief Justice while stepping up the salary of the petitioner under fundamental Rule 22 - B (2) (i) (a) is not required to obtain prior approval of the State Government. The most significant feature of the case is that the order passed by the Hon'ble Chief Justice dated November 26, 1975/August 21, 1976 has not been challenged by the State Government and they have submitted to the order passed by the Hon'ble Chief Justice and they cannot assail that. From the totality of the circumstances and the facts of the case we are of definite view that the Suite of Uttar Pradesh has wilfully and illegally deprived the petitioner of the payment of his salary which was stepped up by the Hon'ble Chief Justice as back as 1975 and 1976 for which a bill for sanctioning a sum of Rs. 7,09,981.75 has been sent by the High Court and all the quarries made by the State Government have been suitably replied by the High Court as back as in the year 1982. The State Government has wilfully withheld the sanction of the said amount and as such we are of the view that the Government should be directed to accord sanction within a period of one month from the date of service of a certified copy of the judgment of this court and we are also of the view that the petitioner should be paid interest on the amount due to him which has been illegally withheld inspite of the order passed by Hon'ble Chief Justice at the rate of 12 per cent per annum from August 21, 1976 till the date of payment of the amount. 9. The relief which we are granting to the present petitioner shall also be granted to other incumbents whose salary was stepped up under the orders of the Hon'ble the Chief Justice dated November 26, 1975/August 21, 1976, and whose bill for arrears was also prepared and submitted to the State Government inasmuch as the bill was for an amount of Rs. 7.09,981.75 which includes the arrears of salary to the petitioner and other incumbents. 10. In the result the petition succeeds and is allowed. We direct the respondents to sanction the fund for the payment of the arrears of salary of the petitioners and other incumbents within a period of one month from the date of presentation of a certified copy of the order passed by this Court and we further direct the respondents to pay interest on the sum due to the petitioner and other incumbents as arrears of salary at the rate of 12 per cent per annum from August 21, 1976, till the date of payment, the petitioner is also entitled to his costs.