Uchch Nyayalaya Karmchari Sangh, LUCKNOW vs Deputy Registrar, Accounts, (A-1) Section And Others

H.N. Tilhari, J.—This petition has been filed by Uchch Nyayalaya Karmchari Sangh, High CourtLucknow through its General Secretary Sri Chandra Prakash Bharti, claiming the reliefs which are mentioned hereinafter for the benefit of the members of the Association particularly the motor car drivers, attached to the Cars of the High Court and MotorCars, allotted to the Judges of this Hon''ble Court. The petition is in the nature of public interest litigation for the benefit and for the purpose of enforcing the claim of the members of the Association particularly the Car Drivers.

The petitioner has claimed the following reliefs :

(a) The issuance of a writ, order or direction in the nature of writ of mandamus, commanding the respondents to deem the Motor Car Drivers/Members of the petitionerassociation (that is any particular motor car drivers) as permanent immediately on the expiration of one years'' probation period from the date of the respective appointments of the Drivers and for a further direction that they be neither terminated nor transferred elsewhere.

(b) For the issuance of writ, direction or order in the nature of writ of mandamus, commanding the disbursement of one month''s salary per month to Motor Car Drivers, attached to the cars of the High Court including those, allotted to Hon''ble Judges of the Court with retrospective effect from the date of their respective appointments keeping pace with and in conformity with the G. O. dated 1871985, i.e. Annexure No. 7 to the writ petition and the principles enshrined therein.

(c) The issuance of writ, order and direction in the nature of writ of mandamus, commanding the disbursement of Rs. 100/ per month and Rs. 80/ per month as the respective special pay to High Court''s Motor Car Drivers in pool in conformity with the G. O. dated 691989 Annexure8 and the principle, based therein.

(d) To issue writ, order and direction in the nature of writ of mandamus, commanding the immediate creation of post of Motor Car Mechanic and Head Driver at par with U.P. Secretariat for High Court as well as to pay them in addition to the revision scale (Rs. 9751660 and Rs. 9501500 respectively) a sum of Rs. 80/ per month as a special pay as per G. O. dated 6989, referred to above.

(e) To issue writ, order or direction in the nature of mandamus commanding the striking down of the words ''whichever is less'' at the tailend of the provisions, contained in amended Section 22B of High Court Judges (Conditions of Service) Act, 1954.

(f) Issuance of a writ, order or direction in the nature of writ of mandamus, commanding the striking down of the G.O. No. 3112 dated 1291990 as contained in Annexure No. 9 to this petition and also commanding generous attitude to the free maintenance of the personal cars of their Lordships by the State Government.

(g) To issue any other writ, order or direction which this Hon''ble Court may deem fit and proper.

The petitioner''s case is that the petitioner is seeking enforcement of the doctrine of equal pay for equal work in the light of the provisions of G.O. dated 1871985 and 6989 in the case of High Court Motor Car drivers qua the Motor Car drivers, attached to the Estate Department and to the U.P. Secretariat including those attached to the Cars of Hon''ble Ministers and other Officers of the State Government in the Secretariat. The petitioner wants that the Motor Car Drivers, attached to the High Court Motor Cars, i.e. the Cars, attached to Hon''ble High Court Judges be treated at par with those of U.P. Secretariat, that is, the Drivers, attached to the Cars of the Ministers and the Officers.

The petitioners has further alleged that on 2681986 the President of India assented to the High Court and Supreme Court Judges (conditions of service) Amendment Act, 1986 whereby new Section 22B was introduced in place of old Section 22B, by amendment with reference to the conditions of Service of High Court Judges as contained in High Court Judges (Conditions of Service) Act, 1954. New substituted Section 22B added in the Act 1954 reads as under :

"22B Conveyance facilities :Every Judge shall be entitled to a staff car and one hundred and fifty litres of petrol every month or the actual consumption of petrol per month, whichever is less."

The petitioner has annexed the copy of the Amendmenting Act of 1986.

The petitioner has further submitted that originally under the Act of 1954 vide section 22B, as it originally stood that every judge shall be entitled to a conveyance allowance of Rs. 300/ per month subject to the maintenance of a motor car by him and this sum of Rs. 300/ was increased to Rs. 500/ per month subsequently and under it the conveyance allowance was payable to the tune of Rs. 500/ per month to the Judges who maintained the car. With the change of the circumstances section 22B was amended and instead of providing the conveyance allowances the Judges were declared to be entitled to a Staff Car and Rs. 150/ litres of petrol or such a quantity of petrol as was consumed by the Staff Car of the Judge concerned, provided it is less than 150 litres, referred to above.

In the petition the petitioner has stated that if the actual consumption of petrol exceeds 150 litres then in that case the State has to bear the charges and cost of only 150 litres of petrol and beyond that, i.e. in respect of petrol exceeding the limit of 150 litres the Judge concerned has to bear that cost and has to pay from his pocket. The petitioner has further stated that in case where the car of the Judge consumes in any month petrol less or lesser than the figure of 150 litres the Judge concerned will be deprived of every litre of petrol exceeding the actual consumption, that is of the benefit of every litre of petrol between actual consumption and the maximum limit of 150 litres and is not entitled to adjust the same to the next month exceeding consumption if any. The petitioner''s case is that this is because of the use of expression ''whichever is less'' at the tail end of Section 22B. In the writ petition the petitioner has asserted the expression ''whichever is less'' to be an unhappy expression and to be ultra vires.

According to the petitioner''s case, on coming into force of Section 22B Staff Cars were provided to Hon''ble Judges and Motor Car drivers were offered appointments by opposite party No. 1 to the writ petition with effect from April 1, 1987 for a period of three months and it was provided that after three months report will be obtained regarding the suitability and then the appointment will be made on probation for one year. As specimen the petitioner has annexed two appointment letters of the Motor Car Drivers, Annexures 2 and 3. The Petitioner''s further case is that vide G. O. dated June 30, 1989 with entry at serial No. 34, in addition to four permanent posts of drivers as existing on 611986 as well as on 31389, fiftyseven temporary posts of Drivers in the scale of Rs. 330495 had been created with revised pay scale of Rs. 9501500/.

The petitioner''s further case is that by a decision dated 2621988 a Division Bench of this Court, in C. M. Writ Petition No. 21117 of 1987 filed by the Association, commanded the State to make available to the employees of the High Court parity of pay and allowances as were provided and given to the Secretariat employees. The petitioner has annexed copy of the judgment dated 2621988 as Annexure No. 4 to this writ petition.

The petitioner has further stated that vide G. O. dated July 18, 1985, issued by the State Government the Car Drivers, attached to the Estate Department (Rajya Sampatti Vibhag) to whom ordinary leaves of second Saturday or Sunday or gazetted holidays are not available and on these dates even who may be required to perform arduous duties have been sanctioned and granted one month''s additional salary as honorarium, but the grievance of the petitioners is that this honorarium of ore month''s additional salary has not been granted or sanctioned nor has been paid to the Car drivers of the High Court. It has further been asserted that vide G. O. dated 6th September, 1989 of the U.P. Government Estate Department entries at serial nos. 29, 30 and 31 referred to Motor Car Mechanics, Head Drivers and Drivers have been ordered to be paid every month special pay of Rs. 80/, Rs. 80/ and Rs. 100/or Rs. 80/per month respectively, depending upon the fact in the case of the Driver whether he is attached to the Minister or otherwise, that is, in other words the Drivers, attached to the Motor Cars of the Ministers are being paid special pay of Rs. 100/ per month while the Mechanics, the Head Driver and the Drivers otherwise that is those not attached to the Minister is to be paid special pay of Rs. 80/ per month.

The petitioner''s grievance is that in this regard also the Drivers, attached to Hon''ble Judges have not been sanctioned, granted or paid this special pay of Rs. 100/ per month. The petitioner''s case is that the Drivers of the High Court and those attached with the Staff Cars of Hon''ble Judges of High Court have been illegally discriminated and deprived of this benefit of special pay. Thus according to the petitioner the Motor Car drivers, attached to the High Court cars and the cars, allotted to the High Court Judges have been illegally discriminated in the matter of payment of honorarium of one month''s additional pay every year and the special pay of Rs. 100/ and Rs. 80/ respectively. That in relation to the Drivers, attached to the Cars of Hon''ble Judges of the Court and the other Drivers, of High Court illegal discrimination is done by non payment of that which is being paid to the Car drivers, attached to the Cars of the Ministers and other Officers of the Secretariat.

The petitioner''s further case is that all of a sudden on 1291990 the U.P. Government vide G. O. No. 3112 has provided that such of Hon''ble Judges of the High Court who opt in writing to make use of their own personal vehicles and who give up their right of having staff car and the car driver which are provided with and in the staff car on State expenses as well as who give up their right of taking 150 litres of petrol and opt to give up their right of taking 150 litres of petrol and opt to give up their right of free maintenance of official car, its registration and allied things related to staff cars would be paid the consolidated sum of Rs. 3500/ per month vide G.O. dated 1291990. The petitionerassociation has challenged this G.O. of the State Government as being illegal, null and void.

The petitioner has asserted by way of supplementary affidavit that the petitionerassociation has made and has been making representations after representations to the authorities concerned including the Registry of the High Court as well as Hon''ble the Chief Justice of the High Court of U.P. and also to the State Government and His Excellency Sri Rajya Pal on various dates, pressing their demands of claims of parity of the Car Drivers, attached to this court with their counterparts working under the Estate Department of the State of U.P. & attached with Hon''ble Ministers and the Officers but the said representations were of no avail. The petitioner has attached copies of various representation, beginning from 198990 to the last representation addressed to His Excellency the Governor of Uttar Pradesh dated 1681993. There being no action taken by the Government the petitioner felt the necessity to move this Court and has moved the Court by filing this petition under Article 226 of the Constitution of India for the reliefs claimed.

The notice of the petition having been served counteraffidavits have been filed on behalf of opposite parties 3 and 4 as well as a supplementary counteraffidavit has also been filed on behalf of opposite parties nos. 3 and 4, On behalf of opposite parties 1,2, 6 and 7 counteraffidavit sworn on 14121993 has been filed.

To the above counteraffidavits and supplementary counteraffidavit two rejoinderaffidavits, sworn on 21121993, have been filed on behalf of the petitioner.

In the counteraffidavit on behalf of the opposite parties 3 and 4 it has been stated, vide paragraph 4, the relevant portion of which reads as under :

"It is relevant to state that the Government order dated 1871985 contained in Annexure No. 7 to the writ petition and Government Order dated 691989 contained in Annexure No. 8 to the writ petition are not applicable to the Motor Car Drivers serving under High Court. It is relevant to state that the Government Order dated 1871985 provides that the Drivers of the Government Estate Department have been allowed honoraria equivalent to one month salary in a year in consideration of their arduous duties even on gazetted holidays, second Saturdays and Sundays. In this connection it is relevant to state that the special pay is allowed to the Government employees on the basis of nature of duties and responsibility and not according to the nomenclature and status of the post. In this way special honoraria was allowed to the Motor Car Drivers of Government Estate Department keeping in view the arduous duties assigned to them as Motor Car Drivers of Estate Department, attached to the Officers of the Secretariat and Ministers are to accompany with the said Officers and Ministers during odd hours namely in the morning and also in late hours of the night. Even the aforementioned Drivers are required to drive Motor Cars of the Officers and Ministers in the gazetted holidays. Thus, it is manifest that the Motor Car drivers of the Estate Department stand on different footing as compared to the Motor Car Drivers of the High Court. Keeping in view the aforementioned facts and circumstances, the Pay Rationalization Committee has recommended honoraria equivalent to one month salary to the Drivers of Motor Cars relating to the Estate Department in accordance with the provisions contained in the Fundamental Rule 9(25) of Financial Hand Book Vol. II, PartII to IV. It is further stated that the Motor Car Drivers of the Estate Department have been separately classified for the grant of honoraria looking to their arduous nature of work as mentioned above. It is further relevant to state that the Motor Car Drivers of the High Court are not required to go outside the Station, therefore, they are not entitled to the honoraria as provided to the Motor Car Drivers of the Estate Department. It is also relevant to state that the Motor Car Drivers of the High Court enjoy five days week as well as summer vacation but the Motor Car Drivers of the Estate Department do not have such privileges and facilities as stated above. In view of the above facts and circumstances, the enforcement of the Government Order dated 1871985 contained in Annexure No. 7 to the writ petition and the Government Order dated 6989, contained in Annexure No. 8 to the writ petition is misconceived."

In paragraph 9 it has been stated that matter relating to grant of one month pay in respect of all employees who may be summoned at any time of day and night on duty and who are unable to enjoy public holidays is under consideration before Mukhya Sachiv Samiti and the matter relating to Driver of the High Court Motor Cars may also be considered by the Samiti. The State Government has tried to maintain the stand that the duties of the Motor Car Drivers of Hon''ble High Court are much lighter as compared to that of Secretariat or of the Estate Department.

With respect to the challenge made by the petitioner to G.O. dated 12990, contained in Annexure No. 9 to the writ petition it has been stated in paragraph 12 as under :

"It is absolutely misconceived to allege that the Government Order dated 1291990, contained in Annexure No. 9 to the writ petition is contrary to letter and spirit of Section 22B of the Act. In this connection it is relevant to state that as regards the admissibility of petrol consumption to the Hon''ble Judges twofold classes have been made, namely, those Hon''ble Judges who opt to enjoy facility of Motor Car with Drivers and secondly those Hon''ble Judges who do not opt to enjoy the Government facility of Motor Car and Drivers. It is further stated that Section 22B of the Act is applicable to the class of the Hon''ble Judges who opt for facility of Govt. Drivers and Motor Car and in respect of other category the Government Order dated 1291990 provides Rs. 3500/ per month as enhanced subsequently. In this way it is absolutely misconceived to argue that the order dated 1291990 transgresses the provisions contained in Section 22B of the Act."

In this paragraph it has further been stated that writ petition No. 25902 of 1990 had been filed before this Hon''ble Court at Allahabad, and this Hon''ble Court issued order staying the order of the State Government, transferring the services of the Drivers rendered surplus due to option of Hon''ble Judges for use of their own cars instead of staff cars. It has further been stated that in W. P. No. 25902 of 1990 the validity of the Govt. Order dated 12990 has been challenged and the Government has filed a counteraffidavit in that writ petition as well. The stand of the State is that the G. O. does not purport to amend section 22B of the High Court Judges (Conditions of Service) Act, 1954. In the counteraffidavit it has further been mentioned vide paragraph 13 that the amount or figure of amount of Rs. 3500/ has been raised to Rs. 4045/ per month which means no reduction in the facility. As regards the limit of petrol, it has been prescribed in Government of India''s Act and the State Government is following the said provision. The said order, according to the stand, taken by opposite party no. 4, is rational and does not suffer from want of power or authority to issue and it is in tune with section 22B of the Act. That opposite parties nos. 3 and 4 have stated that no right or the interest of car drivers of the Staff Cars of the High Court is affected as a result of this G. O. dated 1291990 and so the petitionerassociation on behalf of its members who are car drivers has got no right to challenge the vires dated 1291990. The case of opposite party No. 3 is that challenge to the vires of either G. O. dated 1291990 or to the validity or to challenge vires of section 22B of the Act or any part of that section as has been referred to in paragraph 6 of the writ petition is misconceived and without any authority. No right of the petitioner by existence of section 22B of the Act as it is after its amendment by Act of 1986 or by G. O. dated 1291990 is affected. As such the petitioner''s claim for challenge is not maintainable.

On behalf of opposite party No. 4 supplementary counter affidavit, sworn by Sri R.K. Verma, Joint Secretary, Finance, Government of Uttar Pradesh, taking almost the same stand, has been filed.

On behalf of the High Court i.e. opposite parties nos. 1, 2, 6 and 7 counteraffidavit, sworn by Sri D.K. Chaterjee, Deputy Registrar of the High Court has been filed. In paragraph 4 of the counteraffidavit it has been stated that in pursuance of the representation the Government was moved for parity for the drivers of the High Court with that of the Government. The Deputy Registrar has asserted in the affidavit that the Addl. Registrar of the High Court at Lucknow sent a letter to the Legal Remembrancer of the Government of U.P., Lucknow with a request to apprise the court of the fact as to whether the Drivers of the Secretariat were paid an extra remuneration as claimed and if so the Government be moved to provide same facilities to the Staff Car drivers of the High Court. Vide the letter dated 26693 the Government was moved to provide the financial benefits to the Drivers of the Cars of the Court at par to those of U.P. Secretariat. A copy of the letter dated 26693 sent by Sri Bhanwar Singh, Registrar of the High Court to the Legal Remembrancer, Government of U.P. has been annexed as Annexure 1 to that counteraffidavit. In paragraph 5 of the counteraffidavit it has been stated that the Drivers attached to Hon''ble Judges of the High Court are directly under the control and at the disposal of their Lordships and work as required by their Lordships. They are also required to work during holidays, gazetted and otherwise when and if so required by Hon''ble Judge and till time the judges require. There is however no record of fixed duties of the Driver of the Court. Normally their duties start at 9 a. m. and they are expected to report to duty well in time and to work till Hon''ble Judges so required the services of the driver or at any time during the day or night. A perusal of Annexure1 to the counteraffidavit shows like that to be the stand of the High Court.

In paragraph 6 of the counteraffidavit of the Deputy Registrar on behalf of opposite parties 1,2,6 and 7 it has been stated that on a representation being made by Class IV employees Association the question of arduous nature of duties of the drivers was considered and as per order dated 851991 of the then Chief Justice it was observed that the drivers are to be directed to maintain the dutybook and they may be paid for extra work done by them beyond eight hours according to their duty as verified by dutybook and that they should be paid Rs. 2/ per extra hour, subject to the maximum of Rs. 100/ per month but the said order dated 851991 could not be implemented.

On behalf of the petitioner I have heard Sri M. Kamaluddin, Advocate. I have also heard Sri Ram Sevak Tripathi, the learned Standing Counsel for the State of U.P., representing opposite parties 1 to 4 and 6 & 7. Dr. Ashok Nigam, Senior Standing Counsel for the Central Government, assisted by Sri K. M. N. Chak Standing Counsel, also put in appearance on behalf of Union of India. I have also heard Sri R. N. Trivedi, Senior Advocate as well as Sri D.C. Mukerjee and Sri S. Mirza, Advocates as Amicus Curiae, who rendered great assistance to the Court.

21 A. At the time of the hearing, a preliminary objection was raised by Dr. Ashok Nigam, Senior Standing Counsel for the Union of India as regards challenge to the vires of part of Section 22B of High Court Judges (Conditions of Service) Act, 1954 as amended by Act of 1986, Annexure No. 1 to the writ petition. I first propose to deal with the preliminary objections, raised on behalf of the Union of India by Dr. Ashok Kumar Nigam, Senior Standing Counsel for the Central Government as well as on behalf of the State by the Standing Counsel Sri R.S. Tripathi.

Dr. Nigam submitted that the petitionerassociation is not in any manner adversely affected by any part of Section 22B nor any member thereof is adversely affected by its existence in the present form, though without admitting or without conceding it may for a moment be taken that there may be some strength in the contention of the petitioner''s counsel that there should not have been latter part which the petitioner has addressed as the tailend part of Section 22B. In other words if the expression "or the actual consumption of petrol per month whichever is less" would not have been in the section, it would have been proper and say better but that does not mean that the petitioner is entitled to challenge its validity nor does the latter part have tendency of rendering section 22B to be an ultra vires. I have given my consideration to the preliminary objection of Dr. Ashok Nigam and I may mention that Shri Kamaluddin, the petitioner''s counsel also submitted that considering the circumstances that the petitioners or members of the petitionerassociation are not directly personally affected by Section 22B as it exists, the question of vires of section 22B need not be considered and decided. The preliminary objection raised by the learned Senior Standing Counsel for the Central Government is accepted and the question of legality of section 22B or any part thereof is not being considered and decided and it is held that the petitioner is not entitled to challenge the vires of section 22B. Thus preliminary objection of the Senior Standing Counsel for the Central Government to the question of vires of Section 22B is sustained and no decision is being given on that point.

On behalf of the State of U.P. Sri Ram Sevak Tripathi, learned Standing Counsel also raised the preliminary objection to the effect that G.O. dated 1291990, contained in Annexure No. 9 is not open to challenge by the petitioner. The petitioner cannot be aggrieved by that G.O. No right of petitioner or the members of the Association and particularly of Staff Car drivers is going to be adversely affected by the G. O. nor their interest is going to be jeopardised. Sri Tripathi submitted the question of vires can be raised only if a party alleges or proves or shows any document and on the basis of that document or enactment that he or his interest or the interest of its members is going to be adversely affected and as in the present case no right of the petitioner or its members is adversely affected in any manner by this G. O. the petitioner is not entitled to maintain the petition for the relief No. 6 that is for and in effect declaring and holding the G. O. to be illegal and ultra vires. This contention of Sri R. S. Tripathi was replied by the petitioner''s counsel by submitting that the Staff Car Drivers, working in the High Court, are the employees of the High Court and are and have been appointed by the orders of the Court. From the perusal of Annexures 2 and 3 it appears that their lien is in the High Court. Sri Kamaluddin submitted that the Drivers of the Staff Cars of the High Court, being the High Court employees, appointed by the orders of the Court and on the staff cars being allowed to be surrendered in pursuance of Annexure No. 9, do and are going to suffer adversely, by the jeopardizing of their services and employment as when the cars will be surrendered by Hon''ble Judges, opting the amounts offered as per G. O. The vacancies of the posts of Drivers will go to obliteration and come to an end rendering the Drivers, that is, the members of the Association jeopardized and so the petitioner has got every right to challenge the vires and legality of G. O. dated 12990. Sri Kamaluddin further submitted that in addition to challenging the validity the petitioners in this petition have raised their grievances against unequal treatment meted to them by the State Government in the matter of financial benefits so the petition is maintainable. In reply to the above contention of the learned counsel for the petitioner the Standing Counsel referred to clause (6) of paragraph 1 and submitted that their services may not be terminated, the Staff Car drivers of High Court may not be rendered jobless and they may and their services may be transferred to the State alongwith the Car and they may be absorbed by the State Government according to its requirement in future. I have applied my mind to the contentions of the learned Standing Counsel as well as to that of the petitioner''s counsel as regards this preliminary objection. From the perusal of Annexure No. 6 and the consequences flowing therefrom it appears to me that the apprehension of the petitioners of likely injury to the Staff Car drivers and their interest cannot be minimised or overlooked because when they are appointees of the High Court, they are employees of the High Court, staff cars being surrendered and being returned to the State Government in that case the services of the Staff Car drivers of the High Court may come to be jeopardized and if the State Government fails to absorb such person he is bound to be rendered without employment i.e. jobless. So there is every apprehension or likelihood of the staff car drivers being adversely affected by exercise of the option under this order dated 12990. As such, in my opinion there is no substance in the preliminary objection raised by the learned Standing counsel with reference to the maintainability of the petition regarding the relief no ''6'' and in my view the petition is maintainable and the petitioner is entitled to be heard. The petitioner''s claim needs be considered in this respect as well as on other points on merits.

I first propose to deal with reliefs nos. 2, 3 and 4 or in other words the reliefs referred to in the early part of this judgment as reliefs nos. b, c and d. In this context reference is made to Annexure No. 7, i.e. G. O. dated 18785. It has been submitted by Sri Kamaluddin that by the G. O. an honorarium of one month''s additional salary every year has been sanctioned and is being paid to the Motor Car Drivers of the cars under the control of the Estate Department of State of Uttar Pradesh and thus they are being paid thirteen months'' salary in a year. My attention was also invited to another G. O. dated 691989, issued by the State Government (Estate Department) and also to the Annexure to that G. O. dated 6989 and particularly to the entries nos. 29, 30 and 31 and it was contended by the learned counsel for the petitioner that under this G. O. as regards the staff car and matters concerned therewith three posts have been created in the Secretariat, i.e. of Motor Mechanic, Head Driver and the Driver. It was further submitted that a perusal of these will further show that a special pay of Rs. 100/ per month has been sanctioned for the Staff Car drivers, attached to the Ministers with effect from January, 1987 and a special pay of Rs. 80/ per month has been sanctioned for other drivers.

The petitioner''s counsel has submitted that the special honorarium of one month''s additional pay every year as well as the special salary of Rs. 100/ or 80/ as the case may be which is being paid to the Staff Car drivers of the Secretariat, attached to the Ministers or other officers has neither been sanctioned nor is being paid to the Staff Car drivers of the High Court, either attached to Hon''ble Judges'' cars or to other drivers, without any rhyme or reason, though the car drivers perform same duties as the car Drivers of the Estate Department of the State Government. Sri Kamaluddin submitted that this conduct of the Government is derogatory as well as discriminatory. He further submitted that it is well settled that persons similarly circumstanced be treated equally and denial of this runs counter to the basic principle of the Constitutional law of doctrine of equality, enshrined in Art. 14 as well as it runs counter to the principle of equal pay for equal work. The petitioner''s counsel submitted that there is no rationale or reason for the state action in denying the motor car drivers of the High Court Staff cars the same equal pay or fame or equal financial or other benefits as are being made available to the drivers of the motor cars of the Estate Department of the Government. The learned counsel for the petitioner submitted that this action of the State Government is contrary to provisions of Art. 39(d) of the Constitution. The petitioner''s counsel submitted that in consonance with the letter and spirit of Art. 39(d) and Article 14 of the Constitution it is necessary that the opposite parties be directed by writ of mandamus to grant same financial and other benefits to the Motor Drivers of Staff Car of the High Court attached to the Judges as well as to other drivers which benefits are being and have been granted to the car drivers of the State either attached to the Ministers or otherwise.

The petitioner''s counsel further submitted that the action of the opposite parties particularly the State in not so far sanctioning and paying the car drivers attached to the High Court same financial and other benefits which are given to the Car drivers attached to the cars of the Ministers is rather derogatory of the Status of the High Court Judges. The learned Standing Counsel contested the above contention of the learned Counsel for the petitioner and contended that there is a rational classification amongst the two sets of Drivers, i.e. those attached to the Secretariat, the Ministers and other Officers on one hand and the other, i.e. the Drivers, attached to the Staff cars belonging to High Court including the Cars, allotted to Hon''ble Judges. Sri Tripathi invited my attention to the counteraffidavits as well as supplementary counteraffidavit, filed on behalf of the State of Uttar Pradesh i.e. opposite parties nos. 3 and 4 and contended that the basis on which the special honorarium of one month''s additional salary as well as special pay of Rs. 100/80 per month is being paid to the car drivers of the Estate Department of the U.P. Secretariat and attached to the Cars of the Ministers and Officers, is that these Car drivers are liable to be called for duty at any time during the 24 hours of day and night, i.e. on account of their arduous duties in day and night as well as on account of the fact that ordinary leaves on Saturdays and Sundays as well as Gazetted holidays are not available to these drivers and they are required to work during the holidays and vacation as and when needed by the Officer or the Ministers. The learned Standing Counsel submitted this is the very basis and reason why the car drivers of the Estate Department or that of the State of U.P. attached to the Ministers and others Officers are being paid honoraria and special pay and this is the basis for rational classification. The learned Standing Counsel submitted on the basis of the allegations made in the counteraffidavit of opposite parties 3 and 4 that such arduous duties are not required to be performed by the Drivers of the Staff Car of the High Court or Cars allotted to Judges any day or during holidays or gazetted holidays and ordinarily they work for eight hours and so the learned Standing Counsel submitted that there appears reason for their not being granted or given the special benefit. Sri Tripathi submitted that this does not affect the question of prestige or honour of Hon''ble Judges or the Court. Giving rejoinderaffidavit to this argument the learned counsel for the petitioner challenged the contention of the learned Standing Counsel and invited my attention to the allegations made in Annexure S2 dated 311990 under the head, resolution No. 4, as well as he further invited my attention to a representation dated 781990 Annexure No. S3, addressed to Hon''ble Chief Justice of Uttar Pradesh and in particular to Serial No. 5. The learned counsel for the petitioner also invited my attention to Annexure S7, resolution no. 2 referred therein as well as Resolution No. 8 of Annexure No. S9 dated 2nd March, 1992 and also resolution No. 9 as mentioned in representation dated 13992 Annexure 10, addressed to Hon''ble Chief Justice and lastly to grievance No. 2, mentioned in their representation dated 15th August, 1993, addressed to and presented to His Excellency, the Governor of Uttar Pradesh and on the basis thereof it was contended that it is wrong on the part of the State to deny the Motor Cars drivers of the High Court the parity in regard to financial and other benefits with their counter parts in the Secretariat. He submitted that Staff Car Drivers are and can be required to be present on duty to drive the cars of Hon''ble Judges or of the Officers to whom the Cars have been allotted and when Hon''ble Judges need or require or desire to use the car at any time during the day or night as well as on Saturdays, Sundays and gazetted holidays as is the case with the car drivers of the Secretariat. The learned counsel for the petitioner in support of his above contention invited my attention to the counteraffidavit, filed on behalf of opposite parties nos. 1, 2 and 6 and sworn by Dr. D.K. Chaterjee, Dy. Registrar of the High Court.

Sri R.N. Trivedi, the learned Senior Advocate whose contentions have been dittoed by Sri D.C. Mukerjee and Sri S. Mirza, Advocates, as well submitted that under Art. 221 it is only the Parliament which has been conferred the power to determine the salaries of the Judges of the High Court by law made by it and until the law is so made in that behalf the Judges are to receive the salary as has been specified in the Second Schedule. He has further submitted that under clause (2) of Art. 221 the Parliament is entitled to determine by the law enacted by it, the allowances as well as the rights in respect of leave of absence and pension. He further submitted that apart from Art. 221 the Parliament has got another source of legislative power to enact law relating to other facility and allowances or rights of Hon''ble Judges and that is under Art. 245 of the Constitution of India read with entry 97 of the Union List, i.e. list 1 of Schedule 7. He submitted the provisions relating to rent free house and the staff car with petrol etc. i.e. the provisions of Sections 22A and 22B of the High Court Judges Conditions of Service Act, 1954 which are in the nature of provisions, conferring rights or facilities other than those relating to leave and pension have been enacted and can be said to have been enacted in exercise of Legislative power under Art. 245 read with entry 97 of List 1 (Union List) of Second Schedule, i.e. under the residuary powers vested in the Central Parliament. He submitted that therefore it is only the parliament which can legislate or enact under Art. 221 or under Art. 245 of the Constitution, as mentioned above, in respect of matters touching or relating to the High Court Judges their salary and allowances and the rights and facilities. He further submitted that ordinarily the State has no power either to legislate or to pass an executive order affecting in any manner the conditions of the Services of the Judges or the rights and allowances of the Judges.

Sri Trivedi further submitted, keeping the object with which the provision for rent free official residence and staff car with petrol has been made in the Act, the services of the Drivers are essential part and parcel of the provisions of Staff Car, i.e. the Staff cars with itself and implies in itself the provisions for driver, i.e. the Driver is essential part of the provisions of the staff car or of a mobile staff car. He submitted that the provision for staff car is not like that a Judge shall be entitled to a staff car with petrol provided he knows the driving of the car or engages a driver and if the Parliament would have intended that the Driver is not taken to be the part and parcel of the staff car, the Parliament would have provided that a Judge would be entitled to Car provided he knows the driving or engages a driver on his own. Sri Mirza and Sri Mukerjee laid great emphasis on and support to this part of contention of Sri R. N. Trivedi.

Sri Trivedi further submitted that the liability to provide this car etc. falls ordinarily on the State Government because either Art. 202(3)(d) or it may be said to have fallen on the shoulders of the State Government because of and under Art. 258 of the Constitution read with the directions, if any, had been issued by the Government of India and if under those directions, the Government of India while delegating its function to the State Government to defray the expenses of the facilities provided to the Judge had authorised it to make alternative provision like the one, contained in Annexure No. 9, i.e. the G.O. dated 12990 then and then only the G. O. can be said to be valid and that is for the State Government to produce or to show.

Sri K M. N. Chak, Addl. Standing Counsel, Central Government on behalf of Senior Standing Counsel, Central Government submitted that if there is any such delegation empowering the State Government to issue G. O. Annexure9 dated 12990 the State Government can well produce it and that is for the State Government to show.

On behalf of the State Government it has been stated by the learned Standing Counsel that the G. O. Annexure9 has been issued under executive power read with Art. 258 but no such order has been issued by the Central Government as per instructions received from the opposite parties, i.e. the State authorities and inspite of the best efforts no Central Government order, purporting to have been issued under Art. 258 in this regard whereunder any such delegation of power can be said to have been done in favour of the State to make provisions for payment of cash in lieu of the facility of the staff car. He submitted that there is no need for such delegation in view of the provisions of the executive powers of the State read with Art. 258.

On special query being made from the Registrar in the Court and the Standing Counsel as well as from the petitioner''s counsel it has come out and the Court has been informed that there are no specific Service Rules regarding the staff car drivers of the High Court nor there are specific timings. The drivers, it has been stated, may be required to work as needed by Hon''ble Judges to whose car he is attached. They may be required to be present at arduous hours during day or night as well as during Saturdays, Sundays and other gazetted holidays. This being the position that there are no Services Rules in regard to the Drivers, of the Staff Car of the High Court as well as of the cars allotted to Hon''ble Judges the nature of their duties and the timing of their duty depend and is dependent to the requirements of the Judges or the Judges concerned or the Officers of the High Court concerned. The staff car may be required to be used at odd hours either in the early morning or during the late hours in the night to fetch an Hon''ble Judge of High Court or Supreme Court or of some other Hon''ble Judge of High Court or Supreme Court coming to visit Lucknow or Allahabad or the vice versa. The Drivers so may be required to work and to drive the car during hours of the night and day as per requirement either of the High Court, its registry or of the Judge or Judges to whom the cars allotted as the nature of the duty appears to be in the context of the position of the Court and its Judges. Let us examine it.

Rendering justice is difficult job. It is actually divine act. Unless the Judge or the Judicial Officer and in particular the Judge of the Highest Court in the State or that of the Apex Court of the country has reasonably worry free mental condition, it would be difficult to expect unsoiled justice from his hands In order that a Judge may be able to put his patience, perseverance and painstaking habits into his public functioning, it is absolutely necessary that the Judge enjoys freedom from personal worries. In a democratic polity the role of the Judiciary is indispensable. The efficient functioning of the Rule of Law under the aegis of which our democratic society can thrive requires an efficient, strong and enlightened carefree Judiciary. A Judiciary free from personal worries is the need of the time. To have that the nation has to pay the price.

As observed by Professor Pannick in his book entitled ''Judges'' and quoted by Hon''ble the Supreme Court in All India Judges Association Case reported in 1992(1) SCC page 119 at page 134........."Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid, make decision. Judges are mere mortals but they are asked to perform a function that is utterly divine". It is to be taken note of and has got to be realised that the Judges are human beings and required to perform utterly divine acts. That is why in the Constitution, Judges and the Courts have been given an important Constitutional position and are made the Constitutional dignitaries or servants of the laws and Constitution as established with certain positive rights and protections.

A perusal of the Constitution shows that the Courts and Judges have got the special Constitutional position as a part of judicature and their position in analogous and para materia to that of the political executive consisting of the Prime Minister and the Cabinet at the centre and the Chief Ministers and the Cabinet Ministers in the State. There are three wings of the State as conceived by the Constitution and provided therein, namely, the political executive, the legislature and the judicature consisting of the Supreme Court at the top or the Highest Court of the country and the High Courts as the highest court in the State subject to appellate jurisdiction of Supreme Court only and, as such, High Courts and the Supreme Court have been declared by the Constitution to be the Courts of record. I proceed further and examine requirement and need of the oaths under Constitution being administered to the Ministers, Judges etc. in the Schedule II of the Constitution and the oath that is administered to an Hon''ble Judge of a High Court under Art. 219 of the Constitution read with the form of the oath given in III Schedule or to Judge of the Supreme Court alongwith the oath that is being administered to a Minister of Union, be it an oath of Office or Secrecy in the light of Art. 124(6) or Art. 75(4) or Art. 164(3) of the Constitution, it becomes quite clear that the Judges of the High Court and of Supreme Court occupy the position and status of the Constitutional dignitaries instrumentalities similarly as that of the political executive. When I use the expression ''the political executive'' it means Council of Ministers and executive distinct from the administrative executive which is required to help and to implement the decisions of the political executive. The position of the Judges of the Courts is distinct and is not similar or same to that of the administrative executive. The decisions of the Court have always got to be implemented and adhered by the Executive. That being the position under the Constitutional law and as also been found like that by Hon''ble the Supreme Court in the matter of review petition no. 249 of 1992 and many other review petitions decided alongwith that and reported in 1993(3) SVLR (Labour) page 101. In the above mentioned All India Judges Association case Hon''ble the Supreme Court has been pleased to observe as under :

"The judicial service is not service in the sense of ''employment''. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the Council of Ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the state power are the ministers, the legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The Council of Ministers or the political executive is different from the Secretariat staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the Legislative staff. So also the Judges from Judicial staff. The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive............The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services, therefore, cannot be placed at par with the members of the Judiciary, either Constitutionally or functionally.

This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are In want cannot be free. Selfreliance is the foundation of independence. The society has a stake in ensuring the independence of the Judiciary, and no price is too heavy to secure it. To keep the judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself."

On these basic proposition of law and the principles laid down by Hon''ble the Supreme Court as well as emerging from the provisions of the Constitution regarding the Judges, their Constitutional position and need of independent judiciary and obligations of State in this regard and the well settled facts that the Judges are human being and are required to perform utterly divine act, it does emerge that it is the duty of the State and Society to keep them free from personal worries. The personality, knowledge and the capacity to maintain the dignity are additional aspects which are requited for successful functioning of the Judicial Institution, judicature and the Court, Keeping these basic principles in view Laws as to the conditions of the High Court and Supreme Court Judges were enacted under the Constitution of India as well as by Parliament as well as amended from time to time to provide amenities to make them free from mental and personal Worries or like. In this light provision for staff car as has been made, has got to be considered. What is the purpose behind the provision of Act providing the amenities like that Rent free Official Residence or of the Staff Car with petrel as have been made. In this context the reference need be made to the provisions of High Court Judges (Conditions of Service) Act, 1954. Before I proceed to refer it will be proper to make a reference to the provisions of Art. 221 of the Constitution of India. It reads as under :

Art. 221(1). There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.

(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament, until so determined, to such allowances and rights as are specified in the Second Schedule :

provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to hisdisadvantage after his appointment."

Originally, provisions for facility of rent free houses, conveyance allowances and other allowances known as sumptuary allowances were introduced as Section 22A, Section 22B and 22C in the Act of 1954 by the Act No. 35 of 1976 with effect from October 1, 1974. For the purpose of the present case original sections 22A and 22B as introduced by Act of 1976 are being quoted herewith.

22A. Facility of Rent Free Houses :

(1) Every Judge shall be entitled without payment of rent to the use of an official residence in accordance with such Rules as may from time to time be made in this behalf.

(2) Where a Judge does not avail himself of the use of an official residence, he may be paid every month an allowance of an amount equal to twelve and half percent of his salary.

22B. Conveyance Allowances :

Every Judge shall be entitled to a conveyance allowance of three hundred rupees per month subject to the maintenance of a motor car by him.

By Act No. 38 of 1986 in place of section 22B which had been originally introduced by Act of 1976 a completely new section was substituted vide section 5 of Act of 38 and the amended section 22B reads as under:

"22B. Conveyance Facilities :

Every Judge shall be entitled to a start car and one hundred and fifty liters of petrol every month, or the actual consumption of petrol per month, whichever is less".

By amending Act No. 48 of 1987 a minor amendment was introduced in section 22A(2) whereby it has been provided that if a Judge does not avail himself of an official residence he may be paid Rs. 2500/ and for expression ''of an amount equal to twelve and half percent of his salary'' the expression'' two thousand and five hundred rupees'' has been substituted.

Comparative reading of section 22B will reveal that originally section 22B provided for a monthly allowance of Rs. 300/ and later Rs. 500/ per month as conveyance allowance to which a Judge was declared entitled subject to the condition of maintenance of a motor car by him but by the Act of 1986 keeping in view the object of keeping the Judges carefree and free from personal worries specially relating to the maintenance of motor cars themselves as well as keeping them free from the problem of conveyance as well as to provide secured journey and movement the amendment was introduced in Section 22B. It was realized that the price of the petrol had been taking upward rising trend and the maintenance of a car has been increasing considerably day by day and had already increased as well the Parliament by Act No. 38 of 1986 amended and modified the provisions of Section 22B and provided that every Judge shall be entitled to a staff car and 150 litres of petrol every month or the actual consumption of petrol every month whichever is less. Why the provision of Staff Car has been made for its being provided to a Judge with petrol and why Judge has been declared to be entitled to a staff car as well as petrol ? Whether the maintenance of a car and the availability of a Driver are implied therein. It is trite principle of law that the provisions of Statute or Act have got to be interpreted in the light of the object and if there are two possible interpretations, one which is in consonance with and which has a tendency to fulfil and to fructify the object, that one which supports or helps in attaining the object has got to be adopted and accepted than the one that frustrates the object. When a Judge is entitled to a staff car and is entitled to the same for the period of his tenure of service, it means the staff car completely fit for user and capable of being moved, fit to work for the use of the Judge and his requirements, with all its essentials for being used and utilized by Judge without any worry is to be provided at State''s cost to the Judge. It has got to be maintained by the State in complete working order with all instrumentalities needed to run the car or to make the car move and run. When we consider it in this context the driver becomes an essential instrumentality as well as part and parcel of the staff car for the use of which the Judge has been declared entitled as per his requirement. The car means not rotten car of a defective or nonworkable car nor does it mean a mere superstructure of Car. Car means the vehicle known as car fit to move and fit to be used for the purpose it is provided. The purpose is that the Judge need not worry for the conveyance as and when he needs or requires to move either to discharge official as well as social function or responsibilities free from all sorts of personal and mental worries. The preamble of the Act of 1986 also indicates the object why this provision has been brought in the present shape, i.e. to relieve the Judge from all sorts of mental worries of cost of petrol and cost of maintenance of his personal car which includes in itself the instrumentality needed to drive the car, i.e. the Driver. When this is the object, in my opinion, it would be just and proper to hold that under the provisions of Section 22B every Judge is entitled to a staff car completely fit with all its necessary instrumentalities including the instrumentality needed for moving and driving it, i. e., a Driver for his use according to his requirement and needs, and to use of the petrol to the extent of certain specified defined limits such as one hundred and fifty litres or the like, per month as provided under Section 22B of the Act, apart from official outstation duty tours. It helps the user of petrol as well as its regulation and adjustments by one to whom it is allowed to be used during the period of a year per month without trouble and carefree but where there is a vagueness in this regard it may result in frustrating the object of keeping one free from care, for keeping whom care free the object of this provision as a step in aid in this regard is. So from this point of view there may be said to be some substance in the contention of the learned counsel for the petitioner that later part in Section 22B of the Act "Actual consumption per month whichever is less" ought not and should not have been there in the section but that is a matter of policy and that is for the Legislature to consider or to drop that portion or part. This is not for this Court to go into that nor such consideration can be held in any manner to help such conclusion nor on the basis thereof that any portion of Section 22B be held to be illegal, ultra vires or bad in law. I am not holding or suppressing any view and for the present be not taken to hold or express the view one way or the other on the question of vires of Section 22B of the Act or later part thereof. As I have mentioned earlier that whether the expression or actual consumption of petrol per month whichever is less or its user is legal or illegal or ultra vires or invalid which question has been raised by the petitioner''s counsel but later on petitioner''s counsel stated that as the question or the decision thereon does not affect the Drivers of the Staff Cars of the High Court Judges or their interest in any manner, as such on second thought he thought it better not to persue this question of ultra vires or legality or illegality of the expression "whichever less or the expression actual consumption of petrol per month whichever is less" at this stage any longer as pointed out by Dr. Ashok Nigam, Senior Standing Counsel, Central Government let it not be decided in present writ petition so that question of vires of Section 22B of Act is not being decided but left open to be considered at proper stage.

40A. Thus considered, in my opinion, the provision for staff car necessarily implies that a car to which a Judge is being declared entitled, should be fit to work, working and workable car, staff car free from defects, having all instrumentalities needed for its use and movement and working including the driver as part and parcel thereof as and when the Judges need and require its use any time or any day. This is for the reason that the Judge may not be subjected to any sort of mental or personal worry or tension including as to the means of conveyance or the maintenance of the car which might have been there earlier to the amendment of 1986 as under Act of 1976 the Judges were only entitled to the maintenance allowances subject to the condition that the Judge maintained his car. A Judge under Section 22B unamended by Act of 1986 had been entitled to conveyance allowance only on his maintaining the car so giving him relief and rid from such a worry particularly when the maintenance of the car had become costlier and to maintain his dignity as well in order to enable him the freedom from such problem the Legislature has made this provision and as such the interpretation to be placed needs be one which appears to be in consonance with the above object.

That the drivers being part and parcel and necessary as well as essential instrument of the Staff car to which a judge is entitled under section 22B of the Act the duties of the driver of the staff car allotted to the High Court Judges become more arduous. The drivers have to be available to the Judges concerned at the time, whensoever the use of car is needed by the Judge either for the purpose of official function or for discharge of social obligations as a human being. So the drivers in the above conditions are expected to be and may be required to perform the duty to move the car at any time either in the morning or during the day or even after 5 O''clock and even at night when the Judge requires and feels the necessity of the use of the car even during all the holidays also. As such the services of the drivers may be required by the Judges as and when needed by the Judges concerned, particularly when the law has declared them i.e. the Judges to be entitled to staff cars keeping pace with the dignity of the Office of the Judges and the responsibilites cast on him and the object of his being made secured and carefree. So it cannot be said that "the duties of the drivers of the staff of the High Court or cars allotted to Hon''ble Judge of the High Court are less arduous than that of drivers of the Staff motor cars of the Officers of the secretariat or of the Ministers. There being no specific rules on the subject of the service of the Staff Car drivers of the High Court I have considered this matter at length in this context as above in order to assess and with reference to the nature, scope and extent of the duties of the drivers of the Cars of the High Court and the High Court judges. Thus in nut shell I find that the duties of the staff car drivers of the High Court and particularly those allotted to Hon''ble Judges of the High Court are round the clock as required and needed by Hon''ble Judge reasonably. Their services may be and at times are required either in the morning at times of need as well as during night or late night even in case of need and necessity. Their services can be required by the Judges and the drivers are bound to render their services as above as well as during Saturday and Sundays as well as on gazetted holidays apart from the normal working court hours.

The affidavit filled by the Deputy Registrar of the High Court also proves the case of the petitioner in relation to duties of motor car drivers that they also perform and they can be required to perform the duties of the driving car arduously at any time during the day as well as after Court hours may be at night and during the Saturdays and Sundays and on gazetted holidays, as will appear from the perusal of various paragraphs of the counter affidavits, filed on behalf of the opposite parties nos. 1,2, 6 and 7. Thus considered, in my opinion, the stand taken by the State in its counteraffidavit as a ground for not providing the drivers of the High Court the same facilities of honoraria of one month''s additional pay every year as well as special pay of Rs. 100/ as being given to the staff car drivers of the Secretariat is incorrect, wrong, erroneous and appears to be based on no material data of facts or consideration and is without substance. In fact, as mentioned earlier, staff car drivers of the High Court and those attached with the Judges stand at par with their counter parts working in Secretariat with the Ministers and the Officers in the matter of working and functioning and when they stand at par there appears no reason to deny their valid claim which has so far been invalidly denied as regards one month''s additional pay as honoraria and special pay of Rs. 100/ referred to above in the light of the principle referred to in Annexure6. It is trite principle of law that Justice delayed is justice denied. The claim for the first time had been made in 1990 as per Annexure S2 and lastly it was made vide S 11 dated 15th August, 1993, the memorandum, addressed to his Excellency Rajyapal and not only this but a perusal of Annexure1 to the counter affidavit of the High Court also reveals that the Registrar has also recommended the case of these drivers to the Government vide letter dated June 26, 1993 in which it has been written that in the High Court also Drivers are required to attend their duties every day beyond normal office hours round the year but they are not provided the official facility which has been granted to the Drivers of the secretariat and the Registrar of the High Court requested the Government that the Drivers of this Court be also provided the same above facility. When this recommendation had itself been made by the Registry of this Court, there appears no reason why, inspire of the representation of the employees and request of the Registrar with assertion that the Drivers of this Court are throughout the year required to work beyond office hours every day, no action has been taken to redress their grievance for such a long time.

The learned Standing Counsel has submitted that the Union of the Employees may make representation directly to the Government and the Chief Secretary Committee which is a high power committee may consider the matter and may submit the report on the representation of the petitioner and so this Court need not exercise its jurisdiction in this regard. I am unable to accept this contention of the learned Standing Counsel when since 1990 till date no order has been passed irrespective of the recommendations of this Court and this Courts'' Registry, who well knew the relevant fact and recommended the matter for grant and when High Court itself has in respect of other employees of the High Court had laid down that parity be granted to them, as will appear from the perusal of Annexure No. 4 to the writ petition, that is judgment dated 26101988 delivered by the Division Bench of this Court in the case of Allahabad High Court Ministerial Officers Association at Allahabad v. State of U.P. (W. P. No. 21117 of 1987). There is no ground left to delay the matter for long as delay frustrates the whole object of the provisions of law and the purpose. If the instrumentality of drivers which makes the car move if is frustrated and the situation worsen the whole purpose of Section 22B is likely to be adversely affected and it may affect the working of the Court. Therefore, now it is not just and possible to accept the contention of the learned counsel for the State Sri Ram Sevak Tripathi learned Standing Counsel.

An regards relief no. 1 the petitioners have claimed that respondents be directed to deem the motor car drivers/members of the petitioner as permanent immediately on the expiry of one year from the date of their respective appointments and they be neither terminated nor transferred elsewhere. The relief, claimed in paragraph 1, is a subject matter of policy decision and it needed to be considered by the High Court itself by whom the drivers are appointed. No doubt Annexures 2 and 3 indicate that two Drivers Abdul Ajij and Sri Baboo Lal had been offered appointments by an order dated 22587, initially for three months and after three months it is provided that report will be obtained regarding his suitability and then appointment will be on probation for one year. Since 1987 six years have passed as regards these two persons. Similar orders must have been issued in respect of many other drivers. It is necessary for enabling a person to perform his job properly that he should not be kept in uncertainties for long. I have been informed by the Addl. Registrar of this Court that the Service Rules of the Motor Car Drivers are in the offing and are being framed and are in the process of getting final shape. In such circumstances at this stage I think it would be just and proper to observe that the opposite parties 1,2, 6 and 7 may expedite the matter and consider the cases of suitable persons for providing them certainty of their services in accordance with the Rules and the decisions of the Court at the earliest as far as possible within a period of six to nine months after the framing of rules. Apart from this I do not think it proper to issue any other writ, direction or order in this regard.

The last point to be considered by this Court is the question of legality and validity of G.O. dated 12990, which has been vehemently argued and challenged by the learned counsel for the petitioner Sri Kamaluddin. On behalf of the State it has been argued that the order is legal and valid and it does not in any way affect Section 22B or modify it. Sri Kamaluddin while challenging the validity of the order has made a reference to subsection (2) of Section 22A of the Act whereunder in the matter of official residence an option has been provided to Hon''ble Judges that Hon''ble Judges who do not opt to avail the facility of official residence they are to be paid every month allowances of Rs. 2500/ per month. Sri Kamaluddin submitted that as regards section 22B there is no such provision to option in the section 22B. The Central Parliament has not enacted any provision like subsection(2) of Section 22A in Section 22B and when this has not been enacted and provided it is not open to the State Executive or the State Government to issue such an order. Sri Kamaluddin submitted that if the Parliament would have intended any such alternative of option to be made available to the Judges it would definitely have enacted a provision like subsection (2) of Section 22A and so the G. O. Annexure No. 9 to the writ petition is per se illegal and bad in law. It is null and void and against legislative intent and ultra vires of the power of the State. It has further been contended that even it runs counter to the provision of Constitution of India particularly Art. 221 clause (2) and Section 22B of the High Court Judges (Condition of Service) Act, 1954 as amended uptodate and the intent of Parliament itself as amended in the Act.

I have given my consideration to the submission of the learned counsel for the petitioner. The question that has been posed with reference to Annexure No. 9 has really put a Judge to the test of his oath that he shall perform his duties to the best of his ability without fear or favour, affection or ill will . I have already quoted Art. 221 of the Constitution, According to clause (2) of Art. 221 it is only the Parliament which by lawmade by it determines the allowances, the rights and the conditions of services including the pay, leave, pension and no other authority is competent to do so. The Parliament has enacted High Court Judges'' (Conditions of Service) Act, 1954 and has amended it from time to time and by amendment of 1986 exercising powers under Art. 221(2) and Art. 245 of the Constitution read with Entry of List I Schedule VII of the Constitution of India it has provided that the Judges shall be entitled to staff car and 150 litres petrol per month or the actual consumption of petrol per month whichever is less vide Section 22B of the Act. There is no specific provision in the Act providing for an alternative option to be exercised by the Judge as to whether he will like to opt to have a car or not to opt official car or whether instead of car a Judge is entitled to opt for any fixed sum in lieu of the staff car facility. No doubt as submitted by the learned counsel for the petitioner provision for exercise of option not to avail the official residence under section 22A given vide subsection (2) thereof and exercise of option to receive the fixed sum of allowances makes a difference and leads one to the conclusion that though in case of official residence a Judge is entitled to opt the cash payment in lieu of use of official residence but there being no provision of the like nature in section 22B, the Parliament did not intend to provide for such an option or right to exercise of such option and when the Parliament did not so provide and the Constitution provides that it is the Parliament alone which can by law or enactment determine the rights, allowances or the terms and conditions of the services of a Judge of High Court, it means no other authority is entitled to issue any order or make any provision in any way contrary to that Regulation. When the Constitution itself has specified the instrumentalities for the purpose of the determining conditions of the service of the Judge of the High Court then according to well settled principle of law no authority is competent to issue any order except the one empowered under provisions of the Act enacted by the Parliament and that too not conflicting with Status and its legislative intent.

The learned Standing Counsel, as mentioned earlier, in this connection, has referred to the executive power of the State read with Art. 258 of the Constitution of India but no order or direction or delegation of power whereunder it could be said that the State Government could have provided an alternative in the form of the fixed sum in lieu of facility of the Car, referred to in Section 22B of the Act, has been produced or shown. Before I proceed further it will be just and proper to make a reference to the provision of Art. 202 of Constitution of India. Art. 202 deals with the annual financial statement estimate i.e. a statement of estimate receipts and expenditure of the State which has been referred as the annual financial statement. Art. 202 reads as under :

"Annual Financial Statement:

(1) The Governor shall in respect of every financial year cause to be laid before the House or Houses of the Legislature of the State a statement of the estimated receipts and expenditure of the State for that year, in this part referred to as the "annual financial statement."

(2) The estimates of expenditure embodied in the annual financial statement shall show separately

(a) the sums required to meet expenditure described by this Constitution as expenditure charged upon the Consolidated Fund of the State ; and

(b) the sums required to meet other expenditure proposed to be made from the Consolidated Fund of the State ; and shall distinguish expenditure on revenue account from other expenditure.

(3) The following expenditure shall be expenditure charged on the Consolidated Fund of each State

(a) The emoluments and allowances of the Governor and other expenditure relating to his office ;

(b) the salaries and allowances of the Speaker and the Deputy Speaker of the Legislative Assembly and, in the case of a State having a Legislative Council, also of the Chairman and the Deputy Chairman of the Legislative Council ;

(c) debt charges for which the State is liable including interest, sinking fund charges and redemption charges, and other expenditure relating to the raising of loans and the service and redemption of debt ;

(d) expenditure in respect of the salaries and allowances of Judges of any High Court ;

(e) any sums required to satisfy any judgment, decree or award of any court or arbitral tribunal ;

(f) any other expenditure declared by this Constitution, or by the Legislature of the State by Law, to be so charged."

perusal of clause (3) of Art. 202 shows the category to expenditure. Such expenditure shall be the expenditure charged on the Consolidated Fund of each State and as per subclause (d) of clause (3) of Art. 202 the expenditure in respect of salaries and allowances of the Judges of the High Court have been declared to be the expenditure charged on the Consolidated Fund of each State ; and as per Art. 203 the estimates relating to expenditure charged on Consolidated Fund of a State, it is provided shall not be submitted to the vote of Legislative Assembly.

The expression ''allowance'' has been derived from the expression ''allow''. Expression ''allow'' means to bestow or to assign anyone as his right or due. It means to grant something or to allow a sum or some benefits or facility. Allowance may be in the form of cash or kind but capable of being valued in terms of money. As such in my opinion the burden that the State has to bear in respect of salaries or allowances of the Judges of the High Court is expression charged on the Consolidated Fund of each State under Art. 202 (3) (d). That being the position Art. 258 does not require any consideration as this cannot be a case covered under Art. 258, consideration itself makes the expenditure in respect of salaries and allowances of the Judges of any High Court to be the expenditure charged on the Consolidated Fund of the State. The terms and conditions including allowances and facilities provided or to be provided to the Judges of the High Court being exclusively the subject matter of the Legislative competence of Parliament and having been successfully allocated to the Legislative sphere of Parliament the State Legislature is not competent to make any legislation. That being the position of law under the Constitution I am of the opinion that the expenditure power of the State does not extend to that sphere so as to entitle the State to modify the said terms and conditions or to provide something which may per se appear to be against the Legislative intent of the Parliament. The Parliament must have thought that cash allowances for conveyance would not be a substitute to the Staff Car to fulfil the very object for which the staff car facility is provided and for which the Judges have been declared entitled, otherwise it would have retained the original Section 22B as an alternative provision as well and would have provided for cash allowance in lieu of the Car as it has made under Section 22A(2) of the Act.

The executive power of the State is provided under Art. 154 of the Constitution and its extent has been defined by Art. 162. Art. 154 of the Constitution reads as under ;

"Executive power of the State :(1) The Executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

(2) Nothing in this Article shall

(a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority ; or

(b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Govern or."

Art. 162 which defines the extent of the executive power of the State reads as under ;

"Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws ;

Provided that in any matter with respect of which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof."

A perusal of Art. 162 per se shows that extent of the executive power of the State is coterminus with the Legislative power of the State Legislature and it extends to the matter "over which the State Legislature has law making power but" not to the matters coming within the domain of Central Parliament and as such in respect of the matters coming exclusively within the domain of legislative power of the Central Parliament the executive power of the State does not extend unless the Act passed by the parliament delegates certain powers on the executive of the State or cases where state acts as an agent or delegate of Union of India. The order impugned dated 12th September, 1990 per se appears to be an order, passed by the State Government in relation to a matter which falls exclusively within the domain of Parliament under Art. 221 (2) of the Constitution of India and on which subject even the State legislature cannot enact a law. It has an effect of introducing a modification to Section 22B of the Act by providing for option or making provision of option which Central Parliament by itself did not provide in the Act. That being so, in my opinion, the order contained in the communication letter dated 12990, issued under the signatures of Sri K.L. Sharma, the then Judicial Secretary to the State Government and addressed to the Registrar, High Court is per se illegal and without jurisdiction including the order, contained therein as the State Government could not issue such an order in view of the provisions of Art. 221 read with Art. 154 and 162 of the Constitution and the provisions of the Act 1954 as amended uptodate, as such is held to be illegal, null and inoperative as being in excess of authority.

No other point has been pressed.

Thus having considered the matter at length I am of the view that the writ petition be allowed in part. The writ petition is hereby allowed by holding that G. O. dated 12990, contained in Annexure No. 9 and bearing No. 3112/7Nyaya17/1990 whereby option was given to the Judges of the High Court to receive the fixed sum as allowances in lieu of the staff car and petrol which provides for transfer of services of the Drivers on surrender of Car by the Judges of the Court to Secretariat is held to be without jurisdiction and illegal, null and void and inoperative and mandamus is issued to the opposite parties not to give effect to this order henceforth particularly in relation to the Staff Car drivers of the High Court.

Writ of mandamus is further issued to the opposite parties 3 and 4 to award and grant the staff car drivers, working in the High Court as well as to those attached with the Staff Car of the High Court Judges the honorarium of one month additional pay every year as well as to pay them special pay of Rs. 100/per month which is being paid to the car drivers of the Secretariat attached to the Staff Cars of the Ministers and the Officers as well as to treat the High Court staff car drivers at the par with their counterparts in the Secretariat. These benefits should be extended to them from the date these benefits have been given to the Staff Car drivers of the Estate Department of the State of Uttar Pradesh under G. O. No. 7897/32195406/78 Lucknow dated July, 1985, issued under the signatures of Sri Zafarul Hasan Khan, Joint Secretary and Officer, Estate Department of the State of U.P. Government. It is further directed that the expeditious action be taken in the matter of payment of arrears of the honoraria and the special pay for the period due uptodate and it should be done as early as possible but not exceeding the period of three months from today in making the payment of arrears of honoraria and special pay and the aforesaid additional one month''s additional pay should thereafter be paid regularly in future, as and when becomes due and payable and the special pay of Rs. 100/ per month be paid regularly every month alongwith the pay and other due allowances henceforth.

It is further directed that by this writ of mandamus the G. O. dated 12990 No. 3112 as contained in Annexure No. 9 be not given effect to against the motor car drivers nor any clause thereof and in pursuance thereof nor for the exercise of option by a Judge in pursuance thereof the services of any driver should be terminated or transferred elsewhere as the said G. O. issued by the then Judicial Secretary is illegal, null and void and inoperative and is ultra vires of the provisions of the Constitution particularly Art. 221 (2) of the Constitution of India. The opposite parties 1 to 6 and 7 are expected and are required to consider expeditiously the cases of Staff Car Drivers for regularisation or for being made permanent particularly of those who fulfil the requirements of the Rules that are in offing and the matter may be expedited as early as possible within a period of six months or more but not exceeding twelve months from today if possible but in every case within Six months period from the framing of rules which ever is earlier.

As regards the relief regarding creation of posts, of Head Driver and Motor Mechanic these are matters of policy to be determined by the Government in due course of time after consultation with Hon''ble the Chief Justice of the High Court and of the taking note of the existence of such post in Government Secretariat and other relevant financial circumstances and as such it is for the Government and the High Court (Chief Justice) to consider them and as such at this stage no relief is being granted to the petitionerAssociation. With these observations and the grant of above reliefs the writ petition is finally disposed of and is hereby being allowed to the extent as mentioned above.