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Judgment
Mishra, J.—The petitioner herein who is a retired Subedar Major of the Indian Army, was reemployed on his retirement as the Overseer in
the High Court, Madras. He retired from the Army at the age of 47 after putting in a service of 27 years on a pension of Rs. 494 per month. The
Registrar of the High Court issued an advertisement inviting applications for the post of Overseer in the Court on 16-4-1980 in the scale of pay of
Rs. 450-800. The advertisement inter alia notified that ex-servicemen would be preferred. Petitioner accordingly applied for the said post and was
selected. He was appointed as Over seer�Vide appointment letter in Roc. No 2535 A/80 A4 dated 1-9-1980 of the first respondent (the
Registrar of the Court). The petitioner assumed the office on 5-9-80 and continued functioning on and from the said date. By a letter in R.O.C.
No. 6969 (b)/80 A4 dated 25-4-86 the petitioner''s pay was fixed under the orders of the Chief Justice at Rs. 508.50 from 5-980 to 30-1-83 at
Rs. 583.50 per month with effect from 31-1-83 to 6-10-83 and at Rs. 800 per month (maximum of time scale) with effect from 7.10.83, on the
principle inter alia as stated in the order:
The fixation of pay of Thiru S. Thangaraj on re-employment works out as mentioned hereunder
Rs. P
(1) Last Pay drawn + 27% of pay last drawn (to be 750. 00 in Military Service
treated as Dearness Pay)
Dearness Allowance to be treated as pay as per Govt. of India''s
50
50 (M of D) letter No. 13/36027/AC /Ps4(a)/1733/C/I (Pension
Services) dt. 21-6-79.
LESS:
Rs.
Military pension now drawn 494/-.
To be ignored as per G.O. Ms. No. 877 Fin. dt.9-10-50/-.
68 & G.C.Ms. No. 972, Fin. dt.2-9-65
444/-.
00
To be fixed (at) Rs. 508. 30 w.e.f. 5-9-80
(2) Last Pay drawn ... 750. 00 in Military Service
+27% of pay last drawn 202. 50 As per the Governt. of India''s letter
(To be treated as Dearness Pay). 952. 50 above cited.
Less :
Military Pension now drawn To be ignored as per 494/-.125/-.
G.O. Ms. No. 68. Finance (Pension) Dept., dt.31-1-
83.
369/-.
00
To be fixed at Rs. 583.50 W.e.f. 31-1-83
Rs.
(3) Last Pay drawn ... 750. 00 in Military Service
Plus 27% of pay last drawn 202. 50 As per the Governt. of
(To be treated as Dearness Pay). India''s letter above cited.
50
The entire pension to be ignored as per G.O. Ms. No. 847, Finance (Pension) Dept., dt. 7-10-83).
As Rs. 952. 50 exceeds the maximum of the time scale of Rs. 450-20-590-25-740-30-800, his pay is restricted to Rs. 800/- being the maximum
of the time scale.
Pursuant to that necessary formalities were completed and petitioner started drawing pay and allowances of the office of the Overseer of the Court
and continued drawing such pay and allowances until it is said on some audit objection, the Accounts officer, the second respondent refused to
admit his pay bill for the month of August 1989. The audit party, it appears, looked into the question of fixation of pay of the petitioner some time
after October 1988 and found as follows:-
As per the Civil Service regulations, re-employment pensioner should be allowed, only the latest prescribed scale of pay. The initial pay on re-
employment should be fixed at the minimum stage of the scale of pay prescribed for the post in which be is re-employed. In case where it is felt
that fixation of initial pay of the re-employed persons at the minimum of the prescribed pay scale will cause undue hardship, the pay may be fixed at
a higher stage after allowing one increment for each year of service which the pensioner had rendered before retirement in a post now lower than
that in which he is re-employed (the comparison of the post should normally be made on the basis of scale of pay). However as the scale of pay
under the State Government are generally lower than those under the Central Government and a comparison in such a case may be made only with
reference to the duties and responsibilities attached to the post.
For the purpose of fixation or relaxation of pay in the manner indicated above the pension and the pension equivalent (PE) of D.C.R.G. as shown
below should be ignored, provided he opted for refixation of pay on each such occasion. Rs. 50 on 5-9-80 (Vide G.O. Ms. No 877, dated 9-10-
69 and G.O. Ms. No. 972, Finance, dt. 2-9-65). Rs. 125 on 31-1-83 (Vide G.O. Ms. No. 68, Finance (Pension) dt. 7-10-83).
Rs. 494 Plus PE of D.C.R.G. (Vide G.O. Ms. No. 847, Finance (Pension) dated 7-10-83.
In addition to the pay to be fixed as above he may be permitted to draw separately any pension sanctioned to him and retain any other form of
retirement benefits for which he is eligible, provided that the total amount of initial pay as fixed as above plus the gross amount of pension (i.e.,
before commutation) and P.E. of D.C.R.G. less the ignorable limit of Rs. 50 or Rs. 125 or the entire pension as the case may be should not
exceed the pre-retirement pay (i.e., Rs. 750 or Rs. 3,000 whichever is less).
In all cases where either of those limits is exceeded the pension and other retirement benefits may be paid in full and necessary adjustment made in
the pay so as to ensure that the total of pay and pensionary benefits is within the prescribed limits.
Where after the pay is fixed at the minimum or any higher stage, it is reduced below this minimum as a result of said adjustment increase in pay may
be allowed after each year of service at the rate of increments admissible as if the pay had been fixed at the minimum of the higher stage as the case
may be.
According to the 4th respondent, since the above provision was not applied in fixing the pay of the petitioner on re-employment and as such the
case of his fixation of pay had to be taken up with the Government and got fixed suitably as required under F.R. 27 and overpayment of pay and
allowances regularised.
In view of this objection, it is stated in the counter affidavit filed on behalf of the 3rd respondent that the question of refixation of the pay of the
petitioner was taken up and the Area Commander, Head Quarters, ATNKK and G area, Mount Road, Madras, was addressed on 25-8-89 to
furnish the scale of pay of Subedar Major from time to time i.e., from 1980 till date to work out the fixation of pay of the petitioner. The General
Officer, Commanding, Head Quarter A.T.N.K.K. and G. Area in his letter dated 29.8.89 requested the Registry of this Court to intimate the
Record Office concerned of J.C.O. and the unit last served for further necessary action in the matter. On obtaining the said particulars called for by
the General Officer Commanding, from the petitioner, the said officer was again addressed on 4-4-90 furnishing the said particulars. Thereafter, it
seems some steps were taken in as much as the petitioner was asked to fill in a form which was forwarded to the General Officer, Commanding,
Head Quarters, ATNKK & G area who in turn forwarded the said form to the Record Office, General Engineer Group, Roorkee�vide his letter
dated 29-5-90 requesting the said office to furnish the particulars called for directly to the High Court, Madras. The Record Office, General
Engineer Group, Roorkee, was addressed by the Registry on 19-6-90 apprising the position and requesting them to furnish the particulars
immediately. No particulars, it is said, however have been furnished until now. In the meanwhile as noticed above the Accounts Officer refused to
admit the pay bill of the petitioner for the month of August 1989 stating that as per R.4(2) of the Tamil Nadu General Provident Fund Rules, the
re-employed Government Servant can also join the fund at his option, the authority under which the individual was re-employed as Overseer in
High Court Service should be stated and a copy of initial pay fixation statement of the petitioner as Overseer should be enclosed. The petitioner
suffered on account of non-payment of his salary and therefore, he made certain representations. The respondents then decided to fix the pay of
the petitioner for the time being in the minimum time scale of pay from August 1989. When a pay bill claiming the arrears consequent on the fixation
of his pay in the minimum of the time scale of pay was sent to the Accounts Officer, he returnee it saying:
It has been ascertained that the excess payment made to the individual is above Rs. 25,000. Hence the Pay Commission arrears could not be
admitted before regulating his re-employment pay and effecting the recovery, since the individual is going to retire shortly.
Noticing that certain objections were raises by the audit party, this Court thought it necessary that a notice should issue to the Accountant General,
and accordingly a notice was issued to the Accountant General. A return has been filed on his behalf on solemn affirmation by the Deputy
Accountant General (Administration). In the said counter affidavit it is said:
The writ petitioner is an ex-serviceman in receipt of military pension now re-employed in the High Court of Madras. As such, his pay on re-
employment has to be regulated under the provisions of Tamil Nadu Pension Rules, 1978 and orders thereunder issued by Government of Tamil
Nadu from time to time. The basic principle for fixation of pay is that the pay granted to an official plus his pension and pension equivalent of
gratuity should not exceed the last pay drawn by him at the time of his retirement. It is further submitted that in respect of Central Civil Pensioners
who are re-employed in civil post under the State Government after superannuation, the regulation of pay will be in accordance with the provisions
of R.(sic) of the Tamil Nadu Pension Rules, 1978. But in respect of military pensioners Pension (Military Pension) upto Rs. 50 has to be ignored in
fixing the pay on re-employment provided they had retired before attaining the age of 55. (Vide G.O. (sic) No. 972, Finance (Tension)
Department dated 2-9-1965. On 21-1-1983 Government of Tamil Nadu further issued orders revising this limit of pension to be ignored ; On 7-
10-1983 as well as on 29-1-1987 Government of Tamil Nadu further revised the amount of pension to be ignored while fixing the pay on re-
employment of such pensioners. These orders took effect from the date of issue but is respect of persons who are already re-employed their pay
also can be re-fixed under these orders provided they opted to come under these orders. But, if they so opted, their terms would be determined
afresh as if they had been re-employed of the first time from the date of the Government Orders.
Coming, however, to the audit objection it is said :
During the local audit conducted in January 89 an audit party of this Respondent''s office which inspected the accounts of the High Court Registry
noticed that the re-employment pay being allowed to the writ petitioner was not correct in as much as the re-employment pay plus his military
pension and pension equivalent of gratuity exceed last pay drawn by him at the time of his retirement from army. This aspect was pointed out to the
High Court Registry vide letter AG(A)I/ISC VII/111/22-50 88 89/646 dt. 23-2-1989 and it was requested that ""the case of Sri Thangaraj''s
fixation of pay may be taken up with Government and suitably got fixed under F.R. 27 and overpayment of pay and allowances made regularised''.
It is submitted that a reply thereto intimating the action taken thereon is still awaited from the High Court Registry.
Although this petition was presented before this Court on 6-7-1990 and came up for hearing on 19-7-1990 when notice of motion was
ordered, the matter was delayed on account of the delay in the filing of the counter affidavit and the hearing of the petition by the Court. The
petitioner has since been superannuated on 31-12-1990. He has thus retired without any payment of salary for quite a few months and without any
fixation of retirement benefits and determination with respect to his rights while in service and after retirement.
Was there a mistake in admitting the petitioner to a scale of pay as per the administrative order of the Chief Justice of this Court-vide R.O.C.
No. 6969(b)/80, A4 dt. 25-4-86? If there was any mistake in that order, could/can that be reviewed administratively on the basis of the audit
objections so as to cause prejudice to the rights of the petitioner created under the said orders of the Chief Justice? Assuming that such a review
could/can be done administratively in case any order revising the scale of pay issued, will that not visit the petitioner with civil/penal consequences?
Will the petitioner then in such a situation be not entitled to a hearing and suggest that be had disclosed all that had happened to him including the
pension which he was drawing from the Army and that if any one went wrong in fixing the pay of the petitioner in the scale of pay to which he was
appointed, the mistake was committed by the Court and not by him and therefore the court and other respondents cannot punish him by denying to
him the benefits already conferred by the said order for the reason of their own wrong, on the principle no one can claim premium upon his own
recalcitrant, are a few questions that arise apart from the sufferings that have been caused to the petitioner by the respondents, first in their not
taking care to follow such Government instructions which applied to the case of the petitioner and later when some audit objections were raised by
not promptly proceeding to collect all the available materials and ensure that the wrong was undone and the petitioner was not visited with a civil
consequence. I have seen the advertisement inviting the applications for the post of Overseer in the Court. It indicated the number of posts and the
scale of pay being Rs. 450-20-590-25-740-30-800, the qualifications, the nature of duties and the mode of application. I have also seen the office
memorandum of the appointment of the petitioner and the order afore-mentioned under which the petitioner''s pay had/has been fixed. The extract
of the audit objection in the counter-affidavit has already been extracted above. It did/does Dot anywhere suggest that there was any lack of
jurisdiction either in the matter of the appointment of the petitioner as the Overseer or fixation of pay except that it has indicated how in respect of
a person in the employment of the State Government after retirement from one or the other service pay is fixed.
It is necessary here to understand that Art.229 of the Constitution of India gives full power to the Chief Justice of the Court or such other Judge
or Officer of the Court as he may direct to make appointments of Officers and servants of a High Court, subject to the Rules that may be framed
by the Governor of a State in which case 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. Art. 229(2) states:
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 authorised by the Chief
Justice to make rules for the purpose;
Provided that the rules made under this clause shall, so for as they relate to salaries, allowances, leave or pensions require the approval of the
Governor of the State.
It is thus evident that the State Government does not have jurisdiction in the matter of the service conditions of the employees of the High Court.
The only person competent is the Chief Justice of the Court or such other Judge or Officers of the Court as directed by the Chief Justice. No rules
applicable to the employees of the State Government are applicable to the employees of the High Court, except the Rules made by the Chief
Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice. It is not the case of the respondents before this
Court that any Rule framed by the Chief Justice of the court had been violated in the matter of fixation of the pay of the petitioner under the orders
of the Chief Justice of the Court. It is also not suggested that the various Government Orders which are referred to in the audit objection are
statutory in nature or that by any method of law have been extended to the employees of the High Court. The audit party before taking any such
objections was required to ascertain whether the Government Orders which were being referred to by it were applicable to the employees of the
High Court in the sense that they had been adopted as the Rules framed in accordance with the command of the Constitution under Art.229(2) of
the Constitution of India. It is strange why the office of the High Court, particularly the Registry, did not take notice of the mandate of the
Constitution, and it surrendered meekly to the audit objection without pointing out to the auditors that in the matter of appointment and fixation of
pay of any employee of the High Court, the verdict of the Chief Justice was final. No person in the State Government or anywhere could ignore the
order of the Chief Justice in this behalf. The audit party was thus bound to respect the Chief Justice''s order and follow accordingly with respect to
the salary and service conditions of the petitioner.
The respondents have done a serious wrong to the petitioner. They have not only withheld his emoluments, they have allowed him to retire
without determining the pensionary benefits and without seeing whether the petitioner would be getting any gratuity or any other benefits payable to
a retired employee of this Court. In my view, the entire exercise of re-fixation of pay of the petitioner is wholly uncalled for. It has taken place on
account of first the ignorance of the Accountant General and his audit party of the position of an employee of the High Court and secondly, on
account of the High Court itself being ignorant of this Constitutional position. Without there being anything suggesting how O.O.Ms. No. 877 dt. 9-
10-68, G.O.Ms. No. 68 Finance (Pension dt. 7-10-83 and G.O. Ms. No. 847, Finance (Pension) dated 7-10-83 applied to the employees of the
High Court, neither the audit party nor the High Court was entitled to invoke any one of them. It, however, has to be seen that in the order fixing
the pay of the petitioner there is a mention of G.O. Ms. No. 877, Fin. dt. 9-10-68, G.O. Ms. No. 972, Fin. dt. 2-9-65, G.O. Ms. 68, Finance
(Pension) dt. 31-1-83. The Chief Justice evidently was not unaware of the Rules which were required to be applied in fixing the pay of the
petitioner.
Having considered the case as above, I am of the opinion that the petitioner is entitled to a writ of mandamus to the effect that the respondents
must forthwith abide by the order of the Chief Justice of this Court in R.O.C. No. 6969(b)/80, A3 dated 25-4-86 and pay to the petitioner his
entire arrears of pay, allowances, etc., without any unreasonable delay, fix the retirement benefits including pension in accordance with Rules and
pay regularly without fail. Since the petitioner has already suffered and the pay earned by the petitioner has been denied to him, the petitioner is
entitled to interest at the rate of 12� per cent compoundable per annum until fully paid. In the result this application is allowed. Let a mandamus
be issued in the aforesaid terms. Respondents are directed to implement the order within a period of two months, failing which they shall be liable
to pay to the petitioner compensation of Rs. 20,000 with interest at the rate of 12 1/2 per cent per annum until paid. The application is allowed
with costs. Hearing fee Rs. 1500.