Madhya Pradesh High Court
Kishan Pilley vs Shri Satyendra Kumar Singh on 5 September, 2019
Author: J.K. Maheshwari
Bench: J.K. Maheshwari
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The High Court of Madhya Pradesh
CONC No.3350/2018
(KISHAN PILLEY Vs SHRI SATYENDRA KUMAR SINGH)
Jabalpur, Dt. 05/9/2019
Shri Swapnil Ganguly, learned counsel for the applicants.
Shri Shashank Shekhar, learned Advocate General with Shri
Praveen Dubey, learned Dy. A.G. for non-applicant Nos.1 to 3, 5 and
6/State.
Shri K.N. Fakhruddin, learned counsel for non-applicant
No.4.
This contempt petition is arising out of the non-compliance of
the directions contained in para-22 of the order dated 28.4.2017
passed in W.P. No.7058/2016, which are as under -
"So far as relief in regard to grant of higher
pay scale and allowances are concerned, in view of
the principle of law laid down by the Constitution
Bench of the Apex Court in the matter of State of
U.P. and another vs. C.L. Agrawal and
another reported in (1997) 5 SCC 1, this
Court could not issue any direction for grant of
pay scale. However, keeping in view the fact that
the matter of pay scale and allowances of the
employees of the High Court is pending before the
State Government since 27.6.2015, the
respondents are directed to finalize the same
within a period of four months. While considering the recommendations, the State shall take into consideration the principle of law laid down by the Apex Court in the case of State of U.P. and another (supra)."
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2. In regard to the above directions, the reference of pendency of the issue of upgradation is made vide letter dated 27.6.2015. The letter of Registrar General dated 27.6.2015 is made available in compilation whereby the reference of the previous proposals of the High Court dated 10.12.2007 and the subsequent Memo No. C/3196/II-15-19/1944 dated 16/19.09.2008 are made which were considered by the Finance Department/State Pay Commission and the same has been not agreed. In the said Memo and the letter of Central Government dated 18.5.2004, reference of Civil Appeal No.2887/2001 (Union of India and Another vs. S.B. Vohra and Others) decided on 5.1.2004 (wrongly mentioned as W.P. 2887/2001 in some of the documents) has been made. The relevant paragraphs of the said judgment are reproduced as under :-
"Having regard to the aforementioned authoritative pronouncements of this Court there cannot be any doubt whatsoever that the recommendations of the Chief Justice should ordinarily be approved by the State and refusal thereof must be for strong and adequate reasons.
In this case the appellants even addressed itself on the recommendations made by the High Court.
They could not have treated the matter lightly. It is unfortunate that the recommendations made by a high functionary like the Chief Justice were not promptly attended to and the private respondents had to file a writ petition. The question as regard fixation of a revision of the scale of pay of the High Court being within exclusive domain of the Chief Justice of the High Court, subject to the approval, the State is expected to accept the same 3 recommendations save and except for good and cogent reasons."
3. It is to be noted here that the aforesaid Civil Appeal relates to the matter of upgradation of pay scales of the employees of Delhi High Court, in which directions were issued to grant them benefits. However, Central Government taking note of the genuineness of the claim and looking to the Court order, found that the directions of the Supreme Court must be made applicable to the employees of the respective High Courts, therefore, Ministry of Law & Justice (Department of Justice) wrote a letter dated 18.5.2004 to all Registrar Generals of the High Courts. In the said letter, it is observed that the judgment of the Supreme Court was with regard to revision of Pay Scales of the Officers of Delhi High Court which comes within the purview of Central Government to which action has already been taken by Department of Law & Justice to implement the judgment of the Apex Court. It was further observed that as regards the officers of High Courts (including Madhya Pradesh High Court), the concerned State Government is the authority for revision of their pay scales. However, requested to the Registrar General to take up the matter with the Government of Madhya Pradesh. In view of the aforesaid, it is apparent that the matter of upgradation of pay scales of the employees of the High Courts was a need of hour and on agitation of the said issue by employees of the Delhi High Court, directions were issued by Hon'ble Supreme Court, which have been implemented granting liberty to the High Court to take up the matter with the State Government for the said upgradation. 4
4. The observation made in para-22 of the order dated 28.4.2017 passed in W.P. No.7058/2016, to which non-compliance is alleged to consider the proposal as per letter of Registrar General dated 27.6.21015, which was the outcome of the order of Hon'ble Supreme Court and the instructions as issued by Govt. of India, Ministry of Law & Justice (Department of Justice), therefore, the issue of its implementation cannot be said no more res integra to the facts of the case.
5. Now, the issue of its implementation, execution and factors in which it could not be implemented to the employees of the Madhya Pradesh High Court has been raised by the stake holders i.e. High Court as well the State Government. In this regard, we have perused the inter-departmental correspondences. On perusal, the High Court alongwith the letter dated 27.6.2015 submitted a chart showing the difference in qualification for the posts comparing with the employees of the State Government. A Chart has also been produced with respect to the employees of abolished Madhya Pradesh State Administrative Tribunal. In these charts, the existing scales of pay and proposed upgraded scales of pay has been specified in Columns 4 and 5. However, the said proposal was returned back by the Law & Legislative Affairs Department, Government of Madhya Pradesh vide letter dated 15.10.2015, received by the High Court on 29.10.2015 inter alia stating that the demand regarding change of the scales of pay made is not in conformity to the recommendations of Shetty Pay Commission and in case it is allowed, it would infringe the principle of parity in the matter of grant of scales of pay to the employees of High Court comparing them with the employees of the State 5 Government. Certain other objections have also been raised, though those are irrelevant. Therefore, the High Court through Registrar (Administration) vide letter dated 25.2.2016 clarified that the observations made by the State Government vide letter dated 15.10.2015 is not accepted by Hon'ble the Chief Justice for the reasons that the recommendations of the Shetty Pay Commission do not apply to the employees of the High Court and the principle of parity, as raised do not apply comparing with the State employees. Thereupon, a meeting was called but no final outcome was reported and vide communication dated 26.8.2017 of the State Government conveyed to the Registrar General to make proposal of amendment in Schedule-I of the Rules known as High Court of Madhya Pradesh Officers and Employees Recruitment and Conditions of Service (Classification, Control, Appeal & Conduct) Rules, 1996. The Minutes of the meeting has also been enclosed alongwith the said letter. Hon'ble the Chief Justice constituted a one member Committee of Justice Rohit Arya (Committee No.42), which submitted its report proposing upgradation of pay scales and the chart which has also been attached with the compilation. The basis of recommendation is also available at page no.46 of the compilation under the heading "Qualitative Facets". Thereafter a notesheet was put up before Hon'ble the Chief Justice, which was approved on 21.11.2017. Thereafter, the matter was relegated for consideration by the Welfare Committee who again referred the matter to the Committee No.42. On reference, a report was submitted by Committee No.42 consists of Justice Rohit Arya and Justice Vijay Kumar Shukla making proposal for upgradation of pay scales. The 6 said proposal is attached at page no.101 to 122 of the compilation which was sent alongwith the letter of Registrar General dated 13.12.2018 to the Government of Madhya Pradesh. Thereafter, the State Government raised the objections, one of them was regarding extra financial burden, attached at page no.139, which was answered by the High Court on 2.1.2019 but again an objection was raised by the State Government on 5.1.2019 at page no.150 asking proposal in the format prescribed for its presentation before the Cabinet. In response to it, vide D.O. letter dated 7.1.2017, High Court submitted another proposal in the prescribed format desired by the Government, which is attached at page no.152 to 156. In reply, the Government has communicated the objection raised by Finance Department dated 31.1.2019. Thereafter, the matter was placed before Committee No.42, who constituted a Sub-committee consisting of the Registrar General, Principal Secretary, Law & Legislative Affairs Department and Principal Secretary, Finance Department, Govt. of Madhya Pradesh to work out the issues involved in the matter and submit its recommendations within two months to the High Court. Thereafter, the meetings of the Sub- committee were held in the chamber of Principal Secretary, Finance Department, Govt. of Madhya Pradesh on two occasions, first on 4.4.2019 and second on 9.5.2019. In the meantime, communication made by the State Government dated 15.3.2019, response of the Registrar General dated 2.4.2019 and furnishing the details by the Registrar (Accounts) and the grant by the High Court of Allahabad are also on record. Certain documents showing Pay Structure and allowances being paid to the employees working at High Court of 7 Allahabad, High Court of Punjab and Haryana, High Court of Bombay, High Court of Meghalaya, High Court of Chhattisgarh, High Court of Karnataka, High Court of Himachal Pradesh, High Court of Rajasthan, High Court of Sikkim and High Court of Gauhati have been attached. Thereafter, in furtherance to the order passed by this Court on 21.8.2019, a meeting of the Joint Consultative Committee was held on 27.8.2019 but no final outcome is reported in this contempt petition, though it is pending since last one year.
6. Learned counsel appearing on behalf of both the parties have been heard at length. After hearing and on perusal of the directions issued by this Court, it is apparent that this Court was of the view that in the matter of grant of higher pay scale and allowances, positive directions cannot be issued in the light of the judgment of C.L. Agrawal (supra). The Court has further observed that this matter regarding grant of the pay scales to the employees of the High Court may be decided by the State Government to which the letter dated 27.06.2015 was sent by the High Court. The Court issued the directions to finalize the same within a period of four months. The Court observed that while considering the recommendations, the State Government shall take into consideration the principle of law and the directions issued by the Apex Court in the case of C.L. Agrawal (supra).
7. In view of the directions issued by this Court, the respondents which includes Government of Madhya Pradesh as well the High Court were bound to finalize the recommendations for grant of higher pay scales and allowances to the employees of the High Court within a period of 4 months.
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8. In the aforesaid context, the provisions of Article 229 of the Constitution of India are also relevant, which is required to be referred. Sub-clause(2) of Article 229 clarifies that "Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by Rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorized by the Chief Justice for this purpose". The proviso makes it clear that the rules made under this sub-clause relating to salaries, allowances, leave or pensions require the approval of the Hon'ble Governor of the State. In addition to the aforesaid, if we see the directions as issued by Hon'ble Supreme Court in the case of S.B. Vohra (supra) and also in the case of C.L. Agrawal (supra) then it is apparent that under the proviso of sub-clause (2) of Article 229 of the Constitution of India, the Chief Justice or the Judge authorized by the Chief Justice is having a power to frame the rules, if not already framed by the Legislature of the State, relating to salaries, allowances, leave and pension subject to approval by the Governor. Therefore, if the Rule proposes a scale of pay, Government of Madhya Pradesh is bound to accept until cogent and adequate reasons are assigned to the contrary as observed by Hon'ble the Supreme Court in the case of S.B. Vohra (supra). Otherwise, Government ought to accept those recommendations made by Hon'ble the Chief Justice in the Rules.
9. In the aforesaid legal position, if we see the issue how it is initiated and crystallized by the Apex Court then it is abundantly clear that the matter of grant of upgraded scales of pay to the employees of the Delhi High Court was brought before Hon'ble the 9 Supreme Court in the case of S.B. Vohra (supra) in which certain directions were issued approving the judgment of the High Court. The judgment of the Supreme Court in the case of S.B. Vohra (supra) has been implemented and principally agreed upon by the Law & Legislative Affairs Department, Government of India and the benefits have been extended to the employees of Delhi High Court by upgrading the scales of pay to them. This fact is clear by the letter of Government of India, Ministry of Law & Justice (Department of Justice) dated 18.05.2004. The Government of India expressed that the pay scales of the employees of Delhi High Court is upgraded because they are under the control of Central Government, as Delhi being Union Territory. The Government of India was having concern that the employees of the other High Courts should not be dealt with differently in the matter of scales of pay and they should be at par to the employees of Delhi High Court in view of the judgment of the Supreme Court, however, the judgment of the Apex Court be made applicable in rem and not in personam. Therefore, the Government of India vide letter dated 18.05.2004 communicated to the Registrar General of the Madhya Pradesh High Court to take up this matter with the State Government and finalize the issues of pay and allowances. It is very surprising that since 18.05.2004 the matter is pending and hinges between the correspondences of High Court and State Government not having due regard to the orders of the Hon'ble Supreme Court and also of this Court.
10. The Division Bench though issued the direction for finalization of the scale of pay and allowances by the State Government within four months in the light of the judgment of C.L. 10 Agrawal (supra) but for the reasons one or another either due to inaction on the part of the Registry of the High Court or due to the objections raised by the State Government, the compliance and execution is not reported fruitfully.
11. In the said facts and circumstances, at present, dealing the officers for non-compliance of the directions issued by this Court is not justified but looking to the various correspondences, it reveals that neither the Registry of the High Court of Madhya Pradesh nor the State Government duly understood the spirit of the directions issued by this Court for its implementation in the light of the observation made by Hon'ble the Supreme Court to extend the benefit of grant of upgraded scales of pay to the employees of Delhi High Court as well various other High Courts as instructed by the Central Government vide letter dated 18.5.2004. The State Government was not so sincere to extend such benefit to the employees of this High Court rather continued to raise the unnecessary objections, which ought not to be raised.
12. It is to observe here that the objections raised by the State Government regarding scales of pay not commensurate to the Shetty Pay Commission or disparity with the employees of the State Government with the High Court are wholly irrelevant because recommendations of the Shetty Pay Commission applies to the employees of the District Court not to the employees of the High Court and if the Chief Justice proposes pay scales and allowances in the exercise of powers under Article 229 of the Constitution of India, its approval by Hon'ble the Governor is required, none else. In case, the State Government opposes and raises the objections, it must be 11 genuine and cannot be turned down by in-genuine objections. So far as various other objections with respect to nomenclature, additional expenditure are concerned, which are in the correspondences of the State Government, are wholly irrelevant and it is not in the domain of the State Government to raise those objections as observed above. The only relevant objection raised by the State Government is vide letter dated 26.08.2017 wherein the Government has requested to the Registrar General to make amendment in the Rules of 1996 proposing the scales of pay. The said objection has not been duly dealt with by the Registry, although the recourse required was to make amendment by way of upgradation of the scales of pay in rules, upon study of the prevalent upgradation made the High Court of Delhi, High Court of Allahabad, High Court of Punjab and Haryana, High Court of Bombay, High Court of Meghalaya, High Court of Chhattisgarh, High Court of Karnataka, High Court of Himachal Pradesh, High Court of Rajasthan, High Court of Sikkim and High Court of Gauhati.
13. It is seen from the record and the correspondences made by the Registry of the High Court that the previous Rules of 1996 has been superseded by the new Rules framed in exercise of powers under Article 309 which is known as "The High Court of Madhya Pradesh Services (Recruitment, General Conditions of Services, Conduct, Classification, Control and Appeal) Rules, 2017". In this Rule in the Schedule the scales of pay as proposed were commensurate to the previous pay scales revised w.e.f. 01.01.2016. Thus, it is clear that if as per the objections raised by the State Government vide letter dated 26.08.2017 an amendment is made in 12 the Rules of 1996 or in the existing new Rules upgrading the scales of the Schedules taking note of the recommendation of one Judge/two Judges' Committee, the State Government may have accepted, as assured by the learned Advocate General present in the Court to put the controversy into rest.
14. We have seen the proceedings of the various meetings in which the recommendations made by One Judge Committee or Two Judges' Committee and the proposals of scales of pay have been sent to the Government without proposing the amendment in the Rules, by the Rule Drafting Committee. The said part on behalf of the High Court do not appear to be just. We have also seen the Distribution Memo of the Committees which have been issued time to time. If we see the said Distribution Memo dated 18.06.2018, then Committee No.41 has been conferred the powers for drafting Rules (other than High Court Rules, Criminal/Civil Court Rules) Policies and Schemes for High Court/Subordinate Courts. Committee No.42 is a Committee for consideration on the matters relating to the Recruitment and pay Rules for High Court employees. As per language of conferment of powers, it is clear that the Committee No.42 has not been conferred with the power for drafting the Rules, in-fact, it may propose amendment in the Rules by recommendation. It only have right to consider the matters relating to the Recruitment and pay Rules. However, in case of any discrepancy in the scales of pay, the said Committee may recommend for amendment in the Rules for the reasons so stated in the resolution of that Committee but the Committee No.42 was not having a domain to re-draft or to amend the Rules. Thus, recommendation sent by Registrar General 13 of the High Court without amendment in the Rules is creating hurdle to the State Government in compliance of the directions, to which the employees are eagerly waiting.
15. In the newly drawn Memo, Committee No.41 is a Committee for drafting Rules other than High Court Rules, Criminal/Civil Court Rules) for High Court/Subordinate Courts, however, power of drafting the Rules is with the Committee No.41, therefore, amendment in "The High Court of Madhya Pradesh Services (Recruitment, General Conditions of Services, Conduct, Classification, Control and Appeal) Rules, 2017" may be proposed by the said Committee regarding pay scales and allowances. Previously, Committee No.41A and 41B were a Joint Committee to which similar powers have been conferred, while in subsequent notifications two Committees No.41 and No. 42 have been specified. Committee No.42 as described hereinabove cannot propose the amendment in the Rules of 2017, it can only consider the anomalies and make recommendations for the amendment in the Rules. It is the Committee No.41 which can propose the amendment in the Rules by re-drafting those rules. In such circumstances, the letter submitted by the Registrar General dated 13.12.2018 is of no relevance until the Committee No.41 proposes the amendment regarding scales of pay and allowances in the Rules of 2017 and in case such proposal is made by the said Committee, the Government shall notify the same, on approval by Hon'ble the Governor. Thereafter, the Government would be bound to pay the scales of pay because it is a proposal made by Hon'ble the Chief Justice or by a Judge authorized by the Chief 14 Justice in exercise of powers conferred under sub-clause (2) of Article 229 of the Constitution of India.
16. One more relevant factor is that in furtherance to the letter written by the Government of India, Ministry of Law & Justice (Department of Justice) dated 18.05.2004, the benefits of upgradation of pay have already been granted in other High Courts in the year 2004 itself and in some of the High Courts with retrospective dates. However, the said issue may also be taken into consideration by the Committee concerned, while proposing the scales of pay by way of amendment in the Rules and its grant with effect from the date as specified.
17. Therefore, in view of the foregoing discussion, some compliance are still to be made, however, purging to any of the non- applicant in this case is unjustified to reach a logical conclusion to carry out the objective and directions of Hon'ble the Supreme Court in the cases of Union of India and another vs. S.B. Vohra and others reported in (2004) 2 SCC 150 and State of U.P. and another vs. C.L. Agrawal and another reported in (1997) 5 SCC 1. In such circumstances, we adjourn this case for a period of six months and during the said period, compliance of following directions shall be made by the non-applicants :-
(1) Petitioners/employees shall submit a detailed representation within two weeks claiming upgradation of the pay scales and allowances at par to the employees of other High Courts in the light of the judgments of Hon'ble the Supreme Court in the cases of Union of India and another vs. S.B. Vohra and others reported in (2004) 2 SCC 150 and State of U.P. and another vs. C.L. Agrawal and another reported in 15 (1997) 5 SCC 1 and the letter of Government of India, Ministry of Law & Justice (Department of Justice) dated
18.5.2004 regarding the amendment in the "The High Court of Madhya Pradesh Services (Recruitment, General Conditions of Services, Conduct, Classification, Control and Appeal) Rules, 2017" for the reasons so mentioned therein.
(2) On receiving such representation within two weeks from the date of receipt of certified copy of this order, it shall be placed before Hon'ble the Chief Justice by the Registrar General for amendment in "The High Court of Madhya Pradesh Services (Recruitment, General Conditions of Services, Conduct, Classification, Control and Appeal) Rules, 2017" as proposed by the State Government regarding upgradation of the scales of pay and allowances in the respective Schedules.
(3) Thereafter, the Committee may be requested for the amendment in the upgradation of pay scales comparing the grant of upgradation for pay scales and allowances by the other High Courts and submit a proposal for amendment in "The High Court of Madhya Pradesh Services (Recruitment, General Conditions of Services, Conduct, Classification, Control and Appeal) Rules, 2017" for notification by the State Government as per the approval of Hon'ble the Governor within the period of three months.
(4) On receiving the said proposal by the Registry under the directions of Hon'ble the Chief Justice, it be notified in a Gazette by the Government within one month.
(5) After notification, the benefits of the upgraded pay scales and allowances as proposed by way of an amendment shall be payable to the employees with retrospective date or as proposed in the amendment and notified in the Schedule of the Rules.
18. At this stage, it is necessary to acknowledge the assistance of the Officers of the Registry as well as the Advocate General of the 16 State to arrive at a conclusion in consonance to the directions of Hon'ble the Supreme Court and the letter of Government of India, Ministry of Law & Justice (Department of Justice).
19. List this case after six months with the above said compliance.
(J.K. Maheshwari) (Smt. Anjuli Palo)
Judge Judge
PK/DPS
Digitally signed by
PARITOSH KUMAR
Date: 2019.09.18
13:23:30 +05'30'