A. Ponnusamy and Others vs The State of Tamil Nadu and Another

The petitioners are all employees of the Tamil Nadu Legal Aid and Advice Board, which is a Society registered under the Societies Registration

Act.

The petitioners have prayed for the issue of appropriate writ in the nature of declaration that the action of the first respondent viz., the State of

Tamil Nadu in issuing the letter dated 28.9.1993 and 2.3.1994 to prevent payments to the petitioners are illegal and unconstitutional and without

jurisdiction. The petitioners also seek consequential direction to the respondents viz., the State and the Tamil Nadu State Legal Aid and Advice

Board to pay the petitioners all emoluments, including arrears as per the decisions of the Executive Committee of the second respondent taken at

its meeting held on 3.12.1992 and 22.2.1994.

By the impugned letter of the State Government dated 28.9.1993, the first respondent intimated the second respondent that the Government,

after examination, do not accept the decisions of the Executive Committee of the second respondent, taken at its meeting held on 3.12.1992

regarding.

(i) Ad hoc increase of 5% of the salary as Personal pay to Administrative Assistants w.e.f. 1.8.1992.

(ii) Ad hoc increase of Rs. 20 p.m. to Office Assistants w.e.f, 1.8.1992.

(iii) Sanction of two advance increments as graduate allowance to Administrative Assistants w.e.f. 1.1.1993.

(iv) Increase of consolidated pay payable to probationers in the Board''s Service from Rs. 800 to Rs. 1,100 w.e.f. 1.10.1992.

The letter concluded by stating that the Government conveyed its disapproval for the above decisions of the Executive Committee.

By the letter dated 2.3.1994 of the first respondent, addressed to the second respondent, the second respondent was asked to send to the

Government the proposal relating to the interim relief of Rs. 100 p.m. to the employees of the Board to the Government for consideration and

decision.

The matters referred to in the two letters of the Government are the matters with respect to which the Executive Committee of the second

respondent had resolved and had decided that the benefits stated therein were to be extended to the employees of the second respondent Board

who number 211. The additional expenditure to be incurred by the second respondent for implementing its decision was in the order of Rs. 1.75

lakhs.

The letter of the Government dated 28.9.1993 came to be issued as a result of an initiative taken by the first respondent State on 8.12.1992,

calling upon the second respondent to refer to the Government for decision the resolution that may be passed by the Executive Committee on its

meeting on 3.12.1992 regarding the revision of the salary of Administrative Assistants, Office Assistants, and honorarium payable to the retired

persons employed in the Board Service. The Board was asked to refer the matter to the Government for decision before implementation

notwithstanding any such requirements in the bye-laws.

The prayer so made in the petition has been opposed by the first respondent, while the second respondent has filed a statement in support of the

petitioners.

The Tamil Nadu Legal Aid and Advice Board was set up by the Government of Tamil Nadu, which passed G.O. Ms. 3048, Home, dated

3.12.1976, to which reference is made in the Government letter dated 22.3.1980, copy of which has been filed by the second respondent Board

in this proceeding. In that letter, the contents of the said G.O. dated 3.12.1976 has been set out. By that G.O., the Government of Tamil Nadu

constituted the State Legal Aid and Advice Board for ensuring the provision of legal aid and advice to the poor and deserving persons with the

following as members.

The Governor of Tamil Nadu .... Ex-Officio President of the Board

Chief Justice of High Court, Madras .... Ex-Officio Patron-in-Chief.

Minister-in-chargeofLawand Courts .... Ex-Officio, PatronoftheBoard.

Thiru P. Ramakrishnan, Retired Judge,

HighCourt, Madras .... Nominatedas Chairman

Thiru N. Krishnaswamy Reddy,

RetiredJudge,HighCourt,Madras .... Nominatedas Vice-Chairman

Advocate General .... Member.

Firstmember, Board of Revenue .... Member.

President, Bar Association .... Member.

President, Advocates'' Association .... Member.

Secretary to Government,

Home Department .... Member.

Secretary to Government,

Finance Department .... Member.

Secretary to Government,

Law Department .... Member.

Chairman of the State

Social Welfare Board .... Member.

The Board was set up for the reasons stated by the Government. According to the letters of the Government, the Board was set up in fulfilment of

the State''s obligation under Artical 39-A of the Constitution of India, with the Government sanctioning lump sum grants to the Board. The

Government was clearly conscious of this fact that it has the constitutional obligation to provide legal aid and in order to meet that obligation, the

Legal Advice Board was set up.

Constitutional obligation of the State to provide legal aid is set out in Artical 39-A of the Constitution which reads as follows:

The State shall secure that the operation of the legal system promotes justice; on a basis of equal opportunity and shall, in particular, provide free

legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by

reason of economic or other disabilities.

Artical 39-A requires the State to inter alia provide free legal aid ''by suitable legislation or schemes or in any other way to ensure that

opportunities for securing justice are not denied to any citizen by reason of economic or other disparities. The manner in which the scheme is to be

formulated is left to the discretion of the State. Legal aid may be provided by enacting suitable legislation or by formulating schemes or in any other

way.

The way chosen by the State of Tamil Nadu was to set up the State Legal Aid and Advice Board and the Board that was so set up by the

Government Order dated 3.12.1976 was also the body registered under the Societies Registration Act of the State, as the Tamil Nadu State Legal

Aid and Advice Board. The objects for which the Board is constituted are set out in Clauses 3 of its Memorandum.

Clause 4 of the Memorandum vests the management of the affairs of the Board in the Governing Body in accordance with the rules, bye-laws

and regulations of the Board. The first 13 members of the Board are the persons some of whom were holding the offices mentioned in G.O. dated

3.12.1976.

The Board so registered under the Societies Registration Act has formulated its Rules, which has also been registered along with the

Memorandum. These Rules are known as Tamil Nadu Legal Aid and Advice Board Rules. Under these Rules, the Executive Committee of the

Board is to be the Governing Body of the State Board as provided under Rule 11 (6) and this Executive Committee may from time to time, issue

directions (not being directions inconsistent with the directions issued by the President,) on any activity of the State Board and the affairs of the

State Board shall be conducted in accordance with such directions. As already noticed, the President of the Board is the high Constitutional

Authority viz., the Governor of Tamil Nadu.

The Staff that may be employed by the Board are to be employed in accordance with Rule 16 and their terms and conditions of service are

regulated in accordance with Rule 17. Rule 16 provides that the Chairman may with the approval of the Executive Committee, appoint for the

State Board such additional members of the Staff as he may consider necessary for carrying out the functions and duties of the State Board. Rule

17 is material for the purpose of this case, and reads as follows:

Terms and conditions of appointment of Secretary, Joint Secretary and Staff: The terms and conditions of appointment of the Secretary, Joint

Secretary, if any and other staff and their powers shall be determined by the President on the recommendation of the Executive Committee.

The Executive Committee, after it resolved to grant the benefits, mentioned in the letter of the Government, to the employees, communicated

the same to the President, who is none other than the Governor for his consideration and approval. The Executive Chairman of the Board wrote to

the President, on 15.2.1994, wherein the resolution of the committee as also the reasons which promoted the Committee to sanction a modest ad

hoc increase was set out. The communications received by the Board from the Government were also referred to. It was also set out in that letter

that the Government had by their letter dated 23.4.1993 conveyed the disapproval of the Government for the decisions of the Committee.

The President of the Board, thereafter, on 13.6.1994 addressed a letter to the second respondent stating that in view of the rejection of the

Board''s proposal by the Government, the proposal for the increase in the pay of the employees of the Board may be deferred for the present.

it is thus evident that the Government, which in discharge of its constitutional obligation, set up the Legal Aid and Advice Board had on its own

called for the decisions of the Executive Committee, although the Government is not vested with any such power under the Memorandum and the

Rules of the Legal Aid and Advice Board, and the Government thereafter has chosen to convey their disapproval of the decisions of the

Committee. The Committee itself had not sought approval of the Government for the decision, as no such approval of the Government was

necessary for the decisions of the Committee under the Board''s Memorandum and Rules. It is evident that the Government has wholly

misconceived its role in relation to the Board and has acted in a manner, which is totally unwarranted and is not contemplated either in the

Constitution or in the Memorandum and the Rules governing the Board. The impugned letters of the Government are thus beyond its jurisdiction in

relation to the second respondent Board.

The second respondent Board was set up to discharge the constitutional obligation cast upon the State to render legal aid. The functions

carried on by by the Board are in fact the functions, which the State is required to carry out itself or set up a machinery for being carried out. The

persons who are entrusted with the management of Board are persons who hold high offices and/or persons who have intimate knowledge of law.

The head of the Board is the high constitutional authority of the Governor of the State and the Patron-in-Chief is the Chief Justice.

Having regard to the fact that the management of the Board is entrusted to an august body of persons, headed by the Governor, with the

learned Chief Justice as Patron-in-Chief, the decisions taken by the Executive Committee of the Board with the approval of the Governor and the

Chief Justice can always be regarded and responsible and reasonable. The views of the Government regarding the schemes and their

implementation, are to be made known to the Committee through the representatives of the Government or the Board. The Board is not designed

to be a department of the Government but is an autonomous body. vested with the power to take its own decisions in all matters concerning the

affairs of the Board.

The learned Counsel for the petitioners and also counsel for the second respondent submitted that the Executive Committee, which is

composed of eminent persons and which has, after due consideration, recommended modest increase in the benefits for the employees of the

petitioners, having due regard to the nature of the work performed by them, it was not open to the Government to claim a right to disapprove the

decisions of the committee and thereby prevent the Board from giving effect to those decisions and also pose an obstacle in the way of the

President, approving the decisions of the Executive Committee.

The learned Government Advocate on the other hand contended that the Government, being the authority, which has ultimately to provide the

funds, the Government has a right to know the financial implication of the decision taken by the Committee and the Government is free either to

approve or disapprove such decisions, which would have an effect upon the finance of the Government. It was also submitted that the grant from

the Government is not the only source of the Board''s funds and the Board'' must make its budget in accordance with the funds provided by the

State and if it cannot do so, look elsewhere for additional funds.

The arguments advanced on behalf of the Government is wholly misconceived. Merely because the Government holds the purse strings, it does

not follow that the Government can always dictate to the body set up by it for discharging its constitutional obligations, or to override the decisions

taken by the Executive Committee which decision is subject to the approval of the constitutional head of the State. The term ''grant'' is a misnomer

in this context. By the Government choosing to label the funds provided by it as ''grant'', it does not follow that it has a right to withhold the funds

or to arbitrarily decide the qunatum of the funds that it will provide to the Board. The amount to be provided would depend upon the need as

reasonably assessed by the Board which has been vested with the power to formulate and administer the schemes relating to legal aid and also to

ensure that the schemes are implemented effectively. The normal rule therefore would be that the Government should provide funds as required by

the President, Patron-in-Chief and the Executive Committee, unless there are special reasons, warranting the rejection of the assessment made by

the President, Patron in Chief and the Executive Committee and there are special constraints on the finance available with the Government.

The grievance that has been set forth in this petition is one which only relates to the marginal improvement of the conditions of service of the

employees. The Government has arrogated to itself the power of disapproving the resolutions of the Executive Committee, which was presided

and in the Patron-in-Chief and which resolutions had been passed after carefully considering the nature of the work performed by the employees

and necessity of giving them a marginal increase in order to maintain employee morale and to improve the efficiency in the functioning of the Board.

The Government, apart from saying that it does not approve, has not given any reason whatsoever as to why the modest funds required for this

purpose cannot be provided.

The employees of the Board are an essential of the Board as the legal aid schemes cannot be administered without employing the requisite

number of persons in suitable posts.

The impugned communication of the Government, conveying the disapproval for the benefits, resolved by the Executive Committee to be

extended to the employees, therefore, cannot be sustained and has to be quashed. Similarly the communication requiring the Board to obtain the

approval of the Government, before granting the ad hoc increase of Rs. 100 also cannot be sustained and has to be quashed. They are hereby

quashed.

The learned Counsel for the petitioners contended that in the light of the judgment of the Supreme Court in the case of Supreme Court

Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, , All India Judges'' Association and Others

Vs. Union of India and Others, , the Government should be directed to sanction and also release the amounts as recommended by the Executive

Committee. It is not possible to accede to this submission.

The resolution of the Executive Committee in itself is insufficient to bring about a change in the emoluments and the service conditions of the

employees, as the power vests with the President, who is required to take the decision on the recommendation of the Executive Committee. The

President of the Board found it difficult to agree with the recommendations made by the Executive Committee in view of the stand taken by the

Government that the Government would not approve the resolutions of the Committee. The impugned communications of the Government having

now been quashed, there is no subsisting impediment for the President of the Board to consider the recommendation made by the Executive

Committee and take a decision thereon. The decision so taken shall be implemented by the Board in accordance with law and the funds required

for implementing the same, shall be provided by the Government.

The writ petition is therefore allowed to the extent indicated above. Parties shall bear their respective costs.