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2008 DIGILAW 82 (JK)

P. S. Jamwal v. State Of J. &K.

2008-03-26

NIRMAL SINGH

body2008
1. The questions of paramount importance which are required to be considered in this petition are whether a proposal or a rule framed by the Chief Justice and sent by the High Court of a State on behalf of the Chief Justice to the Governor or the State Government, as the case may be, for its approval, can be rejected straightway and whether an employee working in a judicial system is to be treated differently than the one working in any other department of the State and whether the administrative set up of the State is free to adopt a discriminator approach in considering the genuine claim of such an employee. While considering these aspects, the first thought which came in my mind was that the Judiciary in our country should have the financial powers so that such like matters as involved in the case in hand are not referred to the State authorities because more often than not such matters do not reach a just conclusion and their fate remains undecided resulting in nothing but a great frustration to the employees working in the judicial system and sometimes, inaction on the part of State authorities in not considering the proposals sent by the High Courts, results in paralysing the whole judicial working/setup. 2. The facts in the present case are that the petitioner who is a Law Graduate and also possessing the qualification of M.Lib Science is working as a Reader in the scale of Rs. 7500-12000/-. He was initially appointed as Chief Librarian in the High Court vide Order No. 722 dt. 16th of Nov 87 in the pay scale of Rs. 1650-2800/- later on revised to Rs. 6700-10700/-. The said post in terms of the Jammu and Kashmir Libraries (Gazetted) Service Recruitment Rules, 1991(SRO 16 of 1991 dt. 8th of Jan 91) is a gazetted post. Subsequently, vide SRO 234 of 1991 dated 30th of July91, the post of Chief Librarian was placed in the pay scale of Rs. 2200-75-2800-100-4000/- and this effect was given from 1.1.1986. The said pay scale has been now revised to Rs. 8000-275-13500/-. 3. The grievance of the petitioner is that as he came to be appointed as Chief Librarian in the pay scale of Rs. 1650-2800 (un-revised), later on revised to Rs. 6700-10700/-, which pay scale was then revised to Rs. 2200-4000 (unrevised) now revised to Rs. The said pay scale has been now revised to Rs. 8000-275-13500/-. 3. The grievance of the petitioner is that as he came to be appointed as Chief Librarian in the pay scale of Rs. 1650-2800 (un-revised), later on revised to Rs. 6700-10700/-, which pay scale was then revised to Rs. 2200-4000 (unrevised) now revised to Rs. 8000-13500, he was not given the benefit in terms of SRO 234, so far as declaring the post of Chief Librarian against which he came to be directly recruited and placing him in the grade of Rs. 8000-13500/-. It is stated that as the said SRO was given effect to from 1st of Jan 86, he should also have been given the benefit of pay scale of Rs. 8000-13500/- w.e.f., the date of his appointment i.e., 16th of Nov87 in terms of the SRO aforementioned. It is stated that a representation in this regard was submitted by the petitioner before the authority concerned on 6th of March `92. The case of the petitioner was recommended by the said authority vide May92 addressed to the Secretary to Government, Law Department, Srinagar, but despite that the case of the petitioner has not been considered. It is further stated that thereafter number of reminders were sent by the Registrar (General), High Court of J&K to the authorities concerned for consideration of the case of the petitioner in terms of the SRO aforementioned but nothing has been done by the respondent authorities. A direction is thus sought to respondents to consider the claim of the petitioner for according him benefit in terms of SROs 16 and 234 of 1991. 4. Notice in this case was issued to respondents on 12th of Feb07. Thereafter, number of opportunities were given to the respondents for filing objections. On 19th of July07, last opportunity of four weeks was given to respondents for filing objections but despite that needful has not been done by them. 5. Heard learned counsel for the parties. 6. Admitted. Petition taken on board for final disposal. 7. As indicated above, the respondents, despite number of opportunities, have not chosen to file objections. Therefore, in the absence of any rebuttal, the pleadings are to be accepted. 8. 5. Heard learned counsel for the parties. 6. Admitted. Petition taken on board for final disposal. 7. As indicated above, the respondents, despite number of opportunities, have not chosen to file objections. Therefore, in the absence of any rebuttal, the pleadings are to be accepted. 8. Learned counsel for the petitioner at this stage submitted that in similar set of circumstances in case reported as Haroon Rashid Lone v. State of J&K and ors, 2002(2) SLJ 419, the petitioner who was working as Librarian in the High Court of Jammu and Kashmir against the grade of Rs. 5000-8000 was granted benefit of higher pay scale in terms of SRO 291 of 1978 which provided that after completion of five years of service, next higher scale is to be released in favour of Librarians. It is submitted that the in pursuance to the said judgment, the petitioner in the aforesaid case who was junior to the petitioner herein was placed in the same pay scale against which the petitioner was working i.e. 6700-10700/- w.e.f., Sept93. It is thus submitted that the petitioner who was appointed as Chief Librarian in the pay scale of Rs. 6700-10700/- which was his initial pay scale could not have been denied the benefit SRO 234 of 1991, referred to above, vide which the post of Chief Librarian was placed in the pay scale of Rs. 8000-13500 (Rs. 2200-4000 un-revised) w.e.f., Jan86. 9. Before appreciating the contentions raised by the learned counsel for the petitioner and the assertions made in the writ petition, it will be necessary to narrate certain relevant facts. 10. The High Court of Jammu and Kashmir with the approval of the Governor of the State has framed "Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 (here-in-after referred to as the Rules). In the Schedule attached to these rules, there is no mention of the post of Chief Librarian. However, in terms of Government Order No. 681- LD(A) of 1987 dt. 10th of July87, two posts of Chief Librarian were created in the High Court of J&K, against which the petitioner herein being one of the candidate, came to be appointed on 16th of Nov87, in the pay scale of Rs. 1650-2800 (unrevised), which was revised to Rs. 6700-10700/-. The post of Chief Librarian has been described as a Gazetted post vide SRO 16 of 1991 dt. 8th of Jan91. 1650-2800 (unrevised), which was revised to Rs. 6700-10700/-. The post of Chief Librarian has been described as a Gazetted post vide SRO 16 of 1991 dt. 8th of Jan91. Thereafter, vide SRO 234 of 1991 dt. 30th of July91, the pay scales as recommended by U.G.C. were allowed in favour of certain category of employees including the Chief Librarian and it was placed in the grade of Rs. 2200-4000/- with retrospective effect from 1.1.1986. The said pay scale was later on revised to Rs. 8000-13500/-. It was on the basis of above SROs that the petitioner made a representation to the Registrar General of the High Court and thereafter the case of the petitioner was referred to the Government for necessary approval, which however, was not done. The said reference made by the Registrar General should have been accorded consideration with great respect by the State authorities as any communication addressed by the Registrar General of the High Court is to be treated to have been made with the approval of Chief Justice. 11. Under Article 229 of the Constitution of India, Chief Justice of a High Court is the supreme authority in the matter of appointments of the High Court Officers and servants. This Article also confers rule making power on the Chief Justice for regulating the conditions of service of officers and servants of the High Court. Therefore, when under the Constitution, the Chief Justice has the power to make rules to the above extent, then he can also prescribe the scale of salary payable for a particular post and this would also include the power to revise the scale of pay. However, since such a rule involves finances, it has been provided in the Constitution that it will require the approval of the Governor which in other words means, the State Government. 12. The object of Article 229 of the Constitution of India is to secure the independence of the judiciary, which is essential for the working of the democratic form of Government in this country. The Chief Justice of a High Court, therefore, has the absolute control over its staff, subject only to the limitations imposed by the Article itself, and free from interference by the Government. The Chief Justice of a High Court, therefore, has the absolute control over its staff, subject only to the limitations imposed by the Article itself, and free from interference by the Government. Article 229 of the Constitution reads as under: - 229(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 be 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 authorized 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, required 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, any fees or other money taken by the Court shall form part of that Fund." 13. The object of Article 229, as indicated above, is to secure the independence of the judiciary and this is not possible unless the authority to appoint the supporting staff with complete control over them is vested in the Chief Justice. The Chief Justice, thus is the sole authority for fixing the salaries etc. of, and controlling the High Court employees who are taken out of the purview of Article, 309 of the Constitution as has been held in Pradyat Kumar Dose v. The Honble The Chief Justice of Calcutta High Court, (1955)2 SCR 1331. 14. The Chief Justice, thus is the sole authority for fixing the salaries etc. of, and controlling the High Court employees who are taken out of the purview of Article, 309 of the Constitution as has been held in Pradyat Kumar Dose v. The Honble The Chief Justice of Calcutta High Court, (1955)2 SCR 1331. 14. In M. Gurumoorthy v. The Accountant General, Assam and Nagaland and others, AIR 1971 SC 1850, it has been held as under: - "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 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) read 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 Stale 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. 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) read with S.241 of the Government of India Act, 1935.........................................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 Governors 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." 15. Their Lordships of the Apex Court in the aforesaid ease further held that even when a post is sanctioned by the Government, it is only the Chief Justice who has the authority to prescribe the manner and method in which it is to be filled and the Government cannot make any interference in this regard. What has been observed in para 10 of the aforesaid judgment is being reproduced below: - "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 the rules was a mere formality. It was also held by him that the conditions laid down while sanctioning the post of selection grade stenographer in the letter of the Government dated August 6, 1958 that the procedure of recruitment should be on the same or similar lines as laid down in the Government Resolution dated October 22, 1955 came into conflict with the powers of the Chief Justice under Art.229 and if was so accepted by the Government itself in the letter dated April 27, 1959. His view finally was that the government had the authority to sanction the post. His view finally was that the government had the authority to sanction the post. But it could not interfere with the choice of the incumbent which undoubtedly was to be of the Chief Justice under Article 229 of the Constitution. We are inclined to concur with the reasoning and conclusion of Dulta J." 16. As under the Constitution, the Chief Justice has the power to make the rules regulating the conditions of service of officers and servants of the High Court, he can also prescribe the salary for a particular post and revise the scale of pay but since such a rule involves finances, as noticed above, it has been provided in the Constitution that it will require the approval of the Governor, which in other words, means the State Government. However, when such a rule is framed by the Chief Justice of the High Court and sent to the Governor or the State Governor, as the case may be, for approval, then keeping in view the spirit of Article 229 of the Constitution, approval should ordinarily and generally be accorded to such a proposal sent by the Chief Justice as has been laid down by the Apex Court in the case reported as State of Andhra Pradesh and anr. v. T. Gopalakrishnan Murthi and ors, AIR 1976 SC 123. 17. No doubt, the Governor or the State Government, as the case may be, cannot be compelled to grant approval to each and every proposal sent by the Chief Justice, but the same has to be looked into with great respect as the same is being sent by a high dignitary of the State and in case, the same is to be rejected, then reasons for not according approval respect as the same is being sent by a high dignitary of the State and in case, the same is to be rejected, then reasons for not according approval to the proposal or any rule framed by the Chief Justice have to be given by the State. What has been observed in this regard by the Apex Court in the case reported as Supreme Court Employees Welfare Association v. Union of India, JT 1989(3) SC 188, is being reproduced below: - "So far as the Supreme Court and the High Courts are concerned, the Chief Justice of India and the Chief Justice of the concerned High Court, are empowered to frame rules subject to this that when the rules are framed by the Chief Justice of the High Court relating to salaries, allowances, leave or pensions, the approval of the President of India or the Governor, as the case may be, is required. It is apparent that the Chief Justice of India and the Chief Justice of the High Court have been placed at a higher level in regard to the framing of rules containing the conditions of service. It is true that the president of India cannot be compelled to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions, but it is equally true that when such rules have been framed by a very high dignitary of the State, if should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted. If the President of India is of the view that the approval cannot be granted, he cannot straightway refuse to grant such approval, but before doing so, there must be exchange of thoughts between the President of India and the Chief Justice of India." 18. As to what action is expected from a State Government when recommendations are made by the Chief Justice of the High Courts was commented upon by the Apex Court in the case of High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and anr, JT 1998(2) SC 1, in the following words: - "Since, under the Constitution, Chief Justice has also the power to make rules regulating the conditions of service of the officers and servants of the High Court, it is obvious that he can also prescribe the scale of salary payable for a particular post. This would also include the power to revise the scale of pay. This would also include the power to revise the scale of pay. Since such a rule would involve finances, it has been provided in the Constitution that it will require the approval of the Governor which, in other words, means the Stale Government. This Court in State of Andhra Pradesh & Anr v. T. Gopalakrishnan Murthi & Ors, (AIR 1976 SC 123=1976(1), SCR 1008), had expressed the hope that "one should accept in the fitness of things and in view of the spirit of Article 229 that the approval ordinarily and generally, would be accorded." 19. So far as the authority of the Chief Justice of the High Courts is concerned, it would be apt to notice the observations made by the Apex Court in Ramesh Chand Paliwals case (supra). In paragraphs 22 and 23 it has been observed as under: - "22. The power available to the Chief Justice of the High Court, under Article 229 is akin to the power of the Article 146 of the Constitution, which is quoted below:- "146. Officers and servants and the expenses of the Supreme Court. - (1) Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the court as he may direct: Provided that the President 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 Union Public Service Commission. (2) Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the court authorized by the Chief Justice of India 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 president. (3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of India, and any fees or other money taken by the court shall form part of that Fund." 23. Just as Chief Justice of India is the supreme authority in the mailer of Supreme Court Establishment including its office staff and officers, so also the Chief Justice of the High Court is the sole authority in these matters and no other Judge or officer can legally usurp those administrative functions or power." 20. From the legal position noticed above, it can safely be held that the Chief Justice of a High Court is the supreme authority in the matter of appointments of officers and servants of High Court and any interference by the Government, except to the limited extent as provided in Article 229 of the Constitution, is not permissible. On a plain reading of Article 229 (2), as noticed above, it is apparent that the Chief Justice of a High Court is the sole authority for fixing the salary etc. of the staff of the High Court and the power conferred by the said Article on the Chief Justice is the legislative power and any rule made under clause 2 of Article 229 is a law. Therefore, the Government cannot fix the salary or authorize any particular pay scale of an employee of the High Court nor it can sleep over any proposal sent by the High Court for approval. In nutshell, it can be said that once a proposal is sent by the High Court and received by the State Government, the same should be looked into with great respect and approved within a reasonable time, which in my view, is not more than three months and in case, the State Government does not convey any objection to the said proposal by giving a valid reason within the aforesaid period, then the proposal would be deemed to have been approved. 21. In the present case, a perusal of the record shows that two posts of Chief Librarian were created in the High Court of Jammu and Kashmir vide Government Order No. 681-LD(A) of 1987 dated 10th of July87. The grade attached to these posts was Rs. 875-1400/-. 21. In the present case, a perusal of the record shows that two posts of Chief Librarian were created in the High Court of Jammu and Kashmir vide Government Order No. 681-LD(A) of 1987 dated 10th of July87. The grade attached to these posts was Rs. 875-1400/-. It was in pursuance to the creation of the two posts, later on advertised by the High Court, that the petitioner came to be appointed as Chief Librarian vide Order No. 722 at. 16th of Nov87 and was placed in the grade of Rs. 1650-2800/- referred to above, has been included in Gazetted Service. Subsequently, vide SRO 234 of 1991 dt. 30th of July91, the existing structure of pay scales attached to the post of Chief Librarian along with oilier posts was revised on the pattern, of U.G.C. Pay scale and the post of Chief Librarian was placed in the pay scale of Rs. 2200-4000 (unrevised) w.e.f. Jan86. The said pay scale was later revised to Rs. 8000-13500/-. In view of this revision of pay scale, the petitioner who was also working as Chief Librarian in the pay scale of Rs. 1650-2800/- (un-revised), should also have been accorded the benefit of grade of Rs. 2200-4000- (unrevised) as per SRO 234 of 1991. This is because the said SRO was given retrospective effect from Jan86 so far as the revision of pay scales was concerned. 22. The other aspect of the matter is that the petitioner, as noticed above, had moved a representation dt. 6th of March92, to the Registrar (General) of this court. The case of the petitioner was recommended for release of benefit in his favour as per SROs 16 of 1991 dt. 8th of Jan91 and 234 of 1991 dt. 30th of July91. This was done vide letter No. 1/NG dated 20th of May92, (Annexure E). Thereafter reminders were sent to the respondent authorities on 15th of Dec92 and 25th of Feb93. The Registrar (Genl.) of this court again vide its letter dt. 2nd of April93, addressed to respondent No. 1 sought an intimation as to what action has been done regarding the case of the petitioner. Again vide letter No. LD(A) 82/218 dt. Thereafter reminders were sent to the respondent authorities on 15th of Dec92 and 25th of Feb93. The Registrar (Genl.) of this court again vide its letter dt. 2nd of April93, addressed to respondent No. 1 sought an intimation as to what action has been done regarding the case of the petitioner. Again vide letter No. LD(A) 82/218 dt. 30th of Dec93, the Under Secretary to Government, Law Department, has requested the Secretary to Government, General Administration Department for doing the needful at an earliest regarding the placement of the petitioner in Gazetted Cadre in terms of SROs aforementioned. Vide communication dated 20th of June95, addressed by the Deputy Registrar (Admn.) to respondent No. 1, again a request seems to have been made regarding considering the case of the petitioner expeditiously. Thereafter, vide letter No. 3899/NG dt. 25th of July95, addressed by the Registrar (Genl.) of this court to respondent No. 1, requesting the said respondent to consider the matter regarding grant of benefit to the petitioner. A perusal of the aforesaid communications shows that the respondent authorities have been requested/reminded time and again regarding considering the case of the petitioner but they have slept over the matter and have adopted delaying tactics. As noticed above, the recommendation made by the Registrar General of the High Court is to be treated as a recommendation made on behalf of the Chief Justice of the High Court and the State authorities should have considered the matter with great respect but this having not been done, clearly speaks of the inaction on the part of State Government so far as the proposals sent by the High Court are concerned. 23. In view of the above, this petition is allowed. The respondents are directed to consider the case of the petitioner for his placement in the Gazetted cadre and release of pay scale of Rs. 8000-13500/- in terms of SROs 16 of 1991 and 234 of 1991. Let appropriate orders in this regard be passed within a period of three months from the date, a copy of this order is made available to the respondents by the petitioner. The petitioner shall be entitled to all the consequential benefits including the arrears of salary for a period of three years prior to the filing of the present writ petition. Disposed of accordingly.