Jammu & Kashmir High Court - Srinagar Bench
Muhammad Maqbool Khosa & Anr. vs State Of J&K; & Ors on 3 December, 2014
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP no.2450/2014 Date of order: 03.12.2014
Muhammad Maqbool Khosa & anr. v. State of J&K & anr.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For Petitioners: Mr. M. Moomin Khan, Advocate;
For Respondents: Mr. S. A. Naik, Sr. AAG, for no.1;
Mr. Jehangir Iqbal Ganie, Advocate for no.2.
1. The two petitioners, who happen to be the employees of the High Court, working as Electricians, are principally aggrieved of the communication no. LD(A) 87/106 dated 16.07.2012 addressed by the Assistant Legal Remembrance, Department of Law, Justice and Parliamentary Affairs, presumably on behalf of respondent no. 1, to the Registrar General, High Court, declining the request of the High Court made in terms of communication no. 265/RG dated 25.04.2010 to sanction 2½ days' pay in favour of the petitioners, as is admissible to the employees of the same category of employees working in the Power Development Department of the State, on the ground that, in terms of the conditions laid down in the Government orders creating these two posts, the same had to be filled up by deputation from the Power Development Department.
2. On acquiring knowledge about the receipt of aforesaid communication dated 16.07.2012 by the Registry of the Court, the petitioners filed this writ petition challenging not only the said communication received from the office of respondent no. 1, but also the 2 condition laid down in Government orders, viz., Government order no. 318-LD(A) of 1992 dated 25.03.1992 and Government order no. 1043- LD(A) of 1998 dated 17.07.1998 which contained the condition that the posts of Electrician created under these orders were to be filled up by deputation from the Power Development Department.
3. When the writ petition came for consideration at the admission stage on 21.11.2012, the Court passed an interim order, directing respondent no.1 to consider the case of the petitioners having regard to Government Order no. 20-PDD of 1995 dated 02.02.1995 read with communication no. PDD/VI/J/38/2000 dated 07.03.2008 written by Additional Secretary to Government, Power Development Department, to the Development Commissioner (Power), J&K, and the recommendation made by the Registrar General vide communication dated 25.04.2012. Pursuant to the said Court order, respondent no. 1 passed Government order no. 3262- LD(Lit) of 2013 dated 23.09.2013 rejecting the claim of the petitioners as not justified on the grounds mentioned in the said order which are quoted hereunder:
"Whereas the case of petitioner has been examined and it has been found that petitioner have not been appointed on the post of Electrician as per creation order and are not performing the duties round the clock, as such, are not entitled to the benefit of Government order No. 20-PDD of 1995 dated 2.2.1995, and Whereas the electricians of High Court are not performing any such roaster duty as is being performed by the employees of the Power Development Department and are even availing off days, as such, the claim for payment of 2 ½ days additional salary is not justified and merits rejection; and Whereas, if the demand of the petitioners is considered by the Government, then there will be similar claim from the other employees discharging similar duties in other Departments, on the ground of equal pay for equal work.
Now, therefore, in view of the above facts, the claim of the petitioners is not justified and as such, rejected.3
By order of the Government of Jammu and Kashmir."
4. The aforesaid order was brought to the notice of the Court by Mr. S. A. Naik, learned AAG, representing respondent no. 1, on 30.09.2013, whereupon the petitioners sought permission to amend the writ petition to challenge the aforesaid Government order. Amended writ petition was accordingly filed with the following prayers:
"In the premises it is therefore prayed that this Hon'ble Court maybe pleased to issue an appropriate writ, direction or order in favour of the petitioners and against the respondents in the nature of:
i) Certiorari, quashing the two government orders, dated 25-03-1992 and 17-07-1998, insofar as the same lay down the condition, that the posts of Electrician are to be filled up by deputation from the Power Development Department;
ii) Certiorari, quashing the impugned communication no.
LD(A) 87/106 dated 16.07.2012, being unconstitutional and in flagrant violation of the provisions of The Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 and Articles 14 and 16 of the Constitution of India;
iii) Prohibition, prohibiting respondent no. 1 from directly, indirectly or otherwise seeking the enforcement of the condition laid down in the impugned orders, that the posts of Electrician are to be filled up by deputation from the Power Development Department;
iii) Mandamus, commanding the respondent no.1 to sanction and release the 2 ½ days' pay, retrospectively, in favour of the petitioner no. 1 from 02.02.1995 and petitioner no. 2 from 08.02.2007, i.e., the dates from which the petitioners are entitled to the same, respectively, with further direction to release the arrears of such pay in their favour, with all consequential benefits;
iv) Mandamus, commanding respondent no. 2 to take appropriate steps for to seek enforcement of the recommendation made by it to respondent no. 1, vide communication no. 2265/RG dated 25.04.2012;
v) Certiorari, quashing the impugned Government order no. 3262-LD(Lit) of 2013 dated 23.09.2013.
4This Hon'ble Court may further be pleased to issue such other writ, direction or order in favour of the petitioners and against the respondents as this Hon'ble Court may deem fit and appropriate in the facts and circumstances of the case."
5. Neither respondent no. 1 nor respondent no. 2 filed any reply either at the pre or post amendment stage, despite repeated opportunities granted to them in that behalf. The writ petition was admitted to hearing on 05.04.2013.
6. On 18.11.2014, Mr. S. A. Naik, learned AAG, representing respondent no. 1, made a statement at the Bar that respondent no. 1 has already disclosed its stand in communication LD(A) 87/106 dated 16.07.2012 and Government order no. 3262-LD(Lit) of 2013 dated 23.09.2013, impugned in the writ petition, and that the said respondent would rely on the same in opposition of the writ petition. Stating so, he submitted that respondent no. 1, therefore, did not intend to file any reply, but would rely on the stand taken in the said communication and the order.
7. Mr. Jehangir Iqbal Ganie, Advocate, representing respondent no. 2, on the other hand submitted that since the communication no. 2265/RG dated 25.04.2012, seeking sanction to grant of 2½ days' pay in favour of the petitioners, was written by the Registrar General of the High Court, he is left with no option but to own the same.
8. The case was, accordingly, taken up for hearing with consent of the learned counsel and they were heard.
9. It is not in dispute that the petitioners are working as Electricians in the High Court. In fact, none of the facts pleaded by the petitioners in the writ petition is disputed except to the extent mentioned in the impugned communication dated 16.07.2012 and the so called consideration order dated 23.09.2013. The case of the petitioners is founded on Government 5 order no. 90-PDD of 1995 dated 02.02.1995 passed pursuant to the Administrative Council decision no. 122 dated 12.10.1994 read with communication no. PDD/VI/J/38/200 dated 07.03.2008 addressed by Additional Secretary to Government, Power Development Department, pursuant to Finance Department's UO no. A/42(94)-B-1071 dated 06.12.2007, to the Development Commissioner (Power), J&K, Jammu.
10. The aforesaid Government order dated 02.02.1995 read as under:
"It is hereby ordered that:-
In terms of item no.(3) of the Government Order no. 273-PDD of 1994 dated 19.10.1994 - allowing 2½ days' pay in lieu of Sundays and Holidays to the employees of the executive cadre of the Power Development Department who are required to remain on duty round the clock - the following categories / designations who are working as such are notified to be entitled to this benefit:
i) Lineman
ii) Turbine Operators
iii) Telephone Operators
iv) Turbine Drivers
v) Station Cleaners
vi) Station Attendants
vii) Switch Board Attendants
viii) Diesel Station Attendant
ix) Power House Attendant
x) Patrolman
xi) Installation Inspector
xii) Line Inspector
xiii) Line Erector
xiv) Gauge Operator
xv) Cable Jointer
Provided that any person on any post mentioned above shall not be entitled to this benefit if he or she receives pay in a scale higher than Rs.1200-2040.
Explanation:- (Only incumbents of the above designations / categories drawing pay in a scale of Rs.750-940, 775-1025, 950-1500, 1200-2040 shall be entitled to this benefit)"6
11. Whereas the aforesaid order specified the categories of the employees of the executive cadre of the Power Development Department who were entitled to the said benefit, vide communication PDD/VI/J/38/2000 dated 07.03.2008, written by the Additional Secretary to Government, Power Development Department, to the Development Commissioner (Power), J&K, it was clarified that if any employee of the categories other than those mentioned in Government order dated 02.02.1995 was performing or had been assigned the job of the categories listed in the said Government order, they may be eligible for 2½ days' pay subject to the following conditions mentioned in the said communication:
"(i) The Chief Engineer concerned shall satisfy himself and issue orders that a particular employee by name is performing / would perform the functions of the categories listed in Government order no. 20-PDD of 1995 dated 2-2-1995;
(ii) Such order shall specify the area where the employee (by name) shall perform such duty; and
(iii) The above benefit shall be available only to those whose corresponding pay scales are same as those mentioned in the Government Order No. 20-PDD of 1995 dated 2-2-1995".
12. The petitioners' case is that they are drawing pay in one of the scales of pay given in Government order dated 02.02.1995 and are also discharging their duties similar and identical to many of the categories enlisted in the said Government order, particularly as Station Attendants, Switch Board Attendants, Cable Jointers etc. Besides, they are also required to perform their duties identically as the employees holding such categories in the Power Development Department and are, therefore, similarly placed as aforesaid categories of employees enlisted in the Government order dated 02.02.1995. It is also averred that, according to their information, which they believe to be reliable and correct, officials of the Public Health Engineering Department, discharging duties similar to 7 that of the petitioners, have also been extended the benefit of 2½ days' pay in terms of the aforesaid Government order.
13. It is averred that on their representation made to respondent no. 2, seeking parity in pay with the aforesaid employees of the Power Development Department etc., respondent no. 2, after examining the matter and satisfying himself about the claim of the petitioners, addressed communication no. 2265/RG dated 25.04.2012 to respondent no.1 requesting him to sanction 2½ days' pay their favour which request has been rejected by respondent no. 1 on illegal grounds and extraneous considerations.
14. Mr. M. Moomin Khan, learned counsel for the petitioners, inviting the attention of the Court to Government order no. 3263-LD(Lit) of 2013 dated 23.09.2013, submitted that respondent no. 1 has rejected the claim of the petitioners on three grounds: first, that the posts of Electricians borne on the establishment of the High Court were to be filled up by deputation from the Power Development Department; second, that the petitioners were not performing the duties round the clock; and third, that if the demand of the petitioners was allowed by the Government, then there will be similar claims from other employees discharging similar duties in other departments.
15. The learned counsel submitted that initially their claim and the request made by respondent no. 2 in that behalf was rejected by respondent no.1 vide communication dated 16.07.2012 on the sole ground that appointment on these posts had been made contrary to the condition laid down in the orders whereunder the posts had been created. However, when the Court vide its order dated 21.11.2012 directed respondent no. 1 to consider the case of the petitioners, respondent no. 1 issued Government order no. 3263-LD(Lit) of 2013 dated 23.09.2013 taking two new grounds to support its decision to reject the petitioners' claim. He submitted that 8 though respondent no. 1 was estopped from changing its stance, yet all the three grounds taken are unsustainable. He submitted that though the creation orders had been issued by the Government way back in 1992 and 1998 yet, since the condition laid down therein is sought to be enforced now by the impugned communication and orders against the petitioners, they had no option but to challenge the same in this writ petition.
16. As regards the first ground of rejection of the claim, the learned counsel submitted that the impugned communication and order have been issued in total disregard of the mandate of Section 108 of the Constitution of Jammu and Kashmir (for short, the State Constitution) and Rule 4 of the Jammu and Kashmir Staff (Conditions of Service) Rules, 1968 ( for short, Staff Rules) framed by the High Court in exercise of its powers conferred by Sub-Section (2) of Section 108 of the State Constitution, which prescribes that appointments of officers and servants of the High Court shall be made by the Chief Justice of the Court. He submitted that this power conferred on the Chief Justice can neither be scuttled or taken away, nor subjected to any fetters by any authority, whatsoever. According to him, the condition laid down in the two Government orders dated 25-03- 1992 and 17-07-1998, whereby the two posts had been created, which has been made the basis to reject the request of Respondent no.2 in the impugned communication dated 16.07.2012 as well as in the so-called consideration order dated 23.09.2013, has the effect and consequence of taking away the power of appointment of the Chief Justice on the said two posts and conferring it on the Chief Engineer of Power Development Department; therefore, the condition is unconstitutional, not worthy of being acted upon and liable to be declared so and quashed. Consequently, the impugned communication dated 16.07.2012 and the Government order dated 23.09.2013, seeking to enforce such condition, are also liable to be quashed.
917. He further submitted that the condition laid and sought to be enforced has also the effect of taking away and usurping the power of laying down the mode of recruitment otherwise conferred by the High Court on the Chief Justice in terms of Rule 6 of the Staff Rules, which provides, inter alia, that the Chief Justice may, from time to time, determine the mode of recruitment. Learned counsel submitted that the condition so laid and the communication and order founded and passed thereon are not only against the mandate of the relevant constitutional provision and the Rules framed thereunder, but are also antithetical to the over all constitutional scheme and, therefore, cannot be sustained.
18. As regards the entitlement of the petitioners to 2½ days' salary in parity with the given categories of the employees working in the Power Development Department, the learned counsel submitted that the Government order envisaged allowing 2½ days' pay in lieu of Sundays and Holidays to the employees of the executive cadre of the Power Development Department who are required to remain on duty round the clock. The petitioners also fulfill the said condition, as they are discharging identical duties and in this connection the Registrar General of the Hon'ble Court had written the letter dated 25.04.2010 only after he was satisfied that the petitioners fulfilled the condition. Learned counsel submitted that there was no reason, muchless a justifiable one, for respondent no.1 to have rejected the request so made by the Registrar General, especially so in view of the communication dated 07.03.2008 addressed by the Additional Secretary to Government, Power Development Department to the Development Commissioner, Power, J&K, whereby it had been left to the discretion of the Chief Engineer concerned to satisfy himself that an employee is or would be performing such duties. Learned counsel submitted that the petitioners in their capacities as the employees of the High Court being under the control of respondent no. 2, the competence to satisfy itself as to whether the petitioners fulfilled the conditions as laid 10 down in the Government order dated 02.02.1995 read with aforesaid communication dated 07.03.2008, lay with the Registrar General of the High Court, who also happens to be the Principal Officer of the Hon'ble Court, and his satisfaction could not be overturned and discarded. He submitted that the impugned communication and order are whimsical in nature and based on no record and, therefore, are liable to be quashed.
19. As regards the third reason pressed to reject the claim of the petitioners, learned counsel submitted that any ground that patently smacks of discrimination, arbitrariness and inequality against the petitioners would be hit by the mandate of Articles 14 and 16 of the Constitution of India and that law does not countenance excuses which violate the fundamental rights of the citizens.
20. During the course of his arguments, the learned counsel for the petitioners cited and relied upon two decisions of the Supreme Court in M. Gurumoorthy v. Accountant General, 1971 (2) SCC 137, and Chief Justice of A. P. v. Dixitulu, (1979) 2 SCC 34; and a judgment of this Court in Abdul Hamid Khan v. UOI., 2012 (4) JKJ 144.
21. Mr. S. A. Naik, learned AAG, on the other hand, submitted that since the claim of the petitioners was considered by the Government pursuant to the interim direction passed by the Court, and stands rejected on the grounds mentioned in Government order no. 3262-LD(Lit) of 2013 dated 23.09.2013, the petitioners are not entitled to the reliefs claimed for by them.
22. I have perused the record and given my thoughtful consideration to the facts and arguments advanced at the Bar.
23. At the very outset, it needs to be fairly spoken that the contents of the orders whereunder these posts had been created, containing the condition sought to be enforced now as the ground to reject the request 11 made by the High Court, being ex facie contrary to the constitutional scheme of things, should have alarmed the Registrar General of the time, being the Principal Officer of the High Court, and he ought to have taken some serious steps to bring home to the concerned officer(s) of the Law Department the law on the subject. But it seems to have meant nothing for him. So, probably, I must hasten to add, deeming the condition so imposed to be outcome of oblivion of the concerned authorities in the Law Department, which seems to have been why it has been ignored while filling up these posts. Nonetheless, such an occasion again arose when the Law Department vide the impugned communication dated 16.07.2012 read with Government order dated 23.09.2013 sought to rake over the ashes to reject the request made by the Registrar General and repudiate the claim of the petitioners, but the Registry of this Court again did nothing in this regard. This has left no option with the petitioners, two petty employees of this Court, seeking an indulgence of this Court, to re- state and reiterate the position of law as to the powers of the Chief Justice and the High Court under the constitutional scheme of things in this regard.
24. Be that as it may, the fundamental question latently underlying the condition sought to be enforced, as had been laid in the Government orders creating these two posts, directly relates to the powers of the Chief Justice and of the High Court vis-à-vis the appointment of officers and servants of the High Court. It is not that the matter is res integra, but somewhere and somehow antipathy seems to be eeling into administrative decisions of the governmental functionaries. Let the relevant provision, i.e., Section 108, of the State Constitution be noticed. It reads thus:
"108. Officers and servants of the High Court:
(1) Appointments of officers and servants of the High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct.12
Provided that the Governor may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature, the conditions of services of the officers and servants of the High Court shall be such as may be prescribed by rules made by the High Court with the approval of the Governor.
(3) The administrative expenses of the High Court including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund."
25. A similar provision (with a slight difference) is contained in Article 229 of the Constitution of India which reads as under:
"229. Officers and servants and the expenses of High Courts.--
(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in 13 respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund."
26. The High Court of Jammu and Kashmir is the creature of the Constitution of Jammu and Kashmir. A bare reading of Section 108 of the Constitution makes it clear that the power to make appointments of officers and servants of the High Court vests in the Chief Justice of the Court. However, the Chief Justice can also delegate his power to such other Judge or officer of the Court as he may direct. There is no fetter placed by the Constitution on such power of appointment and/or delegation of such power exercisable by the Chief Justice. Though proviso to Sub-Section (1) of Section 108 provides that the Governor may by rule require that in such cases as may be specified in the rule, no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission, but this does not detract from the power conferred on the Chief Justice under Sub-Section (1) of Section 108. In any case, no such rule has been framed by the Governor.
27. Further, Sub-Section (2) of Section 108 of the State Constitution confers power on the High Court, subject, of course, to any law made by the Legislature, to make rules laying down the conditions of service of the officers and servants of the High Court with approval of the Governor. The State Legislature has not made any law under this provision of the Constitution so far. Nonetheless, even if there had been any, even the Legislature is not empowered to make any law as would affect or impact the power of the Chief Justice as envisaged by Sub-Section (1) of Section 108 of the State Constitution.
28. Pursuant to the powers conferred by Sub-Section (2) of Section 108 of the State Constitution, the High Court has framed the Staff Rules which 14 have duly been approved by the Governor. Rules 4 and 6 of the said Rules provide as under:
"4. Appointment and promotions:
All appointments to the staff of the High Court including promotions shall be made by the Chief Justice. The Chief Justice may, however, delegate any of the powers of appointment other than those of the Gazetted Officers to the Registrar or to any Judge of the High Court."
"6. Qualifications and mode of recruitment:
The Chief Justice may from time to time law down the qualifications of a member of service and determine the mode of recruitment."
29. From the aforesaid provision of the Constitution and the Rules made thereunder, the position being loud and clear, there should be no doubt in any body's mind about the powers of the Chief Justice in relation to the appointment of the staff of the High Court and determining the mode of recruitment. It has since long been settled that in regard to servants and officers of the High Court, Article 229(1) of the Constitution of India, which is in pari materia with Section 108(1) of the State Constitution, makes the power of their appointment the sole preserve of the Chief Justice and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee. In conferring such exclusive and supreme powers on the Chief Justice, the object which the Founding Fathers had in view was to ensure the independence of the High Court.
30 Now, let the condition sought to be enforced by respondent no. 1 be examined and analysed. Paragraph 2 of Government order no. 318-LD(A) of 1992 dated 25.3.1992, whereunder the first post of Electrician was created in the High Court, read as under:
"The post shall be filled up by a person taken on deputation from the Power Development Department".15
Similarly, Government order no. 1043-LD(A) of 1998 dated 17.07.1998, whereby sanction to the creation of the second post of Electrician in the High Court was accorded mentioned "subject to the condition that the post is filled up by deputation from the Power Development Department".
31. The question is, in view of the mandate of constitutional provision, the Rules framed by the High Court and the established position of law on the subject, whether the aforesaid condition was valid in law and enforceable? And if not, what would be its effect on the appointments made on these posts dehors such condition?
32. It has to be borne in mind that the power exercisable by the Chief Justice under Section 108 of the State Constitution, which corresponds to Article 229 of the Constitution of India, is the constitutional function of the Chief Justice. This power cannot be interfered with by any authority whatsoever, not even by the Legislature. The Supreme Court has had the occasion to consider the issue of the powers vested in the Chief Justice under Article 229 of the Constitution of India in several cases and it has been constantly held that the object of this Article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. Let some of the cases those came up for consideration before the Supreme Court and the law laid down therein be noticed.
33. Way back as in 1971 the Constitution Bench of the Supreme Court in Gurumoorthy v. Accountant General, 1971 (2) SCC 137, emphatically held as under:
"11. The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the 16 executive except to the limited extent that is provided in the Article. This is essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution-makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause (1) read with Clause (2) of Article 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1)...".
Again, in paragraph 12 of the aforesaid judgment, the Supreme Court observed as under:
"12....Thus Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service...".
34. In Chief Justice of A. P. v. Dixitul, (1979) 2 SCC 34, again the Constitution Bench of the Supreme Court, while examining the ambit and scope of the power of appointment in Article 229(1) of the Constitution of India, laid down that, in regard to the servants and officers of the High Court, Article 229 makes the power of appointment etc. the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee and that, in conferring such exclusive and supreme powers on the Chief Justice, the object which the founding fathers had in view, was to ensure independence of the High Court.
1735. In High Court of Judicature for Rajasthan v. Ramesh Chander Paliwal, (1998) 3 SCC 72 , a two Judge Bench of the Supreme Court, inter alia, held that the Chief Justice has the requisite power to revise the scales of pay subject of course to the approval granted in this behalf by the Governor. The Court in no uncertain terms observed:
"We again reiterate the hope and feel that once the Chief Justice, in the interest of High Court administration, has taken a progressive step specially to ameliorate the service conditions of the officers and staff working under him, the State government would hardly raise any objection to the sanction of creation of posts or fixation of salary payable for that post or the recommendation for revision of scale of pay if the scale of pay of the equivalent post in the Government has been revised."
36. In State of Maharashtra v. Association of Court Stenos, (2002) 2 SCC 141, the Supreme Court interpreted the provisions of Article 229 and proviso appended thereto in the following terms:
'...Needless to mention, notwithstanding the constitutional provision that the rules framed by the Chief Justice of a High Court, so far as they relate to salaries and other emoluments are concerned, require the prior approval of the Governor. It is always expected that when the Chief Justice of a High Court makes a rule, providing, a particular pay scale for its employees, the same should be ordinarily approved by the Governor, unless there is any justifiable reason, not to approve the same...'
37. The Supreme Court again had an occasion to consider the issue of the powers vested in the Chief Justice under Article 229 of the Constitution of India in Union of India v. S. B. Vohra, (2004) 2 SCC 150 and in paragraphs 10 of the judgment it was observed as under:-
"10. Independence of the High Court is an essential feature for working of the democratic form of the Government in the country. An absolute control, therefore, have been vested in the High Court over its staff which would be free from interference from the Government subject of course to the 18 limitations imposed by the said provision. There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in Clause 2 of the Article 229 of the Constitution of India and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course."
In paragraph 45 of the judgment it was concluded thus:
"45. Decisions of this Court, as discussed hereinbefore, in no unmistakable terms suggest that it is the primary duty of the Union of India or the concerned State normally to accept the suggestion made by a holder of a high office like a 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. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The appellant unfortunately did not perform its own duties."
38. In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, AIR 1998 SC 1079, wherein a question arose as to whether a full Court can give a direction to the Chief Justice not to fill up certain posts by bringing officers on deputation but to fill up these posts by promotion from amongst the High Court staff, the Supreme Court went to the extent of answering the question in the negative, in the following words:
"A Judge of the High Court individually or all the Judges sitting collectively, as in the Full Court, cannot either alter the constitutional provisions or the rules made by the Chief Justice. They have no jurisdiction even to suggest any constitutional amendment or amendment in the rules made by Chief Justice nor can they create any avenue of promotion for the High Court staff so as to be appointed on posts meant for officers from Rajasthan Higher Judicial Service or Rajasthan Judicial Service. The Chief Justice has been vested with wide powers to run the High Court administration independently so as not to 19 brook any interference from any quarter, not even from his brother Judges who, however, can scrutinize his administrative action or order on the judicial side like the action of any other authority."
39. As already observed in this judgment, there is some difference in the wording of Article 229 of the Constitution of India and Section 103 of the State Constitution inasmuch Article 229 confers the Rule making power on the Chief Justice, under Section 103 of the State Constitution the power has been conferred on the High Court. Further, whereas Article 229 provides that the approval of Governor of the State is required to be obtained in relation to the Rules containing provisions as regard salary, allowances, leave or promotion, Section 103 of the State Constitution provides that the conditions of services of the officers and servants of the High Court shall be such as may be prescribed by rules made by the High Court with the approval of the Governor. Apart from the fact that the Rules have already been framed and duly approved by the Governor, the fact remains that there is no difference in the language used in the provision as contained in Clause (1) of Article 229 of the Constitution of India and Clause (1) of Section 103 the State Constitution regarding the powers of appointment conferred on the Chief Justice. The issue in regard to the powers of the Hon'ble Chief Justice in context of the provision of Section 103 of the State Constitution and the Rules framed thereunder by the High Court came up for consideration before a Coordinate Bench of this Court in Abdul Hamid Khan v. UOI, 2012 (4) JKJ 144, and it was held therein that Section 108 of the Constitution of Jammu and Kashmir in its relevant contours, contemplates full freedom to the Chief Justice of the High Court in the matter of appointment of officers and servants of the High Court.
40. The law on the issue is, thus, not only settled, but it has also been laid own in clear terms that once the Chief Justice, in the interest of High 20 Court administration, has taken a progressive step specially to ameliorate the service conditions of the officers and staff working under him, the State government would hardly raise any objection thereto and it is always expected that the same should be ordinarily approved, unless there is any justifiable reason, not to approve the same.
41. In the instant case, obviously, in all its connotations, the condition incorporated in the Government orders dated 25.03.1992 and 17.07.1998, whereunder the posts were created, sought to place a fetter on the power conferred on, and exercisable by the Chief Justice, by virtue of Section 108 of the State Constitution and the Rules framed thereunder by the High Court. It is to be borne in mind that the power exercisable by the Chief Justice under Section 108(1) of the State Constitution is his Lordship's constitutional function. The aforesaid condition has the effect of making inroads into the constitutional function and powers of Hon'ble the Chief Justice. It, therefore, as rightly put by the learned counsel for the petitioners, was ex facie, antithesis to the constitutional scheme, invalid ab initio, not enforceable and, therefore, inconsequential vis-à-vis the appointment of the petitioners on the posts in question. The condition has rightly not been acted upon, for, the High Court Registry was not bound to go by a condition that was patently unconstitutional. It so continues and, therefore, would not constitute a valid ground to reject the request made by the Registrar General. Consequently, the impugned communication dated 16.07.2012 and the so called consideration order dated 23.09.2013 issued by respondent no.1 are rendered unconstitutional.
42. Coming to the core issue of entitlement of the petitioners to 2½ days' salary in parity with the given categories of the employees working in the Power Development Department, it be seen that the Government order envisaged allowing 2½ days' pay in lieu of Sundays and Holidays to the employees of the executive cadre of the Power Development 21 Department who are required to remain on duty round the clock. The basic condition of entitlement of such an employee is relatable to his performance of duties on Sundays and Holidays. The words "who are required to remain on duty round the clock" do not mean that the employee must of necessity be performing the duties round the clock for all times, but these words only connote the employee who is asked to remain on such duty round the clock as and when required by the controlling authority. It is not that such employees of the Power Development Department would be working continuously round the clock each day, each week, each month and so on, like the needles of a clock. In fact, the statement made by respondent no.1 in its order dated 23.09.2013 that the petitioners are not performing any roster duty as is being performed by the employees of the Power Development Department itself suggests that these employees of the Power Development Department do not perform round the clock duty continuously, but by turns as and when required. It is not comprehendible how come respondent no. 1 has drawn the conclusion that the petitioners were not performing such duties when such power to determine and satisfy itself as to which of the employees falls under the said category rests with the controlling officer. This is sufficiently borne out by communication dated 07.03.2008 addressed by the Additional Secretary Government, PDD to the Development Commissioner, Power, J&K, whereby it has been left to the discretion of the Chief Engineer concerned to satisfy himself that an employee is or would be performing such duties. In regard to the petitioners in their capacity as the employees of the High Court, the competence to satisfy itself as to whether the petitioners fulfilled the conditions as laid down in the Government order dated 02.02.1995 read with aforesaid communication dated 07.03.2008, lay with the Registrar General of the High Court, who also happens to be the Principal Officer of the Hon'ble Court. The Registrar General would not address letter dated 25.04.2012 to respondent no.1 unless he had satisfied himself about the 22 fulfillment of the condition by the petitioners and his such satisfaction could not be discarded or overturned in a manner as if respondent no. 1 was sitting in appeal over the satisfaction, a finding of fact, of the Registrar General, especially so when respondent no. 1 does not have any personal knowledge about the duty hours and functioning of the petitioners, nor exercises any control over them.
43. This Court can also take judicial notice of the systematic functioning of various wings, namely, administrative, judicial, protocol with different sections and offices of the Court and the varied duties assigned to and discharged by the officers and staff members therein. The nature of many of such duties discharged and functions performed require continuous electric supply till late hours, some times stretching into dead of nights, and on Sundays and Holidays. Such jobs cannot be done unless the Electricians of the High Court remain present. It would be undesirable to spell out in detail the duty hours rendered by different officers and officials of the High Court assigned with varied nature of jobs, but certainly petitioners' presence on duty is concomitant with the performance of all such functions. Going by the actual duty hours rendered by the petitioners and the magnitude of responsibility cast on them, I am afraid, if they are put on roster duty, the High Court may fall short of such employees.
44. It needs to be also observed here that the Registrar General of the High Court, in his capacity as the Principal Officer of the Court, is acting on behalf of and under the directions of Hon'ble the Chief Justice. In that view of the matter letter dated 25.04.2012 had to be dealt with in that perspective. Once the Registrar General had assumed its satisfaction about the performance of the duties of the petitioners and made a request for sanction of such pay in favour of the petitioners, this satisfaction could not have been overturned without any material to the contrary, that too, on a ground which was totally against the constitutional provision.
2345. As regards the third reason, that if the benefit of 2 ½ days' pay is extended to the petitioners, similarly placed employees in other departments may also claim the same on the doctrine of parity in pay, it hardly needs to be mentioned here that Articles 14 and 16 of the Constitution guarantee an equal protection of laws and equality before law. No two identically placed persons can be discriminated on any count, especially the ground sought to be pressed into service. Further, in this regard respondent no. 1 needs to be reminded that in the Law Department's letter dated 16.07.2012 the sole objection raised against extending the benefit in question to the petitioners was that there was a condition that the posts would be filled up by deputation of employees from the Power Development Department. This objection was reiterated in Government order dated 23.09.2013 as well. It connotes that if the posts had been filled up by employees of the Power Development Department on deputation basis as had been laid down in the creation orders, then the holders of these two posts, though would perform the same duties as the petitioners, would be entitled to the benefit in question. There is, thus, a tacit admission in the objection itself that the Law Department at the time of creation of these posts knew that the holders of these two posts in the High Court would be performing duties identical in nature to those of the employees working in the Power Development Department. In other words, the petitioners are sought to be discriminated only because they have been appointed by Hon'ble the Chief Justice in exercise of his Lordship's constitutional function. This is totally unjustifiable and unacceptable. The respondent no. 1 seems to have been totally unmindful about what he was saying. The communication and the order impugned herein together with the condition contained in the Government orders creating the two posts of Electricians, therefore, suffer from serious non-application of mind on the part of respondent no.1 and, therefore, cannot withstand the scrutiny of law, being totally arbitrary.
2446. Summarizing the aforesaid discussions, it is held that the condition laid down in Government orders no. 318-LD(A) of 1992 dated 25.03.1992 and no. 1043-LD(A) of 1998 dated 17.07.1998 and sought to be reiterated and enforced in terms of impugned communication no. LD(A)87/106 dated 16.07.2012 addressed by respondent no. 1 to respondent no. 2, and Government order no. 3262-LD(Lit) of 2013 dated 23.09.2013, tantamount to interfering with the constitutional function of Hon'ble the Chief Justice and making an inroad in his Lordship's constitutional power and, therefore, is unconstitutional. Consequently, it could neither be imposed nor could its enforcement be sought. It is further held that the competence to assume satisfaction as to whether petitioners fulfilled the conditions envisaged in Government order no. 20-PDD of 1995 dated 02.02.1995 read with communication no. PDD/VI/J/38/2000 dated 07.03.2008 addressed by Additional Secretary to Government, Power Development Department, to the Development Commissioner, (Power) J&K, and, consequently, whether the petitioners were entitled to the benefit of 2½ days' pay in lieu of their attending the duties on Sundays / holidays etc. lay with the Registrar General of the High Court, who is the Principal Officer of the High Court of Jammu and Kashmir, acting under the orders of Hon'ble the Chief Justice; therefore, the same could not have been overturned or discarded by respondent no. 1 on unjustifiable grounds, especially so when there was no material before respondent no. 1 to take a contrary view. The Registrar General of the High Court, viz., respondent no. 2, having written to respondent no.1 to accord sanction to the grant of such benefit to the petitioners, the petitioners are held to be entitled to 2½ days' pay in lieu of performance and discharge of such duties retrospectively from the date of issue of rejection letter no. LD(A)87/106 dated 16.07.2012 by the office of respondent no.1, for, had respondent no.1 applied its mind to the request of respondent no.2 and considered the matter keeping in view the constitutional power and function of Hon'ble the Chief Justice, he would 25 not have rejected the request of respondent no.2, and the petitioners would have been getting this benefit, at least, from that date.
47. This petition is, accordingly, allowed. The impugned communication no. LD(A)87/106 dated 16.07.2012 addressed by respondent no. 1 to respondent no. 2 and Government order no. 3262- LD(Lit) of 2013 dated 23.09.2013 are quashed. Respondent no. 1 is directed to accord a fresh consideration to the request of respondent no. 2 as contained in the latter's letter no. 2265/RG dated 25.04.2012 and pass fresh order in the matter in consonance with Government order no. 20- PDD of 1995 dated 02.02.1995 read with communication no. PDD/VI/J/38/2000 dated 07.03.2008 addressed by Additional Secretary to Government Power Development Department to the Development Commissioner (Power) J&K, and keeping in view what has been said and held in this judgment hereinabove. The fresh consideration, as ordered above, shall be accorded within a period of two months from the date of this judgment.
48. Though a deserving case, yet, taking a lenient view against respondent no.1, I pass no orders as to costs.
(Ali Mohammad Magrey) Judge Srinagar, 03.12.2014 Syed Ayaz, Secretary