M. v. K. Nambiar VS State of Kerala — 1991 DIGILAW 523 (KER)

Judgment :- When the Chief Justice of the Kerala High Court extends the period of service of an employee of the High Court beyond the date of superannuation in exercise of his power under Article 229 of the Constitution, read with Rule 35 of the High Court Service Rules, 1970 and Rule 60(a) Part I of Kerala Service Rules, deposit require the concurrence of the State Government, is the question to be decided in this Original Petition. 2. The petitioner, with 25 years of service in Army was appointed as Security Officer of the Kerala High Court as per the order of the Chief Justice dt.16-1-1978. He joined duty on 23-1-1978. His probation was declared with effect from 23-1-1980 and he was appointed as a full member of the High Court Service. Petitioner's date of birth being 30-6-1931, he was to retire from service on 30-6-1986 at the age of 55 years. Since there was deficiency in the period of his service for claiming pension, the petitioner made a request for extension of his service from 1-7-1986 to 31-12-1987. The High Court recommended the above request of the petitioner and the Government granted sanction for the same. The second respondent, Accountant General, sought a clarification from the Government as to whether the petitioner was eligible for increment that falls within the period of his extended service. The Government informed the 2nd respondent by Ext. P1 communication dated 5-9-1986 that he is entitled to get all service benefits including increment during the extended period of his service. 3. The petitioner was to retire after the period of extension on 31-12-1987. Since no suitable candidate was available for being appointed as Security Officer, the Chief Justice decided to continue the service of the petitioner until further orders in the interest of the administration of the High Court. Ext. P2 proceeding dt. 31-12-1987 was therefore issued extending the period of service of the petitioner from 1-1-1988 until further orders. The 1st respondent was informed about the order issued by the Chief Justice under Ext. P3 communication dated 8-2-1988. In the above communication, it was made clear that the Government was requested to extend the period of service of the petitioner at the first instance from 1-7-1986 to 31-12-1987 without proper examination of the power of the Chief Justice under Art.229 of the Constitution. P3 communication dated 8-2-1988. In the above communication, it was made clear that the Government was requested to extend the period of service of the petitioner at the first instance from 1-7-1986 to 31-12-1987 without proper examination of the power of the Chief Justice under Art.229 of the Constitution. On a proper interpretation of the power given to the Chief Justice under Art.229 of the Constitution read with Rule 35 of the High Court Service Rules and Rule 60(a) of Part I of the Kerala Service Rules, it was found that there was no necessity to get orders from the Government to extend the period of service of an employee of the High Court. The petitioner retired from service on 31-12-1988. 4. Since the petitioner completed 10 years of service on 22-1-1988, he was entitled to a higher grade as provided under G.O.(P) No. 515/85/Fin dt.16-9-1985. He submitted Ext. P4 representation before the Registrar of the High Court for taking steps to grant him the higher grade with effect from 23-1-1988. The Registrar, in his turn, recommended the petitioner's request under Ext. P5 letter dt.4-5-1988 to the Government. The petitioner made a further application, Ext. P6, for surrender of leave. The above request was accepted by the High Court under proceedings dt.29-8-1988. A copy of the proceedings is produced as Ext. P7. On receipt of the above communication, the Accountant General again addressed a communication, Ext. P8 dt.30-8-1988 to the State Government seeking a clarification whether the petitioner is entitled to all service benefits such as leave and increments during the period of his extended service from the afternoon of 31-12-1987. The Registrar of the High Court thereupon addressed Ext. P9 letter dt.14-9-1988 to the State Government, explaining the position that the petitioner is entitled to all benefits during the extended period from 1-1-1988 to 31-12-1988, as in the case of the first term of extension, namely, from 1-7-1986 to 31-12-1987. He requested the State Government to give necessary directions to the Accountant General. 5. After the retirement of the petitioner, High Court again addressed a communication dt.19-12-1988 to the Government requesting for necessary directions to be given to the Accountant General to disburse all service benefits to the petitioner, including increment and leave surrender during the period of extension of his service. This was followed by yet another communication dt.24-12-1988 by the Registrar. 5. After the retirement of the petitioner, High Court again addressed a communication dt.19-12-1988 to the Government requesting for necessary directions to be given to the Accountant General to disburse all service benefits to the petitioner, including increment and leave surrender during the period of extension of his service. This was followed by yet another communication dt.24-12-1988 by the Registrar. Three months thereafter, the petitioner received a communication from the 2nd respondent informing him that unless the Government issues orders regularising his service for the period from 1-1-1988 to 31-12-1988, he can be issued retirement benefits like pension, gratuity etc., taking into consideration only the service upto 31-7-1987. On receipt of the above, the Registrar addressed letters both to the State Government as well as to the 2nd respondent on 7-4-1989 pointing out the incorrect stand taken by the Accountant, General. But, the 2nd respondent persisted in his view that unless concurrence is granted by the State Government, the petitioner is not entitled to the pensionary benefits during the period from 1-1-1988 to 31-12-1988. In spite of a further letter from the High Court on 4-8-1989, explaining the legal position that sanction of the Government is necessary when the Chief Justice is exercising his power under Art.229 of the Constitution, no action was taken by the 2nd respondent to disburse the pensionary benefits to the petitioner, which necessitated the petitioner in approaching this Court under Art.226 of the Constitution. 6. The correspondence between the respondents is dealt with in detail in order to show that from 8-2-1988 onwards, the High Court was endeavoring to impress upon the first respondent the legal position regarding the scope of the power of the Chief Justice under Art.229 of the Constitution read with Rule 35 of the High Court Service Rules and Rule 60(a) Part I of K.S.R. and that this is a relevant aspect to be taken into consideration in moldings the relief to be granted to the petitioner, by way of interest for delayed payment. 7. A counter-affidavit has been filed by the 1st respondent in which the definite stand taken is taken is that the action of the High Court in extending the service of the petitioner from 1-1-1988 until further orders was not in order, especially since the original order of extension was issued by the Government. 7. A counter-affidavit has been filed by the 1st respondent in which the definite stand taken is taken is that the action of the High Court in extending the service of the petitioner from 1-1-1988 until further orders was not in order, especially since the original order of extension was issued by the Government. It is further submitted that even if the Chief Justice of a High Court is competent to re-employ a retired Government servant, the above principle cannot be applied in the case of extension of service, since grant of extension of service carries along with it, automatically the benefits of full pay and allowances, right to earn leave and counting of such service and emoluments for pensionary benefits. According to the 1st respondent, the provisions contained in Rule 35 restricts the power of the Chief Justice and therefore no order can be issued extending the service of an employee of the High Court, which would make him eligible for benefits of full pay and allowances, earned leave and pensionary benefits. 8. Even in the counter-affidavit, the first respondent reiterates its stand that since for the first period of extension the matter was referred to the Govt., there is no justification for the Chief Justice to order granting extension for a subsequent period without referring the matter to the Government. 9. The contentions raised by the first respondent are untenable in the light of the provisions contained in Art.229 of the Constitution and Rule 35 of the High Court Service Rules. Art.229(1) of the Constitution provides that "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." Cl.(2) of Art.229 provides: "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 pension, require the approval of the Governor of the State". Rule 35 of the High Court Service Rules, 1970 reads as follows: "35. Pay, allowances, leave salary, pension and other conditions of service. -- to Travancore Service Regulations, the Cochin Service Regulations, the Kerala Service Rules, The Government Servants Conduct Rules, the General Provident Fund (Kerala) Rules, the Stat Provident Fund Rules (Travancore), the Provident Fund Rules (Cochin), the Fundamental Rule the Madras Leave Rules, Madras Pension Code, the General Provident Fund (Madras) Rules, the Madras Contributory Provident Fund Pension Insurance Rules, 1950 and the rules relating the rx of the services for the time being in force applicable to the officers under the rule making control of the Governor or Government of Kerala, as the case may be shall, subject to these rules, govern the members of the service in the matter of their pay, allowance, leave, leave salary, pension and other conditions of service: Provided that except with regard to salaries, allowances, leave and pension, the Chief Justice shall exercise the powers vested in the Governor or the Government under any of the aforesaid rules: Provided further that the Chief Justice shall specifically issue orders sanctioning the grant of the scales of pay and allowances to the members of the service in accordance with those sanctioned by the Government." Thus, under Rule 35, the provisions contained in Kerala Service Rules are made applicable to the employees of the High Court also and the Chief Justice is to exercise powers vested in the Governor or the Government in respect of matters covered by Kerala Service Rules, except with regard to salaries, allowances, leave and pension. 10. Rule 60(a) of Part I K.S.R. provides as follows: "Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years. He may be retained after this date only with the sanction of Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances." It is this power of the Government given under Rule 60(a) which has been exercised by the Chief Justice in retaining the petitioner in service from 1-1-1988 to 31-12-1988. Merely because the Government's concurrence was sought for retaining the petitioner in service from 1-7-1987 to 31-12-1987, it cannot be contended by the first respondent that the Chief Justice has no power to issue an order retaining in service, an employee of the High Court beyond the age of 55 years as provided under Rule 60(a). The High Court had explained to, the first respondent repeatedly that concurrence was sought from the Government by a mistake, without properly examining the power of the Chief Justice, under Art.229 of the Constitution read with Rule 35 of the High Court Service Rules. The above position has been reiterated in the counter-affidavit filed by the Registrar of the High Court. Therefore, the contention taken by the 1st respondent is only to be rejected. 11. The contention raised by the first respondent that the Chief Justice has no power to issue an order retaining an employee of the High Court beyond the age of 55, in the interest of the administration of the High Court, cannot be accepted at all. The importance of the provision contained under Art.229 of the Constitution has been taken note of by the Supreme Court in M.Gurumoorthy v. The Accountant General, Assam and Nagaland and others, AIR 1971 SC 1850, in the following manner: "The unequivocal purpose and obvious intention of the framers of the Constitution enacting Article 229 is that in the matter of appointments 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 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. Clause (1) reads with Clause (2) of Article 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 Clause(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. Even under the Government of India Act the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chief Justice of the Court under S.242(4) readwith S.241 of the Government of India Act, 1935. By way of contrast reference may be made to Article 148 relating to the Comptroller and Auditor General of India. Clause (5) provides: "Subject to the provisions of this Constitution and of any law made by Parliament the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General." 9. It is significant that the Comptroller and Auditor General unlike the Chief Justice of a High Court has not been given the power to prescribe the conditions of service of persons serving in the Indian Audit and Accounts Department in the same terms as are embodied in Art.229(2). There the Rules have to be made by the President after consultation with him. Article 187 may also be noticed. Clause (2) of that Article provides that the legislature of a State may by law regulate the recruitment and conditions of service of persons appointed to the secretarial staff of the House or Houses of legislature. There the Rules have to be made by the President after consultation with him. Article 187 may also be noticed. Clause (2) of that Article provides that the legislature of a State may by law regulate the recruitment and conditions of service of persons appointed to the secretarial staff of the House or Houses of legislature. Clause (3) is to the effect that until provision is made under clause (2) the Governor may, after consultation with the Speaker of the legislative assembly or the Chairman of the Legislative Council, make rules regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the Assembly or Council. Thus Article 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 him. 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 rule 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." 12. The power of the Chief Justice of a High Court to issue an order relaxing certain provisions ofthe rules in favour of an employee of the High Court in order to make him eligible for obtaining pension, came up for consideration before the High Court of Punjab, in KidarNathv. Punjab Government and another, MR 1964 Punjab 285. The power of the Chief Justice of a High Court to issue an order relaxing certain provisions ofthe rules in favour of an employee of the High Court in order to make him eligible for obtaining pension, came up for consideration before the High Court of Punjab, in KidarNathv. Punjab Government and another, MR 1964 Punjab 285. Rule 29 of the High Court Establishment (Appointment and Condition of service) Rules, 1952 issued by the Chief Justice of the High Court of Punjab in exercise of the powers conferred under Art.229 of the Constitution after previous reference to the Governor, read as follows: "(29)(1) Subject to any special provisions contained in these rules, 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 the Punjab shall regulate the conditions of service of persons serving on the staff attached to the High Court: Provided that the powers exercisable under the said rules and orders by the Governor of the Punjab or the Government of the Punjab or by any authority subordinate to the Governor of Government shall be exercisable by the Chief justice or by such person as he may, by general or special order, direct. (2) Any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the High Court shall be decided by the Chief Justice." The Chief Justice of Punjab High Court had issued an order in favour of an employee of the High Court who retired on 14th August, 1956 that the periods of his unpaid service between 24th November, 1930 and the 11th August, 1940 be treated as continuous temporary service as he had actually worked in the service. It was also ordered that he be allowed to add half of the en tire service, both paid and unpaid, to his qualifying service after excluding therefrom the period of extraordinary leave under Rule 7(1) of S. IV of the New Pension Rules, and thus removing a hardship suffered by the employee in the matter of loosing a fair amount of pension. In issuing such an order, the Chief Justice exercised his power under 'note' 2 to Rule 1.8 of the Punjab Civil Services Rules, Vol. In issuing such an order, the Chief Justice exercised his power under 'note' 2 to Rule 1.8 of the Punjab Civil Services Rules, Vol. I, Part I, issued by the Governor under the proviso to Art.309 of the Constitution of India. 13. Rule 1.8 together with the 'Notes' are extracted below: "The power of interpreting, changing and relaxing these rules is vested in the Finance Department. Note 1. Communications regarding the interpretation and alteration of these rules should be addressed to the Finance Department through the Administrative Department concerned. Note 2. Where the Finance Department is satisfied that the operation of any of these rules regulating the conditions of service of State Government servants or any class of such Government servants, causes undue hardship in any particular case, it may by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. The expression "State Government Servants" means all persons whose conditions of service may be regulated by rules made by the Governor of Punjab under the proviso to Article 309 of the Constitution." The Government of Punjab took the view that only the Finance Department of the Government has got the power to relax the rules in favour of the employee of the High Court and the order passed by the Chief Justice was without jurisdiction. A Division Bench of the Punjab High Court rejected the above contention. It was held that in view of Art.229 of the Constitution, which vests complete control in the Chief Justice over the persons serving on the staff of the High Court and the express provisions of Rule 29 of the High Court Establishment Rules, there can be no doubt that the power to relax the rule in order to meet any hardship as contemplated by Rule 1.2 could be exercised only by the Chief Justice. The situation which is available in the present case is more or less the same, which was considered by the Division Bench of the Punjab High Court. I am in respectful agreement with the view taken by Their Lordships of the Punjab High Court. The situation which is available in the present case is more or less the same, which was considered by the Division Bench of the Punjab High Court. I am in respectful agreement with the view taken by Their Lordships of the Punjab High Court. There cannot be-any doubt that the Chief Justice is the only authority who can issue an order retaining an employee of the High Court after he attained the age of 55 years as provided under Rule 60(a) of Part I K.S.R. in the light of the power given under Art.229 of the Constitution read with Rule 35 of the High Court Service Rules, 1970. 14. An attempt is made in the counter-affidavit filed by the first respondent to draw a distinction between an order of re-employment and an order passed under Rule 60(a) of Part I K.S.R. and to contend that an order passed under Rule 60(a) retaining an employee beyond the age of 55 years would come within the exception in the proviso to Rule 35. The above contention is also untenable. An order passed under Rule 60(a) retaining an employee beyond the age of 55 years may make him eligible to salary, allowances, leave, pension etc., in respect of the period in which he was thus allowed to work after attaining the age of 55 years. The salary, allowances, leave etc., of an employee of the High Court will be affected if he is suspended, dismissed, removed or compulsorily retired from service. But still, it is only the Chief Justice who has got the power to suspend, dismiss, remove or compulsorily retire an employee of the High Court. (Vide Chief Justice of Andhra Pradesh and another v. LV.A. Dikshitulu and other, AIR 1979 SC 193) 15. In the light of the above discussions, it has to beheld that Chief Justice is fully competent to extend the period of service of the petitioner from 1-1-1988 to 31-12-1988. No concurrence is necessary from the first respondent in enforcing the above order issued by the Chief Justice. Respondents land 2 are bound to grant the petitioner, revised pension, grade promotion, increments and leave salary due to him in accordance with the rules, taking into account, his service for the period from 1-1-1988 to 31-12-1988 also. 16. No concurrence is necessary from the first respondent in enforcing the above order issued by the Chief Justice. Respondents land 2 are bound to grant the petitioner, revised pension, grade promotion, increments and leave salary due to him in accordance with the rules, taking into account, his service for the period from 1-1-1988 to 31-12-1988 also. 16. In the result, there will be a direction to the respondents to take necessary steps to grant the petitioner revised pension, grade promotion, increments and leave salary on the basis that Vie continued in service till 31-12-1988. Arrears due to the petitioner on the above count will be paid within a period of two months from today, with interest at the rate of 12% per annum from the due date to the date of payment. The original petition is allowed as above.