G. Balaraman and Others vs The State of Tamil Nadu

Elipe Dharma Rao, J.—The petitioners were appointed as Junior Assistants and Typists. While they were working as Junior Assistants and

Typists, in the year 1988 about 50 vacancies arose in the post of Assistant Section Officer. As the passing of Special Tests were not mandatory

earlier, the petitioners names were included in the panel of March 1988. The petitioners were holding the posts in the feeder category and were

eligible for promotion but for the qualifications prescribed with retrospective effect. In view of the urgent requirement to fill up the posts, temporary

promotions were given to the petitioners subject to the condition that they pass the Special Tests within a period of two years. Most of the

petitioners passed the Special Tests within the period of two years. The Hon''ble Chief Justice was pleased to relax Rule 15(c) of the Madras High

Court Service Rules in favour of the remaining unqualified persons and extend the time for passing the Special Tests from time to time. The

remaining petitioners also passed the Special Tests within the extended period so granted. Rule 15 (d) of the High Court Service Rules provides

that persons appointed on temporary basis shall be paid either the substantive pay or the minimum of pay in the promotional post whichever is

higher. Since the minimum of the pay in the promotional post was lower than the substantive pay, the petitioners were permitted to draw their

substantive pay and given annual increments in their substantive posts.

On the acceptance of the recommendations of the V Pay Commission, the pay scales of staff underwent revision with effect from 1.6.1988. The

revised scale of pay of Assistant Section Officer was fixed at Rs. 1640-2900. The pay of the petitioners was fixed at Rs. 1640 on 1.6.1988. The

pay of the qualified persons was however fixed at Rs. 1700/- with effect from 1.6.1988. The petitioners were not given increments until they

passed the Special Tests. They submitted representations seeking intervention of the Hon''ble Chief Justice for redressal of their grievance.

A similar situation was arose to the staff working in the Secretariat and they have filed writ petition and thereafter writ appeal in W.A.Nos.1096

and 1097 of 1985 and ultimately the same was allowed by this Court by a judgment dated 24.1.1990 in W.A.1096 and 1097 of 1985, wherein

this Court has held that increments shall be granted upon attaining the qualifications and the period of temporary service will also be counted for

grant of increments. However, no arrears shall be paid for the unqualified period.

Although the Assistant Section Officer working in the High Court had been granted pay on parity with the Assistant Section Officer working in

the Secretariat and the qualifications and the job conditions were also similar, the benefit of counting the unqualified period for the purpose of grant

of increments upon attaining the qualifications prescribed was not extended to the Assistant Section Officers working in the High Court, Madras.

Several representations had been submitted to the Hon''ble Chief Justice and a letter was addressed by this Court to the Government in this

regard.

Mean while, the petitioners along with several others have filed a writ petition in W.P. No. 1321 of 1999 for refixation of pay of the petitioners

therein by sanctioning increments for the unqualified period. In that case, the Government has filed its counter accepting the fact that the similarly

placed persons in the Secretariat have been granted increments for the unqualified period. Thereafter, the Hon''ble Chief Justice recommended for

the notional increments for the period between the date of promotion and the date of passing of the departmental examinations and by virtue of the

recommendations of the Chief Justice the writ petition No. 1321 of 1999 was dismissed on 28.4.1999, observing inter alia the Hon''ble Chief

Justice addressed to the Government on the issue and even without waiting for that order the petitioners have rushed to this Court. It is made clear

that it is for the Government to decide as to whether the petitioners are entitled to get the monetary benefits as per recommendations of the Chief

Justice in D.O. Letter No.7390/95/Estt.IV dated 31.12.1998.

Thereafter, the Government has rejected the issue and communicated the order through the letter dated 7.3.2003 and the High Court has

communicated the same to the petitioners in its Official memorandum dated 7.4.2005. These writ petitions are filed challenging order of the first

respondent dated 7.3.2003 and the communication of the second respondent dated 7.4.2005 contending that the first respondent erred in holding

that the decision of this Honourable High Court in W.A.Nos.1096 and 1097 of 1985 will not apply to the petitioners, even though the High Court

has adopted the Service Rules governing the Assistant Section Officers in the Government, based on the Rule 21 of the Madras High Court

Service Rules which reads as follows:

Rule 21 of the Madras High Court Service Rules:

Pay, Allowances, Leave Salary, Pension and other conditions of service.

The Fundamental Rules, the subsidiary rules thereunder, the Tamil Nadu Leave Rules, The Madras Retiring Invalid and Compassionate Gratuities

(Non-pensionable Establishments) Rules, 1941, the Madras General Provident Fund (Madras) Rules, the Madras Liberalized Pension Rules,

1960, the rules regarding the pay of the services included in the Pay Schedule and other rules for the time being in force applicable to officers

under the rule-making control of the Government of Tamil Nadu shall govern the members of the service in the matter of their pay, allowances,

leave, leave salary, pensions and other conditions of service:

Provided that except with regard to salaries, allowances, leave and pensions, the Chief Justice shall exercise the powers vested in the Governor

under any of the aforesaid rules:

Provided further that where any such members has elected to be governed by the provisions of the Civil Service Regulations those provisions shall

apply to him:

Provided also that the application of the Revised Scales of Pay Rules, 1960, and as prescribed in the rule issued by The Honourable The Chief

Justice, shall be applicable.

So, once the High Court has adopted the Service Rules governing the Assistant Section Officers in the Government, the order passed by the

Government should have been extended some benefits to the petitioners as recommended by the Honourable Chief Justice.

The Government has not filed any counter. But, the learned Counsel for the petitioners pointed out the counter affidavit filed by the Government

in W.P. No. 1321 of 1999, wherein, the Government has accepted the fact that the similarly placed persons in the Secretariat have been granted

increments for the unqualified period. In a similar situation, The Government has also passed an order in G.O.Ms. No. 358 P&AR (Per-I), dated

13.8.1990 on the basis of the judgment of this Hon''ble High Court, in W.A.Nos.1096 and 1097 of 1985 dated 24.1.1990, wherein in para 2 it

has been stated that the petitioners shall be entitled to increments from the date from which they become qualified and the period of their temporary

service shall be counted for increment (i.e.) increments have to be computed from the date of first appointment in temporary services but shall not

be entitled for arrears on the basis of such computation of increments for the unqualified period. In para 3 of the said G.O., reference has been

made that the High Court has not accepted the request for regularization of services from the date of temporary appointment but has ordered that

the increments shall be allowed to them from the dates of their temporary appointments as Assistant Section Officer without arrears for the

unqualified period. A specific mention has also been made in the said G.O. that the orders of the High Court are applicable to Assistants promoted

as Assistant Section Officer from the year 1969 onwards.

The learned Counsel for the petitioners has also pointed out that in a similar situation, in W.P. No. 6800 of 93 dated 13.7.1993 has passed an

order directing the Government to grant arrears of pay to the petitioners therein, who are the Assistant Section Officers in the High Court Service

in the revised scale of pay of Rs. 1640-2900 with effect from 1.6.1988 on par with the Assistant Section Officers in the Secretariat. In pursuant to

the order of the High Court, the Government has passed an order in G.O.Ms. No. 1220 Home (Court V) Department dated 10.8.1993, wherein

the Government has accepted the opinions given by the Special Government Pleader and Advocate General and granted revised scales of pay for

the post of Assistant Section Officer in the High Court Service from Rs. 1400-2600 to Rs. 1640-2900 with effect from 1.6.1988 on par with

Assistant Section Officers in the Secretariat Service. It is in view of the above observations the State Government in an earlier occasion has passed

an order extending the benefits to the employees of the High Court. So, in view of the order passed by the Government in an earlier occasion in a

similar situation, it cannot be said now that the duties, nature of work and service conditions are different.

Though the matter is pending from 2005, considering the facts and circumstances of the case, the learned Government Advocate appearing for

the respondents supported the stand taken by the Government in a similar situation in an earlier occasion. In such circumstances, the issue with

regard to the extension of benefits which were enjoyed by the employees of the Secretariat to that of the High Court employees, who are similarly

situated is rapidly common for consideration before the High Court.

In a judgment reported in Union of India (UOI) and Another Vs. S.B. Vohra and Others, , the Hon''ble Supreme Court while considering the

catena of judgments on this issue starting from 1981 has discussed in para 46 as follows:

in no unmistakable terms suggest that it is the primary duty of the Union of India or the State concerned normally to accept the suggestion made by

a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing

with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must

discuss amongst themselves and try to iron out the differences. The appellant unfortunately did not perform its own duties.

The Hon''ble Apex Court in a decision reported in High Court of Judicature for High Court of Judicature for Rajasthan Vs. Ramesh Chand

Paliwal and Another, , while considering the Article 229 of the Constitution had held that the Chief Justice has requisite power to revise scales of

pay subject of course to the approval granted in this behalf by the Governor. It has also observed as follows:

We again reiterate the hope and feel that once the Chief Justice, in the interest of High Court administration, has taken a progressive step specially

to ameliorate the service conditions of the officers and staff working under him, the State Government would hardly raise any objection to the

sanction of creation of posts or fixation of salary payable for that post or the recommendation for revision of scale of pay if the scale of pay of the

equivalent post in the Government has been revised.

On a plain reading of Article 229(2), it is apparent that the Chief Justice is the sole authority for fixing the salaries etc., of the employees of the High

Court, subject to the Rules made under the said article. In view of the proviso to sub-article (2) of Article 229, any rule relating to the salaries,

allowances, leave or pension of the employees of the High Court would require the approval of the Governor, before the same can be enforced.

The approval of the Governor, therefore, is a condition precedent to the validity of the rules made by the Chief Justice and the so-called approval

of the Governor is not on his discretion, but being advised by the Government. It would, therefore, be logical to hold that apart from any power

conferred by the Rules framed under Article 229, the Government cannot fix the salary or authorize any particular pay scale of an employee of the

High Court. It is not the case of the employees that the Chief Justice made any rules, providing a particular pay scale for the employees of the

Court, in accordance with the constitutional provisions and that has not been accepted by the Governor. In the aforesaid premises, it requires

consideration as to whether the High Court in its discretionary jurisdiction under Article 226 of the Constitution, can itself examine the nature of

work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the judgment under

challenge, the Court appears to have applied the principle of ''equal pay for equal work'' and on an evaluation of the nature of duties discharged by

the Court Stenographers, Personal Assistants and Personal Secretaries, has issued the impugned directions.

The same view was reiterated in the earlier judgments of the Supreme Court reported in State of Andhra Pradesh and Another Vs. T.

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

From the above authorities relied on and as per Article 229 of the Constitution of India, the office of the Chief Justice of the High Court is a

highest office and in the interest of administration if the Chief Justice has taken a progressive step specifically to ameliorate the service condition of

the officers and staff working under him the State Government in the present case would hardly raise any objection to the extending the the pay

scale granted in favour of the Assistant Section Officers in the Secretariat to the Assistant Section Officers of the High Court. With regard to the

recommendation for revision of the pay scale on par with the pay payable to the corresponding post in the Secretariat, the Government should

have passed favourable orders instead of rejecting the same.

It is unfortunate to mention that though the Chief Justice has recommended through letter dated 31.12.1998 and the writ petition was dismissed

on 28.12.1999, the Government rejected the proposal only on 7.3.2003 and communicated the rejection order only on 7.4.2005.

It is to be seen that the State Government on an earlier occasion in G.O.Ms. No. 1220 Home (Court V) Department dated 10.8.1993, has

passed an order extending the benefits to the employees of the High Court on par with the employees of the Secretariat. Once the Rules and

regulations of the Government servants having been adopted by the High Court under Rule 21 of the High Court Employees'' Service Rules, we

are of the considered view that the impugned order passed by the Government on a flimsy ground that the nature of work and service conditions of

the Assistant Section Officers working in the Secretariat and the Assistant Section Officers working in the High Court are different must be held

unconstitutional and contrary to law in view of the observations made in the decision of the Supreme Court and hence, the impugned order is liable

to be set aside.

Both the writ petitions are allowed. The impugned order is set aside. The first respondent is directed to pass appropriate orders within a period

of twelve weeks from the date of receipt of copy of this order. No costs.