Sukhendu Bikash Debroy And Ors vs State Of Tripura And Ors

[1] Heard Mr. Somik Deb, learned counsel, appearing for the petitioners as well as Mr. M. Debbarma, learned Additional Govt. Advocate appearing for the State-respondents No.1 & 2 and Ms. P Dhar, learned counsel appearing for the respondents No.3, 4 & 5.

[2] The petitioners belong to a special category of employees in the High Court, namely Private Secretary-I to Hon‟ble Judges. The petitioners have raised their demand to the Chief Justice of this High Court for granting them 1st scale up-gradation by whatever nomenclature it is known, after 5 years of continuous service, if they are not promoted to the next higher grade/post within that period. The petitioners submitted representations collectively on 1st July, 2016, 15th June, 2017 and 12th January, 2018 respectively (Annexures- 3, 4 & 5 to the writ petition) to the Registrar General of the High Court. Having responded to such demand, the Hon‟ble Chief Justice in exercise of his power under Article 229(2) of the Constitution of India had prepared a „Draft Rule‟ for the said purpose, meaning, by acceding to the demand of the petitioners for granting 1st scale up-gradation after completion of 5 years of their service. For purpose of reference Article 229(2) of the Constitution of India may be extracted hereunder :

"(2) 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 authorized by the Chief Justice to make rules for the purpose:

Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State."

[3] Accordingly, the said Draft Rule, since it involved the salaries and allowances of the petitioners who are holding the post of Private Secretary-I to the Hon‟ble Judges, was sent by a forwarding letter vide No.F.3(35)-HC/15-16/13581, dated 29th July, 2016 (Annexure R/1 to the reply filed by the respondents No.3 & 4) under signature of the Registrar General to the Legal Remembrance & Secretary, Law Department, Government of Tripura with a request to place that matter for approval of the Governor so that the amendment in the High Court of Tripura Services (Appointment, Conditions of Service and Conduct) Rule, 2014 providing ACP to the Private Secretary-I on completion of their 5 years of continuous service in the post can be given effect to. For purpose of perusal, the amendment made in Schedule-II may be taken notice of. In Column 7, under Schedule-II, against Sl. No.3 of the High Court of Tripura Services (Appointment, Conditions of Service and Conduct) Rules, 2014, after the words Pay Band-4, Rs.13,575-37,000/- with Grade Pay Rs.4500/- the following words have been proposed to be inserted "Will be entitled to the benefit of ACP in the Pay Scale of PB-4 Rs.15000-39100 with Grade Pay of Rs.6800/- after 5 years of continuous service from the date of joining in the post on appraisal of work and performance by Hon'ble the Chief Justice."

[4] It appears from the communication vide No.F.3(35)-HC/2019/3396-403 dated 12th February, 2019 received from Law Department that the Finance Department did not concur the said proposal by observing that there is no such provision to allow financial up-gradation after 5 years of service without promotion. Financial up-gradation is allowed after total 10 years, 17 years and 25 years of service without promotion. After implementation of the ROP Rules, 2017, the State Government employees are allowed financial benefit, not up-gradation of scale, in the form of 1[one] increment in the same level. No benefit of fixation is given at the next level. For purpose of further clarification, the note that has been produced with the reply filed by the respondents No.1 & 2 may be extracted hereunder:

"It is informed that as per ROP Rules in force, there is no provision to allow financial up-gradation after 5 years to the promotion post. Financial up-gradation is allowed after total 10 years, 17 years and 25 years service without promotion. After implementation of ROP, 2017 the State Government employees are allowed financial up-gradation as one increment in the same level without the benefit of fixation at the next level. Accordingly, Law Department may inform to High Court of Tripura about the existing norms of financial up-gradation as available to State Government employees."

After having the opinion of the Finance Department, the Law Department, Govt. of Tripura, made a communication on 22 January, 2019. This Court finds that the opinion was signed on 26 April, 2019 (Annexure R/3 to the reply filed by the respondents No.1 & 2).

[5] Mr. Somik Deb, learned counsel, has submitted that the way the entire matter has been dealt with is an affront to the constitutional institution which sought amendment in the Rules for giving financial benefits to its officers who are discharging onerous duty even in the odd hours. Even that benefit would go to them after appraisal of their performance. Mr. Deb, learned counsel, has taken this court to a decision of the apex court in Union of India Vs. S B Vohra reported in (2004) 2 SCC 150. The apex court has considered the decision of the High Court in respect of fixation of pay scale of the officers of the High Court (Assistant Registrars). The proposal of the High Court was rejected by the Union of India. That action was interfered by the Delhi High Court having regard to the decision in S.B. Mathur and Others Vs. Hon'ble the Chief Justice of Delhi High Court and Others reported in 1989 Supp. (1) SCC 34. The fact as emerged in S. B. Vohra (supra) the Chief Justice of Delhi High Court wanted to revise the scales of pay. But before making the said recommendation, the Chief Justice of the High Court constituted a committee which had gone into relevant aspects meticulously and submitted a report to the Chief Justice. The post of Assistant Registrar in the Delhi High Court is a promotional post of various posts, such as the Superintendents, Court Masters and Private Secretaries who are placed in the scale of pay of Rs.2000-3500. Despite the recommendations made, the Union of India did not agree to the proposal/amendment sought to be made. The higher scale that was proposed as up-gradation scale, was Rs.3000-4500/-. The Delhi High Court by the said judgment has observed as under:

"the respondents have not refuted and cannot legitimately refute the fact that the post Assistant Registrar is a higher status post attaching to it higher responsibility and moreover, it is a promotional post from the post of Superintendent, Court Master and Private Secretary. Similar is the position with respect to the post of the Deputy Registrar and Joint Registrar vis-a-vis the post of Assistant Registrar."

The said pay scale of Rs.3000-4500 which was sought to be granted w.e.f. 01.01.1986 was later on recommended by the 4th Central Government Pay Commission as the pay scale for the feeder post of the Assistant Registrar of the Delhi High Court. Despite that grant was challenged by the Union of India. In S. B. Vohra (supra) while dealing with the issue, the apex court was little apprehensive as the Executive had dealt with the proposal sent by the constitutional functionary like Hon‟ble the Chief Justice of the High Court curtly. It has been observed in S. B. Vohra (supra) that independence of the High Court is an essential feature for working of the democratic form of Government in the country. An absolute control, therefore, has been vested in the High Court over its staff which would be free from interference from the Government subject of course to the limitations imposed by the said provision. There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in Clause (2) of the Article 229 of the Constitution of India [as reproduced] and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard salary, allowances, leave or promotion.

[6] It is trite that such approval should ordinarily be granted as a matter of course. But what had been noticed in this case is that that the proposed amendment was most unceremoniously referring to the ROP Rules, 2009 was declined by the Finance Department. This is a perennial issue of strife between the two institutions. Prof. Wade, in his celebrated treatise „Administrative Law‟ had occasion to refer to the doctrine and observed that the powers must be exercised reasonably and has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of the legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended. The decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the court's function to look further into its merits. With the question whether a particular policy is wise or foolish the court is not concerned; it can only interfere if to pursue it is beyond the powers of the authority.

[7] The main question that has emerged in the proceeding falls within the preliminary consideration, whether the proposal as has been made in the form of Draft Amendment Rules is reasonable one or not. It is true that Hon‟ble the Chief Justice cannot decide singularly the enhancement of the salary, allowances etc. without the concurrence of the Governor. But, at the same time, the Hon‟ble Chief Justice is within his domain to decide as to whether a particular category of the officers, discharging onerous duties, should be given with the better perks or pay and allowances or not.

[8] This Court is of the view that in this regard Hon‟ble the Chief Justice has exercised the power within his domain and found that reasonably that the pay scale of the Private Secretary-I should be upgraded after 5(five) years and they should get the 1st up-gradation of the pay scale. But that was unceremoniously returned to the High Court by the communication dated 22 January, 2019.

[9] Mr. Somik Deb, learned counsel for the petitioners, has rightly pointed out that notwithstanding the constitutional provisions that the rules framed by the Chief Justice of a High Court, so far they relate to the service and other emoluments are concerned, required prior approval of the Governor. It is always expected that when the Chief Justice of a High Court makes a Rule providing a particular pay scale for its employees the same should ordinarily be approved by the Governor unless there is any justifiable reason not to approve the same. The aforesaid assumption is on the basis that a high functionary like the Hon‟ble Chief Justice before framing any rule in relation to service conditions of the employees of the Court and granting any pay scale for them is expected to consider all relevant factors and fixation is made not on any arbitrary basis. [Para-42 of S.B. Vohra (supra)]

[10] The strife as referred earlier has been sought to be reconciled by a mode devised by the apex court, as enunciated in High Court Employees Welfare Association Calcutta vs. State of West Bengal & Ors., reported in (2004) 1 SCC 334, where it has been observed as under :

"11. The Government will have to bear in mind the special nature of the work done in the High Court of which the Chief Justice and his colleagues alone could really appreciate. If the Government does not desire to meet the needs of the High Court, the administration of the High Court will face severe crisis. Hence, a special Pay Commission consisting of Judges and the Administrators shall be constituted by the Chief Justice in consultation with the Government to make a report and on receipt of such report, the Chief Justice and the Government shall thrash out the problem and work out an appropriate formula in regard to pay scales to be fixed for the High Court employees. Let such action be taken within six months from today."

[11] On the touchstone of that observation, it can safely be inferred that whether the Officers of the High Court would get early up-gradation of the pay scale or not, would be better fathomed by the Chief Justice and his Colleagues as they are better positioned to appreciate their duties. As such, the analogy that has been advanced by the Finance Department in a very unceremonious manner and without having any dialogue in the highest level is totally unacceptable. There cannot be any comparison of this category of the officers of the High Court viz. the Private Secretary-I with any other officer of the State Government as they discharge the special kind of duties. Therefore, the comparison is interfered with and discarded by this Court.

[12] This Court in the emerged circumstances, on 26 August, 2019 asked Mr. Debbarma, learned Additional Government Advocate to take instruction whether the Draft Rule as sent by the High Court would be reconsidered by the Governor in view of the special nature of the duties and responsibilities as discharged by the Private Secretaries of this High Court. That apart, this Court had observed that before "regretting‟ that amendment there was no dialogue in the highest level of the institutions as per the practice that is followed in terms of the apex court‟s judgments. In response to the said order dated 26 August, 2019, Mr. Debbarma, learned Addl. G.A produced today before two written instructions- one by the Secretary, Finance and another by the Deputy Secretary, Law. The Secretary, Finance to the Government of Tripura, has strangely observed that the Finance Department had informed the provisions of the ROP Rules to Law Department but the Law Department communicated the proposal "as regretted". As such, the entire complexity has arisen for non-appreciation of that opinion in the correct perspective. The Finance Department has asserted that they had not regretted the proposal and as such, that was not correct reflection of the decision of Finance Department. It has also been proposed in Note-1 to inform the Additional Govt. Advocate that the proposal is lying with the Registrar (Admn.,P & M), of the High Court and if the proposal is resubmitted to Finance Department through Law Department then the Governor may reconsider the same. Note 2 reflects that even though the Finance Department did not regret the proposal, the complexity/confusion was created due to the letter dated 1 May, 2019 of Law Department addressed to the Registrar(Admn. P & M), High Court. As per Note 3, it has been further proposed that the Hon‟ble High Court may consider a dialogue in the highest level of the institutions as per the practice.

[13] Having received another note (Note No.10) from the Finance Department, the Law Department has given their view that considering the Finance Department Note No.65 dated 26th May, 2019 even though it did not actually mention that they have regretted the proposal for approval of the draft amendment of the High Court of Tripura Services(Appointment, Conditions of Service and Conduct) Rules, 2014 but they have stated about the provisions that existed/exists regarding the financial up-gradation under the ROP Rules, 2017, but from the communication made from the Law Department addressed to the Registrar, (Admn.,P & M), High Court of Tripura, it has been noted that "under mistaken understanding of the Finance Department‟s observation that the Finance Department has regretted the proposal" the earlier communication regretting the proposed amendment was made. Therefore, the proposal now made by the Finance Department in Para-4(3) of the Note No.8 (Note of the Finance Department) may be considered for re-appreciation of the entire matter by the government in observance of the process as indicated by the apex court. The Law Department has already decided to write a letter to the High Court of Tripura in the administrative side to make a request for resubmitting the proposal to the State Government through the Law Department for fresh consideration, if approved. Even the draft letter has been placed on the file which has been produced before this Court.

[14] Mr. Debbarma, learned Addl. Govt. Advocate has produced the entire file and candidly submitted before this Court that for purpose of approval of the Governor in the matter, the State is ready to reappraise the entire matter and if required, a dialogue in the highest level may commence for purpose of taking an appropriate decision on the basis of the proposal made by the High Court in the form of "Draft Amendment Rule" which is available at Annexure-R/3 to the reply filed by respondents No.3, 4 & 5.

[15] Having taken notice of the instruction in writing as received by Mr. M Debbarma, learned Addl. Govt. Advocate and as produced before this Court, this Court is of the view that since the State has realized the procedural impropriety in not taking proper course, the respondents No.3, 4 & 5 are directed to resubmit the proposed "Amendment Rule" for concurrence of the Governor through the Law Department within a week from today and the Law Department shall take utmost steps for obtaining concurrence of the Governor within 6(six) weeks thereafter and if necessary, the dialogue at the highest level may take place. For this purpose, necessary approach should come from the State, not from Hon‟ble the Chief Justice of the High Court.

[16] While taking any decision, the observations made in this judgment shall be taken full care of and having due regard to those observations, necessary steps to be taken by the State and expectedly, the proposal as sent by Hon‟ble the Chief Justice would receive the concurrence of the Governor.

In terms of the above observations and directions this writ petition stands allowed to the extent as indicated above.

No order as to costs.

Records as produced by Mr. Debbarma, learned Additional Govt. Advocate, are returned.

A copy of the judgment and order be supplied to Registrar General, High Court of Tripura and the Secretary, Law Department, Government of Tripura for doing their needful.