Jammu & Kashmir High Court - Srinagar Bench
Latief Hussain Khan And Ors vs Ut Of Jk And Others on 17 December, 2024
Sr. No. 37
Supplementary List I
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 778/2022
CM 1928/2022
CM 7683/2023
Latief Hussain Khan and Ors. ...Petitioner(s)/Appellant(s)
Through: Mr. Syed Faisal Qadri, Sr. Advocate with
Mr. Sikander Hayat Khan, Advocate
Vs.
UT of JK and others ...Respondent(s)
Through: Mr. Abdul Rashid Malik, Sr. AAG with
Mr. Mohd Younis Hafiz, Assisting Counsel for 1 & 3
Mr. Shah Amir, Advocate with
Mr. Aatir Kawoosa, Advocate for 2
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
17.12.2024 Per Atul Sreedharan-J (Oral):
1. Today, arguments have been forwarded with regard to the manner in which the Hon'ble Lieutenant Governor of the UT of J&K has dealt with the order dated 04.03.2024 passed by this Court. The said order reads as follows:
"After having heard all the parties through their learned counsels, we requested the learned Advocate General to place the matter before the Hon'ble Lieutenant Government in accordance with Article 229 of the Constitution so that the same may be decided strictly in accordance with Article 229 and the decision thereof be placed before this Court."
2. Pursuant to the said order, the Hon'ble Lieutenant Governor issued order bearing No. 14111-JK (LD) of 2024, dated 06.08.2024, whereby the recommendation of the Lord Chief Justice under Article 229 to consider the enhancement of salaries and emoluments of post of Restorers to bring them at par with Restorers of other Courts like Delhi and Punjab & Haryana High Courts, was declined.
3. At the very outset, learned counsel for the petitioners have withdrawn Arif Hameed I attest to the accuracy and authenticity of this document 21.12.2024 1 WP (C) No.778/2022 their response to the decision of the Lt. Governor dated 10.12.2024. Instead Ld. Counsel for the Petitioners questioned the aforementioned order passed by the Hon'ble Lieutenant Governor, through the Law Secretary, by which the said proposal put forth by the Lord Chief Justice of Article 229, was rejected.
4. Learned counsel for the petitioners has argued forcefully that the said order must be set aside and the matter remanded to the office of the Hon'ble Lieutenant Governor as it is not in accordance with the constitutional spirit and mandate of Article 229, which according to the learned senior counsel, is an exclusive power vested with the Lord Chief Justice of the High Court or to such judge or judges that he may delegate it to. The involvement of the Hon'ble Lieutenant Governor's office is only in a situation where a particular proposal involves financial implications which have to be borne by the State Government/Union Territory Government.
5. The attention of this Court has been drawn to the order dated 06.08.2024 which, as already stated hereinabove, was passed pursuant to the order dated 04.03.2024, which is also extracted hereinabove. The considerations for rejecting the proposal commenced from page 3 of the order dated 06.08.2024. The considerations leading to the rejection of the proposal took into account facets like eligibility for the post of Restorers, their qualification, the nature of duties performed by the Restorers, and how the position of Restorers is akin to Multi-Tasking Staff (MTS) in the Government Departments and the relative pay scale levels existing between the Restorers today and their counterparts in the Union Territory Government and how the proposal to enhance the pay scale of the petitioners/Restorers would unsettle the parity existing between the class of employees performing similar functions in the Union Territory of Jammu & Kashmir and those working in the establishment of the High Court. It is further the opinion of the Hon'ble Lieutenant Governor that given the parity of the post of Restorers and that of the Multi-Tasking Staff (MTS), if higher pay scales are granted to the Restorers, the same "will have huge financial implications". In view of the precedential nature of the proposal, or in other words that Arif Hameed I attest to the accuracy and authenticity of this document 21.12.2024 2 WP (C) No.778/2022 similar enhancement of pay scale may also be demanded by the Multi- Tasking Staff (MTS) in the State Government.
6. It has also been considered that the posts of Restorers do not exist in the High Courts of Uttar Pradesh and Uttarakhand and therefore, there is no uniformity in pay scales of these posts. The Hon'ble Lieutenant Governor is further of the opinion that the pay scales have to be decided, based on experience, educational qualification and the mode of recruitment of such posts. The Hon'ble Lieutenant Governor has also held that there is no comparison of experience and educational qualification among these posts in different High Courts and, therefore, the issue of parity associated with the pay scales does not arise.
7. Lastly, the Hon'ble Lieutenant Governor of UT of J&K has referred to the judgment of the Hon'ble Supreme Court in case Civil Appeal No. 23-24 of 2024, titled "State of Uttar Pradesh Vs. Association of Retired Supreme Court and High Court Judges, Allahabad" [(2024) 3 SCC 1]. However, learned senior counsel for the petitioners has argued that the Hon'ble Lieutenant Governor has totally misconstrued the ambit of scope of Article 229 by passing the aforementioned order, thereby encroaching upon the exclusive domain of the Lord Chief Justice of this Court.
8. Referring to Article 229 of the Constitution, the learned senior counsel for the petitioners has argued that the powers under Article 229 vest exclusively with the Lord Chief Justice of the High Court or to such judge/judges that he may be delegate it to. The consultative process with the Hon'ble Lieutenant Governor of UT of J&K only arises where there are financial implications in any policy that is sought to be enforced. However, if the aspect of the financial implications does not arise, Article 229 does not require any consultative process with the Hon'ble Lieutenant Governor.
9. Learned counsel for the respondent-UT, on the other hand has stated that the order passed by the Hon'ble Lieutenant Governor pursuant to the directions given by this Court vide order dated 04.03.2024, is in the spirit of the constitutional mandate where the Governor has exercised his exclusive discretion with regard to the financial requirements of this Arif Hameed I attest to the accuracy and authenticity of this document 21.12.2024 3 WP (C) No.778/2022 Court, where it would have to pay and enhance salary and emoluments to the Restorers if the proposal is accepted by the Hon'ble Lieutenant Governor.
10. He has further submitted that the financial matters are exclusively within the domain of the Union Territory headed by the Hon'ble Lieutenant Governor and the order passed by him rejecting the proposal of the Lord Chief Justice under Article 229 cannot be scrutinized for its legality by this Court. In this regard, the learned counsel for the respondent-UT has relied upon the judgment of the Hon'ble Supreme Court in case titled "State of Andhra Pradesh and Another Vs. T. Gopalkrishna Murthi & Ors." [(1976) 2 SCC 883]. He has specifically relied on paragraph 6 of the said judgment, wherein the Hon'ble Supreme Court has held that under Clause (3) of Article 229, the Administrative expenses of the High Court including all salaries, allowances and pensions payable to or in respect to the officers and servants of the Court, are a charge upon the Consolidated Fund of the State and that there is no separate fund or power to raise it at the disposal of the High Court for the purposes of meeting the salaries etc. of the High Court Staff.
11.Learned senior counsel for the petitioners relied upon the same paragraph of the aforesaid judgment, where the Hon'ble Supreme Court has observed that there is an expectation in the fitness of things and in view of the spirit of Article 229 that "ordinarily and generally" the approval should be accorded. But in continuation of the same reflects that the Hon'ble Supreme Court also held that it would be incorrect to say that the approval is a mere formality and in no case it is open to the Government to refuse. This Court shall advert to the judgment in a later part of this order.
12.In the course of his arguments, the learned senior counsel for the petitioners has referred and relied upon the judgment of the Hon'ble Supreme Court passed in case titled "High Court of Judicature for Rajasthan Vs. Ramesh Chand Paliwal & Anr." [(1998) 3 SCC 72] with specific reference to paragraph 25 in which, the Chief Justice's power under article 229 of the constitution has been discussed. The Arif Hameed I attest to the accuracy and authenticity of this document 21.12.2024 4 WP (C) No.778/2022 Supreme Court held that the power to engage the staff and officers of the High Court was the exclusive domain of the chief justice and where there is a financial implication, there had to be a consultative process with the Governor viz., the State Government where the Supreme Court hoped that the institutional requirement of the High Court would acceded to by the State Government. But in Gopalkrishna Murthy's case supra, the Supreme Court had held that the consultative process was not a mere formality and that entertaining a writ for mandamus merely because the government erred in not accepting the Chief Justice's view and do not accord approval, 229, would not be right.
13.The Ld. Counsel for the UT relied upon Gopalkrishna Murthy's case to impress upon this Court that the Hon'ble Lt. Governor had considered the requirement of the opinion of the Lord Chief Justice to enhance the pay scale of restorers of this Court so as to bring them at par with similarly situated persons in the Delhi High Court and the High Court of Punjab and Haryana and Chandigarh and that the same was rejected by the Hon'ble Lt. Governor by a considered and detailed order and now, this Court must refrain from passing a mandamus on the judicial side directing the UT Government to give effect to the order of the Lord Chief Justice, as the same has been prohibited by the Supreme Court in Gopalkrishna Murthy's case1.
14.Much water has flown under the bridge since Gopalkrishna Murthy. If the institutional requirement of the High Court under article 229 is not accepted by the State Government, and the same results in injustice or affects the efficiency or the very functioning of the High Court, would the High Court be helpless all together? The law as it exists on date provides for the matter being taken up on the judicial side and mandamus being issued in reasonable and justifiable circumstances.
15.The Supreme Court in a case in 2004 held that the High Court should not ordinarily issue a writ of or in the nature of a mandamus and ought to refer the matter back to the central or the state government as the case may be, with suitable directions pointing out the irrelevant factors which are required to be considered. The Supreme Court also held that Arif Hameed State of Andhra Pradesh and Anr Vs. T. GopalKrishna Murthy - (1976) 2 SCC 883 1 I attest to the accuracy and authenticity of this document 21.12.2024 5 WP (C) No.778/2022 the statutory duties should be allowed to be performed by the statutory authority at the first instance and only in exceptional cases, the High Court may interfere on the judicial side, but ordinarily it would not do so. The only caveat added by the Hon'ble Supreme Court is that in the event the need arises, the powers on the judicial side should be exercised with care and circumspection2.
16.In the same judgement, the Supreme Court held that there can be no doubt whatsoever that the recommendations of the Chief Justice should ordinarily be approved by the State and refusal must be based for "strong and adequate" reasons, and held "... it is the primary duty of the Union of India or the state concerned normally to accept the suggestion made by a holder of a high office like the Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient..".3 Thereafter, the Supreme Court observed that "it is unfortunate that the recommendations made by a high functionary like the Chief Justice were not promptly attended to and the private respondent had to file a writ petition. The question as regards fixation of a revision of the scale of pay of the High Court being within the exclusive domain of the Chief Justice of the High Court, subject to the approval, the State is expected to accept the same recommendations save and except for good and cogent reasons"4 same as in this case.
17.The reasons given by the UT for rejecting the recommendations of the Lord Chief Justice vide order dated 06.08.2024, are not "good and cogent reasons". The said order has indulged in an unwarranted surgical dissection of the recommendations which have been laid down elaborately in paragraph 5 and 6 supra. The main reason given is that the enhancement of the pay scales for the restorers would lead to corresponding claims for an increase in pay by similarly situated employees working in the Government is grossly misplaced. In this regard, it would be useful to reproduce the relevant portion of the 2 Union of India Vs. S,B Vohra - (2004) 2 SCC 150 - paragraph 52 and 53 3 Union of India Vs. S,B Vohra - (2004) 2 SCC 150 - paragraph 46 Arif Hameed 4 Union I attest to the accuracy and of India Vs. S,B Vohra - (2004) 2 SCC 150 - paragraph 51 authenticity of this document 21.12.2024 6 WP (C) No.778/2022 Supreme Court's opinion in SB Vora wherein it held "It has to be further borne in mind that it is not always helpful to raise the question of financial implications vis-à-vis the effect of grant of a particular scale of pay to the officers of the High Court on the ground that the same would have adverse effect on other employees of the State."5
18. What must not be lost sight of is that the consultative process with the Governor or the Lt. Governor as the case may be is only required under the proviso to Art. 229 clause (2) when there is financial implication and not otherwise.
19. Thus, in view of what has been argued before this Court and held by it hereinabove, this Court is of the view that the order dated 06.08.2024 passed by the UT rejecting the recommendation of the Lord Chief Justice is not in accordance with the constitutional mandate of Art. 229(2) and is quashed. The recommendations of the Lord Chief Justice are remanded to the Hon'ble Lt. Governor to reconsider the same afresh by restricting his views only to the financial wherewithal of the UT and not venture to assess the suitability, legality or the effect of the recommendation of the Lord Chief Justice on the employees of the UT. The Hon'ble Lt. Governor must bear in mind that the employees of the UT are Government Servants and Public Servants while the employees of the High Court are not Government Servants though they are Public Servants. It is the High Court that pays the salary of its employees and not the UT Government and the disciplinary control over them is also of the High Court. Thus any comparison between the employees of the High Court and the UT Government is unwarranted and specious. Let the re-consideration by the Hon'ble Lt. Governor be done before the next date of hearing. List this case on 19/02/2025.
(MOHD YOUSUF WANI) (ATUL SREEDHARAN)
JUDGE JUDGE
SRINAGAR:
17.12.2024
ARIF
Arif Hameed Union of India Vs. S,B Vohra - (2004) 2 SCC 150 - paragraph 48
5
I attest to the accuracy and
authenticity of this document
21.12.2024 7 WP (C) No.778/2022