Case: Class IV Employees Association, High Court of Judicature and Anr. Vs State of U.P. and Ors.. High Court of Allahabad (India)
| Judges | Tarun Agarwala, J. |
| Issue | Service Laws |
| Citation | 2009 (3) AWC 2888 |
| Judgement Date | May 27, 2009 |
| Court | High Court of Allahabad (India) |
Judgment:
Tarun Agarwala, J.
1. By means of this petition, the petitioners have prayed for the quashing of the order dated 28.2.2007, passed by the Principal Secretary (Nyay) whereby the recommendation of the Chief Justice for the enhancement of the pay scale of Class IV employees of the High Court, made under Article 229 (2) of the Constitution of India, has been refused. The petitioners have also prayed for the quashing of the resolution dated 29.7.2006 made by a High Powered Committee comprising of the officers of the High Court and officers of the State Government, which was constituted to sort out the differences with regard to the proposed enhancement of the pay scale. The petitioners have also prayed that a mandamus be issued to the State Government to implement the recommendation of the Chief Justice with regard to the fixation of the pay scale.
2. The facts leading to the filing of the writ petition is, that the petitioner is an Association of the Class IV employees of the High Court of Judicature at Allahabad and had filed a Writ Petition No. 15211 of 1997, seeking a writ of mandamus commanding the State Government to grant the pay scale of Rs. 975-1, 600 to Class IV employees w.e.f. 1.1.1986 with all consequential benefits and also the scale of Rs. 1,000-1,750 w.e.f. 1.1.1986. The contention raised in the said writ petition for granting a higher pay scale was that similarly situated persons were receiving a higher pay scale in the Delhi High Court. The said writ petition was allowed by a judgment dated 6.2.1998 The operative portion of the judgment of the learned single Judge is quoted herein:
For the reasons stated above, present writ petition succeeds and is allowed. The respondents are hereby directed to pay salary in the pay scale of Rs. 975-1,660 to all those Class IV employees who are presently in the pay scale of Rs. 750-940 and the salary of Rs. 1,000-1,750 to all such Class IV employees who are presently in the pay scale of Rs. 775-1,025 without affecting, in any manner, the allowances which they are presently getting. The revised pay scales shall be made available to the class-IV employees of this Court with effect from 1st July, ' 1994 (1.7.1994). The petitioners shall be paid the salary in the revised scale of pay, as said above, for the month of February payable on 1st March, 1998. So far as arrears part is concerned (w.e.f. 1.7.1994 to January, 1998 payable in February, 1998), the same shall be payable only after issuance of Government order in the light of directions contained in this judgment.
3. Aggrieved, by the decision of the learned single Judge, the State Government preferred an intra Court appeal, being Special Appeal No. 200 of 1998, which was allowed by a judgment dated 5.11.2003 and the order of the learned single Judge was set aside. The Division Bench held that it was open to the Chief Justice to take a decision with regard to grant of a higher pay scale.
4. Apart from Class IV employees of the High Court, the Section Officers, Bench Secretaries and the Private Secretaries were also agitating for a higher pay scale. Several writ petitions of Section Officers, Private Secretaries, Bench Secretaries and Assistant Registrars were allowed by the High Court by various judgments dated 29.7.1998, 22.11.1999, 16.11.2000 and 20.5.2003. Against these judgments, the State Government filed a special leave petition which was allowed by the Supreme Court by a judgment dated 27.9.2004 in Civil Appeal No. 1980 of 2000, State of U.P. v. Section Officer Brotherhood and Anr. 2004 (4) AWC 3396 (SC). The Supreme Court, while setting aside the judgments of the High Court directed as under:
We, therefore, are of the opinion that the impugned 'judgments cannot be sustained which are set aside accordingly. However, this order shall be subject to the rules framed by the Chief Justice in the case of the Private Secretaries of the High Court. It will, however be open to the Chief Justice of the Allahabad High Court to frame appropriate rules as has been done in the case of the Private Secretaries or constitute an appropriate committee for the said purpose We have no doubt in our mind that if such committee is constituted and any recommendation is made for enhancement of the scale of pay for the concerned officers by the Chief justice, the same would be considered by the State Government in its proper perspective and in the light of the observations made hereinbefore expeditiously.
For the reasons aforementioned, these appeals are allowed with the aforementioned observations. No Costs.
5. The Supreme Court issued the aforesaid directions based on the reasoning that no mandamus could be issued by the High Court under Article 226 of the Constitution with regard to the increase in the pay-scale of an employee of the High Court and that such determination of the pay-scale could only be done by the Chief Justice under Article 229 of the Constitution of India. The Supreme Court held:
There cannot be any doubt or dispute whatsoever that determination of different scales of pay for different categories of employees would ordinarily fall within the realm of an expert body like the Pay Commission or Pay Committee. The Chief Justice of a High Court exercises constitutional power in terms of Article 229 of: the Constitution of India.
and at another place, the Supreme Court held that the provision of Article 229 was evidently made to uphold the independence of the judiciary. The Supreme Court, at yet another place, further held:
A bare perusal of the aforementioned provision would clearly go to show that laying down the conditions of service applicable in the case of staff and officers of a High Court is within the exclusive domain of the Chief Justice but in case of any financial implication involving therein the approval of the State Governor is imperative.
6. The Supreme Court, while referring to its earlier decision in State of Maharashtra v. Association of Court Stenos, P. A., P. S. and Anr. 2002 (2) SCC 141, and in the Supreme Court Employees' Welfare Association v. Union of India and Anr. 1989 (4) SCC 187, held that any Rules made by the Chief Justice relating to salaries, allowances, leave or pension of the employees of the High Court would require approval of the Governor and that such approval was a condition precedent to the validity of the rules made by the Chief Justice. The Supreme Court further held that when the Chief Justice of the High Court makes a Rule providing a particular pay scale for its employees, the same should ordinarily be approved by the Governor unless there was a justifiable reason for not approving the same. At another place, the Supreme Court held:
Having regard to the high position and status enjoyed by the Chief Justice, it was observed, his recommendations. should ordinarily be approved by the State and refusal thereof must be for strong and adequate reasons.
7. In the light of the aforesaid decisions of the Supreme Court in the matter of Section Officers, Bench Secretaries, etc., the special leave petition of the present petitioners was accordingly disposed of in terms of the said decision by a judgment dated 15.10.2004.
8. In accordance with the directions issued by the Supreme Court, the Chief Justice, by its order dated 28.11.2004, constituted a Committee of four Hon'ble Judges to consider and recommend the rules with regard to the pay-scale of the employees of the establishment of the High Court. The aforesaid Committee submitted its report on 23.12.2004 and gave its recommendation of the pay-scales of Section Officers, Bench Secretaries, etc. The Committee also recommended the pay-scale of Class IV employees. The relevant portion of the recommendation of the Committee with regard to Class IV employees for which this petition is concerned, is quoted herein:
For Class IV employees we recommend that all Class IV employees irrespective of their categories, except those for whom the recruitment is provided by promotion namely, Jamadar, Daftari, Bundle lifter and Head Mali in Rule 4 (b) to (e) of the Rules of 1976 and those who are required to possess technical qualification for recruitment, should be placed in the pay scale of Rs. 3,050-4,590. The others namely the promotional posts and technical posts be given the pay scale of Rs. 3,200-4,900 with all admissible allowances which they are getting at present in respect of different categories of post with regard to the nature of duties performed by them.
9. The aforesaid recommendation was approved by the Chief Justice by an order dated 24.12.2004, holding:
I find the recommendations to be reasonable and accept the report. Government be moved forthwith with a request to implement the recommendations at the earliest.
10. In accordance with the recommendations made by the Committee vis-a-vis, the Chief Justice, a draft Rule known as "Allahabad High Court Officers and Staff (Conditions of Service and Conduct) (Amendment) Rules, 2005 (hereinafter referred to as the 'Rules of 2005') and "Allahabad High Court Bench Secretaries Conditions of Service Rules. 2004" were framed and the Registrar General remitted the same to the State Government for necessary approval. The State Government, by an order dated 8.10.2005, communicated the approval of the Governor with regard to the Allahabad High Court Bench Secretaries Conditions of Service Rules, 2004. No decision was however, taken by the State Government with regard to the Rules of 2005.
11. The correspondence between the High Court and the State Government (as culled out from various affidavits filed) suggests that the Registrar General wrote a letter, dated 26.12.2004, to the Principal Secretary (Judicial) to move the Government for taking necessary action on the implementation of the recommendations. Vide letter dated 16.2.2005, the draft Rules were transmitted by the Registrar General. It transpires that a High Power Committee involving officers of the High...
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