1. A short, but significant question—whether the orders passed by Lord Chief Justice, Jammu & Kashmir High Court in terms of the provisions of Jammu & Kashmir Civil Service Regulations read with the provisions of Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968 require administrative ap proval —is involved in this petition. A resume of the underlying facts is necessitated and may be given hereunder. 2. Petitioner was a member of the High Court Staff, working as Private Secretary. In recognition of the outstanding performance by the petitioner, the Chief Justice sanctioned and granted two advance increments in his favour in the grade of Rs. 7500-250-12000 vide High Court order No. 501 dated 01.09.2001. The peti tioner, thereafter, in due course was promoted initially as Principal Private Secre tary, then as Secretary and ultimately as Joint Registrar. He was to retire in the afternoon of 31st January, 2009 on attaining the age of 58 years. However, in terms of High Court order Nos. 790 dated 22.12.2008,1066 dated 24.03.2009 and No. 414 dated 12.08.2009, the Chief Justice, in exercise of powers under Rule 11 of the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 read with Article 226(1) of the Jammu and Kashmir Civil Service Regulations, ordered retention of the petitioner in service upto the age of 60 years and, accordingly, extended his date of retirement by two years. The petitioner ultimately retired on attaining the age of 60 years in the afternoon of 31st January, 2011. 3. Consequent upon retirement of the petitioner, the High Court, impleaded herein as respondent No. 6 through its Registrar General, vide communication No. 12106 dated 01.02.2011 forwarded the petitioner's pension papers to the Accountant General, J&K, Srinagar.
The petitioner ultimately retired on attaining the age of 60 years in the afternoon of 31st January, 2011. 3. Consequent upon retirement of the petitioner, the High Court, impleaded herein as respondent No. 6 through its Registrar General, vide communication No. 12106 dated 01.02.2011 forwarded the petitioner's pension papers to the Accountant General, J&K, Srinagar. In response thereto, the Senior Accounts Officer (PNR) of the Accountant General, respondent No. 4 herein, addressed communication No. PNR-4/S-1/10-11/20797/192-93 dated 16.06.2011 to the Registrar General, High Court of J&K. In the said communication, respondent No. 4 intimated to, and directed, respondent No. 6 as under: i) that the retired Joint Registrar has been extended the benefit of two advance increments w. e. f. 09/02 without the approval of Administrative Department which may either be obtained or the excess pay and allowances drawn on this account worked out and intimated to this office for effecting recovery; ii) in terms of Article 226(1) of CSR Vol-I a Government servant can be permitted to remain in service on public grounds after issuing of the sanction from the Government. It may please be intimated whether the said order was issued with the concurrence of State Government. If so, a copy of the order may be send to this office for further necessary action; iii) Meanwhile, pensionary benefits are being au thorized on due pay and on the basis of actual age of superannuation. 4. Respondents 1 to 4, consequently, fixed the pension of the petitioner and other retiral benefits on the basis of his length of service and emoluments taking his date of retirement as 31.01.2009, excluding the two years' extended service rendered by the petitioner upto 31.01.2011, and issued PPO No. 221119365 dated 20.05.2011 addressed to the concerned Treasury Officer for payment of monthly pension at Rs. 12693 with effect from 01.02.2011. On the same basis, his commuted value of pension payable was fixed at Rs. 499211.00. However, his gratuity was withheld, ostensibly, for purposes of effecting recovery of so called excess pay and allowances drawn in his favour on account of the two advance increments sanctioned and granted in his favour with effect from 09/2002. 5. The petitioner has challenged the aforesaid communication dated 16.06.2011 of respondent No. 4 and the action of respondents 1 to 4 in not honouring the orders passed by the Lord Chief Justice. 6.
5. The petitioner has challenged the aforesaid communication dated 16.06.2011 of respondent No. 4 and the action of respondents 1 to 4 in not honouring the orders passed by the Lord Chief Justice. 6. Respondents 1 to 4, i.e., the authorities of the Accountant General, despite numerous opportunities have chosen not to file any reply, though opportunities were given to them even when the case was listed for hearing. Instead, pursuant to the interim direction passed by this Court on 19.07.2011, the said respondents have issued revised advices in favour of the petitioner on the basis of his length of service upto 31.01.2011 and his emoluments he was drawing on the said date. They have also released the gratuity in favour of the petitioner calculated on the basis of the said date of retirement. Mr. S. A. Makroo, learned ASGI, representing the said respondents, on 19.09.2012, produced photocopies of the said revised advices etc. before the Court and strenuously prayed that since the grievance of the petitioner has been redressed, the writ petition may be disposed of. 7. Respondent No. 6, i.e., the Registrar General of the High Court, too, has chosen not to file any reply despite opportunities afforded. Mr. Jahangir Iqbal representing the High Court, stated at the Bar that since there is no relief claimed against the High Court, therefore, there is nothing in the writ petition to be rebutted by the High Court. 8. The State of Jammu & Kashmir through Commissioner/Secretary to Government, Law Department, arrayed as Respondent No. 5 in the petition, has, however, filed a reply. In paragraph No. 2 thereof it is stated as under: "[T]hat there is no provision in the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968 which empowers the Hon'ble Chief Justice to retain any member beyond his/her retirement upto the age of 60 years. However, Rule 11 of the said rules provides for retention of a member in the Services by Chief Justice upto the age of 58 years in excep tional circumstances to be recorded in writing. At that relevant time, the age of retirement of employees was 55 years which was enhanced to 58 years. The enhancement of retirement age of High Court staff from 55 years to 58 years was approved vide Cabinet Decision No. 275 dated 2.12.1987.
At that relevant time, the age of retirement of employees was 55 years which was enhanced to 58 years. The enhancement of retirement age of High Court staff from 55 years to 58 years was approved vide Cabinet Decision No. 275 dated 2.12.1987. That way back in the year 1990, the High Court vide communication No. 2961/NG dated 15.12.1990 had sought approval of the Governor for sub stitution of Rule 11 of the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 as under: 'Provided that Chief Justice may in exceptional circumstances, which must be recorded in writing, retain a member in service upto the age of 60 years. [T]hat the said proposal was submitted to His Excellency the then Governor through Chief Secretary for approval. The General Administration Depart ment vide its reference No. GDC-117/CM/89 dated 28.05.1990 intimated that the said proposal was not approved by His Excellency the then Governor. The same was conveyed to the Registrar General, High Court vide answering Department letter No. LD (A) 76/261 dated 26.06.1990 with the request to intimate whether there are any additional grounds available or relevant to justify the proposal. No response was received from Hon'ble High Court thereafter, meaning thereby, that the proposal of High Court regarding retention of a member in service upto the age of 60 years has not been acceded to by the Competent Authority." 9. It is in context of the above facts and circumstances that the question set out in the beginning of this judgment calls for determination. 10. Heard learned counsel for the parties and considered the matter. 11. In paragraph 12 of the writ petition, the petitioner has made specific averments to the effect that he is not the first staff member of the High Court to be granted either advance increments or the benefit of extended service upto the age of 60 years by Hon'ble the Chief Justice in exercise of powers conferred on his Lordship by the provisions of the High Court Staff Rules and the Jammu & Kashmir Regulations. It is stated that vide High Court order No. CJ/JB/04 dated 11.05.1993 one Shri Narottam Das, Deputy Registrar (Adm) was granted two advance incre ments by Hon'ble the Chief Justice in exercise of Rule 13 of the High Court Staff Rules read with Articles 4(A) and 74 of the J&K CSRs.
It is stated that vide High Court order No. CJ/JB/04 dated 11.05.1993 one Shri Narottam Das, Deputy Registrar (Adm) was granted two advance incre ments by Hon'ble the Chief Justice in exercise of Rule 13 of the High Court Staff Rules read with Articles 4(A) and 74 of the J&K CSRs. Further, vide High Court order No. 222(A) dated 22nd November, 1993, Hon'ble the Chief Justice, in exercise of powers under Rule 11 of the High Court Staff Rules read with Article 226(1) of the J&K CSRs ordered retention of Shri Narottam Das in service for a period of one year after his retirement on 30.11.1993. Thereafter, vide High Court order No. 751 dated 11.11.1994 he was retained for a further period of one year, i.e., upto the age of 60 years. His pension case was decided within 23 days by respondents 2 to 4. Similarly, one Shri Mehraj-ud-Din Naqash was granted two advance increments by the Chief Justice vide High Court order No. CJ/JB/4 dated 11.05.1993. His pension case was disposed of within 26 days by respondents 2 to 4 without any demure from any authority. 12. In reply to the aforesaid specific averments made in the writ petition, respondent No. 5 has stated as under: "6. That the contents of paras 7 to 17 of the writ petition does not pertain to answering respondent No. 5 and therefore need not to be replied." 13. The dates of the orders, whereby one Shri Narottam Das was granted extension in service and retained upto the age of 60 years assume importance, because these orders were passed, admittedly, after 26.06.1990, the date when, according to the aforesaid reply of respondent No. 5, the Registrar General of the High Court was conveyed the non-approval by the Governor of the proposal of the High Court for substitution of Rule 11 of the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968. Obviously, the Chief Justice in his Lordship's wisdom has thought that his powers were not impacted in any manner by such non-approval of the substitution of Rule 11 of the said Rules. 14. It needs to be mentioned here that extension in service of an employee is not something beyond or outside the scope of the power appointment.
Obviously, the Chief Justice in his Lordship's wisdom has thought that his powers were not impacted in any manner by such non-approval of the substitution of Rule 11 of the said Rules. 14. It needs to be mentioned here that extension in service of an employee is not something beyond or outside the scope of the power appointment. It is, in fact, continuation of the appointment of an employee upto a date or age permitted by law made in that behalf. Power to grant extension, therefore, is essentially a feature of power to appoint. Law is not res Integra that Article 229 of the Constitution of India, which is akin to Section 103 of the Constitution of Jammu and Kashmir in its relevant contours, contemplates full freedom to the Chief Justice of the High Court in the matter of appointments of officers and servants of the High Court. The question as to the powers of the Chief Justice of High Courts in the country in regard to appointments of officers and servants of the High Court and their conditions of service has come up before the Apex Court more than once. In M. Gurumoorthy v. Accountant General, Assam (Nagaland), (1971) 2 SCC137: AIR 1971 SC1850, the Apex Court has laid down 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 was 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 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)" 15. Again, while dealing with the ambit and scope of power of appointment under Article 229 of the Constitution of India, a five Judge Bench of the Supreme Court in Chief Justice of A. P. v. L. V. A. Dixitulu, (1979) 2 SCC 34 : AIR 1979 SC 193 has held that the word 'appointment' in Article 229(1) is to be construed according to the axiom that greater includes the less and that, going by this juristic principle, the power of 'appointment' conferred by Art. 229(1) includes the power to suspend, dismiss, remove or compulsorily retire from service. The Apex Court accordingly, laid down as under: "In short, in regard to the servants and officers of the High Court, Art. 229 makes the power of appointment, dismissal, removal, suspension, reduc tion in rank, compulsory retirement etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent, indicated in the provisos. In conferring such exclusive and supreme powers on the Chief Justice, the object which the founding fathers had in view, was to ensure independence of the High Courts." As a necessary corollary, the word 'appointment' also would include grant of extension or retention in service after the date of retirement upto an age as may be prescribed by the relevant rules. 16.
16. It may be noted here that Section 103 of the Constitution of Jammu and Kashmir in its rigor is no different from, or mild than, Article 229 of the Constitution of India, except that; whereas under clause (1) of Article 229 of the Constitution of India the approval of the Governor is confined only to such rules as relate to salaries, allowances, leave or pension, clause (2) of Section 103 of the State Constitution provides that the conditions of service of the officers and servants of the High Court shall be such as may be prescribed by rules made by the High Court with the approval of the Governor. It is not the case that such Rules have not been framed. The High Court, in exercise of the powers so conferred by Section 103(2) of the State Constitution has duly framed the rules, named, Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 with the approval of the Governor, whereby, pursuant to Rule 4 thereof, the power of the Chief Justice as conferred by the Constitutional provision has been reiterated in the following terms: "4. Appointment and promotions: All appointments to the staff of the High Court including promotions shall be made by the Chief Justice. The Chief Justice may, however, delegate any of the powers of appointment other than those of the Gazetted Officers to the Registrar or to any Judge of the High Court." As already said above, grant of extension in service is essentially a character istic and aspect of the power to appoint. It is not anything different from or even akin to the phrase "power to appoint", but comes within the fold of the power of appointment itself. That being so, the non-approval of substitution of Rule 11 of the High Court Staff Rules by the Governor was inconsequential and it has so been taken successively by the Chief Justice, inasmuch as extension was granted not only to the petitioner but even to Shri Narottam Das immediately after the date the non-approval in question, relied upon by respondent No. 5, had been communi cated to the Registrar General. 17. There is another aspect of the matter.
17. There is another aspect of the matter. Admittedly, apart from Rule 11 of the Jammu and Kashmir High Court Staff Rules, the provision authorising retention in service after the date of compulsory retirement upto the age of 60 years is contained in Regulation 226 of the J&K CSRs. It reads as under: "226. [(1) An officer shall retire compulsorily on his attaining the age of 55 years, unless the competent authority considers him efficient and permits him to remain in service]. He may, however, be retained in service after the date of compulsory retirement with the sanction of the 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; Provided that the Government servants who were in service on 10.10.1966 and were treated inferior as per Schedule II, will retire on attaining the age of 60 years. 'Provided further that a Government servant in service on 1.1.1987 or appointed on or after that date shall retire on his attaining the age of 58 years'." It is axiomatic from a plain reading of the aforesaid Regulation that a Govern ment servant can be retained upto the age of 60 years by sanction of the Government and on public grounds. In respect of the staff member of the High Court, the said power is conferred on the Chief Justice. In this connection, it would be advanta geous to reproduce Rule 13 of the High Court Staff Rules, which reads as under: "13. Leave and pension etc. (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 Jammu and Kashmir 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 Jammu and Kashmir State or Government of Jammu and Kashmir state or by any authority subordinate to the Governor or the Government shall be exercisable by the Chief Justice or by such person as he may, by general or special order, direct.
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 whose decision shall be final." A plain reading of the aforesaid provision of the High Court Staff Rules makes it unambiguously clear that subject to any special provisions contained in the said Rules, the rules and orders for the time being in force and applicable to Government servants shall also regulate the conditions of service of persons serving on the staff attached to the High Court and that the powers exercisable under the said rules and orders by the Governor or the Government of the State or any authority subordinate to the Governor or the Government shall be exercisable by the Chief Justice. The word used is 'shall', meaning thereby it is the Chief Justice alone who can exercise the powers under such rules with respect to the staff of the High Court. The Rule does not contemplate or envisage that once the Chief Justice has exercised his powers under any of such rules, the same would require any further approval from the Governor or the Government, as the case may be. By the process of adaptation, as mandated by Rule 13 quoted above, it would follow that, in their application to the High Court Staff, the word "Governor" or the "Government" occurring in Regulation 226 of the J&K CSRs or, for that matter, any rules and/or orders, governing the Government servants in the State, has to be read as substituted by the word "Chief Justice" wherever such words "Governor", "Government" occur therein. Application of the Civil Services Regulations and Rules governing the Government servants without such adaptation, as mandated by Rule 13, would result in the anomalous position, eroding the very object of independence of the High Court visualised by the constitutional scheme. Accordingly, it becomes clear that, apart from Rule 11, the power to grant extension in service and to retain a member of the staff of the High Court after the date of compulsory retirement upto the age of 60 years, as envisaged by Regulation 226(1), is exercisable by the Chief Justice. 18. It hardly needs a reiteration that the High Court has framed the Rules with the approval of the Governor as provided by Section 103(2) of the State Constitution.
18. It hardly needs a reiteration that the High Court has framed the Rules with the approval of the Governor as provided by Section 103(2) of the State Constitution. After the High Court has framed the rules with the approval of the Governor, especially in the shape of Rule 13 quoted above, there is no legal justification for respondent No. 5 to say that Rule 11 of the Rules has not been substituted or brought in tune with what is contained in Regulation 226 of the J&K CSRs, nor is there any warrant for withholding such power. The non-approval as pressed in service by respondent No. 5 is inconsequential being antithetic to the relevant provision of the Constitution and the Rules so framed. 19. It also becomes imperative to refer to the caption of Rule 13 of the High Court Staff Rules. It is captioned as "leave and pension etc.". Learned counsel for the petitioner submitted that the abbreviation 'etc.' in context of the contents of the provision contained thereunder, should be read to mean as 'and other things'. In this connection, it would suffice to say that the terms 'leave' and 'pension' are not used in abstract form, but have reference to rules, i.e., leave rules and pension rules. Going by the principles of literal interpretation of statutes, whether 'etc.' is read as "other things in the same series" or 'and other things', the result would be the same, and would mean 'leave rules, pension rules and other rules'. That will not detract from what is contained in the contents of the rule, which unambiguously refers to the rules and orders applicable to the Government servants. 20. It is also note worthy that Rule 3 of the High Court Staff Rules provides that "any doubt regarding the interpretation of these Rules shall be decided by the Chief Justice whose decision shall be final". As already mentioned, successive Chief Justices have granted extension in service beyond the date of compulsory retirement to members of the High Court Staff. That fact by itself sufficiently demonstrates that the Chief Justices, from time to time, have interpreted the Rules in a manner that the Chief Justice is empowered to pass such orders. Such interpretation becomes final and cannot be challenged by any authority. 21. The question as first set out in this judgment is, accordingly, answered.
That fact by itself sufficiently demonstrates that the Chief Justices, from time to time, have interpreted the Rules in a manner that the Chief Justice is empowered to pass such orders. Such interpretation becomes final and cannot be challenged by any authority. 21. The question as first set out in this judgment is, accordingly, answered. It is held that the orders passed by Lord Chief Justice, Jammu & Kashmir High Court, in terms of the provisions of Jammu & Kashmir Civil Service Regulations read with the provisions of Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968 do not require any administrative approval from the executive. It is further held that in terms of the mandate of Rule 13 of the J&K High Court Staff (Conditions of Service) Rules, 1968, it is the Chief Justice alone who is competent to exercise the powers contemplated by the Rules and orders applicable to Government servants with respect to the members of the staff borne on the cadre of the High Court of Jammu and Kashmir. 22. Petitioner has also prayed for compensation and costs against respondents 2 to 4 for the delay caused in the settlement of his pension case. In paragraph 14 of the petition, petitioner, in clear terms, has stated that the said respondents are oblivious of the Rules governing the members of the High Court staff. To support this submission, petitioner has appended as annexure P9 to the petition the print outs of the information posted by these respondents on their official website under Right to Information Act. These print outs make a mention of the rules which are taken into account while settling pensionary benefits of Government servants and others. Admittedly, the rules governing the members of the High Court staff do not find a mention therein. They have not contested these averments made in the writ petition. Obviously, therefore, these respondents have been oblivious of the rele vant rules. That fact by itself demonstrates that the delay caused has not been deliberate or intentional. Besides, keeping in view the demeanour of these respon dents post filing of this writ petition, inasmuch as the due retiral benefits were immediately released in favour of the petitioner, it is not a fit case to grant any compensation, interest, or costs to the petitioner.
Besides, keeping in view the demeanour of these respon dents post filing of this writ petition, inasmuch as the due retiral benefits were immediately released in favour of the petitioner, it is not a fit case to grant any compensation, interest, or costs to the petitioner. However, they have not with drawn the communication dated 16.06.2011 addressed to the Registrar General of the High Court. 23. Accordingly, in acceptance of this petition, the impugned communication bearing no. PNR-4/S-1/10-11/20797/192-93 dated 16.06.2011, addressed by respondent No. 4 to respondent No. 6, is quashed and the petitioner is held to be entitled to his retiral benefits as prayed for by him, which pursuant to the interim direction of this Court, as per the statement made at the Bar by the learned ASGI, have already been released in favour of the petitioner. However, the prayer for compensation for the delay caused by the respondents 2 to 4 in the settlement of his pensionary benefits, given the demeanour of these respondents, is declined. 24. Disposed of along with all connected CMP. 25. Registry is directed to send copies of this judgement to the respondents.