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2011 DIGILAW 1095 (KER)

K. Abraham Mathew v. State of Kerala

2011-11-08

P.R.RAMACHANDRA MENON

body2011
Judgment : 1. The rights and liberties flowing from the recommendation given by the “First National Judicial Commission”, which is otherwise called as ‘Shetty Commission’ and implementation of the same by the Government, based on the recommendation given by the High Court of Kerala in so far as it relates to the Judicial Officers who have been deputed to the High Court, is the subject matter involved in this writ petition. The sequence of events is as follows. 2. The petitioners herein who are working as ‘Senior District Judges’ in the Kerala State Higher Judicial Service were identified by the High Court, who were called upon to occupy the offices concerned and are continuing for the past few years. The First National Judicial Pay Commission (‘Shetty Commission’ for short) recommended that ‘special pay’ may be granted to the serving Judicial Officers who are having considerable administrative work ‘beyond the court hours’. The said recommendation was made, after analyzing the facts and figures with regard to the nature of duty, job specification, extent of work that is being discharged, various functions attached to particular posts and such other relevant aspects. the recommendation of the said expert body was in fact accepted by the Apex Court in All India Judges Association v. Union of India [(2002) 4 SCC 247]. There was a specific stipulation in the said recommendation of the ‘Shetty Commission’ that the High Courts will be liberty to evolve necessary principles, on the basis of which the ‘special pay’ was to be given to the different categories of the Judicial Officers in the State, more so, since the Commission was having no sufficient data/materials in this regard. It was in the said circumstance, that the matter was considered by the High Court of Kerala, on whose 1st recommendation Ext.P1 order dated 31.10.2006 was issued by the respondent/State, granting special pay to the different categories of Judicial Officers as aforesaid. 3. However, it was noted that the Government, while passing Ext.P1 order, did not say anything about the serving officers in the High Court on deputation. Since the case of the writ petitioners was also liable to be considered in terms of the Shetty Commission recommendation, the High Court considered the matter and sent Ext.P2 recommendation to the Government on 15.11.2006 to look into the matter and to sanction the benefit to the deputationists serving the High Court in different categories. Since the case of the writ petitioners was also liable to be considered in terms of the Shetty Commission recommendation, the High Court considered the matter and sent Ext.P2 recommendation to the Government on 15.11.2006 to look into the matter and to sanction the benefit to the deputationists serving the High Court in different categories. On receipt of the said recommendation, the Government, even without any proper application of mind, simply rejected the same as per Ext.P3, saying that the recommendation of the Judicial Commission was only in respect of Judicial Officers who were having considerable administrative work ‘outside the court hours’, which does not apply to the deputationists serving the High Court. 4. The fallacy in the above observation was highlighted by the High Court in the subsequent request/recommendation and sought to have the matter reconsidered as borne by Ext.P4 letter dated 28.02.2007. Meanwhile, the petitioners herein and three other similarly situated persons approached the Supreme Court by filing I.A. No.213 of 1989 in W.P.(C) No.1022 of 1989, which was pending consideration before the Apex Court, projecting the unjustified stand of the Government in sanctioning the benefits. After considering the matter, Ext.P5 order was passed by the Apex Court on 05.02.2008 which reads as follows: “This application is filed by six officers working in the cadre of District Judges in the Kerala State Higher Judicial service. It is contended that Judicial Officers working on deputation as Law Secretary, Registrar General, Registrars, Additional Registrar etc., are denied the benefit of Shetty Commission recommendations, merely because they are working on deputation. The stand taken by the State Government is not correct. The officers continue to be judicial officers even though they are on deputation. The State Government is, therefore, directed to pass appropriate orders within a period of eight weeks extending the benefits to those judicial officers who are working on deputation.” Obviously, a positive declaration/direction was given by the Apex Court, directing the Government to pass orders extending the benefits to those Judicial Officers who are working on deputation as well. Pursuant to the above order, the matter was brought to the notice of the Government by the High Court, seeking to have the same implemented as per Ext.P6 communication dated 24.05.2008. 5. Pursuant to the above order, the matter was brought to the notice of the Government by the High Court, seeking to have the same implemented as per Ext.P6 communication dated 24.05.2008. 5. In this context, it is also relevant to note that some other officers, who were working on the lower level as Deputy Director, Assistant Director of the Judicial Academy etc approached this Court by filing W.P.(C) No.5601 of 2009 seeking for similar benefits; which was disposed of directing the Government to consider the same and pass appropriate orders. Pursuant to the above verdict, the matter was considered by the Government who passed Ext.P7 order dated 20.05.2009, whereby the benefits as above were ordered to be given with effect from 01.09.2006 or from the date of deputation, whichever is later. The date of giving effect to the benefits payable to the persons concerned as referable to Ext.P1 original order dated 31.10.2006, wherein the benefits are ordered to be released with effect from ’01.09.2006’. 6. The correctness of fixation of the ‘effective date’ as 01.09.2006, was questioned later, referring to an earlier order dated ’21.03.2008’ passed by the Supreme Court in WP(C) No.1022 of 1989. As per the said order, it was made clear by the Apex Court that ‘other allowances’, which the Shetty Commission recommended were to be given effect to from ’01.11.1999’. This Court does not propose to examine, what the other allowances contemplated by the Supreme Court were, for the reason that the dispute as aforesaid was brought up for consideration before the Government, who considered the same and passed Ext.P8 order dated 03.04.2007 observing that, in the light of the above order of the Apex Court, the Government was pleased to order that the allowances sanctioned by the Government as per the recommendation of the Shetty Commission, will have retrospective effect from 01.11.1999. As such, the case of the petitioners is that though the recommendation made by this Court as per Ext.P2 was with reference to Ext.P1 order giving the benefits with effect from 01.09.2006, by virtue of Ext.P8 order dated 03.04.2007, the benefits were liable to be paid with effect from ’01.11.99’. The rest of the dispute is with regard to the implementation of the actual date. 7. The rest of the dispute is with regard to the implementation of the actual date. 7. The case of the petitioners is that, but for them serving in the High Court of Kerala, the benefits have been extended by the Government to all other officers serving on deputation. On projecting the grievance before this Court on the administrative side, the matter was considered and this Court, as per Ext.P9 communication dated 24.09.2009, pointed out the mistake to the Government seeking for immediate interference and rectification of the same. On receipt of the said letter, Ext.P10 reply was given on 19.09.2009 raising a strange proposition, that the Shetty Commission had not made any specific recommendation regarding the special pay for doing the administrative work and that the Commission had suggested only that the Courts may evolve a principle to allow special pay to Judicial Officers. It was stated that, eventhough the Shetty Commission had not recommended the benefit as such, the Government, as a matter of concern, had agreed to allow the special allowances to the Judicial Officers who are attending administrative work with effect from 01.09.2006 and hence the matter was not liable to reconsidered. 8. The petitioners contend that, by virtue of Exts.P11 and P12 Government Orders dated 23.03.2010 and 29.11.2010 respectively, the special allowance allowed to the Judicial Officers was renamed as ‘special pay’ and this being the position, there is absolutely no rhyme or reason in seeking to distinguish the nature of the actual allowance ordered to be paid by the Shetty Commission as conveyed by the Government vide Ext.P10. The quantum of ‘special pay’ was subsequently specified at the appropriate rates as given in Ext.P13 Government Order dated 29.11.2010; but the grievance of the petitioners with regard to the date of implementation, i.e. to pay the benefits given with effect from ’01.09.1999’ stood not considered or redressed. 9. Petitioners have given a list of officers working on deputation in the High Court from 01.11.1999 to 01.09.2006 as borne by Ext.P14. The petitioners have a further grievance that, by virtue of the nature of the duties being discharged by them, they are also entitled to have a separate allowance by name ‘compensatory allowance’ at the rate of `1,000/- per month, as sanctioned by the Government to other similarly situated persons, vide Ext.P16. The petitioners have a further grievance that, by virtue of the nature of the duties being discharged by them, they are also entitled to have a separate allowance by name ‘compensatory allowance’ at the rate of `1,000/- per month, as sanctioned by the Government to other similarly situated persons, vide Ext.P16. This benefit is over and above the ‘special pay’ discussed earlier and the petitioners have been stated as discriminated with regard to granting of the said benefits flowing from Ext.P16 as well. It is in the said circumstance that they have approached this Court, seeking for the different reliefs. 10. The 3rd respondent, the Secretary to Finance has filed a counter affidavit, seeking to sustain the stand of the Government saying that the Shetty Commission had not recommended the allowances of the nature as involved herein; that too, with reference to the date of payment as ’01.11.1999’. It is stated that Ext.P1 order was passed by the Government taking a lenient view, which cannot be claimed by the petitioners as a matter of right, except to the extent as specified therein, which stipulates that the benefits will be granted only with effect from 01.09.2006. It is also contended that as per Ext.P8 Government Order dated 03.04.2007, orders have been issued to give effect to “other allowances” which the Shetty Commission had specifically recommended with effect from 01.11.1999; whereas the special allowance for extra administrative work (‘special pay’) was not included among the ‘other allowances’ as above; which, in turn, was clarified by the Government as per letters dated 17.11.2007 and 21.01.2008. In support of the said contention, reference is made to paragraphs 19.143 to 19.147 etc. of the report of the Shetty Commission, which have been extracted in the counter affidavit. 11. It is further contended by the 3rd respondent that the version of the petitioners that all other Judicial Officers are receiving the special pay in respect of the extra administrative work with effect from 01.11.1999 is not correct and that granting of such benefits by the Accountant General was pursuant to a wrong exercise, without any regard to the specific order passed by the Government vide Ext.P1 to effect that the payment is only with effect from 01.09.2006. It is asserted that the verdict passed by the Supreme Court does not make it obligatory on the part of the Government to satisfy the benefit with effect from 01.11.1999. In paragraph 14 of the counter affidavit, an attempt has been made to contend that the ‘other allowances’ mentioned in Ext.P8 order dated 03.04.2007 included only (1) Medical allowances (2) Electricity and Water allowances (3) Sumptuary allowances (4) Robe allowances (5) News paper/Magazine allowances (6) CCA (7) Hill allowances and (8) Concurrent Charge allowances. This being the position, the implementation could not have been effect with effect from ’01.11.1999’ is the version of the Government, stating that the 2nd respondent has already clarified the position to the Accountant General vide their letter dated 21.02.2008. 12. The 5th respondent-High Court of Kerala has filed a counter affidavit, which is in tune with the contents of the various communications issued by the 5th respondent to the Government with regard to the recommendation and the requirement to have the benefit implemented as sought for by the petitioners. 13. Heard Mr. K. Ramachandran, the learned counsel for the petitioners as well as Sri. K.R.B. Kaimal, the learned Senior counsel appearing for the 5th respondent-High Court of Kerala and Mr. Noushad Thottathil, the learned Government Pleader appearing for the other respondents. 14. As discussed herein before, the main insinuation made by the writ petitioners is with regard to the callous inaction on the part of the 4th respondent/Accountant General in giving effect to the various orders passed, particularly with regard to implementation and sanctioning of the benefits with retrospective effect from ’01.11.1999’, more so, in view of Ext.P8 order dated 03.04.2007. No counter affidavit has been filed on behalf of the 4th respondent, while dispute is raised only from the part of the 3rd respondent, referring to the scope of recommendation given by the Shetty Commission and the consequential proceedings issued. It is also relevant to note that, when specific recommendation was given by the High Court after considering the facts and figures, by virtue of the power and authority given by the Expert Body, i.e., the Shetty Commission, enabling the High Court to consider and evolve a principle, the said recommendation has been considered and dealt with in the negative by the Government, but for sanctioning the benefits to a limited extent. 15. 15. The mistake committed by the Government was pointed by the High Court as per Ext.P9. As a matter of fact, even though the benefit payable pursuant to the recommendation made by the Shetty Commission was ordered to be given with effect from 01.09.2006 as per Ext.P1 order, taking note of the fact that the Supreme Court, as per the order dated 21.03.2002, had directed payment of ‘other allowances’ with effect from 01.11.1999, the Government thought it fit and proper to grant the benefit of ‘special allowance/special pay’ pursuant to the recommendation of the Shetty Commission also to be given with effect from ’01.11.1999’; which is the crux of the decision taken by the Government and communicated as per Ext.P8 dated 03.04.2007. This does not mean that the said order was passed by the Government, as it formed part of the ‘other allowances’ ordered by the Supreme Court to be paid with effect from 01.11.1999. It only means that, since the other allowances were ordered to be paid with effect from 01.11.1999, the benefits payable by virtue of the recommendation given by the Shetty Commission in respect of the payment of ‘special pay/special allowance’ was also ordered to be given retrospective effect from ’01.11.1999’. 16. In spite of the factual position as above, it seems that the Government has sought to take a ‘U-turn’ when the 3rd respondent filed a counter affidavit before this Court seeking to explain or add something more into the orders already passed by the Government with regard to extension of the benefits. The scope of the order passed by the Apex Court as borne by Ext.P5, directing payment of the benefits to all the persons who are sent on deputation to the High Court, is no more in dispute. It was pursuant to the said direction, that the matter was considered and Ext.P7 order was passed, based on the recommendation given by the High Court as per Ext.P6 dated 24.05.2008. While passing Ext.P7, though the benefits were ordered to be given, it was actually given only with effect from 01.09.2006, the date originally mentioned in Ext.P1 order. It was only by passing Ext.P8 order dated 03.04.2007, that the Government thought it fit to grant the concerned benefits with effect from ’01.11.1999’, which benefit was, however, never extended in the case of the petitioners, due to one or other reason. It was only by passing Ext.P8 order dated 03.04.2007, that the Government thought it fit to grant the concerned benefits with effect from ’01.11.1999’, which benefit was, however, never extended in the case of the petitioners, due to one or other reason. When the Government has been confronted with regard to the sequence of events and also the payment effect to other similarly situated persons who are working elsewhere, the Government has chosen to add something mote into the orders passed by them, to justify the denial. This Court finds it difficult to accept the proposition mooted by the 3rd respondent. 17. Another important aspect to be considered is the sustainability of the contention raised by the Government, that the Shetty Commission had not actually made any recommendation to pay ‘special allowance/special pay’, but had only authorised the High Court to formulate/evaluate a scheme/principle in this regard. The relevant potion of the Shetty Commission report; particularly paragraphs 19.143 to 19.147 have been extracted in the counter affidavit filed by the 3rd respondent. This Court finds it proper to have the same extracted herein as well, for the purpose of convenience of reference: “19.143: The Commissioner has formulated the following question seeking the views and comments from the concerned on “Special Pay”: Q.No.35: In some States like Assam, Haryana, Kerala, Maharashtra, Gujarat, West Bengal, Goa and Jammu & Kashmir, varying Special Pay is paid to certain categories of Judicial Offices. What according to you should be the consideration for determining the posts to which Special Pay could be attached? Is it not advisable to provide Special Pay only to those posts which in addition to the judicial work, have administrative work as well? 19.144: The summary of the replies received indicates the following: i) Most of the High Courts have suggested that Special Pay should be given only to those posts which in addition to the judicial work have administrative work as well, the High Courts of Delhi, however, has made a significant point for denying Special Pay to those who do the administrative work in addition to judicial work. It is stated that administrative work is done during office hours only and the chief Justice of Supreme Court and the Chief Justice of the High Court though perform wide ranging administrative work get no additional remuneration and, therefore, there is hardly any justification for giving Special Pay to the Judicial Officer of the Subordinate Judiciary for performing the administrative work. ii) Almost all the Service Associations have urged for payment of Special Pay to the Judicial Officers, who do administrative work in addition to judicial work. iii) The majority of the State Governments have expressed the view the Special pay should be abolished as the pay structure is based on the concept of nature of work, jurisdiction, qualification etc. 19.145: We have carefully examined the various suggestions/submissions made by the High Courts/Service Associations/State Governments. 19.146: We agree with the submission that the pay scale is fixed on several factors including the duties, responsibilities of the post and, therefore, no additional payment for Judicial Officers who do the administrative work during Court hours is called for. 19.147: We, however, request the High Courts to evolve a principle of paying “Special Pay” to such of those Judicial Officers who have considerable administrative work outside the Court hours. We do not have any such material before us and, therefore, we do not want to embark upon such enquiry.” 18. As given in paragraph 19.144, suggestions were called for on the specific points raised. After examining the various suggestions/submissions made by the High Courts/Service Associations/State Governments, the points were specifically dealt with under paragraphs 19.146 and 19.147. Even though some of the High Courts like Delhi High Court stated that there was no justification for paying the additional remuneration in respect of the additional administrative work, the inference made by the Commission in paragraph 19.146 was that, the Commission agreed with the submission that the pay scale was fixed based on several factors including duties/responsibilities of the post and therefore no additional payment for Judicial Officers, who were doing the administrative work “during Court hours” was called for. Similarly, in paragraph 19.147, the Commission observed that the Commission would request the High Courts to evolve a principle of paying ‘special pay’ to such of those Judicial Officers, who have considerable administrative work ‘outside court hours’. Similarly, in paragraph 19.147, the Commission observed that the Commission would request the High Courts to evolve a principle of paying ‘special pay’ to such of those Judicial Officers, who have considerable administrative work ‘outside court hours’. It is also observed therein, that the Commission did not have any such materials before them and therefore they did not want to embark upon such enquiry. 19. From the above, it is crystal clear that the Commission did not decide the issue with regard to the payment of ‘special allowance/special pay’; for the obvious reason that the Commission, who is the ‘Expert Body’, was having no sufficient data/materials in this regard. It was in the said circumstance, that the task was assigned to the concerned High Courts to evolve a policy/principle for paying the ‘special pay’ to the eligible Judicial Officers who have considerable administrative work outside court hours. It was in exercise of the said delegated power, as given by the Commission, that the matter was considered by the High Court, who made the recommendation as per Ext.P2, followed by Ext.P6 and lastly by Ext.P9. In other words, the Commission permitted the High Court to step into the shoes of the Commission and to decide the eligibility of the officers concerned with regard to the ‘special pay/special allowance’. Having given such power by the Commission and having exercised the said power by the High Court, it is no more open for the Government to say that the Commission did not make any recommendation for payment of ‘special allowance/special pay’ and as such, the explanation offered by the 3rd respondent in the counter affidavit is devoid of any merit or bonafides. 20. With regard to the scope of Ext.P8, the matter has already been discussed by this Court in the previous paragraphs; of course with reference to the stand taken by the 3rd respondent as given in paragraph 14 of the counter affidavit seeking to confine the term ‘other allowances’ mentioned in Ext.P8 to the eight different items, which according to the Government, did not include the ‘special pay’, to be implemented with effect from 01.11.1999. As observed by this court earlier, the scope of Ext.P8 is not as if the ‘special pay’ is liable to be treated as ‘other allowances’ which was ordered to be paid by the Supreme Court as per order dated 21.03.2002 in W.P.(C) No.1022 of 1989. As observed by this court earlier, the scope of Ext.P8 is not as if the ‘special pay’ is liable to be treated as ‘other allowances’ which was ordered to be paid by the Supreme Court as per order dated 21.03.2002 in W.P.(C) No.1022 of 1989. The factual position as to the existence of such order dated 21.03.2002 of the Apex Court, in respect of ‘other allowances’ to be paid with effect from 01.11.1999, was brought to the notice of the Government, stating that in view of such an order in respect of ‘other allowances’ to be paid with effect from that date, the ‘special pay/special allowance’ now decided to be paid pursuant to the recommendation of the Shetty Commission, was also liable to be paid with effect from ’01.11.1999’. It was the said request that was considered by the Government, who, applying their mind passed Ext.P8 order dated 03.04.2007, making it clear that the Government was pleased to order that the allowances sanctioned by the Government as per the recommendation of the First National Judicial Commission (Shetty Commission) will have retrospective effect from ’01.11.1999’. Having passed the said order, it is not open for the Government to take a ‘U-turn’ at this distance of time, by saying something else in the counter affidavit, so as to deny the benefits to the petitioners, contrary to the actual facts and figures. 21. It is incidental to note that, when the matter was pending consideration before this Court, in spite of the several opportunity given to file a proper counter affidavit, the same was not complied with by the concerned respondents and in the said circumstance, an interim order was passed by this Court on 26.05.2011, whereby the prayer of the petitioners to grant the benefits with effect from ’01.11.1999’ was granted by way of an interim measure. Pursuant to the said interim order, the Government considered the matter and issued GO(MS)No.175/2011/Home dated 08.08.2011, whereby the benefits have been ordered to be paid to the petitioners from 01.11.1999 or from the date of deputation, whichever is later and of course subject to the final verdict to be passed by this Court in the present case. As such, the next question to be considered is whether there is any sanctity with regard to limiting benefit to be paid with effect from the ‘date of deputation’ of the petitioners. 22. As such, the next question to be considered is whether there is any sanctity with regard to limiting benefit to be paid with effect from the ‘date of deputation’ of the petitioners. 22. It has been specifically observed in Ext.P2/P6/P9 recommendations sent from this Court, in exercise of the power conferred by the Commission to evolve the principle, for payment of ‘special pay’, that the petitioners also would have obtained the benefit, had they continued as Judicial Officers in the parent department and that the benefits stand declined to them only by virtue of their deputation to the High Court. It was accordingly that Ext.P2 recommendation was made by this Court asking the Government to consider the matter and to extend the benefit of Ext.P1 to the deputationists as well. In other words, even if the petitioners were not deputed to this Court, they would have continued as Judicial Officers and by virtue of their officers as above, they would have been eligible for the benefits and there would not have been any need, necessity or occasion for the High Court to have required the Government to consider the matter vide Exts.P2, P6 and P9. This being the position, this Court finds that there is no rationale in limiting the benefits flowing from Ext.P1 and P8 to the date of deputation. As such, this Court finds that the petitioners are entitled to get the benefits with effect from ’01.11.1999’ itself. 23. In the above facts and circumstances, the orders passed by the respondents, to the extent they prevent the petitioners from getting the benefits of Ext.P1, with effect from ’01.11.1999’ are set aside. It is declared that the petitioners are entitled to have the benefit of the ‘special pay/special allowance’ pursuant to the Shetty Commission recommendation with effect from ’01.11.1999’. The respondents are directed to take all necessary steps to give effect to the said declaration and the benefits payable to the petitioners shall be disbursed, as early as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The Writ Petition is allowed. No costs.